PHILADELPHIA (CN) — Ocean County, New Jersey, faced stiff arguments Thursday in its protest of a state directive that forbids officers at the municipal level from informing federal immigration officials when an inmate is an undocumented immigrant.
Avoiding more controversial aspects of the Trump-era dispute, both sides at Third Circuit oral arguments this morning focused mainly on the 10th Amendment and what the Constitution has to say about state sovereignty.
The lawsuit sprang up from a directive to law enforcement New Jersey Attorney General Gurbir Grewal issued in 2018, restricting what information could be shared with federal immigration officials to determine if an inmate was a documented or undocumented immigrant.
Ocean County contends that the directive overreaches and hampers the federal government in determining immigration status. Separate from the federal suit at issue, it also claimed in state court that the attorney general did not have the legal authority to restrict county officials from sharing data with federal officials.
A federal judge dismissed the case, claiming New Jersey was within its rights to issue the directive.
“New Jersey has made the decision not to cooperate with the enforcement of federal immigration law in an effort to strengthen the relationship between its communities and police, and shore up more effective enforcement of state criminal law,” U.S. District Court Judge Freda Wolfson wrote in the 53-page opinion. “That choice is a clear exercise of the State’s police power to regulate the conduct of its own law enforcement agencies.”
In its brief to the Third Circuit, Ocean County argued that federal law preempts the state’s attempts to regulate what information is collected from inmates. The county noted that inmate biological information is collected at the county jail, and that, even though inmates could provide false information about their citizenship or immigration status, that information is precisely the type of information that Congress wanted collected.
“Permitting the attorney general of New Jersey to issue a directive that restricts certain key information that Congress sought to preserve the exchange of upends the objective of the preemption doctrine,” the county wrote in its brief.
State officials argued meanwhile that “localities cannot sue their creator states” and that federal immigration policy did not preempt the attorney general’s directive.
The three-judge panel hearing arguments Thursday seemed to side with New Jersey, noting that Ocean County was an arm of the state and thus had to abide by the directive.
“This is a classic intramural fight,” said U.S. Circuit Judge Thomas Hardiman, noting the underlying issue could be moot since immigration policy has changed since the White House changed hands.
Hardiman, a George W. Bush appointee, pointed to the decision two years ago by the U.S. Supreme Court on sports gambling in New Jersey, which found that the U.S. Constitution gives Congress the power to regulate individuals and not states. “Doesn’t that doom your claim?”
Matthew Thompson, an attorney for the county with the firm Berry Sahradnik, argued that police officers currently can turn over inmate information to any other federal agency, including tax investigators, the FBI and the U.S. Marshals Service. “If it was a federal agent of any other branch of the federal government they would be permitted to have whatever access that [is regularly provided],” Thompson said. “This only applies to the immigration officer when they come in.”
Thompson said the county has received open records requests from individuals seeking the information, and that Social Security numbers and driver’s license information is key to determine if an immigrant is documented or undocumented.
Jeffrey Lindsay, represents the sheriff’s office in the appeal, noted that, “by prohibiting personal identifying information, you are obstructing federal law, you are obstructing the INS’ ability to perform their job.”
“That presupposes that the Department of Homeland Security can’t do their jobs without enlisting the aid of state and local governments,” countered U.S. Circuit Judge Peter Phipps, who was appointed to the Third Circuit by President Trump.
New Jersey State Solicitor Jeremy Feigenbaum relied heavily on Wolfson’s prior opinion, arguing that county officials are merely arms of the state and must abide by the attorney general’s directive. “Their police power is our police power, and their discretion is our discretion,” he argued.
Further, he added, you “can’t have orders from the federal government to the states to do something or to refrain from doing something.”
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