Illinois has now joined California and Connecticut in barring federal immigration agents from conducting “civil arrests” of illegal aliens in or around state courthouses. The sanctuary law appears largely performative since it also appears unconstitutional. It is difficult to see how a state can bar the exercise of federal jurisdiction, at least after the Civil War.
Gov. JB Pritzker has been ratcheting up the rhetoric against ICE and the Trump Administration for months, including analogies to the Nazis and claims that democracy is dying. The new law, however, crosses the constitutional Rubicon by not only limiting the operation of Immigration and Customs Enforcement (ICE) but also establishing a 1,000-foot “buffer zone” outside of buildings.
The law makes courthouses equivalent to churches, where suspects can claim sanctuary not only when they cross the threshold but also within 1000 feet, unless, of course, ICE ignores the law.
Recently, the chief judge in Cook County issued an order with the same prohibition. A few other judges in other states have issued similar orders.
The authority for the orders is highly dubious.
The federal government can cite laws mandating the arrest of certain individuals for immigration violations. See, e.g., 8 U.S.C. § 1226(c) (mandatory detention of certain aliens who are removable due to criminal convictions or terrorist activities); id. § 1231(a) ( detention and removal of aliens with final orders of removal).
The most immediate problem for Illinois is the Supremacy Clause of the United States Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof[] . . . shall be the supreme Law of the Land[] . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
The second problem is the Supreme Court, which has repeatedly rejected such state authority to dictate federal enforcement or policies. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (the United States has the “exclusive[]” control over “any policy toward aliens”); see also South Carolina v. Baker, 485 U.S. 505, 523 (1988); Mayo v. United States, 319 U.S. 441, 445 (1943).
Ironically, as I have previously pointed out, these blue states will face an unusual authority cited against them: Barack Obama. It was President Obama who went to the Supreme Court to strike down state laws that interfered with federal immigration enforcement (even in assisting that enforcement). In Arizona v. United States, 567 U.S. 387, 394 (2012), he largely prevailed and the Supreme Court affirmed that “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”
This recognized authority goes back to the Nineteenth Century. The Court has ruled that “Congress [has] the right, as it may see fit, to expel aliens of a particular class, or to permit them to remain,” and “has undoubtedly the right . . . to take all proper means to carry out the system which it provides.” Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).
The law also creates the ability to sue federal authorities for false imprisonment under state law.
Keep in mind that the law creates a 1,000-foot circle around any state court, creating safe zones for illegal immigrants.
The provision in the Senate legislation stated:
Section 15.
Civil arrest prohibited; certain locations.
(a) A person duly and in good faith attending a State court proceeding in which the person is a party, a witness, a potential witness, or a court companion of a party, witness, or potential witness is privileged from civil arrest while going to, remaining at, and returning from the court proceeding, including:
(1) at the place of the court proceedings;
(2) within the courthouse building;
(3) on the premises of the courthouse, including parking facilities serving the courthouse;
(4) on any sidewalk, parkway, and street surrounding the courthouse and its premises; and
(5) on any public way within 1,000 feet of the courthouse including a sidewalk, parkway, or street.
Presumably, if you rent an apartment within one of those zones, you would be able to create effective immunity by simply signing a lease. As long as you stay within the specified public areas, you will be protected from civil arrest. With Illinois and other states pushing apps tracking ICE operations, a suspect could step outside onto a sidewalk or public space to claim protection from any civil arrest. It is unclear whether landlords will raise their rents in light of the new immunity amenity.
Keep in mind, if this were constitutional, the state could add to the list of sensitive places from city services to clinics. The result would be a mosaic of safety zones that would be maddening for federal authorities. Notably, blue states have attempted the same tactic to circumvent Second Amendment rights.
The legal infirmities behind these laws is irrelevant for politicians seeking to virtue signal. However, it will come at a real cost for individuals who mistakenly rely on these assurances and assume that they are protected within safe zones.
Many states during the desegregation period challenged federal authority in the fight against civil rights. They also failed.
Of course, the greatest irony is that the two figures who will be cited against this move are the two favorite sons of Illinois who became presidents: Lincoln and Obama. Both reinforced the supremacy of federal jurisdiction.
Indeed, the bill was passed just a couple days before the anniversary of Lincoln’s election as the 16th President of the United States. He then faced states that claimed that they could take the ultimate step of removing themselves from federal authority and jurisdiction.
Illinois now claims the right to dictate where federal authority can be exercised and makes federal authorities liable for violating specified state safe zones.
Good luck with that.
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