What power do Illinois, Chicago have to fix migrant crisis?

The increase in asylum seekers arriving in Chicago is stressing communities and exhausting resources. What exactly can states and local governments do?

Chicago has experienced a surge in the migrant population, with over 17,000 arriving since last year. Many of them are recent asylum seekers.

So what can be done by the state and city to manage the issue?

Here’s what they have done so far:

• The state of Illinois is providing $38 million and the city another $4 million to give migrants temporary rental assistance.
• Chicago Mayor Brandon Johnson has proposed budgeting $150 million in the next Chicago budget to care for migrants, but that amount is less than half of what migrant care cost in 2023.
• The Chicago mayor has proposed building a “winterized base camp” of tents to house the migrants, but has not yet found a suitable location.
• Gov. J.B. Pritzker announced more than $40 million in grant awards for local governments in the Chicago area to support asylum seekers.

All of these moves are short-term fixes, and residents have begun to complain about the increasing aid to migrants crowding out services to their own communities.

So how much more can Illinois or Chicago do about the migrant crisis? What must they leave to the federal government?

Federal authority

The U.S. Constitution gives Congress the authority to establish a uniform rule of naturalization, and this clause has been interpreted to mean the federal government has the primary responsibility for immigration laws as well. Because of the Constitution’s Supremacy Clause, federal law can preempt any state law when it comes to immigration. Deportation and civil immigration law enforcement are under the exclusive purview of the federal government.

Some have called on the Biden administration to expedite work permits for undocumented migrants, but federal law currently requires asylum seekers to wait about 180 days before they can apply for permission to work legally in the United States. It would take an act of Congress to change that law and allow asylum seekers to legally work sooner.

State authority

States hold what are known as police powers, and have broad authority outside of the powers exclusively granted to the federal government or prohibited to the states.

States have been permitted to require employers to check their employees’ immigration status and revoke or suspend state-issued business licenses if they hire undocumented workers. They can also choose to issue or refrain from issuing drivers licenses or other identification to unauthorized immigrants. States may choose not to cooperate with the federal government in enforcing federal immigration laws, but they cannot pass their own state laws on immigration.

Some states are exploring the limits of their authority. New York is floating the idea of issuing their own state work permits for asylum seekers so they become less of a burden on local social services. Circumventing federal wait periods through state work permits is likely to face legal challenge, and it is not clear states have the authority to do so. The UCLA Center for Immigration Law and Poverty has proposed state universities or other state entities could hire asylum seekers without running afoul of federal law. The University of California regents are planning to hire undocumented students under this theory. That strategy seems to have more sound footing in statute and case law, but it has not yet been litigated, either.

Local authority

Local government authority is entirely derived from state authority, and it differs from state to state. In Illinois, home rule units are granted additional authority. In general, a home rule municipality has any authority that is not denied to it by state law. This means a home rule municipality such as Chicago has all the options available to the state except where state law prevents it. Chicago could therefore theoretically hire undocumented migrants under the same theory the state would rely on. The city could likely require employers to verify employee immigration status, but as in the case of the state, would likely be less able to issue their own work permits to asylum seekers.

Conclusion

While there may be some options open to state and local governments, the federal government has authority over immigration laws in the United States. Illinois and Chicago may be able to make it easier – or more difficult – for migrants to work within their jurisdictions, but any permanent solution will likely rest with the U.S. government.