Senior Freeze Would Chill Municipal Budgets



The League of Municipalities opposes SCR-120, and its companion measure, ACR-202, which would unfairly burden municipal budgets and most local property taxpaying citizens and businesses.

If approved by both Houses of the Legislature, in accordance with Constitutional requirements, and ratified by the voters at the November election, this proposal would amend the State Constitution to freeze property taxes on the primary residences of all homeowners who are 65 years of age and over.

Under the amendment, this property tax freeze would take effect once the homeowner turns 65 years of age or once the home is acquired by a person 65 years of age or over. If a homeowner is already 65 years of age or over at the start of the next year after the amendment is approved, the property tax freeze would take effect that year. A homeowner would have to apply each year to continue the property tax freeze. In the case of ownership by spouses, only one of the owners would have to meet the age and residency requirements in order to apply for the property tax freeze.

Currently, by statute and not by the Constitution, homeowners 65 years of age and over are responsible for paying property tax increases on their primary residences. Some of these homeowners are eligible for a reimbursement of their increased property tax payments, if they meet certain income requirements. This amendment would allow all homeowners 65 and over, regardless of income, to have their property taxes frozen, and would mean that homeowners currently receiving reimbursements for property tax increases no longer have to pay future increases up front.

The property tax freeze under this amendment would continue if the property is transferred to a surviving spouse who is 65 years of age or over, so long as the surviving spouse uses the property as their primary residence. The freeze would end upon the transfer of the property to any other owner or upon the property no longer being used as the primary residence of a qualifying owner, at which point the property would be subject to ordinary assessment and property taxation.

Because the proposal does not require the State to reimburse the homeowner’s municipality, we oppose SCR-120 and ACR-202.

The revenue denied as a result of the freeze would only burden the municipal budget. The school district and the county, as well as any special districts, would still be entitled to 100% of their levies. Unless amended to ensure State reimbursement of municipal losses, the revenue shortfall would be reflected in local purposes levy and subject to the 2% tax levy cap. The difference would need to be covered by all non-senior residents and by the business community in the municipality. It might also denigrate the quality of other municipal services, to ensure the municipality stays within the 2% property tax levy cap.

Respectfully, we must oppose SCR-120 and ACR-202.

Support A-4666/S-3080 and A-4667/S-3081, Affordable Housing


Update:  Click here to ask your State Legislators to support these bills.

The League supports both A-4666/S-3080 and A-4667/S-3081.   Both bills are a response to the current affordable housing impasses in the State and lack of a statewide housing policy and guidance for municipalities.

Because the Council on Affordable Housing (COAH) has been unable to adopt valid regulations since 1999, the New Jersey Supreme Court transferred jurisdiction over municipal compliance to the Courts.   As a result, in July 2015 over 300 municipalities sought to voluntarily comply by seeking declaratory judgement from the Court.     To date approximately 100 municipalities have reached settlements and some other municipalities are no longer under the Court’s jurisdiction.  We estimate that approximately 150 municipalities are either in or awaiting trial to determine their respective affordable housing obligation.     Each Court vicinage is proceeding independently, with different judges and different appointed experts making independent determinations.    The result has been a costly and disjointed process, which does not serve the interests of taxpayers or low income families.

Specifically A-4666 and S-3080 enact a moratorium on affordable litigation through December 31, 2017.   The bill would not impact any judgement or settlement issued or agreed to before the effective date of the Act.   Current litigation would be stayed until the moratorium expires.

A-4667 and S-3081 establishes the Affordable housing Obligation Study Commission.   This Commission would consist of 7 members, including:

  • the Executive Director of the Housing Mortgage Finance Agency (HMFA), ex officio;
  • an appointee of the Senate President;
  • an appointee of the Senate Minority Leader;
  • an appointee of the Speaker of the Assembly;
  • an appointee of the Assembly Minority Leader;
  • an appointee of the Governor, from a list submitted by the League of Municipalities; and,
  • an appointee of the Governor, from a list submitted by the Fair Share Housing Center.

The Commission will do the following:

(1)   Examine and study the history of affordable housing in New Jersey and how past practices at the State and local level have resulted in the State’s current legal framework.

(2)   Analyze past guidance from State agencies and advocacy groups to municipalities with respect to methods of satisfying existing and future affordable housing obligations to determine whether such guidance has been effective.

(3)   Analyze the actual and projected population increases in the State, the number of affordable housing units actually needed to serve the needs of residents.

(4)   Hold such public hearings and other activities as may be desirable, at the discretion of the commission, to ensure adequate public input into the preparation of a report.

(5)   Gather and disseminate such information on housing needs and strategies as may be useful for the work of the commission and informative to the public.

(6)   Prepare, adopt, and publish a report, not later than the 365th day next following the organization of the commission, that provides recommendations to municipalities regarding strategies which could be utilized to meet affordable housing obligations, and to State agencies on how best to assist municipalities in meeting affordable housing obligations.

Considering the extensive and ongoing expenditures of public financial resources in the Courts, passage of these common sense bills is critical.     The Legislature needs to step in and establish a reasonable and rational path forward for local governments, for taxpayers and for families in need of affordable housing.    These bills create the opportunity to do so in a timely fashion.

A-4666 and A-4667 are referenced to the Assembly Housing and Community Development Committee.   S-3080 and S-3081 are referenced to the Senate Community and Urban Affairs Committee.

Click here to ask your State Legislators to support these bills.


Michael F. Cerra, Assistant Executive Director,, 609-695-3481 x120.

Support A-2452, Restaurant Liquor License Bill Can Boost Main Street Business


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New Jersey municipalities looking to revitalize Downtowns and Main Streets could use some new tools. Thus, the League of Municipalities supports A-2452, which would create new liquor licenses for restaurants meeting certain criteria. There is no doubt that these licenses would represent an important economic development or redevelopment tool for many municipalities, and give an economic boost to neighborhood restaurants and to other businesses located in proximity to those establishments.

This bill creates a restricted restaurant license (R1) which permits the holder to sell any alcoholic beverages for consumption on the premises of certain restaurants.  In addition, the bill creates a restricted beer and wine license (R2) which permits the holder to sell only beer and wine by the bottle or can.  These licenses would only be available to restaurants that meet certain square footage requirements, and that maintain a full-service kitchen. The bill provides that alcoholic beverages could only be sold in connection with the service of food at a table by an employee of the restaurant. A license holder would be prohibited from providing a bar area for customers of the restaurant to congregate and consume alcoholic beverages.

The bill establishes a fee schedule for the initial issuance and annual renewal fee for the restricted restaurant license and restricted beer and wine license based on the square footage of the restaurant. The first $2,500 of the initial and renewal fee for the restricted restaurant license and the first $1250 of the fees for the restricted beer and wine license would be paid to the municipality where the restaurant is located, and if the restaurant is located within the boundaries of two or more municipalities, the fee is to be divided equally among those municipalities. The remainder of the fees would go to the Division of Taxation to be used solely for the purposes of offsetting the costs associated with issuing tax credits provided under the bill.   A-2452 provides for a OLS (Office of Legislative Services) certified compensation mechanism for any party that feels that they may have been adversely impacted by the enactment of of this bill After the Division of Taxation is reimbursed for costs associated with issuing tax credits, the full fee is to be paid to the municipality.  In addition, the bill requires licensees to pay to the Director of the Division of Alcoholic Beverage Control any applicable renewal fees that the holder of a plenary retail consumption license is required to pay under current law.

The bill imposes certain penalties on the holders of the restricted restaurant license or restricted beer and wine license who violate the law.  Any fine money collected is to be paid to the Director of the Division of Taxation to be used solely for the purposes of offsetting the costs associated with issuing tax credits provided under the bill.  After the Division of Taxation is reimbursed for up to 75 percent of the projected estimated cost associated with issuing tax credits, the full fee is to be paid to the municipality.

The League’s Liquor License Task Force carefully studied this proposal and recognized the benefits such licenses could provide to many municipalities throughout the State.  We also identified some problems in the bill.

Our paramount concern was that this legislation would preempt municipal discretion regarding the issuance of these new licenses. For instance, as introduced, the bill gives a ‘dry town’ the option to permit the issuance of ‘restricted restaurant licenses’ and/or ‘restricted beer and wine licenses.’ Specifically, only those municipalities are given the opportunity to opt into the program, via ordinance or resolution. No other municipalities have such an option. In fact, the bill states, “The governing board or body of the municipality shall not limit the number of … (such licenses) …within the municipality …”

From our perspective, A-2452 needed to be amended to allow locally elected and locally responsive governing bodies to determine whether the issuance of these new licenses will benefit their local businesses and their neighbors and constituents. Issuance of these licenses should be restricted to municipalities that, by ordinance, authorize such licenses.

Assemblyman (and former Mayor) John Burzichelli, has indicated his willingness to accept many of our recommendations.   In particular, the Assemblyman agreed to our suggestion to allow an “opt-in” provision for all municipalities.  We sincerely appreciate his eagerness to involve us in discussions on the bill and to consider our concerns.

We have no doubt that a significant number of municipalities, if given the opportunity, would take affirmative action to make such licenses available to local restaurateurs. The bill is referenced to the Assembly Regulatory Oversight Committee, which held a “for discussion purposes only”  hearing on February 27.  We hope to see the bill advance soon.

We suggest contacting your Assembly representatives and ask for their support of A-2452.

Click here to see the NJTV segment on this bill.


S-690 Will Increase Costs of Consolidation



UPDATE:   On May 1, Governor Christie conditionally vetoed S690,  removing the language objected to by the League.   We urge the Legislature to concur with the Governor’s recommendations on this bill.  With those changes, it will eliminate obstacles, and it can actually encourage cost-saving service sharing and consolidations

The CV is available here:


We often hear that, “government should run more like business.”      The meaning is clear:  the public sector is bureaucratic and inefficient and citizens would be better served, if public policy makers would try to replicate success stories from the private sector.   This argument is often made by those who advocate for consolidation (sometimes voluntary, sometimes not) of local governments.

The comparison is far from perfect.    Governments are not producing widgets but rather providing order, justice, civil rights and essential services to taxpayers, in as a cost effective and efficient manner as possible.     There are certainly lessons that the public sector can learn from the private sector, when applicable, and vice versa.    The savings, however, that can be achieved through consolidation are often over-stated, as demonstrated by the November 2014 report issued by the Bloustein Local Government Research Center at Rutgers , “Size May Not Be the Issue.”     The results of that study raise serious doubts about the ‘conventional wisdom,’ which is based on the questionable assertion that New Jersey has ‘too many’ local governments, and leaps from that ‘truism’ to the equally arbitrary conclusion that significant savings can always be realized by the consolidation of municipalities.

That’s what comes to mind when reading a bill that now sits on Governor Christie’s desk, S-690.     The sponsors claim that the bill is intended to increase flexibility and provide new tools that would be available to municipalities considering consolidation. In its current form, the bill will actually limit local flexibility, increase consolidation costs and, thereby, discourage future consolidations.

The League opposes the bill in its current format and has requested the Governor to either veto or conditionally veto the legislation.    The Governor pocket vetoed identical legislation last session.

The League supported a prior version of this initiative (S-2679, First Reprint, dated December 12, 2013), when the Senate sponsor accepted our suggested amendments. Those changes restored the requirement that a voter referendum is required for the approval of a proposed consolidation plan; restored the requirement that a State agency, in making decisions concerning consolidation, must take into account local conditions, the reasonableness of proposed decisions, and the facilitation of the consolidation process; and restored the requirement that the Department of Community Affairs prepare a fiscal study of a consolidation. Those amendments were designed to ensure better informed voter participation in the process. Based on those amendments, we supported the bill.

But subsequent Assembly Floor amendments, adopted June 25, 2015 (see S-316, Third Reprint) actually limit local flexibility, increase consolidation costs and, thereby, discourage future consolidations. Those provisions, which are now found at Sections 3.e., f., and g. of the bill, grant tenure, continued employment and terminal leave rights to select employees of consolidating municipalities.

Based on the inclusion of those cost-drivers in the bill, the League expressed strong opposition to passage of S-690.

Contrary to what certain advocacy organizations claim, the League does not oppose consolidation.   Local officials should be provided with any and all tools to enact cost efficiencies, not be burdened with unnecessary costs drivers.  That’s one lesson to be learned from the private sector.

Local governments should be enabled to achieve these efficiencies voluntarily and with the full consent and participation of the ’share-holders’, i.e. property taxpayers.    Ultimately it’s our taxpayers who need to make the call.   To some that’s defending the status quo.   To us, it’s common sense.

The Governor has until May 1 to sign, veto or conditional veto the legislation.


Jon Moran, Senior Legislative Analyst, , 609-695-3481 x121.

Michael Cerra, Assistant Executive Director, , 609-695-3481 x120.



PFRS Amended Pension Bill Unanimously Passes the Senate



On Monday, March 13th, the Senate amended S-3040 on the floor, by an emergency, and then passed the amended bill unanimously.

One of the amendments will require the Board, at the end of 6 years, to conduct a review of the performance and funding levels of the retirement system, as compared to available market data, including, but not limited to, the performance of the State Investment Council and Division of Investment and the Bloomberg Barclay Indices.  Based on the review, by a majority vote, the Board may petition the Legislature to consider legislation that revert control of the pension system back to the Department of Treasury.

The other amendments, which address some issues raised by the League, include:

  1. Reduces the number of meetings a Board member can miss from 1/2 of the scheduled meetings to 3 meetings.
  1. Requires the Board to establish standards to define “unexcused absences”.
  1. Permits Board members to participate in meetings by teleconference.
  1. Establish minimum standards for Executive Director and Chief Investment Officer:
  1. Bachelor’s degree from an accredited college.
  2. 5 years of management experience in accounting, finance, public administration, government pension and retirement planning, investment banking, financial consulting, money management, or similar field.
  1. Permits the Board to establish additional qualifications for Executive Director and Chief Investment Officers.
  1. Prohibits any member, retiree, or other beneficiary of the system from holding the position of the Executive Director or Chief Investment Officer.
  1. Requires a minimum 8 votes of the board for:
  1. any enhancement or reduction of member benefits.
  2. approve any increase or decrease in employer contribution that is more than what is recommended by actuary for the system for the purpose of the annual funding requirement for the system.

This provision does not apply to activation of application for retirees pursuant to N.J.S.A. 43:3B-1 et seq.

Changes the quarterly payment dates to March 1, June 1, September 1, and December 1.

While the amendments address many of the concerns we had with S-3040, the amendments did not address our main concern with the Board of Trustees composition of 7 labor representatives and 5 management representatives.

The PFRS is a defined benefit system, where the amount of the retirement pay is calculated on a formula considering factors including length of employment and salary history; not on the return of the funds’ investments.  As a result if there is a shortfall in a return from investments the employers (in this case municipalities and counties) must make up the difference from their general funds.  At present time, local government employers are contributing 25.51% while the employee is contributing 10% to the PFRS. Therefore, the board should be comprised of an equal number of labor and management representatives with one independent member for an uneven number of members.  Otherwise, S-3040 creates a system where the employees retain all the control while the employers, which ultimately are our property taxpayers, assume the greater contribution risk.

In addition, S-3040 still continues to include a provision of withholding State Aid for non-payment of the employer contributions.  Local government employers have consistently made their pension payments and other safeguards exist that would prevent a local government employer from skipping a payment, such as Division of Local Government Services approval of local government budgets.  This provision is simply unnecessary and should be removed.

It is anticipated that an Assembly companion will be introduced as soon as Thursday  (March 16) but it is not known when the Assembly will act.

Ultimately, the League, as well as our partners with the  New Jersey Association of Counties,  share the same objective as the public safety unions, that is to secure the local PFRS system.   Thus, we look forward to continuing our dialogue with the public safety unions and we believe that we are close to developing a consensus on some specific aspects of the proposal we believe could be improved.


Lori Buckelew, Sr. Legislative Analyst, 609-695-3481 x112,

Michael Cerra, Asst. Executive Director, 609-695-3481 x120,


Legislation to Transfer Management of PFRS to Board of Trustees of PFRS


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Earlier this week, Senate President Sweeney introduced S-3040, which would transfer the management of the Police and Fire Retirement System (PFRS) to a Board of Trustees comprised of Labor and Management representatives.  The Board, acting exclusively on behalf of contributing employers, active and retired members, would have the general responsibility for the proper operation of the retirement system.

The Board may, in its discretion and at such time and a manner, as it determines:

  • Enhance any benefit set forth in N.J.S.A. 43:16A-1 et seq.; or
  • Modify any such benefit as an alternative to an increase in the member contribution rate; or
  • Reinstate, when appropriate, such reduced benefit to the statutory level without an additional contribution by the member.

The Board’s primary obligation would be to direct policies and investments to achieve and maintain the full funding and continuation of the retirement system for the exclusive benefit of its members.

This legislation was developed with input from the public safety unions.  Their concept was presented during a session of the 2016 League conference.  The League is currently reviewing the legislation, focusing on its impact on property taxpayers in both the near and the long term.  We plan to share our conclusions and concerns with the sponsor and look forward to cooperating with all concerned on a plan that protects the interest of our members; more analysis forthcoming.

Contact: Lori Buckelew, Senior Legislative Analyst,, 609-695-3481 ext. 112.

Governor Takes Action on Legislation


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The Governor recently took action on various pieces of legislation, including the following:

  • The Governor conditionally vetoed A-4189/S-2670, regarding Urban Enterprise Zones (UEZs).  This bill would have extended, for two years, UEZ authorization in municipalities where the program was scheduled to sunset at the end of 2016. (Those municipalities are Bridgeton, Camden, Newark, Plainfield and Trenton.)  The remaining zones do not expire for a number of years.   While this bill is a conditional veto, it is effectively a veto since the Governor struck the language that would have extended these 5 zones on a short term basis.    We do not expect the Legislature to act on the Governor’s recommendations.

The Governor also signed the following bills into law:

  • PL. 2017, c. 16 requires that the annual notice of assessment on property to contain bolded notice of filing deadline for appeal.  This legislation took effect on February 10, 2017.
  • PL. 2017, c.19 requires the Department of Community Affairs to establish rules and regulations to provide affordable housing preference to homeless veterans, disabled veterans and family members who are the primary caregiver to disabled veterans residing with them, in a municipal or county housing authority project.   All applicants for the housing preference will also be required to meet the income requirements for admission to the housing project.  Priority for the preference will be given to applicants as follows: (1) homeless veterans shall receive first priority; (2) disabled veterans shall receive second priority; and (3) family members who are the primary residential caregivers to disabled veterans residing with them shall receive third priority.  This legislation will take effect May 1, 2017.
  • PL. 2017, c. 21 permits local units to enter into a shared service agreement with a federal military base for services that the local unit involved in the agreement is empowered to provide those services within its own jurisdiction.  Also the services must be permitted by 10 U.S.C. s.2679.  The law shall not be construed to impact existing Federal or State civil service laws and if there is a conflict regarding the content and duration of such agreements, federal law will control.  The League supported this legislation that took effect on February 10, 2017.
  • PL. 2017, c. 26 which preempts municipal regulation of some taxi services such as Uber and Lyft.   This new law unnecessarily exempts ride for hire services from local regulation. We had asked the Governor to conditionally veto the bill, so as to delete Section 26.
  • PL. 2017, c. 28 which requires health insurance carriers, and the State Health Benefits Program and the School Employees’ Health Benefits Program, to adhere to certain coverage requirements for treatment of substance use disorders.  The bill also places certain restrictions on the prescription of opioids, and requires certain notifications when prescribing Schedule II controlled dangerous substances used to treat chronic or acute pain.  The bill also requires certain health care professionals to receive training on topics related to prescription opioid drugs.


Michael Cerra, Assistant Executive Director,, 609-695-3481 x120;

Jon Moran, Senior Legislative Analyst,, 609-695-3481 x121;

Lori Buckelew, Senior Legislative Analyst,, 609- 695-3481, x112.

Action needed to address ‘bono fide severance of employment’ problem

During Wednesday’s Mayors’ Day session, Alpine Mayor Paul Tomasko asked State Legislative leaders about a matter that is important to municipalities all around our State. It involves the ability of retired public employees to continue to serve their fellow citizens, in volunteer capacities.

In 2014, the State’s Division of Pension and Benefits issued guidance on post retirement employment restrictions for public employees.  The guidance noted that there must be a “bona fide severance of employment”, a complete termination of the employee’s employment relationship with the employer for a period of at least 180 days, in order not to jeopardize the employee’s retirement benefits.  The Division considers re-employment by a different unit of the same public entity, whether the position is covered by the same retirement system or a different retirement system, to be employment by the same employer. If an employee holds more than one position with the employer they must separate from all employment in order to retire, even if the positions are covered by different retirement systems, or the second position is not subject to pension contributions.

If an individual returns to public employment with the former employer, even as a volunteer,  prior to satisfying the requirements of a bona fide severance from employment, the employee will be required to repay all retirement benefits received from the date of retirement and may be required to re-enroll in the same or different retirement system.  As a result, volunteer firefighters and first aid members, and volunteer parade, event or celebration committee members or volunteers serving the PTA, to name a few; who were also public employees, have been required to resign from their volunteer position in order to receive their retirement benefits.

Volunteers are the backbone of communities providing services to the residents at no cost to taxpayers while freely giving of their time and expertise.  Employees affected by the Division of Pensions ruling generally are at least 55 years of age. In their volunteer positions, they often serve as mentors to the new and younger members, typically providing guidance and direction.

While well intended the Division of Pensions has created an unintended consequence which, if not changed, will impact every public employee who volunteers in the state and will not only drive up property taxes, but would also reduce the quality and level of essential public services.

In November, 2014, the League of Municipalities adopted a Resolution, urging action to direct the Division of Pension and Benefits to permit retirees and local elected officials to continue as volunteers, without impact to their retirement, and to not require the complete 180 day separation from volunteer service.

In response, two pairs of companion bills have been introduced.

Last year, the State Senate unanimously passed S-2107 (companion to A-536), which would permit a person with a pre-existing volunteer relationship as a firefighter or first aid with their employer to retire from service covered by PERS or PFRS and continue to serve that employer as a volunteer.  We support this bill, which would address part of the problem.

Other legislation, however, goes all the way in resolving the problems created by the Division of Pensions’ ruling on ‘bono fide severance.’

A-3223/S-2446 would allow public employees in state-administered retirement systems who continue any preexisting volunteer relationships with employers from whom they retire, to continue to volunteer for their prior employers without jeopardizing their pensions.  Legally speaking, this bill would clarify that such a relationship does not vitiate a bona fide retirement.

S-2107, A-536 and A-3223 all await action in the Assembly State and Local Government Committee. S-2446 has been referred to the Senate State Government, Wagering, Tourism and Historic Preservation Committee.

We commend the sponsors of these bills and would urge action to remedy the problem, once and for all.

Contact:  Mike Cerra, Asst. Executive Director, or 609-695-3481 x120.

Executive Order on Sanctuary Cities/Immigration Enforcement


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On January 25 President Donald Trump issued an Executive Order on “Enhancing Public Safety in the Interior of the United States.”  The Executive Order takes steps to “ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed.”

That same day, the National League of Cities (NLC), the national affiliate of the League, hosted a conference call with most State League executive directors and NLC staff to identify concerns and questions with the Executive Order.  It is unclear if there is a new affirmative obligation to provide local law enforcement personnel to conduct immigration investigations, which potentially creates an unfunded mandate.  It is also unclear what is considered to be a sanctuary jurisdiction.  It appears they are reinstating the Secure Cities program but it is further unclear whether participation will continue to be voluntary or mandatory.  There is uncertainty regarding what federal funds and how much federal funds are at stake.  It is also unclear regarding the impact on previous legally declared sanctuary jurisdiction.

NLC will engage with the administration to get answers and clarification on the executive order on various outstanding questions and concerns with the Executive Order.   As we learn more detail we will continue to advise you.

The Executive Order:

  • Gives the Secretary of Homeland Security (Secretary) up to 1 year to issue rules and guidance to ensure the assessment and collection of all fines and penalties from individuals unlawfully in the country and from those who facilitate their presence;
  • Directs the Secretary to engage with Governors as well as local officials to enter into section 287(g) agreements, which allows the US Immigration and Customs Enforcement (ICE) to enter into agreements with state and local law enforcement agencies and train officers to carry out immigration law enforcement functions;
  • Instructs the Secretary, with the consent of local officials, as appropriate, to take appropriate action to authorize State and local law enforcement officials to perform the functions of immigration officers in relation to the investigation, apprehension, or detentions of individuals illegally in the United States;
  • States that any agreement structured by the Secretary shall ensure that any jurisdiction that fails to comply with applicable federal law does not receive Federal funds, except as mandated by law;
  • Requires the Secretary to prioritize removal of individuals illegally in the United States based on federal statute;
  • Obliges the Attorney General and the Secretary to ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373, which states that a Federal, State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual;
  • Directs the Secretary to hire 10,000 additional immigration officers;
  • Requires the Secretary to weekly make public a comprehensive list of criminal actions committed by individuals illegally in the United States and any jurisdiction that ignored or otherwise failed to honor any detainers;
  • Directs the Office of Management and Budget to obtain and provide relevant and responsive information on all Federal grant money that is currently received by any sanctuary jurisdiction;
  • Directs the Attorney General and the Secretary to develop and implement a program to ensure that adequate resources are devoted to the prosecution of criminal immigration offense in the United States;
  • Directs the Secretary to establish within ICE an office to provide proactive, timely, adequate, and professional services to victims of crime committed by removable individuals illegally in the United States and requires quarterly reporting studying the effects of victimization by criminals illegally in the United States;
  • Requires the Attorney General and the Secretary to submit a 90 day report and 180 report on the progress of the directives under the Executive Order.

Depending on how the Executive Order is implemented, the Order could raise Constitutional concerns.

In 1984, the United States Congress passed the National Minimum Drinking Age Act, which withheld 5% of federal highway funding from states that did not maintain a minimum legal drinking age of 21. South Dakota, which allowed 19-year-olds to purchase beer containing up to 3.2% alcohol, challenged the law, naming Secretary of Transportation Elizabeth Dole as the defendant.

In its 1987 decision, the Supreme Court held that the statute represented a valid use of Congressional authority under the Spending Clause and that the statute did not infringe upon the rights of the states. The Court established a five-point rule for considering the constitutionality of expenditure cuts of this type:

  1. The spending must promote “the general welfare.”
  2. The condition must be unambiguous.
  3. The condition should relate “to the federal interest in particular national projects or programs.”
  4. The condition imposed on the states must not, in itself, be unconstitutional.
  5. The condition must not be coercive.

Writing for the majority, Chief Justice William Rehnquist wrote that the Congress did not violate the Tenth Amendment because it merely exercised its right to control its spending. Rehnquist wrote that the Congress did not coerce the states because it cut only a small percentage of federal funding. It thus applied pressure but not irresistible pressure.

And more recently, in NFIB v. Sibelius (2012), Chief Justice Roberts famously described the federal government’s plan to withhold all Medicaid funding, if states refused to agree to the Obamacare Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose over 10 percent of their overall budget by not agreeing to the Medicaid expansion. Many sanctuary jurisdictions would stand to lose that percent of their budget—and more—if they lost all federal dollars.

NLC will engage with the administration to get answers and clarification on various outstanding questions and concerns with the Executive Order.   As we learn more details we will continue to advise you.


Michael Cerra, Assistant Executive Director,, 609-695-3481 x120.