Opinions of the United
1996 Decisions                                                                                                             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Precedential or Non-Precedential: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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       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, 

(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, 

(S.D.Fla. 1994), affirmed, 

(11th Cir. 1995),
cert. denied, 

(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, 

, 161 (1992) (quoting Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 

,
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

. 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." 

         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, 

, 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 

(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," 

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, 

(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 

(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., 

(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 non-
governmental 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, 

, 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, 

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

, 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 

.
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. 

has made clear that
"government may execute laws or programs that adversely affect
recognized economic values," 

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." 

         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 

("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 

.
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."

.
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, 

(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." 

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," 

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, 

(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." 

         As to the first factor referred to above, even though
not "every case or controversy which touches foreign relations
lies beyond judicial cognizance," 

we agree with the
Second Circuit that the Naturalization Clause represents "a
textually demonstrable constitutional commitment" of immigration
to the legislative branch. 

.
         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, 

, 792 (1977) (quoting Shaughnessy v. Mezei, 

, 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, 

, 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. 

.
         Accordingly, we see no error in the district court's
dismissal of plaintiffs' constitutional claims as non-
justiciable. Our holding is consistent with those of the other
courts of appeals dismissing similar claims on this ground. See

-28 (Guarantee and Naturalization Clauses);

(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." 

Lincoln v. Vigil, 

(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

(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, 

,
845 (3d Cir. 1994).

                               III.
                            CONCLUSION
         For the foregoing reasons, we will affirm the order of
the district court.