Nullification by Another Name

Tom Steyer is not a fringe candidate. He leads the Democratic primary field for governor of the largest state in the union, having committed $112 million of his own money to the campaign. On April 14 he posted his immigration platform on his Substack under the title “How California Can Put ICE in Jail.” It is precisely what it sounds like.

Steyer’s five-point plan calls for state legislation banning law enforcement from “profiling” Californians by race, ethnicity, language, occupation, or location. It is also proposes to give the California attorney sweeping authority to criminally prosecute Immigration and Customs Enforcement leadership under a doctrine of “supervisory liability”; stand up a special investigative unit to build cases against federal agents; expand state-funded immigration legal defense for the detained; and launch a “Know Your Rights” public education campaign.

All of this is framed by Steyer in opposition to what he calls a “criminal organization.” Normal Americans, of course, understand the need for law enforcement.

Let’s be clear about something. This is the program of the leading Democrat in the field that will pick the next governor of California, in a state whose top-two primary system means he could plausibly reach the November ballot.

Sadly, Steyer’s proposal are not fanciful outliers. On April 21, the California Senate’s public safety committee voted on party lines to advance Senate Bill 938, the Community Trust Act, authored by State Senator Caroline Menjivar of the San Fernando Valley. The bill would disqualify any former ICE or Customs and Border Protection officer who served on or after January 20, 2025, from working as a state or local police officer for ten years after leaving federal service.

Two parallel measures cleared the Assembly’s public safety committee the same day, including Assembly Bill 1896, authored in part by Speaker Robert Rivas. In January, the California Senate passed Senate Bill 747, the No Kings Act, drafted by Senator Scott Wiener to create a state-court civil cause of action against federal officers for constitutional violations. The legislative program is now an open one: anyone who participated in federal immigration enforcement under the current administration should be barred from public trust, exposed to civil liability, and, in the Steyer formulation, prosecuted for it.

The Chorus

The rhetoric matches the legislation. In January, House Minority Leader Hakeem Jeffries posted a public warning to “all members of the Trump Administration” that they were on notice for what he called criminal incitement of state violence, citing the federal statute of limitations as a clock on their immunity once President Trump leaves office. Representative Delia Ramirez of Illinois has called ICE agents “criminals in masks.” Representative Shri Thanedar of Michigan told Customs and Border Protection commissioner Rodney Scott in a hearing that he had “better hope you get pardoned.” On November 18, Senators Mark Kelly of Arizona and Elissa Slotkin of Michigan, joined by Representatives Jason Crow of Colorado, Chrissy Houlahan and Chris Deluzio of Pennsylvania, and Maggie Goodlander of New Hampshire, all former military or intelligence officers and now collectively known as the “Seditious Six,” released a coordinated video urging members of the United States military to disobey what they characterized as illegal orders, without specifying which.

Normal Americans, of course, would recognize this as treason.

Earlier this month Lyceum published “The Preventable Dead,” a survey of a single week of Department of Homeland Security arrest reports showing what four years of catch-and-release, expanded Temporary Protected Status, and sanctuary non-cooperation produced.

The results are shocking:

A Bangladeshi gas station clerk beaten to death in Fort Myers by a Haitian national whose removal order was issued in 2022 and never executed; a five-year sentence in Fairfax County for two illegal aliens who stabbed a man to death in a public park; a four-year-old girl kidnapped from a Long Island laundromat by a three-times-deported alien whom New York sanctuary officials had previously released.

This is negligence with a body count.

The Steyer platform appears to be the solution the sanctuary movement has decided to give to that body count. The answer is not reform. It is escalation. Faced with the choice between defending a model that produced foreseeable American deaths and criminalizing the federal agents sent to repair it, the leading Democratic candidate for the governorship of California has chosen the second course, and the legislature is providing the statutory tools.

The Word They Won’t Use

The constitutional vocabulary for what is being proposed exists, and it is not new. It is nullification, dressed in newer clothes. In the 1830s John C. Calhoun developed the doctrine that a state could declare a federal law inoperative within its borders. The doctrine was rejected by Andrew Jackson, defused by the Compromise of 1833, and laid to rest in Ableman v. Booth (1859), in which a unanimous Supreme Court ruled that state courts could not interpose their machinery against federal officers enforcing federal law. The case is worth remembering precisely because Wisconsin’s nullification was attempted against the morally indefensible Fugitive Slave Act. The principle of federal supremacy held even there. The Court was not endorsing the law; it was settling who decides. Now, Steyer does not use the word nullification, but the architecture of his proposal supplies it. Supervisory-liability prosecutions of ICE leadership by a California attorney general are nullification carried out through the criminal docket.

The classicist Alexander Petkas, writing on TomKlingenstein.com on April 1, traced the breakdown of the late Roman Republic to the expansion of formal membership without the assimilative bonds that had sustained civic order. A cohesive political community, Petkas concluded, “cannot be created by legal status alone.” Sanctuary jurisdictions have spent the last decade testing the inverse proposition: that political community can survive when residence is granted in fact while citizenship is denied in law, and when the federal officers tasked with sorting the difference are treated as enemies of the state. The current escalation is the natural endpoint of that experiment.

A Sovereignty Claim

There is a serious version of the criticisms being lodged against ICE: questions about uses of force, masking, and detention conditions are legitimate subjects of federal oversight, civil litigation, and congressional inquiry. The federal government has channels for that scrutiny, and those channels are constitutional. What Steyer and his counterparts in Sacramento and Congress have decided to do is bypass those channels and substitute the state criminal docket and the state civil bar for the federal accountability process. That is not an oversight reform. It is a sovereignty claim.

The practical negative effects on the agents themselves was also planned. ICE officers and their families are being doxxed; masked agents are filmed and circulated on hostile feeds; and the leading Democrat in the field for the governorship of the state where many of them serve has now pledged to use the state criminal-justice system against them by name. The point is not to win in court. It is unlikely Steyer’s prosecutions would survive an Ableman challenge. The point is to make the job too costly to do.

What Tom Steyer and his allies are saying, with increasing precision, is that the federal government’s authority to enforce its own immigration laws ends at certain state lines, and that the agents who carry that authority across those lines belong in prison. They will not call it nullification. The country should call it what it is. And the country should remember the chronology. The body count of the catch-and-release era was the predictable product of a model. The body count of the criminalization era, when ICE retreats from jurisdictions whose governors have promised to jail its agents, will be its sequel.