The Trump Administration Just Sued IL, Chicago Over State Laws Around Immigration Enforcement

I’m quite certain that by now, a few weeks into the second Trump term, many or most of our readers are already tired of the coverage over the administration’s actions. And if that’s you, your quarrel is not with us. It’s with the administration and its plainly stated strategy of “flooding the zone with shit” in an attempt to overwhelm the people, the press, and every other mechanism for checks and balances on an administration that is so obviously and completely out of control so as to constitute a constitutional emergency. That isn’t some partisan stance, it should be noted. Members on both sides of the aisle are coming to this realization. And it all stems from a presidential administration that either genuinely believes that the office is inherently dictatorial and can fashion law with the stroke of a pen or, by sheer force of will and an absurdly large signature, can make it so thanks to a compliant Congress incapable of asserting its own constitutional power.

But whether enough of the country wants to play make believe that it’s a practical reality, the documented reality in American governance is that federal law is written by Congress, that those laws are subject to the Constitution, and that any authority for laws not enumerated to Congress by that Constitution redounds back to the states. And that basic methodology for governance is going to be tested in a very real way now that the Trump administration has sued both Illinois and the city of Chicago over its so-called “sanctuary laws.”

The Trump administration has filed a lawsuit against Illinois, the City of Chicago and Cook County over its sanctuary status.

The complaint was filed in federal court in Chicago. It names the state, Chicago and Cook County as defendants. Additionally, Gov. Pritzker, Mayor Johnson, CPD Supt. Larry Snelling and Cook County Board President Toni Preckwinkle were also named.

The basis of the Department of Justice lawsuit is that sanctuary status violates the Supremacy Clause of the United States Constitution — which states that federal laws takes precedence over state laws.

Alright, the lawsuit is embedded below, but there’s a lot going on in it. Let’s start with the Supremacy Clause.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This is pretty basic stuff. Put simply, federal law generally supersedes state or municipal law. But, of course, it’s not that simple. This UNC School of Government article does a really nice job of explaining the nuance. A state or local law is in violation of the Supremacy Clause if it does any of three things:

1. Attempts to take over a legal duty that is explicitly enumerated to the federal government by the Constitution.
2. Encroaches in an area of federal law that Congress explicitly intended the states or municipalities to take no action therein
3. Is written in such a way so as to make it impossible to comply with both the federal and local laws at once or if the local law acts as an obstacle to the “full purpose and objectives of Congress.”

This lawsuit for absolute certainty fails at least two and a half of those tests. These laws in Illinois are not about taking any action at all. In fact, they seek only to limit action. Those action limitations can be generally put into two buckets: the collection of any information about immigration status by state and local law enforcement, or the participation in any immigration enforcement by state and local law enforcement, up to and including sharing information about suspects or transferring custody in some situations by local LEOs. That these laws are all about limiting action takes bullets 1 and 2 above completely out of the equation.

The first half of the 3rd bullet is out as well. There is nothing contradictory about any congressional immigration law and these Illinois laws. Instead, the lawsuit focuses on the last bit of that bullet, claiming that these local laws are an obstacle to what Congress was attempting to achieve through federal legislation.

There are a couple of very remarkable things about that claim. For starters, the lawsuit barely lists any actual federal laws. That would seem to be kind of an important thing to note in your lawsuit about the Supremacy Clause. The Lakan Riley Act is in there, sure, but that was just signed into law. Beyond that and a few other oblique references, the suit makes a great deal to do about the executive orders Trump signed shortly after entering into office. Executive orders are not laws, however, and certainly not congressional laws. They carry the force of law if, and only if, they direct the actions of the Executive Branch as to the enforcement of some other congressional law. The administration may well be able to convince a federal court, or SCOTUS, that non-compliance with an EO is a violation of the Supremacy Clause, but I both think they’d be wrong on that and that is by no means a certainty.

And, also remarkably, the parent Illinois law that is at the heart of all of this was signed into law in 2017 by Bruce Rauner. This same Trump administration was in office in 2017, yet no lawsuit was filed at that time. What changed? Rauner is — checks notes — a Republican. Sure, current Governor Pritzker is very much a Democrat, but the laws he passed updating Rauner’s laws were on the margins.

And the ultimate point is what, exactly? Is the idea behind this lawsuit that the courts force state and local law enforcement to take an active role in federal immigration enforcement? We’re saying that the federal government can, in ways big or small, commandeer the personnel of state and municipal LEOs? Not require them to stand aside, mind you, as that’s what the law currently instructs them to do. But to actually compel action from a non-federal actor, all in the absence of a criminal warrant?

I can’t claim to know what the framers of our country had in mind in every last instance, but I’m quite confident that they didn’t intend that.