CHICAGO (CN) — A pair of right-leaning Illinois counties came before the Seventh Circuit on Wednesday morning, hoping the appellate court would clear the way for them to resume their lucrative immigrant detention deals with the federal government.
Those deals, struck with McHenry and Kankakee counties, which both straddle the border between the urban Chicagoland area and the rural Illinois hinterlands, allowed the federal government to hold immigration detainees in the counties' public jails in exchange for a per-detainee fee.
The Office of Immigration and Customs Enforcement's predecessor, the Immigration and Naturalization Service, first reached the deal with McHenry County in 2003, and with Kankakee County in 2004. For almost two decades, the counties profited off holding the immigrants in their jails to the tune of between $4 and $8 million annually.
That profit stream dried up in August 2021, when the Democrat-controlled Illinois Legislature adopted the Illinois Way Forward Act with the liberal Governor J.B. Pritzker's blessing. The statute prohibits Illinois law enforcement from enforcing federal immigration policies and from arresting or detaining individuals based solely on their immigration status. It also bars local governments from entering into or maintaining any agreements with federal bodies - like ICE - to detain individuals for violations of federal immigration law.
While immigrant rights activists championed the legislation as a triumph, the majority-white and conservative-leaning pair of counties saw canceling their contracts with ICE as a major loss of revenue. The counties sued the state of Illinois in federal court in late 2021, arguing the Way Forward Act is a violation of the U.S. Constitution's supremacy clause, which establishes that state law and government is, with some exceptions, subordinate to federal law and government.
"The Illinois Way Forward Act directly regulates federal operations by restricting the United States' ability to enter into agreements with local governments to house immigration detainees. [The Act] therefore violates the federal government's intergovernmental immunity and is unconstitutional and invalid as applied to the [counties'] agreements," the counties' complaint stated.
U.S. District Judge Philip Reinhard, a George H.W. Bush appointee based in Rockford, disagreed with this assertion and dismissed the suit last December.
"While it is true that only the federal government is responsible for immigration detention, the federal government can only house those detainees in the facilities of a state or a state’s political subdivision via a cooperative agreement... and the state has the authority to determine whether it or any of its political subdivisions may enter or remain in such agreements," Reinhard wrote in his dismissal. "The state of Illinois, by legislative act, has decided that its political subdivisions may not enter or remain in such agreements. The act, therefore, does not violate the federal government’s intergovernmental immunity."
Now appealing that decision, McHenry County Assistant State’s Attorney Jana Dickson avoided the morality questions involved with the legislation on Wednesday morning. Instead she told the Seventh Circuit's three-member panel of appellate judges that the Way Forward Act violates the federal government's supremacy by regulating its ability to reach deals with specific local governing bodies.
"Here, the counties argue that the intergovernmental immunity violation that is occurring is the fact that the Illinois Way Forward Act seeks to directly regulate the federal government, which it does. These [detainee] contracts only affect the counties who have contracts with the federal government," Dickson said.
Dickson pointed to a recent Ninth Circuit decision in the California case Geo Group v. Newsom to bolster her point. In that case, the San Francisco-based appeals court held that the 2019 California law AB 32, which bans private and for-profit prisons in the state and prohibits contractors from working with the federal government to house immigration detainees, violated the U.S. Constitution.
"AB 32 cannot stand because it conflicts with this federal power and discretion given to the secretary in an area that remains in the exclusive realm of the federal government," the Ninth Circuit panel wrote in its October 2021 decision. "It bars the secretary [of the Department of Homeland Security] from doing what federal immigration law explicitly permits him or her to do."
However, this panel decision was vacated in April and the Ninth Circuit will rehear the case en banc, complicating both the California case and Dickson's argument at the Seventh Circuit.
U.S. Circuit Judge David Hamilton, a Barack Obama appointee, noted this on Wednesday morning, as well as the fact that unlike the private jails in California, the Illinois jails in question are publicly owned by state bodies. He asked Dickson if this meant the counties effectively wanted the Seventh Circuit to enforce their interpretation of the state constitution.
"So you think the law violates the Illinois Constitution?" Hamilton asked.
"I think that... because the Illinois Way Forward Act is an unconstitutional law, that the Illinois Legislature cannot use an unconstitutional law to circumvent the power that is given to the counties through the Illinois Constitution," Dickson said.
Hamilton remained unconvinced.
"Excuse me, but that sounds very circular to me... you understand, we have no business telling Illinois that it has passed a law that violates the Illinois Constitution," the judge said, while the two other members of the appellate panel - U.S. Circuit Judges Michael Brennan and Thomas Kirsch, both Donald Trump appointees - both murmured in agreement.
The panel was much more sympathetic to the arguments put forward by Illinois Deputy Solicitor General Alex Hemmer. He also avoided moral arguments, basing his defense of the Way Forward Act - and the district court's decision to uphold it - on the 10th Amendment of the U.S. Constitution. The amendment establishes that individual states have autonomy separate from the federal government, and gives them leeway in their level of cooperation with federal law enforcement.
"The 10th Amendment entitles states to decide whether to assist the federal government in implementing federal law," Hemmer said. "Accepting either [counties'] claim would require Illinois... to continue to participate in a federal program it has decided to withdraw from. That result cannot be squared with the 10th Amendment."
He also contradicted Dickson's argument that the Way Forward Act regulates the federal government.
"A regulation of a federal contractor is not the same as a direct regulation of the federal government. Otherwise, states would lose their authority all together to regulate businesses that contract with the federal government," Hemmer said.
Hamilton also questioned whether private prisons would have more of a case than publicly owned jails. Hemmer mostly waved the judge's question off, saying that hypothetical was not before the court today.
Dickson, in her closing remarks, said it would make no difference.
"It doesn't matter that we're not private actors in that scenario. The only way the state can win on that is if you accept the 10th Amendment argument... because this is a regulation of the federal government, and only the federal government, in an activity that they exclusively do," she said.
The appellate panel took the attorneys' arguments under advisement but did not say when they would issue a ruling.
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