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Illinois Counties Fail in Challenge to State Statutory Ban on ICE Detention Contracts

by Matt Clarke

In a decision handed down on December 6, 2021, a federal court in Illinois decided that the Constitution’s proscription against the federal government’s efforts to “commandeer” functions that rightfully belong to individual states outweighs the “supremacy clause” of Article VI, which makes federal law “the supreme law of the land.”

In its decision, the federal court for the Western District of Illinois dismissed with prejudice a challenge mounted by two counties to the state’s Way Forward Act, 5 ILCS 805 5/15(g), which prohibits state or local governmental entities in the Land of Lincoln from contracting to house federal immigration detainees as of January 1, 2022, by which date notice was also required to be given to terminate existing contracts within 30 days.

The new law, signed by Gov. J.B. Pritzker (D) on December 7, 2021, amended 5 ILCS 805/1, the Illinois TRUST Act, which is a state statute barring state and local law enforcement from enforcing federal immigration law. With it, Illinois has now joined Oregon as the only states prohibiting immigration detention within their borders.

A much broader law passed by California lawmakers to outlaw all private prisons in the state was struck down by a three-judge panel of the Ninth Circuit appellate court in October 2021, a decision now awaiting rehearing by the full court en banc. [See: PLN, Apr. 2022, p.50.]

The two Illinois counties— McHenry and Kankakee—had contracts with federal Immigration and Customs Enforcement (ICE) to house immigrant detainees in their county jails. By November 2021, Kankakee County had a daily average of 101 ICE detainees, while McHenry County was averaging 35.

After the law was passed, the two counties filed suit against state Attorney General Kwame Raoul (D), arguing the new law violated the “supremacy clause” in Article VI of the U.S. Constitution by usurping the federal government’s prerogative to enter into such contracts. As federal contractors, the counties argued, they enjoyed immunity from the law, too. Raoul filed a motion to dismiss.

Taking up the case then, the Court began by noting that the authority of the United States to enter into intergovernmental ICE contracts is governed by 8 U.S.C. § 1103(a)(ll)(B). Citing the Ninth Circuit’s opinion in the relevant case there, GEO Group, Inc. v. Newsom, 15 F.4th 919 (9th Cir. 2021), the Court observed that “the text and structure of § 1103 suggest … that the provision is about federalism—specifically the anticommandeering doctrine—and not about specific detention operations.”

The Court noted that in Murphy v. NCAA, 138 S.Ct. 1461 (2018), the U.S. Supreme Court recognized “three different types of preemption—‘conflict,’ ‘express,’ and ‘field’—but all of them work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or restrictions that conflict with the federal law; and therefore, the federal law takes precedence and the state law is preempted.”

But “every form of preemption is based on a federal law that regulates the conduct of private actors, not the States,” the Court continued, concluding there was no preemption possible in a case involving a law made by a state, like this one. Thus, the Court said the Illinois act did not violate the federal government’s intergovernmental immunity.

The Court also noted that the legislature had the power to pass laws that bind counties because counties are subordinate to states. “States are sovereigns. Counties are not,” the Court noted. It therefore dismissed the lawsuit with prejudice. See: McHenry Cty. v. Raoul, 2021 U.S. Dist. LEXIS 232855 (N.D. Ill.).

Advocates for immigrants cheered the decision, noting that the overwhelming majority of immigration detainees are not criminals and should not be held in jails. A study of close to 3 million immigration cases by UCLA School of Law researchers showed that the vast majority of undetained immigrants in deportation proceedings showed up for all of their court dates.

The counties have taken their case to the U.S. Court of Appeals for the Seventh Circuit, which issued a temporary stay of the law’s implementation on December 30, 2021, but decided to let it to lapse on January 13, 2022, when it cited Nken v. Holder, 556 U.S. 418 (2009) to find the counties “have not made a ‘strong showing’ that they are likely to succeed on the merits.” See: McHenry Cty. v. Raoul, 2022 U.S. App. LEXIS 6097 (7th Cir.).

The Seventh Circuit heard arguments in the case on May 18, 2022. PLN will report that decision when it is reached. See: McHenry Cty. v. Raoul, USCA (7th Cir.), Case No. 21-3334. 


Additional source: Injustice Watch


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Related legal case

McHenry Cty. v. Raoul