New Jersey argues courts can’t stop it from shutting down private immigration jail

Courts cannot exempt private contractors from a New Jersey law barring immigration detention centers because that’s a role given exclusively to Congress, state officials argue in their appeal of a judge’s decision that allowed an Elizabeth immigration jail to remain open.

“Granting private contractors constitutional immunity from state law undermines Congress’s primary role in resolving federal-state disputes,” the state said in the appeal, adding the lower court’s decision preventing New Jersey from shutting down the jail “risks providing a roadmap for private contractors to avoid compliance with other measures.”

The 67-page brief was filed last week in the U.S. Court of Appeals for the Third Circuit by state Attorney General Matt Platkin.

The appeal stems from an August decision by a federal judge that allowed CoreCivic, a private prison company, to keep its immigration jail in Elizabeth open despite a new state law that bars such prisons.

The law, signed by Gov. Phil Murphy in 2021, prohibits public and private entities from entering into contracts to house immigration detainees. CoreCivic has argued it is unconstitutional, and sued the state in February 2021 to remain open soon before its contract with U.S. Immigration and Customs Enforcement was set to expire.

U.S. District Court Judge Robert Kirsch in August ruled that New Jersey’s law is unconstitutional as it applies to the Elizabeth Detention Center. He said if a neighboring state passed a similar law, it would “result in nothing short of chaos” for immigration authorities. Justice officials from the Biden administration siding with the private prison made similar comments about the law’s “severe impacts” on detaining migrants.

The Elizabeth Detention Center is the last functioning detention center in New Jersey used by ICE. It houses up to 300 people — typically asylum seekers and undocumented immigrants — and employs about 100.

ICE officials did not respond to a request for comment.

In its new filing, New Jersey officials argue CoreCivic is not immune from the state law. The state has long been against private prisons, which is why the state holds no contract with for-profit prison companies, it notes in the filing.

“States have … long regulated or restricted companies from selling goods and services within their borders—even services that federal agencies otherwise wish to purchase,” the filing says.

New Jersey officials and CoreCivic are divided over whether the New Jersey law violates the Constitution’s supremacy clause, which bars states from passing laws that override federal statutes. The state argues that courts have previously rejected the argument that any state regulation that indirectly regulates the federal government’s activity is unconstitutional.

The state’s filing claims Kirsch erred by deciding the New Jersey statute interferes with the operation of the federal government. That conclusion goes “too far,” the state’s brief says.

CoreCivic officials did not respond to a request for comment. It has said in previous filings that the Elizabeth facility is “mission critical” due to its proximity to Newark and New York airports, which offer regular direct flights out of the United States. Shutting down the center could lead to the release of “dangerous noncitizens,” it said in a July filing. 

Attorneys for the state also detail the Elizabeth jail’s “unsafe and unhealthy detention conditions” that span decades. CoreCivic is also facing a lawsuit from its landlord, alleging the company failed to meet basic safety and hygiene needs.