New Jersey faces tough questioning from judge overseeing challenge to immigrant detention ban

Attorneys arguing in support of a New Jersey law banning immigration detention contracts faced aggressive questioning on Monday by the judge overseeing a legal challenge to the law, with the judge saying he agrees with the law’s critics who say it has been catastrophic for border security.

The judge’s decision on whether to impose a preliminary injunction barring enforcement of the law, which he said would come by the end of August, could also include a final ruling in the challenge of the law brought by CoreCivic, which runs the Elizabeth facility. Immigrant justice advocates worry the decision will be just the first step in an extended legal battle.

“We know folks are ready to mobilize whenever that decision comes out, but even the decision is not the end. We know that there’s very, very, very likely to be an appeals process,” said Amy Torres, director of the New Jersey Alliance for Immigrant Justice. “I think both the community and the state are ready to go to bat for it.”

The law, which Gov. Phil Murphy signed nearly two years ago, bars public and private entities from entering into contracts to house immigrant detainees. Attorneys for CoreCivic and the U.S. Department of Justice argue it improperly discriminates against the federal government and violates the U.S. Consitution’s supremacy clause.

Activists packed U.S. District Court Judge Robert Kirsch’s Trenton courtroom Monday to hear oral arguments in the case. Solicitor General Jeremy Feigenbaum, arguing for New Jersey, noted the state’s commitment to protecting the health and safety of those detained in New Jersey and argued the federal government could construct its own facilities to detain migrants if they need a facility. Feigenbaum also said Congress should pass a law barring states from regulating private contracts if it believes they can’t do so.

CoreCivic entered into an agreement with U.S. Immigration and Customs Enforcement to house detainees at the Elizabeth facility in 2005, a contract that has been renewed five times and expires Aug. 31. It was last renewed shortly before Murphy signed the 2021 law, which bars the two entities from renewing it again.

Attorneys for CoreCivic said Monday that if the judge rules in its favor, the two parties are prepared to immediately sign a new agreement for at least another 12 months.

Kirsch questioned the state’s argument that its responsibility to the health of detainees overrides the federal government’s concerns about the law. He noted that a brief filed by the state provided examples of inmate abuse from before CoreCivic ran the Elizabeth Detention Center.

Kirsch noted that while two deaths have occurred at the center, tens of thousands of people have likely been housed there. 

“I have a feeling if we went to the Passaic County Jail, the Union County Jail, over the last 17 years, significantly more than two people, unfortunately, would have lost their lives. There’s probably two school teachers over the last 17 years in the state that, while on school premises, passed away,” he said. “Do we shut down the schools because of it?”

He also asked Feigenbaum what would stop “all 49 other states from enacting the same law” before referring to the U.S. Department of Justice’s claim that shuttering the Elizabeth Detention Center would be “catastrophic.”

“What would happen if I embrace your view and that becomes a contagion across this land?” he said. “An affidavit submitted describes it as near catastrophic — I think that’s charitable. I view it as not nearly catastrophic. I view it as catastrophic.”

Stephen Ehrlich, arguing the case for the U.S. Department of Justice, called the New Jersey law “discrimination.” Ehrlich pointed to the U.S. Constitution’s supremacy clause, which bars states from passing laws that supersede federal statutes.

“What we have here is the United States wants to contract with a private facility, the facility wants to contract with the United States. And state law does not allow that,” he said. “That is a bedrock principle of the supremacy clause.”

Ehrlich said the closure of the Elizabeth facility would have “far-reaching consequences” on whether states can ban certain private contractors.

“That’s not how the law works,” he said.

Kirsch said he will issue his decision on the preliminary injunction before Aug. 31. The ruling could also include his final decision on the lawsuit. Attorneys from the federal government have argued that because of the constitutional issues at play in this case, Kirsch could issue a final judgment now.

On the steps of the courthouse ahead of the hearing, members of groups like Unidad Latina and Movimiento Cosecha painted signs calling to abolish ICE and protect immigrants. Some activists inside the courtroom scribbled notes throughout the hearing, sharing them after to update protestors who remained outside.

“The arguments set up today indicate that there’s a very clear difference in perspective. Regardless of what the decision is when it comes out, we expect there to be an appeal,” said Torres. “We’re going to continue to protest the EDC as individuals and continue the long fight to defend this law.”

The groups are organizing more protests, including one in front of the Elizabeth facility next Monday, the two-year anniversary of Murphy signing the law.

Kathy O’Leary of Pax Christi, a faith-based immigrant advocacy organization, said it was hard to be optimistic after hearing the judge’s comments about people dying in detention.

“You read into it, and it’s disappointing,” she said. “It was probably the most infuriating part of the hearing.”