A federal appeals court ruled Tuesday that a 2021 New Jersey law barring private companies from operating migrant detention centers is unconstitutional, a decision that allows private-prison companies to continue running such facilities in the Garden State.
The ruling upholds a federal judge’s 2023 decision to strike down the law. CoreCivic, a private prison company that operates an immigration detention center in Elizabeth, sued New Jersey over the law, saying the policy unlawfully blocks the federal government from pursuing its immigration policy objectives. The 2023 ruling allowed CoreCivic to renew its Elizabeth contract with Immigration and Customs Enforcement that year.
A three-judge panel heard arguments on the case on May 1. Judge Stephanos Bibas, an appointee of President Donald Trump, and Judge Cheryl Ann Krause, an appointee of President Barack Obama, ruled in favor of CoreCivic. Judge Thomas L. Ambro, an appointee of President Bill Clinton, dissented.
The 2021 law prohibits state, local, and private entities from entering into contracts with the federal government to detain noncitizens awaiting deportation.
“[The law’s] construction is admittedly clever: It seeks to sidestep the usual two-prong test that courts use to enforce the ‘bedrock principle’ that states may not regulate their federal counterpart,” Bibas wrote in his opinion. “Still, we see the law for what ‘it really is’: a direct regulation on the federal government.”
Nedia Morsy, the director of the Latino and worker advocacy group Make the Road NJ, said the ruling allows groups like CoreCivic to “operate with impunity” as the Trump administration works to deport undocumented immigrants across the country.
“This decision makes New Jersey the epicenter of family separation, kidnapping, and the disappearance of our loved ones, and continues to destabilize our communities,” she said in a release. “We will continue to organize, fight, and demand the end of New Jersey’s entanglement with private detention once and for all.”
In a statement, New Jersey Attorney General Matt Platkin said he disapproved of the ruling, but didn’t say whether New Jersey would seek to appeal the case further. The next stop would be the U.S. Supreme Court, which conservatives control 6-3.
“We are disappointed in the Third Circuit’s ruling this morning invalidating our law prohibiting private immigration detention,” Platkin said in a release. “As recent events at Delaney Hall underscore, entrusting detention to for-profit companies poses grave risks to health and safety, and as the dissenting judge noted, States retain broad latitude to protect the health and safety of people within their borders – particularly where, as here, there is no conflict with federal legislation. We will continue to do all we can to defend these important goals and are evaluating our next steps in this case.”
Democrats have criticized privately operated detention centers, particularly Delaney Hall in Newark. GEO Group, the company operating Delaney Hall, is currently embroiled in a lawsuit from the city of Newark, which alleges the facility is operating without the proper permits. Rep. LaMonica McIver (D-Newark) recently pleaded not guilty to assault charges related to a scuffle outside Delaney Hall, during which Newark Mayor Ras Baraka was arrested for since-retracted charges of trespassing.
The Trump administration has looked to increase its detention center capacity as the president seeks to deport millions of the country’s undocumented immigrants. Democrats, for example, have blasted the potential use of New Jersey’s Joint Base McGuire-Dix-Lakehurst to house detained migrants.
Ambro, the dissenting judge, says the New Jersey law does not violate any defined federal statutes. He argues Congress could reserve the right to hire private companies to operate detention facilities if it passed legislation saying so, but until that happens, New Jersey retains the right to regulate the space when no federal law applies.
“If [Congress] wants the Federal Government to retain the ability to contract with private detention companies, it may pass legislation saying so,” Ambro wrote. “Because the majority would instead force courts to make unguided decisions about when states interfere excessively with undefined federal interests, I respectfully dissent.”
Gov. Phil Murphy said it’s too soon to announce whether the state will further appeal the case. The governor said he will meet with his team this afternoon to determine next steps.
“[We’re] obviously disappointed,” Murphy told reporters at an event on Tuesday.
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November 22, 2021 -
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