Ocean County Board of Comm v. Attorney General New Jersey, 20-2754

Background

In November 2018 New Jersey Attorney General Gurbir Grewal issued the Immigrant Trust Directive (Law Enforcement Directive 2018‑6), limiting state and local law‑enforcement cooperation with federal immigration authorities. Key limits included bans on sharing non‑public personally identifying information (e.g., SSN, driver’s‑license numbers), providing nonpublic access to facilities/databases, permitting detainee interviews without written consent, and advance notice of release to ICE; it also forbade entering 287(g) agreements. The Directive included an exception stating it did not restrict complying with applicable federal laws, including 8 U.S.C. §§1373 and 1644.
Ocean County and Cape May County (with the Cape May sheriff) sued in federal court seeking declaratory relief, arguing the Directive is preempted by §§1373 and 1644 and that the 287(g) prohibition unlawfully interfered with federal immigration enforcement.
The District Court dismissed the federal preemption claims and declined supplemental jurisdiction over state claims; the counties appealed to the Third Circuit.
The Third Circuit addressed two threshold questions: whether a state political subdivision may sue its creator state in federal court under the Supremacy Clause, and whether §§1373/1644 preempt the Directive.
The court held political subdivisions may bring Supremacy‑Clause suits against their creator state, but ruled §§1373 and 1644 cannot serve as a preemption basis because—under Supreme Court precedent in Murphy v. NCAA—preemption requires a federal law that regulates private actors, and these statutes regulate state action only.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a state political subdivision may sue its creator state in federal court under the Supremacy Clause	Counties: may sue to vindicate Supremacy‑Clause rights against state law that they say is preempted	State: historical doctrine bars subdivisions from suing their creator state (and raised standing/separation concerns)	Third Circuit: subdivisions may bring Supremacy‑Clause suits against their creator state (Gomillion and later circuit precedent support permitting such suits)
Whether 8 U.S.C. §§1373 and 1644 preempt New Jersey’s Immigrant Trust Directive (express, conflict, or field preemption)	Counties: the Directive’s restrictions on sharing PII, detainee access/notice, and bans on cooperation conflict with and are preempted by §§1373 and 1644	State: the statutes do not create a federal regime regulating private actors and thus cannot support preemption (and raised other defenses)	Third Circuit: §§1373 and 1644 regulate state action only, not private actors; under Murphy v. NCAA they cannot be the basis for preemption—federal claims dismissed

Key Cases Cited

Murphy v. NCAA, 138 S. Ct. 1461 (2018) (explains preemption requires a federal law that regulates private actors, not merely States)
Gomillion v. Lightfoot, 364 U.S. 339 (1960) (limits earlier sweeping language denying subdivisions constitutional remedies; state power is subject to federal constitutional limits)
Hunter v. Pittsburgh, 207 U.S. 161 (1907) (historical precedent on state supremacy over political subdivisions)
New York v. United States, 505 U.S. 144 (1992) (discusses Constitution conferring power to regulate individuals, not States)
Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65 (2d Cir. 2019) (permits political subdivisions to bring Supremacy‑Clause claims against their creator state)
Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619 (10th Cir. 1998) (allows subdivisions to assert Supremacy‑Clause protections)
Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991) (distinguished; addressed third‑party standing in a different context)