S2727

An Act concerning State sovereignty and supplementing Title 38A of the New Jersey Statutes and Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that:

a. The Trump administration has undertaken unprecedented and egregious actions in an effort to expand and consolidate executive power.

b. These actions include abuses of the president’s authority to deploy the National Guard by using that military force against the citizens of this country; the violation of due process rights to implement a mass-deportation policy; threats and attempts to freeze or claw back federal appropriations; the targeting of political opponents and critics through politically motivated prosecutions; attempts to weaken democratic institutions by undermining election integrity; attacks on the legitimacy of the courts and judicial decisions; and seeking to interfere with state policies such as the Gateway Tunnel project by withholding federal funds.

c. The actions taken by the Trump administration are antithetical to the Founding Father’s understanding of State and federal powers as embodied in the Untied States Constitution, undermine and threaten this State’s sovereignty as guaranteed by the Tenth Amendment to that Constitution, and therefore must be resisted by the State wherever possible.

d. The Tenth Amendment to the Constitution provides “The 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.”

e. United States Supreme Court cases rooted in the Tenth Amendment have developed the “Anti-Commandeering Doctrine.” Under the Anti-Commandeering Doctrine, the federal government cannot infringe upon State sovereignty by compelling states, or a state or local government officer, to enforce the provisions of federal regulatory programs.

f. It is critically important that this State assert its sovereignty, resist unlawful attempts by the federal government to commandeer State and local officials for its own purposes, and ensure that the citizens of this State are protected from federal abuses of power whenever possible.

g. In furtherance of these basic constitutional principles, this act reasserts this State’s sovereignty by:

(1) restricting when the State National Guard may be deployed;

(2) clarifying when government officers and employees should and should not cooperate with federal assertions of authority; and

(3) directing State and local government officers and employees to immediately report any instance where the federal government seeks this State’s assistance or cooperation on any matter so that such requests may be assessed to determine whether they are lawful, serve the interests of the citizens of this State, and does not violate this State’s sovereignty as guaranteed by the Tenth Amendment.

2. a. For the purposes of this section:

(1) “Active duty combat” means performing the following services in the active federal military service of the United States:

(a) participation in an armed conflict in a foreign state under Title 10 of the United States Code; or

(b) performance of a hazardous service through an instrumentality of war relating to an armed conflict in a foreign state under Title 10 of the United States Code.

(2) "Official declaration of war" means an official declaration of war made by the United States Congress pursuant to Article I, Section 8, Clause 11 of the United States Constitution.

b. Notwithstanding any law, rule, or regulation to the contrary, the National Guard and any member thereof shall not be released from the State into active duty combat unless the United States Congress has passed an official declaration of war or has taken an official action pursuant to Article I, Section 8, Clause 15 of the United States Constitution to explicitly call forth the National Guard and any member thereof for the enumerated purposes to expressly execute the laws of the union, repel an invasion, or suppress an insurrection. The Governor and the Adjutant General shall take all actions necessary to comply with the requirements of this section.

c. Nothing in this section shall limit or prohibit the Governor from consenting to the deployment of any National Guard member under Title 32 of the United States Code.

d. Nothing in this section shall limit nor prohibit the participation of the National Guard in training exercises outside of the continental United States under Title 10 of the United States Code or in training with friendly foreign countries under 10 U.S.C. section 321.

e. Nothing in this section shall limit or prohibit the participation of the National Guard in the capacity of humanitarian and civic assistance provided in conjunction with military operations pursuant to 10 U.S.C. section 401.

3. Notwithstanding any law, rule, or regulation to the contrary, the National Guard and any member thereof shall not be released from the State into federal service under 10 U.S.C. section 12406 unless:

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States, which shall mean that an organized group is engaged in sustained, armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means; or

(3) the President is unable with the regular forces to execute the laws of the United States, which shall mean that the opposition to federal law is too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in federal law enforcement.

4. a. Except as set forth in subsections b. and d. of this section, no State, county, or local law enforcement agency, official, or employee shall provide the following types of assistance to federal authorities unless expressly authorized by State law, permitted by the Attorney General or the Governor, or ordered by a court of competent jurisdiction:

(1) placing police officers under the supervision of federal agencies or employing police officers deputized as special federal officers or special federal deputies for any purposes;

(2) participating in civil immigration enforcement operations;

(3) providing any non-public personally identifying information regarding any individual;

(4) providing access to any State, county, or local law enforcement equipment, office space, database, or property not available to the general public;

(5) providing access to a detained individual for an interview, unless the detainee signs a written consent form that explains the purpose of the interview, that the interview is voluntary, that the individual may decline to be interviewed, and that the individual may choose to be interviewed only with legal counsel present;

(6) providing notice of a detained individual’s upcoming release from custody, unless the detainee:

(a) is currently charged with, has ever been convicted of, has ever been adjudicated delinquent for, or has ever been found not guilty by reason of insanity of, a violent or serious offense;

(b) in the past five years, has been convicted of an indictable crime other than a violent or serious offense; or

(c) is subject to a Final Order of Removal that has been signed by a federal judge and lodged with the county jail or state prison where the detainee is being held;

(7) continuing the detention of an individual past the time the individual would have been eligible for release from custody based solely on a civil immigration detainer request, unless the detainee:

(a) is currently charged with, has ever been convicted of, has ever been adjudicated delinquent for, or has ever been found not guilty by reason of insanity of, a violent or serious offense;

(b) in the past five years, has been convicted of an indictable crime other than a violent or serious offense; or

(c) is subject to a Final Order of Removal that has been signed by a federal judge and lodged with the county jail or state prison where the detainee is being held.

b. Nothing in subsection a. of this section shall be construed to restrict, prohibit, or in any way prevent a State, county, or local law enforcement agency or official from:

(1) enforcing the criminal laws of this State;

(2) complying with all applicable federal, State, and local laws;

(3) complying with a valid judicial warrant or other court order, or responding to any request authorized by a valid judicial warrant or other court order;

(4) participating with federal authorities in a joint law enforcement taskforce the primary purpose of which is unrelated to federal civil immigration enforcement;

(5) requesting proof of identity from an individual during the course of an arrest or when legally justified during an investigative stop or detention;

(6) asking an arrested individual for information necessary to complete the required fields of the LIVESCAN database, or other law enforcement fingerprinting databases, including information about the arrestee’s place of birth and country of citizenship;

(7) inquiring about a person’s place of birth on a correctional facility intake form and making risk-based classification assignments in such facilities;

(8) providing federal immigration authorities with information that is publicly available or readily available to the public in the method the public can obtain it;

(9) when required by exigent circumstances, providing federal immigration authorities with aid or assistance, including access to non-public information, equipment, or resources; or

(10) sending to, maintaining, or receiving from federal immigration authorities information regarding the citizenship or immigration status of any individual.

c. No State, county, or local law enforcement authority shall enter into, modify, renew, or extend any agreement to exercise federal authority pursuant to any federal law and they shall not exercise any law enforcement authority pursuant to any preexisting agreement unless expressly authorized by law or as permitted by the Attorney General.

d. Nothing in subsection a. of this section shall apply to law enforcement agencies that are currently party to an Intergovernmental Service Agreement to detain individuals for civil immigration enforcement purposes when they are acting pursuant to such an agreement.

e. Within 180 days of the effective date of this act, the Office of the Attorney General shall prepare and disseminate guidance and training materials related to the provisions of this section, as well as the principles of the Anti-Commandeering Doctrine, to all State, county, or local law enforcement agencies.

f. All State, county, and local law enforcement agencies shall provide for the training of its officers and employees on the materials developed by the Office of the Attorney General and certify that all required officers and employees have completed the training within 180 days of receiving the training materials and on an annual basis thereafter. Any costs incurred by a county or local law enforcement agency for such training shall be reimbursed by the State.

g. The Attorney General may promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), necessary to effectuate the purposes of this section.

5. a. Notwithstanding any law, rule, or regulation to the contrary, whenever a State or local government entity, or an officer or employee of a State or local government entity, receives an order or request to cooperate, participate, or facilitate in any action being taken by the federal government, that request shall be immediately reported to the Office of the Attorney General and no action shall be taken by the State or local government entity, or any officer or employee of the State or local government entity, until approval to do so has been received from the Office of the Attorney General, unless otherwise ordered by a court of competent jurisdiction.