MCHENRY COUNTY and KANKAKEE COUNTY, Plaintiffs-Appellants, v. KWAME RAOUL, in his official capacity as Illinois Attorney General, Defendant-Appellee.
No. 21-3334
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 18, 2022 — DECIDED AUGUST 9, 2022
Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:21-cv-50341 — Philip G. Reinhard, Judge.
In 2021, the State of Illinois passed a law prohibiting State agencies and political subdivisions from contracting with the federal government to house immigration detainees. Two Illinois counties challenge the law, arguing that it is preempted by federal immigration statutes and that it violates the doctrine of intergovernmental immunity. The district court rejected those arguments and granted the State‘s motion to dismiss for failure to state a claim. We affirm. The Illinois law is a permissible exercise of the State‘s broad authority over its political subdivisions within our system of dual sovereignty.
I. Factual and Procedural Background
The plaintiffs’ constitutional challenges invoke several federal statutes addressing immigration detention. One provides that the Attorney General of the United States “shall arrange for appropriate places of detention” for immigration detainees being held “pending removal or a decision on removal.”
to enter into a cooperative agreement with any State, territory, or political subdivision thereof, for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention services in any State or unit of local government which agrees to provide guaranteed bed space for persons detained by [Immigration and Customs Enforcement (ICE)].
Plaintiffs McHenry County and Kankakee County are political subdivisions of Illinois. For years, both had agreements with the federal government to house persons detained by federal immigration authorities. The Counties agreed to “accept and provide for the secure custody, safekeeping, housing, subsistence and care of Federal detainees.” Those detainees included “individuals who are awaiting a hearing on their immigration status or deportation.” Both agreements were terminable by either party for any reason with thirty days’ notice. The Counties collected millions of dollars in revenue by providing detention services under these agreements.
In August 2021, the State passed the Illinois Way Forward Act. The Act amended an existing law prohibiting State and local officials from enforcing federal civil immigration law. As relevant here, the Act provides that neither law enforcement agencies and officials nor “any unit of State or local government may enter into or renew any contract … to house or detain individuals for federal civil immigration violations.”
The Counties filed a complaint in the Northern District of Illinois alleging that the Act is preempted by federal law and violates principles of intergovernmental immunity. The district court concluded that the Counties’ preemption argument
The Counties then asked this court for an emergency injunction or stay. We temporarily stayed enforcement of the Act against these plaintiffs, briefly extending the deadline for the Counties to exercise the termination provisions until January 13, 2022. After expedited briefing on the stay question, we denied any further stay, concluding on January 12, 2022 that the Counties had failed to show a strong likelihood of success on the merits and that none of the other stay factors weighed in their favor. McHenry County v. Raoul, No. 21-3334, 2022 WL 636643, at *1 (7th Cir. Jan. 12, 2022).
On January 13, 2022, the Counties gave their thirty-day notice of termination to the federal government. Briefing and oral argument in this appeal followed. We now reject the preemption and intergovernmental immunity challenges and affirm the judgment of the district court.
First, the Counties argue that the Act is preempted by federal law. We review that legal question de novo, without deferring to the district court‘s decision. Nelson v. Great Lakes Educational Loan Services, Inc., 928 F.3d 639, 642 (7th Cir. 2019).
Preemption doctrine stems from the Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.”
The Supreme Court has recognized “three different types of preemption—‘conflict,’ ‘express,’ and ‘field.‘” Murphy, 138 S. Ct. at 1480. All three, however, “work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.” Id. In analyzing a preemption claim, “the purpose of Congress is the ultimate touchstone.” Wyeth v. Levine, 555 U.S. 555, 565 (2009), quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
A. Murphy v. NCAA
The State‘s threshold preemption argument rests on the Supreme Court‘s decision in Murphy. There, a federal statute made it unlawful for any State or political subdivision to authorize sports gambling. After concluding that the statute violated the anticommandeering doctrine, the Court turned to the federal government‘s preemption argument. The Court announced a broad rule that a valid preemption provision “must be best read as one that regulates private actors.” 138 S. Ct. at 1479. After providing some examples of preemption, the Court reiterated that “every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.” Id. at 1481. The provision at issue, however, neither conferred any federal rights nor imposed any federal restrictions on private actors. It could be understood only as “a direct command to the States.” Id. As a result, the federal government‘s preemption argument failed.
Relying on Murphy, the district court here rejected the Counties’ preemption argument because
The Counties apparently concede that
We take the Counties’ point, but we are reluctant to endorse their argument that Murphy did not really mean what it
In the end, however, we need not map the precise limits of Murphy‘s preemption holding. Even setting aside the threshold argument that
B. Field Preemption
The Counties argue that the Act is invalid as a matter of field preemption. States may not regulate conduct “in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.”
The federal government “has broad, undoubted power over the subject of immigration.” Arizona, 567 U.S. at 394. That authority derives from its “constitutional power to ‘establish an uniform Rule of Naturalization,’
The Counties assert that the federal government has occupied the field of detaining and housing noncitizens, thereby preempting State regulation. That argument, however, finds no support in the text of the federal statutes on which the Counties rely. By its terms,
The Counties emphasize the use of the term “or” in the statutory language authorizing a cooperative agreement with any “State, territory, or political subdivision thereof.”
This argument loads far too much weight onto the word “or,” particularly since this is national legislation that must be written to apply in every State, many of which leave this choice up to local governments. Unlike States, political subdivisions such as counties “never were and never have been considered as sovereign entities.” Ysursa v. Pocatello Education Ass‘n, 555 U.S. 353, 362 (2009), quoting Reynolds v. Sims, 377 U.S. 533, 575 (1964); see also
Instead, under the federal Constitution, political subdivisions “have been traditionally regarded as subordinate governmental instrumentalities.” Reynolds, 377 U.S. at 575. They serve as “convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.” Nixon v. Missouri Municipal League, 541 U.S. 125, 140 (2004), quoting Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991). As a result, we operate under a “working assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own governments should be treated with great skepticism, and read in a way that preserves a State‘s chosen disposition of its own power, in the absence of the plain statement Gregory requires.” Id., citing Gregory v. Ashcroft, 501 U.S. 452 (1991). We agree with the district court that neither “or” nor anything else in
Nor does
The Fifth Circuit‘s decision in City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018), illustrates the flaw in the Counties’ field preemption argument. There, the policy preferences of State and local governments were a mirror image of this case. A Texas law prohibited local entities from adopting any policy that restricted cooperation in federal immigration enforcement. Several cities and counties challenged the State law on preemption grounds. Those plaintiffs pointed to myriad provisions of federal law regulating local cooperation in the sphere of immigration enforcement. The Fifth Circuit held, however, that those provisions fell far short of establishing field preemption: “Federal law regulates how local entities may cooperate in immigration enforcement; [this State law] specifies whether they cooperate.” Id. at 177. None of the federal statutes cited by the plaintiffs evinced any congressional intent “to prevent states from regulating whether their localities cooperate in immigration enforcement.” Id. at 178. The same logic applies here. The Illinois Act is not field preempted.
The Counties also argue that the Act is invalid as a matter of conflict preemption (sometimes referred to as “obstacle” preemption). That doctrine includes “cases where compliance with both federal and state regulations is a physical impossibility and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 567 U.S. at 399 (internal citation and quotation marks omitted). The Counties do not assert any physical impossibility, so the issue is whether the Act obstructs congressional purposes. That inquiry is “a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000). To succeed, the Counties “must show that applying the state law would do ‘major damage’ to clear and substantial federal interests.” C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541, 547 (7th Cir. 2020).
According to the Counties,
Again, however, these federal statutes simply cannot support the Counties’ argument. The text of
The Ninth Circuit addressed a similar issue in United States v. California, 921 F.3d 865 (9th Cir. 2019). One California law at issue in that case limited the ability of State and local officers to cooperate in federal immigration enforcement. The United States argued that the law was preempted because it obstructed federal immigration statutes. The Ninth Circuit rejected that argument, noting that “the specter of the anticommandeering rule distinguishes the case before us from the preemption cases on which the United States relies.” Id. at 888. The relevant federal statutes provided “states and localities the option, not the requirement, of assisting federal
Exactly the same is true here. In drafting
III. The Intergovernmental Immunity Challenge
The Counties’ other argument is that the Act violates principles of intergovernmental immunity. Again, we review that question of law de novo. Nelson, 928 F.3d at 642.
The intergovernmental immunity doctrine dates to the canonical federalism decision in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), where the Supreme Court declared unconstitutional Maryland‘s attempt to single out the Bank of the United States for a tax. Today, the doctrine prohibits “state laws that either ‘regulat[e] the United States directly or discriminat[e] against the Federal Government or those with
A. Direct Regulation
States may not regulate the federal government directly. North Dakota, 495 U.S. at 434 (plurality opinion). A direct regulation might arise where a State law or regulation “places a prohibition on the Federal Government.” Hancock v. Train, 426 U.S. 167, 180 (1976), quoting Public Utilities Comm‘n v. United States, 355 U.S. 534, 544 (1958); see also Penn Dairies, Inc. v. Milk Control Comm‘n, 318 U.S. 261, 270 (1943) (noting that state regulation at issue “imposes no prohibition on the national government or its officers“). Or a State might attempt to impose a tax “directly upon the United States.” United States v. New Mexico, 455 U.S. 720, 733 (1982), quoting Mayo v. United States, 319 U.S. 441, 447 (1943).
That is not what the Illinois Act does. It imposes no direct regulation on any federal official or agency. The challenged provision says only that a “law enforcement agency, law enforcement official, or … unit of State or local government” may not enter into or maintain a cooperative agreement for immigration detention.
B. Discriminatory Treatment
Nor does the Illinois Act discriminate against the federal government or its contractors. States may not single those parties out “for less favorable ‘treatment‘” or regulate them “unfavorably on some basis related to their governmental ‘status.‘” Washington, 142 S. Ct. at 1984, quoting first Washington v. United States, 460 U.S. 536, 546 (1983), and then quoting North Dakota, 495 U.S. at 438 (plurality opinion). But a State law is not unconstitutional merely because it increases costs for the federal government, “so long as the law imposes those costs in a neutral, nondiscriminatory way.” Id.
The Illinois Act, by contrast, does not discriminate against the federal government. As explained above, the government still may house immigration detainees in its own facilities or those of private entities. Nor does the Act discriminate among political subdivisions: all counties and other local entities are subject to the same restrictions. And they may continue to provide detention services to the federal government for other detainees. Nothing in the Act suggests that the federal government or its contractors have been singled out “for less favorable ‘treatment.‘” 142 S. Ct. at 1984 (citation omitted).
To the extent the Counties argue that the Act discriminates against the federal government because it affects an exclusively federal domain, that argument also fails. Differential treatment is critical to a discrimination-based intergovernmental immunity claim. See Washington, 460 U.S. at 544–45 (“The State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.“); cf. North Dakota, 495 U.S. at
Finally, the Counties rely on GEO Group, Inc. v. Newsom, 15 F.4th 919 (9th Cir. 2021), vacated and rehearing en banc granted, 31 F.4th 1109 (9th Cir. 2022), but that case highlights the weakness of the discrimination argument here. The California statute in GEO Group included a general prohibition on operating private detention facilities. The statute carved out several exemptions for private state prisons—without comparable exemptions for federal facilities. California, the court concluded, was “the only meaningfully ‘favored class‘” under
* * *
Both the preemption and intergovernmental immunity challenges fail as a matter of law. The district court properly granted the motion to dismiss the action for failure to state a claim.
AFFIRMED.