Donald Trump spent the four years between his two presidencies filing garbage lawsuits. Hillary Clinton! The Pulitzer Committee! Twitter! No one was immune.
Now back in the White House, President Trump is continuing the habit. Yesterday, the Department of Justice sued the state of Illinois, Governor JB Pritzker, the City of Chicago, and Cook County in a misbegotten attempt to bully them into becoming federal immigration agents.
The theory of the case appears to be that, because the Supremacy Clause bars states from creating their own immigration laws, it must a fortiari require them to enforce federal immigration laws. And thus state and local ordinances that bar local law enforcement officers from cooperating with federal immigration officials are not only bad public policy, but illegal and even potentially criminal.
The government complains that the state’s Way Forward Act and TRUST Act, Chicago’s Welcoming City Act, and a similar Cook County municipal ordinance “are designed to and in fact interfere with and discriminate against the Federal Government’s enforcement of federal immigration law in violation of the Supremacy Clause of the United States Constitution.”
In reality, the laws bar local officials from holding immigrants on civil detainer warrants and from expending state and municipal resources to detain immigrants at the request of the feds absent a criminal warrant. The state laws are very carefully crafted to comply with federal laws, and are not a blanket ban on communicating with federal immigration authorities — that’s why the complaint was forced to say that “upon information and belief” local cops are “confused” by the ordinances and “chilled” from engaging in permitted communications with their federal counterparts. What they are is a refusal to allow state officials to be coopted into carrying out federal immigration law, as the Supreme Court has said very clearly they’re entitled to do.
Just take it from that liberal squish Justice Antonin Scalia, who said in 1997’s Printz v. United States, that the anti-commandeering doctrine barred the federal government from forcing state law enforcement officials to run background checks on gun purchasers as required by the Brady Bill.
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers… to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
And so the lawsuit bizarrely recasts the refusal to carry out federal policy with obstructing it, accusing the state of “obstructing the Federal Government’s ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution.”
It then invents a new protected class and accuses the state of … discriminating against the feds?
WTF???
So weird that our new AG felt the need to threaten “any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration” with termination — how else are you going to get line attorneys to sign off on this shit?
The DOJ tried to designate this case as related to a First Amendment challenge to Trump’s immigration executive order filed by a coalition of nonprofits, which would have put them in front of Judge John Kness, a Trump appointee. But no dice — the case is in front of Judge Lindsay Jenkins, a Biden appointee. An initial status hearing is scheduled for April 15.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
