No Judge Is above the Law

No state may exempt itself or its officials from federal authority

Hannah Dugan, the Wisconsin circuit court judge who last April berated ICE agents in the Milwaukee courthouse and smuggled a wanted illegal alien out a back door, learned this week that wearing a black robe does not place one above the law. A federal judge ruled that her judicial status does not immunize her from federal obstruction charges. Judge Lynn Adelman, a Clinton appointee, rejected her motion to dismiss, though the news of this decision has received little attention compared to the hoopla over her arrest last spring.

The ruling is correct for two fundamental reasons. First, no one — not even a judge — can pick and choose which laws to obey. Judicial discretion exists, but it does not extend to obstructing federal law. She may have her “opinions” about the law but — unless you are Ketanji Brown Jackson (see here), your opinions really don’t matter. Second, Dugan’s actions revive a dangerous misconception that state authority can override federal law. She is a Wisconsin state judge with a state case before her that day; ICE’s federal arrest warrant was entirely outside her jurisdiction.

Some might argue that ICE was “on state grounds.” Yet every state courthouse exists within the United States, and federal law is supreme. No state may exempt itself or its officials from federal authority. Sanctuary jurisdictions might limit cooperation with federal law enforcement — but active interference, such as shielding a wanted criminal, is a direct assault on federal law and the rule of law itself. The Civil War settled this decisively: states do not have the right to nullify federal law.

Judge Dugan must be held accountable for two reasons. Her actions exemplify the dangerous notion, common in sanctuary jurisdictions, that federal law requires local consent to be effective. And as a judge, she should know better regarding the supremacy of federal law, the limits of her jurisdiction, and the necessity of upholding legal order. Accountability in such cases is not merely punitive; it is also exhortatory, making a public example to deter others — a principle of crime and punishment the Church itself today sometimes seems to forget.

Some defenders argue that immigration violations are “civil” matters or that compliance with one law should shield a person from enforcement of another. We even have clergy “shielding” illegal aliens when they go to court. This is a false and paradoxical notion: appearing in court should shelter you from law enforcement? Going to court to pay your traffic ticket would not exempt one from arrest for breaking and entering. “But immigration enforcement is a civil matter!” they say. Even civil violations can carry consequences of imprisonment. I wonder if Judge Dugan ever sent somebody to jail for civil contempt of court. She certainly demonstrated contempt for federal law enforcement. And it would certainly be a bizarre notion of the role of the judiciary if a courthouse immunized judges and defendants from full accountability before the law, state and federal.

Judge Dugan’s behavior threatens the very principle of the rule of law. If judges cannot be held accountable for obstructing federal authority, the law itself is diminished. The federal government’s supremacy is not a suggestion; it is the cornerstone of our constitutional order. Upholding it is essential not only for justice in individual cases but for the integrity of the nation itself.

 

John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his.

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