I am writing out of concern for the facts and opinions expressed by the Northwest Herald Editorial Board in its September 15, 2017 editorial, “Trust Act goes too far.” The editorial addresses a current dispute as to the McHenry County Sheriff’s detention of our client, Niceforo Macedo-Hernandez, now that the Illinois Trust Act is the law in Illinois. The editorial takes a stance that is based on several significant factual errors, and draws a conclusion impaired by such errors.
The Illinois Trust Act recognizes and codifies what is already the law: “State law does not currently grant State or local law enforcement the authority to enforce federal civil immigration laws.” (Section 5, “Legislative Purpose.”) The Act proceeds from this predicate limitation, and sets out what that means for local law enforcement. Because State and local law enforcement (like the McHenry County Sheriff) have no authority to enforce federal laws, they are prohibited from doing so. Section 15 of the Act is titled: “Prohibition on enforcing federal civil immigration laws,” and lists what local law enforcement can and cannot do.
There is nothing complicated about these two basic rules to the Act:
First, because the Sheriff has no authority to enforce federal laws, the Sheriff cannot detain or continue to detain a person because of the detainee’s citizenship or immigration status. Importantly, the Sheriff never had the authority to enforce federal immigration law, and thus the Act has not deprived the Sheriff of any powers, or required him to do something new or different.
Second, because the Sheriff has no authority to enforce federal laws, no federal official or agency can confer upon the Sheriff this authority through informal “requests” or contracts, or agency warrants (identified as a “non-judicial immigration warrant,” or a “immigration detainer.”) The Sheriff is not “deputized” as a federal agent with authority to enforce federal laws by a letter or contract.
These types of documents – immigration detainers and “warrants” that are not signed by judges – cannot give anyone authority, because these documents themselves lack authority. Last year, a Federal Court entered judgment that such immigration detainers are void even when used by federal law enforcement, because the detainers exceed the authority conferred by federal law. According to federal law and federal courts, any document short of a warrant signed by a judge is void and exceeds the authority provided by federal law. Thus, an immigration detainer is void for a federal agent, void for an Illinois law enforcement official, and void for the McHenry County Sheriff.
Thus, the Trust Act is not a sanctuary law and was not drafted, introduced, or passed in order to provide sanctuary to undocumented immigrants. It does not provide any person any new rights or protections relative to immigration. It does not impose on local law enforcement any duty that did not already exist, and does not prohibit local law enforcement from executing any of its authorized duties. However, the Northwest Herald editorial board has used terms like “amnesty” and “sanctuary” in connection with the Act, which suggests that the Act somehow impairs the Sheriff’s ability to enforce the law. It does not. The Act does not prevent holding undocumented immigrants accountable, and certainly does not promote the “protection of undocumented immigrants.” The Act merely codifies that local law enforcement enforces local laws, and federal law enforcement enforces federal laws. This does not create any discord between state and federal laws, as the editorial suggests, but actually does the opposite.
As it concerns our client, Mr. Macedo-Hernandez, the Trust Act should have provided McHenry County law enforcement guidelines as to what are and are not Macedo-Hernandez’ rights. Macedo-Hernandez was charged with a misdemeanor crime and arrested. He has not been convicted of such crime. A McHenry County judge entered an order setting bond and permitting Macedo-Hernandez to post bail. Under Illinois law, upon payment of bail, a defendant is free to leave and shall be released. However, many detainees of the McHenry County Jail report that when their family try to post bond, the Sheriff’s correctional officers have not accepted such bond payment. That is what happened here, when the Sheriff’s correctional officers did not permit Macedo-Hernandez’ family to pay bail. We had to appear before the judge in Macedo-Hernandez’ case and report to the judge that our client’s right to post bond was being frustrated by the Sheriff’s department. Notably, the Assistant representing the McHenry County State’s Attorney initially objected to any order permitting Macedo-Hernandez to post bond. When the Assistant State’s Attorney withdrew his objection, the judge entered an order providing that Macedo-Hernandez be permitted to post bond.
That same day, Sheriff’s correctional officers accepted Macedo-Hernandez’ bond payment, but refused to release Macedo-Hernandez. Not coincidentally, at the same time the judge was ordering that our client be permitted to post bond, at the other side of the building in the County Jail, an officer with the Department of Immigration Custom Enforcement (ICE) was preparing paperwork to move Macedo-Hernandez. Thereafter, our client was transported to a Wisconsin county jail – also not coincidentally, outside of the jurisdiction of the McHenry County Circuit Court.
These facts are not only of concern to immigrants, or undocumented immigrants. All such facts are relevant to every person who lives in McHenry County, because they raise issues relative to all of us, who we are, and our rights relative to local law enforcement. Our Illinois Constitution begins with a statement as to what are our “Inherent and Inalienable Rights” relative to our government:
All men are by nature free and independent and have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.
Further, these inalienable rights precede the law in terms of priority and primacy:
No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.
Put simply, the government exists to serve us, and our laws originate from our consent to be governed, with only one purpose: to secure our rights. These rights are inalienable, except upon the proper exercise of the law without regard to our race, age, class, religion, or other distinguishing factors. The law does not dictate what are our rights. Our rights dictate what is the law.
One’s freedom is chief among these fundamental rights, and thus, we expect that only upon the most extraordinary circumstances can one be deprived of such right. We consent to the McHenry County Sheriff’s authority, because we want him to guard against those who might infringe upon our rights. His authority only exists pursuant to our consent, and he, too, serves to preserve our rights.
Thus, we are right to scrutinize the Sheriff’s exercise of his authority.
Here, the Sheriff has taken a position as it concerns the rights of individuals whose immigration status is unknown, like Macedo-Hernandez. The Sheriff contends he is free to detain such individuals beyond the period of time authorized by Illinois law, even after such individuals have posted bond, and regardless of their rights or the limitations of his authority. This conduct violates the Trust Act. There is no way around this – the Sheriff is violating the law.
The Sheriff seems to believe that he can do this because of the contract between McHenry County and the United States government. For some time now, McHenry County has had a very lucrative contract with the federal government to house federal detainees. McHenry County receives between $7.5 million and $8.2 million a year from the United States’ Government, to provide housing and transportation to inmates in federal custody. The contract typically applies to inmates that are in the custody of the department of Immigration Customs Enforcement (“ICE”), or who are transported by McHenry County correctional employees for ICE. Even though McHenry County is a local government entity, and ICE is a federal government entity, the contract is a private agreement between the two, like any other contract. The contract does not and cannot change the law, for either entity.
The contract does not excuse the Sheriff from complying with the Trust Act. The Trust Act forbids the Sheriff from detaining or continuing to detain Macedo-Hernandez after the posting of bond, and in the absence of a valid warrant to hold Macedo-Hernandez. Macedo-Hernandez has filed a complaint against the Sheriff, on his own behalf, and on behalf of a class of individuals at risk of being detained under similar circumstances. Macedo-Hernandez’ complaint asks the McHenry County Circuit Court to apply the Illinois Trust Act to the circumstances here, and declare what are Macedo-Hernandez’ rights. The concern here is that the more individuals the Sheriff illegally detains, turns over to ICE but continues to detain, the more money McHenry County receives. This is the problem, not the objective.
However, your editorial concludes that, “If the act prohibits McHenry County and any others from housing federal immigration detainees in their jails, then it should be changed.” Respectfully, this is simply the wrong conclusion, for several reasons. First, it is wrong on the facts, as the Act does not prohibit the Sheriff from housing detainees who are lawfully detained by a judge’s warrant. The Act prohibits only unlawful detention of federal immigration detainees. No one – not federal law enforcement, not local law enforcement, and not the Sheriff – can detain an individual without requisite legal authority. The Trust Act does not change the law as to what is the scope of the Sheriff’s authority, and thus, has nothing to do with whether the County loses money or this contract.
Second, your conclusion is wrong because it prioritizes revenue over anything else. There are lots of ways to make money, not all of which are legal. Here, the fact that McHenry County may profit from violating the law does not legitimize the violation, or cast doubt on the law. Put simply, the $8.2 million contract is not the yardstick that measures the law. It is the other way around, and so far, that $8.2 million contract is not faring well. Ultimately, the Sheriff’s violations of the law will cost the county well more than $8.2 million dollars.
Finally, your editorial statement that, “The Trust Act would have state law enforcement and corrections agencies totally ignore any immigration concerns,” misses the point. Immigration is not a matter of state law enforcement. It was not before the Trust Act, and it is not after the Trust Act. It is not the “concern” of state and local law enforcement. If state law enforcement lacks the authority to enforce immigration laws, why should state law enforcement be concerned, and why is this a source of your criticism? State law enforcement has no business enforcing federal laws relative to federal taxes,
interstate trade, or maritime disputes, etc. – and thus has no “concern” as to such areas of the law or state residents’ violations thereof. Immigration should be no different in this respect. However, somewhere down the line, many have come to believe that suspected undocumented immigrants are fair game for anyone “concerned,” whether you are the local sheriff, city police officer, security guard, or the front desk staff at the Motel 6.
A very real threat to your readers, and about which we should all be concerned, is the abuse of power by those individuals we trust. Our institutions of law and justice only work when they are guarded by those who revere them, and do not exploit them for personal gain or for a personal agenda. There is no category of humanity that is worth so little that we can view them as a mere commodity. There is no price at which the per diem revenue for the unlawful detention of any person should be tolerated. Respectfully, your editorial should have been titled, “Trust Act does not go far enough.”