PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

Nos. 20-2754 & 20-2755

_____________

OCEAN COUNTY BOARD OF COMMISSIONERS*; 

COUNTY OF OCEAN; CAPE MAY COUNTY SHERIFF; 

COUNTY OF CAPE MAY

v.

ATTORNEY GENERAL OF THE STATE OF NEW 

JERSEY; STATE OF NEW JERSEY OFFICE OF 

ATTORNEY GENERAL; DEPARTMENT OF LAW AND 

PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE

Ocean County Board of Commissioners*; County of Ocean,

Appellants in 20-2754

Cape May County Sheriff; County of Cape May,

Appellants in 20-2755

*(Amended 1/29/21)

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court Nos. 3-19-cv-18083; 3-19-cv-18929

District Judge: The Honorable Freda L. Wolfson 
2

_____________

Argued on June 3, 2021

Before: AMBRO, HARDIMAN, and PHIPPS, Circuit Judges

(Filed: August 9, 2021)

John C. Sahradnik

Mathew B. Thompson [Argued]

Berry Sahradnik Kotzas & Benson

212 Hooper Ave.

P.O. Box 757

Toms River, NJ 08754

Counsel for County of Ocean, Ocean County Board of 

Commissioners, Appellants

Jeffrey R. Lindsay [Argued]

Cape May County Department of Law

4 Moore Road, DN 104

Cape May Court House, NJ 08210

Michael L. Testa, Jr.

Testa Heck Testa & White P.A.

424 W. Landis Ave.

Vineland, NJ 08360

Counsel for County of Cape May, Cape May County 

Sheriff, Appellants

Jeremy M. Feigenbaum [Argued]

Michael R. Sarno

Daniel M. Vannella
3

Office of Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Market Street

Trenton, NJ 08625

Counsel for Appellees

Lawrence J. Joseph

Suite 700-1A

1250 Connecticut Ave., N.W.

Washington, D.C. 20036

Attorney for Amicus Curiae Immigration Reform Law 

Institute in Support of Appellants County of Cape May, Cape 

May County Sheriff

Paul J. Fishman

Arnold & Porter Kaye Scholer LLP

One Gateway Center, Suite 1025

Newark, NJ 07102

Attorney for Amicus Curiae Constitutional, 

Immigration, and Criminal Law Scholars in Support of 

Appellees

Farrin R. Anello

American Civil Liberties Union of New Jersey Foundation

P.O. Box 32159

Newark, NJ 07102

Attorney for Amicus Curiae 47 Community 

Organizations in Support of Appellees

Jamison Davies

New York City Law Department

100 Church St.

New York, NY 10007
4

Attorney for Amicus Curiae 13 Local Governments in 

Support of Appellees

Mary B. McCord

Institute for Constitutional Advocacy and Protection

Georgetown University Law Center

600 New Jersey Ave. NW

Washington, D.C. 20001

Attorney for Amicus Curiae Current and Former 

Prosecutors and Law Enforcement Leaders and Former 

Attorneys General and Department of Justice Officials in 

Support of Appellees

Loren L. AliKhan

Office of Attorney General of District of Columbia

400 6th St. NW

Suite 8100

Washington, D.C. 20001

Attorney for Amicus Curiae District of Columbia, 

California, Connecticut, Delaware, Illinois, Maine, 

Maryland, Massachusetts, Michigan, Minnesota, Nevada, 

New Mexico, New York, Oregon, Rhode Island, Virginia, 

Vermont, and Washington in Support of Appellees

________________

OPINION OF THE COURT

________________

HARDIMAN, Circuit Judge.

This appeal—which involves New Jersey’s recent 

directive to limit the ability of state and local law enforcement 
5

officers to cooperate with federal immigration authorities—

implicates important questions of federalism. Two New Jersey 

counties, a sheriff, and the oversight board of a county jail

(collectively, Appellants), sued to invalidate and enjoin the 

directive. Appellants claim it is preempted by federal law. The 

District Court disagreed and dismissed their complaints. 

Because we agree with the District Court that federal law does 

not preempt the directive, we will affirm.

I

In November 2018, New Jersey Attorney General

Gurbir Grewal issued Law Enforcement Directive 2018-6, also 

known as the Immigrant Trust Directive. See Dist. Ct. Dkt. No. 

14-5. It was revised and reissued, with minimal substantive 

changes, the next year. Concluding “that individuals are less 

likely to report a crime if they fear that the responding officer 

will turn them over to immigration authorities,” the Directive 

amended state rules to restrict interactions between state and 

local law enforcement and federal immigration officers. Id. at 

2–3. As relevant here, § II-B of the Directive barred counties 

and local law enforcement from assisting federal immigration 

authorities in these ways:

2. Providing any non-public personally 

identifying information regarding any 

individual.

3. Providing access to any state, county, or 

local law enforcement equipment, office 

space, database, or property not available 

to the general public.
6

4. Providing access to a detained individual 

for an interview, unless the detainee signs 

a written consent form . . . .

5. Providing notice of a detained 

individual’s upcoming release from 

custody . . . .

Id. at 5 (footnote omitted). Section II-B defined “[n]on-public 

personally identifying information” to include, among other 

things, “a social security number” and a “driver’s license 

number.” Id. at 5 n.1. The Directive also prohibited local law 

enforcement agencies and officials from entering “any 

agreement to exercise federal immigration authority pursuant 

to Section 287(g) of the Immigration and Nationality Act.” Id.

at 7 (§ III-A). And it required local law enforcement to “notify 

a detained individual” when federal immigration authorities 

requested to interview the person, to have the person detained

past his or her release date, or to be informed of the person’s 

upcoming release. Id. at 9 (§ VI-A). The Directive provided 

several exceptions to the limitations just described. It

instructed that “[n]othing in Sections II.A or II.B shall be 

construed to restrict . . . state, county, or local law 

enforcement” from “[c]omplying with all applicable federal, 

state, and local laws,” including 8 U.S.C. §§ 1373 and 1644.

Id. at 6-7 (§ II-C).

In September 2019, the County of Ocean and its Board 

of Commissioners (collectively, the Ocean County Plaintiffs)

sued in the District Court seeking a declaratory judgment that 

the Directive violated the United States Constitution and New 

Jersey law. The Ocean County Plaintiffs argued the Directive 

was preempted by two federal statutes: 8 U.S.C. §§ 1373 and 

1644. Section 1373 bars government officials and entities from 
7

“prohibit[ing], or in any way restrict[ing], any government 

entity or official from sending to, or receiving from” federal 

immigration authorities “information regarding the citizenship 

or immigration status . . . of any individual.” Section 1644 

contains similar language: “no State or local government entity 

may be prohibited, or in any way restricted, from sending to or 

receiving from” federal immigration authorities “information 

regarding the immigration status . . . of an alien in the United 

States.” The Ocean County Plaintiffs argued the Directive’s 

bar on sharing personally identifying information—such as 

social security and drivers’ license numbers—conflicted with 

these federal laws. And that purported conflict rendered the 

Directive invalid under the Supremacy Clause of the 

Constitution. 

The next month, the County of Cape May and its sheriff,

Robert Nolan (collectively, the Cape May County Plaintiffs), 

filed suit advancing similar challenges to the Directive. The 

Cape May Plaintiffs argued broadly that §§ 1373 and 1644 

preempted the Directive, and that the Directive’s prohibition 

on § 287(g) agreements unlawfully impeded the enforcement 

of federal immigration law.

In November 2019, the District Court consolidated the 

two cases. Attorney General Grewal moved to dismiss. In July 

2020, the District Court granted the motion as to the federal 

claims and declined to exercise supplemental jurisdiction over 

the state claims.1 This timely appeal followed. 

1 The District Court dismissed the state law claims without 

prejudice, so the Ocean County Plaintiffs and the Cape May 

Plaintiffs are pursuing those claims in New Jersey state court.
8

II

The District Court had jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo the District Court’s order of dismissal. Klotz v. 

Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 

(3d Cir. 2021).

A

Before reaching the merits, we must address two 

threshold issues raised by the Attorney General.

2 Both stem

from Appellants’ political subdivision status. First, the 

Attorney General argues a state political subdivision—like a 

county—lacks standing to bring constitutional claims in 

federal court against the state that created it. Second, even if 

Article III standing exists, “as a categorical rule of 

constitutional law,” such subdivision suits are barred. A.G. Br. 

20. We disagree.

The Attorney General correctly notes that, in a line of 

cases dating back centuries, the Supreme Court rejected the 

idea that political subdivisions could pursue constitutional 

claims against their creator states in federal court. See, e.g.,

Hunter v. Pittsburgh, 207 U.S. 161, 179 (1907) (in relation to 

a political subdivision, “the state is supreme, and its legislative 

body, conforming its action to the state Constitution, may do 

as it will, unrestrained by any provision of the Constitution of 

the United States”); see also Williams v. Mayor & City Council 

of Balt., 289 U.S. 36, 40 (1933); Trs. of Dartmouth Coll. v. 

Woodward, 17 U.S. (4 Wheat.) 518, 629–30 (1819).

2 Attorney General Grewal resigned during this appeal. 
9

Things changed, however, in 1960. In Gomillion v. 

Lightfoot, the Supreme Court limited the sweeping language of 

its earlier opinions that suggested a per se bar on political 

subdivision suits. 364 U.S. 339 (1960). Although the 

petitioners in Gomillion were individuals—not political 

subdivisions—the Court spoke broadly about the powers of a 

state legislature vis-à-vis its subdivisions. Id. at 344–45.

“Legislative control of municipalities, no less than other state 

power, lies within the scope of relevant limitations imposed by 

the United States Constitution.” Id. Earlier language seemingly 

to the contrary, the Court cautioned, “must not be applied out 

of context.” Id. at 344. The “unconfined dicta” from cases like 

Hunter confirms only “that the State’s authority is unrestrained 

by the particular prohibitions of the Constitution considered in 

those cases.” Id. (emphasis added). Critical to this appeal, none 

of the early cases barring subdivision suits addressed the 

Supremacy Clause.

Since the Court’s opinion in Gomillion, three of our 

sister courts of appeals have permitted subdivisions to sue their

creating states under the Supremacy Clause. See Tweed-New 

Haven Airport Auth. v. Tong, 930 F.3d 65, 73 (2d Cir. 2019)

(allowing such suits as a matter of substantive law); Branson 

Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 628–29 (10th Cir. 

1998) (allowing such suits, but discussing it as a matter of 

standing); Rogers v. Brockette, 588 F.2d 1057, 1070–71 (5th 

Cir. 1979). One circuit court has barred such subdivision suits. 

See City of San Juan Capistrano v. Cal. Pub. Utils. Comm’n, 

937 F.3d 1278, 1280–81 (9th Cir. 2019). But see id. at 1284 

(Nelson, J., concurring) (calling for the Ninth Circuit to “revisit 

en banc” its per se bar).

In Tweed, the Second Circuit recognized the “unique 

federalism concerns” raised by Supremacy Clause suits as a 
10

reason for allowing such claims after Gomillion. 930 F.3d at 

73; see also Romer, 161 F.3d at 628–29 (political subdivisions 

may “assert[] the structural protections of the Supremacy 

Clause”); Burbank-Glendale-Pasadena Airport Auth. v. City of 

Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (Kozinski, J., 

concurring) (“Supremacy Clause claims protect the interests of 

the federal government against encroachment by the states.”). 

“If the Supremacy Clause means anything,” the Second Circuit

opined, “it means that a state is not free to enforce within its 

boundaries laws preempted by federal law.” Tweed, 930 F.3d

at 73. Political subdivision suits “invoking the Supremacy 

Clause are one of the main ways of ensuring that this does not 

occur.” Id. We agree with the reasoning of the Second Circuit 

and hold that a political subdivision may sue its creator state in 

federal court under the Supremacy Clause.3

B

Having confirmed Appellants’ ability to bring this suit,

we turn to the merits. The Ocean County Plaintiffs contend that 

express, conflict, and field preemption apply to § II-B-2 of the 

Directive (personally identifying information provision). The 

Cape May County Plaintiffs, on the other hand, challenge 

several provisions. First, they argue § II-B-2 and §§ II-B-4, 

II-B-5, and VI-A (notice and consent provisions) are conflict 

preempted because “they impose an obstacle [to] the federal 

3 Our opinion in Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991), 

is not to the contrary. In Amato, we addressed whether a county 

had third-party standing to sue an executive official for alleged 

violations of the First Amendment. See id. at 754–55. Here, 

Appellants argue their own rights were violated and advance 

claims under the Supremacy Clause.
11

government’s execution of federal immigration law.” Cape 

May Br. 5. They also argue § II-B-2 and II-B-5 are expressly 

preempted by §§ 1373 and 1644. 

Preemption is rooted primarily in the Supremacy Clause 

of the Constitution. See U.S. CONST. art. VI, cl. 2 (federal law 

“shall be the supreme Law of the Land; and the Judges in every 

State shall be bound thereby, any Thing in the Constitution or 

Laws of any State to the Contrary notwithstanding”). In 

Murphy v. N.C.A.A., the Supreme Court offered guidance to 

lower courts presented with questions of federal preemption.

138 S. Ct. 1461 (2018). As the Court explained, three types of 

preemption have emerged through caselaw—express, conflict, 

and field—but “all of them work in the same way.” Id. at 1480. 

For a federal law to preempt state law—regardless of 

the type of preemption claimed—it must satisfy two 

requirements. First, the federal law “must represent the 

exercise of a power conferred on Congress by the 

Constitution.” Id. at 1479. Second, because “the Constitution 

‘confers upon Congress the power to regulate individuals, not 

States,’” id. (quoting New York v. United States, 505 U.S. 144, 

166 (1992)), the federal law “must be best read as one that 

regulates private actors,” id.; see also id. at 1481 

(“[R]egardless of the language sometimes used by Congress 

and this Court, every form of preemption is based on a federal 

law that regulates the conduct of private actors, not the States.” 

(emphasis added)).

The two federal laws Appellants cite in this case—

§§ 1373 and 1644—cannot satisfy the second prerequisite. 

Section 1373 says that a “State . . . entity or official may not 

prohibit, or in any way restrict, any government entity or 

official” from sharing immigration information with federal 
12

authorities. (Emphasis added). This is a clear prohibition on 

state action; it says nothing about private actors, so it cannot

be fairly read to regulate them. See Murphy, 138 S. Ct. at 1481. 

Section 1644 uses slightly different language: “no State 

or local government entity may be prohibited, or in any way 

restricted,” from communicating immigration information to 

the federal government. Written in the passive voice, § 1644 

does not specify who may not prohibit or restrict state action. 

But in our view, the best reading of the provision is that it does 

not regulate private actors. See Murphy, 138 S. Ct. at 1479. 

That’s because private actors can neither “prohibit[]” state 

action nor “restrict[]” it. See § 1644. A state, on the other hand,

has the power to both “prohibit[]” and “restrict[]” actions by 

its own subdivisions. See id. So we conclude that § 1644, like 

§ 1373, regulates states, not private actors.

Our conclusion that neither § 1373 nor § 1644 regulates

private actors is fatal to Appellants’ argument that they 

preempt the Directive. Murphy, 138 S. Ct. at 1479, 1481. A 

federal statute that does not regulate private actors cannot serve 

as a basis for preemption, so Appellants’ claims must fail.4

4 Because we agree with the District Court that §§ 1373 and 

1644 do not preempt the Directive, we do not opine on the 

Attorney General’s argument that §§ 1373 and 1644 violate the 

anticommandeering doctrine. We nevertheless acknowledge

that courts addressing this issue have found one or both laws 

unconstitutional. See Cnty. of Ocean v. Grewal, 475 F. Supp. 

3d 355, 378 n.20 (D.N.J. 2020) (collecting cases).
13

* * *

The District Court did not err when it dismissed 

Appellants’ federal claims. Supreme Court precedent permits 

a political subdivision to bring Supremacy Clause-based

claims against its creator state in federal court. But regardless 

of the wisdom of the Immigration Trust Directive, it is not 

preempted because 8 U.S.C. §§ 1373 and 1644 regulate only 

state action. We will therefore affirm the District Court’s order.