Five Constitutional Amendments Trump is Ignoring in Minnesota
For nearly two months, the Trump administration has unleashed immigration officers on the streets of Minneapolis and St. Paul in a siege of increasing cruelty and violence. Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) officers are dragging citizens from their homes, deploying five-year-olds as bait, arresting demonstrators, and using pepper spray on protesters like bug repellent at a barbecue. They have shot three people, including the executions of Renée Good and Alex Pretti.
“The federal government is attempting to bend the state’s will to its own—and that is not allowed under the Constitution.”
The immorality of the moment is clear. But the images of uninhibited brutality visited by federal law enforcement officers onto a metropolis also run counter to our Constitution—both its restrictions on federal power and the freedoms it is meant to protect. Simply put, the violence inflicted by ICE doesn’t just feel wrong: it is a violation of our basic rights, ones that hold the line between democracy on one side and fascism and dictatorship on the other. In Minnesota, we’re plainly seeing why these rights underpin our system of government.
Despite the rampant violations carried out by armed agents of the state, they are unlikely to see much justice in the courts. That’s because in recent decades, the Supreme Court has limited people’s ability to sue individual federal officers who violate their rights. Such suits were accepted and even common in the 19th century. But in sad irony, the same Supreme Court justices who say it’s important to continue the country’s earliest legal traditions have made them all but impossible. “They’ve made it incredibly difficult to sue federal officers for abuse of power, no matter how egregious,” says David Gans, a scholar at the Constitutional Accountability Center, a progressive nonprofit law firm.
But some avenues remain to stopping the violence and obtaining legal relief. Namely, a federal judge can order the government to stop illegal behavior, and there are multiple lawsuits mounting constitutional challenges to both ICE’s tactics and the entire invasion, dubbed Operation Metro Surge, more broadly. As those suits move forward, here is a list of the five amendments the Trump administration has effectively suspended in Minnesota.
The First Amendment
The First Amendment protects the rights to speak freely, to assemble, and to protest. This includes the right to observe federal government action and to protest against it. Crucially for Minnesota, this includes a right that CPB and ICE really don’t like: the right to record their actions. The First Amendment also protects against government retaliation for these acts—these rights would be meaningless if the government could chill them through retaliation. The government cannot target and punish you because of your views or other First Amendment-protected actions.
But under Trump, it’s impossible to count the ways in which all these rights have been violated every day in Minnesota, not to mention around the country. Obstructing law enforcement is not a protected act, but every video of an ICE officer arresting or pepper spraying an observer who is not obstructing them serves as documented evidence of unconstitutional retaliation for a protected act. Every time an officer physically assaults or detains someone who is simply observing or protesting, that’s a violation of the First Amendment.
This isn’t just theoretical. In a case filed by a group of Twin Cities observers demanding relief from ICE’s tactics, federal Judge Kate Menendez found this month that ICE likely violated the First Amendment rights of two plaintiffs when agents arrested them in what appeared to be retaliation for watching them. Menendez likewise found that a third plaintiff likely suffered unconstitutional retaliation for protected activity when an ICE officer pepper sprayed him as he stood aside a road. Menendez’s opinion provides a glimpse of how ICE is using chemical agents to chill Minnesotans’ free speech: “In one instance, agents drove slowly past, opened the car door, and ‘sprayed [a bystander] directly’ as the bystander ‘held their arms out’ and ‘was standing on the edge of the road.’ As the bystander moved away from the car, ‘another agent on foot came behind them and sprayed them directly in the face again,’ before spraying ‘into the small crowd.’” Menendez issued an injunction against against arrests and pepper spraying for people peacefully observing, but, in a move that shows the limits of local judges’ ability to intervene, the 8th Circuit Court of Appeals soon blocked the order.
Reports from the Twin Cities show that the reprisals can sometimes be petty, but no less unconstitutional. One woman who followed a CBP vehicle in her car was stopped by an officer who warned that he was using facial recognition software and knew who she was. Three days later, the Department of Homeland Security revoked the woman’s Global Entry and TSA PreCheck. The government cannot revoke a privilege as punishment for exercising First Amendment rights. A local toy store says DHS initiated an audit of employment and payroll records mere hours after the owner’s daughter criticized ICE to the media. (DHS denies that the investigation of a store with just five part-time employees is tied to her critical comments.)
More broadly, every resident of the Twin Cities has had their First Amendment rights violated. That’s because this entire operation appears to be reprisal against Democratic cities in a Democrat-led state for its collective choice not to vote for Donald Trump in the last three elections. “I won Minnesota three times and I didn’t get credit for it,” Trump said this month when asked about his federal occupation. “That’s a crooked state. California’s a crooked state. We have many crooked states.”
“The government doesn’t have a right to go into your house without your consent unless they have a warrant.”
A lawsuit seeking the end of ICE’s operation brought by the state of Minnesota and the cities of St. Paul and Minneapolis references these comments: “President Trump did not win the majority of votes cast in Minnesota in 2016, 2020, or 2024. His claims to the contrary, in the context of being asked to explain actions his administration is taking in Minnesota, suggests a desire to punish the State for voting for his opponents.” It further points out that in his first year back in office, Trump has only targeted Democratic cities with surges of federal officers and National Guard troops, and that he is attempting to withhold billions in federal dollars from Democratic states as well. Moreover, Minnesota is not a logical site of the nation’s largest immigration enforcement operation: a mere 1.5 percent of its population is undocumented, many of whom are already known to DHS. An ulterior motive is obvious.
On Sunday, Minnesota and the Twin Cities bolstered their lawsuit’s argument by adding a Saturday letter from Attorney General Pam Bondi to the case’s record, which offered to “bring an end to the chaos in Minnesota” if the state hands over to the feds, among other databases, its voter rolls. There’s no rational way to make sense of violence and havoc the Trump administration is inflicting on the Twin Cities as normal immigration enforcement; it only makes sense as punishment upon the entire population for its political preferences. And that’s unconstitutional First Amendment retaliation.
The Fourth Amendment
The Fourth Amendment protects individuals from unreasonable searches and seizures. It would be impossible to list every way federal officials have violated this in Minnesota.
ChongLy Thao, a US citizen, was arrested when ICE broke down his door and entered his home with guns drawn. They refused to look at his identification and dragged him out of his house in underwear, through the snow, and whisked him away. When they realized he was a citizen an hour or two later, they returned him. This is a textbook example of unconstitutional behavior. If you want to breakdown a door, you need a warrant signed by a judge.
“The government doesn’t have a right to go into your house without your consent unless they have a warrant from a judge,” says Jill Hasday, a constitutional law professor at the University of Minnesota Law School.
And yet, DHS has been instructing ICE officers that they can invade people’s homes without a judicial warrant. Last week, the AP reported on a secret DHS memo, closely held and only shown to a small number of high-ranking officials, justifying that new policy. This violates the Fourth Amendment and Supreme Court precedent—which is probably why it took a whistleblower for the public to find out about it.
Unreasonable traffic stops are also banned by the Fourth Amendment. In the case brought by the ICE observers, Judge Menendez found ICE likely violated the Fourth Amendment rights of three plaintiffs when officers stopped their cars after they followed ICE vehicles.
Then there are the Kavanaugh Stops, stops based on a person’s race or ethnicity and named for Justice Brett Kavanaugh because he defended the use of race in ICE stops in a September opinion. There are innumerable accounts of people being detained by ICE for no apparent reason but the color of their skin, including in Minnesota. In a press conference, a local police chief shared that nonwhite off-duty officers were being pulled over by ICE. The result is that nonwhite citizens and legal residents are afraid to leave their homes.
The ceaseless violence ICE uses on both immigrants and protesters also violates the Fourth Amendment.
ICE and CBP are also testing the boundaries of the Fourth Amendment with their use of facial recognition software and data to track people’s locations, learn their identities, addresses, and other key information about them. According to 404 Media, ICE contends that they can circumvent the Fourth Amendment’s warrant requirement if they buy such data from third party companies rather than request it from, for example, AT&T or Verizon. Unless the courts or Congress address this issue, the government will find ever more dystopian ways to use for-profit surveillance tools to circumvent people’s constitutional rights.
The ceaseless violence ICE uses in its encounters with both immigrants and protesters also violates the Fourth Amendment. ICE is smashing windows to pull people out of cars and kneeling on their necks and backs when they detain them, among other violent tactics. “From the Supreme Court’s view, when the police seize you or your property and do so violently, that’s a Fourth Amendment problem where it’s excessive and disproportionate to law enforcement need,” says Gans. “What all the videos circulating show is just a shocking level of violence being meted out that far exceeds any law enforcement interest.”
This would include the killings of Renée Good and Alex Pretti. The officers who pulled the triggers could be charged as murderers under state or federal criminal law, though the Trump administration certainly won’t do that. But constitutionally, explains Gans, these killing of US citizens who did not agree with ICE’s mission would be treated as “an unreasonable use of deadly force” under the Fourth Amendment.
The Fifth Amendment
The Fifth Amendment protects against deprivation of “life, liberty, or property, without due process of law.” The Supreme Court has held that this includes an equal protection guarantee as well. The result is that the Fifth Amendment would also be implicated in Kavanaugh Stops, which are both unreasonable searches and seizures and an equal protection violation.
The Tenth Amendment
The final amendment in the original Bill of Rights stipulates that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” It is, essentially, a guarantee of state sovereignty in areas not given to the federal government. Minnesota, Minneapolis, and St. Paul argue in their suit fighting ICE’s deployment that Operation Metro Surge violates the 10th Amendment, as the federal government has effectively invaded the Twin Cities in order to coerce the state to turn over voter data and to force cooperation with immigration enforcement that the state is not required to give. “They’re trying to hijack the state’s legislative process,” a lawyer with the Minnesota Attorney General’s office told Menendez during a Monday hearing. “They’re trying to get us to turn over voter rolls. What does that have to do [with immigration?] The federal government is attempting to bend the state’s will to its own—and that is not allowed under the Constitution.”
Menendez hasn’t issued a ruling, and it’s unclear if she will accept 10th Amendment arguments. But the federal government does seem to be signaling it is willing to exit Minneapolis in exchange for the surrender ofkey aspects of the state’s sovereignty.
The Fourteenth Amendment
The Fourteenth Amendment, enacted in 1868, guarantees that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As the text says, this was aimed at the states in the aftermath of the Civil War, but the Supreme Court has applied much of its protections to the federal government. The drafters of the 14th Amendment were trying to eradicate state-sponsored violence against Black people—police invading their homes, stealing their property, and hunting them down for violent treatment and even massacre—that have shocking parallels to what is happening to people of color in Minnesota today.
“One of the lessons that you draw from the 14th Amendment is, if you can’t be physically secure in your community, you can’t really enjoy liberty and freedom and all the promises the Constitution provides,” explains Gans. “As we see ICE terrorizing these communities, that lesson is brought home in a really strong way.”
Beyond explicit constitutional violations, the suit brought by Minnesota, Minneapolis, and St. Paul alleges a final breach of our founding document. “There is also a ‘fundamental principle of equal sovereignty’ among States,’” the plaintiffs state. “The Supreme Court has long recognized that our nation ‘was and is a nation of States, equal in power, dignity, and authority,’ and that this ‘constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”
There’s a deep irony in this allegation. It quotes from Shelby County v. Holder, the 2013 decision in which Chief Justice John Roberts rehabilitated the “principle of equal sovereignty” to strike down the 1965 Voting Rights Act requirement that states and other jurisdictions with a history of suppression have changes to voting laws cleared by the Department of Justice. Congress violated this principle because, according to Roberts, the selection of states was no longer tethered to conditions on the ground. Roberts, who has a long history of attacking the VRA, was incorrect about the existing conditions, but held that Congress needed a significant and current justification in order to treat states differently.
Roberts created the equal sovereignty principle for modern times, but its origins actually lie in the court’s infamous Dred Scott decision finding that Black people could never be citizens. In that case, Chief Justice Roger Taney found that empowering Black people as citizens in free states would overrule the equal sovereignty of slave states that denied Black people political power.
Today, Minnesota invokes the idea for opposite purposes: Rather than to stymie the freedom of one race, they seek to wield it to protect nonwhite people. Roberts’ rehabilitation of the equal sovereignty principle remains an untested weapon against Trump’s war on Democratic states. Its success may turn on whether courts will question Trump’s allegations of corruption against Democratic states. It’s certainly not the use Taney or even Roberts envisioned for a principle that many legal scholars see as both bogus and tainted with racial animus. But Roberts breathed fresh life into it nearly 13 years ago, and now the courts—and possibly Roberts himself—are being asked if they really mean it.
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