Tipsheet

Wisconsin Supreme Court Seeks to Defy Federal ICE Detainers. There's Just One Problem.

Amy Curtis
Amy Curtis  |  December 12, 2025 8:30 AM

The Wisconsin Supreme Court flipped from having a conservative majority to a liberal one back in April. It was a disastrous move, because not only has the Court overturned the state's long-standing abortion ban, but it may also scrap Act 10, the decade-old union-busting law that has kept Wisconsin property taxes in check and given more freedom to schools.

Now the Court is seeking to defy federal law and ban ICE detainers in the state. The ACLU has filed suit in the state over ICE detainers, arguing it's illegal to for local authorities to hold illegal immigrants for ICE. Here's more on NBC News:

A divided Wisconsin Supreme Court on Wednesday agreed to take a case brought by the American Civil Liberties Union on behalf of an immigrant rights group arguing that it is illegal for local jails to hold immigrant detainees at the request of federal authorities.

The Wisconsin lawsuit comes as federal agents have launched high-profile immigration crackdowns in cities including Chicago and Charlotte, North Carolina. Another operation is expected in the coming days in Minnesota, targeting Somali immigrants. The enforcement tactics have been met with protests and lawsuits.

A majority of justices on the Wisconsin Supreme Court voted to take the ACLU case directly as an original action, rather than have it first work its way through lower courts. The court is controlled 4-3 by liberal justices.

Of course, it has no authority to do so, thanks to the 10th Amendment and federalism.

The Wisconsin Supreme Court is looking at "whether or not a federal government agency like ICE can come in and say without a valid warrant from a judge."

O'Donnell reminded the Court that much of ICE's authority stems from the Democrats. "Blame Bill Clinton for this. The 1996 Immigration Act gave a whole lot of authority to this agency and to CBP, Customs and Border Patrol."

Of course, the Court has no authority to do this.

O'Donnell called the Court "gluttons for punishment," noting that they had already been unanimously smacked down by the U.S. Supreme Court. In that ruling, the Supreme Court overturned a Wisconsin Supreme Court ruling that refused to give Catholic Charities the same exemption from the state's unemployment taxes that it gives churches and other religious organizations. Wisconsin Attorney General Josh Kaul is now seeking to do away with the exemption for all religious organizations.

But back to the issue at hand.

"The liberal justices obviously want to declare these [detainers] unlawful, but unfortunately for them, the Constitution and 230 years of unbroken federal supremacy stand in the way," O'Donnell said. 

Detainers, O'Donnell said, are "nothing more than a request" that asks a local jail to hold an illegal immigrant for up to 48 hours. "This is explicitly authorized by federal law," O'Donnell said. "It trumps state law and state supreme court decisions."

Article Six, Clause Two of the Constitution, the Supremacy Clause, makes federal law "the supreme law of the land," O'Donnell said. There is also precedent for this. 

"Wisconsin courts don't get to overrule Congress on immigration enforcement," O'Donnell said. "Federal courts have already upheld ICE detainers. The Tenth Circuit ruled in Mercado v. Dallas County in 2017 that states and municipalities may decline to honor detainers, but they can't be prohibited by state law from doing so because...that would violate the Supremacy Clause. In 2020, the Third Circuit reached a similar conclusion in Lopez v. Pennsylvania."