WASHINGTON, D.C. – Attorney General Karl A. Racine today led a group of 16 attorneys general in filing an amicus brief defending the Illinois Way Forward Act (the “Act”), which prohibits state and local governments from contracting with the federal government to detain individuals for civil immigration violations. Two Illinois counties that want to continue providing their facilities for federal civil immigration detention sued the state to try to block the Act. In a friend-of-the court brief filed in the United States Court of Appeals for the Seventh Circuit, the multistate coalition argues that Illinois’s Act should be upheld because it does not conflict with federal immigration law and because states have the responsibility and authority to exercise law enforcement discretion and use limited resources in ways that they believe best protect public safety. AG Racine previously led a coalition of 18 attorneys general defending a New Jersey policy that limits cooperation between local law enforcement and federal immigration authorities. 
 
“Law enforcement leaders agree that establishing trust with the public helps keep communities safe,” said AG Racine. “Our coalition argues that states have broad authority to implement policies that promote public safety, prevent crime, and facilitate positive interactions between local law enforcement and all residents, regardless of immigration status. That is exactly what Illinois has done by limiting state and local involvement in federal immigration detention.” 

Passed in August 2021, the Act prohibits Illinois state or local government entities from entering into or renewing agreements to house individuals detained for federal civil immigration violations. It also requires Illinois state or local government entities that have such agreements to terminate them. Two Illinois counties, McHenry and Kankakee, have agreements of this kind with the United States Marshals Service that can also be used by U.S. Immigration and Customs Enforcement (“ICE”) for immigration detention purposes. Hoping to keep these agreements, the counties sued Illinois in September 2021. They argued, among other things, that the Act is unconstitutional because it fundamentally conflicts with federal immigration law. A federal district court dismissed the case, concluding that the Act was valid and was not preempted by federal immigration law, which makes state and local cooperation with federal immigration authorities largely voluntary. The counties appealed this decision to the Seventh Circuit. 

In an amicus brief filed in McHenry County v. Raoul, the states collectively argue that federal immigration law does not preempt the Illinois Way Forward Act because:  

• States have broad authority to protect public safety: The coalition argues that states have primary responsibility for protecting public safety within their borders and have broad authority to enact legislation for the public good. This responsibility includes a duty to implement policies that best serve local needs and policy preferences and a duty to determine how best to use limited local resources. Expert analysis and anecdotal evidence suggest that separating local law enforcement and federal immigration enforcement builds community trust while promoting public safety. Thus, states like Illinois are reasonably exercising their power to disentangle the two. 
   
• The Act does not interfere with federal enforcement of immigration law: The states argue that declining to use state and local resources to actively participate in federal civil immigration detention does not create an obstacle to the federal government’s immigration enforcement efforts. In addition, the states explain that although the federal government’s immigration power is broad, it does not divest states of their historic law enforcement discretion simply because the exercise of that discretion may intersect with immigration enforcement.
   
• It is unconstitutional for the federal government to commandeer state resources: The Tenth Amendment of the Constitution enshrines a basic division of power between state and federal governments. This means that the federal government cannot directly order states to use their resources to enforce federal laws. Accordingly, any federal law that purported to force states and localities to participate in federal civil immigration detention would be unconstitutional.

AG Racine is leading today’s friend-of-the-court brief and is joined by state attorneys general from California, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

A copy of the brief is available here.

OAG’s Continued Efforts to Protect Immigrants 
This is OAG’s latest effort to advocate for immigrants in the District and nationwide. In 2020, AG Racine led a coalition of 15 attorneys general supporting New Jersey’s directive when it was challenged in court by the Trump administration. AG Racine also led a multistate coalition in 2018 supporting California’s defense of S.B. 54, a law similar to New Jersey’s directive, against an ultimately unsuccessful challenge from the Trump administration. 

In 2020, AG Racine led multistate coalitions opposing Trump administration efforts to limit asylum protections and double asylum seekers’ wait to legally work. In 2019, the Attorney General led a multistate amicus brief opposing the illegal termination of Temporary Protected Status for Haitian born residents, filed a motion for a preliminary injunction to block DHS’s Public Charge rule from taking effect, and led a multistate amicus brief challenging the Trump administration’s changes to asylum standards in Grace v. Barr. AG Racine also joined with other Attorneys General to prevent attempts to close the Southern border to asylum seekers; stop a cruel family separation policy; fight for hard-working “DREAMers” to stay in the United States; and oppose the “Muslim travel ban,” among numerous other efforts.