by Sophie Nieto-Munoz, New Jersey Monitor
A federal appeals panel heard arguments Thursday in a high-stakes legal battle over a controversial New Jersey law that bans immigration detention facilities run by anyone other than federal authorities, a move private prison companies say hampers the federal government’s immigration enforcement.
Solicitor General Jeremy Feigenbaum from the state Office of the Attorney General argued that the law doesn’t ban detention facilities altogether, and that the U.S. Department of Homeland Security or Immigration and Customs Enforcement could build or lease a facility and operate it themselves without it substantially interfering in enforcement efforts.
“The law says consider what’s available, including to buy or lease private facilities. That’s the preference,” he said. “They can buy or lease facilities today and operate it themselves. They could buy or lease the Elizabeth Detention Center itself. And then if it’s not there, go build your own.”
At the heart of the case is a 2021 state law prohibiting private companies, as well as local, county or state governments, from renewing or signing new contracts to operate federal immigration detention centers.
CoreCivic, the private prison company that runs the Elizabeth Detention Center, sued the state over the law, charging it violates the Supremacy Clause by interfering with immigration enforcement. The Elizabeth jail is the only facility statewide now in use for federal immigration detention.
A federal judge in 2023 struck down the part of the law that bars private companies from detaining immigrants, and the state appealed.
That appeal was heard Thursday after 18 months of waiting — and on the heels of a different private company announcing plans to open a new immigrant jail in Newark. A decision is likely months away.
During the two-hour hearing at the James A. Byrne United States Courthouse, the panel of three judges hammered both sides with tough questions. U.S. 3rd Circuit Judge Cheryl Ann Krause called it a “complex, very interesting case.”
Outside, activists gathered to voice support for immigrants in a legal fight expected to determine the scope of federal immigration detention in New Jersey. They held signs urging the government to “stop kidnapping people.”
Feigenbaum told the appellate judges that the law does not bar federal authorities from detaining immigrants in New Jersey. Instead, it just doesn’t allow them to contract the facilities to a private company. If Congress passed a law laying out “a private right to provide detention for a company like CoreCivic, then this is an easy case,” he said.
“The way our law handles competing burdens on private interests is by letting Congress make that choice,” he said.
U.S. 3rd Circuit Judge Stephanos Bibas peppered him with hypotheticals, like whether a state could ban the U.S. Mint from hiring private contractors to print money or prohibit defense contractors from building munitions for the Department of Defense.
Feigenbaum said those cases would depend on how the hypothetical law is written.
New Jersey’s law doesn’t regulate immigration detention — that’s ICE’s job — but rather, the market for prison services, Feigenbaum emphasized.
CoreCivic’s team countered that the law would be a “nightmare” for immigration enforcement, which has ramped up dramatically under President Donald Trump’s second term in office.
Without immigrant detention centers in North Jersey, close to international airports, federal authorities would have to detain people in other states and spend hours transporting them to further locales, said Bradley Simon, CoreCivic’s attorney.
“The federal government has exclusive jurisdiction over immigration enforcement, and this is putting a major, major roadblock in their efforts to do their jobs in the state of New Jersey and would absolutely have a catastrophic effect on the whole area,” he said.
The judges questioned whether New Jersey’s law would increase the feds’ immigration enforcement costs.
“If the New Jersey statute went into effect, it would have enormous cost, but it goes way beyond cost, the whole analysis, the impact it will have,” Simon said.
Attorney McKaye Neumeister, representing the U.S. Department of Justice, said states can’t regulate the relationship between the federal government and companies it contracts with. She also noted the government uses private contractors “all the time, for all sorts of things.”
“There are all sorts of functions that the government relies on contractors, for various reasons. The reasons here are in order to ensure flexibility and for cost savings,” she said.
After the hearing, Dante Apaéstegui of the New Jersey Alliance for Immigrant Justice said he wasn’t persuaded by CoreCivic’s arguments that the law would wreak havoc.
“I was baffled that they said the law would be the cause of separating families, the cause of separating communities — not the fact that there was a detention center there in our communities profiting off of their incarceration,” Apaéstegui said.