Will Third Circuit Let New Jersey Ban Alien Detention?

Press Releases

March 26, 2024

IRLI shows court that state law is unconstitutional

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief before the Third Circuit Court of Appeals in a case challenging a New Jersey law banning private contractors from operating federal alien detention centers in the state. Both in New Jersey and around the country, the federal government relies on private contractors to house aliens who have violated federal law but have elected to stay in the country in detention while fighting their deportation.

Earlier, following briefing by IRLI, the New Jersey federal district court had concluded that—as IRLI had argued—the law is unconstitutional, and the governor has appealed to the Third Circuit seeking to resurrect it.

In its brief on appeal, IRLI shows that the New Jersey law is preempted under the Constitution’s Supremacy Clause because it intentionally interferes with the federal alien-detention contracting program, which immigration statutes expressly contemplate, and that no “presumption against preemption” applies because immigration is exclusively an area of federal concern.

IRLI also shows that the law discriminates against the federal government, in violation of the immunity doctrine, by allowing privately-run facilities that serve state purposes while banning those that serve federal purposes.

In enacting its detention ban, New Jersey followed in the footsteps of California. But in 2022, at IRLI’s urging, the full Ninth Circuit Court of Appeals, sitting en banc, struck down California’s ban on private detention.

“With this law, New Jersey aims to cripple our nation’s immigration law enforcement, which relies so heavily on federal contractors to house detainees,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The problem is, the very purpose of this law is what makes it unconstitutional. We hope the court clearly sees this, just as the Ninth Circuit did, and strikes down this law as flagrantly defying the Constitution.”

The case is CoreCivic, Inc. v. Murphy, No. 23-2598 (Third Circuit).

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