State Senator and Union City Mayor Brian Stack is taking the lead with other NJ State Legislators on State legislation that would lessen the blow of President Trump’s executive order on immigration. Senate Bill Number 3007 would establish a program to provide funding to municipalities that have lost federal grant funding because they are a sanctuary jurisdiction.

What Are Sanctuary Cities?

Sanctuary jurisdictions are generally defined as states and local jurisdictions that do not use local resources to enforce federal immigration laws. Most notably, sanctuary cities do not comply with requests from the Immigration and Customs Enforcement (ICE)

to hold suspected illegal immigrants in custody for up to 48 additional hours if they already are arrested or detained by local officials. Many have also adopted policies that limit the sharing of information between local and federal law enforcement about illegal immigrants. In New Jersey, sanctuary jurisdictions include Camden, Jersey City and Newark, North Bergen, Princeton, Trenton, Union City, West New York, and Middlesex and Union counties.

President Trump’s Executive Order on Immigration

According to the Trump Administration, sanctuary jurisdictions across the United States “willfully violate Federal law” and “have caused immeasurable harm to the American people and to the very fabric of our Republic.” The President’s executive order on immigration states that “it is the policy of the executive branch to… “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” It further provides that:

The Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.  The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

Critics argue that the executive order and the federal statute it relies on are both unconstitutional. For reference, Section 1373 provides that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

The crux of the argument is that the order violates the 10^th Amendment because the Executive Branch may not commandeer state and local officials to enforce federal law. As articulated by Justice Antonin Scalia in Printz v. United States, the principle behind the anti-commandeering doctrine is the “[p]reservation of the States as independent and autonomous political entities.”

Sen. Stack’s Legislation Protects NJ Municipalities

If Trump enforces his order, many New Jersey municipalities could lose millions of dollars in funding, most of which is totally unrelated to immigration activities. Under Senate Bill Number 3007, a sanctuary jurisdiction can apply to the Commissioner of Community Affairs for a dollar-for-dollar match of State appropriated moneys to supplement any deficit created by the loss of federal grant funding. The bill provides that any payments made by the State pursuant to the program would be appropriated from the General Fund.

In support of the sanctuary city legislation, the accompanying statement maintains:

New Jersey is home to Ellis Island, the “Gateway to America,” and has played a pivotal role in welcoming immigrants to this nation. The State is one of the most diverse in the nation, and its communities and history have unquestionably been enriched and strengthened by welcoming and encouraging this diversity. Regardless of citizenship status or nation of origin, nurturing an environment of inclusiveness, which protects the values of democracy and freedom and respects the human dignity of all residents of the State, is of vital concern to New Jersey.

Democrats in the New Jersey legislature have pledged support for Sen. Stack’s bill. Not surprisingly, Trump ally Gov. Christie has publicly vowed to veto the legislation.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.