Dems Revive Nullification With Efforts To Undercut Immigration Law

New York’s “Local Cops, Local Crimes Act” is being sold as a public-safety measure. Its premise, however, reaches far beyond the question of how local police should allocate their time. The law forbids New York’s local governments and law-enforcement agencies from continuing or entering into agreements with the federal government under Section 287(g) of the Immigration and Nationality Act of 1996, and it declares existing agreements void and unenforceable under state law.

That matters because Congress expressly created Section 287(g) to permit the federal government to enter into mutually beneficial written agreements with states and political subdivisions that allow qualified state or local officials to perform specific immigration-related functions. New York’s new law therefore is not merely a declaration that Albany will decline to participate in a federal initiative in the future. It expressly commands local entities to terminate and abandon existing federal agreements.

Fifteen New York sheriffs have sued in federal court to challenge the statute. Bourgault v. Hochul was filed on Aug. 25, 2026, the ban’s effective date. The plaintiffs seek emergency relief arguing that the state has unlawfully interfered with federally authorized agreements and with the authority of locally elected sheriffs to make law enforcement decisions for their counties. The case is still pending.

The constitutional stakes are straightforward to describe, even if the ultimate legal answer is not. The supremacy clause makes the federal Constitution and valid federal laws “the supreme Law of the Land.” This means that federal law takes precedence over contrary or conflicting state law. Federal preemption doctrine accordingly prevents a state from enforcing its own law when that law conflicts with federal laws or obstructs the execution of federal objectives, especially in a field such as immigration where Congress has enacted a comprehensive enforcement scheme.

But there is a complication that should not be overlooked. The federal statute says that the functions performed by participating states or local officers must be carried out “to the extent consistent with State and local law.” That language gives New York a plausible argument that Congress contemplated state-law limits — albeit, probably not outright bans — on participation.

There is also a contract clause question. The U.S. Constitution commands that no state shall pass a “Law impairing the Obligation of Contracts.” The Supreme Court’s modern contract clause analysis asks whether the challenged law substantially impairs a contractual relationship and, if so, whether the impairment is justified by a significant and legitimate public purpose and is reasonable and appropriate to that purpose.

New York’s law does not merely regulate a future contract. In apparent violation of the contract clause, it unreasonably tells local entities that they must leave existing 287(g) agreements and provides that those agreements are “void and unenforceable,” thus impairing the sheriffs’ reciprocal contractual obligations with the federal government. 

New York’s Constitution makes its county sheriffs locally elected officers. While this does not necessarily establish unlimited sheriff autonomy, it makes the plaintiffs’ arguments about elected local law enforcement discretion more than rhetorical flourishes, especially given that the ironically named “Local Cops, Local Crimes Act” actually bars county sheriffs from using their discretion regarding how best to protect their local citizens from illegal immigrants’ criminal behavior. Thus, the dispute centers on whether Albany may retroactively overturn policy choices made by independently elected sheriffs to work with the federal government based on their first-hand knowledge of the unique public safety needs of their constituencies.

The state may respond that under Supreme Court precedent, the federal government cannot “commandeer” — that is to say, enlist — state or local officials to enforce federal law. It will argue that its law merely directs how its political subdivisions may use state-created governmental authority and resources. 

The plaintiffs, however, will reply with their own “reverse-commandeering” argument, which appears in their complaint. In part, it alleges, “When a State coerces local officials into abandoning the very cooperative mechanisms Congress authorized, it does not merely regulate its own internal affairs. It commandeers those officials into a regime of obstruction that frustrates the federal scheme.” The state’s argument does not answer the questions of whether a state may regulate the federal government itself, or, as in this case, invalidate federal/local contractual arrangements authorized by and implementing federal law.

A closely related case in Virginia makes New York’s lawsuit particularly timely. On Aug. 31, 2026, Senior U.S. District Judge Robert Payne blocked key portions of a Virginia law that would have imposed new conditions on existing 287(g) agreements. The court concluded that the federal government was likely to prevail on its contract clause and supremacy clause theories, while leaving in place a prohibition forbidding localities that had not already done so from entering the 287(g) program.

The broader historical parallel also merits consideration. The constitutional principle at issue is the 19th-century nullification controversy over Southern Democrats’ proposition that a state could declare a federal law inoperative within its borders. South Carolina’s 1832 Ordinance of Nullification declared the federal tariff acts of 1828 and 1832 “null, void, and no law” within the state. 

While New York has neither expressly declared a federal law unconstitutional nor claimed a general power to cancel federal statutes, the resemblance in logic between South Carolina’s Ordinance of Nullification and New York’s “Local Cops, Local Crimes Act” is hard to miss when New York uses its own law to render a federally authorized program ineffective within its boundaries because state officials disapprove of federal policy.

That is why Bourgault v. Hochul is more than a dispute over the allocation of police resources. At bottom, this case asks who gets to decide whether a federal immigration program Congress created may operate through willing local partners: Washington, Albany, or the locally elected officials who lawfully chose to participate. 

Although states are entitled to decline many federal programs, the federal government, in turn, is entitled to execute and enforce, unimpeded, federal law within its superior constitutional sphere. Immigration regulation is one of those superior constitutional spheres in which federal law takes precedence over contrary or conflicting state law, as per the United States Constitution’s supremacy clause. 

What a state cannot be permitted to do is transform a policy disagreement into an exercise of state power to nullify federal authority. Such state action is incompatible with majority rule, as such is embodied in laws enacted by majorities of both houses of Congress that are intended to have uniform nationwide effect.   

If New York’s law survives, the decision will carry implications well beyond immigration. The decision may define how far a state may go in disabling any federal program it opposes by ordering its local governments to withdraw from it. If New York’s law survives, other sanctuary states will feel emboldened to enact legislation or to take action that thwarts, within their states, the enforcement, objectives, or purposes of federal laws with which they disagree. When they do so, the United States of America will no longer be “one nation … indivisible,” but a conglomeration of fractious states.

K.R. Kirby is an attorney from Buffalo, New York. He has represented individual, business, and municipal clients in numerous New York state and federal courts.