44 F.4th 581
7th Cir.2022Background:
- In 2021 Illinois enacted the Way Forward Act, forbidding state or local units from entering into or renewing contracts to house or detain individuals for federal civil immigration violations and requiring termination of existing such contracts by a statutory deadline.
- McHenry County and Kankakee County, which previously contracted with the federal government to house immigration detainees and received substantial revenue, sued the State challenging the Act as preempted and as violating intergovernmental immunity.
- Relevant federal provisions: 8 U.S.C. § 1103(a)(11)(B) authorizes the Attorney General to enter cooperative agreements with States or political subdivisions for detention bed space; 8 U.S.C. § 1231(g) directs the AG to arrange appropriate places of detention and to consider existing facilities before building new ones.
- The district court dismissed the Counties’ complaint under Rule 12(b)(6); the Seventh Circuit briefly stayed enforcement for the plaintiffs, then denied a further stay and heard expedited appeal.
- The Seventh Circuit affirmed dismissal, holding the Illinois statute is neither preempted (field or conflict) by federal immigration statutes nor in violation of intergovernmental immunity.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption—threshold (Murphy) | Federal immigration statutes displace state law governing detention contracts | Murphy requires preemption provisions to regulate private actors; cited statutes don’t | Court declined to rest on threshold but found preemption claims fail on merits |
| Field preemption | Congress occupied the field of immigration detention, so States may not bar local cooperation | Statutes authorize voluntary cooperative agreements and contemplate State/local choice | No field preemption; statutes leave room for State regulation of its subdivisions |
| Conflict (obstacle) preemption | Illinois law frustrates Congress’s objective to use existing facilities and cooperative agreements | Statutes express preferences ("consider" existing facilities; authorize agreements) not mandates | No conflict preemption; State refusal to cooperate is not an obstacle to federal purpose |
| Intergovernmental immunity (direct regulation / discrimination) | The Act directly regulates federal operations or discriminates against the federal government/contractors | The Act regulates only State/local entities neutrally; federal government can use federal or private facilities | No violation: Act does not directly regulate or discriminatorily burden the federal government |
Key Cases Cited:
- Murphy v. NCAA, 138 S. Ct. 1461 (Sup. Ct.) (preemption analysis requires federal law that regulates private actors)
- Arizona v. United States, 567 U.S. 387 (Sup. Ct.) (federal supremacy over immigration but States retain important interests)
- R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (Sup. Ct.) (field preemption requires a statute so comprehensive it leaves no room for state law)
- Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U.S. 256 (Sup. Ct.) (Spending Clause context where federal condition preempted contrary state law)
- City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir.) (state law deciding whether localities cooperate is distinct from federal regulation of cooperation)
- United States v. California, 921 F.3d 865 (9th Cir.) (federal statutes give option, not obligation, to States and localities)
- United States v. Washington, 142 S. Ct. 1976 (Sup. Ct.) (intergovernmental immunity forbids direct regulation or discriminatory treatment of federal government/contractors)
- North Dakota v. United States, 495 U.S. 423 (Sup. Ct.) (intergovernmental immunity principles distinguishing regulation of suppliers versus direct government regulation)
- McCulloch v. Maryland, 17 U.S. 316 (4 Wheat.) (foundational source of the intergovernmental immunity doctrine)