A McHenry County attorney this week argued before federal appellate judges that the Illinois law that emptied the county’s jail of immigration detainees was unconstitutional and should be overturned.
A 7th U.S. Circuit Court of Appeals three-judge panel now will decide whether to reverse the lower court’s decision that upheld the state law, called the Illinois Way Forward Act, which prohibited counties from contracting with the federal government to house immigration detainees.
If McHenry County – which along with Kankakee County filed the legal challenge in September – is successful, the McHenry County Board could pursue another contract with the federal government to house U.S. Immigration and Customs Enforcement detainees.
The County Board “extensively debated” whether to keep its contract before deciding the benefits to county residents outweighed the costs, McHenry County Assistant State’s Attorney Jana Blake Dickson said.
Because of that, she told federal judges Wednesday that she thought the “McHenry County Board would seriously reconsider having ICE detainees back in the jail” if the law is overturned.
The panel back in January, however, said it thought “the counties have not made a ‘strong showing’ that they are likely to succeed on the merits” and declined to extend the stay that prevented the Illinois Way Forward Act’s prohibition from taking effect.
McHenry and Kankakee counties argue that the law violates the U.S. Constitution by seeking to “directly regulate” the federal government, Dickson said.
“This is a direct regulation of the federal government via regulation of its contractors,” she said. “In the state’s brief, they talk about how, well, worst-case scenario, it just makes it more expensive for the federal government. Making it more expensive is a direct regulation of the federal government.”
Under the 10th Amendment, states have the right not to participate in federal programs, said Deputy Solicitor General Alex Hemmer with Illinois Attorney General’s Office.
If the counties’ argument stands, “it would be impossible for a state to decline to help the federal government without discriminating against it,” Hemmer said.
The state argues that the counties are political subdivisions of the state and so it has the power to say the counties can’t participate either, but Dickson said the counties have a right under the Illinois Constitution to cooperate with the federal government.
“Are you asking us to enforce the Illinois Constitution here?” Circuit Judge David F. Hamilton asked Dickson.
“I am pointing out that our power, the county’s power to contract with the federal government is derived from the Illinois Constitution, not from the Illinois Legislature,” she responded.
“So you think the law violates the Illinois Constitution?” Hamilton said, adding later, “You understand, we have no business telling Illinois that it has passed a law that violates the Illinois Constitution.”