Illinois has now joined California and Connecticut in prohibiting federal immigration agents from carrying out “civil arrests” of undocumented immigrants in or near state courthouses. The sanctuary law seems largely symbolic since it also appears unconstitutional. It is hard to understand how a state can prohibit the exercise of federal jurisdiction, at least in the wake of the Civil War.
Gov. JB Pritzker has been escalating his criticisms of ICE and the Trump Administration for months, including comparisons to the Nazis and assertions that democracy is collapsing. The new law, however, crosses the constitutional Rubicon by not only restricting the activities of Immigration and Customs Enforcement (ICE) but also creating a 1,000-foot “buffer zone” outside of buildings.
The law treats courthouses like churches, where suspects can claim sanctuary not only upon entering but also within 1000 feet, unless, of course, ICE disregards the law.
Recently, the chief judge in Cook County issued a similar order with the same prohibition. A few other judges in other states have issued comparable orders.
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The justification for the orders is highly questionable.
The federal government can invoke laws requiring the arrest of certain individuals for immigration violations, including mandatory detention of certain immigrants who are deportable due to criminal convictions or terrorist activities and detention and deportation of immigrants with final removal orders.
The most pressing issue for Illinois is the Supremacy Clause of the United States Constitution, which stipulates: “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.”
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The second issue is the Supreme Court, which has consistently rejected such state authority to dictate federal enforcement or policies. In the 1952 case Harisiades v. Shaughnessy, the high court determined that the federal government has “exclusive” control over “any policy toward aliens.”
Ironically, as I have previously noted, 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 the 2012 case Arizona v. United States, Obama largely succeeded, as 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 dates back to the Nineteenth Century. The Court ruled in the 1893 case Fong Yue Ting v. United States 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.”
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The Illinois law also creates the possibility of suing federal authorities for false imprisonment under state law and it establishes a 1,000-foot radius around any state court, creating safe havens for undocumented immigrants.
Presumably, if you live in an apartment within one of those zones, you could create effective immunity by simply signing a lease. As long as you remain within the specified public areas, you would be protected from civil arrest. With Illinois and other states promoting 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 increase their rents in light of the new immunity benefit.
Remember, if this were constitutional, the state could expand the list of sensitive places from city services to clinics. The result would be a patchwork of safety zones that would be frustrating for federal authorities. Notably, blue states have attempted the same tactic to circumvent Second Amendment rights.
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The legal weaknesses behind these laws is irrelevant for politicians seeking to signal virtue. 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.
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Many states during the desegregation era 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 withdrawing themselves from federal authority and jurisdiction.
Illinois now asserts 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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