* Isabel posted this story earlier today…

Illinois‘ attorney general is urging a federal judge to toss out a lawsuit filed by the Trump administration over the state’s sanctuary protections for undocumented immigrants, arguing that the federal government cannot “coerce” states to enforce federal immigration policy.

* As AG Kwame Raoul’s filing notes, this very issue has been adjudicated twice before…

Both the TRUST Act and the Way Forward Act have been the subject of prior preemption and intergovernmental immunity challenges, each of which failed. First, a group of Illinois sheriffs challenged the TRUST Act’s prohibition on complying with civil immigration detainers, alleging it conflicted with federal law. Judge Johnston of this district dismissed their claims, holding that the sheriffs lacked standing because the TRUST Act did not require them to do anything prohibited by federal law. Because “ICE detainers are not compulsory” under federal law, he concluded, the sheriffs “do not violate federal law by complying with the Illinois TRUST Act. ” Prim v. Raoul, No. 3:20-cv-50094, 2021 WL 214641, at *3 (N.D. Ill. Jan. 21, 2021).

Next, following the adoption of the Way Forward Act, two Illinois counties with existing agreements to house detainees for federal civil immigration enforcement in their jails challenged the Act’s termination of those agreements. The counties claimed federal immigration statutes authorizing cooperative detention agreements preempted the new Illinois law, and that forbidding Illinois counties from having such agreements improperly regulated the federal government. Judge Reinhard of this district dismissed their claims. McHenry County v. Raoul, 574 F. Supp. 3d 571 (N.D. Ill. 2021) (“McHenry County I”). He first concluded that the federal statutes at issue did not regulate private actors, and therefore, under Murphy v. NCAA, 584 U.S. 453 (2018), could not be a basis for preemption. 574 F. Supp. 3d at 578-79. In rejecting the counties’ intergovernmental immunity claims, Judge Reinhard further concluded that the federal statute authorizing cooperative detention agreements, 8 U.S.C. § 1103(a)(11)(B), “leaves to the State the decision whether it or any of its political subdivisions enter, or remain in” them. 574 F. Supp. 3d at 581-82.

The Seventh Circuit affirmed, reasoning primarily that the cooperative, non-compulsory nature of the applicable federal statutes provided no support for plaintiffs’ claims. McHenry County v. Raoul, 44 F.4th 581 (7th Cir. 2022) (“McHenry County II”). Agreeing with a prior Fifth Circuit decision, City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018), and a Ninth Circuit decision, United States v. California, 921 F.3d 865 (9th Cir. 2019), the Seventh Circuit concluded that federal law gives “states and localities the option, not the requirement, of assisting federal immigration authorities.” McHenry County II, 44 F.4th at 592 (quoting California, 921 F.3d at 889); accord El Cenizo, 890 F.3d at 177. Further, because the Tenth Amendment precludes federal commandeering of state and local law enforcement, the federal government could not require Illinois’s cooperation in federal civil immigration enforcement. McHenry County II, 44 F.4th at 592. McHenry County II continues to be controlling precedent in the Seventh Circuit.

* More excerpts…

Consistent with the Tenth Amendment, federal law preserves Illinois’s sovereign right to opt out of assisting federal immigration agents with their civil immigration enforcement responsibilities. That is what Illinois has done through its statutes, the TRUST Act and the Way Forward Act. 2 In asserting that federal law preempts these state laws, the complaint systematically mistakes federal immigration agents’ preferences for legal obligations. What federal immigration agents may want Illinois law enforcement to do is not the same as what federal law requires. […]

Plaintiff asserts that the TRUST Act is an obstacle to federal immigration enforcement that must yield to the supremacy of federal law. Plaintiff is wrong as a matter of both constitutional and statutory law. The anticommandeering principle derived from the Tenth Amendment limits what Congress may compel states to do in enforcing federal immigration law, and the statutes Plaintiff cites reflect those limits. See Murphy, 584 U.S. at 480 (“a direct command to the States” is “exactly what the anticommandeering rule does not allow”). No federal statute preempts the TRUST Act. […]

The federal government has failed to identify any “valid statute enacted by Congress” reflecting a “clear and manifest purpose” to conscript Illinois into assisting with federal immigration enforcement. Kansas, 589 U.S. at 202; Arizona, 567 U.S. at 400 (quoting Rice, 331 U.S. at 230). Yes, the federal executive has changed. But there has been no intervening change in federal law that disturbs Illinois’s sovereign choice to opt out of assisting in federal immigration enforcement. And yes, Illinois’s choice may “frustrate” implementation of “[f]ederal schemes,” like the current federal executive’s avowed commitment to conduct the largest mass deportation in American history. California, 921 F.3d at 890. But this frustration is not obstacle preemption when the Tenth Amendment protects Illinois’s sovereign right not to cooperate in the President’s schemes. […]

The complaint cites federal regulations that belie any suggestion that Illinois law enforcement officers must detain noncitizens when presented with detainers or administrative warrants. Compl. ¶ 33 (quoting 8 C.F.R. § 287.7(a)). The type of “immigration detainer” that federal immigration agents use to seek custody of individuals detained by state and local law enforcement is explicitly described in federal regulations as a “request,” not a mandate. 8 C.F.R. § 287.7(a). That is why federal courts—including in this district—have repeatedly and uniformly held that immigration detainers are requests that may be declined. […]

When the prior Trump Administration attempted to withhold federal grant funds from Chicago because its ordinance excluded federal immigration agents from local lock-ups, the Seventh Circuit, rejecting the claim, distinguished between “refusal . . . to aid in civil immigration enforcement” and “affirmative interference.”

There’s lots more, so go read the rest before you pop off in comments. Thanks.