This argument from “LibertyLost” appeared in the comment section of the article able McHenry County State’s Attorney Patrick Kenneally brief arguing that the TRUST Act just signed by Governor Bruce Rauner is unconstitutional:
Defense of TRUST Act’s Constitutionality
Cal, I retrieved the brief from the system, but thank you for the response.
Cindy: “Not a Constitutional Scholar?”
I assume you mean me, not you.
However, I do have a J.D. and an LLM in Constitutional Law and Civil Liberties, but thank you for the broad assumption that I know nothing.
So, Article I, Section 8, Clause 4 reads, “… To establish an uniform Rule of Naturalization, …”. The 14th Amendment, Section 1 addresses the protection of “All persons born or naturalized in the United States,…” which extended citizenship through the States to the former slaves.
The former applies to Congress setting forth law of naturlization. The latter did make former slaves citizens of the United States.
Here, we are not talking about citizenship. As I’m sure you are aware, illegal immigrants on United States soil enjoy [most] of the constitutional rights of citizens.
The U.S. Supreme Court ruled in Zadvydas vs. Davis (2001) that “once an alien enters the country, the legal circumstance changes, for the due process clause applies to all persons within the United States.”
In a Texas case, Plyler vs. Doe, the U.S. Supreme Court ruled in 1982 that non-citizen children must get a free K-12 education.
So, aside from voting and a few other rights, illegal aliens enjoy those same protections as citizens.
The issue here is 5th and 14th Due Process Rights as well as 8th Amendment Rights against Cruel and Unusual Punishment (I can cite the Illinois Constitution correllary if you like as well).
Here, the State Congress has acted, and signed a bill stating that no person may be held after posting bond due to undetermined immigration status, unless a Federal warrant has been issued.
In this case, Prim’s office first refused to allow the posting of bond, a requirement under the State and Federal Constitutions.
Once that office was ordered by the McHenry County Judiciary to acceept said bond, the poster was informed that DESPITE LACK OF A FEDERAL WARRANT, they would continue to hold these persons of unknown citizenship pending reciept of an inquiry from ICE.
Those actions are utterly contrary to the plain language of the TRUST Act, which is so simply written, that a third grader, or common citizen would understand it.
Billy Bob, writing above, is quite correct in stating that there are constitutional issues here.
I have read the briefs of both parties and agree that there is disagreement, and no more.
However, this will be ultimately settled in a Federal Court, and ultimately, in the favor of the aggrieved parties (the wrongfully detained).
This political farce will end up costing us, the taxpayers, tens of thousands of dollars.
After Jenner wins the initial suit, they will file a Federal Civil Rights suit under 42 USC § 1983, and win that, and upon that win a petition for fees under 42 USC § 1988.
So, when this ridiculous legal bill is split amongst the McHenry citizenry (or more likely, Prim and the entire Sheriff’s Dept.) don’t bitch or whine about your uptick in taxes…
Prim will get his day in court and be dealt a monumental loss.
Or did you want to talk about the law….