Illinois Reminds AG Bondi That Tenth Amendment Is Still A Thing

Attorney General Pam Bondi is like every prior Trump AG rolled into one. She’s got Bill Barr’s charm, Jeff Sessions’s cheerful ignorance of the law, and Matthew “Mongo” Whittaker’s dedication to physical fitness. As for integrity, well … she’s in a league of her own.

Bondi has steered the Justice Department into a couple of trollsuits against Illinois and New York over the blue states’ refusal to carry out federal immigration regulations. Or as she put it when she announced the suit against New York, the DOJ was “charging” Governor Kathy Hochul and New York Attorney General Letitia James with violating federal immigration law.

“We did it to Illinois, strike one. Strike two is New York. And if you are a state not complying with federal law, you’re next. Get ready,” she snorted.

With respect to Illinois, Bondi is GRRRR SO MAD about state and local ordinances barring law enforcement from holding immigrants on civil detainer warrants and from expending state and municipal resources to detain immigrants at the request of the feds absent a criminal warrant. But, as the Illinois defendants pointed out in their motions to dismiss filed yesterday, it is black letter law that states do not have to support federal law enforcement. Indeed, some of those black letters were written in prior challenges to the very statutes at issue here.

For instance, in 2017, two conservative counties (McHenry and Kankakee) challenged Illinois’s ban on local governments contracting with federal immigration officials to hold immigration detainees. A three-judge panel from the Seventh Circuit, including two Trump appointees, rejected the government’s preemption and intergovernmental immunity claims and tossed the case on Tenth Amendment grounds.

As the state notes in its motion to dismiss, Illinois law hasn’t changed since then. Nor has Congress modified 8 U.S.C. § 1373 and § 1644, the statutes relied on here by the DOJ, much less abolished the Tenth Amendment:

The federal government has failed to identify any “valid statute enacted by Congress” reflecting a “clear and manifest purpose” to conscript Illinois into assisting with federal immigration enforcement. Yes, the federal executive has changed. But there has been no intervening change in federal law that disturbs Illinois’s sovereign choice to opt out of assisting in federal immigration enforcement. And yes, Illinois’s choice may “frustrate” implementation of “[f]ederal schemes,” like the current federal executive’s avowed commitment to conduct the largest mass deportation in American history. But this frustration is not obstacle preemption when the Tenth Amendment protects Illinois’s sovereign right not to cooperate in the President’s schemes.

Bondi’s solution to this problem is to whine in a generalized way that states are “obstructing” federal law by refusing to enforce it themselves. Or perhaps that they are discriminating against the federal government under the intergovernmental immunity doctrine.

But, as Cook County points out in its motion to dismiss, “any contention that
the County Ordinance runs afoul of that doctrine is frivolous, having been foreclosed by binding Seventh Circuit precedent the United States simply ignores.”

All the defendants have asked for a dismissal with prejudice.

The case is before US District Judge Lindsey Jenkins, a Biden appointee. So when she inevitably yeets this dumb turkey into the sun, Bondi can try to save face by claiming it doesn’t count because FAKE NEWS LIBERALS … at least until the Seventh Circuit weighs in. But by then, she’ll have moved on to arresting California for failure to issue free parking permits to ICE or some such idiocy.

US v. Illinois [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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