1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-1996

State of NJ v. United States

Precedential or Non-Precedential:

Docket 95-5685

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Recommended Citation

"State of NJ v. United States" (1996). 1996 Decisions. Paper 123.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/123
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 95-5685 

 

 STATE OF NEW JERSEY; CHRISTINE TODD WHITMAN; 

 WILLIAM H. FAUVER; LEO KLAGHOLZ, 

 Appellants 

 v. 

 UNITED STATES OF AMERICA; JANET RENO;

 DORIS MEISSNER; ALICE M. RIVLIN 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. No. 94-cv-03471) 

 

 

 Argued May 24, 1996 

 Before: SLOVITER, Chief Judge, Sarokin 

and Oakes, Circuit Judges 

 (Opinion Filed July 29, 1996) 

 

Deborah T. Poritz 

 Attorney General of New Jersey 

Joseph L. Yannotti 

Jerry Fischer (Argued) 

Andrew Sapolnick 

Office of Attorney General of New Jersey 

Trenton, N.J. 08625 

 Attorneys for Appellants 

Frank W. Hunger 

 Assistant Attorney General 

Faith S. Hochberg 

 United States Attorney 

Mark B. Stern (Argued) 

Ellen D. Katz 

United States Department of Justice 

Washington, DC 20530-0001 

 Attorneys for Appellees 
 

 OPINION OF THE COURT 

 

SLOVITER, Chief Judge. 

 I. 

 FACTS 

 The State of New Jersey, its governor, Christine Todd 

Whitman, Corrections Commissioner William H. Fauver and Education 

Commissioner Leo Klagholz (collectively New Jersey or the state) 

have sued the United States, Attorney General Janet Reno, 

Commissioner of the Immigration and Naturalization Service Doris 

Meissner, and Director of the Office of Management and Budget 

Alice Rivlin (collectively the United States) seeking 

compensation for costs incurred by New Jersey in incarcerating 

and educating illegal aliens. 

 New Jersey alleges that "[a]s a direct result of the 

federal government's failure to control its international borders 

and implement and abide by its laws, the State of New Jersey is 

improperly forced to bear the financial and administrative costs 

of imprisonment of illegal aliens who are convicted of crimes in 

New Jersey . . .[as well as the] costs of education of illegal 

aliens." App. at 25. These costs for state fiscal year 1994 

(ending June 30, 1994) are alleged to have been approximately 

$50.5 million for incarceration, App. at 26, and approximately 

$162 million for education, App. at 27. New Jersey seeks a 

declaratory judgment that it has a right to reimbursement of 

these costs from the federal government, and an injunction and/or 

writ of mandamus requiring defendants to disburse funds from the 

United States Treasury to the state for these costs. 

 New Jersey grounds its eight count complaint on the 

following statutory and constitutional provisions: sections of 

the Immigration Reform and Control Act of 1986 providing for the 

collection of penalties and expenses by the Attorney General and 

the reimbursement of states by the Attorney General for costs 

incurred for the imprisonment of illegal aliens convicted of 

state felonies, 8 U.S.C.  1330, 1365(a); the Invasion and 

Guarantee Clauses of Article IV,  4 of the U.S. Constitution; 

the Tenth Amendment; the Naturalization Clause of Article I,  8; 

the Takings Clause of the Fifth Amendment; and generalized 

principles of state sovereignty. 

 The district court granted the United States' motion 

to dismiss under Fed.R.Civ.P. 12(b)(6), ruling that New Jersey's 

constitutional claims presented nonjusticiable political 

questions and that its statutory claims were not subject to 

judicial review under the Administrative Procedures Act. This 

appeal followed. We have jurisdiction under 28 U.S.C.  1291 and 

our review is plenary. 

 II. 
 DISCUSSION 

 We note at the outset that five other states have also 

filed similar actions. Each case has been dismissed by the 

district court under Fed.R.Civ.P. 12(b)(6) and in each of the two 

cases so far to have reached the appellate courts, the respective 

court of appeals has affirmed the dismissal. See Texas v. United 

States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending, 

No. 95-40721 (5th Cir.); Arizona v. United States, No. 94-0866 

(D.Ariz. Apr. 18, 1995), appeal pending, No. 95-15980 (9th Cir.); 

Padavan v. United States, No. 94-CV-1341 (N.D.N.Y., Apr. 18, 

1995), affirmed, 82 F.3d 23 (2d Cir. 1996); California v. United 

States, No. 94-0674-K (S.D.Cal. Mar. 3, 1995), appeal pending, 

No. 95-55490 (9th Cir.); Chiles v. United States, 874 F.Supp. 

1334 (S.D.Fla. 1994), affirmed, 69 F.3d 1094 (11th Cir. 1995), 

cert. denied, 116 S.Ct. 1674 (1996). 

 A. 

 Constitutional Claims 

 Plaintiffs present a number of novel constitutional 

claims. We have considerable doubt as to whether these claims 

are even colorable, but, in any event, we agree with the district 

court's conclusion that they are non-justiciable. Nonetheless, 

we examine each claim briefly in turn before considering the 

political question doctrine. 

1. Tenth Amendment 

 In its oral argument, New Jersey placed its principal 

focus on the Tenth Amendment. In its complaint, New Jersey 

alleges that "[b]y forcing the taxpayers of the State of New 

Jersey to absorb the costs of incarcerating and educating illegal 

aliens, the United States . . . has usurped the taxpayers of the 

State of New Jersey of their rights, under the Tenth Amendment, 

to determine the manner in which their tax funds and State 

resources are expended." App. at 31. 

 The Tenth Amendment makes explicit a fundamental 

precept of the governmental structure defined by our 

Constitution: that the federal government's powers are limited to 

those enumerated. Thus, those "powers not delegated to the 

United States by the Constitution, nor prohibited by it to the 

States, are reserved to the States respectively or to the 

people." U.S. Const. amend. X. 

 As interpreted by the Supreme Court, the federal 

government, which has considerable power to regulate individuals 

directly and to encourage states to adopt certain legislative 

programs by, for example, attaching conditions to the receipt of 

federal funds, cannot require the states to govern according to 

its instructions. Thus "Congress may not simply 'commandee[r] 

the legislative processes of the States by directly compelling 

them to enact and enforce a federal regulatory program.'" New 

York v. United States, 505 U.S. 144, 161 (1992) (quoting Hodel v. 

Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 

288 (1981)). 

 In the decision in New York, the Court held that a 

federal statute that required states either to regulate the 

disposal of radioactive waste pursuant to Congress' direction or 

take title and possession of radioactive wastes generated within 
their borders "crossed the line distinguishing encouragement from 

coercion." 505 U.S. at 175. Either option -- whether adoption 

of Congress' regulatory scheme or taking title to radioactive 

wastes -- required a state to govern according to Congress' 

instructions. Because either option standing alone would be 

beyond Congress' authority, "it follows that Congress lacks the 

power to offer the States a choice between the two." Id. at 176. 

 In contrast, here the federal government has issued no 

directive to the State of New Jersey. Neither the state's 

incarceration of illegal aliens nor its obligation to educate 

illegal aliens results from any command by Congress. The state 

has made its own decision to prosecute illegal aliens for acts 

they committed in violation of New Jersey's own criminal code and 

its education of illegal aliens does not derive from any 

Congressional or executive directive, but from the Constitution 

itself, as construed by the Supreme Court in Plyer v. Doe, 457 

U.S. 202, 230 (1982). 

 The state seeks to add another link to the causal 

chain, asserting that it is not simply the state's criminal code 

or its constitutional obligations that have caused it to make the 

large expenditures it complains of, but rather the federal 

government's failure to adequately enforce the immigration laws. 

But no precedent suggests that inaction by Congress or the 

Executive Branch constitutes the kind of coercion that violates 

the Tenth Amendment. As defendants succinctly state in their 

brief, "[t]he Tenth Amendment provides a shield against the 

federal exercise of powers reserved to the states, not a sword to 

compel federal action." Appellees' Brief at 25. See Padavan, 

82 F.3d at 28-29 (rejecting similar Tenth Amendment claim by New 

York State). 

2. Naturalization Clause 

 One of Congress' specifically enumerated powers under 

Article I, section 8 of the Constitution is "To establish an 

uniform Rule of Naturalization." Count VI of the complaint 

alleges that because power over immigration matters has thus been 

delegated to the federal government, "the State of New Jersey is 

powerless to effectively resolve the economic problems caused by 

the invasion of illegal immigrants into the State," and it 

further alleges that defendants, in failing to implement their 

laws and policies, have "forced the State of New Jersey, to bear 

the burden of a responsibility which is that of the Nation as a 

whole pursuant to [the Naturalization Clause]." App. at 33. 

 Beyond its conclusory statement that "[t]his 

encroachment upon the resources of the State of New Jersey is 

constitutionally violative and impermissibly infringes upon the 

fundamental right of the State to determine proper allocation of 

its resources," id., New Jersey offers no reason why 

Congressional action pursuant to a power delegated to Congress by 

the Constitution that results in the indirect imposition of some 

cost on the states is an unconstitutional infringement on state 

sovereignty. Such an argument is even more tenuous in light of 

the Court's decision in Garcia v. San Antonio Metropolitan 

Transit Authority, 469 U.S. 528 (1985), where the Court upheld 

the imposition of minimum wage and overtime requirements of the 
Fair Labor Standards Act on a local public mass-transit 

authority, a far more direct congressional imposition of cost. 

It follows that there is no basis for a claim that the 

Constitution has been violated by the federal government's 

inaction, which allegedly has set in motion events that have 

indirectly caused the state to incur costs. See Padavan, 82 F.3d 

at 26-27 (rejecting same claim by New York). In light of the 

Supreme Court's reluctance to read affirmative governmental 

duties into the Constitution, see, e.g., DeShaney v. Winnebago 

County Dep't of Social Servs., 489 U.S. 189 (1989), we see no 

ground on which we could read into the Naturalization Clause an 

affirmative duty on the part of the federal government to protect 

states from harm caused by illegal aliens, who are nongovernmental third parties. 

3. Takings Clause 

 In one of its separate counts, New Jersey alleges that 

the federal government, by forcing the state to expend state tax 

funds and revenues to incarcerate and educate illegal aliens, has 

taken its property without just compensation in violation of the 

Takings Clause of the Fifth Amendment. 

 Although New Jersey correctly notes that the Takings 

Clause has been construed to apply to the federal government's 

condemnation of land owned by state and local governments, United 

States v. 50 Acres of Land, 469 U.S. 24, 31 (1984), it cites no 

case that has extended that holding to encompass government 

action or inaction which has an adverse impact on a state's tax 

revenues. 

 The Supreme Court has avoided expounding any "set 

formula" for determining when governmental action constitutes a 

taking, instead "engag[ing] in . . . essentially ad hoc, factual 

inquiries," Lucas v. South Carolina Coastal Council, 505 U.S. 

1003, 1015 (1992) (quoting Penn Central Transp. Co. v. New York 

City, 438 U.S. 104, 124 (1978)). Relevant considerations include 

"[t]he economic impact of the regulation on the claimant and . . 

. the extent to which the regulation has interfered with distinct 

investment-backed expectations." Penn Central, 438 U.S. at 124. 

Also relevant is the nature of the action, such as whether it is 

a physical invasion of land and thus more likely to constitute a 

taking, or a "public program adjusting the benefits and burdens 

of economic life to promote the common good," which ordinarily 

will not be compensable. Id. The Court has made clear that 

"government may execute laws or programs that adversely affect 

recognized economic values," id., and has thus "dismissed 

`taking' challenges on the ground that, while the challenged 

government action caused economic harm, it did not interfere with 

interests that were sufficiently bound up with the reasonable 

expectations of the claimant to constitute `property' for Fifth 

Amendment purposes." Id. at 124-25. 

 We have no hesitancy in concluding that the federal 

government's alleged failure to stem the tide of illegal 

immigrants into the State of New Jersey, while it may have had 

the incidental effect of causing the state to incur additional 

law enforcement and education costs, did not interfere with the 

state's "investment-backed" and "reasonable expectations" and 
thus is not a taking of state property for purposes of the Fifth 

Amendment. 

4. Invasion Clause 

 In Count III New Jersey alleges that the failure of the 

United States to prevent the entry of illegal aliens into that 

state violates the federal government's obligation under the 

Constitution to "protect each of [the states] against Invasion." 

U.S. Const. art. IV,  4. It offers no support whatsoever for 

application of the Invasion Clause to this case or for its 

reading of the term "invasion" to mean anything other than a 

military invasion. See Padavan, 82 F.3d at 28 ("In order for a 

state to be afforded the protections of the Invasion Clause, it 

must be exposed to armed hostility from another political entity, 

such as another state or foreign country that is intending to 

overthrow the state's government." (citing The Federalist No. 43 

(James Madison))). 

 Although it is not entirely clear from either its 

complaint or brief, the state also appears to be including in the 

same count a claim under the Guarantee Clause of Article IV,  4. 

That clause provides that "The United States shall guarantee to 

every State in this Union a Republican Form of Government," and 

may be implicated by New Jersey's allegation that "the 

sovereignty and independence of the State of New Jersey has been 

contravened" because of the actions (or inaction) of the federal 

government. App. at 30. New Jersey's complaint makes no 

specific allegation indicating how the state's republican form of 

government is threatened or compromised by defendants' actions 

(or inaction), and certainly the fact that the state "has been 

forced to increase and expend state taxes," App. at 29, cannot be 

said to "pose any realistic risk of altering the form or the 

method of functioning of [the state's] government," see New York, 

505 U.S. at 186. 

5. Intrusion into Fundamental Sovereignty of State 

 Without citing to any particular constitutional 

provision, New Jersey makes the generalized claim that the 

Constitution "provides, with certain well-defined exceptions, 

that the federal government may not intrude on the fundamental 

sovereignty of a State" and that defendants have violated this 

principle by "failing to implement and enforce its laws," 

permitting "the invasion of illegal aliens into the State," and 

refusing "to provide reimbursement for the cost of incarcerating 

and educating them." App. at 32. This claim adds nothing to the 

claims we have already found to be without merit. We note the 

applicability of the Supreme Court's observation that "[s]tate 

sovereign interests . . . are more properly protected by 

procedural safeguards inherent in the structure of the federal 

system than by judicially created limitations on federal power." 

Garcia, 469 U.S. at 552. 

6. Absence of remedy through the political process 

 Finally, in another claim not grounded in any 

particular constitutional provision, New Jersey asserts it is 

entitled to judicial relief because it "has no remedy through the 

political process established by the Constitution of the United 

States to seek reimbursement," and "has exhausted all other 
political and practical remedies, and any further efforts would 

be futile." App. at 34-35. Presumably the state is alluding to 

the Supreme Court's statement in South Carolina v. Baker, 485 

U.S. 505 (1988), that its previous opinion in Garcia had "left 

open the possibility that some extraordinary defects in the 

national political process might render congressional regulation 

of state activities invalid under the Tenth Amendment." Id. at 

512. In view of the absence of any allegation that New Jersey 

"was deprived of any right to participate in the national 

political process or that it was singled out in a way that left 

it politically isolated and powerless," id. at 513, New Jersey 

has alleged no viable claim. 

7. Political Question Doctrine 

 The district court held that all of New Jersey's 

constitutional claims were nonjusticiable under the political 

question doctrine. In Baker v. Carr, 369 U.S. 186 (1962), the 

Supreme Court identified six factors, any one of which indicates 

the presence of a political question. In this case, the district 

court found at least three of these factors were present: 1) "a 

textually demonstrable constitutional commitment of the issue to 

a coordinate political department," 2) "a lack of judicially 

discoverable and manageable standards for resolving it," and 3) 

"the impossibility of a court's undertaking independent 

resolution without expressing lack of the respect due coordinate 

branches of government." Id. at 217. 

 As to the first factor referred to above, even though 

not "every case or controversy which touches foreign relations 

lies beyond judicial cognizance," id. at 211, we agree with the 

Second Circuit that the Naturalization Clause represents "a 

textually demonstrable constitutional commitment" of immigration 

to the legislative branch. Padavan, 82 F.3d at 27. 

 The second factor cited by the district court finds 

support in the Supreme Court's cases that "'have long recognized 

the power to expel or exclude aliens as a fundamental sovereign 

attribute exercised by the Government's political departments 

largely immune from judicial control.'" Fiallo v. Bell, 430 U.S. 

787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 

(1953)). As the Court has explained: 

 For reasons long recognized as valid, the 

 responsibility for regulating the relationship between 

 the United States and our alien visitors has been 

 committed to the political branches of the Federal 

 Government. Since decisions in these matters may 

 implicate our relations with foreign powers, and since 

 a wide variety of classifications must be defined in 

 the light of changing political and economic 

 circumstances, such decisions are frequently of a 

 character more appropriate to either the Legislature or 

 the Executive than to the Judiciary. 

Mathews v. Diaz, 426 U.S. 67, 81 (1976) (footnote omitted). 

 Finally, each of New Jersey's claims asserted under the 

Constitution would require a court to evaluate the formulation 

and implementation of immigration policy by the executive branch. 
Decisions about how best to enforce the nation's immigration laws 

in order to minimize the number of illegal aliens crossing our 

borders patently involve policy judgments about resource 

allocation and enforcement methods. Such issues fall squarely 

within a substantive area clearly committed by the Constitution 

to the political branches; they are by their nature peculiarly 

appropriate to resolution by the political branches of government 

both because there are no "judicially discoverable and manageable 

standards for resolving" them and because independent resolution 

of such issues by a court would express a lack of the respect due 

a coordinate branch of government. Baker, 369 U.S. at 217. 

 Accordingly, we see no error in the district court's 

dismissal of plaintiffs' constitutional claims as nonjusticiable. Our holding is consistent with those of the other 

courts of appeals dismissing similar claims on this ground. SeePadavan, 

82 F.3d at 27-28 (Guarantee and Naturalization Clauses); 

Chiles, 69 F.3d at 1097 (Invasion and Guarantee Clauses and Tenth 

Amendment). 

 B. 

 Statutory Claims 

 New Jersey asserts, in addition, several statutory 

claims. It alleges that defendants have violated 8 U.S.C. 

1365(a), which provides: "Subject to the amounts provided in 

advance in appropriation Acts, the Attorney General shall 

reimburse a State for the costs incurred by the State for the 

imprisonment of any illegal alien or Cuban national who is 

convicted of a felony by such State." New Jersey contends that 

portions of Congress' fiscal year 1994 lump-sum appropriation of 

over a billion dollars ($1,048,538,000) to the Attorney General 

for INS administration and enforcement should have been allocated 

to reimbursing New Jersey under  1365. This appropriation was 

designated for "salaries and expenses." Pub.L. No. 103-121, 107 

Stat. 1160 (1993). 

 As a separate claim New Jersey also alleges violation 

of 8 U.S.C.  1330, which authorizes the Attorney General to 

recover fines, penalties and expenses from persons violating 

immigration laws. The state does not allege that the Attorney 

General has failed to collect such monies; rather, it appears to 

contend that monies collected under this section should also be 

used by the United States to reimburse New Jersey. Since this 

statute does not impose any such obligation on the federal 

government, presumably this claim is intended to be construed in 

conjunction with the state's other claims. 

 The district court held that plaintiffs' statutory 

claims are not subject to judicial review under the

Administrative Procedures Act (APA), 5 U.S.C.  701, 702. The 

APA waives the sovereign immunity of the United States and allows 

for judicial review of federal agency actions in certain 

circumstances. 5 U.S.C.  702. Such review is not available, 

however, where such action "is committed to agency discretion by 

law." Id.  701(a)(2). 

 In Lincoln v. Vigil, 113 S.Ct. 2024 (1993), on which 

the district court relied, the Court considered a challenge to a 

decision by the Indian Health Service to discontinue the Indian 
Children's Program, which the Service had been providing for 

seven years but which was neither mandated nor specifically 

authorized by statute. The relevant statutes spoke only in 

general terms, authorizing the Service to expend funds 

appropriated by Congress for "the benefit, care, and assistance 

of Indians" and for the "relief of distress and conservation of 

health." 113 S.Ct. at 2027-28 (quoting the Snyder Act, 25 U.S.C. 

 13). The relevant appropriations acts did not mention the 

Indian Children's program. Under these circumstances, the 

Supreme Court held that an agency's allocation of funds from a 

lump-sum appropriation is a decision "committed to agency 

discretion" and therefore unreviewable. 

 New Jersey argues that Lincoln is inapposite because 8 

U.S.C.  1365, referred to above, is a specific statutory 

provision authorizing the appropriation it seeks. However, the 

reimbursement authorized under that statute is qualified by the 

phrase, "[s]ubject to the amounts provided in advance in 

appropriation acts." A general lump sum appropriation to the INS 

does not constitute a specific mandatory requirement of 

reimbursement. Furthermore, Congress knows how to make an 

appropriation under  1365 if it wants to. For fiscal year 1995 

Congress made a specific appropriation of 130 million dollars for 

reimbursing states under  1365. See Pub. L. No. 103-317, 108 

Stat. 1724, 1778 (1994). 

 Accordingly, since none of the $1,048,538,000 lump sum 

appropriation for INS "salaries and expenses" nor the monies 

recovered under  1330 were earmarked by Congress in fiscal year 

1994 for disbursement under  1365, the decision as to whether to 

appropriate any of those funds for that purpose is one "committed 

to agency discretion" and therefore unreviewable under the APA, 5 

U.S.C.  701(a)(2). 

 Plaintiffs argue in their brief to this court that they 

are also entitled to relief under 8 U.S.C.  1252(i). However, 

as this claim was not raised in the complaint, nor, apparently, 

in plaintiffs' briefs to the district court, it is not properly 

before this court. Harris v. City of Philadelphia, 35 F.3d 840, 

845 (3d Cir. 1994). 

 III. 

 CONCLUSION 

 For the foregoing reasons, we will affirm the order of 

the district court.