CHICAGO — As it advertised its so-called Operation Midway Blitz in Chicago, the Department of Homeland Security used social media to broadcast a now-familiar refrain.

In a string of posts on the platform X, the agency blasted state and local laws that restrict local authorities from participating in federal immigration enforcement. Officials included photographs of 11 men they called the “worst of the worst” who have been released from local jails and prisons, despite requests from ICE for administrative detainers.

Gov. JB Pritzker, in turn, has shot back that the Trump administration is trying to scare people, rather than work with officials to find real solutions to the city’s violence.

At its heart, the argument is rooted in long-held legislation, public policy and case law that separates immigration enforcement from local law enforcement activity – a wall that some experts and advocates say exists for good reason.

And law enforcement experts, legal scholars and advocates say any local jail or sheriff’s office, regardless of their state’s political posture toward immigrants, faces significant constitutional concerns in deciding whether to cooperate with federal authorities.

Though all 11 men had contact with the criminal justice system, the matters varied in seriousness.

Legal experts noted that Illinois law does allow for people in the U.S. without legal permission to be turned over with a court order. Authorities did not appear to have obtained such an order on any of the individuals about whom they posted on X.

“That is a feature of our democratic system, our constitutional system,” said Nicole Hallett, director of the immigrants’ rights legal clinic at the University of Chicago. “We don’t hold people forever without charge simply because we think they’re a bad person.”

In several cases, court records showed that after the men reoffended or allegedly violated the terms of their probation, officials had issued and executed a local warrant for their arrest, placing the men back into custody.

What is an ICE detainer?

A detainer is a nonbinding request from ICE to a local law enforcement agency to hold a person in custody for federal apprehension.

In statements to the Tribune, the Cook County sheriff’s office and the Illinois Department of Corrections said the Illinois TRUST Act does not allow the agencies to assist with federal immigration enforcement — including fulfilling administrative detainer requests from Immigration and Customs Enforcement — absent a federal criminal warrant or court order.

Passed in 2017, the TRUST Act was enacted to “bolster community trust and cooperation” between law enforcement and the populations that they serve, according to a fact sheet from the Illinois attorney general. Chicago’s path to becoming a sanctuary city goes back decades.

Hallett said detainers were in use under the Biden administration, but much less frequently and almost never in Illinois, where officials knew they would be ignored per local law.

The TRUST Act does mandate that local authorities turn a person over ICE if there is a court order. But, Hallett observed, that takes “a good amount of judicial process,” beginning with probable cause and arguing the evidence to a judge.

Detainers are much easier to fill out but their force is proportionately less, she said: “There’s no approval process. There’s no requirement that a judge look at it. It is just an administrative piece of paper that anyone who works for ICE can fill out for anyone they want.”

A string of previous Supreme Court cases have established it is unconstitutional for the federal government to compel local law enforcement to help with their priorities, said Daniel Rodriguez, a constitutional law professor at Northwestern University.

And even in jurisdictions that don’t have sanctuary laws, officials face tough choices when presented with detainers on people in their custody, mostly stemming from issues with the Fourth Amendment.

Ed Yohnka, communications director of ACLU of Illinois, said that judicial approval of warrants — a process that is absent in detainer requests — allows for greater accuracy and a higher standard of review.

“Even in moments that don’t have this aggressive surge of activity, ICE makes mistakes,” he said. “One of the realities of honoring detainers and one of the things that fell on state and local jurisdictions is they often held people for protracted periods of time …. and it turned out to be not even the person ICE was looking for.”

Sanctuary laws

In a black-and-white photograph in the Chicago Tribune, Mayor Harold Washington raised his right hand before he signed an executive order on March 8, 1985, that strengthened Chicago’s status as a sanctuary city.

“This is a long-term thing. This wasn’t something that happened in the last four years, not something that happened in the last 10,” Yohnka said. “The real kind of change is the idea that state and local governments can’t have their own policies about their own police department, that we have an administration that instead believes that everybody works for the president.”

Yohnka said sanctuary laws, which have a long history in the United States, were born out of a desire for good public policy and safer and more equitable communities.

“It just eroded that trust between the community and people they served,” Yohnka said of immigration enforcement cooperation. “We know that communities are safest when police and communities are working together.”

A 2017 study by the Center for American Progress and National Immigration Law Center found lower rates of crime and poverty in sanctuary cities as compared to non-sanctuary cities.

From a front-line police perspective, there are reasons that may push an agency not to cooperate with a federal detainer, said Sean Smoot, a policing consultant and the chair of the Illinois Law Enforcement Training and Standards Board.

“It’s going to be very difficult to encourage residents to report crimes if at the same time your actions or policies would make them fear deportation,” he said.

Still, city and state politicians have said they want a safe and prosperous city.

Were federal officials to get warrants on any of the men named in the release, Rodriguez predicted that the governor and any local law enforcement agency would be cooperative.

“We’re all on the same team,” he said. “We all want the same things.”

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