Constitutional lawyers say a lawsuit the Trump administration filed last week to challenge immigration enforcement policies in Colorado and Denver has little chance of success if the courts follow past rulings in similar cases.

But that may not be the goal, they say.

“By using litigation as a way to inflict pain, one might accomplish policy goals even if you end up losing,” said Martin Katz, a professor who teaches constitutional law at the University of Denver.

The Colorado lawsuit, similar to one launched three months ago against local and state governments in Chicago, was filed Friday in U.S. District Court against Gov. Jared Polis, Attorney General Phil Weiser, Denver Mayor Mike Johnston and other city officials. President Donald Trump’s Department of Justice takes issue with laws at the local and state levels.

Colorado lawmakers have passed three laws in recent years that limit cooperation with U.S. Immigration and Customs Enforcement officers. The most impactful one, passed in 2019, prevents local law enforcement from arresting people because of their immigration status, holding them in jail past their releases to help ICE or providing information about someone’s immigration status.

In 2017, the Denver City Council passed an ordinance with similar limitations, including barring city employees from collecting information on people’s immigration status.

The DOJ’s lawyers primarily argue that the laws and policies violate a keystone clause of the U.S. Constitution.

Under the supremacy clause, if there is a conflict between federal and state governments, judges must prioritize federal laws. But Katz and other constitutional lawyers told The Denver Post that it doesn’t mean states are required to use their own resources to enforce federal laws.

“There is a difference between active interference and failure to help,” Katz said.

Comparisons with marijuana laws

If the Justice Department tries to convince a judge that the state and city laws actively interfere with enforcement, they will face a task that’s “tough, to the point of impossible,” Katz said.

It’s similar to the reason why retailers can sell marijuana in Colorado and many other states, even though it remains federally illegal, said Deep Gulasekaram, a University of Colorado Boulder law professor specializing in constitutional and immigration law.

Legal experts suggested a major goal of the lawsuit is to change the way the courts interpret the supremacy clause.

If a lower court disagrees with earlier rulings and says the local laws do violate the Constitution, such a ruling could result in a challenge making it all the way to the Supreme Court.

The administration also might just be aiming to create fear to deter other local and state governments from adopting similar policies, Katz said.

“No matter what,” he said, “(the lawsuit) is going to cost the city significant time and resources.”