McHenry County v. Kwame Raoul ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3334
MCHENRY COUNTY and KANKAKEE COUNTY,
Plaintiffs-Appellants,
v.
KWAME RAOUL, in his official capacity
as Illinois Attorney General,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:21-cv-50341 — Philip G. Reinhard, Judge.
____________________
ARGUED MAY 18, 2022 — DECIDED AUGUST 9, 2022
____________________
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
(1990). The States have “substantial sovereign authority” un-
der this arrangement. Gregory v. Ashcroft, 501 U.S. 452, 457
(1991). This case concerns the boundaries of that authority as
2 No. 21-3334
applied to municipalities and other political subdivisions cre-
ated 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 Illi-
nois counties challenge the law, arguing that it is preempted
by federal immigration statutes and that it violates the doc-
trine of intergovernmental immunity. The district court re-
jected those arguments and granted the State’s motion to dis-
miss 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 pro-
vides that the Attorney General of the United States “shall ar-
range for appropriate places of detention” for immigration
detainees being held “pending removal or a decision on re-
moval.” 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 renova-
tion, acquisition of equipment, supplies or ma-
terials required to establish acceptable condi-
tions of confinement and detention services in
any State or unit of local government which
agrees to provide guaranteed bed space for per-
sons detained by [Immigration and Customs
Enforcement (ICE)].
No. 21-3334 3
§ 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 po-
litical subdivisions of Illinois. For years, both had agreements
with the federal government to house persons detained by
federal immigration authorities. The Counties agreed to “ac-
cept and provide for the secure custody, safekeeping, hous-
ing, subsistence and care of Federal detainees.” Those detain-
ees 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’ no-
tice. 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 govern-
ment may enter into or renew any contract … to house or de-
tain individuals for federal civil immigration violations.” 5
ILCS 805/15(g)(1). The Act also requires any entity with an ex-
isting 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 dis-
trict court concluded that the Counties’ preemption argument
4 No. 21-3334
failed at the outset because the federal statutes at issue did not
regulate private conduct. McHenry County v. Raoul, No. 21 C
50341, — F. Supp. 3d —, 2021 WL 5769526, at *5–6 (N.D. Ill.
Dec. 6, 2021). And even under an analysis of field and conflict
preemption, the court said, the Act was not invalid. Id. at *6–
7. The court also rejected the intergovernmental immunity ar-
gument, holding that the Act “does not directly regulate the
federal government nor discriminate against the federal gov-
ernment or the plaintiffs.” Id. at *8. The district court dis-
missed 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 in-
junction 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 Jan-
uary 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 no-
tice 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.
No. 21-3334 5
II. The Preemption Challenge
First, the Counties argue that the Act is preempted by fed-
eral law. We review that legal question de novo, without de-
ferring to the district court’s decision. Nelson v. Great Lakes Ed-
ucational 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,
140 S. Ct. 791, 801 (2020), quoting Armstrong v. Exceptional
Child Center, Inc., 575 U.S. 320, 324 (2015). In cases where fed-
eral and state law conflict, “federal law prevails and state law
is preempted.” Murphy v. NCAA, 138 S. Ct. 1461, 1476 (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.
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: Con-
gress enacts a law that imposes restrictions or confers rights
on private actors; a state law confers rights or imposes re-
strictions 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
(2009), quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
6 No. 21-3334
The Counties argue that the Illinois Act is invalid under
principles of field and conflict preemption. The State disa-
grees on both grounds and further asserts, relying on Murphy
v. NCAA, that preemption cannot apply at all because the fed-
eral 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 au-
thorize sports gambling. After concluding that the statute vi-
olated 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
1The Counties sued Attorney General Raoul in his official capacity.
We refer to him as the State throughout this opinion.
No. 21-3334 7
enter into cooperative agreements for detention facilities,
does not regulate private actors. McHenry County, 2021 WL
5769526, at *5–6. The State makes a similar argument on ap-
peal, asserting that “only federal laws that regulate private ac-
tors can be understood to preempt state law, and plaintiffs’
cited statutes do not regulate private conduct.”
The Counties apparently concede that § 1103(a)(11)(B) and
§ 1231(g), which instructs the Attorney General to “arrange
for appropriate places of detention,” do not regulate private
actors. The Counties argue, however, that Murphy’s private-
actor requirement is in tension with Lawrence County v. Lead-
Deadwood School District No. 40-1, 469 U.S. 256 (1985). The fed-
eral statute at issue there compensated local governments for
costs related to tax-immune federal lands within their juris-
dictions. But a South Dakota law required the local govern-
ments to allocate those federal funds in the same way they
allocated general tax revenues. The Court concluded that the
federal statute, which allowed localities to use the funds for
any governmental purpose, preempted the state law. The
Counties assert that the case conflicts with Murphy because
the federal statute preempted in Lawrence County did not
regulate private actors. 2
We take the Counties’ point, but we are reluctant to en-
dorse their argument that Murphy did not really mean what it
2 The State, for its part, offers a distinction to resolve any potential
tension between the cases: Lawrence County—unlike both Murphy and this
case—involved Spending Clause litigation. The Court concluded that the
federal government had “merely imposed a condition on its disbursement
of federal funds,” which was not an impermissible intrusion into South
Dakota’s fiscal affairs. Lawrence County, 469 U.S. at 269. We need not de-
cide here whether that proposed distinction is persuasive.
8 No. 21-3334
said about preemption. Cf. Mathis v. United States, 579 U.S.
500, 514 (2016) (explaining that “a good rule of thumb for
reading our decisions is that what they say and what they
mean are one and the same”). The Court said at least three
times in Murphy that a valid preemption provision is one that
regulates private actors. See 138 S. Ct. at 1479, 1480, 1481.
Other courts have relied on Murphy to reject preemption
claims where the federal immigration statutes at issue did not
regulate private actors. See, e.g., Ocean County Board of
Comm’rs v. Attorney General of New Jersey, 8 F.4th 176, 181–82
(3d Cir. 2021) (relying on Murphy to reject preemption claim
because a “federal statute that does not regulate private actors
cannot serve as a basis for preemption”); Colorado v. United
States Dep’t of Justice, 455 F. Supp. 3d 1034, 1059 (D. Colo. 2020)
(similar).
In the end, however, we need not map the precise limits of
Murphy’s preemption holding. Even setting aside the thresh-
old argument that 8 U.S.C. § 1103(a)(11)(B) and § 1231(g) do
not regulate private actors, we agree with the district court
that the Counties’ field and conflict preemption challenges
fail. Since the parties briefed those issues in the district court
and on appeal, we can and will affirm on those grounds. See
Regains v. City of Chicago, 918 F.3d 529, 533 (7th Cir. 2019) (“We
may affirm on any ground that the record supports, as long
as the district court adequately addressed that ground and the
non-moving party had the opportunity to contest it.”).
B. Field Preemption
The Counties argue that the Act is invalid as a matter of
field preemption. States may not regulate conduct “in a field
that Congress, acting within its proper authority, has deter-
mined must be regulated by its exclusive governance.”
No. 21-3334 9
Arizona v. United States, 567 U.S. 387, 399 (2012). Accordingly,
State law is preempted “when federal law occupies a ‘field’ of
regulation ‘so comprehensively that it has left no room for
supplementary state legislation.’” Murphy, 138 S. Ct. at 1480,
quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S.
130, 140 (1986). We have said that field preemption is “rare”
and is “confined to only a few areas of the law.” Nelson, 928
F.3d at 651–52 (citing National Labor Relations Act and Em-
ployee Retirement Income Security Act as examples). The
statutory grounds for rare field preemption simply are not
present here.
The federal government “has broad, undoubted power
over the subject of immigration.” Arizona, 567 U.S. at 394. That
authority derives from its “constitutional power to ‘establish
an uniform Rule of Naturalization,’ Art. I, § 8, cl. 4, and its in-
herent power as sovereign to control and conduct relations
with foreign nations.” Id. at 394–95. At the same time, the
“pervasiveness of federal regulation does not diminish the
importance of immigration policy to the States.” Id. at 397.
The Counties assert that the federal government has occu-
pied the field of detaining and housing noncitizens, thereby
preempting State regulation. That argument, however, finds
no support in the text of the federal statutes on which the
Counties rely. By its terms, 8 U.S.C. § 1103(a)(11)(B) author-
izes the Attorney General “to enter into a cooperative agreement
with any State, territory, or political subdivision thereof.”
(Emphasis added.) An “agreement” is of course an arrange-
ment to which both parties have consented. Section
1103(a)(11)(B) thus contemplates discretionary and voluntary
choices by States or local entities to assist the federal govern-
ment with immigration detention, or not. It simply does not
10 No. 21-3334
command that they do so. A provision that allows for policy
decisions by States and localities as to the extent of their par-
ticipation is about 180 degrees away from a command, let
alone one that leaves “no room for supplementary state legis-
lation.” See R.J. Reynolds Tobacco, 479 U.S. at 140.
The Counties emphasize the use of the term “or” in the
statutory language authorizing a cooperative agreement with
any “State, territory, or political subdivision thereof.”
§ 1103(a)(11)(B). According to the Counties, this language
means that “the federal government intended the execution
of the agreements with the counties to be independent from
the state.”
This argument loads far too much weight onto the word
“or,” particularly since this is national legislation that must be
written to apply in every State, many of which leave this
choice up to local governments. Unlike States, political subdi-
visions such as counties “never were and never have been
considered as sovereign entities.” Ysursa v. Pocatello Education
Ass’n, 555 U.S. 353, 362 (2009), quoting Reynolds v. Sims, 377
U.S. 533, 575 (1964); see also Ill. Const. art. VII, § 7 (“Counties
and municipalities which are not home rule units shall have
only powers granted to them by law and [certain enumerated]
powers….”); Inland Land Appreciation Fund, L.P. v. County of
Kane, 800 N.E.2d 1232, 1236 (Ill. App. 2003) (“A county is a
mere creature of the State and can exercise only the powers
expressly delegated by the legislature or those that arise by
necessary implication from expressly granted powers.” (cita-
tion omitted)). 3
3
Some political subdivisions—such as home rule units—might exer-
cise more autonomy in certain spheres, and infringements on that
No. 21-3334 11
Instead, under the federal Constitution, political subdivi-
sions “have been traditionally regarded as subordinate gov-
ernmental instrumentalities.” Reynolds, 377 U.S. at 575. They
serve as “convenient agencies for exercising such of the gov-
ernmental powers of the State as may be entrusted to them in
its absolute discretion.” Nixon v. Missouri Municipal League,
541 U.S. 125, 140 (2004), quoting Wisconsin Public Intervenor v.
Mortier, 501 U.S. 597, 607–08 (1991). As a result, we operate
under a “working assumption that federal legislation threat-
ening to trench on the States’ arrangements for conducting
their own governments should be treated with great skepti-
cism, and read in a way that preserves a State’s chosen dispo-
sition of its own power, in the absence of the plain statement
Gregory requires.” Id., citing Gregory v. Ashcroft, 501 U.S. 452(1991). We agree with the district court that neither “or” nor
anything else in § 1103(a)(11)(B) shows “an intent to remove
this traditional authority of a state over its subdivision.”
McHenry County, 2021 WL 5769526, at *7.
Nor does § 1231(g) support the field preemption argu-
ment. The Counties assert that the statute gives the Attorney
General the exclusive authority to “arrange for appropriate
places of detention” for immigration detainees. § 1231(g)(1).
That proves far too little. No one suggests that Illinois could
tell the Attorney General of the United States where to house
a particular detainee. But the State can remove its own facili-
ties—and those of its subordinate localities—from the list of
autonomy might properly be subject to a challenge on State constitutional
grounds. See, e.g., Ill. Const. art. VII, § 6 (describing powers unique to
home rule units). But the Counties conceded in the district court that they
are not home rule units, and they have not raised any claim under the
Illinois Constitution. See McHenry County, 2021 WL 5769526, at *4.
12 No. 21-3334
options. That is evident both because § 1231(g) says nothing
about States or local entities and because § 1103(a)(11)(B) con-
templates “cooperative agreement[s]” rather than authoriz-
ing the Attorney General to order State and local governments
to house immigration detainees. 4
The Fifth Circuit’s decision in City of El Cenizo v. Texas, 890
F.3d 164 (5th Cir. 2018), illustrates the flaw in the Counties’
field preemption argument. There, the policy preferences of
State and local governments were a mirror image of this case.
A Texas law prohibited local entities from adopting any pol-
icy that restricted cooperation in federal immigration enforce-
ment. Several cities and counties challenged the State law on
preemption grounds. Those plaintiffs pointed to myriad pro-
visions of federal law regulating local cooperation in the
sphere of immigration enforcement. The Fifth Circuit held,
however, that those provisions fell far short of establishing
field preemption: “Federal law regulates how local entities
may cooperate in immigration enforcement; [this State law]
specifies whether they cooperate.” Id. at 177. None of the fed-
eral statutes cited by the plaintiffs evinced any congressional
intent “to prevent states from regulating whether their locali-
ties cooperate in immigration enforcement.” Id. at 178. The
same logic applies here. The Illinois Act is not field
preempted.
4 Such a command would raise its own constitutional questions under
the anticommandeering doctrine. Cf. United States v. California, 921 F.3d
865, 891 (9th Cir. 2019) (“California has the right, pursuant to the anticom-
mandeering rule, to refrain from assisting with federal [immigration en-
forcement] efforts.”); City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th Cir.
2018) (noting that “the Tenth Amendment prevents Congress from com-
pelling Texas municipalities to cooperate in immigration enforcement”).
No. 21-3334 13
C. Conflict Preemption
The Counties also argue that the Act is invalid as a matter
of conflict preemption (sometimes referred to as “obstacle”
preemption). That doctrine includes “cases where compliance
with both federal and state regulations is a physical impossi-
bility and those instances where the challenged state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” Arizona, 567
U.S. at 399 (internal citation and quotation marks omitted).
The Counties do not assert any physical impossibility, so the
issue is whether the Act obstructs congressional purposes.
That inquiry is “a matter of judgment, to be informed by ex-
amining the federal statute as a whole and identifying its pur-
pose and intended effects.” Crosby v. National Foreign Trade
Council, 530 U.S. 363, 373 (2000). To succeed, the Counties
“must show that applying the state law would do ‘major dam-
age’ to clear and substantial federal interests.” C.Y. Wholesale,
Inc. v. Holcomb, 965 F.3d 541, 547 (7th Cir. 2020).
According to the Counties, 8 U.S.C. § 1231(g) shows “a
clear preference by Congress” to house immigration detain-
ees in existing facilities instead of constructing new ones. That
provision instructs ICE to “consider the availability” of exist-
ing detention facilities before “initiating any project for the
construction of any new detention facility.” § 1231(g)(2). In
turn, § 1103(a)(11)(B) authorizes cooperative agreements with
States and local entities for immigration detention. The Coun-
ties argue that the Act contravenes congressional purposes by
preventing the Attorney General from using local detention
facilities.
Again, however, these federal statutes simply cannot sup-
port the Counties’ argument. The text of § 1231(g)
14 No. 21-3334
demonstrates at most a general preference to use existing fa-
cilities when they are available. But invoking “some brooding
federal interest” is not enough to support a preemption claim.
Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019)
(lead opinion of Gorsuch, J.); see also Patriotic Veterans, Inc. v.
Indiana, 736 F.3d 1041, 1049 (7th Cir. 2013) (explaining that
conflict preemption is not “lightly applied” and does not war-
rant “freewheeling judicial inquiry into whether a state stat-
ute is in tension with federal objectives”), quoting Chamber of
Commerce of United States v. Whiting, 563 U.S. 582, 607 (2011)
(plurality opinion). A congressional instruction to “consider”
available facilities and agreements to use them before build-
ing new ones does not preempt a State (or local) government’s
choice to make certain facilities unavailable. 5
The Ninth Circuit addressed a similar issue in United
States v. California, 921 F.3d 865 (9th Cir. 2019). One California
law at issue in that case limited the ability of State and local
officers to cooperate in federal immigration enforcement. The
United States argued that the law was preempted because it
obstructed federal immigration statutes. The Ninth Circuit re-
jected that argument, noting that “the specter of the anticom-
mandeering rule distinguishes the case before us from the
preemption cases on which the United States relies.” Id. at 888.
The relevant federal statutes provided “states and localities
the option, not the requirement, of assisting federal
5 The Counties renew their argument that § 1103(a)(11)(B) allows po-
litical subdivisions to contract with the federal government even if their
parent States prohibit such agreements. But because nothing in the statute
attempts to displace the traditional authority States have over their subdi-
visions, that assertion is no more persuasive here than under field
preemption.
No. 21-3334 15
immigration authorities.” Id. at 889. Federal immigration en-
forcement might have been frustrated by the California law,
but “the choice of a state to refrain from participation cannot
be invalid under the doctrine of obstacle preemption where,
as here, it retains the right of refusal.” Id. at 890. And the
United States “could not require California’s cooperation
without running afoul of the Tenth Amendment.” Id. at 891.
Exactly the same is true here. In drafting § 1103(a)(11)(B)
and § 1231(g), Congress may have hoped or expected that
States would cooperate with any requests from the Attorney
General to house detainees in their facilities. But Illinois and
the other States are not bound by that hope or expectation. See
921 F.3d at 891 (noting that “we must distinguish between ex-
pectations and requirements”). As discussed above,
§ 1103(a)(11)(B) contemplates as much by its reference to “co-
operative agreement[s].” It would make no sense to hold that
a federal statute premised on State cooperation preempts a
State law withholding that cooperation. The Act is not invalid
as a matter of field or conflict preemption.
III. The Intergovernmental Immunity Challenge
The Counties’ other argument is that the Act violates prin-
ciples of intergovernmental immunity. Again, we review that
question of law de novo. Nelson, 928 F.3d at 642.
The intergovernmental immunity doctrine dates to the ca-
nonical federalism decision in McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316 (1819), where the Supreme Court declared un-
constitutional Maryland’s attempt to single out the Bank of
the United States for a tax. Today, the doctrine prohibits “state
laws that either ‘regulat[e] the United States directly or dis-
criminat[e] against the Federal Government or those with
16 No. 21-3334
whom it deals’ (e.g., contractors).” United States v. Washington,
142 S. Ct. 1976, 1984 (2022) (alterations in original), quoting
North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality
opinion). The Counties argue that the Illinois Act both directly
regulates and discriminates against the federal government.
Neither argument is persuasive.
A. Direct Regulation
States may not regulate the federal government directly.
North Dakota, 495 U.S. at 434 (plurality opinion). A direct reg-
ulation might arise where a State law or regulation “places a
prohibition on the Federal Government.” Hancock v. Train, 426
U.S. 167, 180 (1976), quoting Public Utilities Comm’n v. United
States, 355 U.S. 534, 544 (1958); see also Penn Dairies, Inc. v.
Milk Control Comm’n, 318 U.S. 261, 270 (1943) (noting that state
regulation at issue “imposes no prohibition on the national
government or its officers”). Or a State might attempt to im-
pose a tax “directly upon the United States.” United States v.
New Mexico, 455 U.S. 720, 733 (1982), quoting Mayo v. United
States, 319 U.S. 441, 447 (1943).
That is not what the Illinois Act does. It imposes no direct
regulation on any federal official or agency. The challenged
provision says only that a “law enforcement agency, law en-
forcement official, or … unit of State or local government”
may not enter into or maintain a cooperative agreement for
immigration detention. 5 ILCS 805/15(g). To be sure, a conse-
quence of the Act—the intended consequence of the Act—is
that the federal government will not be able to use coopera-
tive agreements to house immigration detainees in Illinois
State or county facilities. But even before the Act was passed,
local entities were free to withhold their cooperation or termi-
nate existing agreements. The federal government remains
No. 21-3334 17
free to house immigration detainees in its own facilities in Il-
linois or to contract with private parties. The Act directly reg-
ulates only State and local entities and law enforcement—not
the federal government. 6
B. Discriminatory Treatment
Nor does the Illinois Act discriminate against the federal
government or its contractors. States may not single those
parties out “for less favorable ‘treatment’” or regulate them
“unfavorably on some basis related to their governmental
‘status.’” Washington, 142 S. Ct. at 1984, quoting first Washing-
ton v. United States, 460 U.S. 536, 546 (1983), and then quoting
North Dakota, 495 U.S. at 438 (plurality opinion). But a State
law is not unconstitutional merely because it increases costs
for the federal government, “so long as the law imposes those
costs in a neutral, nondiscriminatory way.” Id.6 The Act also does not directly regulate the federal government by
applying non-discriminatory regulations to private entities or local gov-
ernments—such as the Counties—that contract with the government. In
North Dakota, the Supreme Court addressed two State liquor control regu-
lations that caused out-of-state suppliers to stop shipping liquor to federal
military bases in the State. The Court said the regulations did not raise any
“concerns about direct interference with the Federal Government” be-
cause they operated only “against suppliers, not the Government.” 495
U.S. at 437 (plurality opinion). As a result, the regulations could not “be
distinguished from the price control regulations and taxes imposed on
Government contractors that we have repeatedly upheld against constitu-
tional challenge.” Id. (collecting cases). On the other hand, suppose that
Illinois tried to prohibit private businesses from selling food for federal
immigration detention facilities. That would be a discriminatory regula-
tion aimed at federal contractors and would be invalid under the inter-
governmental immunity doctrine.
18 No. 21-3334
The Supreme Court’s recent decision in United States v.
Washington provides a helpful illustration of impermissible
discrimination. At issue was a Washington State workers’
compensation law that applied only to federal contract work-
ers. The law made it easier for those workers to establish
workers’ compensation claims, thereby increasing costs for
the federal government. The Court concluded that the law vi-
olated principles of intergovernmental immunity by “singling
out the Federal Government for unfavorable treatment.” 142
S. Ct. at 1984. On its face, the law treated federal workers “dif-
ferently than state or private workers.” Id. It imposed costs on
the federal government that were not imposed on similarly
situated State or private employers.
The Illinois Act, by contrast, does not discriminate against
the federal government. As explained above, the government
still may house immigration detainees in its own facilities or
those of private entities. Nor does the Act discriminate among
political subdivisions: all counties and other local entities are
subject to the same restrictions. And they may continue to
provide detention services to the federal government for
other detainees. Nothing in the Act suggests that the federal
government or its contractors have been singled out “for less
favorable ‘treatment.’” 142 S. Ct. at 1984 (citation omitted).
To the extent the Counties argue that the Act discriminates
against the federal government because it affects an exclu-
sively federal domain, that argument also fails. Differential
treatment is critical to a discrimination-based intergovern-
mental immunity claim. See Washington, 460 U.S. at 544–45.
(“The State does not discriminate against the Federal Govern-
ment and those with whom it deals unless it treats someone
else better than it treats them.”); cf. North Dakota, 495 U.S. at
No. 21-3334 19
438 (plurality opinion) (framing discrimination inquiry as
whether burden is “imposed equally on other similarly situ-
ated constituents”). In this context, the Counties cannot iden-
tify any actors “similarly situated” to the federal government
that receive more favorable treatment under the Act. The
mere fact that the Act touches on an exclusively federal sphere
is not enough to establish discrimination. Cf. California, 921
F.3d at 881 (explaining that intergovernmental immunity “is
not implicated when a state merely references or even singles
out federal activities in an otherwise innocuous enactment”). 7
Finally, the Counties rely on GEO Group, Inc. v. Newsom,
15 F.4th 919 (9th Cir. 2021), vacated and rehearing en banc
granted, 31 F.4th 1109 (9th Cir. 2022), but that case highlights
the weakness of the discrimination argument here. The Cali-
fornia statute in GEO Group included a general prohibition on
operating private detention facilities. The statute carved out
several exemptions for private state prisons—without compa-
rable exemptions for federal facilities. California, the court
concluded, was “the only meaningfully ‘favored class’” under
7 In the Counties’ view, the Act discriminates against the federal gov-
ernment because it “prohibits the federal government from contracting
with local governments for detention, while the state and other local gov-
ernments remain able to participate in intergovernmental cooperation for
detention services.” But that is not an accurate characterization of the Act.
By its terms, the Act applies only to immigration detention services. See 5
ILCS 805/15(g)(2) (requiring termination of agreements “as applied to
housing or detaining individuals for civil immigration violations”). The
federal government—like Illinois and local governments—remains free
“to participate in intergovernmental cooperation” for other detention ser-
vices not related to immigration. The State’s refusal to cooperate in the
immigration context—a possibility contemplated by the relevant federal
statutes—does not constitute discrimination against the federal govern-
ment.
20 No. 21-3334
the law. Id. at 938, quoting Dawson v. Steager, 139 S. Ct. 698,
705 (2019). But see id. at 947–52 (Murguia, J., dissenting) (dis-
agreeing with panel majority’s intergovernmental immunity
analysis). The same cannot be said of the Illinois Way Forward
Act, which represents only a policy choice by the State not to
cooperate with the federal government’s detention operations
in Illinois.
* * *
Both the preemption and intergovernmental immunity
challenges fail as a matter of law. The district court properly
granted the motion to dismiss the action for failure to state a
claim.
AFFIRMED.