TRENTON, N.J. (Aug 23, 2021) – Last Friday, New Jersey Gov. Phil Murphy signed a bill into law to prohibit state or local entities from detaining individuals for federal civil immigration violations.
A coalition of 13 Democrats introduced Assembly Bill 5207 (A5207) in January. The law prohibits future, renewed, or expanded ICE detention agreements in New Jersey. In practice, the law prohibits any state or local government agency from entering into, renewing, or extending a contract, agreement, intergovernmental service agreement, or memorandum of understanding that authorizes a state or local government agency, or a private correctional detention facility to house or detain individuals for federal civil immigration violations.
The Assembly passed A5207 by a 46-24 vote. The Senate approved the measure 23-15. With Gov. Murphy’s signature, it went into immediate effect on Aug. 20. New Jersey now joins California, Illinois, and Washington state in limiting or barring ICE detention agreements.
According to Insider NJ, ICE recently solicited interest from entities in New Jersey and New York to greatly expand detention capacity in the region.
”The legislature’s swift passage of the anti-detention bill this week demands urgency from the Governor’s office to sign it into law. This law would position New Jersey as a national leader, joining only three other states who have turned their back on ICE’s cruelty-for-profit agreements. The statewide ban would confirm the message that continues to be raised at the local level: profiting off of pain and family separation contradicts New Jersey values,” New Jersey Alliance for Immigrant Justice Executive Director Nancy Torres said.
EFFECTIVE
While the proposed law would not directly interfere with federal immigration enforcement, it would make it difficult for ICE to detain people in New Jersey.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on gun control, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
With immigration, federal resources are even more stretched, as noted in a column published by The Hill.
As the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) notes on its website, the first and foremost factor impacting its enforcement capability is “the level of cooperation from state and local law enforcement partners.”
With just over 5,700 agents nationwide, ERO reported removal of “240,255 aliens in FY 2016.” In spite of the supposedly high number of sanctuary cities nationwide, this number actually represented an uptick from 2015 due partly to what ERO called “increased state and local cooperation.”
At this rate, removing anywhere close to the at least 11 million unauthorized immigrants in the country right now seems impossible.
Simply put, partnerships don’t work too well when half the team quits. And in this case, when most of the team stops participating.
In the 1850s. Michigan included a similar provision in its “personal liberty law” to thwart fugitive slave rendition. It banned the use of state or local jail for holding accused runaway slaves.
LEGALITY
Provisions withdrawing state and local resources rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
