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.


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 Rule1See infra Section II.C. 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),2Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101–1537 (2012)).  This Comment will refer to the statutory provision enabling these agreements as “§ 287(g),” and will refer to the agreements themselves as “287(g) agreements” or “287(g) MOAs.” 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).3See 8 U.S.C. § 1357(g) (codifying § 287(g) of the INA).  For more detail on § 287(g) and § 287(g) MOAs, see infra Section II.B.1.  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.4See infra Part I.  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.5See infra Part II.  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.6See infra Part III.

 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.”7Letter from George Washington to Francis Adrian Van der Kemp, 28 May 1788, Founders Online, https://founders.archives.gov/documents/Washington/04-06-02-0266 (last visited Feb. 5, 2019).  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.8See Becky Little, The Birth of ‘Illegal’ Immigration, History.com (Sep. 7, 2017), https://www.history.com/news/the-birth-of-illegal-immigration (noting the anti-immigrant rhetoric of the mid-19th century and describing immigration waves from countries such as Ireland, China, Italy, and Mexico).  The 1990s, for example, saw a particularly acute spike in immigration rates,9See Jeffrey S. Passel & Roberto Suro, Rise, Peak and Decline:  Trends in U.S. Immigration 1992–2004, Pew Res. Ctr.:  Pew Hispanic Ctr. (2005), https://www.pewr esearch.org/wp-content/uploads/sites/5/reports/53.pdf (providing statistical trends in immigration to the United States). compelling Congress to amend § 287 of the INA in an attempt to strengthen immigration enforcement by expanding ICE’s powers.10See Pub. L. No. 104-208, § 133, 110 Stat. 3009, 3009-563 (codified at 8 U.S.C. § 1357(g) (2012)) (adding subsection (g) to § 287 of the INA).  For the sake of simplicity, this Comment will use “§ 287” when referencing the text of this statute.

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.118 U.S.C. § 1357(g).  Section 287(g) includes ten subsections.  Subsection 2, for example, requires participating local law enforcement officers to comply with federal law.  See § 1357(g)(2).  Subsection 3 places participating local law enforcement officers under the U.S. Attorney General’s supervision.  See § 1357(g)(3). Subsection 5 stipulates that the specific powers of “each officer or employee of a state or political subdivision who is authorized to perform a function . . . ,” under § 287(g) must be laid out in a written MOA.  § 1357(g)(5).  Subsection 9 clarifies that local entities cannot be required to enter a 287(g) agreement. See § 1357(g)(9).  Finally, subsection 10 acknowledges that a written agreement is not required for local law enforcement to communicate or cooperate with federal immigration authorities. See § 1357(g)(10).

Despite this expansion of § 287, immigration rates continued to rise at a record-setting pace into the 2000s, hitting unprecedented highs in 2014.12See, e.g., Steven A. Camarota, A Record-Setting Decade of Immigration: 2000–2010, Ctr. Immigr. Stud. (Oct. 5, 2011), https://cis.org/Report/RecordSetting-Decade-Immigration-20002010 (summarizing data from the Census Bureau showing that almost 14 million immigrants entered the U.S. between 2000 and 2010); Marc R. Rosenblum, Unaccompanied Child Migration to the United States the Tension Between Protection and Prevention 1–2 (2015), https://www.migrationpolicy.org/ sites/default/files/publications/TCM-Protection-UAC.pdf (describing the surge of Central American women and children entering the United States in 2014).  The sudden spike in 2014 is widely attributed to instability in Guatemala, Honduras, and El Salvador, known collectively as the “northern triangle.” See Steven A. Camarota, New Data: Immigration Surged in 2014 and 2015, Ctr. Immigr. Stud. (Jun. 1, 2016), https://cis.org/Report/New-Data-Immigration-Surged-2014-and-2015 (noting a 39 percent increase in immigration rates between 2014 and 2015 from the previous two years, primarily from Central Americans).  Rampant violence and poverty in those countries, coupled with the desire to reunite with family members, spurred the immigration increase of recent years, and these root causes continue to motivate Central Americans to risk the journey to the United States.  Rosenblum, supra note 12, at 10–15.  To accommodate this immigration influx, the U.S. immigration system has evolved to include an array of enforcement mechanisms policing the border.13See Rosenblum, supra note 12, at 6–11 (outlining the immigration enforcement process from intake to removal for undocumented migrants arriving in the U.S.).  See generally U.S. Customs & Border Protection, 2012–2016 Border Patrol Strategic Plan (2014), https://www.cbp.gov/sites/default/files/documents/bp_strategic_plan.pdf (describing the goals, objections, strategies, programs, and initiatives the Border Patrol has developed and adopted to protect the border).  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.14See Rachel Frazin, ICE Lets Sheriffs Arrest Immigrants, then Pays to Keep them Locked up, Daily Beast (Sep. 6, 2018, 4:54 AM), https://www.thedailybeast.com/ice-lets-sheriffs-arrest-immigrants-then-pays-to-keep-them-locked-up (describing an intergovernmental service agreement between ICE and the Tulsa, Oklahoma, sheriff’s department).  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.15See generally Kristina M. Campbell, Imagining a More Humane Immigration Policy in the Age of Obama:  The Use of Plenary Power to Halt the State Balkanization of Immigration Regulation, 29 St. Louis. U. Pub. L. Rev. 415, 417–34 (2010) (examining a series of state and local laws attempting to regulate undocumented immigrants, ranging from housing and employment regulations to full out bans prohibiting undocumented immigrants from living or working in certain cities).  The extent of state authority to enforce immigration policy at the local level is not an entirely settled question, other than to say that state law cannot conflict with federal immigration policy.  Id. at 434; see also infra Sections II.F, III.F (providing a discussion of preemption in the context of § 287(g)).

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.16Carrie L. Arnold, Note, Racial Profiling in Immigration Enforcement:  State and Local Agreements to Enforce Federal Immigration Law, 49 Ariz. L. Rev. 113, 124–25 (2007). 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.17Kanyakrit Vongkiatkajorn, How the Trump Administration Is Using Local Cops to Widen Its Immigration Dragnet, Mother Jones (Dec. 4, 2017, 6:00 AM), https://www.motherjones.com/politics/2017/12/how-the-trump-administration-is-using-local-cops-to-widen-its-immigration-dragnet (outlining statistical trends associated with the 287(g) program between 2006 and 2016 such as number of arrests and allocation of funding).  By 2016, the number of 287(g) agreements nationwide had been reduced from seventy in 2010 to just thirty-two.18Id.  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.19See Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigr. & Customs Enforcement, https://www.ice.gov/287g (last updated Aug. 10, 2018) [hereinafter ICE Section 287(g)] (providing a list of all 287(g) agreements nationwide); Mica Rosenberg & Reade Levinson, Police in Trump-Supporting Towns Aid Immigration Officials in Crackdown, Reuters (Nov. 27, 2017, 6:16 AM), https://www.reuters.com/article/us-trump-effect-immigration-police/police-in-trump-supporting-towns-aid-immigration-officials-in-crackdown-idUSKBN1DR169 (describing how the number of jurisdictions participating in the 287(g) program doubled within the first ten months of the Trump Administration); see also Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017) (instructing the Secretary of Homeland Security to “immediately take appropriate action to engage with Governors of the States, as well as local officials,” to enter into 287(g) agreements).

Reactions to § 287(g) have been mixed, and courts have recently had to consider a range of cases related to the 287(g) program.20See infra Section II.B.2 (discussing several cases considering the extent of state-level law enforcement authority to carry out federal immigration policy, including Santos v. Frederick Cty Bd. Of Comm’rs, 725 F.3d 451 (4th Cir. 2013), and Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D. Wash 2017)).  The law has drawn criticism from immigration rights advocates,21See, e.g., Letter to Secretary Napolitano and Director Morton:  End the 287(g) Immigration Enforcement Program (Dec. 11, 2012), https://www.aclu.org/other/letter-secretary-napolitano-and-director-morton-end-287g-immigration-enforcement-program (signed by 162 non-governmental organizations opposing the 287(g) program).  Section 287(g) has drawn criticism for enabling racial profiling in particular, as well as for legalizing arguably unconstitutional policing practices.  See Jennifer M. Chacón, A Diversion of Attention?  Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1616–17 (2010); see also Arnold, supra note 16, at 139–42 (2007) (concluding that the training provided by ICE for LEAs under the 287(g) program does not sufficiently mitigate racial profiling). while at the same time it has been lauded by those in favor of strict immigration enforcement.22See, e.g., Examining 287(g):  The Role of State and Local Law Enforcement in Immigration Law:  Hearing Before the H. Comm. on Homeland Security, 111th Cong. 5–6 (2009) (statement of Rep. Smith) (“Those who are serious about public safety should not only support the [287(g)] program, but also call for its expansion.”); U.S. Sen. Jeff Sessions & Cynthia Hayden, The Growing Role for State & Local Law Enforcement in the Realm of Immigration Law, 16 Stan. L. & Pol’y Rev. 323, 346 (2005) (illustrating then Senator Sessions’s support for the 287(g) program); see also Emily Wood, Sheriff Jones:  ‘If You Commit Crime . . . You Should be Deported,’ WLWT5 News (Feb. 7, 2017, 11:38 PM), https://www.wlwt.com/article/sheriff-jones-if-you-commit-crimeyou-should-be-deport ed/8690722 (providing the perspective of a local sheriff supporting the 287(g) program for the autonomy it gives localities to enforce laws they feel are important).  Other provisions of § 287 are also controversial.  For example, § 287(d) has been criticized for enabling the federal government to issue immigration detainers.  Christopher N. Lasch, Federal Immigration Detainers After Arizona v. United States, 46 Loy. L.A. L. Rev. 629, 690–94 (2013) (discussing some of the legal obstacles posed by § 287(d)).  Section 287(g)(10) has also generated controversy as a nebulous component of the statute arguably allowing local law enforcement to circumvent subsection (1), which requires a written MOA.  Compare City of El Cenizo v. Texas, 264 F. Supp. 3d 744, 771–75 (W.D. Tex. 2017) (rejecting Texas’s argument that § 287(g)(10) provided a way for LEAs to routinely enforce immigration law without a written MOA), with City of El Cenizo v. Texas, 890 F.3d 164, 177 (5th Cir. 2018) (finding that § 287(g)(10) “expressly allows cooperation in immigration enforcement outside” written MOAs).  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.23See Sandra M. Stevenson, Antieau on Local Government Law§ 21.01 (Matthew Bender & Co. ed, 2d ed. 2009) (explaining how Dillon’s Rule limits local government authority); Diane Lang, Dillon’s Rule . . . and the Birth of Home Rule, N.M. Mun. League (Dec. 1991), https://nmml.org/wp-content/uploads/dillon.pdf (summarizing the historical circumstances that preceded Dillion’s Rule).  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.24Stevenson, supra note 23, § 21.01.

Dillon’s Rule was first established by the Iowa Supreme Court in Clinton v. Cedar Rapids & Missouri River Railroad Co.,2524 Iowa 455 (1868). a decision which limited local government authority and addressed systemic problems facing the contemporary American municipal system.26See A.E.S., Note, Dillon’s Rule:  The Case for Reform, 68 Va. L. Rev. 693, 694 (1982) (according to Justice Dillon, the authority vested in local government “ought to be more carefully defined and limited, and should embrace such objects only as are necessary for the health, welfare, safety, and convenience of the inhabitants” (quoting J. Dillon, Commentaries on the Law of Municipal Corporations§ 237 (5th ed. 1911))).  By the 1800s, widespread corruption had taken over much of the American municipal system, and American cities had become a “conspicuous failure of the United States.” Jon D. Russell & Aaron Bostrom, Federalism, Dillon Rule and Home Rule 4 (2016), https://www.alec.org/app/uploads/2016/01/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf (quoting a British Lord’s critique of the American municipal system).  Justice Dillon himself was a known critic of the American municipal system, with one commentator noting that Justice Dillon embodied a common view of local government during the 19th century through his skepticism of the ability of localities to effectively govern themselves.  Id.  In Clinton, the Iowa Supreme Court ruled that the power of local government is derived entirely from the state legislature.27Id. at 475.  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.”28Id.  A municipal corporation is a “city, town, or other local political entity formed by charter from the state and having the autonomous authority to administer the state’s local affair . . . [a]lso termed municipality.”  Municipal Corporation, Black’s Law Dictionary (10th ed. 2014).

Since Clinton, Dillon’s Rule has been approved by the United States Supreme Court in multiple decisions.  In Merrill v. Town of Monticello,29138 U.S. 673 (1891). 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.30Id. at 686–88, 691–93.  The Court in Town of Monticello even went as far as to quote directly from Justice Dillon’s treatise on municipal corporations, explicitly ingraining Dillon’s Rule in Supreme Court precedent.  See id. at 681.  About fifteen years later, the Court further reinforced Dillon’s Rule in Hunter v. City of Pittsburgh,31207 U.S. 161 (1907). 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.”32Id. at 178–79.  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.33See Russell & Bostrom, supra note 26, at 8 (stating that “[t]hirty-one states apply the Dillon Rule or a combination of Dillon’s Rule and Home Rule to local jurisdictions”).  Dillon’s Rule has been invoked in recent years in the context of issues creating tension between local and state government such as the removal of confederate monuments, fracking, and marijuana regulation. See April McCullum, Vermont Towns Have Limited Options to Regulate Marijuana, for Now, Burlington Free Press (Jul. 11, 2018, 8:06 AM), https://www.burlingtonfreepress.com/story/news/politics/government/2018/07/11/vermont-marijuana-towns-and-cities-have-limited-options/761412002(stating that “Vermont towns have no authority [to regulate marijuana] that is not explicitly granted by the Legislature”); Daniel C. Vock, The End of Local Laws?  War on Cities Intensifies in Texas, GOVERNING (Apr. 5, 2017), https://www.governing.com/topics/politics/gov-texas-abbott-preemption.html (describing a proposal by Texas Governor Greg Abbott to strip 352 Home Rule cities in Texas of their ability to enact regulations that do not conflict with state law and treat them as general-rule cities, permitting local regulations in areas specifically permitted by the state); Rich Schragger, Is Charlottesville’s Robert E. Lee Statue Illegal?, Richmond Times-Dispatch (Aug. 30, 2017), https://www.richmond.com/opinion/their-opinion/guest-columnists/rich-schragger-column-is-charlottesville-s-robert-e-lee-statue/article_888d6495-6176-5cea-9278-71018d293f2a.html (reporting on the authority of Charlottesville to remove a statue of confederate general, Robert E. Lee, under Virginia law, which still adheres to the Dillon’s Rule).

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.34A.E.S, supra note 26, at 702 (arguing that Dillon’s Rule, in its current form, “fails to bring local government under state control, but succeeds in hampering its effective administration”); Peter F. Nascenzi, Note, FTC v. Phoebe Putney and Municipalities as Nongovernments, 110 Nw. U. L. Rev. 363, 383–84 (2016).  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.35See David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255, 2294 (2003) (“[T]he home rule movement overcame the shackles that Dillon’s Rule placed on local government initiative.”).  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.36Stevenson, supra note 23, § 21.01.  In the late nineteenth century, the early Home Rule supporters coined the term “home rule” to convey a sentiment of local autonomy.  See Barron, supra note 35, at 2279–80.  Compared to the critics of the American municipal system who supported the creation of Dillon’s Rule, the early Home Rule proponents believed in the independence of strong local government.  See id. at 2292–94.  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.”37Mo. Const.art. IX, § 16 (1875); see also Russell & Bostrom, supra note 26, at 6 (noting that most states apply Home Rule only to certain municipalities, often based on population size).  In the Home Rule context, a charter is a document formalizing the establishment of a local political body and defining the way a locality will govern itself.  Charter, Black’s Law Dictionary (10th ed. 2014).  The United States Supreme Court affirmed the legitimacy of Home Rule in City of St. Louis v. Western Union Telephone Co.,38148 U.S. 92 (1983). interpreting the original Home Rule law to allow the city of St. Louis authority to regulate its own streets.39Id. at 103–04.  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.40See City of St. Louis v. Western Union Tel. Co., 149 U.S. 465, 467–68 (1893) (“As the legislative power of a state is vested in the legislature, generally that body has the supreme control, and it delegates to municipal corporations such measure thereof as it deems best.”).  By enabling certain localities to craft a charter defining the scope of their own authority,41A charter is not the only method states use to implement Home Rule.  For more on charters, see infra Section II.D.3.  Some states have Home Rule constructions allowing localities to simply make their own laws without requiring the adoption of a charter.  Id. the original Home Rule statute strengthened the autonomy of city governments in Missouri, setting an example for other states to follow.42See infra Section II.D (discussing Home Rule constructions in a range of states).

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.43See Barron, supra note 35, at 2259–61 (discussing how Home Rule allows local government with greater independence).  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.44Stevenson, supra note 23, § 21.01.  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.45Id.  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.”46Id.  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.47For a discussion of how Dillon’s Rule and Home Rule conflict in the context of § 287(g), see infra Sections III.B, III.C.  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.48Stevenson, supra note 23, § 21.01.

 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,499 U.S. (5 Cranch) 142 (1809). 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.50Id. at 149–51, 154.  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.,51555 S.W.3d 697 (Tex. App. 2018). two parties entered a MOA to combine resources for the creation of a joint business venture.52Id. at 701–02.  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.53Id. at 702–03, 708–09.  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.54Id. at 711.  The holding in Praesidium Medical is consistent with other court decisions insofar as it applies contract law to MOAs.  See, e.g., Kim v. Baik, No. 2014-SCC-0014-CIV, 2016 WL 3034068, at *5 (N. Mar. I. May 27, 2016) (determining a MOA to be a “final written contract” constituting a binding lease for property); Strategic Staff Mgmt., Inc. v. Roseland, 619 N.W.2d 230, 234 (Neb. 2000) (finding a MOA to settle a case “subject to the general principles of contract law” (citing Woodmen of the World Life Ins. Soc’y v. Kight, 522 N.W.2d 155 (Neb. 1994)); Canal Ins. Co. v. Liberty Mut. Ins., 395 F. Supp. 962, 974 (N.D. Ga. 1975) (concluding that a MOA constituted a binding service contract between two parties).

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.55Restatement (Third) of Agency, § 1.01 (Am. L. Inst. 2006) (defining “agency” as the “fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act”).  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.56See Alan I. Saltman, The Government’s Liability for Actions of its Agents that are Not Specifically Authorized:  The Continuing Influence of Merrilland Richmond, 32 Pub. Cont. L.J. 775, 778 (2003) (noting that contractual conflicts arise when an unauthorized agent enters a contract on behalf of its principal); Yedia Z. Stern, Corporate Liability for Unauthorized Contracts—Unification of the Rules of Corporate Representation, 9 U. Penn. J. Int’l Bus. L. 649, 650 (1987) (acknowledging that when the representative of an organization exceeds his authority in entering a contract, an “unauthorized contract . . . results”).

The Third Restatement of Agency recognizes two primary types of authority:  “actual authority” and “apparent authority.”57Restatement (Third) of Agency §§ 2.01, 2.03.  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§§ 2.01­–2.02.  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.59See Kirkpatrick v. Boston Mut. Life Ins. Co., 473 N.E.2d 173, 176–77 (Mass. 1985); A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W. 2d 285 (Minn. 1981); see also Chad P. Wade, Note, The Double Doctrine Agent:  Streamlining the Restatement (Third) of Agency by Eliminating the Apparent Agency Doctrine, 42 Val. U. L. Rev. 341, 352–55 (2007) (reviewing actual authority as laid out by the Restatement (Third) of Agency).  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.60Restatement (Third) of Agency § 2.03.  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.61See Wade, supra note 59, at 355–58.

2.  Agency law applied to government entities

Agency law is applicable to government entities, as it is to private corporations.62See Saltman, supra note 56, at 776–77 (highlighting that agency theory applies to government agencies).  In Federal Crop Insurance Corp. v. Merrill,63332 U.S. 380 (1947). 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.64Id. at 384.  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.65Id. at 381–82.  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.66Id. at 384–86.

Later, in Office of Personnel Management v. Richmond,67496 U.S. 414 (1990). the Court reaffirmed its position that government employees cannot bind the federal government where they are not authorized to do so.68See id. at 419–20.  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.69See id. at 416–20, 431–32.  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.”70Id. at 419–20 (citing Lee v. Munroe & Thornton, 11 U.S. (7 Cranch) 366 (1813)).  Cases like Merrill and Richmond are consistent in defining the agency of a government representative even more narrowly than in cases of private corporations.71See Saltman, supra note 56, at 783–85 (addressing agency theory in the context of government contracts); see also Jeffrey F. Ghent, Annotation, Doctrine of Apparent Authority as Applied to Agent of Municipality, 77 A.L.R.3d 925 § 3 (1977) (noting the confusion and lack of consistency among courts in construing the agency of government representatives).

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.”72Nicholas D. Michaud, Comment, From 287(g) to SB 1070:  The Decline of the Federal Immigration Partnership and the Rise of State-Level Immigration Enforcement, 52 Ariz. L. Rev. 1083, 1093 (2010). However, the Detention Model, which provides local law enforcement with the ability to administer detention facilities for the purpose of immigration enforcement,73Id.  As compared to the Detention Model, the Task Force Officer Model equips local law enforcement to investigate suspected undocumented immigrants.  Id. is the only model currently in use.74See 287(g) Results and Participating Entities, https://www.ice.gov/287g (last visited Feb. 5, 2019) (outlining all of the 287(g) MOAs currently in place nationwide).  The Task Force model has faced substantial criticism from immigrants’ rights groups because it arguably serves as a license for racial profiling. Campbell, supra note 15, at 437–43 (2010).  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.75See, e.g., Santos v. Frederick Cty. Bd. Of Comm’rs, 725 F.3d 451 (4th Cir. 2013); Ochoa v. Campbell, 266 F. Supp. 3d 127 (E.D. Wash. 2017), vacated as moot, 716 Fed App’x 741 (9th Cir. 2018) (mem.); Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017).

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.76See generally Memorandum of Agreement Template, U.S. Immigr. & Customs Enforcement, https://www.ice.gov/doclib/detention-reform/pdf/287g_moa.pdf (last visited Feb. 5, 2019) (providing a publicly available template for 287(g) agreements).  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.77See id. at 2–4.  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.78See id. at 1–4.

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,79266 F. Supp. 3d 1237 (E.D. Wash. 2017), vacated as moot, 716 Fed. App’x 741 (9th Cir. 2018) (mem.). 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[].”80Id. at 1254–55, 1258–59.  In Ochoa, local authorities detained a man on an immigration hold without a 287(g) agreement in place and, in doing so, prohibited him from posting bail for his release.  Id. at 1242.  Ochoa brought suit against the state Department of Corrections, seeking a temporary restraining order to remove the immigration hold.  Id.  The District Court granted his requesting, finding that he was likely to succeed on the merits of his Fourth Amendment claims.  Id. at 1258–59.  The defendants appealed, but the Ninth Circuit Court of Appeals dismissed the case as moot since ICE took Ochoa into custody after he was released from jail.  See Ochoa, 716 Fed. App’x at 742.  Similarly, in Santos v. Frederick County Board of Commissioners,81725 F.3d 451 (4th Cir. 2013). 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.82Id. at 457–58, 463–65.  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.83Id. at 463–65.  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.84Id. at 465.  While a 287(g) agreement is needed for local law enforcement officials to detain individuals suspected of violating federal immigration policy, state-level law enforcement is not always precluded from cooperating with ICE for immigration enforcement.  See United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (holding that cooperation between a state trooper conducting a traffic stop and Border Patrol was appropriate under § 287(g), even in the absence of a 287(g) agreement).  The Supreme Judicial Court of Massachusetts examined this same issue in Lunn v. Commonwealth.8578 N.E.3d 1143 (Mass. 2017).  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.86Id. at 1146.  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.87See id. at 1160 (ruling that “Massachusetts law provides no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody”).

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.88See, e.g., Homebuilders Ass’n of Charlotte, Inc. v. City of Charlotte, 442 S.E.2d 45, 49 (N.C. 1994) (maintaining that local government has authority “granted in express words . . . necessarily or fairly impliedin or incident to the powers expressly granted . . . [and that which is] essential” (quoting Dillon, Commentaries on the Law of Municipal Corporations§ 237 (5th ed. 1911))); Bd. of Supervisors v. Countryside Inv. Co., 522 S.E.2d 610, 612–13 (Va. 1999) (stating that Dillon’s Rule “provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable” (quoting City of Chesapeake v. Gardner Enters., 482 S.E.2d 812, 814 (Va. 1997))).  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.89See Russell & Bostrom, supra note 26, at 8; see also Stevenson,supra note 23, § 24.01 n.18 (providing examples of cases from a variety of states applying Dillon’s Rule).  For example, some jurisdictions rely heavily on the first factor, while others give weight to all three.90Compare State ex rel. Cole v. Keller, 176 So. 176, 180 (Fla. 1937) (mem.) (noting definitively that if “any reasonable doubt” exists as to whether a municipal corporation has been granted the express power to exercise authority then it “will be resolved against the municipality”) with Town of McIntyre v. Baldwin, 6 S.E.2d 372, 373 (Ga. Ct. App. 1939) (examining whether “a grant of power . . . may necessarily be implied” from legislative text).  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.91See Stevenson, supra note 23, § 24.03 (noting several states that take a liberal approach to Dillon’s Rule where the factors are construed in municipalities’ favor).  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.92See id. (noting various states’ interpretation of Dillon’s Rule).

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§ 21.01.  For example, in Board of Supervisors v. Countryside Investment Co.,94522 S.E.2d 610 (Va. 1999). 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.95Id. at 613.  Decisions similar to Countryside Investment Co. indicate that an application of the first Dillon factor can, by itself, determine the outcome of a case,96See Bowie Inn, Inc. v. City of Bowie, 335 A.2d 679, 689 (Md. 1975) (holding that a city ordinance to regulate garbage was expressly authorized by state statute and thus within the powers of the city); Novak v. Town of Poughkeepsie, 311 N.Y.S.2d 393, 396–97 (N.Y. Sup. Ct. 1970) (concluding that a city ordinance was invalid because it “deviate[d] from the strict letter of the enabling statutes”); Reese v. Charlotte-Mecklenburg Bd. of Educ., 676 S.E.2d 481, 491 (N.C. Ct. App. 2009) (superseded by statute on other grounds) (determining that a county had authority to sell real property because such authority was expressly vested in the county by state statute). but courts oftentimes proceed to consider all three factors as part of their analysis.97See Vill. of N. Fargo v. City of Fargo, 192 N.W. 977, 981 (N.D. 1923) (inquiring into all three Dillon’s Rule factors in examining whether a municipality had the power to annex the territory of another municipality).

2.  Implied authority

Courts may also extend the authority of local government to those powers necessarily implied from expressly granted powers.98See Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1224 (Alaska 1975) (determining that a borough had authority to build a school access road on private property because the power to do so was implied from express authority to manage local schools); O’Bryan v. City of Louisville, 382 S.W.2d 386, 388 (Ky. Ct. App. 1964) (holding that a statute granting a city authority to establish parks and recreational areas impliedly granted authority to establish a zoo); Homebuilders Ass’n of Charlotte, Inc. v. City of Charlotte, 442 S.E.2d 45, 49 (N.C. 1994) (“[T]he municipal power to regulate an activity implies the power to impose a fee in an amount sufficient to cover the cost of regulation.”); Town of Clearfield v. Cushman, 440 N.W.2d 777, 781 (Wis. 1989) (holding that a town has the authority to enforce building permits even though such authority is not expressly granted by the legislature because such power is necessarily implied).  For example, in Perretta v. City of New Britain,99440 A.2d 823 (Conn. 1981). 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.100Id. at 829–30.  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.101Id. However, the interpretation of local governments’ implied powers under Dillon’s Rule is oftentimes narrowly construed,102See Stevenson, supra note 23, § 24.03 (explaining the strict construction of implied powers and detailing cases from numerous jurisdictions accordingly). as the North Carolina Supreme Court determined in Porsh Builders, Inc. v. City of Winston-Salem.103276 S.E.2d 443 (N.C. 1981).  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.104Id. at 445–46.  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.”105Id. at 445.

3.  Essential authority

The third, and most narrowly applied,106See Stevenson, supra note 23, § 24.02 (noting that some states do not recognize inherent essential local government powers, and that for those states that do, “they are admittedly not many in number”). Dillon factor is that local governments can exercise those powers that are “essential”107Homebuilders Ass’n of Charlotte, Inc. v. City of Charlotte, 442 S.E.2d 45, 49 (N.C. 1994) (quoting Dillon, Commentaries on the Law of Municipal Corporations§ 237 (5th ed. 1911)). to the locality, even in the absence of express or implied authority.108See City of Bessemer v. Birmingham Elec. Co., 27 So. 2d 565, 573 (Ala. 1945) (acknowledging that a municipal corporation’s ability to grant franchises “is one of the incidental powers of a municipal corporation”); State ex rel. Radcliff v. City of Mobile, 155 So. 872, 874 (Ala. 1934) (providing that local government authority includes those powers “which are indispensably necessary to the declared objects and germane to the governmental purpose for which such corporations may be organized”); Willson v. Boise City, 55 P. 887, 889 (Idaho 1899) (holding that a town has the power to divert stream water outside the city to protect its residents’ properties because such authority is “necessary”).  Justice Dillon defined the third factor as powers “essential to the accomplishment of the declared objects and purposes of the corporation,— [sic] not simply convenient, but indispensable.” Homebuilders Ass’n, 442 S.E.2d at 49 (quoting Dillon, Commentaries on the Law of Municipal Corporations § 237 (5th ed. 1911)).  This aspect of a Dillon analysis can come into play when localities are forced to react to emergencies.  In Willson v. Boise City,10955 P. 887 (Idaho 1899). 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.110Id. at 889–91.  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.111Id. at 889.

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,112279 P. 601 (Wash. 1929). 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.113Id. at 606.

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.114Perretta v. City of New Britain, 440 A.2d 823, 829 (Conn. 1981); Ennis, 279 P. at 606.  However, the court in Perretta determined that it was the mayor’s implied authority to dismiss a city employee,115See Perretta, 440 A.2d at 829 (justifying dismissal of employees “for reasons of economy” as falling within the city’s express and implied powers). while the court in Ennis held the authority was simply necessary, and did not comment on the possibility of implied authority.116Ennis, 279 P. at 606.  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.117See 149 U.S. 465, 468 (“The city is in a very just sense an ‘imperium in imperio.’”); see also Stevenson, supra note 23, § 21.02 (explaining that imperio provisions “grant broad independent powers” that local governments can exercise within their defined sphere).  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.”118Cal. Const. art. XI, § 5(a) (emphasis added).  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.”119Wis. Const. art. XI, § 3(1).

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.”120City of Santa Clara v. Von Raesfeld, 474 P.2d 976, 979 (Cal. 1970) (en banc) (“When it appears that a municipal regulation and a general state law are in conflict, the controlling law will depend on whether the subject matter is a municipal affair or whether it is of statewide concern.”); see also City of Denver v. Sweet, 329 P.2d 441, 446 (Colo. 1958) (en banc) (acknowledging that a Home Rule city’s ability to implement an income tax can only be limited if it conflicts with either a constitutional amendment or a matter of statewide concern); Adler v. Deegan, 167 N.E. 705, 714 (N.Y. 1929) (Cardozo, J., concurring) (“The power of the city is subordinate at such times to the power of the state, but may be exerted without restraint to the extent that the two can work in harmony together.”).  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.121See City of Longmont v. Colo. Oil & Gas Ass’n, 369 P.3d 573, 580 (Colo. 2016) (en banc) (considering whether a local ordinance related to municipal affairs, statewide concern, or a mixed matter of local and statewide concern in determining whether it was preempted by state law); Madison Teachers, Inc. v. Walker, 851 N.W.2d 337, 368 (Wis. 2014) (acknowledging that a Home Rule analysis contemplates whether a local law is a matter of statewide concern, local concern, or a “mixed bag” (quoting Adams v. State Livestock Facilities Siting Review Bd., 820 N.W.2d 404, 463 (Wis. 2012))).  Some states have more nuanced Home Rule analyses.  For example, California employs a multi-step test to determine whether a local law enacted under California’s imperio provision is preempted by state law.  See State Bldg. & Constr. Trades Council v. City of Vista, 279 P.3d 1022, 1027 (Cal. 2012).  California courts must (1) determine whether the local law impacts a local matter, (2) find that a conflict exists between local and state law, (3) examine whether the conflicting state law addresses a matter of state-wide concern, and (4) analyze whether the state law is related to the statewide concern and whether the state law is “narrowly tailored” to avoid meddling in matters of local importance. Id.  In City of Longmont v. Colorado Oil & Gas Ass’n,122369 P.3d 573 (Col. 2016) (en banc). 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.123Id. at 577.  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.124Id. at 580.  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.125Id.  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.126Stevenson, supra note 23, § 21.02.  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 . . . .”127N.Y. Const. art IX, § 2(c)(i) (emphasis added).  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.”128Alaska Const. art. X, § 11 (emphasis added).

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.129See Palm v. 2800 Lake Shore Drive Condo. Ass’n, 988 N.E.2d 75, 81 (Ill. 2013) (“If the legislature intends to limit or deny the exercise of home rule powers, the statute must contain an express statement to that effect.”); Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 43 (Mass. 2001) (acknowledging that a local law is only invalidated where it is in “sharp conflict” with state statute (quoting Take Five Vending, Ltd. v. Town of Provincetown, 615 N.E.2d 576, 578 (Mass. 1993))); Am. Cancer Soc’y v. State, 103 P.3d 1085, 1090 (Mont. 2004) (holding that a local no-smoking ordinance did not conflict with the state constitution because it was not expressly preempted); New Mexicans for Free Enter. v. City of Santa Fe, 126 P.3d 1149, 1159 (N.M. Ct. App. 2005) (considering whether a local ordinance increasing the municipal minimum wage requirement was in express conflict with the New Mexico state minimum wage statute); Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 234 N.Y.S.2d 862, 864–65 (N.Y. App. Div. 1962) (invalidating a city’s minimum wage law prohibiting employment because it was inconsistent with state law), aff’d, 189 N.E.2d 623 (N.Y. 1963); Fross v. County of Allegheny, 20 A.3d 1193, 1203 (Pa. 2011) (“[L]ocal legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow.” (quoting Huntley & Huntley, Inc. v. Borough Council, 964 A.2d 855, 862 (Pa. 2009))).  There are also instances where states have included “express anti-preemption” provisions in Home Rule statutes, which “expressly disclaim any intent on the part of the State legislature to preempt local regulation.”  Stevenson, supra note 23, § 22.02; see also City of San Jose v. Dep’t of Health Servs., 77 Cal. Rptr. 2d 609, 612 (Cal. Ct. App. 1998) (considering whether a city smoking ordinance was preempted in light of California code stipulating the legislative intent of a statute was “not to preempt the field of regulation of the smoking of tobacco” (quoting Cal. Health & Safety Code§ 118910(a) (West 2016))).  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.130Stevenson, supra note 23, § 22.02.  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,131255 A.2d. 376 (1969). 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.132Id. at 377–79.  The court in Sitnick looked to whether the ordinance was explicitly preempted by state law, ultimately holding that it was not.133Id. at 379, 385.  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.”134Id. at 384.  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.135Id. at 377–79.  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.136Id. at 385.

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.137Stevenson, supra note 23, § 23.03 (“Charters are . . . limitations upon the power of local governments in practically all home rule states.”).  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.138Mich. Comp. Laws Ann. § 45.514–45.515 (West 2017).  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§ 45.514(j).  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.140See Bank v. Bell, 217 P. 538, 542 (Cal. Dist. Ct. App. 1923) (explaining how the California charter system is established to give “freeholders” the power to define their own government).  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.141Stevenson, supra note 23, § 21.02.

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.142Roger Scott, “Roots” a Historical Perspective of the Office of Sheriff, Nat’l Sheriffs’ Ass’n, https://www.sheriffs.org/publications-resources/resources/office-of-sheriff (last visited Feb. 5, 2019) (“The duties of the sheriff included keeping the peace, collecting taxes, maintaining jails, arresting fugitives, maintaining a list of wanted criminals, and serving orders and writs for the Kings Court.”). 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.143Why Is the American Sheriff Such a Polarising Figure?, The Economist (Apr. 11, 2018), https://www.economist.com/the-economist-explains/2018/04/11/why-is-the-american-sheriff-such-a-polarising-figure; see also Soraya K. Kawucha, Sheriffs—The Other Police 99–100, 108–11 (Dec. 2014) (unpublished Ph.D. dissertation, Sam Houston State University) (describing the role of the sheriff in the wild west and providing an overview of famous sheriffs and the outlaws they pursued).  The sheriff remains an important law enforcement officer in many jurisdictions in the United States today,144History of the Sheriff, N.C. Sheriffs’ Ass’n, https://ncsheriffs.org/about/history-of-the-sheriff (last visited Feb. 5, 2019) (describing the “proud history” of the sheriff).  President Ronald Reagan once addressed the National Sheriffs’ Association, saying:

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.145See ICE Section 287(g), supra note 19 (detailing the seventy-one 287(g) agreements with sheriff’s offices out of the seventy-eight total 287(g) agreements nationwide).

1.  The office of the sheriff

Sheriffs today are typically elected local government officials charged with some type of law enforcement function.146The Economist, supra note 143.  North Carolina sheriffs, for example, are officers empowered by the state constitution and elected by county constituents to serve four-year terms.147N.C. Const. art. VII, § 2.  Similarly, a sheriff in Virginia has “duties . . . [which] shall be prescribed by general law or special act.”148Va. Const. art. VII, § 4.  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.”149Tex. Const. art. V, § 23.  Colorado sheriffs are considered “peace officers” charged with enforcing all laws of the state,150Colo. Rev. Stat. 16-2.5-103 (2018). while New Jersey sheriffs attend to security functions of the judiciary, serve court process, and investigate and apprehend criminals.151N.J. Stat. Ann. § 40A:9-117.6 (West 1984).  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.152See David N. Falcone & L. Edward Wells, The County Sheriff as a Distinctive Policing Modality, 14 Am. J. Police 123, 130–33 (1995).  Nebraska explicitly confers authority to sheriffs to hire deputies and delegate responsibility, and Oregon provides sheriffs with statutory power to administer their office.  Neb. Rev. Stat. Ann. § 23-1704.02 (West 2018); Or. Rev. Stat. Ann. § 206.210 (West 2018).  Some states, such as North Carolina, Oklahoma, and Virginia, also empower sheriffs to oversee the local jail or county prisoners.153N.C. Gen. Stat. Ann.§ 162-22 (West 2018); Okla. St. Ann.tit. 19, § 513 (West 2018); Va. Code Ann. § 53.1-116.2 (West 1994).  In some instances, sheriffs can be assigned narrow, miscellaneous duties that the state legislature deems particularly important or necessary to the sheriff’s role.154Sheriffs’ associations often provide a repository of state laws and regulations applicable to sheriffs.  E.g.Frequently Used Code Sections, Va. Sheriffs’ Ass’n, https://vasheriff. org/laws-and-legislation/frequently-used-code-sections (last visited Feb. 5, 2019).  In Oklahoma, for instance, sheriffs are expressly granted authority to charge five dollars as a finger-printing fee,155Okla. St. Ann. tit. 19, § 514.3. and North Carolina provides sheriffs with the ability to establish a volunteer school resource officer program for school safety.156N.C. Gen. Stat. Ann. § 162-26.  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,157Ark. Code Ann. § 14-14-1102(b)(2)(c)(ii) (West 2018). and the Texas Supreme Court has recognized the County Commissioners’ Court as the authorized signatory for external contracts at the local level.158Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941).  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.”159Mont. Code Ann. § 7-1-2104 (West 2017).  California authorizes the “legislative body” of local agencies to contract with other local government entities,160Cal. Gov’t Code § 54981 (West 2018). meaning “the board of supervisors . . . the city council or board of trustees . . . and the board of directors or other governing body . . . .”161§ 53000.  Similarly, authority to enter agreements with the federal government to furnish law enforcement services in Virginia is explicitly assigned to “localities,”162Va. Code Ann. § 15.2-1726 (West 1997). and Virginia code is clear that localities “shall be construed to mean a county, city, or town as the context may require.”163§ 15.2-102.  Furthermore, the legal governing body of each Virginia locality is granted all powers endowed upon localities by Virginia code.164§ 15.2-1401.  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,165E.g., Arizona v. United States, 567 U.S. 387, 416 (2012) (finding preemption of an Arizona statute (S.B. 1070) creating criminal penalties for unlawful entry); City of New York v. United States, 179 F.3d 29, 31 (2d Cir. 1999) (finding that federal law preempted a mayoral executive order establishing a sanctuary city). 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,166See supra Section II.C (describing how Dillon’s Rule precludes local government from having authority not provided by state legislation). rather than an express provision of state law in conflict with federal law.167E.g., Arizona, 567 U.S. at 407–10 (invalidating an Arizona law that granted state law enforcement the authority to make warrantless arrests based on a belief that the individual was in the country illegally because it conflicted with federal immigration law and was thus unconstitutional).

Under preemption principles, where state and federal law conflict, federal law governs.168See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 210 (1824) (“States may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the constitution . . . .  Should [a] collision exist . . . the acts of [a state] must yield to the law of Congress . . . .”); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (“A fundamental principle of the Constitution is that Congress has the power to preempt state law.”).  However, where there is no conflict, state law applies.169See Arizona, 567 U.S. at 414 (citing United States v. Di Re, 332 U. S. 581, 589 (1948)) (noting that where state law is not adverse to federal law, it survives preemption); Crosby, 530 U.S. at 372 (describing how federal law only preempts state law when state law conflicts with federal law).  In the immigration context, Arizona v. United States170567 U.S. 387 (2012). 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.171Id. at 393–94.  The United States brought suit to enjoin Arizona from implementing SB 1070, arguing that the law was preempted by federal statute.172Id. at 393.  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.173Id. at 398.  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.174Id. at 399–400.  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.175Id. at 400–16.

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.176See supra notes 51–54 and accompanying text (discussing court decisions applying contract law principles to MOAs).  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.177See supra notes 71–73 and accompanying text (explaining the contents of a typical 287(g) MOA).  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.178See supra notes 71–73 and accompanying text.  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.179See supra notes 51–54 and accompanying text (providing a discussion of Praesidium Medical).

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).180See Bowie Inn, Inc. v. City of Bowie, 335 A.2d 679, 689–90 (Md. 1975) (holding that a city ordinance to regulate garbage was expressly authorized by state statute and thus within the powers of the city); Novak v. Town of Poughkeepsie, 311 N.Y.S.2d 393, 396 (N.Y. Sup. Ct. 1970) (concluding that a city ordinance was invalid because it “deviate[d] from the strict letter of the enabling statutes”); Reese v. Charlotte-Mecklenburg Bd. of Educ., 676 S.E.2d 481, 491 (N.C. Ct. App. 2009) (determining that a county had authority to sell real property because such authority was expressly vested in the county by state statute). 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.181See supra notes 146–56 and accompanying text (outlining common duties of American sheriffs).  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.182Va. Code Ann. § 15.2-1729 (West 1997) (“The governing body of any county may enter into an agreement with the United States government or a department or agency thereof . . . .”). Virginia code also provides that “the governing body of any contiguous locality . . . may enter into a mutual aid agreement with the appropriate federal authorities to authorize police cooperation and assistance.”  § 15.2-1728.  Similarly, North Carolina does not provide sheriffs with any express statutory authority to enter agreements with the federal government.183See generally N.C. Gen. Stat. Ann. §§ 162-13–162-26 (2017) (codifying the duties of the sheriff in North Carolina).  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.”184Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941).  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)).185See Gregg Abbott, Attorney General of Texas, Opinion No. GA-0229 1, 7 (Aug. 9, 2004) https://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2004/pdf/ga0229.pdf (concluding that a sheriff does not have the authority to enter a contract to house federal prisoners); Jim Mattox, Attorney General of Texas, Letter Opinion No. 90-95 1, 4 (Nov. 27, 1990) https://www.texasattorneygeneral.gov/opini ons/opinions/47mattox/lo/1990/htm/lo1990095.htm (interpreting Texas code to preclude sheriffs from entering contracts to house federal prisoners); see also Greg Abbott, Attorney General of Texas, Opinion No. GA-0424 1, 4 (May 1, 2006) https://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2006/pdf/ga0424.pdf (advising that sheriffs “may exercise only those powers that the state constitution and statutes confer, either explicitly or implicitly”); Dan Morales, Attorney General of Texas, Letter Opinion No. 98-072 1 (Aug. 25, 1998) https://www.texasattorneygeneral.gov/opinions/opinions/48morales/lo/1998/pdf/lo1998072.pdf (opining that the commissioners court, not the sheriff, has authority to contract with external entities).  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.186See supra notes 98–101 and accompanying text (explaining the second Dillon factor). While the court in Countryside Investment Co. determined that lack of express authority was sufficient to limit the power of local government, the opinion also acknowledged that local government authority can be implied.  See 522 S.E.2d. at 613.  Thus, it stands to reason that a Virginia court might look beyond the first Dillon factor in its analysis.  Perhaps because Virginia is considered a quintessential Dillon’s Rule state, Virginia courts weigh the first factor more heavily than in other jurisdictions, further illustrating the lack of uniformity in how the doctrine can be applied. See Stevenson, supra note 23, § 24.03 (using Virginia as an example of strict interpretation of Dillon’s Rule).  For example, Virginia code allows a locality to enter a reciprocal agreement with the federal government.187Va. Code Ann. § 15.2-1726 (West 2017).  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§ 15.2-1401. meaning that the board of supervisors or city council is authorized to enter 287(g) agreements, not the sheriff.189§ 15.2-102.  Furthermore, Virginia precedent is clear that the sheriff is considered a separate legal entity from the locality he represents.190See Keathley v. Vitale, 866 F. Supp. 272, 275 (E.D. Va. 1994) (determining that just because a sheriff has discretion to make decisions impacting his municipality does not make those decisions municipal policy); see also Narrows Grocery Co. v. Bailey, 170 S.E. 730, 733 (1933) (holding a sheriff personally liable for failure to perform a responsibility expressly assigned by the state legislature).

Comparatively, in North Carolina, sheriffs have statutory power to receive and house prisoners delivered to county jails under the authority of the federal government.191N.C. Gen. Stat. Ann. § 162-34 (West 2017).  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.192See 440 A.2d 823, 829–30 (N.C. 1981).  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.193See N.C. Gen. Stat. Ann. § 160A-12 (entering contracts); § 160A-16 (2017) (ratifying contracts).  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,194See Perretta, 440 A.2d at 830 (holding that the city’s charter provides broad powers to the executive). which stands in contrast to sheriffs’ explicitly narrow mandate in many jurisdictions, including North Carolina.195See supra notes 146–56 and accompanying text (detailing how state constitutions and legislation typically provide specific, narrow duties of sheriffs).  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.196See supra notes 106–13 and accompanying text (outlining the third factor of Dillon’s Rule).  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.197See State ex rel. Ennis v. Superior Court, 279 P. 601, 606 (Wash. 1929).  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.198See supra notes 114–16 and accompanying text (discussing the ambiguity between the second and third Dillon factors).  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.199Homebuilders Ass’n of Charlotte, Inc. v. City of Charlotte, 442 S.E.2d 45, 49 (N.C. 1994) (quoting J. Dillon, Commentaries on the Law of Municipal Corporations, § 237 (5th ed. 1911)) (delineating the powers of municipal corporations as those that are expressly granted, fairly implied, or essential to the accomplishment of the purposes of the corporation).  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.200See supra notes 109–11 and accompanying text (discussing Willson).  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.201See Willson v. Boise City, 55 P. 887, 889 (Idaho 1899).  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.202See, e.g., Nazgol Ghandnoosh & Josh Rovner, Immigration and Public Safety, Sent’g Project 6–7 (2017), https://www.sentencingproject.org/wp-content/uploads/2017/03/Immigration-and-Public-Safety.pdf (reporting that immigrants as a group have lower rates of arrests than native born Americans); Michelangelo Landgrave & Alex Nowrasteh, “Criminal Immigrants Their Numbers, Demographics, and Countries of Origin,” Cato Instit. 1 (Mar. 15, 2017), https://object.cato.org/sites/cato.org/files/pubs/pdf/immigration_brief-1.pdf (finding that native-born Americans are more likely to be incarcerated and that crime rates decrease in areas with high immigrant settlements).  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.203Ghandnoosh & Rovner, supra note 202, at 8­9.  Any argument that undocumented immigrants may negatively affect the U.S. economy is also easily refuted.  See Brennan Hoban, Do Immigrants “Steal” Jobs from American Workers?, Brookings (Aug. 24, 2017), https://www.brookings.edu/blog/brookings-now/2017/08/24/do-immigrants-steal-jobs-from-american-workers (noting that immigration positively impacts the American economy); see also Nat’l Acad. Scis. Eng’g, Med., The Economic and Fiscal Consequences of Immigration 197–200 (2017) (discussing how immigration can positively and negatively impact the American economy).

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.204See, e.g., Willis v. Winters, 253 P.3d 1058, 1068 (Or. 2011) (rejecting sheriffs’ arguments that a federal law making marijuana consumption illegal did not entitle them to deny a concealed handgun license under state law); cf. Barr v. Snohomish Cty. Sheriff, 419 P.3d 867, 869 (Wash. Ct. App. 2018) (finding that a sheriff, who attempted to enforce both state and federal law with his actions, was prohibited from denying a concealed pistol license to an individual with two sealed juvenile felony adjudications).  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.205See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1281–84 (noting examples of tension in law when it comes to cooperation between states and the federal government).  However, the federal government cannot be allowed to enlist the assistance of local law enforcement where it would infringe on states’ sovereignty.206See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that a provision of the Brady Act requiring state law enforcement to participate in federal gun regulation was unconstitutional because it violated state sovereignty); see also Arizona v. United States, 567 U.S. 387, 398 (2012) (“Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.” (citing Gregory v. Ashcroft, 501 U.S. 452, 457 (1995) (Kennedy, J., concurring))).  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),2078 U.S.C. § 1357(g)(1) (2012) (requiring that 287(g) MOAs are entered “to the extent consistent with State and local law”). indicating Congress’ intent to defer to state law.  Furthermore, the third Dillon factor should be applied narrowly,208See supra notes 106–13 and accompanying text (acknowledging that there are few examples where the third Dillon factor has been applied by courts). especially when its implications could adversely affect the constitutional rights of either states or individuals.209See supra notes 79–87 and accompanying text (explaining how detention of undocumented immigrants by state level law enforcement in the absence of at 287(g) agreement infringes on constitutional rights).

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.210See supra note 33 and accompanying text.  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,211Mich. Comp. Laws Ann. § 45.514(j)-(k) (West 2017). 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.212See supra Sections II.C, II.D.  Where a local law or charter is preempted by state law, it is invalidated,213See, e.g., Palm v. 2800 Lake Shore Drive Condo. Ass’n, 988 N.E.2d 75, 81 (Ill. 2013) (“If the legislature intends to limit or deny the exercise of home rule powers, the statute must contain an express statement to that effect.”); Tri-Nel Mgmt. v. Bd. of Health, 741 N.E.2d 37, 43 (Mass. 2001) (acknowledging that a local law is only invalidated where it is in “sharp conflict” with state statute (quoting Take Five Vending, Ltd. v. Town of Provincetown, 415 Mass. 741, 744 (1993))); Am. Cancer Soc’y v. State, 103 P.3d 1085, 1090 (Mont. 2004) (holding that a local no-smoking ordinance was not in violation of the Montana state constitution because it was not expressly preempted by the constitution); New Mexicans for Free Enter. v. City of Santa Fe, 126 P.3d 1149, 1155 (N.M. Ct. App. 2005) (considering whether a local ordinance increasing the municipal minimum wage requirement was in express conflict with the New Mexico state minimum wage statute); Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 234 N.Y.S.2d 862, 865 (N.Y. App. Div. 1962) (holding that a city minimum wage law prohibiting employment at a salary which state law permitted was inconsistent with state law and thus invalid); Fross v. County of Allegheny, 20 A.3d 1193, 1203 (Pa. 2011) (“[L]ocal legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow.” (quoting Huntley & Huntley, Inc. v. Borough Council, 964 A.2d 855, 862 (Pa. 2009))). 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,214The imperio Home Rule construction allows local governments wide discretion to determine their own rules and laws without any express limitation.  See supra Section II.D.1. it is likely a sheriff’s authority would be considered an issue of “statewide concern”215City of Longmont v. Colo. Oil & Gas Ass’n, 369 P.3d 573, 580 (Colo. 2016). because sheriffs oftentimes derive their powers explicitly from the state legislature.216See supra notes 146–56 and accompanying text (providing examples of statutory power explicitly vested in sheriffs in various states).  As the Longmont court acknowledged, mentioning an issue explicitly in a state constitution indicates an area of “statewide concern.”217City of Longmont, 369 P.3d at 581.  The same goes for an issue within a category of traditional regulatory practice.218Id.  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,219See supra notes 146–56 and accompanying text (demonstrating how sheriffs derive their authority from state constitutions and state code). 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.”220City of Longmont, 369 P.3d at 580.  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,221E.g., Tex. Const. art. V, § 23 (defining the scope of sheriffs’ authority to be “prescribed by the Legislature”). 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.222See City of Baltimore v. Sitnick, 255 A.2d 376, 377 (Md. 1969) (considering whether a local law was expressly prohibited by state legislation).  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.223See supra notes 131–36 and accompanying text (discussing the Sitnick preemption test).  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.224See Sitnick, 255 A.2d at 384 (holding that a local law was legitimate because it sought to accomplish the same goal as a state statute).

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.225See id. at 322 (analyzing whether the state legislature intended to regulate the field as the third prong of a preemption analysis).  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.226See supra notes 157–64 and accompanying text (describing typical officials endowed with authority to contract on behalf of their locality).  Additionally, Home Rule acts as a check on local power insofar as it empowers local citizens to define the scope of local officials’ authority.227See supra notes 137–41 and accompanying text (laying out Home Rule’s limitation on local authority).  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.228See supra Section II.A (providing a basic discussion of agency theory).  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.229See supra notes 63–70 and accompanying text (discussing Merrill and Richmond).  Moreover, in the same way the government employee in Richmond mistakenly gave faulty information,230Office of Personnel Management v. Richmond, 496 U.S. 414, 417–18 (1990). 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.231See supra Section II.E (detailing common statutory authority of sheriffs).

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.232See supra notes 55–61 and accompanying text (discussing apparent authority).  Because the vast majority of 287(g) agreements are signed solely by sheriffs,233See ICE Section 287(g), supra note 19(linking to all fully executed 287(g) agreements nationwide). 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.234The ICE website incorrectly states that 287(g) agreements can be signed by “the head of the local agency carrying out the designated immigration law enforcement functions.”  Id.  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.235See supra notes 63–70 and accompanying text (analyzing Merrill and Richmond as they determine the extent of agency of government officials).  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.236See supra notes 55–61 and accompanying text (explaining that a contract where one of the parties does not have agency to bind the principal is unenforceable as a matter of law).  North Carolina even goes as far as to explicitly invalidate contracts made on behalf of cities, which are not ratified by the local governing body.  N.C. Gen. Stat. Ann. § 160A-16 (West 2017).

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.237See supra notes 79–87 and accompanying text (discussing Ochoa, Lunn, and Santos).  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.238See Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013) (reasoning that detention of an undocumented immigrant by state-level law enforcement without a 287(g) agreement is a Fourth Amendment violation); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1259 (E.D. Wash. 2017) (applying Fourth Amendment protections in the absence of a 287(g) agreement); Lunn v. Commonwealth, 78 N.E.3d 1143, 1159–60 (Mass. 2017) (holding that state-level law enforcement cannot enforce federal immigration policy without a 287(g) agreement in place).  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.239See, e.g., Ochoa, 226 F. Supp. 3d at 1255.

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.”2408 U.S.C. § 1357(g)(1) (2012).  Dillon’s Rule is a doctrine dictated and recognized on a state-by-state basis.241See supra Section II.C (discussing Dillon’s Rule).  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§ 1357(g); see also Sessions & Hayden, supra note 22, at 330 (noting that local law enforcement may make arrests for violations of federal crimes as long as they are not limited by local law from doing so).

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§ 1357(g)(1).  The statute does not specify who may sign a 287(g) MOA on behalf of the LEA,244Id. 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).245See Arizona v. United States, 567 U.S. 387, 414 (2012) (citing United States v. Di Re., 332 U.S. 581, 589 (1948)) (acknowledging that where state and federal law are not in conflict, state law can govern).  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.246See supra notes 157–64 and accompanying text (detailing how contracting authority at the local level is often vested in someone other than the sheriff).  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.247See Eric Katz, ICE’s Expanded Use of Local Law Enforcement Came Without Adequate Planning or Resources, Gov’t Executive (Sep. 24, 2018), https://www.govexec.com/management/2018/09/ices-expanded-use-local-law-enforcement-came-without-adequate-planning-or-resources/151515 (referencing an ICE Inspector General report identifying human resources and IT shortcomings in the 287(g) program).  Furthermore, in many cases, sheriffs unilaterally enter these agreements,248See ICE Section 287(g), supra note 19 (providing access to a copy of all 287(g) agreements in the United States). 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.


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.

Share this post