7th Circuit Court of Appeals upholds state law banning counties from entering into contracts with ICE

McHenry County chairman said he was ‘disappointed’ with outcome

Inmates watch as activists held a candlelight march to the front of the McHenry County Correctional Facility the evening of Wednesday, Dec. 29, 2021. The event was arranged by the Coalition to Cancel the ICE Contract in McHenry County.

A federal court has upheld a previous ruling that said McHenry County could not enter into a contract with the federal government to house immigration detainees.

The decision upholds a state law passed last year, the Illinois Way Forward Act, that barred counties from entering into such agreements. In response, both McHenry and Kankakee counties filed a joint federal lawsuit in September to challenge the law.

A 7th U.S. Circuit Court of Appeals, in a three-judge panel Tuesday, rejected the county’s arguments that the state law contradicted the federal government.

Those arguments from the counties challenged the law on a variety of grounds, including whether it superseded the federal government’s authority by banning county’s from entering into such contracts with the federal Immigration and Customs Enforcement Agency, also called ICE.

McHenry County Jail

Part of the argument involved citing the U.S. Attorney General’s power to enter into cooperative agreements with state and local governments to house ICE detainees.

The court said Illinois’ law did not contradict with that, saying the federal government still has the power to house detainees at its own facilities. But the state still reserves the power to remove its own facilities from that list, the ruling states.

“The [Illinois Way Forward Act] directly regulates only State and local entities and law enforcement — not the federal government,” the ruling states.

McHenry County State’s Attorney Patrick Kenneally could not be reached Friday for comment on whether the county would continue to appeal.

McHenry County Board Chairman Mike Buehler, R-Crystal Lake, said Friday he was disappointed with the outcome. Buehler said his main issue stemmed from the loss of revenue from the contract.

“We’ve been preparing for this for about a year now,” Buehler said. “We’ve made adjustments to our budget accordingly and it’s going to present some challenges.”

County Board member John Collins, D-Crystal Lake, said he felt Tuesday’s ruling was the right one. He noted the case law cited in the ruling that reaffirmed the decision.

The contract between ICE and the county paid the county based on the number of detainees kept each day, which some years totaled more than $9 million in revenue. In 2021, that number dropped to $3.6 million.

Detainees haven’t been in the jail since February. As a result of the law passed last year, the county began preparing its budgets both this year and last without planning for revenue from the contract.

“I looked at [these challenges] as a waste of time,” Collins said. “I think it was a political stunt on behalf of the county and state’s attorney to gin up some issues over it.”

In December, a district court also ruled in favor of the state law, dismissing the county’s lawsuit. The law, passed in August 2021, required counties to stop housing detainees by Jan. 1.

The county in response asked for a stay on the order while the appeal was decided on. A stay was ordered, but only until Jan. 13.