JONATHAN TURLEY: Why blue states’ new anti-ICE laws are unconstitutional virtue signaling
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 1,000 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.
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The authority for the orders is highly dubious.
The federal government can cite laws mandating the arrest of certain individuals for immigration violations, including mandatory detention of certain aliens who are removable due to criminal convictions or terrorist activities and detention and removal of aliens with final orders of removal.
The most immediate problem for Illinois is the supremacy clause of the U,S. Constitution, which states: “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.”
The second problem is the Supreme Court, which has repeatedly rejected such state authority to dictate federal enforcement or policies. In the 1952 c ase Harisiades v. Shaughnessy, the high court found that the federal government has the “exclusive” control over “any policy toward aliens.”
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 the 2012 case Arizona v. United States, Obama largely prevailed, 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 goes back to the 19th 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 ability to sue federal authorities for false imprisonment under state law and it creates a 1,000-foot circle around any state court, creating safe zones for illegal immigrants.
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 would 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.
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The legal infirmities behind these laws are 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.
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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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