Dillon's Rule: A Check on Sheriffs' Authority to Enter 287(g) Agreements

68 Am. U. L. Rev. 1053 (2019).

* Junior Staff Member, American University Law Review, Volume 68; J.D. Candidate, May 2021, American University Washington College of Law; B.A., Political Science, 2011, The University of Arizona. I would like to thank my faculty advisor, Professor Anita Sinha, for sharing her guidance and expertise, and the Law Revieweditorial board for their support and thorough feedback throughout the production process. I am particularly grateful for the assistance of my Note & Comment Editor, Susey Davis, Executive Editor, Cecilia Diedrich, and Associate Managing Editor, Tara Carrier. Thanks also to my colleagues, Mary Greer, Jordan Long, and Bob Lang, for taking the time to help me brainstorm ideas during the early stages of the writing process. Additionally, I would like to thank my father, Allan Taylor, himself an accomplished attorney, for his invaluable feedback, mentorship, love, and support. Finally, I owe a special debt of gratitude to my good friend and colleague, Sophia Gregg, and her colleague, Jason Yarashes, both from Legal Aid Justice Center, whose creative lawyering provided the inspiration for this piece.

Authority to enforce federal immigration policy in the United States is a power traditionally left exclusively to federal government agents. However, § 287(g) of the Immigration and Nationality Act provides a legal framework for state and local law enforcement to carry out federal immigration policy by entering a written agreement with the federal government. These partnerships, widely known as “287(g) agreements,” are currently in place in seventy-eight jurisdictions nationwide, of which seventy-one are between a local sheriff’s office and the Department of Homeland Security.

This Comment argues that Dillon’s Rule, a doctrine which limits the authority of cities, towns, and other localities to act unilaterally without authorization from the state legislature, creates a barrier to the enforcement of the 287(g) agreements currently in place between sheriffs’ offices and the federal government. Specifically, Dillon’s Rule precludes sheriffs from entering 287(g) agreements without authorization from the state legislature, rendering these agreements invalid in most cases. Accordingly, when an individual is detained or otherwise deprived of liberty or due process under an invalid 287(g) agreement, constitutional protections should apply.

Introduction

When the Founding Fathers designed our government, it is unlikely they could have anticipated the strain today’s immigration enforcement puts on our federalist system. The intersection between law enforcement and the justice sector across state and federal levels involves many different individuals and entities in immigration enforcement, creating tension and confusion when it comes to the delegation of authority and separation of powers. This tension can be illustrated by an issue that courts have yet to consider: the extent of a sheriff’s authority to unilaterally enter into a 287(g) agreement with the U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) in states where Dillon’s Rule¹ applies and sheriffs are not authorized by state law to enter into agreements with the federal government.

287(g) agreements are contractual partnerships between ICE and state-level law enforcement. These agreements derive from § 287(g) of the Immigration and Nationality Act (INA),² which grants the U.S. Attorney General authority to delegate federal immigration enforcement power to local law enforcement agencies (LEAs) through the execution of a written memorandum of agreement (MOA).³ The collaboration necessary for the successful implementation of a 287(g) agreement epitomizes the legal complexity that can arise from intergovernmental cooperation in immigration enforcement, and Dillon’s Rule adds to this already complex topic by limiting local law enforcement authority in some jurisdictions.

This Comment argues that, in most cases, sheriffs are precluded from entering into 287(g) agreements in states where Dillon’s Rule applies. Furthermore, the limitation that Dillon’s Rule creates in this context invalidates existing 287(g) agreements signed unilaterally by sheriffs, and constitutional protections should apply where individuals are detained under these invalid MOAs. Part I provides general background on U.S. immigration in the context of § 287(g), a brief history of the development of Dillon’s Rule, and sets the foundation for an analysis of sheriffs’ authority to enter 287(g) agreements.⁴ Part II explains how 287(g) agreements function in practice and discusses how Dillon’s Rule can be applied. Part II also addresses pertinent ancillary issues, such as common responsibilities of sheriffs and contract law issues that impact the enforceability of a 287(g) agreement.⁵ Part III then applies Dillon’s Rule to a sheriff’s authority to enter a 287(g) agreement, taking into consideration counterarguments and peripheral issues that could affect a Dillon analysis in this context.⁶

I. Background

A. U.S. Immigration in the Context of § 287(g)

George Washington once wrote in a private letter that “[he] had always hoped, that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong.”⁷ Despite the first President’s aspirations for the country, immigration has proven to be a historically contentious topic in the United States, which is amplified when the immigration rate rises.⁸ The 1990s, for example, saw a particularly acute spike in immigration rates,⁹ compelling Congress to amend § 287 of the INA in an attempt to strengthen immigration enforcement by expanding ICE’s powers.¹⁰

Among other things, the 1996 expansion of § 287 allows ICE to collaborate with state-level LEAs to enforce federal immigration policy. In relevant part, § 287(g)(1) provides that

the Attorney General may enter into a written agreement with a State, or any political subdivision of a State . . . to perform a function of an immigration officer . . . [and] may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.¹¹

Despite this expansion of § 287, immigration rates continued to rise at a record-setting pace into the 2000s, hitting unprecedented highs in 2014.¹² To accommodate this immigration influx, the U.S. immigration system has evolved to include an array of enforcement mechanisms policing the border.¹³ For example, recent years have seen the proliferation of intergovernmental service agreements, which are similar to 287(g) agreements except that they allow ICE to pay directly for the cost of detaining undocumented immigrants in local facilities.¹⁴ Local and state governments have also taken action on their own to fill the vacuum where Congress has failed to pass effective immigration enforcement policy, creating yet another layer of legal and political complications for immigrants and legal practitioners to consider.¹⁵

It is against this backdrop that § 287(g) becomes relevant to the immigration debate today. In 2002, Florida became the first state to enter a 287(g) agreement, largely motivated by lingering security concerns stemming from the September 11, 2001 terrorist attacks.¹⁶ Following Florida’s example, 287(g) agreements quickly became a widespread mechanism for federal immigration enforcement, peaking in use during the mid-2000s and tapering off in popularity as President Obama ended his second term.¹⁷ By 2016, the number of 287(g) agreements nationwide had been reduced from seventy in 2010 to just thirty-two.¹⁸ However, the transition to the Trump administration has seen a resurgence of the 287(g) program, and 287(g) agreements are now in effect with seventy-eight law enforcement entities across twenty states.¹⁹

Reactions to § 287(g) have been mixed, and courts have recently had to consider a range of cases related to the 287(g) program.²⁰ The law has drawn criticism from immigration rights advocates,²¹ while at the same time it has been lauded by those in favor of strict immigration enforcement.²² The controversy surrounding the statute and the renewed proliferation of 287(g) agreements calls for greater clarity surrounding a grey area in the law: the extent of local government authority to unilaterally participate in the 287(g) program.

B. A Brief History of Dillon’s Rule and Home Rule

Arising during the urban boom of the mid-1800s, Dillon’s Rule is a common principle of law that aids courts in determining the extent of local government authority.²³ Specifically, Dillon’s Rule provides that only the state government has the authority to empower local government officials, and local governments cannot act outside the scope of the authority granted by the state legislature.²⁴

Dillon’s Rule was first established by the Iowa Supreme Court in Clinton v. Cedar Rapids & Missouri River Railroad Co.,²⁵ a decision which limited local government authority and addressed systemic problems facing the contemporary American municipal system.²⁶ In Clinton, the Iowa Supreme Court ruled that the power of local government is derived entirely from the state legislature.²⁷ Writing for the majority, Justice Dillon explained his rationale for what has become known as Dillon’s Rule: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist.”²⁸

Since Clinton, Dillon’s Rule has been approved by the United States Supreme Court in multiple decisions. In Merrill v. Town of Monticello,²⁹ for example, the Court held that an Indiana town was precluded from issuing bonds for sale in the open market because the town did not have express or implied authorization from the state legislature to sell bonds.³⁰ About fifteen years later, the Court further reinforced Dillon’s Rule in Hunter v. City of Pittsburgh,³¹ where Justice Moody stated the Court’s position emphatically: “Municipal corporations are . . . created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted [sic] to them . . . . [T]he state is supreme, and its legislative body . . . may do as it will.”³² Since these seminal cases, Dillon’s Rule has become established jurisprudence throughout the country, and the doctrine is recognized by a majority of the states.³³

Dillon’s Rule was not without its opponents in the U.S. legal context when it was first created, and there are commentators who still criticize the doctrine today.³⁴ Shortly after the establishment of Dillon’s Rule, certain states adopted what became known as “Home Rule” to counter the limitation of Dillon’s Rule.³⁵ Unlike Dillon’s Rule, Home Rule explicitly confers authority from the state legislature to local governments to determine and enforce their own powers without interference from the state government.³⁶ The first Home Rule law, set forth by Missouri as an amendment to the state constitution in 1875, provided that any Missouri city exceeding 100,000 in population could “frame a charter for its own government, consistent with and subject to the Constitution and the laws of the State.”³⁷ The United States Supreme Court affirmed the legitimacy of Home Rule in City of St. Louis v. Western Union Telephone Co.,³⁸ interpreting the original Home Rule law to allow the city of St. Louis authority to regulate its own streets.³⁹ In denying a subsequent petition for rehearing, the Court explained that the city derived its power from its charter pursuant to the Missouri 1875 Home Rule law.⁴⁰ By enabling certain localities to craft a charter defining the scope of their own authority,⁴¹ the original Home Rule statute strengthened the autonomy of city governments in Missouri, setting an example for other states to follow.⁴²

Whereas Dillon’s Rule limits local government authority by reinforcing state legislatures’ oversight, Home Rule empowers localities to exercise their independence by determining their own laws.⁴³ In her treatise on local government law, professor Sandra M. Stevenson provides a helpful illustration of the contrast between Dillon’s Rule and Home Rule as existing along a spectrum.⁴⁴ At one end of the spectrum, local governments have limited autonomy and are prohibited from taking action without “express[] and unambiguous[]” authorization from the state legislature or constitution.⁴⁵ At the other end of the spectrum, local governments have substantial autonomy with full authority to take any action the state legislature would otherwise be able to do “that has not been explicitly forbidden by state law.”⁴⁶ This balance between Dillon’s Rule and Home Rule creates a natural tension between state and local governments inherent to our system of federalism, and when the doctrines conflict, each state has its own method of determining which rule governs.⁴⁷ However, the United States is generally considered to lean towards the limited autonomy end of the spectrum because of the limiting force that Dillon’s Rule provides.⁴⁸

II. Section 287(g), Dillon’s Rule, and Common Duties of the Sheriff

A. Contract Law and 287(g) Agreements

A 287(g) MOA is a type of contract, and thus governed by contract law principles. In fact, the Supreme Court has applied contract law principles to MOAs dating as far back as 1809. In Violett v. Patton,⁴⁹ the Court considered whether the contemporary Virginia statute of frauds applied to the endorsement of a promissory note, holding that the “memorandum of agreement” was not in writing, and the statute of frauds thus did not apply.⁵⁰ Similarly, lower courts have more recently applied contract law principles to MOAs. For example, in APMD Holdings, Inc. v. Praesidium Medical Professional Liability Insurance Co.,⁵¹ two parties entered a MOA to combine resources for the creation of a joint business venture.⁵² The MOA included terms defining how the parties would collaborate, the distribution of company stock, and the governing structure of the corporation the parties sought to create.⁵³ The Texas Court of Appeals held that the MOA constituted “a binding and enforceable contract” because it set forth consideration owed by both parties and the terms were clear and definite.⁵⁴

1. Agency law

Agency law dictates that a contract between entities is only valid and enforceable when all signatories to the agreement are authorized to bind their respective entities in contract.⁵⁵ In this context, a dispute can occur, for example, when an employee signs a contract with a third party on behalf of his employer without the employer granting authority to the employee to enter binding contracts.⁵⁶

The Third Restatement of Agency recognizes two primary types of authority: “actual authority” and “apparent authority.”⁵⁷ Actual authority is created when the principal—a person or entity entering a contract—overtly manifests to the agent an intention for the agent to have the authority to act on the principal’s behalf.⁵⁸ To determine the extent of an agent’s authority, courts examine whether the principal has made explicit or implicit manifestations towards the agent that cause the agent to reasonably believe that he has authority to act on behalf of the principal.⁵⁹ In contrast, apparent authority is created when the principal overtly manifests to a third party that the agent is acting on the principal’s behalf.⁶⁰ For an agent to have apparent authority, the principal must make direct or indirect manifestations towards a third party, causing the third party to actually and reasonably believe that the agent has authority to bind the principal.⁶¹

2. Agency law applied to government entities

Agency law is applicable to government entities, as it is to private corporations.⁶² In Federal Crop Insurance Corp. v. Merrill,⁶³ the Supreme Court explained that express authorization is required from Congress for a government agent to bind the government in contract, regardless of whether the agent has actual knowledge of the extent of his authority.⁶⁴ In Merrill, Idaho farmers purchased insurance from an agent of a federally-owned insurance corporation who sold the insurance even though a federal regulation precluded the farmers from being able to collect insurance when their crops were destroyed.⁶⁵ The Court decided that the farmers could not collect insurance payments, holding that the agent did not have authority to bind the federal government in contract regardless of the agent’s lack of actual knowledge of the existence of the conflicting regulation.⁶⁶

Later, in Office of Personnel Management v. Richmond,⁶⁷ the Court reaffirmed its position that government employees cannot bind the federal government where they are not authorized to do so.⁶⁸ The RichmondCourt held that a government employee’s mistake in providing information regarding a disability benefits application did not bind the government to cover the cost of the plaintiff’s relief because federal statute precluded the specific type of benefit the plaintiff was initially seeking.⁶⁹ Thus, “the Government could not be bound by the mistaken representations of an agent unless it were clear that the representations were within the scope of the agent’s authority.”⁷⁰ Cases like Merrill and Richmond are consistent in defining the agency of a government representative even more narrowly than in cases of private corporations.⁷¹

B. Section 287(g) in Practice

As explained in Part I, 287(g) agreements endow LEAs with the authority to carry out certain functions of federal immigration enforcement. Over the years, ICE has used two different types of 287(g) MOAs: the “Task Force Officer Model” and the “Detention Model.”⁷² However, the Detention Model, which provides local law enforcement with the ability to administer detention facilities for the purpose of immigration enforcement,⁷³ is the only model currently in use.⁷⁴ Like any contract, 287(g) agreements govern the cooperation between the federal government and participating LEA, and courts have interpreted § 287(g) as requiring the execution of a 287(g) agreement for state or local officials to carry out immigration policy in most circumstances where the issue has come up.⁷⁵

1. A standard 287(g) agreement

MOAs under § 287(g) set forth the terms and conditions governing the collaboration between ICE and the state-level LEA entering a 287(g) agreement.⁷⁶ LEAs typically agree to nominate qualified law enforcement officials to participate in a training program, compensate the officials while they are trained, and provide local facilities to detain suspected undocumented immigrants.⁷⁷ In exchange for participation in the 287(g) program, ICE agrees to provide technical training to qualified participants, reimburse costs associated with the implementation of the MOA (such as transportation of inmates), and delegate authority to enforce federal immigration policy.⁷⁸

2. Local law enforcement authority under § 287(g)

A 287(g) MOA is typically required for state-level law enforcement to arrest or detain individuals under federal immigration law in the absence of other authority. For example, in Ochoa v. Campbell,⁷⁹ the District Court for the Eastern District of Washington determined that Fourth Amendment protections apply when local authorities execute immigration detainers because state and local law enforcement can only enforce federal immigration policy under the auspices of a “formal, written [287(g)] agreement[].”⁸⁰ Similarly, in Santos v. Frederick County Board of Commissioners,⁸¹ the Fourth Circuit held that local law enforcement violated the Fourth Amendment by detaining a Salvadoran woman under a civil ICE warrant because there was no 287(g) agreement in place.⁸² The court specified that the officers’ conduct was unlawful because they were not authorized by a 287(g) agreement to carry out federal immigration policy.⁸³ However, the court left the door open to the possibility that “express direction . . . by federal statute or federal officials” might, by itself, empower local law officials to enforce ICE policy.⁸⁴ The Supreme Judicial Court of Massachusetts examined this same issue in Lunn v. Commonwealth.⁸⁵ In Lunn, state police, without a 287(g) agreement, held a suspect under an immigration detainer in a municipal jail at the request of federal immigration officials.⁸⁶ The Massachusetts court held that the plaintiff’s detention was impermissible because the state police had no authority to enforce federal immigration policy in the absence of a 287(g) agreement.⁸⁷

C. Dillon’s Rule

Dillon’s Rule has developed to include three criteria to determine the extent of local government authority: local governments only have those powers that are (1) expressly granted by state legislation, (2) necessarily implied from those powers expressly granted, or (3) essential to the functioning of the local municipal body.⁸⁸ As of 2016, Dillon’s Rule was considered good law in at least thirty-one states, though courts in different jurisdictions have been known to apply the three Dillon factors in varying ways.⁸⁹ For example, some jurisdictions rely heavily on the first factor, while others give weight to all three.⁹⁰ Many courts have also interpreted the doctrine to weigh the factors more evenly, requiring only one of them to be met for authority to extend to local government.⁹¹ Ultimately, every jurisdiction has a different construction of Dillon’s Rule, meaning that a Dillon analysis must be adapted to the case law in each jurisdiction where the doctrine applies and cannot be uniformly applied across multiple states.⁹²

1. Express authority

The first criterion of Dillon’s Rule examines whether the state legislature has expressly granted local government with the authority in question.⁹³ For example, in Board of Supervisors v. Countryside Investment Co.,⁹⁴ the Supreme Court of Virginia held that the powers of the Augusta County Board of Supervisors did not empower it to enact a local ordinance because there was not express authority from the state legislature for the Board to do so.⁹⁵ Decisions similar to Countryside Investment Co. indicate that an application of the first Dillon factor can, by itself, determine the outcome of a case,⁹⁶ but courts oftentimes proceed to consider all three factors as part of their analysis.⁹⁷

2. Implied authority

Courts may also extend the authority of local government to those powers necessarily implied from expressly granted powers.⁹⁸ For example, in Perretta v. City of New Britain,⁹⁹ the Connecticut Supreme Court held that the authority of a city’s mayor to fire city employees was within the mayor’s powers because such powers could be implied from the mayor’s expressly granted authority as the city’s chief executive officer.¹⁰⁰ The Perretta court reasoned that, as chief executive, the mayor is charged with ensuring the city’s fiscal sovereignty, and the ability to dismiss personnel is necessarily implied from that responsibility.¹⁰¹ However, the interpretation of local governments’ implied powers under Dillon’s Rule is oftentimes narrowly construed,¹⁰² as the North Carolina Supreme Court determined in Porsh Builders, Inc. v. City of Winston-Salem.¹⁰³ There, the court held that the authority for a city to reject the highest bidder for a government contract was not implied from the city’s express power to reject lower bids.¹⁰⁴ In its decision, the court acknowledged that “statutory delegations of power to municipalities should be strictly construed, resolving any ambiguity against the [city’s] authority to exercise the power.”¹⁰⁵

3. Essential authority

The third, and most narrowly applied,¹⁰⁶ Dillon factor is that local governments can exercise those powers that are “essential”¹⁰⁷ to the locality, even in the absence of express or implied authority.¹⁰⁸ This aspect of a Dillon analysis can come into play when localities are forced to react to emergencies. In Willson v. Boise City,¹⁰⁹ the Idaho Supreme Court held that a municipality had the authority to divert stream water by building a ditch extending outside the city even in the absence of express authority to construct outside the city limits.¹¹⁰ The court determined that the authority to divert stream water was “necessary” for the city to protect its citizens and thus within the scope of the locality’s powers.¹¹¹

The third criterion in a Dillon analysis can also include situations where effective municipal administration requires that certain powers be conferred to local governments even if the powers are not expressly or impliedly authorized by state law. For example, in State ex rel. Ennis v. Superior Court,¹¹² the Supreme Court of Washington held that a municipal governing body had authority to remove an employee from office despite the fact that the city’s charter did not provide the governing body with that power because authority to dismiss the employee was necessary for the city’s administration.¹¹³

4. Distinguishing between implied and essential authority

While the second and third Dillon factors are distinct from each other, the concepts of implied authority and essential authority can also run together in court decisions. The difference in the holdings of Perretta and Ennis illustrates this ambiguity in the doctrine. In both cases, the courts held that local government had the ability to dismiss an employee, and both decisions provide similar rationale for their conclusions.¹¹⁴ However, the court in Perretta determined that it was the mayor’s implied authority to dismiss a city employee,¹¹⁵ while the court in Ennis held the authority was simply necessary, and did not comment on the possibility of implied authority.¹¹⁶ This dynamic suggests that the distinction between essential and implied authority is influenced by the ability for courts to support their conclusions. Implied authority can derive from existing policy (i.e., a charter or statute) while essential authority is more of a policy position unsubstantiated by black letter law.

D. Home Rule

Each state where Home Rule applies extends varying breadths of authority to local governments, and courts’ interpretation of respective state Home Rule constructions has developed accordingly. However, when a local rule or law created under Home Rule is determined to conflict with state law, the state law governs.

1. Imperio Home Rule constructions

Some Home Rule constructions allow local governments wide discretion to determine their own rules and laws without any express limitation. Broad Home Rules of this type are known as “imperio” provisions for the colorful language Justice Brewer used in writing St. Louis.¹¹⁷ For example, the California state constitution provides that “[i]t shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs.”¹¹⁸ Similarly, Wisconsin has left its Home Rule language succinctly open-ended, with its state constitution allowing for “[c]ities and villages . . . [to] determine their local affairs and government.”¹¹⁹

Localities in states with Home Rule constructions granting broad, unlimited power to local government are free to exercise their own self-governance without interference from the state legislature unless local law conflicts with a matter of “statewide concern.”¹²⁰ Each jurisdiction has its own test for determining when a local law created under Home Rule conflicts with state law, but courts typically look to at least three factors: whether the law affects a matter of (1) “local concern,” (2) “statewide concern,” or (3) mixed matters of local and statewide concern.¹²¹ In City of Longmont v. Colorado Oil & Gas Ass’n,¹²² the Supreme Court of Colorado considered whether a local ban on fracking, enacted under the flag of Colorado Home Rule, was preempted by state law.¹²³ The court held that fracking is a statewide concern because of both the need for statewide uniformity in regulating the industry and fracking’s impact on areas outside local control.¹²⁴ The Longmont court also acknowledged that factors such as whether the matter at issue is explicitly addressed by the state’s constitution and the extent of traditional regulatory practices can also guide the preemption inquiry inherent to Home Rule.¹²⁵ Ultimately, each state’s Home Rule analysis is unique, but even where a Home Rule statute confers extremely broad authority to local government, local authority is not entirely unchecked.

2. Express preemption Home Rule constructions

As compared to imperio Home Rule provisions, many statutory constructions of Home Rule explicitly acknowledge that state law preempts Home Rule.¹²⁶ New York, for example, grants “every local government . . . [the] power to adopt and amend local laws not inconsistent with the . . . [state]constitution or any general law . . . .”¹²⁷ Alaska’s Home Rule construction is similar to New York’s, in granting that “[a] home rule borough or city may exercise all legislative powers not prohibited by law or by charter.”¹²⁸

When state law preempts local law created under Home Rule, the local law is typically invalidated. However, when there is no state legislation in conflict with the local law, the local law applies.¹²⁹ In the context of a Home Rule construction similar to New York or Alaska, including an explicit preemption provision, a local law can be preempted in one of three ways: (1) when the local law is expressly prohibited by state law, (2) when the local law is in direct conflict with state law, or (3) when state law occupies the field.¹³⁰ Performing a preemption analysis in this context, courts may determine that state law preempts local law if any of these three factors are met. In City of Baltimore v. Sitnick,¹³¹ for example, the Maryland Court of Appeals considered the validity of a Baltimore ordinance enacted pursuant to the state’s Home Rule construction allowing cities to craft their own laws consistent with state statute.¹³² The court in Sitnick looked to whether the ordinance was explicitly preempted by state law, ultimately holding that it was not.¹³³ The court also examined the degree of potential conflict between the ordinance and state law, determining that there was no conflict because “the ordinance s[ought] to accomplish precisely the same purpose as . . . the state law.”¹³⁴ The Sitnick court concluded its preemption analysis by examining previous iterations of the state minimum wage law, as well as other related laws that might have indicated the legislature’s intent to limit local authority in some way, deciding that there was no evidence of legislative intent to preempt the field of wage regulation.¹³⁵ Since all three prongs of the preemption analysis failed in Sitnick, the court concluded that the local ordinance was legitimate because it was not in conflict with state law.¹³⁶

3. Home Rule charters

In states that employ charters to define the scope of local government authority, charters themselves can serve to both limit and expand the authority of local government officials.¹³⁷ For example, the Michigan Home Rule construction requires certain provisions to be included in city charters, but it explicitly allows localities some discretion to include other provisions.¹³⁸ Michigan Home Rule is particularly interesting because it requires that all city charters provide a mechanism for local government to enter intergovernmental contracts to the extent allowable by law.¹³⁹ The California charter system, by comparison, is specifically established for the citizens of a county to adopt a charter whereby they can define their own laws.¹⁴⁰ Given the ability to enact laws through charters, localities are able to craft policy as narrowly or broadly as they see fit, as long as they account for any relevant preemption considerations. In other words, a charter can limit the power of local officials in the same way it can expand local authority, depending on how the charter itself is written. Furthermore, with varying degrees of discretion to define the terms of a charter can come varying content within charters themselves.¹⁴¹

E. Sheriffs and Local Contracting Authority

The function of the sheriff in the United States derives from the English feudal system, and the office can be traced as far back as the ninth century.¹⁴² The sheriff became a particularly prevalent figure in American law enforcement on the western frontier during the 1800s as an important law enforcement figure in remote areas of the contemporary United States, and Hollywood has reinforced the image of the sheriff as an icon of the old west.¹⁴³ The sheriff remains an important law enforcement officer in many jurisdictions in the United States today,¹⁴⁴

Thank you for standing up for this nation’s dream of personal freedom under the rule of law. Thank you for standing against those who would transform that dream into a nightmare of wrongdoing and lawlessness. And thank you for your service to your communities, to your country, and to the cause of law and justice.

Public Papers of the Presidents of the United States: Ronald Reagan 1984 884 (1986). The Virginia Supreme Court has acknowledged that “[t]he office of sheriff is a most important one . . . the advent of that functionary known as the sheriff . . . occurred when William the Conqueror found himself military master of Britain.” Narrows Grocery Co. v. Bailey, 170 S.E. 730, 732 (Va. 1933). and seventy-one sheriffs’ offices have entered 287(g) agreements with ICE, which constitutes the vast majority of 287(g) agreements nationwide.¹⁴⁵

1. The office of the sheriff

Sheriffs today are typically elected local government officials charged with some type of law enforcement function.¹⁴⁶ North Carolina sheriffs, for example, are officers empowered by the state constitution and elected by county constituents to serve four-year terms.¹⁴⁷ Similarly, a sheriff in Virginia has “duties . . . [which] shall be prescribed by general law or special act.”¹⁴⁸ The powers of the Texas sheriff are similar to those of the Virginia sheriff in that they are defined by the state constitution and “shall be prescribed by the Legislature.”¹⁴⁹ Colorado sheriffs are considered “peace officers” charged with enforcing all laws of the state,¹⁵⁰ while New Jersey sheriffs attend to security functions of the judiciary, serve court process, and investigate and apprehend criminals.¹⁵¹ Each state has its own specific mandate for the office of the sheriff, but there is substantial overlap in general duties and responsibilities across jurisdictions.

State legislatures often assign sheriffs specific duties and responsibilities through state law. For example, a sheriff might be tasked with managerial responsibilities allowing him to effectively supervise his deputies.¹⁵² Some states, such as North Carolina, Oklahoma, and Virginia, also empower sheriffs to oversee the local jail or county prisoners.¹⁵³ In some instances, sheriffs can be assigned narrow, miscellaneous duties that the state legislature deems particularly important or necessary to the sheriff’s role.¹⁵⁴ In Oklahoma, for instance, sheriffs are expressly granted authority to charge five dollars as a finger-printing fee,¹⁵⁵ and North Carolina provides sheriffs with the ability to establish a volunteer school resource officer program for school safety.¹⁵⁶ Ultimately, the specific responsibilities of the sheriff can differ from state to state, but the commonality across the country is that sheriffs are typically empowered with their authority through specific provisions of state legislation.

2. Contracting authority at the local level

States typically provide express authority for local government to enter contracts with outside entities, but that power is often vested in a local official other than the sheriff. County judges in Arkansas are delegated signing authority to enter contracts involving the allocation of local funds,¹⁵⁷ and the Texas Supreme Court has recognized the County Commissioners’ Court as the authorized signatory for external contracts at the local level.¹⁵⁸ Comparatively, the express authority to enter contracts on behalf of a Montana county is reserved for the “board of county commissioners or by agents and officers acting under their authority or authority of law.”¹⁵⁹ California authorizes the “legislative body” of local agencies to contract with other local government entities,¹⁶⁰ meaning “the board of supervisors . . . the city council or board of trustees . . . and the board of directors or other governing body . . . .”¹⁶¹ Similarly, authority to enter agreements with the federal government to furnish law enforcement services in Virginia is explicitly assigned to “localities,”¹⁶² and Virginia code is clear that localities “shall be construed to mean a county, city, or town as the context may require.”¹⁶³ Furthermore, the legal governing body of each Virginia locality is granted all powers endowed upon localities by Virginia code.¹⁶⁴ In the same way states ascribe specific powers to sheriffs, states typically authorize specific local officials to contract on behalf of their locality.

F. Federal Preemption

The issue of federal preemption of state law is a complex and prevalent topic in the immigration debate today,¹⁶⁵ and the issue is relevant to Dillon’s Rule because it could be argued that § 287(g) preempts the outcome of a Dillon analysis in this context. Furthermore, the issue of preemption is particularly tricky here because Dillon’s Rule deals with what the law does not say,¹⁶⁶ rather than an express provision of state law in conflict with federal law.¹⁶⁷

Under preemption principles, where state and federal law conflict, federal law governs.¹⁶⁸ However, where there is no conflict, state law applies.¹⁶⁹ In the immigration context, Arizona v. United States¹⁷⁰ serves as modern guidance for courts in deciding preemption issues. In 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070), making certain activity by undocumented immigrants a misdemeanor and expanding the legal authority of state law enforcement to detain suspected undocumented immigrants.¹⁷¹ The United States brought suit to enjoin Arizona from implementing SB 1070, arguing that the law was preempted by federal statute.¹⁷² Writing for the majority, Justice Kennedy explained federalism principles to fundamentally stipulate that states and the federal government are separate sovereigns with the potential to have competing legal interests.¹⁷³ Justice Kennedy laid out the following principle to determine the preemption issue in the case: “state laws are pre-empted when they conflict with federal law,” but the police powers of the states are presumed to be governing authority unless Congress clearly intended to supersede them.¹⁷⁴ The Court went on to hold that provisions of SB 1070 in conflict with federal law were unconstitutional while those provisions not in conflict with federal law could remain legitimate legal authority.¹⁷⁵

III. Application of Dillon’s Rule to Sheriffs’ Ability to Enter 287(g) Agreements

A. 287(g) Agreements are Contracts

287(g) agreements constitute contracts between federal and local governments because they include consideration and the terms are clearly defined.¹⁷⁶ In the case of a 287(g) MOA, the federal government agrees to provide training, cover certain costs of 287(g) program implementation, and delegate federal immigration enforcement authority to the LEA.¹⁷⁷ The LEA, by contrast, agrees to provide the human resources and facilities necessary to implement the agreement and entrust their officers to the supervision of the U.S. Attorney General.¹⁷⁸ In this regard, 287(g) agreements are similar to the MOA in Praesidium Medical in that they define the terms of collaboration, how each party will benefit, and what the coordinated effort will look like in practice.¹⁷⁹

B. The Extent of Sheriffs’ Authority to Enter 287(g) Agreements in a Dillon’s Rule State

Under Dillon’s Rule, a sheriff must have express or implied authority to enter a 287(g) agreement, or such authority must be essential to the locality in question. Sheriffs in different jurisdictions have different degrees of authority, and states tailor the mandate of their sheriffs in a way they feel best suits local needs. However, Dillon’s Rule precludes sheriffs from entering 287(g) agreements in most instances.

1. Express authority for a sheriff to enter a 287(g) agreement

Under certain strict Dillon’s Rule constructions, a sheriff’s authority might be limited by the absence of express authority (i.e. implied or essential authority would not be enough).¹⁸⁰ This strict application of a Dillon analysis would bar sheriffs from entering 287(g) agreements in states where they do not have any express authority to enter a contract with external law enforcement entities.¹⁸¹ For example, in Virginia, county governing bodies are endowed with the power to enter reciprocal agreements with the federal government, but there are no Virginia statutory provisions giving sheriffs any sort of explicit authority to contract with outside entities.¹⁸² Similarly, North Carolina does not provide sheriffs with any express statutory authority to enter agreements with the federal government.¹⁸³ The Texas Supreme Court has even held that “a sheriff has no authority to make contracts that are binding on the county, except where he is specially so authorized to do by statute.”¹⁸⁴ Several opinions issued by various Texas Attorneys General also assert that Texas sheriffs cannot enter reciprocal agreements with federal agencies, including agreements to house inmates (though none of these opinions directly address § 287(g)).¹⁸⁵ Accordingly, in states recognizing this strict interpretation of Dillon’s Rule, where sheriffs do not have express authority to contract with the federal government, they may not be authorized to enter 287(g) agreements.

2. Implied authority for a sheriff to enter a 287(g) agreement

In a jurisdiction where a court would look beyond the first Dillon factor, sheriffs may have implied authority to enter 287(g) agreements, even in the absence of express authority to do so.¹⁸⁶ For example, Virginia code allows a locality to enter a reciprocal agreement with the federal government.¹⁸⁷ It could be argued that a sheriff, as a ranking law enforcement officer of a Virginia locality, has implied authority deriving from this state statutory provision to enter a 287(g) agreement on behalf of his locality. However, Virginia code specifies that the governing body of a locality has all statutory powers conferred to localities,¹⁸⁸ meaning that the board of supervisors or city council is authorized to enter 287(g) agreements, not the sheriff.¹⁸⁹ Furthermore, Virginia precedent is clear that the sheriff is considered a separate legal entity from the locality he represents.¹⁹⁰

Comparatively, in North Carolina, sheriffs have statutory power to receive and house prisoners delivered to county jails under the authority of the federal government.¹⁹¹ It could be argued that, by applying Perretta, this state law implies that sheriffs have authority to enter a 287(g) agreement because participation in the 287(g) program is a necessary means of performing this statutory responsibility. However, Perretta is distinguished from this scenario. The court in Perretta held that a mayor’s ability to dismiss employees is implied from the mayor’s function as chief executive of the city because the express responsibility to manage the city’s finances implies authority to dismiss employees.¹⁹² Human resources have a direct financial value, and the inability to manage them would make financial management impossible. But in North Carolina, the local governing body is charged with entering and ratifying contracts on behalf of the municipality.¹⁹³ The local governing body could still enter and ratify a 287(g) agreement on behalf of the sheriff and locality, and the sheriff would retain the powers necessary to detain federal prisoners under both § 287(g) and North Carolina code. Furthermore, the Perretta court considered the mayor’s power as chief executive to be quite broad,¹⁹⁴ which stands in contrast to sheriffs’ explicitly narrow mandate in many jurisdictions, including North Carolina.¹⁹⁵ State legislatures assign certain local officials with express authority to contract on behalf of their locality for a reason, and sheriffs should not have implied authority deriving from the express authority of a different local official where sheriffs have their own specific statutory mandate. Thus, in states where a sheriff’s scope of authority is similar to Virginia or North Carolina, a sheriff’s ability to enter a 287(g) agreement cannot reasonably be implied from existing express statutory authority.

3. Essential authority for a sheriff to enter a 287(g) agreement

The final Dillon factor a court might consider in determining the extent of a sheriff’s authority to enter a 287(g) agreement concerns whether such power is essential to the locality the sheriff represents.¹⁹⁶ Entering a 287(g) agreement could be considered essential to effectively administer the office of the sheriff, similar to how the mayor’s authority to dismiss employees was deemed essential in Ennis.¹⁹⁷ However, this argument is merely a weaker version of the contention that a sheriff’s ability to enter a 287(g) agreement is an implied power.¹⁹⁸ As discussed above, there are typically other local officials empowered to contract with outside entities who could do so within the legal framework of state legislation, and many sheriffs throughout the country manage to perform their duties adequately without the added benefit of a 287(g) agreement. It might be “convenient” for a sheriff to have a 287(g) agreement in place where it furthers local policy interests, but to say it is “essential” goes too far.¹⁹⁹ Moreover, the local oversight mechanism provided in states where a specific county representative is empowered to contract on behalf of his locality should be considered integral to maintaining the balance of power between state and local governments. If sheriffs were meant to have such authority, state legislatures would provide it. To simply disregard this important accountability function would be a slight against a fundamental check on government authority at the municipal level.

By comparison, an argument applying Willson would have to adopt the position that it is essential for a sheriff to be able to enter a 287(g) agreement to protect a locality’s citizens.²⁰⁰ The logic would have to be similar to that of a public official diverting stream water to prevent emergency flooding, which is the issue the court considered in Willson.²⁰¹ Proponents of strict immigration policy would likely make an argument comparing an uncontrolled river to the danger supposedly created by undocumented immigration. While this position makes for a powerful metaphor, the argument is easily countered. Empirical data suggests that undocumented immigrants are actually less likely to commit crimes in the United States than native-born Americans.²⁰² One report even goes as far as to suggest that there could be a correlation between the increased immigration rate in recent years and a drop in crime.²⁰³

While there are policy arguments to be made on both sides of the political spectrum, one thing is clear: a loose application of the third Dillon factor should not be allowed to run afoul of the U.S. system of federalism. In particular, state officials should not be able to circumvent well-established legal principles to further their own political or personal interests. By its very nature, Dillon’s Rule exists to prevent exactly that from happening. Allowing sheriffs to continue to unilaterally enter 287(g) agreements sets precedent that could allow ICE and local law enforcement to establish local bastions of federal authority irrespective of state governments’ intent simply because they believe it to be good public policy. The same thing could conceivably happen with any issue creating tension between state and federal law.²⁰⁴ Because sheriffs are elected officials, and the Attorney General is a political appointee, incentives exist for sheriffs to partner with the federal government to enforce policy impacting any popular political issue, be it immigration, gun control, marijuana enforcement, or other similarly divisive policy matters.²⁰⁵ However, the federal government cannot be allowed to enlist the assistance of local law enforcement where it would infringe on states’ sovereignty.²⁰⁶ Accordingly, any judicial decision turning on the third Dillon factor should not include an outcome conflicting with the dual sovereignty of states and the federal government because such a holding would have unconstitutional implications. This argument is reinforced in the context of 287(g) agreements by the express anti-preemption provision in § 287(g),²⁰⁷ indicating Congress’ intent to defer to state law. Furthermore, the third Dillon factor should be applied narrowly,²⁰⁸ especially when its implications could adversely affect the constitutional rights of either states or individuals.²⁰⁹

C. Reconciling Dillon’s Rule and Home Rule

While it is likely Dillon’s Rule would limit a sheriff’s authority to enter a 287(g) agreement, it is possible that a local law enacted under a Home Rule statute might offset Dillon’s Rule and serve to empower sheriffs to enter 287(g) agreements.²¹⁰ For example, a local law or charter in a Home Rule state might explicitly authorize a sheriff to enter an intergovernmental agreement with ICE. After all, Michigan charters are expressly required under the Michigan Home Rule to provide a mechanism for intergovernmental contracts,²¹¹ so it is feasible that a Michigan locality’s charter could authorize a sheriff to fulfill that function. However, any charter or local law enacted under Home Rule providing such authority would still have to withstand a preemption analysis because there would be no limitation on the outcome of a Dillon analysis if Home Rule is preempted.²¹² Where a local law or charter is preempted by state law, it is invalidated,²¹³ and Dillon’s Rule would thus serve to limit a sheriff’s authority in states recognizing the doctrine.

1. Intrastate preemption analysis: Imperio Home Rule constructions

In an imperio Home Rule state,²¹⁴it is likely a sheriff’s authority would be considered an issue of “statewide concern”²¹⁵ because sheriffs oftentimes derive their powers explicitly from the state legislature.²¹⁶ As the Longmont court acknowledged, mentioning an issue explicitly in a state constitution indicates an area of “statewide concern.”²¹⁷ The same goes for an issue within a category of traditional regulatory practice.²¹⁸ Sheriffs are frequently endowed with their authority from state constitutions, and defining the scope of law enforcement authority falls within a traditional state-level regulatory practice,²¹⁹ indicating that a Home Rule provision empowering a sheriff with authority to enter a 287(g) agreement would thus conflict with an area of “statewide concern.”²²⁰ Furthermore, due process considerations dictate that there is a clear need for statewide uniformity in law enforcement, especially when constitutional rights are at risk, which is likely the reason sheriffs are so often empowered through state code or constitution and not local laws or charters. Accordingly, a local law or charter granting a sheriff with additional powers under an imperio Home Rule construction would be preempted in this scenario.

2. Intrastate preemption analysis: Express preemption Home Rule constructions

In states where the Home Rule statute includes an explicit preemption provision, it is even more likely that state law would preempt a local charter granting sheriffs with authority to enter 287(g) agreements. Including an express preemption provision as part of a Home Rule statute makes clear the legislature’s intent to retain supremacy over local laws. In states where the sheriff’s mandate is expressly established by the state legislature alone,²²¹ a charter granting a sheriff additional authority could be construed as expressly prohibited by state law using the Maryland Court of Appeals’ preemption test set forth in Sitnick.²²² It is unlikely a given state’s code would include a provision explicitly stating that, for example, “local government shall not dictate the sheriff’s responsibilities.” However, reserving the exclusive power for the legislature to define a sheriff’s scope of authority arguably serves the same purpose.

Even if a sheriff’s statutory mandate was not considered to be expressly prohibited by state law in this manner, it is likely a charter empowering a sheriff to enter a 287(g) agreement would still conflict with state law under the Sitnick test.²²³ If a state legislature lays out specific duties and responsibilities for the sheriff through state code, a local law or charter empowering a sheriff to do something more than he is already authorized to do would expand the scope of the sheriff’s authority beyond that which the legislature intended. A local law or charter of this kind would thus not seek to achieve the same end as state legislation, which runs contrary to the outcome of the Sitnick preemption analysis.²²⁴

In the unlikely event that both of the first Sitnick factors were to fail a preemption test in this context, a court might still determine that there is legislative intent to preempt the field of regulating law enforcement.²²⁵ As with all Sitnick factors, this might vary from state to state depending on the sheriff’s statutory or constitutional mandate, but it stands to reason that empowering a sheriff through state legislation implies state legislatures’ intent to regulate the duties and responsibilities of the sheriff’s office. If state legislatures were unconcerned with regulating sheriffs’ authority, they could more explicitly delegate local governments with the ability to define the scope of a sheriff’s authority in localities where Home Rule applies.

Regardless of the merits of a Home Rule preemption analysis, it seems unlikely many Home Rule charters or local laws nationwide empower sheriffs to enter 287(g) agreements. It is so common for an official other than the sheriff to have statutory authority to enter contracts with external entities that it would be unnecessary for a local law or charter to address the issue to begin with.²²⁶ Additionally, Home Rule acts as a check on local power insofar as it empowers local citizens to define the scope of local officials’ authority.²²⁷ In the same way a local law or charter might explicitly empower a sheriff to enter a 287(g) agreement, it is equally possible for it to prohibit the exercise of such authority.

D. Sheriffs’ Agency to Enter 287(g) Agreements

To make a 287(g) agreement binding, a sheriff unilaterally entering into a 287(g) agreement would need actual or apparent authority to contract on behalf of the locality he represents.²²⁸ When it comes to actual authority, a sheriff may only enter a 287(g) agreement if such authority is granted to him by state legislation. Like the insurance salesman in Merrill or the government employee in Richmond, sheriffs cannot bind the local governmental entities they represent by entering a contract where they are not expressly authorized to do so.²²⁹ Moreover, in the same way the government employee in Richmond mistakenly gave faulty information,²³⁰ a sheriff mistakenly believing he has authority to enter a 287(g) agreement still does not justify overstepping the framework of his authority. In that regard, the application of agency principles through the lens of Dillon’s Rule indicates sheriffs do not have express authority to enter agreements with the federal government in most instances.²³¹

Similarly, county sheriffs would only have apparent authority if the principal (i.e., the locality they represent) overtly manifested to ICE (as the third party) the will or intention for sheriffs to have authority to contract with the federal government.²³² Because the vast majority of 287(g) agreements are signed solely by sheriffs,²³³ a court applying agency principles would have to consider evidence to suggest the locality in question had made a manifestation towards ICE that might cause ICE to actually and reasonably believe that sheriffs have authority to enter contracts. While it is possible localities might make such manifestations towards ICE, agency principles would need to be applied on a case-by-case basis, and it seems that ICE relies on § 287(g) itself as the legal justification granting sheriffs authority to enter MOAs.²³⁴ Additionally, § 287(g) is a representation of Congress’ intention, not the intention of the localities that sheriffs represent. An apparent authority argument thus does not work in this scenario. Furthermore, the Supreme Court has been clear in narrowly construing the agency of government officials, meaning that an apparent authority argument is likely irrelevant anyways.²³⁵ Ultimately, when sheriffs unilaterally enter 287(g) agreements that they are not authorized to enter, one of the parties to the agreement (i.e. the sheriff) does not have agency to bind the entity they represent, disabling the contractual instrument that a 287(g) MOA provides.²³⁶

E. Sheriffs’ Lack of Legal Privilege to Detain Individuals Under Invalid 287(g) Agreements

Individuals detained under invalid 287(g) agreements deserve constitutional protections. Ochoa, Lunn, and Santos are clear in requiring written 287(g) agreements to be in place in order for local law enforcement to have authority to enforce federal immigration policy.²³⁷ Thus, an application of these cases precludes sheriffs from detaining individuals for federal immigration violations if there is no legitimate 287(g) agreement granting them that authority.²³⁸ Accordingly, where local law enforcement detains suspected undocumented immigrants under federal immigration policy through an invalid 287(g) agreement, it is in violation of at least the Fourth and Fifth Amendments and possibly other laws.²³⁹

F. Federal Preemption in the Context of § 287(g) and Dillon’s Rule

Section 287(g) does not preempt Dillon’s Rule and grant sheriffs the authority to enter 287(g) agreements because the plain language of § 287(g) includes an express anti-preemption provision. Specifically, § 287(g) requires that 287(g) MOAs be executed “to the extent consistent with State and local law.”²⁴⁰ Dillon’s Rule is a doctrine dictated and recognized on a state-by-state basis.²⁴¹ Thus, because Dillon’s Rule is state law, § 287(g) explicitly requires 287(g) MOAs to comply with limitations posed by Dillon’s Rule.²⁴²

Even notwithstanding this explicit provision in § 287(g), the statute does not preempt the outcome of a Dillon analysis. Section 287(g) does not address the contracting authority of the local official who enters the 287(g) agreement; all it says is that the U.S. Attorney General may delegate federal immigration responsibilities to an official he determines to be qualified.²⁴³ The statute does not specify who may sign a 287(g) MOA on behalf of the LEA,²⁴⁴ meaning states have the authority to make their own rules regarding 287(g) MOA signing authority because to do so would not conflict with § 287(g).²⁴⁵ The local government signatory does not necessarily impact who the Attorney General delegates authority to. Accordingly, § 287(g) would apply if an official who is authorized to enter a contract with the federal government, such as the county governing body or county judge, were to sign a 287(g) MOA.²⁴⁶ The statute does not conflict with the idea that the appropriate county signatory could enter the agreement on behalf of his locality, and the Attorney General would still have discretion to delegate authority to implement the agreement to whichever local official he deems appropriate. However, authorized local signatories would be wise to think twice before binding their municipality to participate in a controversial program with major flaws identified by the Department of Homeland Security itself.²⁴⁷ Furthermore, in many cases, sheriffs unilaterally enter these agreements,²⁴⁸ which is an abuse of their power as sheriffs where they are not authorized to enter contracts on behalf of their localities. Because § 287(g) does not address the question of signing authority of the LEA representative entering a MOA, but Dillon’s Rule limits who can sign agreements with the federal government, the rules do not conflict, and Dillon’s Rule applies.

Conclusion

The sheriff, as a local government official, is limited by Dillon’s Rule to the powers granted to him by state law. Where a sheriff is not authorized by state law to enter a 287(g) agreement with ICE, Dillon’s Rule precludes him from having agency to do so. Accordingly, 287(g) agreements entered unilaterally by sheriffs are likely not enforceable in most cases. In this scenario, the formal, written MOA required by § 287(g) for local law enforcement to carry out federal immigration policy cannot legally empower sheriffs to detain suspected undocumented immigrants absent some other legal authority. Thus, the individuals detained under the seventy-one 287(g) agreements across the country signed solely by sheriffs may well deserve Fourth and Fifth Amendment protections, as well as other constitutional protections that are being withheld through their detention.

Dillon’s Rule does not preclude all 287(g) agreements, especially those that exist in states where the doctrine does not apply. Furthermore, a Dillon analysis can differ significantly from state-to-state, and there is always the unlikely possibility that Home Rule might serve to offset Dillon’s Rule. But the local government oversight function that Dillon’s Rule protects must be respected in the jurisdictions that recognize the doctrine, and sheriffs should not be allowed to overstep the legal authority vested in them by the states they serve, especially when constitutional rights are on the line.

Dillon's Rule: A Check on Sheriffs' Authority to Enter 287(g) Agreements

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