* Sun-Times…
A Texas-based bus company is suing Chicago, alleging discrimination in a city ordinance that controls where buses can and can’t drop off passengers.
Wynne Transportation, which has brought migrants from Texas to Chicago, filed lawsuit in federal court in Chicago. The company says the city’s rules interfere with interstate commerce.
The mayor’s office said the city doesn’t comment on pending litigation.
The city ordinance seeks to govern how and where buses can stand. Violators risk a $3,000 fine or impoundment of the vehicle.
“No owner or operator of any intercity bus shall use any designated bus stop, bus stand or passenger loading/unloading zone, or any other location, for loading or unloading of passengers, luggage or other goods without first obtaining the approval of the Commissioner,” the ordinance reads.
* Here are some excerpts. Violation of the Supremacy Clause of the U.S. Constitution…
The Supremacy Clause enables Congress to preempt state law. A state law is preempted if Congress: (1) enacts a statute with an express preemption provision; (2) determines that a field must be controlled by its exclusive governance; or (3) when the state law conflicts with federal law. […]
In Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013), an ordinance that required occupancy licenses before renting was deemed to infringe on Congress’s authority over the subject of immigration. The ordinance was seen as forcing undocumented aliens to relocate, which was considered as establishing the city’s own regulations on immigration. The court held that the criminal offense and penalty provisions of the city ordinance and its state judicial review process was preempted by federal immigration laws.
Similarly, the [Chicago] Ordinance is specifically designed to prevent entry of migrants into Chicago by placing stringent requirements and harsh punishments. Therefore, the City of Chicago is creating its own policy and regulations concerning immigration, and hence, violating the Supremacy Clause.
* Violation of the Interstate Commerce Clause of the U.S. Constitution…
The Ordinance interferes with trips from points outside of Illinois, and hence, it is controlled by the Commerce Clause […]
A statute or ordinance that facially applies even-handedly to in-state and out-of- state market participants may violate the Commerce Clause if it burdens interstate commerce by impacting the out-of-state participants more than their in-state counterparts. […]
Similarly, the Ordinance targets the out-of-state unscheduled intercity buses. The stringent limits placed on these buses, coupled with harsh punishment for violation of the Ordinance, are designed to force Plaintiff to use subcontractors within the Chicago-Naperville- Joliet, IL-IN-WI Metropolitan Statistical Area, instead of Texas transportation companies. […]
Additionally, a state law that has an extraterritorial effect violates the Commerce Clause. Therefore, under the Commerce Clause, a state law cannot have the practical effect of controlling conduct beyond the boundaries of the state. […]
The Ordinance punishes the transportation companies working with the State of Texas. Additionally, the Ordinance’s unreasonable permit procedures and its strict arrival time requirements dictate how the transportation companies should arrange their departure date and time in Texas and effectively prohibit cross-country travel. […]
Finally, a regulation cannot impose conditions hampering a right to pursue interstate commerce operations. … Similarly, the Ordinance is hampering Plaintiff’s right to pursue interstate commerce operations by inter alia: (1) creating strict permit procedures, which may result in 32 days delay of a trip; (2) prohibiting operation after business hours; (3) prohibiting operation during weekends; and (4) subjecting Plaintiff to significant fines and seizure of its buses for each violation of the Ordinance.
* Violation of the Equal Protection Clause of the U.S. Constitution…
A. Violation of the Equal Protection rights based on the national origin, alienage, and race of Plaintiff’s passengers.
The Ordinance is intentionally discriminatory based on national origin, alienage, and race and fails the “strict scrutiny” test. Although it may be facially neutral, it has an adverse effect motivated by discriminatory animus and also was applied in an intentionally discriminatory manner. […]
The intentional discrimination is obvious from: (1) the City Council members’ proposed referendums on migrant issues; (2) the purported traffic rules that target only the migrant charter buses; and (3) comments from some city council members such as “[w]e need to set some ground rules on what is acceptable in our city, what we are willing to accept of our new guests, new arrivals.” […]
B. Violation of Plaintiff’s Equal Protection rights due to arbitrary classification.
The Ordinance treats similarly situated persons (bus companies and their passengers) differently. […]
The rules implementing the Ordinance classified the intercity buses into two categories of regularly scheduled and unscheduled intercity buses. The rules then placed stringent limits on the unscheduled intercity buses. The distinction between these two categories of buses is completely arbitrary and unreasonable.
* Violation of the Due Process Clause of the U.S. Constitution…
The Ordinance violates the fundamental right of interstate travel of Plaintiff and its passengers. The Ordinance makes it extremely difficult, if not impossible, for Plaintiff to transport people across state lines from Texas to Chicago and even within Illinois.
* Violation of the Special Legislation Clause of the Illinois Constitution…
An ordinance adopted by the governing body of a city must satisfy the same requirement of reasonableness that is applicable to statutes enacted by the General Assembly.
By classifying the intercity buses into two categories of regularly scheduled and unscheduled intercity buses, and then placing stringent limits on the unscheduled intercity buses, the Ordinance confers upon the scheduled buses a special benefit that is denied to the similarly situated unscheduled buses—by allowing the scheduled buses to operate absent the Ordinance’s burdensome restrictions. This violates the State’s constitutional prohibition on special legislation. […]
The Ordinance infringes on the fundamental right of travel, discriminates in favor of a select group and makes an arbitrary classification between regularly scheduled and unscheduled intercity buses. This violates the Illinois Constitution’s mandate that a general law should be made applicable to both groups.
The Ordinance on its face and/or as applied confers a special benefit or exclusive privilege on intercity buses with regularly scheduled service
Thoughts?
- Nope. - Thursday, Jan 18, 24 @ 7:49 am:
The human trafficking slant to the specific facts of this case distinguishes it from all those other cases which penalized migrants with fines and offenses. This act is meant to protect migrants being exploited by a state government and private profit seeking bus companies. The reply brief will be illuminating.
- Garfield Ridge Guy - Thursday, Jan 18, 24 @ 7:59 am:
The due process and special legislation arguments are throw-ins that have no chance of success, and the supremacy clause and EPC arguments are too cute, but I think the interstate commerce clause argument is a winner. Congress, not local lawmakers, gets to regulate interstate commerce. (None of this is legal advice, of course.)
- Yellow Dog Democrat - Thursday, Jan 18, 24 @ 8:03 am:
Lets throw mud at the wall and see what sticks?
The irony is that the strongest argument that the bus company has is probably the Equal Protection Clause.
The irony of Bus companies, acting on behalf of Governor Greg Abbott, defending the rights of foreign migrants under the US Constitution should be lost on no one.
Every reporter should be asking Governor Abbott whether he agrees with the bus companies that migrants are entitled to the full protection of the US Constitution.
I think the city’s response is pretty simple: its not our fault that Texas is choosing to only dump penniless migrants from Venezuela in Chicago. The statute would be equally applicable if Michigan were dumping penniless migrants from Canada.
- sim1 - Thursday, Jan 18, 24 @ 8:06 am:
Will the next lawsuit claim that truck drivers are legally entitled to dump their freight load anywhere on any public street they like, whenever they like? Because, hey, interstate commerce?
- Yellow Dog Democrat - Thursday, Jan 18, 24 @ 8:11 am:
@Garfield Ridge Guy -
Congress gets to regulate interstate commerce *if they want.*
Just because you are driving an out-of-state vehicle doesnt mean you are exempt from local road ordinances.
In order for a state law to potentially violate the Commerce Clause, it has to disadvantage out-of-state commerce in favor of Illinois commerce. A law that treats Illinois bus companies and Texas bus companies is fine according to prior Court rulings.
Illinois can and has, for example, banned the sale of ephedra within the state, a drug manufactured out-of-state and potentially subject to regulation by the FDA.
- Yellow Dog Democrat - Thursday, Jan 18, 24 @ 8:13 am:
The best argument they have is the Equal Protection Clause.
The irony of Governor Greg Abbott arguing that migrants are entitled to the full protection of the US Constitution should be lost on no one.
- Wheaton Guy - Thursday, Jan 18, 24 @ 8:23 am:
Are any bus companies successfully complying with the regulations?
- Norseman - Thursday, Jan 18, 24 @ 8:28 am:
I don’t have sufficient knowledge of the caselaw in this area to opine on the prospects, but I’m rooting for Abbott to lose.
- Nick - Thursday, Jan 18, 24 @ 8:29 am:
Dormant commerce clause is having quite the year
- Amalia - Thursday, Jan 18, 24 @ 8:37 am:
Legally, no idea. Morally, repugnant, of course. Wynne Transportation, who owns this company? Who are the monsters who assist an evil governor and clearly make money while doing it?
- TheInvisibleMan - Thursday, Jan 18, 24 @ 8:40 am:
@Wheaton Guy
Joliet made up/released a story last week right after they passed their similar ordinance, that they basically gave a bus the side-eye as it pulled in and the bus just moved on to another town.
No ticket was issued to follow up on, and there’s no other evidence to support it happening as the city states, so take that for what it’s worth.
- Red headed step child - Thursday, Jan 18, 24 @ 8:41 am:
Illegal from the get go. You cant target interstate commerce they way they did. I think the mayor knew it but went ahead to try to stem the tide of migrants rolling in. The bills are due and cant be paid.
- pc - Thursday, Jan 18, 24 @ 8:49 am:
regulating unscheduled buses differently than scheduled ones makes sense to me, since an arrival of an unscheduled bus can cause problems. If a bus caravan travels to D.C. for a rally, is it really allowed to park and unload buses the same as if it were a city bus? That would surprise me, but I don’t know the answer. I’m pretty sure there are regulations on unscheduled buses at O’Hare, preventing them from dropping off people wherever they choose.
- Demoralized - Thursday, Jan 18, 24 @ 8:56 am:
==and its strict arrival time requirements dictate how the transportation companies should arrange their departure date and time in Texas and effectively prohibit cross-country travel==
So I guess airplanes can come and go from airports as they please. No worries United. Take off whenever you want and land at whatever airport whenever you want.
These arguments are laughable.
- Nick Name - Thursday, Jan 18, 24 @ 9:01 am:
Abbott had to walk his comments saying he would like to be able to shoot migrants, but sure Chicago is the bad guy.
- Steve - Thursday, Jan 18, 24 @ 9:18 am:
All these laws can be challenged under the Section 1 of 14th Amendment which has made the right to travel an almost core civil right. I wouldn’t want to have to defend these laws in court.
https://constitution.congress.gov/browse/essay/amdt14-S1-8-13-2/ALDE_00000840/
- Anyone Remember - Thursday, Jan 18, 24 @ 9:18 am:
Supremacy Clause? From a Confederate / Jim Crow state? Talk about Irony.
- supplied_demand - Thursday, Jan 18, 24 @ 9:26 am:
==I wouldn’t want to have to defend these laws in court.==
Did these migrants get citizenship? Your link refers to “All persons born or naturalized in the United States”
- Sonny - Thursday, Jan 18, 24 @ 9:32 am:
What a lowlife Chicago attorney taking this case. A lot of gall from the troglodytes down in TX trying to create a legal grounds for cruelty.
- Suburbanon - Thursday, Jan 18, 24 @ 9:34 am:
We need a state law to govern this. House? Senate? Governor?
- are Ya Kiddin’ Me - Thursday, Jan 18, 24 @ 9:35 am:
If the Migrants do not want to go to Chicago & they are “forced or coerced” onto the bus, why not arrest the bus drivers for “kidnapping”?
Probably only have to do it once?
- Gruntled University Employee - Thursday, Jan 18, 24 @ 9:48 am:
I still don’t understand why the ISP isn’t conducting “enhanced” IDOT inspections of these busses. You get DEEP into a bus company’s pocket and they won’t want to play along anymore.
- Biker - Thursday, Jan 18, 24 @ 9:48 am:
There’s a danger in winning this case. 50 Million immigrants in the US today. Let’s not get too prescriptive on who is allowed to be on a bus. Giving homeless people a one way ticket in the winter to somewhere warm is a kindness based on the reality that it’s been freezing for three weeks. The new rule on where buses can drop off is a short term tactic, not a long term solution in spirit or fact. I think we need to reframe this and set up a network of friendly cities and towns that can triage this welcoming center. Some clothes, a meal, and a well planned next destination with coordination is what’s required. There’s more to the world than Chicago, and many cities and towns have resources that haven’t been tapped yet. This is an opportunity to show collaboration and form alliances with like minded leaders. Chicago isn’t a final destination for every new resident anymore than Texas is. Heads up good faith communication is required. Even if we aren’t getting it upstream we can humanize options for immigrants’ next steps and ask for help and for other city and town governments to step up with direct asks. There is a vacuum of leadership here. Someone needs to be the adult and come up with a plan.
- ChicagoVinny - Thursday, Jan 18, 24 @ 9:52 am:
Abbott is skirting the Supremacy Clause by implementing his own state-level immigration policy, taking control of a border area with the Texas State Guard and refusing border access to CBP personnel who were trying to assist migrants who were drowning.
But when it comes to Chicago regulating where and when busloads of people are dropped off, he wants the Supremacy Clause enforced.
- Suburban Mom - Thursday, Jan 18, 24 @ 9:59 am:
“Illinois is interfering in my interstate commerce that consists of human trafficking racial minorities” is only the second-worst lawsuit filed in Chicago this week but it is clearly the most morally repugnant
Someone should make a quiz where you have to guess if a quote is from this filing or from the Dred Scot case.
- lake county democrat - Thursday, Jan 18, 24 @ 10:01 am:
Let’s just say I trust the Northern District of Illinois and, especially, the Seventh Circuit more than I do the Fifth Circuit, which is near-renegade.
- Lincoln Lad - Thursday, Jan 18, 24 @ 10:01 am:
People are being harmed, even are dying in trying to escape bad situations and reach for a better life. People like Abbott treat them worse than animals. Yet… we continue to elect them. It’s not just migrants, it’s women too. I don’t understand it.
- LastModDemStanding - Thursday, Jan 18, 24 @ 10:06 am:
From what I remember from the law school a decade or two ago, interstate commerce clause argument appears to have teeth.
The issue itself is unfortunate, upsetting and political, but folks really have to let the “bUT iTS huMAN tRAFFICKing” angle go. As numerous interviews have proven, migrants have willingly and knowingly boarded buses to go to Chicago. They even sign a waiver.
- Michelle Flaherty - Thursday, Jan 18, 24 @ 10:10 am:
They should have thrown in a Pension Clause claim for the full kitchen sink approach.
- Anyone Remember - Thursday, Jan 18, 24 @ 10:10 am:
“… the Fifth Circuit, which is near-renegade.”
Remember, that circuit initially ruled if you’re on trial, facing the death penalty, and your court appointed lawyer falls asleep during the trial, you have NOT been deprived of effective counsel.
- West Side the Best Side - Thursday, Jan 18, 24 @ 10:10 am:
The right to travel is one thing, the right of, let’s say, the CTA to tell Greyhound you’ve got your own bus station you can’t drop people off at a 151 bus stop is something else. As sim1 noted, a trucker can’t just drop their freight load anywhere they feel like.
- Steve - Thursday, Jan 18, 24 @ 10:15 am:
- a trucker can’t just drop their freight load anywhere they feel like.-
These asylum seekers have been given the right to travel with the blessing of DHS.
- Just Me 2 - Thursday, Jan 18, 24 @ 10:15 am:
Speaking of lawsuits against the Mayor - I would love to see this blog’s readers comment on the lawsuit filed by Kasper against the real estate transfer tax increase referendum.
- Perrid - Thursday, Jan 18, 24 @ 10:18 am:
States and localities have to be able to regulate traffic. I’m sure the lawyers will turn themselves into knots and and make up look like it’s down, but I don’t see how.
But if it does go sideways, maybe a solution would be for all buses just to let the Commissioner or city know their planned unloading spot? Hard to say that giving the city a heads up beforehand is interfering with commerce. That’s a long way down the road, just a thought.
- Demoralized - Thursday, Jan 18, 24 @ 10:24 am:
==which has made the right to travel==
Nobody is taking away the right to travel. They are regulating where and when these drop offs can occur and I do not see how that violates any right. To side with the bus companies here is just ridiculous. But it doesn’t surprise me that you would.
- Demoralized - Thursday, Jan 18, 24 @ 10:25 am:
==These asylum seekers have been given the right to travel ==
And nobody is taking that away you dolt.
- Telly - Thursday, Jan 18, 24 @ 10:34 am:
Greyhound, nor any other bus company, has the right under the Commerce Clause to drop-off or pick-up customers on the Michigan Avenue bridge whenever they feel like it. Local governments have the ability to regulate businesses, even those engaged in interstate commerce, through reasonable zoning ordinances and traffic enforcement laws.
If the city banned migrant buses, I think the bus companies would have a case. But my understanding is the city is merely designating where and when they can drop off passenger. Seems reasonable.
- TheInvisibleMan - Thursday, Jan 18, 24 @ 10:35 am:
“As sim1 noted, a trucker can’t just drop their freight load anywhere they feel like.”
Lots of misinfo here, which is understandable given the emotions.
From a purely legal standpoint, yes a trucker can drop off their load anywhere they want, if the load is able to move on its own after release. Like equipment with wheels, or people. They certainly can’t do a drop and hook and leave a trailer anywhere they want, but that’s not the same thing as a live unload.
Everyone here has probably seen a carrier truck pull off on the side of the road, or even sometimes in the middle of a median, to unload cars at a nearby car dealership.
The reality is these local bus ordinances were created for a specific narrow targeted purpose, but attempted to use a wider-scope of laws to accomplish that - which will by default have unintended consequences beyond the narrow intent. Making it worse are different suburbs are using different justifications and legal citations in their ordinances in attempting to pass these. Some, like Hinsdale and Crest Hill, don’t even have the home rule authority to pass such ordinances but did so anyway.
It’s an ugly game that is being played, but at least one of the challenges in this suit will likely succeed.
We are a nation of laws. Or at least we were. Either we adhere to them, or we don’t. Someone else abusing them doesn’t give carte blanche for everyone else to ignore them because it is unpleasant. Or if it does give everyone carte blanche to do so, then we’ve lost far more than we realize and none of this will matter at all because the eventual outcome of such a choice will be far worse than this.
- low level - Thursday, Jan 18, 24 @ 10:40 am:
Are the migrants being transported paying a fare or obtaining a ticket to come to Chicago? If not, I’m not seeing any commerce taking place.
- TheInvisibleMan - Thursday, Jan 18, 24 @ 10:52 am:
–Are the migrants being transported paying a fare or obtaining a ticket to come to Chicago?–
Yes, they have a valid and paid for ticket with a private and/or chartered bus company.
With funding from the state of Texas, and help from Catholic Charities.
- Demoralized - Thursday, Jan 18, 24 @ 10:58 am:
==and help from Catholic Charities==
That’s a whole other issue. The fact that Catholic Charities is playing a part in moving these people around like cattle. Are they coordinating with the Catholic diocese in Chicago on this or are they just washing their hands of the situation? Gotta love the “Christian love” they are showing.
- Captain Obvious - Thursday, Jan 18, 24 @ 11:22 am:
Inherent in the right to travel is the right to choose a specific destination Demoralized, you dolt.
- low level - Thursday, Jan 18, 24 @ 11:29 am:
If it is found to be interstate commerce, the corporate authorities have it within their rights to regulate it. That is what Chicago has done.
- JS Mill - Thursday, Jan 18, 24 @ 11:46 am:
Pretending that somehow states cannot and do not regulate commerce from outside of their respective states is simply delusional. There are myriad state-level rules and regulations for all varieties of interstate commerce from traffic laws to insurance requirements to regulations on what may or not be sold.
What the communities are doing is not preventing commerce. No one has flat out outlawed these buses as far as I can tell.
But @Chicagoi Vinny really nails the usual yet galling hypocrisy from the far right abbott…
=But when it comes to Chicago regulating where and when busloads of people are dropped off, he wants the Supremacy Clause enforced.=
This is more toddler level “I want what I want” from the Texas governor. Unshocking.
- Rich Miller - Thursday, Jan 18, 24 @ 12:00 pm:
===There are myriad state-level rules and regulations for all varieties of interstate commerce===
Your examples are specifically exempted by Congress.
- Phineas - Thursday, Jan 18, 24 @ 12:45 pm:
Great question — who is Wynne? Not surprisingly-
.. historically part of a large oil and gas family
.. family also founded Six Flags theme parks
.. was part of Dallas Cowboys ownership group
.. received $75MM+ from Texas government to ship migrants north (https://abc13.com/texas-bus-migrants-bussing-to-other-cities-wynne-transportation-sanctuary/13889625/)
Will be interesting to see if they get any blowback outside of TX for this…
- Give Us Barabbas - Thursday, Jan 18, 24 @ 12:50 pm:
I think the best play is that it’s a safety regulation. Hard to argue it’s unsafe to randomly drop long distance inter city passengers in a place where they can’t get immediate shelter, in dangerously cold conditions or exceptionally hot conditions without water, or even restrooms. The fact Texas paused the busses during the subzero cold snap should prove safety is vital.
- DuPage - Thursday, Jan 18, 24 @ 12:56 pm:
@- Gruntled University Employee - Thursday, Jan 18, 24 @ 9:48 am:
===I still don’t understand why the ISP isn’t conducting “enhanced” IDOT inspections of these busses. You get DEEP into a bus company’s pocket and they won’t want to play along anymore.===
Are you suggesting misusing the ISP to harass and write unwarranted tickets/fines against the busses?
- Jocko - Thursday, Jan 18, 24 @ 12:59 pm:
==The Ordinance interferes with trips from points outside of Illinois==
Trips? Trips implies people who have settled in one area visiting another for business or pleasure. These bus companies are deliberately relocating refugees without informing them of their rights.
- Gruntled University Employee - Thursday, Jan 18, 24 @ 1:26 pm:
==Are you suggesting misusing the ISP to harass and write unwarranted tickets/fines against the busses? ==
Yes, exactly.
- Demoralized - Thursday, Jan 18, 24 @ 1:57 pm:
Hey @Captain Oblivious - nobody is telling them they cant’ come to Chicago. They are being given guidelines on when and where they can be dropped off. I guess that’s a hard concept for you and your ilk to understand.
- Anonymous - Thursday, Jan 18, 24 @ 1:57 pm:
Hopefully the plaintiff will countersue.
Charter buses are highly regulated–busloads of holiday shoppers from Iowa and Indiana can’t get dropped off & picked up on Michigan Avenue, they have dedicated zones on the side streets.
The Dave Matthews band bus got in trouble for emptying out its bilge tank off the Michigan Avenue bridge. Health and safety can be regulated.
- DuPage - Thursday, Jan 18, 24 @ 3:44 pm:
@- Gruntled University Employee - Thursday, Jan 18, 24 @ 1:26 pm:
==Are you suggesting misusing the ISP to harass and write unwarranted tickets/fines against the busses? ==
==Yes, exactly.==
Abuse of police authority is absolutely not something that should be done.
- Give Us Barabbas - Thursday, Jan 18, 24 @ 3:50 pm:
The nerve of O’Hare; telling pilots where they can drop their passengers. The passengers have a constitutional right to jump out over McHenry if they want. Government overreach blah blah blah…
- Rich Miller - Thursday, Jan 18, 24 @ 3:52 pm:
===The nerve of O’Hare; telling pilots where they can drop their passengers===
For the umpteenth time, Congress has allowed states and localities some specific control over interstate commerce. But what hasn’t been allowed ain’t allowed. That’s the argument.
- Duck Duck Goose - Thursday, Jan 18, 24 @ 4:43 pm:
The supremacy clause applies only if a state or local law conflicts with a federal law. No federal law regulates bus stops in Chicago.
The due-process clause and equal-protection clauses apply only if fundamental rights are at issue. There is no fundamental right to operate a livery service.
The dormant commerce clause is unlikely to be affected. The ordinance does not facially implicate interstate commerce. The plaintiffs would have to show that the ordinance unreasonably affects out-of-state busses more than in-state busses. Nothing in the ordinance does so.
The Illinois supreme court has held that laws regulating vehicles for hire do not constitute special legislation.