February 4, 2020
IRLI shows state Attorney General’s directive is unlawful
WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) took its battle against sanctuary policies to New Jersey, where it filed a friend-of-the-court brief in federal district court in support of a lawsuit brought by a number of New Jersey counties and sheriffs against the state’s Attorney General, Gurbir Grewal. Grewal has directed state and local law enforcement officers to refuse to cooperate with federal immigration authorities seeking to detain and deport criminal aliens.
Under Grewal’s directive, state and local officers may not even tell immigration authorities when criminal aliens in prison will be released from custody, or allow federal agents into prisons to take custody of these aliens. These prohibitions have the intended effect of making it much more difficult for federal agents to enforce immigration laws in New Jersey, and of putting alien criminals back on the streets.
Despite this, Grewal claims that his directive does not really operate as an obstacle to federal immigration law enforcement. He also claims that, even if it is an obstacle, the Tenth Amendment to the Constitution reserves the power to make sanctuary policies to the states.
In its brief, IRLI shows that Grewal’s directive is an obstacle to federal immigration law enforcement because it is an action by the state that intentionally makes that enforcement more difficult. State laws that are obstacles to the purposes of federal laws violate the Supremacy Clause of the Constitution, which makes federal law supreme over state law.
IRLI then shows that Grewal misunderstands the Tenth Amendment, which only reserves the power to make a given law or policy to the states if that power is not prohibited to the states by the Constitution. The power to make sanctuary policies such as Grewal’s directive is prohibited to the states, because such laws violate the Supremacy Clause. Thus, the power to make sanctuary laws is not reserved to the states by the Tenth Amendment.
“The Constitution does not give states power to interfere with federal law enforcement,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In no other area of law is this even questioned. Yet when it comes to federal attempts to remove criminal aliens, about half of our nation’s citizens now live in one form of sanctuary jurisdiction or another. That extraordinary situation is not only a grave threat to Americans’ safety, but a shocking affront to federal supremacy. We hope the court agrees, and vindicates the clear text and structure of our Constitution.”
The case is County of Ocean v. Grewal, No. 3:19-cv-18083 (D.N.J.).
For additional information, contact:
Brian Lonergan • 202-232-5590 • [email protected]
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