MсHENRY COUNTY and KANKAKEE COUNTY v. KWAME RAOUL, in his official capacity as Illinois Attorney General
No. 21-3334
United States Court of Appeals For the Seventh Circuit
August 9, 2022
ARGUED MAY 18, 2022
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:21-cv-50341 — Philip G. Reinhard, Judge.
Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.
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 statutеs 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 failed at the outset because the federal statutes at issue did not regulate private conduct. McHenry County v. Raoul, No. 21 C 50341, — F. Supp. 3d —, 2021 WL 5769526, at *5–6 (N.D. Ill. Dec. 6, 2021). And even under an analysis of field and conflict preemption, the court said, the Act was not invalid. Id. at *6–7. The court also rejected the intergovernmental immunity argument, holding that the Act “does not directly regulate the federal government nor discriminate against the federal government or the plaintiffs.” Id. at *8. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court also denied the Counties’ motion to enjoin enforcement of the Act pending appeal. McHenry County v. Raoul, No. 21 C 50341, 2021 WL 8344241, at *1 (N.D. Ill. Dec. 27, 2021).
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 thе 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.
II. The Preemption Challenge
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).
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).
The Counties argue that the Illinois Act is invalid under principles of field and conflict preemption. The State disagrees on both grounds and further asserts, relying on Murphy v. NCAA, that preemption cannot apply at all because the federal statutes at issue do not regulate private actors. While we begin with that argument, we ultimately need not resolve it. Instead, we conclude that the Counties’ field and conflict preemption challenges both fail.1
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 said about preemption. Cf. Mathis v. United States, 579 U.S. 500, 514 (2016) (explaining that “a good rule of thumb for reading our decisions is that what they say and what they mean are one and the same“). The Court said at least three times in Murphy that a valid preemption provision is one that regulates private actors. See 138 S. Ct. at 1479, 1480, 1481. Other courts have relied on Murphy to reject preemption claims where the federal immigration statutes at issue did not regulate private actors. See, e.g., Ocean County Board of Comm‘rs v. Attorney General of New Jеrsey, 8 F.4th 176, 181–82 (3d Cir. 2021) (relying on Murphy to reject preemption claim because a “federal statute that does not regulate private actors cannot serve as a basis for preemption“); Colorado v. United States Dep‘t of Justice, 455 F. Supp. 3d 1034, 1059 (D. Colo. 2020) (similar).
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.” Arizona v. United States, 567 U.S. 387, 399 (2012). Accordingly, State law is preempted “when federal law occupies a ‘field’ of regulation ‘so comprehensively that it has left no room for supplementary state legislation.‘” Murphy, 138 S. Ct. at 1480, quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 140 (1986). We have said that field preemption is “rare” and is “confined to only a few areаs of the law.” Nelson, 928 F.3d at 651-52 (citing National Labor Relations Act and Employee Retirement Income Security Act as examples). The statutory grounds for rare field preemption simply are not present here.
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,’ Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.” Id. at 394–95. At the same time, the “pervasiveness of federal regulation does not diminish the importance of immigration policy to the States.” Id. at 397.
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
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
C. Conflict Preemption
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
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 canoniсal 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 whom it deals’ (e.g., contractors).” United States v. Washington, 142 S. Ct. 1976, 1984 (2022) (alterations in original), quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion). The Counties argue that the Illinois Act both directly regulates and discriminates against the federal government. Neither argument is persuasive.
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 Supreme Court‘s recent decision in United States v. Washington provides a helpful illustration of impermissible discrimination. At issue was a Washington State workers’ compensation law that applied only to federal contract workers. The law made it easier for those workers to establish workers’ compensation claims, thereby increasing costs for the federal government. The Court concluded that the law violated principles of intergovernmental immunity by “singling out the Federal Government for unfavorable treatment.” 142 S. Ct. at 1984. On its face, the law treated federal workers “differently than state or private workers.” Id. It imposed costs on the federal government that were not imposed on similarly situated State or private employers.
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
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 438 (plurality opinion) (framing discrimination inquiry as whether burden is “imposed equally on other similarly situated constituents“). In this context, the Counties cannot identify any actors “similarly situated” to the federal govеrnment that receive more favorable treatment under the Act. The mere fact that the Act touches on an exclusively federal sphere is not enough to establish discrimination. Cf. California, 921 F.3d at 881 (explaining that intergovernmental immunity “is not implicated when a state merely references or even singles out federal activities in an otherwise innocuous enactment“).7
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 the law. Id. at 938, quoting Dawson v. Steager, 139 S. Ct. 698, 705 (2019). But see id. at 947–52 (Murguia, J., dissenting) (disagreeing with panel majority‘s intergovernmental immunity analysis). The same cannot be said of the Illinois Way Forward Act, which represents only a policy choice by the State not to cooperate with the federal government‘s detention operations in Illinois.
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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 statе a claim.
AFFIRMED.