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….
Arguments such as this that are headed into the court system occur for the same reason that we have horse races: That being that gentlemen can’t agree on which horse is faster.
Win or lose I’m with Sheriff Prim and States Attorney Kenneally.
Not taking the bait, Cal.
Cal:
Who is this uncharacteristically attention-adverse pleader of causes?
This case will be combined with dozens of others from all over the State to go through the Federal Courts.
When it is finally decided by the Supreme Court, Trump will have appointed a replacement for Kennedy (who is talking retirement now) and Ginsberg will have been replaced, as she is falling asleep during oral arguments and losing control of basic bodily functions on the bench, like Douglas did.
The cost savings to the communities by permanently ridding ourselves of criminal illegal aliens (not intended as a redundancy) will far outstrip the costs of Mr. Kenneally et al. efforts on our behalf.
Obviously, the attorney here did not major in economics.
Oh Chuck.
When this case goes to the Supreme Court, Trump will be in Prison.
You lost to him once, you will lose to him again.
Loser.
And Kenneally will win this case.
I have to be skeptical of a self-professed expert in “Constitutional Law and Civil Liberties” who is willing to opine on a topic as complex as federal preemption by speaking in generalities.
You’d think that with all the state-level immigration laws on the books that similar issues that could give us guidance would have gone before the Supreme Court before.
Guess what–they have.
A good place to begin your remedial reading is Arizona v. United States, 567 U.S. ___ (2012).
There, the Supreme Court said that Arizona’s law that increased penalties for illegal immigration into the state was completely preempted by federal law because alien registration is “a field in which Congress has left no room for States to regulate.”
Congress has express regulations directly on this issue.
See 8 U.S.C. § 1357(a)(2) (authorizing ICE agents to “arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.”).
But wait, you say.
That’s what we’re talking about!
No one has issued a warrant for the arrest of the illegal aliens held in the McHenry County Jail!
Aren’t the ICE agents exceeding the scope of their federal powers by having the illegal aliens held without warrant? T
hat used to be true but not anymore.
In October 2016, ICE lost a class action in the Northern District of Illinois (and that is the highest court to consider this issue because it was immediately made moot–keep reading) challenging ICE detainers. See https://immigrantjustice.org/sites/default/files/content-type/press-release/documents/2016-11/JimenezMoreno-NDIL-ruling.pdf
How did ICE respond?
It has attached to every ICE detainer since March 2017 both an administrative warrant ordering the suspected illegal alien’s arrest (https://www.ice.gov/sites/default/files/documents/Document/2017/I-200_SAMPLE.PDF) and a warrant of deportation/removal (https://www.ice.gov/sites/default/files/documents/Document/2017/I-205_SAMPLE.PDF).
Unless the feds screwed up the McHenry County cases by not following their uniform nationwide policy of issuing these warrants, I can guarantee that the guys in the Jail have had these warrants issued for them.
Going back to the federal preemption issue, do ICE agents have the authority to issue these administrative warrants?
Yes. See 8 U.S.C. § 1226(a) (law authorizing the warrants) and 8 CFR § 287.5(e)(3) (delegating power to issue the warrants to just about every immigration-related federal employee who has taken a course).
But wait you again say.
These administrative warrants are newfangled (arising from a policy shift in March 2017), and I don’t trust that they afford suspected illegal immigrants enough due process!
Can’t we make a Fourth Amendment challenge?
Sure, but you’d lose.
The Supreme Court upheld the practice of issuing administrative warrants in the one time the issue has come before it. See Abel v. United States, 362 U.S. 217 (1960) (holding that no, illegal immigrants don’t have the Fourth Amendment right to have their deportation warrant issued by a neutral and detached magistrate).
Abel is an old case, but our federal intermediate appellate courts still cite it as good law.
See, e.g., United States v. Lucas, 499 F.3d 769, 776 (8th Cir. 2007) (citing Abel in upholding the arrest and ensuing search on an administrative warrant of an escaped convict).
God bless all countries and all immigrants. Deport former members of the legion of justice…tic, tock, tic, tock…
Law suits should be tried in courtrooms not in the media and certainly not on gossip blogs that dont even qualify as media
If Prim followed this, he would have to release ALL of them.
That lot includes a large number of felons with serious issues.
He would be remiss in ignoring the safety of the McHenry County citizens.
Perhaps he should release them and Angel and his lot should have them as there house guests!
Here is the text of the Trust Act:
http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=100-0463
It is Public Act 100-0463 (PA 100-0463) signed August 28, 2017 by Republican Governor Bruce Rauner.
It was Senate Bill 31 (SB 31) which passed the House on May 29th (62 yea – 49 nay) and the Senate on May 31st on a concurrence vote (37 yea – 17 nay), and was sent to the Governor on June 29th, 2017.
+++++++++++++
The text is nowhere close to 3rd grade reading level.
LLavona for County Commissar!
Oh, does that mean the little liar Jacko will have to step down?!
Good Luck Sheriff and State’s Atty.
How many illegals in McHenry County?
Does the Llavona know?
As liberty lost said “So, aside from voting and a few other rights, illegal aliens enjoy those same protections as citizens”
I say, let’s get rid of the illegal aliens.
Round them up, and deport, post haste.
Very simple solution.
Nobody seems to have the balls.
Sunshine blogger: I’m insulted when reading the abominable comparison of our glorious sunshine blog to a “gossip blog.” This person obviously ignores your tremendous contribution to our judeo-christian civilization in general, and to journalism in particular. Tic, tock, tic, tock…
How dumb and stupid have some of our general populace and some elected officials and politicians have become in bending over backward and ignoring our immigration laws in the mistaken defense of illegal aliens in our nation.
Get rid of them all.
Let these persons, no matter where they came from – Russia, Poland, Romania, Mexico, etc – go back to their native countries and then legally apply for immigration to come back into our U.S. Nation.
There is no other way.
People who proclaim to be citizens of the U.S. and advocate for illegal aliens to stay in the U.S., and with “rights” no less, are incredibly naive and are “useful idiots” for the far left wing lunatic fringe of the Democrat Party.
This Party, by the words and actions of their leaders over the last 8 years, clearly will destroy our Nation if given their way.
I located Llavona:
https://boingboing.net/images/xeni/brozo-el-drama-tras-el-payaso_279__ce31.jpg
Here he is again … from his teaching days:
https://octorarataxes.files.wordpress.com/2013/06/cartoon-like-third-graders-lfs-990.jpg
An attorney once told me that their opinions have the same as rule as the rest of us-
“They are like a@@holes, everyone has one.”
**If Prim followed this, he would have to release ALL of them. That lot includes a large number of felons with serious issues.**
Uhh… no.
That’s not how it works.
Maybe you should actually read the law?