District Court Judge Rules New Jersey’s Detention Ban Unconstitutional
FAIR Take | September 2023
New Jersey’s controversial and detrimental detention ban law (Assembly Bill (AB) 5207) was ruled unconstitutional by U.S. District Court Judge Robert Kirsch on August 29. In his opinion, Judge Kirsch wrote, “[T]he statute is a dagger aimed at the heart of the federal government’s immigration enforcement mission and operations.”
AB 5207 barred state and local government agencies — as well as private detention facilities — from entering into contracts with U.S. Customs and Immigration Enforcement (ICE) for the detention of aliens. FAIR’s legal arm, the Immigration Reform Legal Institute (IRLI), filed an amicus brief in July. The brief explained how AB 5207 was preempted by the U.S. Constitution’s Supremacy Clause.
Judge Kirsch’s decision agreed with the arguments made by IRLI. In his ruling, Judge Kirsch wrote, “a state law that wholesale deprives the federal government of its chosen method of detaining individuals for violating federal law cannot survive Supremacy Clause scrutiny. AB 5207 would impose on the United States an intolerable choice between either releasing federal detainees or carrying out detention in an entirely novel way.” He continued, “detention in the context of immigration, is a function that is and has always been performed solely by the federal government.”
Reacting to the decision, IRLI’s Executive Director Dale Wilcox commented, “Immigration is a federal concern, and the New Jersey law was a brazen attempt to interfere with the federal government’s constitutional role. The court made the right call here.”
However, Judge Kirsch’s decision will likely be appealed to the 3rd Circuit Court of Appeals. New Jersey Attorney General Matt Platkin tweeted, “We are disappointed with today’s ruling, which we view as interfering with NJ’s right to protect its residents. Private detention facilities threaten the public health and safety of New Jerseyans, including when used for immigration purposes. We will be appealing this decision.”
Open borders groups were even more brazen in their support of New Jersey’s detention ban. “More and more the [open-borders] movement has begun to see that shutting down immigration detention centers [i]s a key part of stopping the deportation machine,” said Silky Shah, executive director of Detention Watch Network. Shah is correct in her assessment. As ICE noted in a 2020 draft internal report intended for Congress, the best way to enforce America’s immigration laws is through detention. In the 2020 report, the agency explained, “The only effective means of ensuring compliance with a court order, to include an individual’s departure from the United States at the end of their immigration proceedings (if ordered removed by an immigration judge), is through the use of detention.”
Six states including California, Colorado, Illinois, Maryland, New Jersey, and Washington have now passed detention bans, with California being the first in 2019 and Colorado the last, enacting its ban just this year. Besides New Jersey’s, detention ban laws were challenged in California and Illinois. In Illinois, the 7th Circuit upheld the detention ban, while in California, an en banc panel for the 9th Circuit ruled the ban was unconstitutional and invalidated it. Since Washington is also in the 9th Circuit, the court’s ruling simultaneously invalidated its ban. The split in the circuits makes this issue ripe for potential consideration and review by the U.S. Supreme Court.