Sanctuary but Unsuitable: New Jersey Governor Comes Out Against Additional Federal Flights of Undocumented Migrants

New Jersey’s Democrat Gov. Phil Murphy is pushing back on a plan to fly undocumented immigrants to his state, suggesting that New Jersey is now effectively off-limits to planned federal flights dropping off undocumented immigrants. It was a striking reversal for a politician who campaigned for office on the pledge that New Jersey will always be a sanctuary state. In 2017, he declared “We’ll be a sanctuary – not just city – but state.” However, it was easier to become a sanctuary state than a closed state. President Joe Biden’s authority trumps that of Murphy in the expected flights.

Notably, neither Murphy nor the media are alleging that Biden is “kidnapping” or “trafficking” in immigrants as has been the case with flights and buses sent by the governors of Texas and Florida.

Instead, Murphy (like other Democratic leaders of sanctuary cities and states) are simply declaring themselves effectively closed or, in the case of New York, shipping the immigrants to other cities.

There is a key legal distinction at play in these moves. States and cities can make themselves into sanctuary areas by passing a variety of laws supplying resources and easing burdens for undocumented persons. However, these federal flights can only be blocked under federal law. Presidents have considerable leeway under immigration laws and the Supreme Court has swatted down efforts by states to even enforce existing federal law. This authority preempts state authority in the area.

Murphy’s declaration followed a Biden administration disclosure of  planned flights that include New Jersey’s Atlantic City International Airport among eleven facilities to receive undocumented persons.

Murphy said that he could not see how they could accept any such flights “in Atlantic City or frankly elsewhere in the state.”

Likewise, Republican Atlantic County Executive Dennis Levinson told Politico that “I will do my best to prevent this from happening. We can’t afford it. We’re a poor county. We’re one of the poorest counties in New Jersey. It’s not a burden I can put on our taxpayers.”

That opposition is a political rather than a legal matter short of some viable challenge under federal law. That seems highly unlikely since this is an ongoing federal programs as opposed to some new policy that might be subject to APA or other challenges. The Biden Administration could trigger even greater objections if it starts to ship these individuals to other states. In an election year, Biden may be leery of such political battles in purple states.

For the moment, the opposition of Murphy will likely have greater promise as a political rather than legal challenge.