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. e du/thir dc ir c uit_1996/123UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 95-5685

STATE OF NEW JERSEY; CHRISTINE TODD WHIT MAN; WILLIAM H. FAUVER; LEO KLAGHOLZ, Appe llants

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, Saroki n 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 AppelleesOPINION OF THE COURT

SLOVITER, Chief Judge.

I.

FACTS The State of New Jersey, its governor, Chr istine 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) seeki ng compensation for costs incurred by New Jersey in in carcerating and educating illegal aliens. New Jersey alleges that "[a]s a direct res ult of the federal government's failure to control its interna tional borders and implement and abide by its laws, the State of N ew Jersey is improperly forced to bear the financial and adminis trative 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 app roximately $50.5 million for incarceration, App. at 26, and ap proximately $162 million for education, App. at 27. New Jersey seeks a declaratory judgment that it has a right to reimbur sement of these costs from the federal government, and an inj unction and/or writ of mandamus requiring defendants to disburse f unds from the United States Treasury to the state for these costs

. New Jersey grounds its eight count complai nt on the following statutory and constitutional provisions: sections of the Immigration Reform and Control Act of 1986 prov iding for the collection of penalties and expenses by the Attorne y General and the reimbursement of states by the Attorney General for costs incurred for the imprisonment of illegal aliens con victed 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 A rticle I,  8; the Takings Clause of the Fifth Amendment; and gene ralized principles of state sovereignty. The district court granted the United Sta tes' motion to dismiss under Fed.R.Civ.P. 12(b)(6), ruling that New Jersey's constitutional claims presented nonjusticiable poli tical questions and that its statutory claims were not su bject 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 stat es have also
filed similar actions. Each case has been dismisse d by the district court under Fed.R.Civ.P. 12(b)(6) and in e ach of the two cases so far to have reached the appellate courts, the respective court of appeals has affirmed the dismissal. See T exas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appe al pending, No. 95-40721 (5th Cir.); Arizona v. United States, No. 94-0866 (D.Ariz. Apr. 18, 1995), appeal pending, No. 95-159 80 (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); Califor nia v. United States, No. 94-0674-K (S.D.Cal. Mar. 3, 1995), appe al pending, No. 95-55490 (9th Cir.); Chiles v. United States, 8 74 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 const itutional
claims. We have considerable doubt as to whether t hese claims are even colorable, but, in any event, we agree wit h the district court's conclusion that they are non-justiciable. Nonetheless, we examine each claim briefly in turn before consid ering the political question doctrine.
1. Tenth Amendment In its oral argument, New Jersey placed it s principal focus on the Tenth Amendment. In its complaint, Ne w Jersey alleges that "[b]y forcing the taxpayers of the Sta te of New Jersey to absorb the costs of incarcerating and edu cating illegal aliens, the United States . . . has usurped the tax payers of the State of New Jersey of their rights, under the Tent h Amendment,
to determine the manner in which their tax funds an d State resources are expended." App. at 31. The Tenth Amendment makes explicit a funda mental precept of the governmental structure defined by ou r Constitution: that the federal government's powers are limited to those enumerated. Thus, those "powers not delegate d to the United States by the Constitution, nor prohibited b y 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 f ederal government, which has considerable power to regulat e individuals directly and to encourage states to adopt certain l egislative programs by, for example, attaching conditions to t he receipt of federal funds, cannot require the states to govern according to its instructions. Thus "Congress may not simply 'c ommandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory prog ram.'" New York v. United States, 505 U.S. 144, 161 (1992) (qu oting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981)). In the decision in New York, the Court he ld that a federal statute that required states either to regu late the disposal of radioactive waste pursuant to Congress' direction or take title and possession of radioactive wastes gen erated withintheir borders "crossed the line distinguishing enco uragement from

coercion." 505 U.S. at 175. Either option -- whet her adoption of Congress' regulatory scheme or taking title to r adioactive wastes -- required a state to govern according to C ongress' instructions. Because either option standing alone would be beyond Congress' authority, "it follows that Congre ss lacks the power to offer the States a choice between the two. " Id. at 176. In contrast, here the federal government h as 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 alie ns for acts they committed in violation of New Jersey's own cri minal code and its education of illegal aliens does not derive fro m 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 immi gration laws. But no precedent suggests that inaction by Congress or the
Executive Branch constitutes the kind of coercion t hat violates the Tenth Amendment. As defendants succinctly stat e in their brief, "[t]he Tenth Amendment provides a shield aga inst the federal exercise of powers reserved to the states, not a sword to compel federal action." Appellees' Brief at 25. S ee Padavan, 82 F.3d at 28-29 (rejecting similar Tenth Amendment claim by New York State).
2. Naturalization Clause One of Congress' specifically enumerated p owers under Article I, section 8 of the Constitution is "To est ablish an
uniform Rule of Naturalization." Count VI of the c omplaint 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 probl ems caused by the invasion of illegal immigrants into the State," and it further alleges that defendants, in failing to impl ement their laws and policies, have "forced the State of New Je rsey, to bear the burden of a responsibility which is that of the Nation as a whole pursuant to [the Naturalization Clause]." Ap p. at 33. Beyond its conclusory statement that "[t]h is encroachment upon the resources of the State of New Jersey is constitutionally violative and impermissibly infrin ges upon the fundamental right of the State to determine proper allocation of its resources," id., New Jersey offers no reason wh y Congressional action pursuant to a power delegated to Congress by the Constitution that results in the indirect impos ition of some cost on the states is an unconstitutional infringem ent on state sovereignty. Such an argument is even more tenuous in light of
the Court's decision in Garcia v. San Antonio Metro politan Transit Authority, 469 U.S. 528 (1985), where the C ourt upheld the imposition of minimum wage and overtime require ments of theFair Labor Standards Act on a local public mass-tra nsit

authority, a far more direct congressional impositi on of cost.
It follows that there is no basis for a claim that the Constitution has been violated by the federal gover nment's inaction, which allegedly has set in motion events that have indirectly caused the state to incur costs. See Pa davan, 82 F.3d at 26-27 (rejecting same claim by New York). In li ght of the Supreme Court's reluctance to read affirmative gove rnmental 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 Naturalizati on Clause an affirmative duty on the part of the federal governm ent 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 exp end state tax funds and revenues to incarcerate and educate illeg al aliens, has taken its property without just compensation in vio lation of the Takings Clause of the Fifth Amendment. Although New Jersey correctly notes that t he Takings Clause has been construed to apply to the federal g overnment's condemnation of land owned by state and local gover nments, United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984), it cites no case that has extended that holding to encompass go vernment action or inaction which has an adverse impact on a state's tax

revenues. The Supreme Court has avoided expounding a ny "set formula" for determining when governmental action c onstitutes 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 consider ations include "[t]he economic impact of the regulation on the cla imant 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 c lear that "government may execute laws or programs that adver sely affect recognized economic values," id., and has thus "dis missed `taking' challenges on the ground that, while the c hallenged 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 `propert y' for Fifth Amendment purposes." Id. at 124-25. We have no hesitancy in concluding that th e federal government's alleged failure to stem the tide of il legal immigrants into the State of New Jersey, while it m ay have had the incidental effect of causing the state to incur additional law enforcement and education costs, did not interf ere with the state's "investment-backed" and "reasonable expecta tions" andthus is not a taking of state property for purposes of the Fifth

Amendment.
4. Invasion Clause In Count III New Jersey alleges that the f ailure of the United States to prevent the entry of illegal alien s into that state violates the federal government's obligation under the Constitution to "protect each of [the states] again st 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 oth er than a military invasion. See Padavan, 82 F.3d at 28 ("In order for a state to be afforded the protections of the Invasio n Clause, it must be exposed to armed hostility from another pol itical entity, such as another state or foreign country that is in tending to overthrow the state's government." (citing The Fede ralist No. 43 (James Madison))). Although it is not entirely clear from eit her its complaint or brief, the state also appears to be in cluding in the
same count a claim under the Guarantee Clause of Ar ticle IV,  4. That clause provides that "The United States shall guarantee to every State in this Union a Republican Form of Gove rnment," and may be implicated by New Jersey's allegation that " the sovereignty and independence of the State of New Je rsey has been contravened" because of the actions (or inaction) o f the federal government. App. at 30. New Jersey's complaint ma kes no specific allegation indicating how the state's repu blican form of government is threatened or compromised by defendan ts' actions (or inaction), and certainly the fact that the stat e "has been forced to increase and expend state taxes," App. at 29, cannot be said to "pose any realistic risk of altering the fo rm 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 constitut ional provision, New Jersey makes the generalized claim t hat the Constitution "provides, with certain well-defined e xceptions, that the federal government may not intrude on the fundamental sovereignty of a State" and that defendants have vi olated 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 th at "[s]tate sovereign interests . . . are more properly protect ed by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on fe deral 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 ass erts it is entitled to judicial relief because it "has no reme dy through the political process established by the Constitution o f the United States to seek reimbursement," and "has exhausted a ll otherpolitical and practical remedies, and any further e fforts would

be futile." App. at 34-35. Presumably the state i s alluding to the Supreme Court's statement in South Carolina v. Baker, 485 U.S. 505 (1988), that its previous opinion in Garci a had "left open the possibility that some extraordinary defect s in the national political process might render congression al regulation
of state activities invalid under the Tenth Amendme nt." Id. at 512. In view of the absence of any allegation that New Jersey "was deprived of any right to participate in the na tional political process or that it was singled out in a w ay 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 Je rsey'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 wh ich indicates the presence of a political question. In this case , the district court found at least three of these factors were pr esent: 1) "a textually demonstrable constitutional commitment of the issue to a coordinate political department," 2) "a lack of j udicially discoverable and manageable standards for resolving it," and 3) "the impossibility of a court's undertaking indepen dent resolution without expressing lack of the respect d ue coordinate branches of government." Id. at 217. As to the first factor referred to above, even though not "every case or controversy which touches foreig n relations lies beyond judicial cognizance," id. at 211, we ag ree with the Second Circuit that the Naturalization Clause repre sents "a textually demonstrable constitutional commitment" o f immigration to the legislative branch. Padavan, 82 F.3d at 27. The second factor cited by the district co urt finds support in the Supreme Court's cases that "'have lo ng recognized the power to expel or exclude aliens as a fundament al sovereign attribute exercised by the Government's political d epartments 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 relation ship between
the United States and our alien visitors h as been committed to the political branches of the Federal
Government. Since decisions in these matt ers may implicate our relations with foreign power s, and since a wide variety of classifications must be defined in the light of changing political and econom ic circumstances, such decisions are frequent ly of a character more appropriate to either the L egislature or the Executive than to the Judiciary.

Mathews v. Diaz, 426 U.S. 67, 81 (1976) (footnote o mitted). Finally, each of New Jersey's claims asser ted under the Constitution would require a court to evaluate the formulation and implementation of immigration policy by the exe cutive branch.Decisions about how best to enforce the nation's immigration laws

in order to minimize the number of illegal aliens c rossing our borders patently involve policy judgments about res ource allocation and enforcement methods. Such issues fa ll 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 independe nt resolution of such issues by a court would express a lack of t he respect due a coordinate branch of government. Baker, 369 U.S. at 217. Accordingly, we see no error in the distri ct court's dismissal of plaintiffs' constitutional claims as n onjusticiable. 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 Clau ses); Chiles, 69 F.3d at 1097 (Invasion and Guarantee Cla uses and Tenth Amendment).

B. Statutory Claims New Jersey asserts, in addition, several s tatutory claims. It alleges that defendants have violated 8 U.S.C.  1365(a), which provides: "Subject to the amounts pr ovided in advance in appropriation Acts, the Attorney General shall reimburse a State for the costs incurred by the Sta te for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State." New Jersey c ontends that portions of Congress' fiscal year 1994 lump-sum app ropriation of over a billion dollars ($1,048,538,000) to the Atto rney 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 allege s 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 t he Attorney General has failed to collect such monies; rather, it appears to
contend that monies collected under this section sh ould 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' s tatutory 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 Sta tes and allows for judicial review of federal agency actions in ce rtain
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 c hallenge to a decision by the Indian Health Service to discontinu e the IndianChildren's Program, which the Service had been prov iding for

seven years but which was neither mandated nor spec ifically authorized by statute. The relevant statutes spoke only in general terms, authorizing the Service to expend fu nds appropriated by Congress for "the benefit, care, an d assistance
of Indians" and for the "relief of distress and con servation of health." 113 S.Ct. at 2027-28 (quoting the Snyder Act, 25 U.S.C.
 13). The relevant appropriations acts did not men tion the Indian Children's program. Under these circumstanc es, the Supreme Court held that an agency's allocation of f unds from a lump-sum appropriation is a decision "committed to agency discretion" and therefore unreviewable. New Jersey argues that Lincoln is inapposi te 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 qual ified by the phrase, "[s]ubject to the amounts provided in advan ce in appropriation acts." A general lump sum appropriat ion to the INS does not constitute a specific mandatory requiremen t 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 milli on 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 t he 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 un der the APA, 5

U.S.C.  701(a)(2). Plaintiffs argue in their brief to this co urt 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.