Amid the ongoing “Operation Midway Blitz,” a federal immigration enforcement campaign launched in September in Chicago, U.S. Immigration and Customs Enforcement (ICE) threatened local government with a “shit show.” ICE’s parent agency, the Department of Homeland Security, now appears to be making good on that threat.
Since September 9, Midway Blitz has rolled out a now familiar playbook: arrests at home improvement stores, detentions of individuals and families based on “how they look,” aggressive and violent actions targeted at protestors, arrests of journalists, and even the deployment of drones, helicopters, and border patrol boats to the Chicago River. The administration’s campaign has reportedly resulted in almost 3,000 arrests.
In response, Chicago Mayor Brandon Johnson issued an executive order in early October that reaffirmed the city’s commitment to protecting immigrants by preventing ICE from using public property as a base for civil immigration enforcement, such as city-managed or owned vacant lots, garages, or parking areas. Illinois governor J.B. Pritzker called on ICE to pause immigration enforcement for Halloween in reaction to agents tear gassing children during a neighborhood Halloween parade. Members of the Illinois congressional delegation, including Senators Dick Durbin and Tammy Duckworth, demanded briefings from DHS and ICE.
But Chicago and Illinois could go even further. The crackdown is not only against immigrants but also against activists supporting those immigrants. Sanctuary protections—the laws and regulations that limit cooperation with federal immigration officials and related law enforcement—give officials a lawful roadmap to supporting local protestors and protecting the public’s safety alike by choosing not to assist federal agents in targeting demonstrators.
Generally, sanctuary policies ensure access to public services, protect vulnerable communities, and preserve local autonomy by prohibiting police from assisting federal immigration agents. In Chicago, for example, these policies, like many others, restrict state and local officers from complying with ICE requests to detain people for immigration purposes, sharing individuals’ contact information, custody status, release date, or other private information with immigration agents, or allowing immigration agents to access their detention facilities or people in their custody. Chicago’s municipal code also prohibits local officers and public officials from disclosing an individual’s immigration status to federal agents unless specifically required to do so by law or authorized to do so by the individual in writing.
But these policies have also proved vulnerable and limited in their scope. In Washington, D.C., the local government sidestepped sanctuary policies during the federal government’s immigration crackdown due to federal pressure, and police cooperation contributed to a dramatic increase in immigration arrests stemming from minor violations. Earlier this summer, the city of Louisville, Kentucky, also caved to federal threats to cut funds and rescinded some immigrant protections. In Illinois, sheriffs provide local jail space for immigration detention and the state police have given ICE access to information about residents, in apparent violation of state law.
Moreover, sanctuary laws like those in Chicago only prohibit immigration-related assistance to ICE, leaving officials free to lend broader support to homeland security crackdowns, including against protestors. This is a major shortcoming. In the Chicago area, local police have collaborated with federal agents by jointly policing regular protests outside the Broadview ICE detention center, notably setting up designated protest areas behind barricades. On November 1, the Illinois State Police and several local agencies joined forces with federal agents to overwhelm a relatively small group of activists outside the Broadview facility. This direct support of ICE operations by local authorities has gone on for the last month.
Yet sanctuary policies are lawful and constitutionally protected. Cities and states are not obligated to assist federal agents in enforcing immigration law, nor are they required to deploy local police against demonstrators opposing those agents. Under the Tenth Amendment, local governments have the authority to decline cooperation with federal enforcement efforts that conflict with their own laws or priorities. In practice, that means that municipalities like Chicago can extend sanctuary protections beyond immigration contexts to shield protest activity, ensuring that local resources are not used to police peaceful demonstrators on behalf of federal agencies.
A federal judge in the Northern District of Illinois reaffirmed this principle this summer, dismissing the federal government’s lawsuit challenging the sanctuary policies of Chicago, Cook County, and Illinois. The court held that the Tenth Amendment gives states the power to decline to cooperate with federal authorities. In its complaint—and in at least ten similar suits in other jurisdictions—the United States alleged that sanctuary policies violate the Supremacy Clause of the U.S. Constitution. The federal government’s central theory is that the sanctuary policies interfere with Congress’s desire for efficient immigration enforcement that involves collaboration with local governments, expressed in 8 U.S.C. § 1373.
Rejecting this argument, the district court joined every other federal district court to find that the federal law, which deals narrowly with “immigration status” information, ultimately does not explicitly supersede the state and local sanctuary policies at issue. The court found that the policies do not undermine the federal government’s goals set out in section 1373 because that law establishes entirely optional cooperation between federal immigration agents and states. In other words, the court affirmed that the law does not require collaboration between local police forces and federal agents and that Chicago’s sanctuary policies do not direct affirmative disruption of federal law enforcement. So even if local inaction may make immigration agents’ jobs harder, it is not against the law.
Moreover, the court affirmed that allowing Congress to dictate how state and local agencies operate would violate the Tenth Amendment’s anticommandeering doctrine, which holds that the federal government cannot direct state government action. That is precisely what the federal government has sought to do in its lawsuits and in its rhetoric about policing both immigrants and protestors since landing in the Chicago area.
Sanctuary policies like Chicago’s not only are legal, but they also serve a vital public safety purpose, an essential function of state and local police power. Multiple empirical studies confirm that sanctuary policies at worst have no impact on general crime rates and at best actually reduce them, for example by making it safer to report domestic violence. Other research shows that heightened immigration enforcement reduces the willingness of victims of domestic violence and other crimes to seek assistance, and creates incentives for employers to exploit immigrant workers.
Sanctuary policies also help mitigate those harms by encouraging trust between immigrant communities and local law enforcement. Chicago highlighted this in its defense against the government’s lawsuit, noting how its city council determined that requiring local police to enforce immigration law “would chill effective law enforcement because fear of deportation would lead witnesses and victims to avoid cooperation with police.” As Chicago explains, these sanctuary policies allow local police to remain focused on their core responsibilities while having no impact on the deportation of individuals with violent convictions—the so-called “worst of the worst” that ICE claims to target.
Illinois officials could build on these legal principles by choosing not to expend resources to help homeland security agents defend ICE facilities, for which thousands of federal agents are already available. In fact, they must do so in the face of dangerous, disingenuous White House directives that disparage opposition to federal immigration policy as terrorism. The Tenth Amendment’s anticommandeering doctrine allows local governments to extend sanctuary policies to prohibit the use of their police departments to counter protests near ICE facilities, shield Illinois’ information about protestors from access by the federal government, remove federal police and intelligence officers from local facilities that grant them easy access to data about residents, and otherwise prohibit the federal use of local resources in these operations. Simply refusing to block streets on behalf of ICE is another easy way to start.
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Local governments must exercise their constitutional power, reaffirmed recently by the courts, to cut off cooperation with federal authorities that undermine their residents’ safety, rights, and trust.
