The worst Supreme Court case you’ve never heard of, and what it tells us about Trump’s immigration enforcement

Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.

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Their names do not appear in the caption of Prigg v. Pennsylvania, but Margaret and Jerry Morgan were at the center of the case. In 1837, the Morgans lived with their children in York County, Pennsylvania. Jerry was a free Black man, and Margaret had always lived as a free Black woman both in Maryland, the slave state where she was born, and in Pennsylvania, a free state, where she later moved with Jerry.

Nonetheless, in 1837, slavecatchers from Maryland – Edward Prigg and three other men – came for Margaret and her family. Under the authority of the federal Fugitive Slave Act of 1793, slavecatchers often entered free states and abducted those they claimed were escaped enslaved people, some of whom were in fact free Black people. In response, Pennsylvania and other free states passed what were known as “personal liberty laws.” The Pennsylvania law, which figures in Prigg, required that before removing an alleged slave from the state, slavecatchers had to go before a state magistrate to establish their right to take that person.

Prigg and his co-conspirators initially took the entire Morgan family before a state magistrate in Pennsylvania. The magistrate declined to approve their removal, perhaps because Jerry was unquestionably a free man and because the legal status of Margaret and her children was at least open to debate. (Margaret’s parents had been owned by a Maryland man, but he allowed them to live as free people.) Undeterred, Prigg and his compatriots went to the Morgan home when Jerry was out and abducted the rest of the family, taking them to Maryland.

Pennsylvania prosecuted Prigg for violating its personal liberty law. The Supreme Court, however, in an opinion by Justice Joseph Story, struck down the law. Under the Constitution’s fugitive slave clause, the court held, states had no power to impose restrictions on how slaveowners reclaimed their human property, other than to prevent “breach of the peace or any illegal violence.” In other words, Black people living anywhere in the country, including free Black people in free states, were continually in danger of being violently abducted into slavery, and Prigg prevented their own states from protecting them.

We don’t know what happened to Margaret and her children. Neither did Jerry, although he tried desperately to find them. The horror and brutality of American slavery stand alone. But reading the news today, I am repeatedly reminded of Prigg and its larger historical context.

Start with this image, reportedly of a man weeping in the parking lot outside a Chicago-area ICE facility because his wife had been taken by immigration enforcement. He couldn’t find her: her phone was off, and no one inside would talk to him. I cannot look at that picture without thinking of Jerry Morgan.

And that man is not alone. There are numerous reports of families literally torn apart by immigration enforcement – married couples, with one partner a U.S. citizen, attending what they thought were routine interviews with immigration services; nursing mothers separated from their infants; parents and children separated in detention; and parents of children with life-threatening illnesses taken from their bedsides or forced to choose between leaving them alone in the U.S. or taking them to a country where they are unlikely to receive appropriate medical care.

We can only surmise how widespread these stories are and increasingly will be. Approximately 6 million children, about 82% of whom are U.S. citizens, have a parent who is an unauthorized immigrant, and over 14 million U.S. citizens or legal permanent residents share a home with an unauthorized immigrant. The administration reportedly set a quota of 3,000 detentions a day. As a result, people, who have been living here peacefully with their families, sometimes for decades, sometimes from childhood, are seized by armed and masked men, and often denied the opportunity to establish their identities, their immigration status, or their right to be in the country; to use whatever process might allow them to stay; to put their affairs in order; or even to say good-bye to their loved ones. Sometimes, and often with no apparent explanation, they are seized as they leave required appearances in immigration courtrooms or appointments with immigration services. The government sometimes holds these people incommunicado and moves them around the country, making them hard to find and even harder to protect legally. These actions devastate families, communities, and businesses, and spread massive fear. One does not have to equate immigration enforcement to slavery to recognize the inhumanity of what is occurring.

Moreover, just as Prigg left all Black people unprotected from slavecatchers, current immigration enforcement turns race or ethnicity into suspicion. President Donald Trump himself has ordered immigration enforcement to focus on the Somali community in Minneapolis-St. Paul, calling Somali immigrants “garbage.” In places like Chicago, Charlotte, and New Orleans, federal agents seek out people who appear Latino. The administration defends its use of a person’s apparent Hispanic ethnicity and use of Spanish, along with their location (such as a bus stop or Home Depot parking lot), and the type of work in which they are apparently engaged, as providing “reasonable suspicion” that they are illegally present in the United States. (Justice Brett Kavanaugh endorsed that reasoning in a solo concurrence in Noem v. Perdomo Vasquez, in which he credulously claimed that U.S. citizens and legally present noncitizens would be only “briefly detained” long enough to establish their status.) This conduct leads to U.S. citizens being detained, sometimes for extended periods and sometimes repeatedly. And there are reports that federal agents refuse to accept documentation of some people’s citizenship or legal status, just as free Black people’s status was often ignored.

Federal agents have also been shockingly violent towards those they detain and towards protesters, observers, and bystanders. As Judge Sara Ellis in the Northern District of Illinois found, immigration enforcement agents engaged in “Operation Midway Blitz” in Chicago fired pepper balls at unarmed protesters and journalists, threw tear gas into crowds and even into cars without warning, and beat observers and protesters. (The U.S. Court of Appeals for the 7th Circuit stayed Ellis’ injunction, but not because they doubted her factfinding.) Federal agents break people’s car windows and drag them through the street. They tackle people, sometimes breaking their bones. Federal agents in Chicago rappelled into an apartment building in the middle of the night, pulling everyone who lived there out of their homes without warrants. Agents point guns at unarmed individuals, and in Chicago, shot two people, one of whom died. Videos and other reports of violent interactions abound from all over the country. Only blocks from my home, federal agents slammed a bystander to the ground and held him down despite his difficulty breathing. The laws that ordinarily, if imperfectly, protect people from this kind of violence are not deterring immigration enforcement agents – just as states could not stop such violence against Black people after Prigg.

The violence and dehumanization do not stop there, however. Detainees report being housed in filthy and overcrowded spaces, without access to the most basic needs like medical care, adequate food, bedding or even space to lie down, showers and hygiene products, and working toilets. Detainees are pressured to sign “voluntary” deportation papers, without access to a lawyer, under threats of various kinds, and without being able to read the papers, which are often only in English. At some facilities and during some deportations, detainees are being tortured. The Trump administration has deported people to countries where they are likely to be tortured or to countries that will in turn deport them to such places.

And as in Prigg, the legal processes theoretically available to protect the rights of at least some people are deeply flawed. There is no right to representation by a lawyer in immigration court; many people – including extremely young children – appear without a lawyer. There has long been plenty of tragedy, inhumanity, and breathtaking unfairness in immigration law, including in Supreme Court cases construing it. And immigrant-rights activists have been reporting on inhumane raids for years. But now, due process protections are even flimsier. The immigration court system is part of the Department of Justice, meaning that “the boss of the prosecutor” is “the boss of the judge.” And despite a backlog of about 3.8 million cases, the Trump administration is firing large numbers of immigration judges, largely targeting those who are themselves immigrants or who grant asylum at above-average rates. It is also looking to replace them, while sending a clear message about what it expects new immigration judges to do. In a post on X, for example, U.S. Secretary of Homeland Security Kristi Noem invited “legal professionals” to apply to become “a Deportation Judge to restore integrity and honor to our Nation’s Immigration Court system.” An official DOJ recruitment page uses the same language. (There is in fact no such job as “deportation judge” in the federal government.)

We don’t know yet to what extent the Supreme Court will back the Trump administration’s actions, although, on the shadow docket, it has already allowed some to proceed. If the court squarely upholds the destruction of families, absurdly violent enforcement tactics, and mistreatment of detainees, it will rely on careful parsing of immigration statutes, valorization of executive power, and claims of judicial restraint. It will embrace a constitutional vision that offers no protection to millions of American families and treats due process and other constitutional rights as privileges available only to some. And it will refuse to attribute any legal significance to the fact that all of this is being carried out by an administration that regularly and unashamedly uses white supremacist language and images.

Whatever the Supreme Court does, however, Prigg and its aftermath may also offer a more inspiring parallel for the rest of us. Community mutual aid among free Black people, those who escaped from slavery, and some white abolitionists was widespread and often very effective. In Boston, for example, where there was a large and long-established Black community, slavecatcher watches alerted people to danger. Groups of community members would surround the slavecatchers, sometimes driving them away or rescuing those they were attempting to abduct. All over the North, anti-slavery activists sometimes surrounded jails where alleged escapees were held, demanding their release. Even after Prigg, some northern states continued to pass laws to protect Black people. Those laws might be struck down, but their existence sent a strong message about those states’ views about slavery.

Today, there is comparable mutual aid and activism in cities around the country, and states are passing laws designed to address some of the excesses of current immigration enforcement. We are all now seeing the deep flaws of immigration law play out at a new scale, with gleeful brutality, and with unabashed racism. And it turns out that, like many in the 19th century, lots of us don’t like what we are seeing. I offer this parallel not as a Pollyannish prediction of a quick happy ending – which did not happen after Prigg. (The Fugitive Slave Act of 1850, Dred Scott, and the Civil War were all still to come.) I offer it to point out that blowing whistles when federal agents appear, filming their actions, and offering support to the loved ones of those who have been abducted are acts not only of protest and solidarity, but also of constitutional vision and commitment, much like the constitutional vision and commitment that motivated abolitionists of all races and that led to the Reconstruction Amendments.