OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS v. GREWAL

*FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

COUNTY OF OCEAN, et al., :

: Consolidated Civil Action

Plaintiffs, : No. 19-18083 (FLW)

:

v. :

:

GUBRIR S. GREWAL, in his official : OPINION

Capacity as Attorney General of the :

State of New Jersey, et al., :

:

Defendants. :

:

:

ROBERT A. NOLAN, in his official :

capacity as Cape May County Sheriff, :

et al., :

:

Plaintiffs, :

:

v. :

:

GUBRIR S. GREWAL, in his official :

Capacity as Attorney General of the :

State of New Jersey, et al., :

:

Defendants. :

:

WOLFSON, Chief Judge:

On November 29, 2018, Gubrir S. Grewal (“Attorney General Grewal”), in his

capacity as Attorney General for the State of New Jersey, issued Attorney General

Law Enforcement Directive No. 2018-6, known as the Immigrant Trust Directive, to

limit the ability of local, county, and state law enforcement agencies from assisting

the federal government in the enforcement of federal civil immigration law.1 In this

consolidated action against Attorney General Grewal, the State of New Jersey, Office

of the Attorney General, and the Department of Law and Public Safety, Division of

Criminal Justice (collectively “Defendants”), plaintiffs, the County of Ocean, the

Board of Chosen Freeholders of the County of Ocean (collectively, the “Ocean County

Plaintiffs”), Robert A. Nolan, in his capacity as Cape May County Sheriff, and the

County of Cape May (the “Cape May County Plaintiffs”) (collectively, “Plaintiffs”),

seek a declaration that the Immigrant Trust Directive is preempted by the United

States Constitution and violates various state constitutional and statutory

provisions. Presently before the Court are (1) Defendants’ Motion to Dismiss the

Complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (ECF

No. 14); and (2) a Motion for Preliminary Injunction filed by the Cape May County

Plaintiffs, (ECF No. 13). For the reasons set forth below, Defendants’ Motion to

Dismiss is GRANTED as to Plaintiffs’ federal claims, and those claims are dismissed.

I do not reach Defendants’ Motion as to Plaintiffs’ state law claims, because I decline

to exercise supplemental jurisdiction over those claims. Defendants may renew their

Motion in state court should these plaintiffs choose to proceed in that forum pursuant

to 28 U.S.C. § 1367(d). Consequently, the Cape May County Plaintiffs’ Motion for

Preliminary Injunction is DENIED as moot.

1 Attorney General Grewal issued a revised Directive on September 27, 2019.

The revised version of the Directive is substantially similar to the original Directive,

except that it added certain language, discussed infra, which bars local governments

from entering into voluntary section 287(g) agreements. When the Court refers to

the Directive, it refers to the revised Directive.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Federal Immigration Statutory Framework

“The Government of the United States has broad, undoubted power over the

subject of immigration and the status of aliens” pursuant to its constitutional

authority to “‘establish a uniform Rule of Naturalization’ and its inherent power as a

sovereign to control and conduct relations with foreign nations.” Arizona v. United

States, 567 U.S. 387, 395 (2012) (quoting U.S. Const., Art. I, § 8, cl. 4). Pursuant to

this authority, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq.,

“sets out the ‘terms and conditions of admission to the country and the subsequent

treatment of aliens lawfully in the country.’” Kansas v. Garcia, ___ U.S. ___, 140 S.

Ct. 791, 797 (2020). The INA further governs “which aliens may be removed from the

United States and the procedures for doing so.” Arizona, 567 U.S. at 396. “Agencies

in the Department of Homeland Security [(“DHS”)] play a major role in enforcing the

country’s immigration laws,” including Immigration and Customs Enforcement

(“ICE”). Id. at 397. ICE “conducts criminal investigations involving the enforcement

of immigration-related statutes” and operates the Law Enforcement Support Center,

which “provides immigration status information to federal, state, and local officials

around the clock.” Id. ICE is additionally responsible “for the identification,

apprehension, and removal of illegal aliens from the United States.” Id. (quotation

omitted).

Notwithstanding the federal government’s “‘broad, undoubted power over the

subject of immigration and the status of aliens,’” the “States possess primary

authority for defining and enforcing the criminal law.” City of Philadelphia v. Att’y

Gen. of United States, 916 F.3d 276, 281 (3d Cir. 2019) (quoting Arizona, 567 U.S. at

281). Consistent with that sovereign power, the INA contemplates states’

participation in the enforcement of immigration law since “[c]onsultation between

federal and state officials is an important feature of the immigration system.”

Arizona, 567 U.S. at 411–12. However, § 1357(g) does not compel state and local

governments to “cooperate with the Attorney General in the identification,

apprehension, detention, or removal of aliens not lawfully present in the United

States.” 8 U.S.C. § 1357(g)(10).2 Rather, the statute speaks in voluntary terms.

States’ cooperation may include “situations where States participate in a joint task

force with federal officers, provide operational support in executing a warrant, or

allow federal immigration officials to gain access to detainees held in state facilities.”

Arizona, 567 U.S. at 410. Furthermore, ICE may request state and local law

enforcement agencies to furnish “information about when an alien will be released

2 8 U.S.C. § 1357(g)(10) specifically provides that

Nothing in this subsection shall be construed to require an

agreement under this subsection in order for any officer or

employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the

immigration status of an individual, including reporting

knowledge that a particular alien is not lawfully present in

the United States; or

(B) otherwise to cooperate with the Attorney General in the

identification, apprehension, detention, or removal of

aliens not lawfully in the United States.

(emphasis added).

from their custody.” Id. (citing § 1357(d)); see also 8 C.F.R. § 287.7(a) (setting forth

that DHS may issue a detainer, which acts as “a request that such agency advise the

Department, prior to release of the alien, in order for the Department to arrange to

assume custody, in situations when gaining immediate physical custody is either

impracticable or impossible”).

Moreover, pursuant to the INA, state and local law enforcement agencies may

voluntarily enter into agreements, known as “287(g) Agreements,”3 under which state

or local law enforcement “officers [can] perform the duties of a federal immigration

officer under the direction and supervision of the Attorney General after completing

adequate immigration training.” City of South Miami v. Desantis, 408 F. Supp. 3d

1266, 1293-94 (S.D. Fl. 2019) (citing 8 U.S.C. § 1357(g)). There is, however, no

requirement that localities enter into such agreements and, critically, such

agreements may only be carried out “to the extent consistent with State and local

law.” 8 U.S.C. § 1357(g)(1).

Finally, specifically relevant to the instant action are 8 U.S.C. § 1373 and 8

U.S.C. § 1644, which govern the sharing of information between state and local

governments and the federal government in the enforcement of immigration laws.

These sections provide that

[n]otwithstanding any other provision of Federal, State or

local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any

government entity or official from sending to, or receiving

3 The term “287(g)” refers to the section of the INA that authorized these

agreements. City of El Cenizo v. Texas, 890 F.3d 164, 178 n.5 (5th Cir. 2018) (citing

Lunn v. Commonwealth, 78 N.E.3d 1143, 1158 (Mass. 2017))).

from, the [federal government] information regarding the

citizenship or immigration status, lawful or unlawful, of

any individual.

8 U.S.C. § 1373(a); see also 8 U.S.C. § 1644 (“Notwithstanding any other provision of

Federal, State, or local law, no State or local government entity may be prohibited, or

in any way restricted, from sending to or receiving from the Immigration and

Naturalization Service information regarding the immigration status, lawful or

unlawful, of an alien in the United States.”). Correspondingly, the federal

government “shall respond to an inquiry by a Federal, State, or local government

agency, seeking to verify or ascertain the citizenship or immigration status of any

individual within the jurisdiction of the agency for any purpose authorized by law, by

providing the requested verification or status information.” Id. § 1373(c).

B. The Immigrant Trust Directive

On November 29, 2018, Attorney General Grewal issued Directive No. 2018-6

(the “Immigrant Trust Directive” or “Directive”), to amend certain rules governing

the interaction of state and local law enforcement and federal immigration

authorities.4 State of New Jersey, Attorney General Law Enforcement Directive No.

2018-6 v2.0 (“Directive No. 2018-6”). Attorney General Grewal expressed that the

Directive was necessary based on the federal government’s increased reliance “on

state and local law enforcement agencies to enforce federal civil immigration,” which

4 In 2007, then-Attorney General Anne Milgram issued Directive 2007-3 to

“establish the manner in which local, county, and state law enforcement agencies and

officers shall interact with federal immigration authorities.” See Directive No. 2018-

6, at 2 (quoting AG Directive 2007-3).

has “present[ed] significant challenges to New Jersey’s law enforcement officers, who

have worked hard to build trust with [the] state’s large and diverse immigrant

communities.” Id. For example, the Directive observes that “[i]t is well-established .

. . that individuals are less likely to report a crime if they fear that the responding

officer will turn them over to immigration authorities,” making “it more difficult for

officers to solve crimes and bring suspects to justice.”5 Id. Accordingly, the Directive

places certain limitations on local, state, and county law enforcement agencies with

respect to enforcement of federal civil immigration law.

Relevant to this matter, the Directive limits New Jersey agencies from

stopping, arresting, searching, or detaining any individual based solely on the

individual’s actual or suspected citizenship or any suspected violation of federal civil

immigration law. Id. § II.A(1). Further, it prohibits state, county, and local law

enforcement from “inquir[ing] about the immigration status of any individual” unless

such inquiry is “a) necessary to the ongoing investigation of an indictable offense by

that individual; and b) relevant to the offense under investigation.” Id. § II.A(2).

5 Indeed, amicus, the ACLU, highlights a number of studies that confirm that

immigration-related fears prevent individuals from reporting crimes. For example,

“[a] 2017 national survey of prosecutors revealed that the recent intensity in federal

immigration enforcement . . . resulted in decreased cooperation with law enforcement

by immigrant victims of crime, especially survivors of domestic violence, child abuse,

and sexual assault.” (ACLU Br., at 8.) Additionally, a 2013 study conducted in four

countries across the United States found that 70 percent of undocumented

immigrants and 44 percent of all Latinx respondents, regardless of immigration

status, responded that “they would be less likely to communicate with law

enforcement if they were victims of a crime out of fear that local officers would

question their immigration status or the status of people they know.” (Id. at 6–7

(footnote omitted).)

The Directive further provides that, subject to certain enumerated exceptions:

[N]o state, county, or local law enforcement agency or official

shall provide the following types of assistance to federal

immigration authorities when the sole purpose of that

assistance is to enforce federal civil immigration law:

1. Participating in civil immigration enforcement

operations.

2. Providing any non-public personally identifying

information regarding any individual.

3. Providing access to any state, county, or local law

enforcement equipment, office space, database, or

property not available to the general public.

4. Providing access to a detained individual for an

interview, unless the detainee signs a written consent

form . . .

5. Providing notice of a detained individual’s upcoming

release from custody, unless the detainee:

a. Is currently charged with, has ever been

convicted of, has ever been adjudicated

delinquent for, or has ever been found guilty by

reason of insanity, a violent or serious offense as

that term is defined in Appendix A;

b. In the past five years, has been convicted of an

indictable crime other than a violent or serious

offense, or

c. Is subject to a Final Order of Removal that has

been signed by a federal judge and lodged with

the county jail or state prison where the detainee

is being held.

6. Continuing the detention of an individual past the time

he or she would otherwise be eligible for release from

custody based solely on a civil immigration detainer

request . . . .

Id. § II.B. Section III.C of the Directive sets forth the exceptions to these limitations

and provides that

Nothing in Sections II.A and II.B shall be construed to restrict,

prohibit, or in any way prevent a state, county, or local law

enforcement agency or official from:

1. Enforcing the criminal laws of this state.

2. Complying with all applicable federal, state, and local

laws.

3. Complying with a valid judicial warrant or other court

order, or responding to any request authorized by a

valid judicial warrant or other court order.

4. Participating with federal authorities in a joint law

enforcement taskforce the primary purpose of which is

unrelated to federal civil immigration.

5. Requesting proof of identity from an individual during

the course of any arrest or when legally justified during

an investigative stop or detention.

6. Asking an arrested individual for information

necessary to complete the required fields of the

LIVESCAN database (or other law enforcement

fingerprinting database), including information about

the arrestee’s place of birth and country of citizenship.

7. Inquiring about a person’s place of birth on a

correctional facility intake form and making risk-based

classification assignments in such facilities.

8. Providing federal immigration authorities with

information that is publicly available or readily

available to the public in the method the public can

obtain it.

9. When required by exigent circumstances, providing

federal immigration authorities with aid or assistance,

. . . .

10. Sending to, maintaining or receiving from federal

immigration authorities information regarding the

citizenship or immigration status, lawful or unlawful,

of any individual. See 8 U.S.C. §§ 1373, 1644.

Id. § II.C.

On September 27, 2019, Attorney General Grewal issued a revised version of

the Directive to address questions that had “[a]risen regarding the ability of state and

local law enforcement to notify ICE about individuals who have committed violent or

serious offenses.” Id. In that connection, the Revised Directive also addresses §

287(g) agreements. Attorney General Grewal highlighted certain issues that are

caused by such agreements, including that “they blur the distinction between federal

civil immigration enforcement and local law enforcement.”6 Id. at 2. Moreover,

Attorney General Grewal observed that this “ultimately creates confusion regarding

the distinct roles of local law enforcement and federal agents, and it makes it less

likely that victims and witnesses will cooperate with local police in criminal

investigations.” Id. Accordingly, the Directive was revised to provide that “[n]o state,

county, or local law enforcement authority shall enter into, modify, renew, or extend

any agreement to exercise federal immigration authority pursuant to Section 287(g)

6 Amicus provides data demonstrating that after counties implemented section

287(g) cooperative agreements “arrests of foreign-born residents for minor offenses,

like driving without a license, increase, while arrests of foreign-born residents for

more serious offenses decreased.” (ACLU Br., at 17–18.) For example, after Davidson

County, Tennessee, entered into a section 287(g) agreement, it saw a 15 percent

increase in arrests for minor offenses and a 21 percent decrease in arrests of foreign-

born residents for more severe offenses. (Id. at 18 (citing ACLU of Tennessee,

Consequences & Costs: Lessons Learned from Davidson County, Tennessee’s Jail

Model 287(g) Program, at 6 (Dec. 2012)).)

of the [INA], and they shall not exercise any law enforcement authority pursuant to

a preexisting Section 287(g) agreement.” Id. § III.A.

C. Procedural History

On September 18, 2019, the Ocean County Plaintiffs filed a Complaint for

Declaratory Judgment against Defendants. (Compl., ECF No. 1.) According to the

Complaint, the Ocean County Department of Corrections voluntarily exchanges

inmate information, including birthplace and citizenship, with ICE, in accordance

with 8 U.S.C. §§ 1373, 1644. (Id. ¶¶ 13, 16.) Through this exchange of information,

ICE is able to “identify those individuals who have been charged with violating the

law and are temporarily in the custody of the Ocean County Jail . . . and are not

legally permitted to be in the United States,” and, further, “permits ICE officers to

remove those individuals who are not legally permitted to be in the United States

before they are released back into the community.” (Id. ¶ 21–22.) Ocean County

further provided ICE access to its Offender Management System to obtain inmate

biographical information. (Id. ¶ 20.) Because the Ocean County Plaintiffs seek to

continue to share such information with ICE, they claim that the Immigrant Trust

Directive is unconstitutional as it is preempted by federal law. (Id. ¶¶ 31–40.)

Further, the Ocean County Plaintiffs assert that the Directive violates Article IV,

section VII, paragraph 11 of the New Jersey State Constitution (the “Home Rule

Doctrine”) and exceeds the authority granted to the Attorney General. (Id. ¶¶ 41–

59.)

On October 15, 2019, the Cape May County Plaintiffs filed a Complaint seeking

declaratory and injunctive relief on the same grounds. (See Nolan v. Grewal, No. 19-

18929, ECF No. 1.) According to their Complaint, the Cape May County Sheriff,

Robert A. Nolan entered into an agreement with ICE, pursuant to section 287(g) of

the INA, to provide information to permit ICE “to identify and remove aliens who are

subject to removal from the United States.” (Id. ¶ 2.) The Cape May County Plaintiffs

assert that the Immigrant Trust Directive, which prohibits municipalities in the

State of New Jersey from entering into such agreements, is preempted by federal law

and “frustrates and impedes the federal government’s regulation and enforcement of

immigration laws.” (Id. ¶¶ 24, 41–42.)7 The Cape May County Plaintiffs additionally

assert that the Directive was enacted in violation of the New Jersey Administrative

Procedure Act and violates the State’s common law doctrine of intentional

interference. (Id. ¶¶ 43–47.)

Because of the commonalities between the Ocean County and Cape May

County Complaints, on November 7, 2019, this Court granted Defendants’ motion to

consolidate the matters. (See ECF No. 11.) On December 16, 2019, the Cape May

County Plaintiffs filed a Motion for Preliminary Injunction, seeking to enjoin

enforcement of the Directive. (Mot. for Preliminary Injunction, ECF No. 13.) On

December 17, 2019, Defendants filed a Motion to Dismiss Plaintiffs’ Complaints.

7 Count One of the Cape May Complaint claims that the Immigrant Trust

Directive violates the Supremacy Clause of the United States Constitution. The

United States Supreme Court, however, has made clear that the Supremacy Clause

“certainly does not create a cause of action” and, instead “creates a rule of decision . .

. [and] instructs courts what to do when state and federal law clash.” Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25 (2015).

(Mot. to Dismiss, ECF No. 14.)

On January 24, 2020, the United States filed a Statement of Interest pursuant

to 28 U.S.C. §§ 517, 518(b), which authorizes the United States Department of Justice

“to attend to interests of the United States” by “argu[ing] any case in a court of the

United States in which the United States is interested.” (Statement of Interest, ECF

No. 25.) On May 19, 2020, the Court granted the American Civil Liberties of New

Jersey (the “ACLU”) leave to file a brief as amicus curiae. (ECF No. 34.)8 On May

24, 2020, the ACLU filed a brief in support of Defendants’ Motion to Dismiss. (See

ACLU Br., ECF No. 35.)

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) governs a motion to dismiss for lack of

subject matter jurisdiction. “A motion to dismiss for want of standing is . . . properly

brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.”

Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007); see also St. Thomas–St.

John Hotel & Tourism Ass’n v. Gov’t of the U.S. Virgin Islands, 218 F.3d 232, 240 (3d

Cir. 2000) (“The issue of standing is jurisdictional.”). “On a motion to dismiss for lack

of standing, the plaintiff ‘bears the burden of establishing the elements of standing,

and each element must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof.’” Ballentine, 486 F.3d at 810 (quoting FOCUS

8 In the same Order, the Court denied motions for leave to appear as amicus

curiae filed by the Immigration Reform Law Institute and National Sheriff’s

Association. (See ECF No. 34.)

v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996)).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure Rule 12(b)(6), a complaint may be

dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). When reviewing a motion to dismiss on the pleadings, courts “accept all

factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d

Cir. 2008) (quotations omitted). Under this standard, the factual allegations set forth

in a complaint “must be enough to raise a right to relief above the speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a

court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A]

complaint must do more than allege the plaintiff’s entitlement to relief. A complaint

has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578

F.3d 203, 211 (3d Cir. 2009).

III. DISCUSSION

A. Plaintiffs’ Standing to Sue

As a threshold matter, Defendants contend that Plaintiffs, as political

subdivisions of the State of New Jersey, lack standing to bring this action because

these subdivisions cannot “challenge state law on constitutional grounds in federal

court.” (Defs.’ Moving Br., at 16 (quoting City of San Juan Capistrano v. Cal. PUC,

937 F.3d 1278, 1280 (9th Cir. 2019)).) Plaintiffs, however, maintain that the political

subdivision doctrine does not bar suits brought by a municipality or political

subdivision against their creating State under the Supremacy Clause. (See Cape May

Pl.’s Opp. To Def.’s Mot. to Dismiss, at 3–9; Ocean Cty. Pl.’s Opp. to Def.’s Mot. to

Dismiss, at 12–17.) I find that Plaintiffs have standing to bring suit.

Traditionally, political subdivisions have lacked judicial standing to sue their

creating state. See Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 40

(1933) (“A municipal corporation, created by a state for the better ordering of

government, has no privileges or immunities under the Federal Constitution which

it may invoke in opposition to the will of its creator.”); City of Trenton v. New Jersey,

262 U.S. 182, 186 (1923) (“This court has never held that these subdivisions may

invoke [the Contracts Clause or the Fourteenth Amendment] upon the power of the

state.”); Hunter v. City of Pittsburgh, 207 U.S. 161, 177–78 (1907). In Gomillion v.

Lightfoot, however, the Supreme Court more clearly defined the parameters of the

State’s powers over its subdivisions. 364 U.S. 339 (1960). There, the Supreme Court

considered a challenge brought by the residents of the City of Tuskegee, Alabama, to

the State’s definition of the City’s boundaries. Id. at 340. The Court rejected

Alabama’s argument that the State’s power over its subdivisions was unrestricted by

the Constitution, and defined the contours of the “seemingly unconfined dicta of

Hunter and kindred cases.” Id. at 344. Indeed, the Court clarified that a State does

not have unfettered authority over its subdivisions and that “[l]egislative control of

municipalities, no less than other state power, lies within the scope of relevant

limitations imposed by the United States Constitution.” Id. at 344–45. Based on

these principles, the Court determined that the holdings of Hunter and City of

Trenton were limited to the particular prohibitions of the Constitution considered in

those cases, namely the Contracts Clause and the Due Process Clause of the

Fourteenth Amendment. Id. at 343–44.

Since Gomillion, a growing number of circuits have recognized an exception to

the political subdivision standing doctrine where the subdivision asserts claims based

on the Supremacy Clause of the United States Constitution. See Tweed- New Haven

Airport Auth. v. Tong, 930 F.3d 65, 73 (2d Cir. 2019); Brandon Sch. Dist. RE-82 v.

Romer, 161 F.3d 619, 628–30 (10th Cir. 1998); Rogers v. Brockette, 588 F.2d 1057 (5th

Cir. 1979). Each of these courts has taken a different approach in crafting such an

exception. For example, in Rogers, the Fifth Circuit reasoned that City of Trenton

and Hunter when, “correctly interpreted, . . . do not deal with standing” and instead

involve “substantive interpretations of the constitutional provisions involved.” 588

F.2d at 1068. The Fifth Circuit further distinguished those cases because when they

were decided “‘standing’ generally meant something different from what it means

today. A party had standing or a ‘right to sue’ if it was correct in its claim on the

merits that the statutory or constitutional provision in question protected its

interests; standing was not seen as a preliminary or threshold question.” Id. at 1070.

The Tenth Circuit, however, interprets City of Trenton as standing “only for

the limited proposition that a municipality may not bring a constitutional challenge

against its creating state when the constitutional provision that supplies the basis

for the complaint was written to protect individual rights, as opposed to collective or

structural rights.” Branson Sch. Dist., 161 F.3d at 628.9 And, finally, the Second

Circuit focused its analysis on the purpose of the Supremacy Clause and reasoned

that permitting subdivisions to sue states ensures that “a state is not free to enforce

within its boundaries laws preempted by federal law.” Tweed-New Haven Airport

Auth., 930 F.3d at 73. Indeed, the Second Circuit highlighted that since Gomillion,

the Supreme Court “has repeatedly entertained suits against a state by a subdivision

of the state, including cases under the Supremacy Clause.” Id. (citing, for example,

Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 252–53 (2011)).10

Only the Ninth Circuit has held that a political subdivision lacks standing to

sue its creating State pursuant to the Supremacy Clause. See City of San Juan

Capistrano v. Cal. PUC, 937 F.3d 1278 (9th Cir. 2019); Burbank-Glendale-Pasadena

Airport Auth. v. City of Burbank, 136 F.3d 1360 (9th Cir. 1998). Both City of San

Juan and City of Burbank, relying on a previous Ninth Circuit decision in South Lake

9 While the Supremacy Clause is not a source of substantive rights, the Tenth

Circuit has explained that in suits brought by political subdivisions against their

states, “the source of substantive rights was a federal statute directed at protecting

political subdivisions, and the Supremacy Clause was invoked merely to guarantee,

as a structural matter, that federal law predominates over conflicting state law.” City

of Hugo v. Nichols, 656 F.3d 1251, 1256–57 (10th Cir. 2011).

10 See also Nixon v. Missouri Mun. League, 541 U.S. 125, 130 (2004) (considering

challenge brought by municipalities under Supremacy Clause to a Missouri

telecommunications statute); Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1,

469 U.S. 256, 258–60 (1985) (considering Supremacy Clause challenge brought by a

county against a state statute); Bd. of Educ. of Central Sch. Dist. No. 1. v. Allen, 392

U.S. 236, 240–41 (1968) (considering challenge brought by local school board against

state under the Establishment Clause).

Tahoe v. California Tahoe Regional Planning Agency, adopted a per se rule that

political subdivisions lack standing to sue their creating State for any reason. South

Lake Tahoe involved multiple constitutional claims brought by a political subdivision

against the state’s regional planning agency, including a claim under the Supremacy

Clause. 625 F.2d 231, 233 (1980). Without distinguishing between the multiple

claims, the court dismissed all the constitutional claims, citing the familiar cases of

Williams and Trenton, as well as several of its older progeny. Id.11 With that

sweeping language, the Ninth Circuit continues to enforce its per se rule, despite

several Ninth Circuit judges expressing an interest over the years in revisiting the

rationale for the rule. See City of San Juan Capistrano, 937 F.3d at 1282–83 (Nelson

J., concurring) (suggesting it is time to reconsider the rule in light of the fact that the

meaning of standing has changed and in consideration of the numerous circuits that

have decided the issue the other way); City of Burbank, 136 F.3d at 1364–65

(Kozinski, J., concurring) (recognizing circuit split and suggesting the court

reexamine its rationale for continuing with per se rule); see also Indian Oasis-

Baboquivari Unified Sch. Dist. No. 40 v. Kirk, 91 F.3d 1240, 1247 (9th Cir. 1994)

(Reinhardt, J., dissenting) (arguing that per se rule cannot be reconciled with Seattle

School District and should be overturned).

11 The Supreme Court denied the petition for writ of certiorari in South Lake

Tahoe. See City of South Lake Tahoe v. Cal. Tahoe Regional Planning Agency, 449

U.S. 1039 (1980). In denying the petition, however, Justice White, joined by Justice

Marshall, issued a dissenting opinion, in which he questioned the validity of the

Ninth Circuit’s per se rule that “a political subdivision of a State may not raise

constitutional objections to the validity of a state statute.” Id. at 1042 (White J.,

dissenting).

The Third Circuit has not had the occasion to determine whether the political

subdivision doctrine applies to claims under the Supremacy Clause. Nevertheless, in

Amato v. Wilentz, the Third Circuit acknowledged that while the political subdivision

doctrine “remain[s] the law of the land,” it further noted that “support for this rule

may be waning with time.” 952 F.2d 742, 754–55 (3d Cir. 1991). In light of this

observation, other courts in this Circuit have uniformly recognized the Supremacy

Clause exception to the political subdivision standing doctrine, in line with the

Second, Fifth, and Tenth Circuits. See Reach Academy for Boys & Girls, Inc. v.

Delaware Dep’t of Educ., 46 F. Supp. 3d 455, 466 (D. Del. 2014); Pocono Mountain

Charter Sch. v. Pocono Mountain School Dist., 908 F. Supp. 2d 597, 612 (M.D. Pa.

2012) (“In particular, courts that have allowed a municipality or municipal

corporation to assert claims against its creator have generally permitted claims only

for violations of the Supremacy Clause.”); Atlantic Coast Demolition & Recycling, Inc.

v. Board of Chosen Freeholders of Atlantic Cty., 893 F. Supp. 301, 315 (D.N.J. 1995)

(“[M]unicipalities may assert claims against the creating state under the Supremacy

Clause, but not under other substantive constitutional guarantees.”)

While Defendants urge the Court to adopt the reasoning of the Ninth Circuit

on this issue, based on the overwhelming authorities to the contrary and their

reasoning, the Court finds persuasive the rationale of the Second, Fifth, and Tenth

Circuits.12 Notably, I agree with the Fifth Circuit’s observation that reliance on early

12 Defendants point to the Supreme Court’s decision in Ysura v. Pocatello Educ.

Ass’n, 555 U.S. 353 (2009) as support for the principle that “States can withdraw any

and all powers from their subdivisions.” (Defs.’ Moving Br., at 19.) None of the

Supreme Court cases, such as Williams and Trenton, to support a per se bar on

political subdivision standing is misplaced because, at the time those cases were

decided, judicial standing was a markedly different concept than what it is today.

Indeed, standing was not considered as a threshold issue to bring suit, but rather,

the standing inquiry focused on whether a party had a “right to sue,” i.e., whether “it

was correct in its claim on the merits that the statutory or constitutional provision in

question protected its interests.” Rogers, 588 F.2d at 1070. Importantly, as

recognized by Rogers, the modern Article III standing principle stands in contrast

with its earlier iteration—namely, the inquiry, now, focuses on whether there has

been an injury-in-fact. Id. Furthermore, it is difficult to square the Ninth Circuit’s

per se rule when the Supreme Court has repeatedly entertained claims brought by

political subdivisions under the Supremacy Clause. See supra. Indeed, as the Second

Circuit has observed, permitting political subdivisions to bring Supremacy Clause

challenges is a critical part of preserving the boundaries of our federalist system.

Tweed-New Haven Airport, 930 F.3d at 73. For these reasons, I find that Plaintiffs

have standing to bring this matter in federal court.

B. Preemption and the Tenth Amendment

The Supremacy Clause of the United States Constitution provides that federal

parties, however, dispute this fundamental principle of state sovereignty.

Nevertheless, Defendants contend that “when a State decides to grant or withdraw

such powers, there is no federal law claim to be had” and, therefore, Plaintiffs have

no standing to bring this action. (Defs.’ Reply, at 19.) Ysura, however, did not

address the key issue in dispute here—whether an exception to the political

subdivision standing doctrine exists for claims brought under the Supremacy Clause.

This is the issue the Court is called upon to address.

law “shall be the supreme law of the land; and the judges in every state shall be bound

thereby, anything in the Constitution or laws of any State to the contrary

notwithstanding.” U.S. Const., Art. VI, cl. 2. The Clause provides a “‘rule of decision’

. . . that federal law is supreme in case of a conflict with state law.” Murphy v. Nat’l

Collegiate Athletic Ass’n, ___ U.S. ___, 138 S. Ct. 1461, 1479 (2018) (citation omitted)

(quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015)). In other

words, “[s]tate law that conflicts with federal law is . . . ‘without effect.’” Atkinson v.

Luitpold Pharms., Inc., ___ F. Supp. 3d ___, 2020 WL 1330705, at *3 (E.D. Pa. Mar.

23, 2020) (quoting Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 475 (2013)). The

Supreme Court has identified three categories of preemption: express preemption,

conflict preemption, and field preemption. Murphy, 138 S. Ct. at 1480. Here,

Plaintiffs contend that the Directive is preempted under all three categories of

preemption. First, they argue that 8 U.S.C. §§ 1373(a) and 1644 expressly preempt

the Directive as the statutes prohibit state and local governments from restricting

the sharing of information regarding an individual’s immigration status with the

federal government. Plaintiffs and the United States further argue that the Directive

is preempted under the principles of conflict preemption because it creates an

obstacle to the federal government’s ability to carry out the objectives of the INA.

And, finally, only the Ocean County Plaintiffs argue that the Directive is field

preempted by Congress’s extensive regulation of the field of immigration. The Court

will discuss each category of preemption, in turn.

1. Express Preemption

Plaintiffs and the United States contend that sections 1373(a) and 1644

expressly preempt the Directive’s limitation on the sharing of certain information

with ICE—specifically barring state and local law enforcement from providing ICE

with “any non-public personally identifying information regarding any individual,”

providing access to any “state, county, or local law enforcement . . . database . . . not

available to the general public,” or providing “notice of a detained individual’s

upcoming release from custody,” unless certain enumerated factors are met. See

Directive § II.B(2), (3), (5). Section 1373(a) provides that

Notwithstanding any other provision of Federal, State, or

local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any

government entity or official from sending to, or receiving

from, [DHS] information regarding the citizenship or

immigration status, lawful or unlawful of any individual.

8 U.S.C. § 1373(a) (emphasis added).13 Plaintiffs and the United States seek to apply

a broad interpretation of the phrase “regarding the citizenship or immigration status

. . . of any individual” that would include non-public personal identifying information

and the release date of detained individuals. Defendants, however, maintain that the

phrase should be narrowly interpreted to apply only to information pertaining to an

13 Similarly, section 1644 provides that “[n]otwithstanding any other provision of

Federal, State, or local law, no State or local government entity may be prohibited, or

in any way restricted, from sending to or receiving from [DHS] information regarding

the immigration status, lawful or unlawful, of an alien in the United States.” The

parties’ arguments relating to sections 1644 and 1373 are identical, and therefore,

the Court will address these sections in tandem.

individual’s immigration status, i.e., an individual’s legal and citizenship status. In

that connection, Defendants argue that the Directive does not conflict with sections

1373(a) and 1644 as it permits State and local law enforcement to comply with

requests for such information. See Directive § II.C(10). Moreover, Defendants

contend that the broad interpretation of sections 1373(a) and 1644 runs afoul of the

Tenth Amendment.14

i. Sections 1373(a) and 1644 as Preemption Provisions

Before reaching the parties’ arguments as to the reach of sections 1373(a) and

1644, the Court questions whether these sections are valid preemption provisions. It

is well-established that express preemption “arises when there is an explicit statutory

command that state law be displaced.” St. Thomas—St. John Hotel & Tourism Ass’n,

Inc. v. Gov’t of the U.S. Virgin Islands, 218 F.3d 232, 238 (3d Cir. 2000) (quoting

Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)). Indeed, in Murphy, the

14 Defendants frame their Tenth Amendment argument as one of constitutional

avoidance. It is well established that the canon of constitutional avoidance is

employed “when ‘a serious doubt’ is raised about the constitutionality of an act of

Congress,” which requires courts to “first ascertain whether a construction of the

statute is fairly possible by which the question may be avoided.” Jennings v.

Rodriguez, 138 S. Ct. 830, 842 (2018) (quoting Crowell v. Benson, 285 U.S. 22, 62

(1932)). However, the canon is only applicable “when, after the application of

ordinary textual analysis, the statute is found to be susceptible of more than one

construction.” Id. (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005)). Importantly,

“[i]n the absence of more than one plausible construction, the canon simply ‘has no

application.’” Id. (quoting United States v. Oakland Cannabis Buyers’ Cooperative,

532 U.S. 483, 494 (2001)). As discussed infra, the Court finds that Plaintiffs’ broad

interpretation of section 1373(a), which Defendants contend violates the Tenth

Amendment, is simply not supported by the plain meaning of the statute. Because

section 1373(a) is not susceptible to more than one construction, there are no grounds

on which to invoke the canon of constitutional avoidance, and I need not discuss it.

Supreme Court clarified that all three types of preemption “work in the same way:

Congress enacts a law that imposes restrictions or confers rights on private actors; a

state law confers rights or imposes restrictions that conflict with the federal law; and

therefore the federal law takes precedence and the state law is preempted.” 138 S.

Ct. at 1480. In Murphy, the Court determined that the Professional and Amateur

Sports Protection Act (“PASPA”), which barred states from adopting legal sports

gambling schemes, did not constitute a preemption provision because there was “no

way in which this provision can be understood as a regulation of private actors.” Id.

at 1481. Sections 1373(a) and 1644 are similar to PAPSA, in that, these sections

regulate only state and local governments and do not, in any way, regulate private

actors. Indeed, in the wake of Murphy, several district courts have found that §§

1373(a) and 1644 are not preemption provisions because “[b]y their plain terms, the

provisions affect state and local government entities and officials; they do not

regulate private actors as Murphy requires for preemption.” Colorado v. U.S. Dep’t

of Justice, ___ F. Supp. 3d ___, 2020 WL 1955474, at *18 (D. Colo. Apr. 23, 2020); see

also Oregon v. Trump, 406 F. Supp. 3d 940, 972 (D. Or. 2019) (observing that “by their

terms, Sections 1373 and 1644 affect only state and local government ‘entit[ies]’ and

‘official[s]’”); City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 950 (N.D.

Cal. 2018) (“Section 1373 . . . does not regulate private actors or provide private actors

with any additional rights in the INA’s statutory scheme. DOJ’s preemption

argument fails on this distinction.”).

Recognizing such a distinction, the United States instead argues that Murphy

does not apply because “the information covered by 8 U.S.C. § 1373(a) and 1644

belongs to private actors, and the statute ensures that the federal government can

access this information.” (USA Statement of Interest, at 21.) The Government draws

this nuanced distinction without citing to any authority and I do not find it

persuasive. While sections 1373(a) and 1644 require the sharing of information

regarding private individuals, these provisions plainly regulate the sharing of such

information by state and local government officials, and significantly, they do not

regulate private actors in any way. See Colorado, 2020 WL 1955474, at *18. Nothing

in Murphy or other Supreme Court precedents instruct courts to look beyond what

actors a statute seeks to regulate in determining whether that statute has a

preemptive effect; what the United States advocates for is inconsistent with, and too

attenuated from, the principles set forth by Murphy. In this Court’s view, under the

guidance of Murphy, sections 1373(a) and 1644 do not constitute preemption

provisions. Indeed, this conclusion, alone, is a death knell to Plaintiffs’ and United

States’ arguments on preemption. However, because of the important constitutional

interests at hand, I nevertheless will consider the parties’ arguments as to whether

the Directive conflicts with the relevant portions of the INA.

ii. Express Preemption and Sections 1373(a) and 1644

The key to determining whether the information sharing provisions of the

Directive are expressly preempted by sections 1373(a) and 1644 is understanding the

scope of the phrase “information regarding the citizenship or immigration status” of

any individual. See § 1373(a). In that connection, Plaintiffs and the United States

maintain that the section should be read broadly based on the inclusion of the term

“regarding,” which they argue indicates an intent to broaden the scope of the

provision. (See Cape May Opp. Br., at 13; USA Statement, at 14.)15 Defendants, on

the other hand, maintain that the construction of sections 1373(a) and 1644 advanced

by Plaintiffs is overly broad and would “sweep[] in anything that relates to federal

removability or detention decisions, that reaches far beyond the plain text” of the

statute. (Defs.’ Moving Br., at 22–24.) I agree.

In construing a statute, courts must begin with the text itself, “and proceed

from the understanding that ‘unless otherwise defined, statutory terms are generally

interpreted in accordance with their ordinary meaning.’” Sebelius v. Cloer, 569 U.S.

369, 376 (2013) (quoting BP America Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)). The

first step of that analysis “is to determine whether the language at issue has a plain

and unambiguous meaning with regard to the particular dispute in the case.”

15 The United States contends that the broadening effect of “regarding” is further

evident when section 1373(a) is contrasted with section 1373(c), which imposes an

obligation on the federal government to respond to any inquiry from state or local

government agencies “seeking to verify or ascertain the citizenship or immigration

status of any individual within the jurisdiction of the agency for any purpose

authorized by law.” (See USA Statement, at 14.) Because section 1373(c) omits the

word “regarding,” the United States reasons that section 1373(a) should be read more

broadly to include other information, such as an alien’s personal identifying

information and the release date of a detained individual. See id. The Court

disagrees. First, as set forth infra, a plain reading of section 1373(a) reveals that the

section contemplates only the sharing of information reflecting an individual’s legal

status in the United States. Moreover, “the fact that subpart (c) only concerns itself

with immigration status suggests, given § 1373’s focus on reciprocal communication

between states and the federal government, that immigration status is the extent of

subpart (a)’s reach as well.” United States v. California, 921 F.3d 865, 892 (9th Cir.

2019) (California II).

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil

Co., 519 U.S. 337, 340 (1997)). If “the meaning of the statutory text is plain, [the

court’s] inquiry is at an end.” Roth v. Norfalco, LLC, 651 F.3d 367, 379 (3d Cir. 2011).

If, however, the text is “reasonably susceptible of different interpretations,” it may be

ambiguous. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010)

(quoting Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir. 2005)). Only when the statute

is ambiguous may courts look to other portions of the statute for guidance, because

“[s]tatutory interpretation focuses on ‘the language itself, the specific context in

which that language is used, and the broader context of the statute as a whole.’”

AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 354 (2002) (quoting Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997)). And, only when a statute is ambiguous and

after consideration of the statutory scheme, may courts consider the legislative

history or other extrinsic material – and then, only if it “shed[s] a reliable light on the

enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mobil

Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005).

Recently, and relevant here, a number of courts have considered the language

of sections 1373(a) and 1644, and their scope relating to the type of information to be

shared by state and local agencies. In United States v. California (California II), the

Ninth Circuit considered the validity of the California Values Act, which “limits law

enforcement’s ‘discretion to cooperate with immigration authorities.’” 921 F.3d 865,

876 (9th Cir. 2019). Substantially similar to the Directive, the California Values Act,

inter alia, prohibits state and local law enforcement agencies from sharing with

federal immigration authorities personal identifying information, such as “the

individual’s home address or work address,” or “information regarding a person’s

release date.” Id. (quoting Cal. Gov’t Code § 7285.6(a)(1)).16 There, the United States,

likewise, argued that section 1373 directly conflicts with the restrictions of the

information set forth in the California Values Act, and insisted that Congress’s

inclusion of the term “regarding” in section 1373 indicated that the statute should be

broadly construed to preempt the California law. Id. at 892–93. The Ninth Circuit

acknowledged that, generally speaking, phrases like “regarding” have “a broadening

effect, ensuring that the scope of a provision covers not only its subject but also

matters relating to that subject.” Id. at 891–92 (quoting Lamar, Archer & Cofrin,

LLP v. Appling, 138 S. Ct. 1752, 1759–60 (2018)). However, it observed that “if the

term ‘regarding’ were ‘taken to extend to the furthest stretch of its indeterminacy,

then for all practical purposes preemption would never run its course, for [r]eally,

universally, relations stop nowhere.’” Id. (alteration in original) (quoting N.Y. State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655

(1995)). Rejecting the United States’ strained reading of § 1373, the California II

court held that the phrase “is naturally understood as a reference to a person’s legal

classification under federal law.” Id. at 891. While the Ninth Circuit did not reach

16 In California II, the United States also challenged two other California

statutes—the Immigrant Worker Protection Act, which sets forth certain protections

for immigrant employees, and AB 103, which permits the California Attorney General

to inspect detention facilities which house or detain noncitizens for the purposes of

civil immigration proceedings. 921 F.3d at 875–76. These are not relevant to the

case at hand.

the issue of whether section 1373 violates the anticommandeering doctrine of the

Tenth Amendment, id. at 893 n.19, the district court found its constitutionality

“highly suspect” because it “dictate[s] what states may and may not do.” United

States v. California (California I), 314 F. Supp. 3d 1077, 1101 (E.D. Cal. 2018), aff’d

in part & rev’d and remanded in part, 921 F.3d 865. Dissatisfied by the Ninth

Circuit’s decision, the United States pressed on and sought writ of certiorari from the

Supreme Court. Just last month, in June 2020, the Court denied that petition. See

United States v. California, ___ S. Ct. ___, 2020 WL 3146844 (2020).

Courts have also considered the scope of section 1373 in the context of the

Edward Byrne Memorial Justice Assistance Grant (“Byrne Grant”) Program, through

which the federal government provides financial assistance to states and localities

for criminal justice purposes. See City & Cty. of San Francisco v. Sessions, 349 F.

Supp. 3d 924, 967 (N.D. Cal. 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d

289, 295 (E.D. Pa. 2018), aff’d in part and vacated in part on other grounds, 916 F.3d

276 (3d Cir. 2019). As conditions of receiving a Byrne Grant, a locality must provide

ICE with advance notice of release dates of inmates and certify its compliance with

section 1373. City of Philadelphia, 309 F. Supp. 3d at 295. A number of states and

municipalities across the country have challenged these conditions on the grounds

that they violate the Tenth Amendment. For example, in City of Philadelphia, the

United States argued that section 1373 requires localities to “provide advance notice

of release from City custody” based on a broad interpretation of the phrase

“information regarding . . . citizenship or immigration status.” Id. at 331. The court

rejected this position, finding that the United States’ reading of the statute was

“simply impossible to square with the statutory text.” Id. Indeed, the court held that

the plain meaning of the phrase “citizenship or immigration status,” means “an

individual’s category of presence in the United States—e.g., undocumented, refugee,

lawful permanent resident, U.S. citizen—and whether or not an individual is a U.S.

citizen, and if not, of what country.” Id.17

In reaching this conclusion, the City of Philadelphia court relied on the

Northern District of California’s decision in Steinle v. City & Cty. of San Francisco,

230 F. Supp. 3d 994 (N.D. Cal. 2017). Steinle involved a suit brought pursuant to 42

U.S.C. § 1983 by the surviving relatives of a woman who was killed by an

undocumented man after he had been released from the custody of the San

Francisco’s Sheriff’s Department. Id. at 1004. Prior to his release, ICE had sent a

detainer request to the Sheriff’s Department seeking advance notice of his release

date so ICE could take custody of him. Id. The Sheriff’s Department did not respond

to the detainer because of city policy. Id. Plaintiffs alleged that the City was per se

negligent, partly because it failed to comply with § 1373, which provision, plaintiffs

asserted, required the city to provide advance notice of an inmate’s release to ICE.

Id. at 1005. The Steinle court dismissed this claim, as it found that “[n]othing in 8

17 In affirming the district court’s decision in City of Philadelphia, the Third

Circuit determined that section 1373 was not an “applicable law” for which the United

States could require compliance in order for a city or municipality to receive JAG

funds. See City of Philadelphia v. Att’y Gen. of the United States, 916 F.3d 276, 288–

91 (3d Cir. 2019). As a result, the Third Circuit did not reach the scope and facial

validity of section 1373. See id.

U.S.C. § 1373(a) addresses information concerning an inmate’s release date.” Id. at

1015. The same conclusion was reached by the court in City & Cty. of San Francisco,

349 F. Supp. 3d at 967-98 (“I agree with the other district courts that found Section

1373 would support only a narrow interpretation that extends to ‘information strictly

pertaining to immigration status (i.e. what one's immigration status is).’”).

Here, I am persuaded by these decisions that a plain reading of sections

1373(a) and 1644 reflects that the only information that state and local governments

are required to share is the legal status—i.e., citizenship or immigration status—of

an individual. While, generally, a term like “regarding” has a broadening effect, to

read it as broadly as advanced by Plaintiffs and the United States would

impermissibly expand the scope of these statutes to sweep in any information,

including personal identifying data, concerning an alien in the United States. Indeed,

neither Plaintiffs nor the United States suggest any limit to their interpretation of

the statute, an unreasonable result, that the statute based on its plain wording,

cannot contemplate. Accord N.Y. State Conference of Blue Cross & Blue Shield Plans,

514 U.S. at 655. There is simply nothing in the statute to suggest that the inclusion

of the word “regarding” requires States and local governments to share personal

identifying information and dates of release from detention, as such information does

not directly relate to, or regard, an individual’s immigration status.18 See City of

Philadelphia, 309 F. Supp. 3d at 331; see also Steinle, 230 F. Supp. 3d at 1015.

18 Indeed, as discussed infra, if the Court were to read sections 1373(a) and 1644

as broadly as requested by Plaintiffs and the United States, the sections would violate

the Tenth Amendment.

Rather, plainly, the phrase “regarding the citizenship or immigration, lawful or

unlawful of any individual” means just that—information relating to the immigration

status of an alien, including his/her citizenship.

Because the Court finds that sections 1373(a) and 1644 apply only to

information specifically regarding an individual’s immigration or citizenship status,

i.e., whether the individual is a U.S. citizen, green card holder, or holds some other

legal or unlawful status in the United States, they do not expressly preempt the

Directive.19 Indeed, the Directive specifically permits compliance with those sections

19 The Cape May County Plaintiffs urge the Court to consider the legislative

history of sections 1373(a) and 1644, which they contend supports a broad reading of

sections 1373 and 1644. For example, the Cape May Plaintiffs cherry pick language

from the Senate Report and argue that “Congress’[s] stated purpose in enacting §

1644 was ‘to give State and local officials the authority to communicate with [DHS]

regarding the presence, whereabouts, or activities of illegal aliens.’” (Cape May Opp.,

at 14 (quoting City of New York v. United States, 179 F.3d 29, 32–33 (2d Cir. 1999)).)

In light of the Court’s finding that the statutes are unambiguous, such an argument

cannot be squared with well-settled principle of statutory construction. Indeed,

[t]reating legislative reports as binding law [] undermines our

constitutional structure of separated powers, because legislative reports

do not come with the traditional and constitutionally-mandated political

safeguards of legislation. As noted above, legislative reports are not acts

of law satisfying the precise requirements of Article I, which were

devised by the Framers to ensure separation of powers and a careful

legislative process. By contrast, legislative reports may in some cases be

written by an individual legislator, congressional staffers, or even

lobbyists. Giving binding effect to passages in legislative reports may

thus give binding legal effect to the unchecked will of a lone person, and

that is not what our Constitution envisions.

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684-85 (9th Cir. 2007)

(footnotes omitted). In that regard, “Congress’s ‘authoritative statement is the

statutory text, not the legislative history.’” Chamber of Commerce of U.S. v. Whiting,

563 U.S. 582, 599 (2011) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546, 568 (2005)). Because the plain language of sections 1373(a) and 1644 is

by allowing state, local, and county law enforcement agencies to “send[] to . . . federal

immigration authorities information regarding the citizenship or immigration status,

lawful or unlawful of any individual.” Directive No. 2018-6 § II.C(10).

iii. Anticommandeering and the Tenth Amendment

If the Court were to accept the broad reading of sections 1373(a) and 1644

advanced by Plaintiffs and the United States, and find preemption, these particular

provisions would run afoul of the anticommandeering doctrine of the Tenth

Amendment. The Tenth Amendment provides that “[t]he powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.” U.S. Const., amend. X. From the Tenth

Amendment, emerges the anticommandeering doctrine, which provides that “the

Federal Government may not compel the States to implement, by legislation or

executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898,

925 (1997); see also Murphy, 138 S. Ct. at 1475–76. As the Supreme Court explained

in Murphy, “[t]he anticommandeering doctrine may sound arcane, but it is simply the

expression of a fundamental structural decision incorporated into the Constitution,

i.e., the decision to withhold from Congress the power to issue orders directly to the

States.” 138 S. Ct. at 1475. In other words, “any law that commandeers the

legislative processes [and agencies] of the States by directly compelling them to enact

and enforce a federal regulatory program is beyond the inherent limitations on

clear, there is no basis to go behind the language and delve into the legislative history.

See Steinle, 230 F. Supp. 3d at 1014 (declining to consider legislative history of section

1373 because of the clarity of the statutory text).

federal power within our dual system” of government. Galarza v. Szalczyk, 745 F.3d

634, 643 (3d Cir. 2014). This doctrine serves several key purposes, including

promoting “[a] healthy balance of power between the States and the Federal

Government [which reduces] the risk of tyranny and abuse from either front,”

“promot[ing] political accountability” by making it clear to “[v]oters who like or dislike

the effects of the regulation . . . who to credit or blame,” and “prevent[ing] Congress

from shifting the costs of regulation to the States.” Murphy, 138 S. Ct. at 1477.

The Supreme Court first addressed the anticommandeering doctrine in New

York v. United States, 505 U.S. 144 (1992), in which it considered the validity of a

federal law regulating the disposal of radioactive waste by the states. Specifically, at

issue was a provision that required states to, under certain conditions, either adopt

the regulations for disposal advanced by Congress or “take title” to radioactive waste.

Id. at 152–54. The Supreme Court held that the “take title” provision violated the

Tenth Amendment based on the principle that “Congress may not simply

‘comandee[r] the legislative processes of the States by directly compelling them to

enact and enforce a federal regulatory program.’” Id. at 161 (quoting Hodel v. Va

Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981)). Several years

later in Printz, the Court again applied the anticommandeering doctrine in

considering the validity of a provision of the Brady Handgun Violence Protection Act,

which temporarily required the chief law enforcement officer of localities to conduct

background checks and other tasks when an individual purchased a handgun until a

national system for such checks became operative. 521 U.S. at 902–03. The Printz

Court held that the provision unconstitutionally conscripted the states and their

officers into the service of the federal government. Id. at 935. In that regard, the

Court explained:

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 policymaking 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.

Id.

Most recently, the Supreme Court invoked the anticommandeering doctrine in

Murphy to invalidate a provision in PASPA that prohibited states from authorizing

sports gambling. The provision specifically made it “unlawful” for a State or any of

its subdivisions “‘to sponsor, operate, advertise, promote, license, or authorize by law

or compact . . . a lottery, sweepstakes, or other betting, gambling, wagering scheme

based . . . on’ competitive sporting events.” Id. at 1465. (quoting 28 U.S.C. § 3702(2)).

The Supreme Court found the provision to be a “direct affront to state sovereignty,”

because the “provision unequivocally dictates what a state legislature may and may

not do.” Id. at 1478. Critically, the Supreme Court found that any attempt to draw

a distinction between federal laws that command state action and those that prohibit

state action to be “empty,” and the Court made plain that “[t]he basic principle—that

Congress cannot issue direct orders to state legislatures—applies in either event.”

Id. at 1478.20

In light of these principles, it is clear that if sections 1373(a) and 1644 were

broadly construed to cover all types of information possibly related to the enforcement

of immigration law, including personal identifying data and dates of release of

inmates, they would violate the Tenth Amendment under the anticommandeering

doctrine.21 Indeed, much like the provision at issue in Murphy, a broad reading of

20 Further undercutting the position of Plaintiffs and the United States, since

Murphy a majority of courts that have considered facial challenges to section 1373

have found it to be unconstitutional under the Tenth Amendment. See City of

Chicago v. Sessions, 321 F. Supp. 3d 855, 872 (N.D. Ill. 2018) (finding that “Section

1373 impermissibly directs the functioning of local government in contravention of

Tenth Amendment principles” and “is thus unconstitutional on its face”); see also

Oregon v. Trump, 406 F. Supp. 3d 940, 971 (D. Or. 2019) (“Here, the Court agrees

with Plaintiffs, as well as every other court to have considered the issue after Murphy,

that sections 1373 and 1644 violate the Tenth Amendment.”); City and Cty. of San

Francisco, 349 F. Supp. 3d 924 (N.D. Cal. 2018) (finding section 1373 unconstitutional

under the Tenth Amendment). But see State of N.Y. v. Dep’t of Justice, 951 F.3d 84,

116 (2d Cir. 2020) (holding that “the district court erred in holding 8 U.S.C. § 1373

unconstitutional because the statute does not violate the anticommandeering

principle of the Tenth Amendment as applied here to a federal funding requirement”).

The question of section 1373’s validity, however, is not before the Court in this matter

as none of the parties argue that section 1373 is facially unconstitutional.

21 The United States argues that there is an “information sharing exception” to

the anticommandeering doctrine. In support of that argument, the United States

relies on the Supreme Court’s decision in Reno v. Condon and dicta from Printz.

Neither case supports the application of such an exception, if one exists, to this case.

First, Reno v. Condon involved a challenge brought by South Carolina to the Driver’s

Privacy Protection Act of 1994, which required disclosure to the federal government

of personal identifying information kept in the records of state motor vehicle

departments. 528 U.S. 141, 143 (2000). The Supreme Court found the statute valid

under the Tenth Amendment as it “does not require the States in their sovereign

capacity to regulate their own citizens, . . . [but] regulates the States as the owners

of databases.” Id. at 151. Unlike the law at issue in Reno, however, sections 1373(a)

and 1644 do not simply require disclosure of information, but instead “directly tell[s]

states and state actors that they must refrain from enacting certain state laws.” City

of Philadelphia, 309 F. Supp. 3d at 330. Moreover, the dicta from Printz, in which

sections 1373(a) and 1644 would “unequivocally dictate[] what a state legislature may

and may not do.” Murphy, 138 S. Ct. at 1478. Under the proposed interpretation,

states would have no ability to make the “legitimate choice” to decline to participate

in the enforcement of federal immigration law because they would be unable to

regulate the type of information that state and local agencies share with federal

immigration authorities. By prohibiting state and local governments from restricting

the types of information shared with the federal government, sections 1373(a) and

1644 would seemingly require state and local law enforcement agencies to share any

information about an alien, giving the state no choice but to participate in the

enforcement of federal immigration law. This would clearly act to “compel state and

local agencies to expend funds and resources to effectuate a federal regulatory

scheme,” because states could not decline to share certain information relating to an

alien with the federal government. See Galarza, 745 F.3d at 644.

Put simply, even if the Directive “obstructs federal immigration enforcement,

the United States’ position that such obstruction is unlawful runs directly afoul of the

Tenth Amendment and the anticommandeering rule.” California II, 921 F.3d at 888.

As it stands, the Directive permits full compliance with sections 1373(a) and 1644 as

the Supreme Court stated that statutes “which require only the provision of

information to the Federal Government[] do not involve . . . the forced participation

of the States’ executive in the actual administration of a federal program,” was

language in the opinion where the Court recounted, and then rejected, the

Government’s specific arguments made in the context of that case. See Printz, 521

U.S. at 917–18. Contrary to the United States’ position, the Printz Court did not

carve out any exception to the anticommandeering doctrine. See City of Philadelphia,

309 F. Supp. 3d at 330. In short, the United States’ argument is specious.

it explicitly allows state, local, and county officials to share information regarding an

individual’s immigration status. See Directive § II.C(10). New Jersey has elected to

bar its localities from sharing other information that is plainly not covered by those

provisions. This is, therefore, a legitimate exercise of the State’s police power and

regulation of its law enforcement resources. Accordingly, Plaintiffs’ express

preemption claims are rejected.

2. Conflict Preemption

Next, Plaintiffs and the United States argue that the Directive is conflict

preempted by certain provisions of the INA. The Supreme Court has explained that

state laws may be preempted where they conflict with federal law, including “cases

where ‘compliance with both federal and state regulations is a physical impossibility,’

and those instances where the challenged state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.’” Arizona, 567 U.S. at 399–400 (citations omitted) (first quoting Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); and then Hines

v. Davidowitz, 312 U.S. 52, 67 (1941)); see also Farnia v. Nokia, Inc., 625 F.3d 97, 122

(3d Cir. 2010) (“Conflict preemption exists (1) ‘where it is impossible for a private

party to comply with both state and federal requirements’ or (2) ‘where state law

stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress.’” (quoting Fellner v. Tri-Union Seafoods, LLC, 539 F.3d 237,

251 (3d Cir. 2008))). There is, however, “a strong presumption against preemption

when Congress legislates in an area traditionally occupied by the States.” United

States v. California, 314 F. Supp. 3d 1077, 1088 (N.D. Cal. 2018) (California I). In

that connection, “courts should assume that ‘the historic police powers of the States’

are not superseded ‘unless that was the clear and manifest purpose of Congress.’”

Arizona, 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947)).

i. Information Sharing Provisions

First, Plaintiffs and the United States argue that the prohibitions on

information sharing in Section II.B of the Directive are conflict preempted by the INA

because the Directive frustrates the INA’s “comprehensive framework for the

detention and removal of criminal and other aliens . . . through numerous interlocking

and mutually reinforcing provisions that depend on and call for information-sharing

by state and local officials.” (USA Statement of Interest, at 9.) More specifically, the

United States explains that under 8 U.S.C. § 1231(a)(1), DHS is required to remove

an alien who has been ordered removed within 90 days of the order of removal, and

for aliens who are “detained or confined,” the 90-day period begins to run on the “date

the alien is released from detention or confinement.” See 8 U.S.C. §§ 1231(a)(1)(A),

(a)(1)(B)(ii); O’Farril v. Certoff, No. 07-1221, 2007 WL 1217355, at *1 (D.N.J. Apr. 24,

2007). Based on that tight timeframe, the United States contends that the objectives

of these provisions cannot be achieved if DHS is not provided “information about

aliens in state and local custody and about their release.” (USA Statement of

Interest, at 10.) Further, Plaintiffs and the United States contend that the

Directive’s prohibition on sharing an inmate’s release date with DHS “undercuts

DHS’s ability to execute administrative warrants pursuant to 8 U.S.C. § 1226(a) [and]

fulfill the mandatory detention obligation set forth in 8 U.S.C. § 1226(c).” (USA

Statement of Interest, at 11.)

Sections 1231 and 1226, which Plaintiffs and the United States contend

preempt the Directive, govern the federal government’s removal and detention of

aliens. Section 1231(a)(1) provides, in pertinent part,

(A) In general

Except as otherwise provided in this section, when an alien

is ordered removed, the Attorney General shall remove the

alien from the United States within a period of 90 days (in

this section referred to as the “removal period”).

(B) Beginning of Period

The removal period begins on the latest of the following:

. . .

(iii) If the alien is detained or confined (except under an

immigration process), the date the alien is released from

detention or confinement.

Sections 1226(a) and 1226(c) govern the arrest and detention of aliens. Section

1226(a) provides that following arrest on a warrant issued by the Attorney General,

an alien may be “detained pending a decision on whether the alien is removed from

the United States.” Section 1226(c) requires the Attorney General to detain certain

aliens upon their release from custody.

Here, Plaintiffs and the United States’ conflict preemption arguments ignore

that sections 1226 and 1231(a)(1) impose obligations solely on the federal

government.22 This is important, because under those statutes, state and local law

enforcement agencies have no duty to assist the federal government with carrying

out those obligations, except as required under sections 1373(a) and 1644, i.e.,

information sharing. Indeed, nothing in sections 1231(a)(1) and 1226 suggests “that

Congress impliedly mandated that state and local governments would act in

accordance with these statutes.” California II, 921 F.3d at 887. As the Ninth Circuit

has observed, “[e]ven if Congress had every expectation that [the States] would

[comply with these sections], and opted not to codify its belief based on the

presumption that states would conduct their law enforcement activities in concert

with federal immigration efforts, it is a state’s historic police power—not

preemption—that we must assume, unless clearly superseded by federal statute.” Id.

Simply put, “[f]ederal law does not suggest the intent—let alone a ‘clear and manifest’

one—to prevent states from regulating whether their localities cooperate in

immigration enforcement.” City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th Cir.

2018).

Pointedly, the Seventh Circuit found a similar argument raised by Plaintiffs,

here, to be a “red herring.” In City of Chicago v. Sessions, the Seventh Circuit

considered whether certain conditions imposed upon recipients of a Byrne Grant

violated the Constitution, including the “‘notice’ condition mandating advance notice

22 In that connection, the Court need not address the United States’ arguments

with respect to sections 1226 and 1231 and the anticommandeering doctrine because

those sections do not apply to state actors and place obligations solely on the federal

government.

to federal authorities of the release date of persons in state or local custody who are

believed to be aliens.” 888 F.3d 272, 277 (7th Cir.), vacated in part, 2018 WL 4268817

(2018) (en banc). The City of Chicago challenged those conditions as they were

inconsistent with the provisions of the City’s Welcoming City Ordinance, which,

among other things, restricts the type of information shared with federal immigration

authorities. Id. at 278–81. As related to the City’s challenge, the United States

framed the central issue as “whether localities can be allowed to thwart federal law

enforcement” by declining to provide advance notice of inmate release dates. Id. at

282. While City of Chicago did not present a question of conflict preemption, the court

saliently observed that a state’s decision not to participate in the enforcement of

federal civil immigration law did not prevent the federal government from fulfilling

the objectives of Congress:

[N]othing in this case involves any affirmative interference

with federal law enforcement at all, nor is there any

interference whatsoever with federal immigration

authorities. The only conduct at issue . . . is the refusal of

the local law enforcement to aid in civil immigration

enforcement through informing the federal authorities

when persons are in their custody . . . . Some localities

might choose to cooperate with federal immigration efforts,

and others may see such cooperation as impeding the

community relationships necessary to identify and solve

crimes. The choice as to how to devote law enforcement

resources—including whether or not to use such resources

to aid in federal immigration efforts—would traditionally

be one left to state and local authorities.

Id. Similarly, here, New Jersey has made the decision not to cooperate with the

enforcement of federal immigration law in an effort to strengthen the relationship

between its communities and police, and shore up more effective enforcement of state

criminal law. That choice is a clear exercise of the State’s police power to regulate

the conduct of its own law enforcement agencies. See California I, 314 F. Supp. 3d

at 1105. There is no indication that Congress, in enacting the INA, sought to usurp

that power. Id. As such, the federal government cannot strong arm the State into

doing its own bidding.

Moreover, it is significant that the Directive does not interfere with the federal

government’s inherent power to regulate immigration. As Defendants and Amici

note, the Directive “does not give anyone the right to remain in the country, or set

limits on whom federal authorities can detain or when or where they can detain

them.” (Defs.’ Moving Br., at 27–28; ACLU Br., at 29.) While immigration is

undoubtedly the subject of the Directive, that alone does not render the Directive a

regulation on immigration that would stand in the way of the federal government

carrying out its objectives under the INA. As the Supreme Court has explained, not

“every state enactment which in any way deals with aliens is a regulation of

immigration and thus per se pre-empted by [the federal government’s] constitutional

power.” DeCanas v. Bica, 424 U.S. 351, 355 (1976), superseded by statute,

Immigration Reform & Control Act of 1986, 100 Stat. 3359, as recognized in, Kansas

v. Garcia, 40 S. Ct. 791, 797 (2020). Indeed, “the fact that aliens are the subject of a

state statute does not render it a regulation of immigration, which is essentially a

determination of who should or should not be admitted into the country, and the

conditions under which a legal entrant may remain.” Id. The Directive, in merely

defining the contours of New Jersey’s and its localities’ involvement in the

enforcement of federal civil immigration law, does not encroach onto the regulation

of immigration. See City of Chicago, 888 F.3d at 281 (finding that Chicago’s

“Welcoming City Ordinance” did not interfere “in any way with the federal

government’s lawful pursuit of its civil immigration activities” and did not

“immunize anyone to the reach of the federal government”).

In sum, the Court finds that the information sharing provisions of the

Directive are not conflict preempted by the INA, because they do not impose a true

“obstacle” on the federal government’s execution of federal civil immigration law.

While it may very well be easier for federal law enforcement to effect removals if it

has states’ assistance, that does not change the clear command of sections 1226 and

1231(a)(1), which place the burden of complying with the INA on the federal

government, not state and local authorities. Merely because a state law

“inconveniences” the federal government does not render it preempted—“the

repugnance must be ‘so direct and positive that the two acts cannot be reconciled or

consistently stand together.’” California I, 314 F. Supp. 3d at 1088 (quoting

Goldstein v. California, 412 U.S. 546, 554–55 (1973)). Rather, the fact that the

federal government may, without the cooperation of local law enforcement agencies,

expend extra efforts and resources to apprehend aliens who are subject to removal,

does not create the kind of “direct” obstacle necessary to trigger conflict preemption.

See id. at 1104 (finding that California’s limitations on sharing information with the

federal government was not an obstacle to the federal government’s enforcement of

civil immigration law).

ii. Prohibition on § 287(g) Agreements

Further, the Cape May County Plaintiffs argue that the Directive’s prohibition

of § 287(g) agreements between the United States and New Jersey state, county, and

local law enforcement agencies “frustrates” the federal government’s enforcement of

immigration law. (Cape May Opp. Br., at 16.) In response, Defendants correctly

respond that the INA has no preemptory effect on this provision of the Directive

because the 287(g) agreement program “is entirely voluntary,” and “the INA is clear

that law enforcement agencies can only carry out 287(g) agreements ‘to the extent

consistent with State and local law.”

Section 1357(g) governs so-called 287(g) agreements, and permits state and

local governments to enter into a written agreement with the Attorney General of the

United States

pursuant to which an officer or employee of the State or

subdivision, who is determined by the Attorney General to

be qualified to perform a function of an immigration officer

in relation to the investigation, apprehension, or detention

of aliens in the United States (including the transportation

of such aliens across State lines to detention centers), may

carry out such function at the expense of the State or

political subdivision and to the extent consistent with State

and local law.

8 U.S.C. § 1357(g)(1) (emphasis added). 287(g) agreements are entirely voluntary,

and there is no requirement that any State or local government enter into any such

agreement. See § 1357(g)(9) (“Nothing in this subsection shall be construed to require

any State or political subdivision of a State to enter into an agreement with the

Attorney General under this subsection.”); see also City of El Cenizo, 890 F.3d at 178

(“Section 1357 does not require cooperation at all.”).

The Cape May County Plaintiffs’ argument in this regard requires little

analysis. The INA itself contemplates that State law governs whether a subdivision

can cooperate with enforcement of federal immigration law through a 287(g)

agreement. That comports with the State of New Jersey’s well-established police

power to regulate and control its own law enforcement agencies. The Court must

presume that such police powers are not superseded “unless that was the clear and

manifest purpose of Congress.” Arizona, 567 U.S. at 400. Here, “[f]ederal law does

not suggest the intent—let alone a ‘clear and manifest’ one—to prevent states from

regulating whether their localities cooperate in immigration enforcement.” City of El

Cenizo, 890 F.3d at 178. Indeed, that participation by local enforcement agencies is

solely within the control of their creating state. While 287(g) agreements may

facilitate the federal government’s enforcement of immigration laws, and perhaps,

the federal government may in fact benefit from such assistance from local

authorities, the Directive’s prohibition on New Jersey localities from entering into

such agreements does not create any obstacle to that enforcement.23

23 The Cape May County Plaintiffs rely on the Second Circuit’s observation in

City of New York v. United States, that voluntary cooperation between the federal

and state governments is critical for the effectuation of the system of dual

sovereignties. 179 F.3d 29, 35 (2d Cir. 1999) (holding that “states do not retain under

the Tenth Amendment an untrammeled right to forbid all voluntary cooperation with

state or local officials with particular federal programs”). There is no doubt that the

Second Circuit’s observation is sound, but where federal law plainly allows states to

decide whether to participate in a federal program, that same set of laws cannot have

a preemptive effect on a state’s regulation prohibiting such participation.

Furthermore, here, the state has not intruded upon the cooperation required under

sections 1373(a) and 1644.

3. Field Preemption

Finally, only the Ocean County Plaintiffs, in a conclusory fashion, argue that

the Directive is preempted by the INA under the principles of field preemption. In

that connection, the Ocean County Plaintiffs contend that “a fair reading of the

legislative history of these statutes reflects Congressional intent to regulate

immigration information exchanges between federal and state and local

governments.” (Ocean Cty. Br., at 23.) Defendants, however, maintain that “both

the INA and the Tenth Amendment ensure that States have the right to decide the

extent of their participation in federal immigration enforcement.” (Defs.’ Reply Br.,

at 11 n.4 (emphasis in original).)

The doctrine of field preemption provides that “the States are precluded from

regulating conduct in a field that Congress, acting within its proper authority, has

determined must be regulated by its exclusive governance.” Arizona, 567 U.S. at 399.

Put differently, state law on an issue may be preempted where a federal regulatory

scheme is “so pervasive . . . that Congress left no room for the States to supplement

it.” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The

Directive is clearly not field preempted by the INA. While Congress has the exclusive

province to regulate federal civil immigration law, the INA itself contemplates that

States shall have the ability to determine the extent to which they participate in the

enforcement of such laws. See City of El Cenizo, 890 F.3d at 179; see also 8 U.S.C. §

1357(g) (permitting states and localities to enter into agreements with the Attorney

General “to perform a function of an immigration officer . . . to the extent consistent

with State and local law”); 8 U.S.C. § 1252c(a) (“Notwithstanding any other provision

of law, to the extent permitted by relevant State and local law, State and local law

enforcement officials are authorized to arrest and detain an individual who—(1) is an

alien illegally present in the United States; and (2) has previously been convicted of

a felony in the United States and deported or left the United States after such

conviction . . . .”); Galarza, 745 F.3d at 640 (“[N]o provisions of the [INA] authorize

federal officials to command local or state officials to detain suspected aliens subject

to removal.”). Nothing in the Directive seeks to obstruct any immigration objectives

of the federal government. Thus, I find that the Directive is not field preempted by

the INA, because it is clear that Congress contemplated that it was the province of

the States to determine the extent to which its law enforcement agencies would

participate in the enforcement of federal civil immigration law.

C. Intergovernmental Immunity

Finally, the United States argues, in two paragraphs, that the Directive is

unlawful because it violates the principles of intergovernmental immunity embodied

by the Supremacy Clause. Specifically, the United States contends that the

Directive’s restrictions on sharing information with the federal government

unlawfully discriminates against it and interferes with its ability to regulate

immigration. Defendants, however, argue that, as a procedural matter, the Court

need not consider this argument because the United States is not a party and

Plaintiffs did not raise this theory in their Complaints. Even so, Defendants maintain

that the Directive does not offend the principles of intergovernmental immunity

because its provisions do not regulate the United States.

First, as to the procedural defect, Defendants’ argument has facial appeal. It

is true that the United States is not a named party, but rather, under statutory

authority of 28 U.S.C. §§ 517, 518(b), the United States filed a brief here to protect

its interests in this important immigration dispute between the State of New Jersey

and its municipalities. As such, because it is not a party, the United States may be

logically precluded from raising claims or issues not presented by the Complaint or

by the named parties in this case. However, it is also unclear whether §§ 517 or

518(b) confers upon the Department of Justice the authority to interject unraised

issues in a matter where the federal government, by comparison, acts as an amicus.24

While I question the propriety of the United States raising the issue of

intergovernmental immunity for the first time in its brief, I will, for the sake of

completeness, address it.

The principles of intergovernmental immunity were first set forth by the

Supreme Court in McCulloch v. Maryland, in which it held that “the States have no

power, by taxation or otherwise, to retard, impede, burden, or in any manner control,

the operations of the constitutional laws enacted by Congress to carry into execution

the powers vested in the national government.” Treasurer of N.J. v. U.S. Dep’t of

Treasury, 684 F.3d 382, 409–10 (3d Cir. 2012) (quoting McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 322 (1819)). Put differently, under the principles of

24 It is well settled that a party acting as amicus cannot raise new issues that

have not been presented by the parties. See N.J. Retail Merchants Ass’n v. Sidamon-

Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012).

intergovernmental immunity, “[a] state regulation is invalid only if it regulates the

United States directly or discriminates against the Federal Government or those with

whom it deals.” North Dakota v. United States, 495 U.S. 423, 435 (1990). In

California I, the court considered whether California’s restriction on sharing the

release dates of inmates violated the principles of intergovernmental immunity. See

314 F. Supp. 3d at 1110. The California I court questioned whether

intergovernmental immunity would apply in a situation where a state regulates “the

activities of its own law enforcement.” Id. Moreover, the court found that the United

States had failed to show that California’s restrictions on sharing information with

federal immigration authorities “uniquely burdened” the federal government or that

similarly situated authorities, such as civil law enforcement agencies, were treated

more favorably than the federal government. Id. at 1111. The Ninth Circuit affirmed

the district court’s rejection of the United States’ argument as “[a] finding that

[California’s information sharing restrictions] violate[] the doctrine of

intergovernmental immunity would imply that California cannot choose to

discriminate against federal immigration authorities by refusing to assist their

enforcement efforts—a result that would be inconsistent with the Tenth Amendment

and the anticommandeering rule.” California II, 921 F.3d at 891.

Here, there is no question that the Directive does not regulate the United

States directly; it regulates only the conduct of state and local law enforcement

agencies in the State of New Jersey. In that regard, the United States has failed to

demonstrate how the Directive “discriminates” against it, except to generally allege

that the Directive interferes with Congress’s inherent authority to regulate federal

immigration law, a position that this Court has already rejected. Nor has the United

States suggested that New Jersey permits its law enforcement to share nonpublic

personal identifying information or inmate’s release dates with any similarly situated

law enforcement agency. Accordingly, because the Directive neither regulates the

United States nor discriminates against it, the Directive is not invalid under the

principles of intergovernmental immunity.

D. State Law Claims

Plaintiffs also bring several claims for relief under the New Jersey

Constitution and other New Jersey state laws. Specifically, the Ocean County

Plaintiffs claim that the Directive violates the Home Rule Doctrine of the New Jersey

Constitution and that Attorney General Grewal lacks authority to issue the Directive.

The Cape May County Plaintiffs bring a state law claim of tortious interference and

allege that the Directive was issued in violation of the New Jersey Administrative

Procedure Act.

Because I have dismissed Plaintiffs’ federal claims, the only basis for this

Court’s jurisdiction over the state law claims is supplemental jurisdiction pursuant

to 28 U.S.C. § 1367. “Supplemental jurisdiction allows federal courts to hear and

decide state-law claims along with federal-law claims where they ‘are so related to

claims in the action within such original jurisdiction that they form part of the same

case or controversy.’” Wis. Dep’t of Corrections v. Schact, 524 U.S. 381, 387 (1998)

(quoting § 1367(a)). Where a district court has original jurisdiction pursuant to 28

U.S.C. § 1331 over federal claims and supplemental jurisdiction over state law claims

pursuant to 28 U.S.C. § 1367(a), the district court has discretion to decline to exercise

supplemental jurisdiction if it has dismissed all claims over which it has original

jurisdiction. 28 U.S.C. § 1367(c)(3); Growth Horizons, Inc. v. Delaware Cty., Pa., 983

F.2d 1277, 1284–85 (3d Cir. 1993). In exercising this discretion, “the district court

should take into account generally accepted principles of ‘judicial economy,

convenience, and fairness to the litigations.” Growth Horizons, 983 F.2d at 1284

(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).

Here, the Court declines to exercise such discretion because the New Jersey

state courts should have the opportunity to determine whether the provisions of the

Directive comport with the New Jersey Constitution and other related state law.

Accordingly, Plaintiffs’ state law claims are dismissed without prejudice, and they

may re-file in state court pursuant to 28 U.S.C. § 1367(d) within 30 days from the

date of the accompanying Order.

IV. CONCLUSION

For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED

as to Plaintiffs’ federal claims, and those claims are dismissed with prejudice.

Because the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state

law claims, the Court does not reach Defendants’ Motion to dismiss those claims.

Rather, Defendants may renew their Motion in that regard in state court should

Plaintiffs choose to proceed in that forum pursuant to 28 U.S.C. § 1367(d). Lastly,

the Cape May County Plaintiffs’ Motion for Preliminary Injunction is DENIED as

moot.

Dated: July 29, 2020 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge