Federal judge upholds Gov. Sherrill order barring ICE from some state property

A U.S. District Court judge upheld a New Jersey executive order limiting federal immigration officials’ access to nonpublic parts of state property, ruling the federal government had failed to prove its discrimination claim.

Friday’s decision by Judge Georgette Castner keeps in place a February executive order issued by Gov. Mikie Sherrill (D) that, absent judicial warrants, bars immigration officials from private parts of state land and broadly bans them from using state property as staging areas for immigration operations.

“ICE is not making New Jersey’s communities any safer. That’s why I signed an Executive Order restricting access to nonpublic state property by its untrained agents. Once again, Trump tried to stop us, and once again we won,” the governor said in a statement.

The Trump administration sued in February, arguing the executive order was preempted by federal law, impermissibly discriminated against federal immigration authorities, and unlawfully sought to regulate the federal government.

The federal statutes the Trump administration cited do not conflict with the executive order, the judge ruled, because they impose no duty to cooperate on state officials.

She added that the order does not prevent immigration enforcement, but instead bars New Jersey resources from assisting those efforts in most cases. Federal law mandating New Jersey offer its resources to aid immigration enforcement would violate the anticommandeering doctrine, which broadly says the federal government cannot dictate the content of state legislation or order state officials to enforce federal law, the judge said.

“Congress contemplated state assistance in federal immigration enforcement, but it contemplated that assistance on a voluntary basis,” wrote Castner, a Biden appointee. “The fact that New Jersey has decided not to volunteer — in the limited context of EO12 — is in accordance, not in conflict, with Congress’s design.”

Ruling the New Jersey order was preempted would improperly shift some costs for immigration enforcement onto the state, the judge ruled.

The executive order does not impermissibly regulate the federal government because it applies to state property, a distinction the judge said made New Jersey a proprietor rather than a regulator.

Even if that wasn’t the case, the order would survive because it does not “substantially interfere” with immigration enforcement as would, for example, a ban on private detention facilities that ICE uses — near exclusively —  for immigrant detention, the judge said.

“The United States does not allege facts suggesting that immigration officers ‘almost exclusively’ rely on private state-owned property to effectuate immigration enforcement or that it has to ‘entirely transform’ its approach to immigration enforcement as a result” of the executive order, the judge wrote.

The judge found the order does not discriminate against the federal government because allegations of discrimination require a showing that a policy applied unequally to similarly situated individuals or groups. Because only the federal government is tasked with civil immigration enforcement, the order does not treat federal law enforcement worse than state or local law enforcement, the judge ruled.

Spokespeople for the U.S. Department of Justice did not immediately return a request for comment. It’s unclear whether the federal government will seek to appeal the decision.