‘ICE-Lockout’ Bill Sails through the Illinois Legislature

By Colton R. Overcash and Matt O’Brien | June 7, 2019

The Illinois General Assembly just put its stamp of approval on a bill that would make it nearly impossible for Immigration and Customs Enforcement (ICE) officials to detain illegal aliens at public locations throughout the Land of Lincoln.

House Bill (HB) 1637, “Keep Illinois Families Together Act,” passed the House on May 27 by a 67-50 vote.  In a rare and surprising move, six Democrats joined every Republican to oppose it. The bill sailed through the Senate less than a week later on a party-line vote, with thirty-five Democrats approving and nineteen Republicans opposed (five Democrats didn’t vote at all).

Representative Celina Villanueva (D-Chicago), who sponsored HB 1637, claims the measure will “boost cooperation” with law enforcement and “protect” illegal aliens from deportation.  “What they’re trying to do is scare our families, our immigrant families, into not being able to report crimes that are happening in their communities, … living in fear of going to work every day, taking their kids to school, just living lives,” Villanueva said. “This [will] fix that.”

The proposal did not sit well with some in the law enforcement community, who saw the bill as just another barrier to them doing their jobs and keeping communities safe. “The TRUST Act did preclude us from being able to do those activities,” Jim Kaitschuk with the Illinois Sheriffs’ Association said. “This goes a step further. It says [we] not only cannot act on the street as an ICE agent, which we are precluded from today, we also cannot do that with regard to any of the processing in the jail.”



If enacted, the bill would direct the state attorney general to issue new rules limiting state and local law enforcement agencies or officials from assisting ICE with enforcement activities at colleges, universities, hospitals, public libraries, courthouses, public schools, and facilities operated by the Office of the Secretary of State unless they receive a judicial warrant (which is not something federal law provides for, meaning in practice the new state law forbids state and local officials from granting ICE access to their facilities). It would also require state agencies, public schools, and public institutions of higher learning to change their data collection policies and limit what information they can actually disclose to federal immigration authorities.

In addition, the bill would expand on Illinois’s existing sanctuary law, the TRUST Act, by prohibiting law enforcement agencies or officials from entering into or remaining in an agreement with ICE under the federal 287(g) cooperation program. The TRUST Act already forbids law enforcement from honoring immigration detainers inside jails and prisons without an accompanying judicial warrant. However, HB 1637 would go a step even further, banning 287(g) agreements altogether and strictly limiting when and how law enforcement can interact with ICE.

However, the Illinois legislature appears to be grossly exceeding its authority. As a matter of constitutional law, the regulation of immigration policy is a federal responsibility. Pursuant to the 10th Amendment, state governments lack any authority to dictate to the federal government how it must go about regulating immigration. The Supreme Court of the United States confirmed this principle in 2012 in Arizona v. United States.

Even if a state government had any residual power to pass supplemental legislation on immigration matters, it wouldn’t be able to legislate how, where, or when ICE can arrest anyone. Under Article VI, Paragraph 2 of the United States Constitution, commonly known as the “Supremacy Clause,” the Immigration and Nationality Act (INA), the governing federal statute, would trump any state statutes.   And the INA explicitly grants ICE the authority to arrest immigration violators anywhere in the United States, without a judicial warrant.

Governor J.B. Pritzker (D) has until July 28 (sixty days from passage) to sign or veto the ICE-lockout bill before it becomes law without his signature, according to the Illinois Constitution. While the governor hasn’t taken a public position on the bill, it’s very likely he’ll sign it. While campaigning for office last year, then-candidate Pritzker promised to strengthen the TRUST Act and “protect immigrant communities” from the Trump administration.