Sanctuary State Under Attack

Press Releases

December 17, 2020

IRLI urges Third Circuit to overturn New Jersey’s sanctuary order

WASHINGTON—The Immigration Reform Law Institute (IRLI) stepped up its battle against dangerous and unconstitutional sanctuary state policies yesterday by filing a friend-of-the-court brief in the Third Circuit Court of appeals urging the court to overturn an order by the Attorney General of New Jersey that directs state law enforcement officers not to cooperate with federal immigration law enforcement.

The order, known as the Immigrant Trust Directive, restricts the ability of law enforcement officers to cooperate with federal immigration officials. Pursuant to this order, officers in New Jersey may not even tell immigration authorities when criminal aliens in state prison will be released from state custody, or transfer custody of these aliens to federal immigration agents. These prohibitions have the intended effect of making it much more difficult for federal agents to apprehend, detain, and deport criminal aliens as they are required to do under federal law.

In a deeply-flawed opinion, the federal district court for the District of New Jersey upheld this order, claiming that it did not really operate as an obstacle to federal immigration law enforcement, but was only an inconvenience to that enforcement, and that the order was a valid exercise of New Jersey’s police powers.

In its brief in the Third Circuit, IRLI shows that the Immigrant Trust Directive is an obstacle to federal immigration law enforcement because it is an action by the state that—as even the district court admitted in its opinion—makes that enforcement more difficult. State policies that are obstacles to the purposes of federal laws violate the Supremacy Clause of the Constitution, which makes federal law supreme over state law.

IRLI then shows that the district court misunderstood the Tenth Amendment, which only reserves the power to adopt a given policy to the states if that power is not prohibited to the states by the Constitution. The power to adopt sanctuary policies such as the Immigrant Trust Directive is prohibited to the states, because such policies violate the Supremacy Clause. Thus, the power to make sanctuary policies is not reserved to the states by the Tenth Amendment.

IRLI further shows that the Immigrant Trust Directive also violates the Supremacy Clause (and the power to issue it thus is not reserved to the states by the Tenth Amendment) in another way: it commands state officers to commit the federal crime of harboring illegal aliens.

“The Constitution does not give states power to interfere with federal law enforcement,” said Dale L. Wilcox, executive director and general counsel of IRLI. “By holding otherwise, the district court endorsed not states’ rights, but chaos. About half of the nation’s population now lives in one form of sanctuary jurisdiction or another,” Wilcox added. “That extraordinary situation is not only a grave threat to Americans’ safety, but a shocking affront to federal supremacy. We hope the Third Circuit brings New Jersey’s non-enforcement zone to an end by vindicating the clear text and structure of our Constitution.”

The case is Board of Chosen Freeholders of the County of Ocean v. Attorney General of the State of New Jersey, No. 20-2755 (Third Circuit).

For additional information, contact: Brian Lonergan • 202-232-5590 • blonergan@irli.org

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