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February 17, 2021

ATTORNEY GENERAL RAOUL FILES BRIEF SUPPORTING LIMITS ON LOCAL PARTICIPATION IN FEDERAL IMMIGRATION ENFORCEMENT

Raoul, 17 AGs Argue States Should Enact Policies to Build Trust in Immigrant Communities

Chicago — Attorney General Kwame Raoul, as part of a group of 18 attorneys general, today filed 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 directive bars local law enforcement officers from sharing certain information with immigration authorities and from participating in most types of federal immigration enforcement.

In a friend-of-the-court brief filed in the United States Court of Appeals for the 3rd Circuit, Raoul and the coalition 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. Raoul previously joined a coalition of 15 attorneys general supporting New Jersey’s directive when it was challenged in court by the former presidential administration.

“States have a responsibility to ensure that limited local law enforcement resources are used to protect our residents, rather than going to support federal, anti-immigrant policies that stoke fear in immigrant communities and erode trust in local law enforcement,” Raoul said. “I am committed to enacting policies that build collaboration between communities and law enforcement, restore the public’s trust in police, and improve overall public safety.”

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 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 3rd Circuit.

In an amicus brief filed in County of Ocean v. New Jersey, Raoul and the states collectively 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 Raoul in filing the brief are the attorneys general of California, Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington.

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