Nessel joins coalition backing New Jersey's limits on local participation in federal immigration enforcement

Michigan Attorney General Dana Nessel recently joined a group of 18 attorneys general in filing an amicus brief defending a New Jersey policy that governs the interactions between state and local law enforcement officials and federal immigration authorities and is designed to ensure that state and local authorities are able to protect their immigration and limited English proficiency communities from crime. Two New Jersey counties that want to continue collaborating with U.S. Immigration and Customs Enforcement (ICE) sued the state to try to block a 2018 directive issued by the New Jersey Attorney General.

The directive bars local law enforcement officers from sharing certain information with immigration authorities and from participating in most types of federal immigration enforcement. In a friend-of-the-court brief filed in the United States Court of Appeals for the Third Circuit, the multistate coalition argues that New Jersey’s directive should be upheld because states have the responsibility and authority to protect public safety, regulate law enforcement, and decide how to use their limited resources. AG Nessel previously joined a coalition of 15 other attorneys general supporting New Jersey’s directive when it was challenged in court by the Trump administration. 
“States have a responsibility to enact laws that protect public safety and build trust among all communities within their borders,” Nessel said. “Individuals are far less likely to report a crime or cooperate with law enforcement if they fear being turned over to immigration authorities. Limiting participation by local governments and municipalities in federal immigration enforcement promotes the trust needed to keep our communities safe.” 

In 2018, New Jersey Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-6, known as the Immigrant Trust Directive, to disentangle state and local law enforcement from federal immigration enforcement. The directive prohibits local law enforcement from asking about an individual’s immigration status unless it is relevant to an ongoing investigation and from sharing any individual’s non-public information, including home or work addresses, with federal immigration authorities. It also prevents the transfer of individuals to federal immigration authorities without a judicial warrant unless that person has committed a serious crime. 

In 2019, two New Jersey counties that used to share information with ICE sued the state seeking a declaration that the directive is invalid because it fundamentally conflicts with federal immigration law. A federal district court dismissed the case, concluding that the directive was valid because it did not fundamentally conflict with federal immigration law and that federal law makes state and local cooperation with federal immigration authorities largely voluntary. The counties appealed this decision to the Third Circuit.

In an amicus brief filed in County of Ocean v. New Jersey, the states collectively argue that New Jersey’s directive should be upheld because:

• States have broad authority to protect public safety: The coalition argues that states have primary responsibility for protecting public safety within their borders and have broad authority to enact legislation for the public good.

This responsibility includes a duty to implement policies that best serve local conditions and policy preferences, and a duty to determine how best to use limited local resources. States like New Jersey have reasonably exercised their power to disentangle local law enforcement from federal immigration enforcement based on expert analysis and anecdotal evidence that separation between the two builds community trust and promotes public health and safety.   

• The directive does not interfere with federal enforcement of immigration law: The states argue that declining to use state and local resources to actively participate in federal civil immigration enforcement does not create an obstacle to immigration enforcement by the federal government.

• It is unconstitutional for the federal government to commandeer state resources: The basic division of power between state and federal governments enshrined in the 10th Amendment of the Constitution means that the federal government cannot directly order states to use their resources to enforce federal laws.