The human toll of Donald Trump’s ICE enforcement surge has been immense. In cities like Chicago, Los Angeles, Memphis, and Minneapolis, heavily armed federal agents have flooded neighborhoods, executing and beating residents, terrorizing schools, churches, parks, and other community spaces, and detaining people without charge in remote facilities where access to counsel is delayed or denied. Agents have explicitly relied on racial profiling to target anyone they pass, while stalking and threatening legal monitors who document their illegal activity. Even when federal judges have issued orders for ICE to end illegal tactics and provide constitutionally-required due process, agents and officials have openly defied them.

Yet even in cases involving death or severe injury, few agents have been held accountable. The Trump Department of Justice has intervened to halt federal investigations of officers and stonewalled those by state and local police. Local prosecutors have shown marked hesitance to bring criminal charges as well, wary of jurisdictional fights and political backlash. Average residents have proven much more ready to confront ICE lawlessness in the streets, but when they escalate legally and sue in federal court, victims face a wall: the sweeping immunity doctrines that shield federal agents from damages claims. Together, prosecutorial reluctance and judge-made federal immunities leave those harmed by ICE with vanishingly few avenues for redress, even when they are willing to endure years of litigation. However, advocates and law professors have argued that states have tools available to them to protect their people and open avenues for justice. Finally, some have started to answer the call.

For decades, civil rights advocates and law professors have warned that when federal immigration agents violate constitutional rights, meaningful accountability is out of reach. In theory, the Fourth and Fifth Amendments constrain ICE just as they constrain local police, but in reality, the people harmed by federal officers are often shut out of court entirely. The reason is Bivens v. Six Unknown Named Agents—or more precisely, what has become of it. Decided in 1971, Bivens recognized an implied cause of action for damages against federal officers who violate the Constitution. It functioned for a time as the federal analogue to Section 1983, the Reconstruction-era statute that allows suits against state and local officials. Bivens arose out of an unconstitutional search and physical violence by federal agents and set the expectation that victims of lawlessness like what is on display in communities across the country today could hold their persecutors accountable.

That promise did not survive the modern conservative Supreme Court. Under Chief Justice John Roberts, the Court has steadily narrowed Bivens to the brink of extinction. In Ziglar v. Abbasi, the justices warned lower courts against extending Bivens to any “new context,” instructing them to defer to Congress almost reflexively. Five years later, Egbert v. Boule slammed the door nearly shut, holding that even modest factual differences can render a claim impermissibly “new”—especially in cases implicating national security or immigration.

The through line in these decisions is unmistakable. A conservative majority, skeptical of implied rights of action and solicitous of executive power, has transformed Bivens from a living remedy into what many scholars now call a dead letter. The Court insists that creating damages remedies is Congress’s job, but Congress has not acted. The result is a rights-without-remedies regime in which federal officers can violate the Constitution and victims are told that the courthouse is not the proper venue for complaint.

This doctrinal retrenchment would be troubling under any administration, but During Trump’s second term, it has taken on urgent significance. ICE arrests have surged, interior enforcement has intensified, and increasingly aggressive tactics have produced violent encounters in multiple states. Despite the killings and brutality of the last year, no ICE agents have been sued in their individual capacities in federal court because of the near impossibility of success. However, after growing calls from organizers and advocates, some states have finally begun to open avenues to bring agents to some sort of justice. With federal courts denying any remedy, states are creating their own.

In December 2025, Illinois enacted the “Illinois Bivens Act,” which established a state-law cause of action allowing individuals to sue federal officers in state court for constitutional violations committed within Illinois. The statute authorizes compensatory and punitive monetary damages for victims, provides for attorneys’ fees to incentivize lawyers to bring cases, and bars defendants from invoking federal qualified immunity as a defense to state constitutional claims. In practical terms, a Chicago resident alleging harm from an unlawful ICE raid could file suit in state court under Illinois law, seek discovery to expose agency practices, and present claims to a jury, just as if the defendant were a local police officer.

The California Senate has passed legislation dubbed the “No Kings Act,” a pointed rebuke to the idea that federal officers operate beyond meaningful accountability. The proposal would create a state-law cause of action allowing individuals to sue federal agents in California state court for violations of rights secured by the U.S. and California Constitutions. The bill provides similar remedies to the Illinois Bivens Act, while explicitly eliminating the availability of federal qualified immunity defenses in these state-law actions, placing federal officers on the same footing as local police sued under state civil rights statutes. 

In Minnesota, lawmakers have introduced the Minnesota Constitutional Remedies Act, a measure modeled in significant respects on the Illinois Bivens Act and No Kings Act. Like those bills, the proposal would create an explicit state-law cause of action allowing individuals to sue federal officers in Minnesota state court for violations of rights secured by the U.S. or Minnesota Constitutions. Additionally, alongside that broader constitutional remedy, legislators have advanced a companion bill establishing specific state tort claims for defined categories of misconduct by federal agents, including excessive force, unlawful searches and seizures, false arrest, prolonged detention without legal process, and failure to render medical aid after use-of-force incidents. The tort-focused measure is designed to give plaintiffs clearly delineated causes of action grounded in traditional state common-law principles, while the Constitutional Remedies Act supplies a more general vehicle for vindicating constitutional violations.

Several other states like Connecticut, Colorado, and New York are also considering proposals similar to the Illinois Bivens Act, learning from and adjusting to the challenges faced in other states. To prevent legal challenges aimed at narrow applicability or intrusion on federal prerogatives, the bills do not target ICE specifically or regulate immigration policy itself but instead provide remedies when any federal officer exceeds constitutional bounds while operating within the states’ territories. Paired with other initiatives like state bans on law enforcement cooperation with ICE, prohibitions on ICE activity around sensitive locations like polling places and places of worship, and the new Fight Against Federal Overreach (FAFO) task force of local prosecutors coordinating on prosecutions of federal agents, creating avenues for personal, financial accountability for ICE agents could provide a strong curb on violence and other abuses.

However, constitutional challenges from the administration are inevitable, and the DOJ has already sued for a permanent injunction of the Illinois Bivens Act. Its argument relies on Article VI’s Supremacy Clause, which declares federal law the “supreme law of the land.” The Supreme Court has long held that states may not criminally prosecute or civilly penalize federal officers for conduct authorized by federal law and necessary to federal functions. However, this principle protects federal agencies from hostile state intervention into its lawful operations.

The Supremacy Clause does not mean that the federal executive can do whatever it wants by waving around a “supreme law of the land card.” The clause shields lawful acts undertaken pursuant to valid federal authority. Unconstitutional conduct, by definition, is not authorized, and law professors have argued for decades that states can take action against federal abuses, regardless of the status of Bivens. States advancing these new statutes argue that they are not regulating immigration policy or obstructing federal operations. There is no supremacy interest in shielding murders, beatings, warrantless home invasions, or racially discriminatory sweeps.

The debate echoes earlier constitutional struggles. In the nineteenth century, states invoked their sovereign authority to resist federal overreach—from personal liberty laws challenging the Fugitive Slave Act to Reconstruction-era efforts to enforce civil rights when federal protection faltered. Having only just thrown off King George III, the Founders themselves were keenly focused on designing state governments capable of defending against federal tyranny. States are not mere administrative subdivisions of the country. They are independent entities that retain broad police powers to protect the health, safety, and rights of people within their borders, so long as they do not directly contradict valid federal law. The

The moral argument runs parallel to the legal one. A constitutional system that recognizes rights but supplies no remedy invites abuse. The administration knows this and continues to tell federal agents that they have “absolute immunity,” extinguishing any sense of restraint in the name of at least personal consequences. If federal courts decline to enforce damages claims and Congress refuses to legislate, states can claim both authority and obligation to fill the gap. Federal supremacy was never meant to license executive lawlessness.

The Roberts Court has already unleashed extreme executive abuse through its conservatives’ adherence to the unitary executive theory, and it is entirely possible that the same majority that narrowed Bivens may view these statutes as end-runs around its preferences. However, the legal argument is strong that, absent express congressional preemption, state courts remain open to adjudicating constitutional torts against federal officers. The political argument is necessary to highlight ongoing federal abuse—and make no mistake, courts are political battlegrounds just as much as they are legal ones. And at the end of the day, states have an obligation to do everything they can to protect their residents.