State of NJ v. United States

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

7-29-1996

State of NJ v. United States

Precedential or Non-Precedential:

Docket 95-5685

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 95-5685

STATE OF NEW JERSEY; CHRISTINE TODD WHITMAN;

WILLIAM H. FAUVER; LEO KLAGHOLZ,

Appellants

v.

UNITED STATES OF AMERICA; JANET RENO;

DORIS MEISSNER; ALICE M. RIVLIN

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 94-cv-03471)

Argued May 24, 1996

Before: SLOVITER, Chief Judge, Sarokin

and Oakes, Circuit Judges

(Opinion Filed July 29, 1996)

Deborah T. Poritz

Attorney General of New Jersey

Joseph L. Yannotti

Jerry Fischer (Argued)

Andrew Sapolnick

Office of Attorney General of New Jersey

Trenton, N.J. 08625

Attorneys for Appellants

Frank W. Hunger

Assistant Attorney General

Faith S. Hochberg

United States Attorney

Mark B. Stern (Argued)

Ellen D. Katz

United States Department of Justice

Washington, DC 20530-0001

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge.

I.

FACTS

The State of New Jersey, its governor, Christine Todd

Whitman, Corrections Commissioner William H. Fauver and Education

Commissioner Leo Klagholz (collectively New Jersey or the state)

have sued the United States, Attorney General Janet Reno,

Commissioner of the Immigration and Naturalization Service Doris

Meissner, and Director of the Office of Management and Budget

Alice Rivlin (collectively the United States) seeking

compensation for costs incurred by New Jersey in incarcerating

and educating illegal aliens.

New Jersey alleges that "[a]s a direct result of the

federal government's failure to control its international borders

and implement and abide by its laws, the State of New Jersey is

improperly forced to bear the financial and administrative costs

of imprisonment of illegal aliens who are convicted of crimes in

New Jersey . . .[as well as the] costs of education of illegal

aliens." App. at 25. These costs for state fiscal year 1994

(ending June 30, 1994) are alleged to have been approximately

$50.5 million for incarceration, App. at 26, and approximately

$162 million for education, App. at 27. New Jersey seeks a

declaratory judgment that it has a right to reimbursement of

these costs from the federal government, and an injunction and/or

writ of mandamus requiring defendants to disburse funds from the

United States Treasury to the state for these costs.

New Jersey grounds its eight count complaint on the

following statutory and constitutional provisions: sections of

the Immigration Reform and Control Act of 1986 providing for the

collection of penalties and expenses by the Attorney General and

the reimbursement of states by the Attorney General for costs

incurred for the imprisonment of illegal aliens convicted of

state felonies, 8 U.S.C. 1330, 1365(a); the Invasion and

Guarantee Clauses of Article IV, 4 of the U.S. Constitution;

the Tenth Amendment; the Naturalization Clause of Article I, 8;

the Takings Clause of the Fifth Amendment; and generalized

principles of state sovereignty.

The district court granted the United States' motion

to dismiss under Fed.R.Civ.P. 12(b)(6), ruling that New Jersey's

constitutional claims presented nonjusticiable political

questions and that its statutory claims were not subject to

judicial review under the Administrative Procedures Act. This

appeal followed. We have jurisdiction under 28 U.S.C. 1291 and

our review is plenary.

II.

DISCUSSION

We note at the outset that five other states have also

filed similar actions. Each case has been dismissed by the

district court under Fed.R.Civ.P. 12(b)(6) and in each of the two

cases so far to have reached the appellate courts, the respective

court of appeals has affirmed the dismissal. See Texas v. United

States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending,

No. 95-40721 (5th Cir.); Arizona v. United States, No. 94-0866

(D.Ariz. Apr. 18, 1995), appeal pending, No. 95-15980 (9th Cir.);

Padavan v. United States, No. 94-CV-1341 (N.D.N.Y., Apr. 18,

1995), affirmed, 82 F.3d 23 (2d Cir. 1996); California v. United

States, No. 94-0674-K (S.D.Cal. Mar. 3, 1995), appeal pending,

No. 95-55490 (9th Cir.); Chiles v. United States, 874 F.Supp.

1334 (S.D.Fla. 1994), affirmed, 69 F.3d 1094 (11th Cir. 1995),

cert. denied, 116 S.Ct. 1674 (1996).

A.

Constitutional Claims

Plaintiffs present a number of novel constitutional

claims. We have considerable doubt as to whether these claims

are even colorable, but, in any event, we agree with the district

court's conclusion that they are non-justiciable. Nonetheless,

we examine each claim briefly in turn before considering the

political question doctrine.

1. Tenth Amendment

In its oral argument, New Jersey placed its principal

focus on the Tenth Amendment. In its complaint, New Jersey

alleges that "[b]y forcing the taxpayers of the State of New

Jersey to absorb the costs of incarcerating and educating illegal

aliens, the United States . . . has usurped the taxpayers of the

State of New Jersey of their rights, under the Tenth Amendment,

to determine the manner in which their tax funds and State

resources are expended." App. at 31.

The Tenth Amendment makes explicit a fundamental

precept of the governmental structure defined by our

Constitution: that the federal government's powers are limited to

those enumerated. Thus, those "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.

As interpreted by the Supreme Court, the federal

government, which has considerable power to regulate individuals

directly and to encourage states to adopt certain legislative

programs by, for example, attaching conditions to the receipt of

federal funds, cannot require the states to govern according to

its instructions. Thus "Congress may not simply 'commandee[r]

the legislative processes of the States by directly compelling

them to enact and enforce a federal regulatory program.'" New

York v. United States, 505 U.S. 144, 161 (1992) (quoting Hodel v.

Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,

288 (1981)).

In the decision in New York, the Court held that a

federal statute that required states either to regulate the

disposal of radioactive waste pursuant to Congress' direction or

take title and possession of radioactive wastes generated within

their borders "crossed the line distinguishing encouragement from

coercion." 505 U.S. at 175. Either option -- whether adoption

of Congress' regulatory scheme or taking title to radioactive

wastes -- required a state to govern according to Congress'

instructions. Because either option standing alone would be

beyond Congress' authority, "it follows that Congress lacks the

power to offer the States a choice between the two." Id. at 176.

In contrast, here the federal government has issued no

directive to the State of New Jersey. Neither the state's

incarceration of illegal aliens nor its obligation to educate

illegal aliens results from any command by Congress. The state

has made its own decision to prosecute illegal aliens for acts

they committed in violation of New Jersey's own criminal code and

its education of illegal aliens does not derive from any

Congressional or executive directive, but from the Constitution

itself, as construed by the Supreme Court in Plyer v. Doe, 457

U.S. 202, 230 (1982).

The state seeks to add another link to the causal

chain, asserting that it is not simply the state's criminal code

or its constitutional obligations that have caused it to make the

large expenditures it complains of, but rather the federal

government's failure to adequately enforce the immigration laws.

But no precedent suggests that inaction by Congress or the

Executive Branch constitutes the kind of coercion that violates

the Tenth Amendment. As defendants succinctly state in their

brief, "[t]he Tenth Amendment provides a shield against the

federal exercise of powers reserved to the states, not a sword to

compel federal action." Appellees' Brief at 25. See Padavan,

82 F.3d at 28-29 (rejecting similar Tenth Amendment claim by New

York State).

2. Naturalization Clause

One of Congress' specifically enumerated powers under

Article I, section 8 of the Constitution is "To establish an

uniform Rule of Naturalization." Count VI of the complaint

alleges that because power over immigration matters has thus been

delegated to the federal government, "the State of New Jersey is

powerless to effectively resolve the economic problems caused by

the invasion of illegal immigrants into the State," and it

further alleges that defendants, in failing to implement their

laws and policies, have "forced the State of New Jersey, to bear

the burden of a responsibility which is that of the Nation as a

whole pursuant to [the Naturalization Clause]." App. at 33.

Beyond its conclusory statement that "[t]his

encroachment upon the resources of the State of New Jersey is

constitutionally violative and impermissibly infringes upon the

fundamental right of the State to determine proper allocation of

its resources," id., New Jersey offers no reason why

Congressional action pursuant to a power delegated to Congress by

the Constitution that results in the indirect imposition of some

cost on the states is an unconstitutional infringement on state

sovereignty. Such an argument is even more tenuous in light of

the Court's decision in Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985), where the Court upheld

the imposition of minimum wage and overtime requirements of the

Fair Labor Standards Act on a local public mass-transit

authority, a far more direct congressional imposition of cost.

It follows that there is no basis for a claim that the

Constitution has been violated by the federal government's

inaction, which allegedly has set in motion events that have

indirectly caused the state to incur costs. See Padavan, 82 F.3d

at 26-27 (rejecting same claim by New York). In light of the

Supreme Court's reluctance to read affirmative governmental

duties into the Constitution, see, e.g., DeShaney v. Winnebago

County Dep't of Social Servs., 489 U.S. 189 (1989), we see no

ground on which we could read into the Naturalization Clause an

affirmative duty on the part of the federal government to protect

states from harm caused by illegal aliens, who are non-

governmental third parties.

3. Takings Clause

In one of its separate counts, New Jersey alleges that

the federal government, by forcing the state to expend state tax

funds and revenues to incarcerate and educate illegal aliens, has

taken its property without just compensation in violation of the

Takings Clause of the Fifth Amendment.

Although New Jersey correctly notes that the Takings

Clause has been construed to apply to the federal government's

condemnation of land owned by state and local governments, United

States v. 50 Acres of Land, 469 U.S. 24, 31 (1984), it cites no

case that has extended that holding to encompass government

action or inaction which has an adverse impact on a state's tax

revenues.

The Supreme Court has avoided expounding any "set

formula" for determining when governmental action constitutes a

taking, instead "engag[ing] in . . . essentially ad hoc, factual

inquiries," Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1015 (1992) (quoting Penn Central Transp. Co. v. New York

City, 438 U.S. 104, 124 (1978)). Relevant considerations include

"[t]he economic impact of the regulation on the claimant and . .

. the extent to which the regulation has interfered with distinct

investment-backed expectations." Penn Central, 438 U.S. at 124.

Also relevant is the nature of the action, such as whether it is

a physical invasion of land and thus more likely to constitute a

taking, or a "public program adjusting the benefits and burdens

of economic life to promote the common good," which ordinarily

will not be compensable. Id. The Court has made clear that

"government may execute laws or programs that adversely affect

recognized economic values," id., and has thus "dismissed

`taking' challenges on the ground that, while the challenged

government action caused economic harm, it did not interfere with

interests that were sufficiently bound up with the reasonable

expectations of the claimant to constitute `property' for Fifth

Amendment purposes." Id. at 124-25.

We have no hesitancy in concluding that the federal

government's alleged failure to stem the tide of illegal

immigrants into the State of New Jersey, while it may have had

the incidental effect of causing the state to incur additional

law enforcement and education costs, did not interfere with the

state's "investment-backed" and "reasonable expectations" and

thus is not a taking of state property for purposes of the Fifth

Amendment.

4. Invasion Clause

In Count III New Jersey alleges that the failure of the

United States to prevent the entry of illegal aliens into that

state violates the federal government's obligation under the

Constitution to "protect each of [the states] against Invasion."

U.S. Const. art. IV, 4. It offers no support whatsoever for

application of the Invasion Clause to this case or for its

reading of the term "invasion" to mean anything other than a

military invasion. See Padavan, 82 F.3d at 28 ("In order for a

state to be afforded the protections of the Invasion Clause, it

must be exposed to armed hostility from another political entity,

such as another state or foreign country that is intending to

overthrow the state's government." (citing The Federalist No. 43

(James Madison))).

Although it is not entirely clear from either its

complaint or brief, the state also appears to be including in the

same count a claim under the Guarantee Clause of Article IV, 4.

That clause provides that "The United States shall guarantee to

every State in this Union a Republican Form of Government," and

may be implicated by New Jersey's allegation that "the

sovereignty and independence of the State of New Jersey has been

contravened" because of the actions (or inaction) of the federal

government. App. at 30. New Jersey's complaint makes no

specific allegation indicating how the state's republican form of

government is threatened or compromised by defendants' actions

(or inaction), and certainly the fact that the state "has been

forced to increase and expend state taxes," App. at 29, cannot be

said to "pose any realistic risk of altering the form or the

method of functioning of [the state's] government," see New York,

505 U.S. at 186.

5. Intrusion into Fundamental Sovereignty of State

Without citing to any particular constitutional

provision, New Jersey makes the generalized claim that the

Constitution "provides, with certain well-defined exceptions,

that the federal government may not intrude on the fundamental

sovereignty of a State" and that defendants have violated this

principle by "failing to implement and enforce its laws,"

permitting "the invasion of illegal aliens into the State," and

refusing "to provide reimbursement for the cost of incarcerating

and educating them." App. at 32. This claim adds nothing to the

claims we have already found to be without merit. We note the

applicability of the Supreme Court's observation that "[s]tate

sovereign interests . . . are more properly protected by

procedural safeguards inherent in the structure of the federal

system than by judicially created limitations on federal power."

Garcia, 469 U.S. at 552.

6. Absence of remedy through the political process

Finally, in another claim not grounded in any

particular constitutional provision, New Jersey asserts it is

entitled to judicial relief because it "has no remedy through the

political process established by the Constitution of the United

States to seek reimbursement," and "has exhausted all other

political and practical remedies, and any further efforts would

be futile." App. at 34-35. Presumably the state is alluding to

the Supreme Court's statement in South Carolina v. Baker, 485

U.S. 505 (1988), that its previous opinion in Garcia had "left

open the possibility that some extraordinary defects in the

national political process might render congressional regulation

of state activities invalid under the Tenth Amendment." Id. at

512. In view of the absence of any allegation that New Jersey

"was deprived of any right to participate in the national

political process or that it was singled out in a way that left

it politically isolated and powerless," id. at 513, New Jersey

has alleged no viable claim.

7. Political Question Doctrine

The district court held that all of New Jersey's

constitutional claims were nonjusticiable under the political

question doctrine. In Baker v. Carr, 369 U.S. 186 (1962), the

Supreme Court identified six factors, any one of which indicates

the presence of a political question. In this case, the district

court found at least three of these factors were present: 1) "a

textually demonstrable constitutional commitment of the issue to

a coordinate political department," 2) "a lack of judicially

discoverable and manageable standards for resolving it," and 3)

"the impossibility of a court's undertaking independent

resolution without expressing lack of the respect due coordinate

branches of government." Id. at 217.

As to the first factor referred to above, even though

not "every case or controversy which touches foreign relations

lies beyond judicial cognizance," id. at 211, we agree with the

Second Circuit that the Naturalization Clause represents "a

textually demonstrable constitutional commitment" of immigration

to the legislative branch. Padavan, 82 F.3d at 27.

The second factor cited by the district court finds

support in the Supreme Court's cases that "'have long recognized

the power to expel or exclude aliens as a fundamental sovereign

attribute exercised by the Government's political departments

largely immune from judicial control.'" Fiallo v. Bell, 430 U.S.

787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210

(1953)). As the Court has explained:

For reasons long recognized as valid, the

responsibility for regulating the relationship between

the United States and our alien visitors has been

committed to the political branches of the Federal

Government. Since decisions in these matters may

implicate our relations with foreign powers, and since

a wide variety of classifications must be defined in

the light of changing political and economic

circumstances, such decisions are frequently of a

character more appropriate to either the Legislature or

the Executive than to the Judiciary.

Mathews v. Diaz, 426 U.S. 67, 81 (1976) (footnote omitted).

Finally, each of New Jersey's claims asserted under the

Constitution would require a court to evaluate the formulation

and implementation of immigration policy by the executive branch.

Decisions about how best to enforce the nation's immigration laws

in order to minimize the number of illegal aliens crossing our

borders patently involve policy judgments about resource

allocation and enforcement methods. Such issues fall squarely

within a substantive area clearly committed by the Constitution

to the political branches; they are by their nature peculiarly

appropriate to resolution by the political branches of government

both because there are no "judicially discoverable and manageable

standards for resolving" them and because independent resolution

of such issues by a court would express a lack of the respect due

a coordinate branch of government. Baker, 369 U.S. at 217.

Accordingly, we see no error in the district court's

dismissal of plaintiffs' constitutional claims as non-

justiciable. Our holding is consistent with those of the other

courts of appeals dismissing similar claims on this ground. SeePadavan,

82 F.3d at 27-28 (Guarantee and Naturalization Clauses);

Chiles, 69 F.3d at 1097 (Invasion and Guarantee Clauses and Tenth

Amendment).

B.

Statutory Claims

New Jersey asserts, in addition, several statutory

claims. It alleges that defendants have violated 8 U.S.C.

1365(a), which provides: "Subject to the amounts provided in

advance in appropriation Acts, the Attorney General shall

reimburse a State for the costs incurred by the State for the

imprisonment of any illegal alien or Cuban national who is

convicted of a felony by such State." New Jersey contends that

portions of Congress' fiscal year 1994 lump-sum appropriation of

over a billion dollars ($1,048,538,000) to the Attorney General

for INS administration and enforcement should have been allocated

to reimbursing New Jersey under 1365. This appropriation was

designated for "salaries and expenses." Pub.L. No. 103-121, 107

Stat. 1160 (1993).

As a separate claim New Jersey also alleges violation

of 8 U.S.C. 1330, which authorizes the Attorney General to

recover fines, penalties and expenses from persons violating

immigration laws. The state does not allege that the Attorney

General has failed to collect such monies; rather, it appears to

contend that monies collected under this section should also be

used by the United States to reimburse New Jersey. Since this

statute does not impose any such obligation on the federal

government, presumably this claim is intended to be construed in

conjunction with the state's other claims.

The district court held that plaintiffs' statutory

claims are not subject to judicial review under the

Administrative Procedures Act (APA), 5 U.S.C. 701, 702. The

APA waives the sovereign immunity of the United States and allows

for judicial review of federal agency actions in certain

circumstances. 5 U.S.C. 702. Such review is not available,

however, where such action "is committed to agency discretion by

law." Id. 701(a)(2).

In Lincoln v. Vigil, 113 S.Ct. 2024 (1993), on which

the district court relied, the Court considered a challenge to a

decision by the Indian Health Service to discontinue the Indian

Children's Program, which the Service had been providing for

seven years but which was neither mandated nor specifically

authorized by statute. The relevant statutes spoke only in

general terms, authorizing the Service to expend funds

appropriated by Congress for "the benefit, care, and assistance

of Indians" and for the "relief of distress and conservation of

health." 113 S.Ct. at 2027-28 (quoting the Snyder Act, 25 U.S.C.

13). The relevant appropriations acts did not mention the

Indian Children's program. Under these circumstances, the

Supreme Court held that an agency's allocation of funds from a

lump-sum appropriation is a decision "committed to agency

discretion" and therefore unreviewable.

New Jersey argues that Lincoln is inapposite because 8

U.S.C. 1365, referred to above, is a specific statutory

provision authorizing the appropriation it seeks. However, the

reimbursement authorized under that statute is qualified by the

phrase, "[s]ubject to the amounts provided in advance in

appropriation acts." A general lump sum appropriation to the INS

does not constitute a specific mandatory requirement of

reimbursement. Furthermore, Congress knows how to make an

appropriation under 1365 if it wants to. For fiscal year 1995

Congress made a specific appropriation of 130 million dollars for

reimbursing states under 1365. See Pub. L. No. 103-317, 108

Stat. 1724, 1778 (1994).

Accordingly, since none of the $1,048,538,000 lump sum

appropriation for INS "salaries and expenses" nor the monies

recovered under 1330 were earmarked by Congress in fiscal year

1994 for disbursement under 1365, the decision as to whether to

appropriate any of those funds for that purpose is one "committed

to agency discretion" and therefore unreviewable under the APA, 5

U.S.C. 701(a)(2).

Plaintiffs argue in their brief to this court that they

are also entitled to relief under 8 U.S.C. 1252(i). However,

as this claim was not raised in the complaint, nor, apparently,

in plaintiffs' briefs to the district court, it is not properly

before this court. Harris v. City of Philadelphia, 35 F.3d 840,

845 (3d Cir. 1994).

III.

CONCLUSION

For the foregoing reasons, we will affirm the order of

the district court.