NJ Immigration Tension: County, Sheriff Sue AG

CREST HAVEN – Sheriff Robert Nolan and Cape May County entered into litigation Oct. 15 against the state Attorney General (AG) Gurbir Grewal.
This makes Cape May County the second of the state’s counties to sue the AG over his December 2018 Immigrant Trust Directive, updated Sept. 27. Ocean County filed a federal lawsuit against Grewal and his directive one month prior.
The complaint was filed by County Counsel Jeffrey Lindsey and by Michael Testa, Jr., who is representing Nolan. Testa is a Republican candidate for Senate in District 1, which includes Cape May County.
The action was filed in U.S. District Court for the District of New Jersey. It is a civil action that seeks declaratory and injunctive relief from the court that would prevent the AG from enforcing the terms of his directive.
In a letter to Nolan Sept. 27, the AG’s Office gave the sheriff seven days to “wind down” his existing 287(g) Jail Enforcement Model program with U.S. Immigration and Customs Enforcement (ICE). Nolan extended the program in February for a 10-year term.
The filing makes three broad claims about the AG’s directive, any of which could give the court cause to invalidate the directive and provide the sheriff and the county relief.
First, the complaint claims that the directive is invalid because it violates the supremacy clause of the Constitution. Section VI, paragraph two, of the Constitution is generally referred to as the supremacy clause. It establishes that the federal constitution and federal laws generally take precedence over state laws and constitutions.
Arguing the issue of states’ rights versus the power of federal law is a long-established debate, with groups frequently shifting sides depending on the issue at hand. The courts have generally held that specific conditions must be met before a state law or action violates the supremacy clause. Whether those conditions have been met here will be the questions before the court.
The complaint further claims that federal law preempts the directive, citing parts of the U.S. Code, which it claims establishes clear, preemptive authority of the federal government concerning immigration laws, and “do not permit a patchwork of state and local immigration policies.”
Preemption derives, in large part, from the supremacy clause, as interpreted in numerous Supreme Court cases. The AG’s claim that nothing in the directive interferes with federal law enforcement officers seeking to execute their law enforcement functions is at issue. The complaint against the AG states that the directive “prohibits local law enforcement agencies from cooperating with ICE as well as voluntarily participating in the 287(g) program.”
The third area of attack on the directive is less national and more rooted in the Garden State. The complaint argues that in issuing the directive, the AG did not follow the rules and procedures required by the New Jersey Administrative Procedures Act. The act lays out procedures for state administrative agencies who seek to issue new regulations.
Whether the AG, defined as the state’s chief law enforcement officer by state statute, is subject to the Administrative Procedures Act when he chooses to issue a directive to local law enforcement agencies is one of the issues before the court.
The complaint argues that implementation of the directive places “county residents and visitors at risk,” while also forcing Nolan to violate his oath to uphold the Constitution. Grewal has stated that it is the existence of the ICE agreement that puts the safety of county residents at risk, because it decreases the willingness of individuals from the state’s immigrant population to cooperate with local law enforcement agencies, as they seek to enforce the state’s criminal laws.
It is not unusual for a complaint of this type to rest on several separate legal arguments, since that allows the court to potentially affirm one train of argument, even while dismissing another.
The next expected step will be a response to the complaint by the AG’s Office in which Grewal will speak directly to the arguments made in the filing by Nolan and the county.
To contact Vince Conti, email vconti@cmcherald.com.