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State Powers in the Federal Immigration Landscape: Challenge to New Jersey’s Immigrant Detention Ban Under Scrutiny
Wednesday, August 23, 2023

Last week, a federal judge in New Jersey heard oral argument on a lawsuit seeking to challenge a New Jersey law that prohibits private and public facilities in the state from signing contracts to imprison federal immigrant detainees. The dispute underscores the fierce debate over immigration policy and whether the U.S. government should imprison noncitizens during their immigration proceedings. This case has captured the attention of both legal experts and concerned citizens, highlighting the intricate interplay between immigration policies, human rights, and the role of the judiciary.

New Jersey Governor Bans Contracts for Immigration Detainees

In August of 2021, New Jersey Gov. Phil Murphy signed into law a groundbreaking measure that effectively bans contracts between the state and federal agencies for the detention of immigrants. This law, which marked a significant step forward in shaping immigration policies at the state level, aims to sever ties between New Jersey and the practice of detaining immigrants in federal facilities. By signing this legislation, Gov. Murphy sent a clear message about the state's commitment to humanitarian values and immigrant rights, sparking crucial discussions about the role of state governments in influencing immigration practices and underscoring the ongoing dialogue surrounding immigration reform in the United States. At the time the bill was signed into law, New Jersey was the fifth state to enact such legislation. Notably, the measure did not terminate existing contracts with Immigration and Customs Enforcement (“ICE”), but rather sought to prevent new contracts.

CoreCivic Seeks Preliminary Injunction

In July of 2023, CoreCivic, Inc. (“CoreCivic”), a private, for-profit corporation that specializes in the management and operation of correctional and detention facilities, filed a lawsuit seeking to preliminarily enjoin the New Jersey law from taking effect. The lawsuit concerns an agreement involving CoreCivic and ICE to house detainees at a facility in Elizabeth, New Jersey. The current contract with that facility expires on August 31, 2023.

Seeking an emergency injunction, CoreCivic argues that the New Jersey law interferes with the federalist system and the power of the federal government to regulate private entities. The lawsuit maintains that an emergency injunction is necessary given the urgency of the contract at issue and argues that the New Jersey law violates the Supremacy Clause of the U.S. Constitution.

This week, U.S. District Judge for New Jersey Robert Kirsch heard oral argument on this case. Solicitor General of New Jersey Jeremy Feigenbaum argued that the health and safety of the detainees is critical, maintaining that the federal government could construct facilities to detain noncitizens if it wanted. Responding to the constitutional arguments set forth in the lawsuit, Feigenbaum noted that Congress should pass a law barring states from regulating private contracts if it believes the New Jersey law is inappropriate.

Attorney Stephen Ehrlich, arguing the case for the U.S. Department of Justice, described the New Jersey law as “discrimination.” Ehrlich stated that “[w]hat we have here is the United States wants to contract with a private facility, the facility wants to contract with the United States, and state law does not allow that.” He further noted, “[t]hat is a bedrock principle of the supremacy clause.”

Judge Kirsh is expected to issue a decision on the emergency injunction by the end of August 2023.

Broader Impact of the Litigation

The New Jersey case is indicative of an ongoing trend among state governments to utilize their power to challenge federal detention programs. State governments are taking a proactive approach to address immigration detention centers, with bills introduced in various states to ban or limit certain types of these facilities. In states including New Jersey and Illinois, a movement is underway to reduce and eventually eliminate immigrant detention within their jurisdictions. This strategy, led by immigrant rights organizations, involves targeting different types of detention facilities: Contract Detention Facilities (“CDF”), Intergovernmental Service Agreements (“IGA”), and Service Processing Centers (“SPC”).

Most immigration detention centers operate under IGAs, which are contracts between federal and local or federal and state governments allowing the use of local facilities and personnel. However, states including New Mexico and Colorado have proposed bills to prohibit local governments from entering or renewing IGA contracts with ICE. These bills also prevent the sale of facilities to private corporations that could convert them into CDFs or SPCs. These states' efforts are modeled after a similar law passed in Illinois.

This approach contrasts with California's previous attempt to ban private, for-profit immigration detention centers in 2019, which was found unconstitutional by the 9th Circuit Court of Appeals. The state's earlier 2017 law that banned IGAs, however, remains in effect. By targeting IGAs and other agreements, state governments aim to limit their involvement in immigration detention, effectively pushing for the closure of these facilities. This strategy is significant, as it shows that while federal efforts to reduce immigration detention might be stalled, state governments are actively taking steps to challenge and decrease the presence of these facilities within their jurisdictions.

Broader Conversations

Beyond the specifics of the case or the New Jersey law, the ongoing state challenges to immigrant detention sparks broader conversations about immigration law and policy in the United States. These discussions rightfully include the need for comprehensive immigration reform at the national level. While there is little legislative reform concerning immigration, state and local governments are increasingly wielding their power to address the issue.

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