McHenry Cnty. v. Raoul

• Decision Date: 09 August 2022
• Docket Number: 21-3334
• Citation: 44 F.4th 581
• Parties: MCHENRY COUNTY and Kankakee County, Plaintiffs-Appellants, v. KWAME RAOUL, in his official capacity as Illinois Attorney General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

44 F.4th 581

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, Seventh Circuit.

Argued May 18, 2022

Decided August 9, 2022

Jana Blake Dickson, Attorney, Office of the McHenry County State's Attorney, Woodstock, IL, for Plaintiffs-Appellants.

Alex Hemmer, Attorney, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

Mark Steven Venezia, Attorney, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.

Caroline S. Van Zile, Attorney, Office of Attorney General, Washington, DC, for Amici Curiae District of Columbia, State of California, State of Connecticut, State of Delaware, State of Maine.

Before Hamilton, Brennan, and Kirsch, Circuit Judges.

Hamilton, Circuit Judge.

In our constitutional scheme, "the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause." Tafflin v. Levitt , 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). The States have "substantial sovereign authority" under this arrangement. Gregory v. Ashcroft , 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). This case concerns the boundaries of that authority as applied to municipalities and other political subdivisions created by State law.

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." 8 U.S.C. § 1231(g)(1). In carrying out this statutory duty, the Attorney General is authorized

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)].

§ 1103(a)(11)(B). Also, before constructing any new detention facility, ICE "shall consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for such use." § 1231(g)(2).

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." 5 ILCS 805/15(g)(1). The Act also requires any entity with an existing contract to "exercise the termination provision in the agreement as applied to housing or detaining individuals for civil immigration violations no later than January 1, 2022." 805/15(g)(2).

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 , 574 F.Supp.3d 571, 578–80 (N.D. Ill. 2021). And even under an analysis of field and conflict preemption, the court said, the Act was not invalid. Id. at 579–81. 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 581. 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 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.

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).

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." U.S. Const. art. VI. The Supremacy Clause provides " ‘a rule of decision’ for determining whether federal or state law applies in a particular situation." Kansas v. Garcia , ––– U.S. ––––, 140 S. Ct. 791, 801, 206 L.Ed.2d 146 (2020), quoting Armstrong v. Exceptional Child Center, Inc. , 575 U.S. 320, 324, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). In cases where federal and state law conflict, "federal law prevails and state law is preempted." Murphy v. NCAA , ––– U.S. ––––, 138 S. Ct. 1461, 1476, 200 L.Ed.2d 854 (2018). The federal government's advantage under the Supremacy Clause is "an extraordinary power in a federalist system," and it is "a power that we must assume Congress does not exercise lightly." Gregory , 501 U.S. at 460, 111 S.Ct. 2395.

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, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), quoting Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (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 8 U.S.C. § 1103(a)(11)(B), which authorizes the Attorney General to enter into cooperative agreements for detention facilities, does not regulate private actors. McHenry County , 574...