In one of my earliest posts, COVID-19 and Emergency Powers, I said: “Unfortunately, attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.” The same goes for any governmental action where an official’s power to take some action is questioned: “the [insert relevant official or agency] should have the power because the [relevant official or agency] makes better choices than the [whoever we’re opposed to].”
This trust was recently shown in connection with the decision by Judge Robert Kirsch who sits on the U.S. District Court for the District of New Jersey. At issue was the extent to which New Jersey could legislatively prohibit private parties from contracting with the federal government to execute federal policies with which New Jersey disagrees. The specific policy here is the detaining of aliens who enter the country illegally. U.S. Immigration and Customs Enforcement (ICE) does not operate its own detention centers and has relied on both public and private jails to house detainees. Because New Jersey’s present administration opposes such detention, a statute was passed which not only prohibited counties and municipalities from entering into or renewing contracts to house detainees, but also prohibited private prison operators from doing the same.
The operator of the Elizabeth Detention Center filed suit. You see, the U.S. Constitution has this thing called the “Supremacy Clause,” which says that federal law supersedes state law. In fact, a famous early Supreme Court decision,1 overturned a Maryland law which attempted to impede the operation of the Bank of the United States by a special tax.2
In an extensive written opinion, Judge Kirsch overturned the New Jersey law because the prohibition of private prison operators3 from contracting with federal government interfered with federal execution of federal policy.
Besides the opinion itself, I have had the opportunity to read two accounts of the matter. NJ.com predictably gave more ink to Governor Murphy and others who oppose the detention of those whose initial entry into, or continued presence within, this country is contrary to law, but New Jersey Monitor, which actually provided a link to the opinion,4 concentrated more on the ruling itself.
The New Jersey attorney general has promised to appeal, but I see merit in such an effort as the decision was really inevitable.
Jay Bohn
September 4, 2023
- McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). ↩︎
- The opinion has one of my favorite lines, “The power to tax involves the power to destroy.” ↩︎
- The prohibition on municipalities and counties was not challenged and would likely have been upheld because the Tenth Amendment has been interpreted as having an “anti-commandeering” principle which means that the States cannot be compelled to execute federal law. ↩︎
- NJ.com also linked to the opinion, but on New Jersey Monitor‘s site as well, as I have. ↩︎