Illinois Anti-Detention Law in Peril

October 12, 2021

IRLI shows why court should strike it down

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in an Illinois federal district court showing the deep unconstitutionality of a new Illinois state law banning the operation of privately-operated immigration-detention facilities. A number of Illinois counties with such facilities in them, wishing to stop the release of alien criminals, have sued to stop the law.

As IRLI points out in its brief, the detention of criminal aliens and illegal aliens is called for in numerous provisions of federal immigration law. Indeed, that law imposes on the federal government a statutory duty to arrange for the detention of aliens during the removal process. For decades, the government has done so using facilities operated by private contractors.

By banning this method of enforcement, the Illinois law frustrates the key purpose of Congress that aliens in the removal process be detained. And, IRLI also shows, state laws that frustrate or set up obstacles to the purposes of Congress in federal laws violate the Supremacy Clause of the Constitution, which makes state laws that conflict with federal law null and void.

“Unmistakably, anti-borders political activists passed this law as a way to cripple the enforcement of federal immigration law in Illinois,” said Dale L. Wilcox, executive director and general counsel of IRLI. “And this very purpose and effect is what makes that law unconstitutional. In our balanced system of dual sovereignty, states lack the power to block the federal government from using methods it has lawfully selected to enforce federal law. We hope the court clearly sees this, and upholds the rule of law by striking this ban down.”

The case is McHenry County v. Raoul, No. 21-cv-50342 (N.D. Ill.).