Herring defends New Jersey’s limits on local participation in Federal Immigration Enforcement

Attorney General Mark R. Herring has joined a group of 18 attorneys general in filing an amicus brief defending a New Jersey policy that limits cooperation between local law enforcement and federal immigration authorities. Two New Jersey counties that want to continue collaborating with U.S. Immigration and Customs Enforcement (ICE), sued the state to try to block a 2018 directive issued by the New Jersey Attorney General, that bars local law enforcement officers from sharing certain information with immigration authorities and from participating in most types of federal immigration enforcement. 

In an amicus brief filed in the United States Court of Appeals for the Third Circuit, Attorney General Herring and his colleagues argue that New Jersey’s directive should be upheld because states have the responsibility and authority to protect public safety, regulate law enforcement, and decide how to use their limited resources.

“This country was founded by immigrants and has always stood as a beacon of hope and a safe harbor for those who want a better life for themselves and their families,” said Herring. “The previous administration’s hardline immigration policies created a sense of unease and panic within Virginia’s immigrant communities. People should not fear local law enforcement because of their immigration status, instead we should all work to find ways to create trust between law enforcement and the communities that they protect and serve.”

In 2018, New Jersey Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-6, known as the Immigrant Trust Directive, to disentangle state and local law enforcement from federal immigration enforcement. The directive prohibits local law enforcement from asking about an individual’s immigration status unless it is relevant to an ongoing investigation and from sharing any individual’s non-public information, including home or work address, with federal immigration authorities. It also prevents the transfer of individuals to federal immigration authorities without a judicial warrant unless that person has committed a serious crime.

In 2019, two New Jersey counties that used to share information with ICE sued the state seeking a declaration that the directive is invalid because it fundamentally conflicts with federal immigration law. A federal district court dismissed the case, concluding that that the directive was valid because it did not fundamentally conflict with federal immigration law and that federal law makes state and local cooperation with federal immigration authorities largely voluntary. The counties appealed this decision to the Third Circuit.

In their amicus brief filed in County of Ocean v. New Jersey, Herring and his colleagues argue that New Jersey’s directive should be upheld because:

  • States have broad authority to protect public safety: The coalition argues that states have primary responsibility for protecting public safety within their borders and have broad authority to enact legislation for the public good. This responsibility includes a duty to implement policies that best serve local conditions and policy preferences, and a duty to determine how best to use limited local resources. States like New Jersey have reasonably exercised their power to disentangle local law enforcement from federal immigration enforcement based on expert analysis and anecdotal evidence that separation between the two builds community trust and promotes public health and safety.
  • The directive does not interfere with federal enforcement of immigration law: The states argue that declining to use state and local resources to actively participate in federal civil immigration enforcement does not create an obstacle to immigration enforcement by the federal government.
  • It is unconstitutional for the federal government to commandeer state resources: The basic division of power between state and federal governments enshrined in the Tenth Amendment of the Constitution means that the federal government cannot directly order states to use their resources to enforce federal laws.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. 

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