Legal observers expect AG Pam Bondi to appeal her challenges to Illinois and New York sanctuary policies all the way to the Supreme Court.
The Trump administration’s lawsuits targeting Illinois and New York laws for obstructing federal immigration efforts could be the opening volley in a bid to ultimately test the conservative Supreme Court’s commitment to states’ rights.
Attorney General Pam Bondi is on a mission to get the nation’s courts to rethink the legality of sanctuary laws amid a national backlash against illegal immigration. Over the last decade, the courts have largely backed the laws in sanctuary jurisdictions and found that Trump’s previous attempts to deny federal funds to those jurisdictions were illegal.
The lawsuits, announced by Bondi earlier this month, are part of the administration’s larger strategy to put the Democratic leaders in the country’s more than 200 sanctuary jurisdictions on notice that they face legal risk if they impede federal deportation goals.
But should they succeed in appealing their cases against Illinois and New York all the way to the high court, Bondi and her Justice Department lawyers may run into opposition from conservative justices, several of whom were appointed by Trump, who have a history of staunchly supporting states’ rights to operate free from federal interference.
Ultimately, the justices will have to determine the breadth of the constitutional protections that bar federal authorities from commandeering local resources, immigration lawyers and policy experts told National Review.
Does, for example, a state have the constitutional right to prohibit something as basic as taking a call from a federal immigration agent and informing the agent of when an illegal immigrant will be released from a local jail? Or is that prohibition a violation of federal law?
“What the Bondi Department of Justice is attempting to do is reorder the law so that inherent federal function, immigration enforcement, is recognized as inherently federal, not state,” said Art Arthur, a lawyer and a fellow at the Center for Immigration Studies fellow.
The lawsuits also send a message to Trump’s base that his administration is fighting on the issue and prioritizing a key campaign promise.
“Even if they lose, it’s a victory,” said Muzaffar Chishti, a Migration Policy Institute lawyer. “The fact that [they] did this so quickly is promises made, promises kept.”
The lawsuit against Illinois, filed in early February, takes aim at the state’s sanctuary laws, as well as similar laws in Chicago and Cook County, that prohibit officers from complying with federal immigration detainers, and providing immigration agents with basic information about noncitizens in their custody, including their release dates.
The New York suit, announced last week, targets the state’s so-called Green Light Law, which prohibits state officials from sharing Department of Motor Vehicle records — including records regarding driver’s licenses issued to noncitizens — with immigration agents. The law also includes a provision requiring the DMV commissioner to notify license-holders when immigration agents request their information.
The lawsuits accuse Illinois and New York of crafting sanctuary laws intentionally aimed at flouting the Constitution’s supremacy clause, which establishes that federal law takes precedent over state law. The states are also accused of violating a federal statute, 8 USC 1373, which bars state or local governments from restricting communication with immigration officials about the “citizenship or immigration status, lawful or unlawful, of any individual.”
“This is a new DOJ,” Bondi declared at a news conference. “If you don’t’ comply with federal law, we will hold you accountable.”
But DOJ lawyers are facing a body of case law that has historically backed most sanctuary provisions and bars federal officials from “commandeering” state and local resources for their own purposes. Sanctuary jurisdictions typically argue they aren’t violating USC 1373, because they don’t actually gather information about people’s “citizenship or immigration status,” and they aren’t obliged to expend resources providing immigration agents with information — such as inmate release dates — that isn’t directly immigration-related.
During Trump’s first term, his administration challenged the California Values Act, the state’s 2017 sanctuary law, which prohibits officials from gathering immigration-related information and limits police interaction with immigration authorities. The Ninth Circuit upheld the law, and the Supreme Court dealt Trump a blow in 2020 by refusing to take up the case.
Several state courts, including in New York, Massachusetts, Minnesota, and Colorado, also upheld sanctuary laws during Trump’s first term.
Four federal circuit courts — the First, Third, Seventh, and Ninth — all agreed during Trump’s first term that his Department of Justice couldn’t legally withhold federal law enforcement grants from sanctuary jurisdictions. However, the Second Circuit came to a different conclusion, ruling that the DOJ could condition the grants on cooperation with federal immigration efforts.
“The Constitution permits state and local government to determine local priorities without interference from the federal government,” the American Civil Liberties Union of Illinois said in response to Bondi’s lawsuit there. “The President and his allies cannot ignore this reality in their zeal to carry out a cruel and troubling mass deportation program.”
But just because the courts have largely backed sanctuary policies doesn’t mean they can’t change. One thing that has changed over the last five years is the nation’s perspective on illegal immigration, said Arthur with the Center for Immigration Studies.
“I’m a lawyer and I can give you all the legal arguments you want. But if you’re wondering why they’re bringing [lawsuits] now, public sentiment on this has changed. Public opinion about criminal aliens on the street has changed,” Arthur said.
He noted that the Laken Riley Act, which mandates the detention of illegal immigrants arrested for theft and other crimes, was just passed in January. “That is a clear, recent statement of Congress that there needs to be cooperation between the states and localities who arrest and detain the vast majority of criminals and the immigration authorities to take those people into custody,” Arthur said.
The Supreme Court, he said, “can probably read the writing on the wall of where the American people are” on illegal immigration, and the court may be more inclined now to take up a case to hash out the legal issues around sanctuary jurisdictions.
“Really, what [the Trump administration wants] is they want the Supreme Court to rule on the validity of [immigration] detainers and the responsibilities that states and localities have when they receive them,” Arthur said. “It’s sort of like the birthright citizenship issue. They really just want to tee it up so we can get some legal clarity on this, and then if we need Congress to act and to put additional words into [the Immigration and Nationality Act] to give detainers real teeth, we can do that. But first, let’s actually assess the nature.”
Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the University of California, Los Angeles, School of Law and a onetime American Civil Liberties Union lawyer, argued in a January legal analysis that litigation history shows that “sanctuary statutes are lawful.”
Speaking with National Review, Arulanantham noted the Supreme Court’s 1997 ruling in Printz v. United States as a key precedent. In Printz, the court found that federal efforts to commandeer local law enforcement to perform background checks on gun purchasers violated the Tenth Amendment. He said the commandeering arguments in Printz and the arguments made around sanctuary jurisdictions are virtually “indistinguishable.”
“I don’t think you’ll see a circuit court go the other way,” he said. “But the Supreme Court could change the law. The Supreme Court has radically shifted the law in a variety of different areas in the recent past, obviously abortion being the most famous example.”
Arulanantham said he doesn’t suspect that if faced with a case the Supreme Court would drastically shift the legal landscape around sanctuary jurisdictions.
“I’ve never made money predicting what the Supreme Court will do,” he said, “but if I had to predict, my prediction would be that the Supreme Court would not find these laws unconstitutional and expand federal power in this area, because I think it is very difficult to square that with the basic ideas about how the federal–state power balance works.”
“The Supreme Court would really have to strike a blow against state and local government power and in favor of expanded national power,” he added. “It would require a ruling that really rejects principles of federalism and endorses greater federal control.”
However, Arulanantham said the question about denying federal funds to sanctuary jurisdictions is “more complicated” and the legal doctrine behind it is “mushier.”
Chishti, with the Migration Policy Institute, said the Trump DOJ likely believes it now has more experience, better legal arguments against sanctuary policies, and better people to make the arguments in court. But, he said, “I have an odd feeling that the worst place to take it to is the Supreme Court,” which is “full of conservatives who have held the Tenth Amendment very strongly.”
Still, he added, “you can never tell about the Supreme Court.”
“They may look at the Tenth Amendment differently in the context of immigration than the context of guns,” Chishti said. “If they do, they will be going against some of the more established case law on the reach of the Tenth Amendment. But if they want to do it, the backdrop in the country does provide them a basis to do it.”
Mike Howell, an expert on immigration and border security with the conservative Heritage Foundation, said the Supreme Court is likely going to have to address issues involving executive power, including around immigration enforcement.
“It presents such a fundamental threat to this country to have two diametrically opposed legal frameworks for what is ultimately a security issue,” he said. “You cannot have two immigration systems in the United States at the same time.”
He called New York’s law requiring DMV commissioners to notify people when immigration agents request records about them “100 percent, squarely obstructive conduct.”
“There’s no ifs, ands, or buts about it,” he said. “Tipping off illegals that immigration enforcement is looking for them is about as obstructive as you can get.”
Some of the sanctuary policies around honoring U.S. Immigration and Customs Enforcement detainers for illegal immigrants held in jail are specifically worded to sound like they offer some degree of cooperation with immigration agents when they don’t, said Jessica Vaughan, director of policy studies at the Center for Immigration Studies.
“Many times they will say, ‘You may honor ICE detainers when they are accompanied by a judicial warrant.’ That’s another way of saying you many not honor any ICE detainers because there is no such thing as a judicial warrant in connection with immigration detainers,” she said. “It’s like saying, ‘You can honor a detainer if it comes on a silver platter delivered by a unicorn.’ It’s a legal fiction.”
Arthur, the CIS lawyer, said he suspects that if Bondi’s DOJ gets favorable decisions in the lower courts with the lawsuits against Illinois and New York, it’ll likely then move on to other, smaller jurisdictions. If it doesn’t, it’ll push forward to the Supreme Court.
“They want to get it to the Supreme Court. They’re going to get their best audience at the Supreme Court,” he said but acknowledged that, even there, “it’s not a slam dunk.”
“I can’t tell you what Amy Coney Barrett is going to do, what Neil Gorsuch is going to do, what [Brett] Kavanaugh is going to do,” he said. “But your best shot is at the Supreme Court.”