Judge Dismisses DOJ Suit Over Philadelphia ICE Detainer Ban

A Trump-appointed federal judge in Philadelphia has thrown out, with prejudice, the Justice Department’s claim that federal immigration law overrides the city’s ban on holding people for Immigration and Customs Enforcement. His reasoning points at Congress, not at City Hall.

On November 5, 2026, U.S. District Judge Chad F. Kenney of the Eastern District of Pennsylvania dismissed the two counts in United States v. City of Philadelphia (Civil No. 26-4208) that targeted Philadelphia’s ban on honoring immigration detainers. In a 20-page memorandum, Kenney held that the federal statutes and regulations the government invoked do not preempt the ordinance, because “compliance with an immigration detainer is voluntary.” He dismissed both counts “with prejudice because any amendment would be futile,” which means the Justice Department cannot fix the claims by redrafting them in this court.

The ruling does not end the case. Other counts in the amended complaint remain, and the judge ordered the city to answer them by November 19, 2026. Those include the government’s separate challenge to Philadelphia’s ordinance restricting masks and identification for federal officers, which Kenney had already blocked in July.

What the coverage has missed

Local reports, led by The Philadelphia Inquirer, accurately reported the outcome. Several points in the opinion itself got less attention.

The government conceded the key precedent was binding. The Justice Department argued that a 2021 Third Circuit decision, Ocean County Board of Commissioners v. Attorney General of New Jersey, was “wrongly decided.” The judge noted that the government “conceded at oral argument” that the decision binds a district court. In practice, the government’s real argument is addressed to the Third Circuit sitting as a full court, or to the Supreme Court.
The same judge ruled for the government on the mask law. On July 2, 2026, Kenney granted the Justice Department a preliminary injunction against parts of Bill 260060, which regulated how federal officers cover their faces and identify themselves. The difference is the line between a city regulating federal officers directly, which it generally cannot do, and a city declining to lend its own jail to federal enforcement, which courts have repeatedly allowed.
The judge accepted that the ordinance makes enforcement harder. Kenney wrote that it is “foreseeable” the ordinance “may make federal immigration enforcement less efficient because federal immigration officers may be required to track down noncitizens that have been released from state and local custody on their own.” He held that this kind of “mere inconvenience” is not enough to trigger preemption.
The court did not reach the city’s Tenth Amendment argument. Philadelphia’s lead argument was that forcing city employees to hold people for ICE would amount to federal “commandeering” of local officials. In a footnote, the judge said that because the preemption claims failed on their own terms, the court “need not address” that argument.

Background: the “ICE Out” ordinances

On April 23, 2026, the Philadelphia City Council enacted a package of seven bills that the city calls the “ICE Out” legislation. Mayor Cherelle Parker signed Bill 260059 on May 7, 2026, and it was codified at section 21-3706 of the Philadelphia Code. According to the Justice Department’s amended complaint (para. 77), the bill took effect on July 6, 2026.

The disputed provision, section 21-3706(4), states that “No City agency, official, or employee shall stop, arrest, detain, or continue to detain a person after that person becomes eligible for release from custody or would otherwise be free to leave an encounter with an agency, official, or employee,” based on an immigration detainer, an administrative warrant, or “Information or suspicion that a person is not present legally in the United States.”

The bill also contains a savings clause. It says nothing in the chapter “shall prohibit City Agencies or Employees from cooperating with federal authorities in the investigation or prosecution of criminal activity when required by law,” and nothing “shall be construed to restrict compliance with federal or state law where such compliance is mandatory.”

A detainer is a written request from ICE asking a jail to notify the agency before releasing someone, or to keep that person for up to 48 hours so ICE can take custody. Philadelphia’s resistance to detainers did not begin this year. KYW Newsradio reported that the city has not honored ICE detainer requests since 2015 under a mayoral executive order. The 2026 ordinance turned that policy into city law.

The litigation timeline, as set out in the opinion:

June 18, 2026: The United States sued the city, Mayor Parker, District Attorney Lawrence Krasner and the city solicitor, challenging the mask and identification provisions of Bill 260060.
July 2, 2026: Kenney preliminarily enjoined enforcement of those provisions “as to federal agencies and officers.”
August 24, 2026: The government amended its complaint to add Count I (express preemption) and Count II (conflict preemption) against the detainer provision.
September 22, 2026: The city moved to dismiss those two counts. Argument followed on October 15.
November 5, 2026: Both counts were dismissed with prejudice.

The government’s public-safety case

The amended complaint made a concrete public-safety argument, and it deserves to be stated plainly. According to ICE’s Enforcement and Removal Operations office in Philadelphia, between July 6 and the August 24 filing, ICE lodged 26 detainers with the city. The complaint says 15 “were not honored, and the City released the subjects from custody,” while 11 remained active because the subjects were still incarcerated (amended complaint, para. 77).

The complaint lists offenses behind the detainers that were not honored. Among them are aggravated assault, “strangulation of the throat or neck,” harassment, reckless endangerment, “failure to appear on a prior robbery charge,” and drug distribution charges (para. 78). It says that without the detainers “ICE was only able to arrest a fraction of the aliens, with the remaining criminals ending up at-large” (para. 79). It also argues that officers were forced into “difficult and potentially dangerous efforts to re-arrest aliens who were previously in local custody.”

These are the government’s allegations. The court did not test them. At the motion-to-dismiss stage, a judge assumes the complaint’s facts are true and asks only whether they state a legal claim. Kenney’s ruling is that even if every figure is accurate, the law the government relied on does not make the ordinance invalid.

The complaint also explains why the Justice Department sees Philadelphia as different from a city that simply declines some requests. It describes the ordinance as “a blanket refusal that applies in every case” and “a standing assurance that the federal handoff Congress built into federal immigration law will never happen within Philadelphia, whatever the circumstances” (para. 4).

Deep dive: why the preemption claims failed

Preemption is the doctrine, rooted in the Constitution’s Supremacy Clause, under which valid federal law overrides conflicting state and local law. Kenney followed the Supreme Court’s 2018 decision in Murphy v. National Collegiate Athletic Association. Under Murphy, a federal provision can preempt state law only if it is “best read as one that regulates private actors.” A statute that tells governments what to do, rather than conferring rights or imposing duties on people and businesses, cannot displace a state or local law on that basis.

Count I: express preemption

The government relied on 8 U.S.C. sections 1373 and 1644. These provisions bar governments from restricting officials from sending immigration-status information to federal authorities. In Ocean County, the Third Circuit held that “neither § 1373 nor § 1644 regulates private actors.” Kenney wrote that he “need look no further” than that decision.

He rejected the government’s three counter-arguments. On the claim that Ocean County was wrongly decided, he said a published panel decision binds district courts and can be overruled only by the full Third Circuit. On the argument that section 1373(b) refers to “persons,” he cited several courts that have rejected that reading. On the argument that section 1644’s passive voice gives it broader reach, he noted that the Third Circuit had already considered that point.

Count II: conflict preemption

Conflict preemption applies when a local law makes compliance with federal law impossible or “stands as an obstacle” to Congress’s objectives. The government cited a long list of provisions: 8 U.S.C. sections 1103(a)(3), 1182, 1225, 1226, 1231(a), 1324(a)(1)(A)(ii), 1357, 1373 and 1644, and the detainer regulation at 8 C.F.R. section 287.7.

The judge’s central point was that none of these provisions requires a city to hold anyone. He quoted the Third Circuit’s 2014 decision in Galarza v. Szalczyk that “detainers are not mandatory.” He also cited that court’s statement that “[u]nder the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government.” On 287(g) agreements, which let local officers perform some federal immigration functions, he cited the statute itself: “Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement.”

The government also argued that “information regarding the citizenship or immigration status” in sections 1373 and 1644 covers release dates, addresses and custody status. Kenney called that a “strained reading” that courts have “repeatedly rejected.” He cited the Ninth Circuit’s 2019 decision in United States v. California, which limited section 1373 to information about what a person’s immigration status actually is.

For the broader list of statutes, the judge was blunt. He said the government had “not spilled the ink” to explain how each provision preempts the ordinance. He described its reliance on “the overall federal immigration landscape” as “a gesture toward ‘some brooding federal interest,’” a phrase the Supreme Court used in 2019 to describe what is not enough for preemption.

Part of a national pattern

The opinion places Philadelphia alongside similar Justice Department suits this year that met the same fate on detainer and cooperation claims. It cites decisions in United States v. Minnesota (District of Minnesota, July 20, 2026), United States v. County of Washtenaw (Eastern District of Michigan, August 21, 2026) and United States v. New Jersey (District of New Jersey, September 4, 2026), along with 2025 rulings involving Illinois and New York. The Justice Department has had more success against laws that regulate federal officers directly. Its amended complaint cites 2026 decisions involving California, New York and Virginia on that kind of claim.

The other side

Philadelphia’s position, as set out in its motion to dismiss filed by the law firm Ballard Spahr, is a federalism argument. The city wrote that “the federal government cannot conscript City employees as its agents, including by ordering them to keep an individual in custody, solely to assist with federal immigration enforcement.” It added that “Plaintiff cannot identify a single provision in the INA that mandates the City to comply with an immigration detainer request or administrative warrant.” After the ruling, the city’s Law Department told the Inquirer that it “concurs” with the decision and remains “committed to compliance with local, state, and federal laws.”

The Justice Department did not respond to the Inquirer’s request for comment, and RSN found no public statement from the department, ICE or the Department of Homeland Security on the ruling as of November 8. District Attorney Krasner, a defendant in the case, had not commented publicly on the ruling in the coverage RSN reviewed.

There is also a principled conservative case on the city’s side of the legal question. The anti-commandeering doctrine was strengthened by Printz v. United States (1997), which struck down federal orders for local sheriffs to run background checks under the Brady Act, and later by Murphy. It protects states and cities from being drafted into federal programs. Kenney cited Printz for exactly that point. A rule that lets Washington order local jailers to hold people today could be used for other federal priorities tomorrow.

Analysis: the fix, if there is one, lies with Congress

This section is RSN’s analysis. The ruling’s practical lesson is that the executive branch cannot litigate its way to mandatory detainer compliance under current law, at least in the Third Circuit. Congress wrote the detainer system as a request. The courts cited in this opinion have read it that way. The Justice Department’s strongest facts, 15 released detainer subjects in roughly seven weeks by its own count, do not change the legal answer.

Bills to change that exist. On February 9, 2026, Rep. Earl L. “Buddy” Carter (R-Ga.) introduced the No Sanctuary Cities Act. His office says it would require state and local governments to share custody and release information and to hold “certain detainees for up to 48 hours, when requested.” Just the News reported in October that the House Judiciary Committee had advanced a separate Shut Down Sanctuary Policies Act. According to that report, the bill would require state and local authorities to honor detainers for people arrested for criminal or motor vehicle offenses and would let victims sue jurisdictions that release offenders. Chairman Jim Jordan (R-Ohio) told the outlet, “We just got to try to get it passed in the lame duck.”

Legislation would not end the argument, however. The Third Circuit’s language in Galarza rests on the Tenth Amendment, not just on the wording of a regulation. A statute ordering city jails to hold people would probably face the same commandeering challenge that the city raised here and that Kenney did not need to decide. Approaches that rely on conditions attached to federal grants have their own record in this circuit. In 2019, the Third Circuit ruled against the Justice Department in an earlier dispute with Philadelphia over conditions attached to a federal law enforcement grant, a decision the Kenney opinion cites. Any durable change will need careful drafting, and probably a Supreme Court decision.

On procedure, the dismissal of two counts while others remain pending is not normally a final judgment. An immediate appeal would ordinarily require the district court to certify those counts under Federal Rule of Civil Procedure 54(b), or the government would have to wait for the rest of the case to be decided. As of November 8, RSN found no notice of appeal or request for certification in the publicly available court records.

What is established, disputed and not established

Established (from the court record):

On November 5, 2026, Judge Kenney dismissed Counts I and II, the challenges to Philadelphia Code section 21-3706(4), with prejudice.
The court held that the cited federal provisions do not regulate private actors and that detainer compliance is voluntary for localities.
The government conceded at oral argument that Ocean County binds the district court.
The remaining counts, including the challenge to the mask and identification ordinance, continue. That ordinance remains preliminarily enjoined as to federal agencies and officers under the July 2 order.

Disputed:

Whether Ocean County was correctly decided. The Justice Department says it was not.
Whether a categorical, in-advance refusal to honor any detainer is legally different from case-by-case refusals.
How much the ordinance harms public safety, compared with the city’s stated interest in keeping local police out of civil immigration enforcement.

Not established:

The accuracy of the government’s figures (26 detainers, 15 released, 11 active). These are allegations that the court assumed true for this motion only.
Whether any person released after a detainer went unhonored has since committed a new crime. Neither the complaint nor the ruling says so.
Whether the Justice Department will appeal, and whether the city’s Tenth Amendment defense would succeed if a court reached it.

What accountability would look like

Public data from both sides. ICE should publish, for Philadelphia, the number of detainers lodged, honored and declined, along with the later arrest outcomes. The city should publish how many people it released while a detainer was pending and what charges they faced.
A clear decision from the Justice Department. The department should say whether it will seek Rule 54(b) certification and ask the full Third Circuit to revisit Ocean County, rather than continuing to file claims that district courts have rejected.
Congress doing its job. If lawmakers want detainers to be mandatory, they should write that into the statute and draft it to withstand the anti-commandeering challenge. A floor vote would put members on record either way.
Transparency from City Hall. Mayor Parker and the City Council should explain to residents how the savings clause works in practice, including when city employees will share release information with federal authorities where the law requires it.

US v. City of Philadelphia: Judge Dismisses DOJ Challenge to ICE Detainer Ban