A bill introduced In Illinois last week would ban the state from using resources to help enforce some federal immigration programs, effectively nullifying their implementation within the state.

Senate Bill 22 (SB22), introduced by State Sen. John Cullerton as the Illinois TRUST Act, bars law enforcement officers from participating in a federal immigration policy that asks states to hold people in custody even after they are eligible for release under state law. It reads, in part:

A law enforcement agency may not detain or continue to detain any individual on the basis of any immigration detainer or administrative warrant, or otherwise comply with an immigration detainer or administrative warrant, after that individual becomes eligible for release from custody.

It also bars law enforcement from giving immigration agents “access to any individual or allow any immigration agent to use law enforcement agency facilities for investigative interviews or other purposes.”

The bill correctly cites the lack of federal authority to compel state law enforcement agencies to assist them in carrying out federal immigration laws and the problems that have resulted in having the state do so.

Under the anti-commandeering doctrine, repeatedly affirmed by the Supreme Court, the federal government does not have the constitutional authority to require state to enforce their acts, or regulatory programs. The modern cornerstone was the Printz case in 1997, where Justice Scalia wrote for the majority:

The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, 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.

“The Illinois criminal justice system has become increasingly entangled in enforcement of federal civil immigration laws, and has been used by U.S. Immigration and Customs Enforcement (ICE) as a vehicle for identifying individuals whom that agency can target for detention and from the United States,” the bill continues.

On top of that, several federal court have recently held that local law enforcement agencies that hold individuals solely based on immigration detainers can be held liable for violations of the individuals’ rights.

“All of these costs are borne by local taxpayers,” the bill states.

Should SB22 pass, Illinois would become the third state to have such a law, along with California and Connecticut. With state-level resistance to federal marijuana prohibition reaching historic levels, this represents an expansion of the nullification movement on the left.

“Look, we don’t believe that progressives are with us on many issues, like health care and gun control,” said Michael Boldin of the Tenth Amendment Center. “And conservatives often aren’t with us on issues like hemp and marijuana. But the fact is, the federal government doesn’t have the authority to compel states to do virtually anything, and people on both sides are learning to say ‘No.'”

SB22 also contains penalties for law enforcement agencies who violate the provisions of the bill, allowing anyone to file a lawsuit in a  circuit court against them. If the judge determines they in fact violated the law, they will issue a rebuke or even order disciplinary action against the officials found culpable, including remedial training. If a judge discovers in a subsequent action that an agency has violated an injunction imposed for violating the law, the court can order them to pay a civil penalty between $1,000 and $5,000 for each incident.

Boldin considered this an educational tool for activists. “The most successful nullification efforts in modern times, marijuana and hemp farming, have come from the left,” he said. “This happens because even when the feds push back, they continue on with what they want to do in their states anyway. The right should learn from this and take the same approach on issues important to them.”

SB22 has been referred to the Assignments Committee where it will need to be passed by a majority before the full Senate can consider it.

TJ Martinell

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