New Jersey Attorney General Sued Over Sanctuary Directive
By David Jaroslav | FAIR Take | October 2019
Since New Jersey Attorney General (AG) Gurbir Grewal issued his sanctuary directive back in November 2018, opposition to it has been building across the Garden State. Now the first local government in the state, Ocean County, is suing the AG over the directive.
Unlike most states, the governor appoints New Jersey’s AG. In New Jersey, Governor Phil Murphy, (D) a vocal and aggressive supporter of sanctuary policies, appointed Grewal and is likely the motivating force behind the sanctuary directive.
The AG’s directive essentially bans almost all cooperation by state and local law enforcement agencies with federal immigration authorities. Ocean County’s lawsuit against Grewal was filed in federal court in Trenton on September 18 and argues:
- The directive conflicts with, and is preempted by, federal law. Because the U.S. Constitution’s Supremacy Clause makes federal law supreme over state law, and because the Constitution also grants Congress exclusive authority to regulate immigration, the directive is preempted by federal law, in particular by two federal statutes, Title 8 U.S. Code § 1373 and § 1644, which specifically disallow state and local government entities from prohibiting or restricting communication with immigration authorities.
- The directive violates the Home Rule Doctrine in the New Jersey Constitution. The state constitution, in Article IV, Section VII, Paragraph 11, requires that any law affecting local governments “be liberally construed in their favor.” While in most New Jersey counties, the jail is run by the elected county sheriff, in 1887 the state legislature passed a law allowing the elected boards of freeholders in each county to assume control of the jail if they chose, which the Ocean County freeholders did in 1984, setting policies for the Ocean County Jail ever since. The state law allowing them to do so never mentions the AG.
- No New Jersey law grants the AG authority over county jails. Responsibility to set standards for county jails belongs to the state’s Department of Corrections (DOC), not to the AG, and DOC’s regulations expressly allow, and in some cases require, jails to share information with other law enforcement agencies.
The suit also notes that approximately 17.7 percent of foreign-born inmates in the Ocean County Jail between January 1, 2017 and July 31, 2019 were subject to immigration detainers.
While FAIR’s 2018 survey of sanctuary jurisdictions nationwide found five of New Jersey’s 21 counties and 17 of its 565 municipalities to be sanctuaries, Ocean County was not among them. Indeed, as the county emphasized in its lawsuit, prior to the directive Ocean County actively cooperated with Immigration and Customs Enforcement (ICE) and took pride in not being a sanctuary county. In fact, it has a specific written policy honoring immigration detainers.
Ocean County Freeholder John Kelly (R) said in 2017 that “[w]e are not a sanctuary county, nor has Ocean County ever had an interest in being a sanctuary county[.]” He reiterated on September 18, after the suit was filed, that he believes “[t]he attorney general is following the political will of the governor, in order to make New Jersey a sanctuary state … it is an issue that is bigger than Ocean County and that ought to be heard in federal court because — as I say — it’s in direct conflict with federal law.”
State Senator James Holzapfel (R), whose district includes parts of Ocean County, added that the directive is “an outrageous and dangerous political statement that jeopardizes the safety of millions of New Jersey residents … We shouldn't allow the governor to create a sanctuary for criminals in our state."
Since Ocean County first started exploring the possibility of a lawsuit in July, at least ten municipalities in the county have adopted resolutions of encouragement and support for it: Jackson, Lavallette, Plumsted, Long Beach, Bay Head, Ocean, Lacey, Barnegat, Stafford and Berkeley, according to assistant County Administrator Michael Fiure. Warren County has as well, while Oceanport is reviewing one and the township council of Old Bridge in Middlesex County has voted to authorize its own lawsuit.
Meanwhile, AG Grewal’s office continues to deny the obvious and claim that the directive doesn’t make New Jersey a sanctuary state.