Wisconsin
Supreme Court Threatens To Obstruct Immigration Enforcement
By:
Daniel Lennington
December 15, 2025 thefederalist.com
If
the state supreme court declares Wisconsin a sanctuary state, the unintended
consequences may include more ICE agents in the state.
Wisconsin
has two sanctuary cities: Madison and Milwaukee. Officials in those jurisdictions
won’t cooperate with ICE. Now Wisconsin could become a sanctuary state due to a
new case pending at the Wisconsin Supreme Court.
Contrary
to media images of ICE agents rounding up illegal immigrants on street corners,
most deportations originate with local law enforcement. A person is arrested on
state charges (drunk driving, domestic abuse, or sex assault, for example) and
then booked into the county jail. In Wisconsin, like most states, county jails
are run by sheriffs.
If
the criminal is an illegal alien, and ICE learns of the arrest, then the agency
will send the sheriff an “immigration detainer,” also known as an “ICE hold.” These
detainers ask the sheriff to hold the alien for up to 48 hours after release
from the state charges so that ICE has time to arrange for pickup.
Some
sheriffs formalize their relationship with ICE through something called a 287(g) agreement. This is a
federal agreement whereby the jail automatically checks all names booked into
the jail against the federal ICE database. When there is a hit, ICE sends a
detainer, which is honored. In exchange, ICE gives the local agencies grants,
equipment, training, and other benefits. There are 13 counties in Wisconsin with these agreements. But whether
an agreement exists or not, nearly all Wisconsin counties cooperate with ICE
and honor detainers (except for the aforementioned two cities).
ICE
detainers are common in Wisconsin. According to one estimate, there were 1,065 holds issued to Wisconsin jails in the first five
months of 2025. Ironically, Wisconsin’s Democratic Gov. Tony Evers actually has
a policy
mandating that the state Department of Corrections comply with ICE holds. So as
far as Gov. Evers is concerned, ICE detainers are just fine for those illegal
immigrants held in state prisons.
The New Case
Earlier
this month, the Wisconsin Supreme Court decided to hear
a new case, Voces de la Frontera v. Gerber. The question presented
is whether Wisconsin sheriffs have the power under Wisconsin state law to honor
immigration detainers.
The
petitioners’ main argument is that sheriffs do not have the power to arrest for
civil infractions, and because immigration detainers are essentially a civil
process, these detentions exceed the powers of sheriffs.
The
argument is not as straightforward as the petitioners would like. First, ICE
detainers come with administrative arrest warrants. And so a sheriff honoring a
detainer is agreeing to exercise delegated federal power and hold that alien
pursuant to federal law. This is simply a federal-state agreement, which is a
common feature of modern law enforcement. In fact, Wisconsin sheriffs have
independent legal authority under state law to enter into cooperative
agreements with federal agencies — they do it all the time. If the Wisconsin
Supreme Court holds that sheriffs have no power to honor federal warrants, and
as a consequence no power to enter into agreements with federal partners, then
that holding would jeopardize many existing relationships between state and
federal agencies (and the funding that comes with it).
Second,
sheriffs have authority to hold individuals based on probable cause that a
crime has been committed. Illegal aliens, by virtue of their unlawful presence
in the United States, likely violated 8 U.S.C. § 1325. It is a crime to enter
the United States without permission. An alien’s unlawful presence is probable
cause that a crime has been committed. Additionally, under 8 U.S.C. § 1226,
illegal aliens who violate state criminal laws are considered “criminal aliens”
under federal law. And any alien in the United States who is undocumented has
failed to register, which is a crime in violation of 8 U.S.C. § 1302. ICE, in
fact, could likely clear up much of this legal argument by simply telling
sheriffs that probable cause exists that the alien violated federal criminal
law.
Leftist Tactic in Other States
The
fact that the court granted this request is a sign that it wants to grant the
relief requested by petitioners. They could have allowed this case to percolate
in the lower court, ironing out all the complicated factual issues presented by
the federal policy. But they didn’t. The Wisconsin Supreme Court is in the firm
grip of a 4-3 liberal majority.
This
lawsuit is the latest part of a nationwide strategy. Similar lawsuits have been
filed and succeeded elsewhere, such as Minnesota, New York, Montana,
Massachusetts, and Colorado. These lawsuits used the same tactic: getting a
left-leaning court to declare that state law prohibits state cooperation with
ICE detainers.
Impending Court Election
Briefing
will be completed over the next 60 days with an argument likely in February or
March. The timing is interesting, especially given an impending Wisconsin
Supreme Court election in April 2026. Injecting illegal immigration into that
race could certainly shake things up, especially with approximately 69,000 illegal immigrants in Wisconsin and splashy stories of their criminal activity.
Another
wild card is the Trump administration. It has not intervened in any of the
previous state cases, but could here. The case raises the issue of federal
preemption, which the Wisconsin Supreme Court tacitly acknowledges with their
reference to 287(g) agreements in the briefing order. Are sheriffs exercising
delegated federal power? Are aliens in county jails pursuant to a detainer
actually in federal custody? If either of these questions’ answers is “yes,”
then this raises a preemption issue that could provide an avenue for review by
the U.S. Supreme Court. An intervening Trump administration would raise the
chances that the U.S. Supreme Court would step in and take the case.
But
if this case just plods along as expected, then the likely result is a ruling
that local officials cannot honor ICE holds, thereby obstructing ICE
immigration enforcement in Wisconsin. The unintended consequences may include
more ICE agents in Wisconsin, taking people off the street outside of jails and
courtrooms. That’s a scene no one wants, but it may be inevitable if the court
declares Wisconsin a sanctuary state.