PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 20-2754 & 20-2755
_____________
OCEAN COUNTY BOARD OF COMMISSIONERS*;
COUNTY OF OCEAN; CAPE MAY COUNTY SHERIFF;
COUNTY OF CAPE MAY
v.
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY; STATE OF NEW JERSEY OFFICE OF
ATTORNEY GENERAL; DEPARTMENT OF LAW AND
PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE
Ocean County Board of Commissioners*; County of Ocean,
Appellants in 20-2754
Cape May County Sheriff; County of Cape May,
Appellants in 20-2755
*(Amended 1/29/21)
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court Nos. 3-19-cv-18083; 3-19-cv-18929
District Judge: The Honorable Freda L. Wolfson
_____________
Argued on June 3, 2021
Before: AMBRO, HARDIMAN, and PHIPPS, Circuit Judges
(Filed: August 9, 2021)
John C. Sahradnik
Mathew B. Thompson [Argued]
Berry Sahradnik Kotzas & Benson
212 Hooper Ave.
P.O. Box 757
Toms River, NJ 08754
Counsel for County of Ocean, Ocean County Board of
Commissioners, Appellants
Jeffrey R. Lindsay [Argued]
Cape May County Department of Law
4 Moore Road, DN 104
Cape May Court House, NJ 08210
Michael L. Testa, Jr.
Testa Heck Testa & White P.A.
424 W. Landis Ave.
Vineland, NJ 08360
Counsel for County of Cape May, Cape May County
Sheriff, Appellants
Jeremy M. Feigenbaum [Argued]
Michael R. Sarno
Daniel M. Vannella
2
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
Counsel for Appellees
Lawrence J. Joseph
Suite 700-1A
1250 Connecticut Ave., N.W.
Washington, D.C. 20036
Attorney for Amicus Curiae Immigration Reform Law
Institute in Support of Appellants County of Cape May, Cape
May County Sheriff
Paul J. Fishman
Arnold & Porter Kaye Scholer LLP
One Gateway Center, Suite 1025
Newark, NJ 07102
Attorney for Amicus Curiae Constitutional,
Immigration, and Criminal Law Scholars in Support of
Appellees
Farrin R. Anello
American Civil Liberties Union of New Jersey Foundation
P.O. Box 32159
Newark, NJ 07102
Attorney for Amicus Curiae 47 Community
Organizations in Support of Appellees
Jamison Davies
New York City Law Department
100 Church St.
New York, NY 10007
3
Attorney for Amicus Curiae 13 Local Governments in
Support of Appellees
Mary B. McCord
Institute for Constitutional Advocacy and Protection
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, D.C. 20001
Attorney for Amicus Curiae Current and Former
Prosecutors and Law Enforcement Leaders and Former
Attorneys General and Department of Justice Officials in
Support of Appellees
Loren L. AliKhan
Office of Attorney General of District of Columbia
400 6th St. NW
Suite 8100
Washington, D.C. 20001
Attorney for Amicus Curiae District of Columbia,
California, Connecticut, Delaware, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Mexico, New York, Oregon, Rhode Island, Virginia,
Vermont, and Washington in Support of Appellees
________________
OPINION OF THE COURT
________________
HARDIMAN, Circuit Judge.
This appeal—which involves New Jersey’s recent
directive to limit the ability of state and local law enforcement
4
officers to cooperate with federal immigration authorities—
implicates important questions of federalism. Two New Jersey
counties, a sheriff, and the oversight board of a county jail
(collectively, Appellants), sued to invalidate and enjoin the
directive. Appellants claim it is preempted by federal law. The
District Court disagreed and dismissed their complaints.
Because we agree with the District Court that federal law does
not preempt the directive, we will affirm.
I
In November 2018, New Jersey Attorney General
Gurbir Grewal issued Law Enforcement Directive 2018-6, also
known as the Immigrant Trust Directive. See Dist. Ct. Dkt. No.
14-5. It was revised and reissued, with minimal substantive
changes, the next year. Concluding “that individuals are less
likely to report a crime if they fear that the responding officer
will turn them over to immigration authorities,” the Directive
amended state rules to restrict interactions between state and
local law enforcement and federal immigration officers. Id. at
2–3. As relevant here, § II-B of the Directive barred counties
and local law enforcement from assisting federal immigration
authorities in these ways:
2. Providing any non-public personally
identifying information regarding any
individual.
3. Providing access to any state, county, or
local law enforcement equipment, office
space, database, or property not available
to the general public.
5
4. Providing access to a detained individual
for an interview, unless the detainee signs
a written consent form . . . .
5. Providing notice of a detained
individual’s upcoming release from
custody . . . .
Id. at 5 (footnote omitted). Section II-B defined “[n]on-public
personally identifying information” to include, among other
things, “a social security number” and a “driver’s license
number.” Id. at 5 n.1. The Directive also prohibited local law
enforcement agencies and officials from entering “any
agreement to exercise federal immigration authority pursuant
to Section 287(g) of the Immigration and Nationality Act.” Id.
at 7 (§ III-A). And it required local law enforcement to “notify
a detained individual” when federal immigration authorities
requested to interview the person, to have the person detained
past his or her release date, or to be informed of the person’s
upcoming release. Id. at 9 (§ VI-A). The Directive provided
several exceptions to the limitations just described. It
instructed that “[n]othing in Sections II.A or II.B shall be
construed to restrict . . . state, county, or local law
enforcement” from “[c]omplying with all applicable federal,
state, and local laws,” including 8 U.S.C. §§ 1373 and 1644.
Id. at 6-7 (§ II-C).
In September 2019, the County of Ocean and its Board
of Commissioners (collectively, the Ocean County Plaintiffs)
sued in the District Court seeking a declaratory judgment that
the Directive violated the United States Constitution and New
Jersey law. The Ocean County Plaintiffs argued the Directive
was preempted by two federal statutes: 8 U.S.C. §§ 1373 and
1644. Section 1373 bars government officials and entities from
6
“prohibit[ing], or in any way restrict[ing], any government
entity or official from sending to, or receiving from” federal
immigration authorities “information regarding the citizenship
or immigration status . . . of any individual.” Section 1644
contains similar language: “no State or local government entity
may be prohibited, or in any way restricted, from sending to or
receiving from” federal immigration authorities “information
regarding the immigration status . . . of an alien in the United
States.” The Ocean County Plaintiffs argued the Directive’s
bar on sharing personally identifying information—such as
social security and drivers’ license numbers—conflicted with
these federal laws. And that purported conflict rendered the
Directive invalid under the Supremacy Clause of the
Constitution.
The next month, the County of Cape May and its sheriff,
Robert Nolan (collectively, the Cape May County Plaintiffs),
filed suit advancing similar challenges to the Directive. The
Cape May Plaintiffs argued broadly that §§ 1373 and 1644
preempted the Directive, and that the Directive’s prohibition
on § 287(g) agreements unlawfully impeded the enforcement
of federal immigration law.
In November 2019, the District Court consolidated the
two cases. Attorney General Grewal moved to dismiss. In July
2020, the District Court granted the motion as to the federal
claims and declined to exercise supplemental jurisdiction over
the state claims.1 This timely appeal followed.
1
The District Court dismissed the state law claims without
prejudice, so the Ocean County Plaintiffs and the Cape May
Plaintiffs are pursuing those claims in New Jersey state court.
7
II
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the District Court’s order of dismissal. Klotz v.
Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462
(3d Cir. 2021).
A
Before reaching the merits, we must address two
threshold issues raised by the Attorney General.2 Both stem
from Appellants’ political subdivision status. First, the
Attorney General argues a state political subdivision—like a
county—lacks standing to bring constitutional claims in
federal court against the state that created it. Second, even if
Article III standing exists, “as a categorical rule of
constitutional law,” such subdivision suits are barred. A.G. Br.
20. We disagree.
The Attorney General correctly notes that, in a line of
cases dating back centuries, the Supreme Court rejected the
idea that political subdivisions could pursue constitutional
claims against their creator states in federal court. See, e.g.,
Hunter v. Pittsburgh, 207 U.S. 161, 179 (1907) (in relation to
a political subdivision, “the state is supreme, and its legislative
body, conforming its action to the state Constitution, may do
as it will, unrestrained by any provision of the Constitution of
the United States”); see also Williams v. Mayor & City Council
of Balt., 289 U.S. 36, 40 (1933); Trs. of Dartmouth Coll. v.
Woodward, 17 U.S. (4 Wheat.) 518, 629–30 (1819).
2
Attorney General Grewal resigned during this appeal.
8
Things changed, however, in 1960. In Gomillion v.
Lightfoot, the Supreme Court limited the sweeping language of
its earlier opinions that suggested a per se bar on political
subdivision suits. 364 U.S. 339 (1960). Although the
petitioners in Gomillion were individuals—not political
subdivisions—the Court spoke broadly about the powers of a
state legislature vis-à-vis its subdivisions. Id. at 344–45.
“Legislative control of municipalities, no less than other state
power, lies within the scope of relevant limitations imposed by
the United States Constitution.” Id. Earlier language seemingly
to the contrary, the Court cautioned, “must not be applied out
of context.” Id. at 344. The “unconfined dicta” from cases like
Hunter confirms only “that the State’s authority is unrestrained
by the particular prohibitions of the Constitution considered in
those cases.” Id. (emphasis added). Critical to this appeal, none
of the early cases barring subdivision suits addressed the
Supremacy Clause.
Since the Court’s opinion in Gomillion, three of our
sister courts of appeals have permitted subdivisions to sue their
creating states under the Supremacy Clause. See Tweed-New
Haven Airport Auth. v. Tong, 930 F.3d 65, 73 (2d Cir. 2019)
(allowing such suits as a matter of substantive law); Branson
Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 628–29 (10th Cir.
1998) (allowing such suits, but discussing it as a matter of
standing); Rogers v. Brockette, 588 F.2d 1057, 1070–71 (5th
Cir. 1979). One circuit court has barred such subdivision suits.
See City of San Juan Capistrano v. Cal. Pub. Utils. Comm’n,
937 F.3d 1278, 1280–81 (9th Cir. 2019). But see id. at 1284
(Nelson, J., concurring) (calling for the Ninth Circuit to “revisit
en banc” its per se bar).
In Tweed, the Second Circuit recognized the “unique
federalism concerns” raised by Supremacy Clause suits as a
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reason for allowing such claims after Gomillion. 930 F.3d at
73; see also Romer, 161 F.3d at 628–29 (political subdivisions
may “assert[] the structural protections of the Supremacy
Clause”); Burbank-Glendale-Pasadena Airport Auth. v. City of
Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (Kozinski, J.,
concurring) (“Supremacy Clause claims protect the interests of
the federal government against encroachment by the states.”).
“If the Supremacy Clause means anything,” the Second Circuit
opined, “it means that a state is not free to enforce within its
boundaries laws preempted by federal law.” Tweed, 930 F.3d
at 73. Political subdivision suits “invoking the Supremacy
Clause are one of the main ways of ensuring that this does not
occur.” Id. We agree with the reasoning of the Second Circuit
and hold that a political subdivision may sue its creator state in
federal court under the Supremacy Clause.3
B
Having confirmed Appellants’ ability to bring this suit,
we turn to the merits. The Ocean County Plaintiffs contend that
express, conflict, and field preemption apply to § II-B-2 of the
Directive (personally identifying information provision). The
Cape May County Plaintiffs, on the other hand, challenge
several provisions. First, they argue § II-B-2 and §§ II-B-4,
II-B-5, and VI-A (notice and consent provisions) are conflict
preempted because “they impose an obstacle [to] the federal
3
Our opinion in Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991),
is not to the contrary. In Amato, we addressed whether a county
had third-party standing to sue an executive official for alleged
violations of the First Amendment. See id. at 754–55. Here,
Appellants argue their own rights were violated and advance
claims under the Supremacy Clause.
10
government’s execution of federal immigration law.” Cape
May Br. 5. They also argue § II-B-2 and II-B-5 are expressly
preempted by §§ 1373 and 1644.
Preemption is rooted primarily in the Supremacy Clause
of the Constitution. See U.S. CONST. art. VI, cl. 2 (federal law
“shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding”). In
Murphy v. N.C.A.A., the Supreme Court offered guidance to
lower courts presented with questions of federal preemption.
138 S. Ct. 1461 (2018). As the Court explained, three types of
preemption have emerged through caselaw—express, conflict,
and field—but “all of them work in the same way.” Id. at 1480.
For a federal law to preempt state law—regardless of
the type of preemption claimed—it must satisfy two
requirements. First, the federal law “must represent the
exercise of a power conferred on Congress by the
Constitution.” Id. at 1479. Second, because “the Constitution
‘confers upon Congress the power to regulate individuals, not
States,’” id. (quoting New York v. United States, 505 U.S. 144,
166 (1992)), the federal law “must be best read as one that
regulates private actors,” id.; see also id. at 1481
(“[R]egardless of the language sometimes used by Congress
and this Court, every form of preemption is based on a federal
law that regulates the conduct of private actors, not the States.”
(emphasis added)).
The two federal laws Appellants cite in this case—
§§ 1373 and 1644—cannot satisfy the second prerequisite.
Section 1373 says that a “State . . . entity or official may not
prohibit, or in any way restrict, any government entity or
official” from sharing immigration information with federal
11
authorities. (Emphasis added). This is a clear prohibition on
state action; it says nothing about private actors, so it cannot
be fairly read to regulate them. See Murphy, 138 S. Ct. at 1481.
Section 1644 uses slightly different language: “no State
or local government entity may be prohibited, or in any way
restricted,” from communicating immigration information to
the federal government. Written in the passive voice, § 1644
does not specify who may not prohibit or restrict state action.
But in our view, the best reading of the provision is that it does
not regulate private actors. See Murphy, 138 S. Ct. at 1479.
That’s because private actors can neither “prohibit[]” state
action nor “restrict[]” it. See § 1644. A state, on the other hand,
has the power to both “prohibit[]” and “restrict[]” actions by
its own subdivisions. See id. So we conclude that § 1644, like
§ 1373, regulates states, not private actors.4
Our conclusion that neither § 1373 nor § 1644 regulates
private actors is fatal to Appellants’ argument that they
preempt the Directive. Murphy, 138 S. Ct. at 1479, 1481. A
federal statute that does not regulate private actors cannot serve
as a basis for preemption, so Appellants’ claims must fail.5
5
Because we agree with the District Court that §§ 1373 and
1644 do not preempt the Directive, we do not opine on the
Attorney General’s argument that §§ 1373 and 1644 violate the
anticommandeering doctrine. We nevertheless acknowledge
that courts addressing this issue have found one or both laws
unconstitutional. See Cnty. of Ocean v. Grewal, 475 F. Supp.
3d 355, 378 n.20 (D.N.J. 2020) (collecting cases).
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* * *
The District Court did not err when it dismissed
Appellants’ federal claims. Supreme Court precedent permits
a political subdivision to bring Supremacy Clause-based
claims against its creator state in federal court. But regardless
of the wisdom of the Immigration Trust Directive, it is not
preempted because 8 U.S.C. §§ 1373 and 1644 regulate only
state action. We will therefore affirm the District Court’s order.
13