New York and Illinois Push To Keep Out ICE
By Shari Rendall | June 7, 2018
New York and Illinois have bills working through their legislatures that will severely restrict federal immigration authorities arrest authority as well as their access to state and local government buildings.
On April 25, New York Governor Andrew Cuomo (D) signed an executive order barring ICE from making arrests at state buildings without a judicial warrant or other court order.
Notably, Cuomo’s executive order only covers buildings run by the executive branch of state government. However, the order does not cover the state’s courthouses, run by the judicial branch. Current New York state law says “[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same,” so the state’s courts quickly made clear that the executive order doesn’t apply to them and have engaged in a surprisingly encouraging amount of public pushback. As Office of Court Administration spokesman Lucian Chalfen explained, “[a]s long as outside law enforcement checks in and has the appropriate paperwork, we maintain that they have the legal authority to observe or make an arrest.”
In response to these assertions, the “Protect Our Courts Act,” Assembly Bill (AB) 11013, was introduced on May 30. This legislation:
- Claims to make anyone attending a court proceeding as a party or witness, and their family members, immune from civil arrest, and not only within a courthouse but also while going to or returning from court, except if the arrest is based on a judicial warrant or other court order;
- Makes any civil arrest that it forbids contempt of court and false imprisonment;
- Authorizes both private parties and the state attorney general to sue for an injunction plus costs and reasonable attorneys’ fees;
- Grants courts authority to issue orders to enforce the new law;
- Requires court personnel not to allow “non-local law enforcement personnel” to enter court facilities for immigration enforcement purposes except with a judicial warrant that has been individually reviewed and confirmed by an attorney for the state court system;
- Defines “non-local law enforcement” as those not of New York or its localities, and also to include any New York state or local law enforcement in a 287(g) or similar agreement with ICE.
It passed the Assembly’s Committee on Codes on June 5, by a vote of 16-6 along party lines and was referred to the Rules Committee. If it passes the full Assembly, where the Democrats have a 104-41 majority, the bill will face an uphill battle in the narrowly Republican-controlled Senate. However, if it ekes out of the Senate, Governor Cuomo will likely sign it.
While not quite as extreme as New York’s bill, Illinois’ “Immigration Safe Zones Act,” Senate Bill (SB) 35, seeks to ensure that aliens “are safe” in schools, healthcare facilities, libraries, and courts. SB 35 has already passed both chambers of the state legislature.
In relevant part, the Illinois bill:
- Requires the state’s Attorney General to publish model policies for limiting assistance with immigration enforcement “to the fullest extent possible consistent with federal and State law”;
- Requires that the AG’s model policies then be adopted by the following, both public and any private that accept state funds: 1) schools; 2) medical facilities; 3) public libraries; 4) facilities operated by the Illinois Secretary of State (which includes driver’s licensing and vehicle registration); and 5) courts;
- “Encourages” other entities “that provide services related to physical or mental health and wellness, education, or access to justice” to also adopt the model policies.
On March 16, Senator Don Harmon (D-Oak Park) introduced the bill as a substitute on an unrelated bill. The Senate Judiciary Committee, on April 10, passed the bill by a vote of 8-4 along party lines. It passed the full Senate 31-16, also along party lines, on May 2.
Representative Tom Demmer (R-Dixon) expressed skepticism of whether legislation requiring the Attorney General to issues policies and then mandating that the courts adopt them might raise constitutional problems with separation of powers. “We don’t know what the actual impact or legal effect of these bills would be … I think this sets up to be in a situation with a very confusing outcome,” Demmer said.
SB 35 has not yet been sent to Republican Governor Bruce Rauner. Once he receives it, he has 60 days to sign it, veto it, or allow it to become law without his signature. Gov. Rauner hasn’t said what he’ll do, and a veto definitely isn’t guaranteed since he signed the state’s current sanctuary law, the so-called “Illinois Trust Act” (SB 31) (2017), last year. If Gov. Rauner does veto the bill, it will be sent to the Secretary of State who will forward it to the Senate to be reconsidered at its next legislative session.