On Wednesday, August 5, 2026, Massachusetts Governor Maura Healey signed The Protect Act, new legislation limiting the powers and access of Immigration and Customs Enforcement (ICE) within the Commonwealth of Massachusetts. The scope of the law is fairly broad, restricting access to schools, daycare centers, hospitals, health centers, nursing homes, and courthouses. This article is going to specifically address the impacts in courthouses and the limits placed on state and municipal police forces. This section of the new legislation specifically codifies limits outlined by the Massachusetts Supreme Judicial Court (SJC) in the Lunn decision. Before we do a deep dive into the legislation we need to spend a bit of time in the weeds of how the Federal government works and the powers invested in it by the United States Constitution.
First, let’s take a look at how ICE works and how they detain people. ICE targets people for detainment in a myriad of ways:
- They randomly stop people often choosing them through racial profiling. The U.S. Supreme Court authorized them to do this.
- They target a specific person based on records that said person is undocumented. This is typically referred to as a “detention order”. Arrests are often made at a person’s place of work or home. It is worth noting that lack of documentation to be in this country is a civil offense, it’s NOT a criminal offense. The difference between the two is a bit vague and complex. This article explains the differences. They key takeaway is that it is NOT a crime to be in the United States without documentation.
- ICE randomly detains people that happen to be present at the time they arrest their target. Again, this is often done through racial profiling.
- An immigration judge issues an arrest warrant and ICE acts on it, detaining the named person. This is a civil arrest warrant. This warrant is part of the powers in Article II of the United States Constitution (more on this later). Immigration courts are part of the agencies that report to the President.
- A judge presiding in a court of law issues a criminal arrest warrant. ICE then detains the person based on the issued warrant. Criminal warrants are rare within ICE enforcement. Lack of documentation is NOT a criminal offense. As a result there also would normally need to be evidence of a criminal offense having been committed for a judge to issue this type of warrant. These warrants are issued under Article III of the Constitution. The difference between an Article II warrant and one under Article III is critical to the Lunn decision and the sections of The Protect Act dealing with courthouses and police powers.
To understand the differences between an Article II warrant (civil) and Article III (criminal) warrant we need to look into the United States Constitution.
There are three branches of our federal government, the legislative, the executive, and the judicial.
Article I of the Constitution defines the legislative branch of the government, consisting of the House of Representatives and the Senate. This branch enacts laws, approves budgets, declares wars, as well as other functions. The Article I branch has no power to enforce the laws. It needs to rely on the executive branch or the judicial branch for enforcement.
Article II establishes the executive branch which defines the powers and limits of the President. The executive branch is empowered with enforcing laws enacted by Congress. For our purposes it’s important to recognize that ICE was created by Congress. The agency was established by Congress and is managed by the President. The agencies controlled and overseen by the President have the power to enforce civil law violations. An example of a civil law enforcement would be fining a company for violations of The Clean Air Act. A common misconception is that the President has the power to enforce criminal law. The executive branch does not have this power. An example is found in what happens to someone who robs a bank or commits a different federal criminal offense. In this case the FBI investigates the crime, gathers evidence, and makes an arrest. The case is then referred to the Department of Justice. Often evidence is presented to a grand jury resulting in an indictment. This leads to a trial in an Article III court. It is the court system, as defined by Article III, that is ultimately charged with enforcing criminal laws.
Article III establishes the Judicial System. This includes trial courts, appeals courts, and the Supreme Court. Trial courts handle the process where, for criminal charges, evidence is provided and a verdict of guilty or not guilty is found. A common misconception is that a person can be found “innocent”. Frankly, the courts do not do this. With a bench trial (the decision is made by the judge) or a jury trial the court decides that there is either enough evidence to convict (a guilty finding) or insufficient evidence for a conviction (not guilty). A not guilty verdict does NOT mean a person is innocent. It is not a finding that the person before the court did not commit the crime. It is an admission by the court that not enough evidence was presented to the court to result in a conviction. The person could indeed be innocent, yet in general the court cannot make this determination.
The appeals courts and the Supreme Court review trial court findings to ensure that the laws are properly followed. The appeals courts and Supreme Court also validate whether proper procedures were followed as well as whether the Constitution, including the Bill of Rights, was applied correctly. There are also processes for reviewing civil law cases. We’ll skip talking about them because for our purposes in understanding The Protect Act what matters is that the Executive Branch (the President and the agencies overseen by him) handle the civil side of the application of law and the Judicial Branch is responsible for adjudicating criminal law.
Jesus David! Did you really need to give us all a headache? Yeah, unfortunately. How our legal systems work is key to understanding the Lunn decision and how The Protect Act works.
The Lunn decision stated that Massachusetts law enforcement officials (this would include the state police and court officials) cannot detain and hold people solely based on ICE detention requests. The included detention requests are civil orders (as outlined above in the Article II section), whether this be requests from ICE officers or an Article II administrative judge. The reasoning behind the decision is that detaining someone with this type of request denies them due process of law. The easiest way to explain “due process” is saying that any actions within the legal system have to follow the rules as written in the laws, the Constitution, and the procedures of the court. The text of the Fifth Amendment defines this right.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)
The critical parts of the amendment are highlighted in bold. So, in short, the opinion of the Massachusetts Supreme Judicial Court was that detaining someone either via an ICE request or an administrative warrant deprives them of their freedom because it does not offer the recourse guaranteed under the Fifth Amendment to the United States Constitution. All this is well and good, but there’s a problem.
Let’s go back to the beginning. Congress (Article I) creates the laws. The Executive (President, Article II) enforces civil laws. The Courts (Article III) determine whether or not the laws, both civil and criminal, are being utilized correctly. In the Lunn case the Massachusetts SJC said that they were not. And here is the problem: the court system has NO power to enforce their decisions. They have very limited powers to enforce penalties if their decisions are not followed (one exception is to hold an individual in “contempt of court”. When this happens fines or jail time may be imposed. Even then, the court relies on the executive branch detain someone). So in brief, the Massachusetts SJC said “You can’t do this” all the while knowing they couldn’t do a damn thing to stop it.
So I’m guessing that you’re wondering why give the courts the power to say something is wrong, outside the law, and leave them with no power to do anything about it? It’s all about the balance of power between the branches of government (how currently out of balance said branches are now is a topic for another time. In short, the President does whatever he wants, Congress says nothing, and the Supreme Court ignores decades of precedent – stare decisis – and lets him do it). Remember, the court system, with the Supreme Court at the top, is the final arbiter of what is legal and Constitutional. There is no immediate recourse once the Supreme Court has made a decision. Decisions can be reversed, and sometimes are, but it takes time, often a very long time. A perfect example is around the idea of “separate but equal”. In 1896 the Supreme Court decided in Plessy v. Ferguson, 163 U.S. 537 that separate but equal was permissible. The case centered around Jim Crow railroad accommodations. Basically the court said the rail cars separating Black people from white people were OK as long as the rail cars provided equal accommodations. They clearly and definitively did not. It took until 1954 in Brown v. Board of Education of Topeka, 347 U.S. 483 for the doctrine of separate but equal to be overturned. One of the first schools to be integrated was in Little Rock, AK. It took then President Eisenhower nationalizing the Arkansas National Guard to enforce the court’s order and ensure the safety of the first Black students attending a previously all white school. The court had no power. They relied on the Executive branch to enforce their decision.
So let’s go back to why it’s best that the court system has no power to enforce their decisions. They key point to remember is that the courts are the last place to determine whether what is happening is legal and Constitutional. There is no other review. What if the court could order, say, the National Guard to occupy Boston during the Boston school desegregation crisis? On the surface that seems like a good thing, empower the courts to enforce their orders. But it also implies that there would be no limits to the power of the court, no check on their ability to impose their will. That’s pretty much what happened in Nazi Germany and in Stalin’s Soviet Union. There were no checks on the powers of those governments. None. And this is why The Protect Act matters.
One last concept to consider: enabling legislation. That’s the key part of the need for The Protect Act. It creates laws to enable enforcement of the Lunn decision. It defines the responsibilities of who enforces these laws and what the accountability is when the law is violated (well, not really, but we’ll get to that in a moment). It does more than implement Lunn. The Protect Act provides the guidelines about how the Lunn decision is to be implemented.
So what does The Protect Act do within the context of the Massachusetts court system. It:
- Defines the scope of a civil arrest
- It defines the area considered to be a “court”. The defined area includes the entire court building, the surrounding property including parking lots and sidewalks. It specifies that the areas included in the definition of a “court” apply to both state owned and leased properties and buildings
- It defines the law enforcement agencies covered in the act.
- It defines who is considered to be a law enforcement officer
These are all key definitions that outline who and what the law applies to. The next sections define what the law does:
- No one defined as a law enforcement officer may make a civil arrest at a courthouse unless documentation has been provided to a judge or judicial magistrate that the targeted individual is also subject to arrest under a criminal warrant. The warrant is presented to a judge or magistrate who must review it.
- Arrests may NOT be made in a courtroom
- Copies of all warrants must be kept by the chief justice of the court
- The court must publish, through various forums including online, by July 1, the records of all warrants and arrests at the court
- Any person detained without following the process as defined by The Protect Act is considered to have been detained under “false imprisonment”
- The Massachusetts Attorney General is empowered to ask a court for relief if the law is violated
- The law clearly states that NO one, no court officer, law enforcement officer, or otherwise is required to “interfere with or assist the actions of a federal official engaged in civil immigration enforcement”.
- The law also states that no law enforcement officer has the ability nor authority to assess whether or not any observed action is out of compliance with The Protect Act.
So what does The Protect Act do in reality? NOT A DAMN THING THAT PROTECTS ANYONE. The Protect Act defines the processes that are allowable and how they are followed. It requires documentation and reporting of allowable detentions. It does nothing to hold ICE accountable for violating the law. The same is true of court officers and personnel. There are no penalties for violation of the act. There is no investigative authority to review cases where the law may have been violated. At its core all this law says is what can be done and how to do it. It does NOTHING to stop actions that are deemed impermissible by Lunn.
So let’s review a scenario, a real life situation that I encountered a couple of weeks ago. I’m part of a group that does monitoring of ICE actions at a local courthouse. We knew that ICE was on site and who they were planning to detain. The targeted individual had posted bail and was expecting to be released. Instead, court personnel took them to a non-public part of the court building, a garage where people in police custody are normally transferred to court custody for their hearings. Court personnel turned said person over to ICE who detained him. Was there a criminal warrant? We have no way of knowing. Would this have been illegal after The Protect Act becomes active? There’s no way to check, no one charged with ensuring that no violations of the law occur. So here’s the reality. The only check on the law is the people like me that show up and document what’s happening at the court. For detentions after the law takes effect we’ll be able to look months later at the report created by the court and see if the arrests we observed are included. If they are then the the detention was legal under the law. If not? Then the law was likely violated. The full Protect Act becomes active in early November. So let’s use this as an example: we observe an arrest at the courthouse on Monday, November 16. Was it legal? Next July we’ll find out. If the arrest is not included in the report from the chief justice then it’s very likely that it was illegal. So what can be done? NOT A DAMN THING. Nothing. Nada. Zilch. In terms of the court system The Protect Act protects NO ONE (well maybe it protects ICE). Whomever was detained has no recourse to fight their detention. By the time we find out that the detention was illegal it’s likely that the targeted person has already been deported.
I’ll throw out one hope: if the detained person has an attorney (hopefully two, one criminal, one immigration) then perhaps questions will be asked when it still matters. I was present for a second detention. While we couldn’t be sure of who was taken, the person we believed to be targeted was not represented by counsel. That means they had NO ONE who can stand up and ask the necessary questions.
I’d like to throw in an important aside, I’m not comfortable with trying to hold ICE accountable through attempting to stop an illegal detention. The Protect Act expressly prohibits intervention. I need to paraphrase Minnesota governor Tim Walz. He was responding to criticism that he wasn’t doing enough to stop ICE’s actions in Minneapolis. He specifically asked if people were suggesting that he start an armed conflict with the federal government. And frankly, it could become exactly that if local law enforcement or court officers attempted to stop ICE from acting illegally.
I’m not writing this to say there is no hope. There is. While The Protect Act does nothing to change ICE behavior in and around courts it does do important things in other areas. A good example is that it requires schools to develop policies outlining how teachers and staff interact with ICE. It prohibits ICE from acting on school grounds and in school buildings. Unfortunately, like in the courts, it creates no power to prevent ICE from acting illegally.
The Protect Act is an important first step, yet it’s exactly that and only that, a first step. There is a lot more work to be done and it’s up to us to pressure the governor and our state lawmakers to continue the work. And it will take pressure. The governor stated that The Protect Act is the strongest legislation passed in any state. It’s not. It took nine years from the Lunn decision before The Protect Act became law. How many people will be hurt, how many will die, if it takes nine more years to strengthen The Protect Act? What are the harms that will occur while we wait for the creation of real enforcement and accountability?
I’m not going to be silent and wait.
Are you?
Resist
The Ugliness is the Hope, but only if we embrace the rage and act.
I dream the impossible because only dreams can make things possible. And when they become possible then they are in our reach to make them real. (inspiration for this came from Sen. Cory Booker and his book Stand)
Resist. Persist. Oppose. Propose. Be the opposition with a proposition.