With disputes arising in several New Jersey counties over an attorney general directive placing limits on police cooperation with federal immigration agents, attention has turned to how potential litigation would play out in court.

In mid-July the Ocean County freeholders authorized their attorney to prepare a federal suit against the state over the so-called Immigrant Trust Directive. County officials have questioned the attorney general’s authority to issue a directive that, they believe, conflicts with federal law.

The state contends that its directive is intended to draw a clear line between enforcement of state laws by New Jersey’s law enforcement officers and enforcement of federal laws by federal immigration authorities. Attorney General Gurbir Grewal, who issued the directive, said drawing a line between local police and federal authorities is key to maintaining trust for local police in immigrant communities.

Grewal also faces a conflict with sheriffs in Monmouth and Cape May counties, where he has accused local sheriffs of violating the directive by renewing agreements to cooperate with U.S. Immigration and Customs Enforcement personnel.

The directive has also been the focus of a conflict with officials in Sussex County, where the freeholder board has voted to hold a referendum on whether the sheriff should cooperate with the state directive.

Ocean County hasn’t said when it might file its suit, but some area towns have already expressed interest in joining as co-plaintiffs, according to local reports. County Counsel John Sahradnik did not return a reporter’s call about the proposed suit.

In court, the case would likely revolve around issues of preemption, said Muzaffar Chishti, director of the Migration Policy Institute’s office at the New York University School of Law, who focuses on immigration law and policy.

Chishti noted that the U.S. Supreme Court determined in Arizona v. United States that portions of a local law requiring police to investigate citizens’ immigration statuses are preempted by federal law. But the Supreme Court did not rule on what Chishti called the second layer of preemption: whether a state law or policy preempts a local one. And that question is at the heart of the New Jersey controversy, he said.

Other courts that have ruled on that issue have been, “frankly, all over the case,” said Chishti. In California, the Trump administration and a group of counties challenged the state’s sanctuary law under federal statutes but was defeated at the U.S. Court of Appeals for the Ninth Circuit, he said. But the city of Huntington Beach challenged California’s sanctuary city law under state statutes and won based on a ruling that its city charter bars the state from imposing such a policy on it.

“We don’t know if the New Jersey Constitution speaks to this issue,” Chishti said. “I don’t know whether charters of counties or cities speak to this issue. If there is litigation, it will be determined on these principles: does the New Jersey Constitution allow the state to dictate the terms of the relationship between counties and cities to the state, or does it violate a charter provision?”

Robert Williams, a constitutional law specialist at Rutgers Law School in Camden, likewise said that a key question in any litigation over the New Jersey directive will be whether a county government, as a creation of the state, has standing to sue its parent. Courts have set limits on the authority of municipalities to sue the state, and counties are likely to face the same restrictions, because both municipalities and counties are created by the state, said Williams.

“Counties are often considered to be the creations of the state, the children of the state. In many states, the doctrine is they don’t have the ability to sue their parents. If that’s true, these suits won’t get off the ground,” Williams said.

Local governments enjoy popular support in New Jersey, but whether courts will take their side is hard to predict, Williams said.

“There is this very strong home rule attitude in New Jersey about municipalities, and in some sense about counties, but that’s a political attitude and not a legal attitude,” Williams said.

Other observers of the growing controversy over New Jersey immigration policy also focused on limits to the attorney general’s authority. State government veterans who asked not to be identified raised other questions about the dispute between state and local officials, such as: what penalty awaits any county sheriff who fails to abide by the attorney general’s directive?

While the attorney general has broad powers of oversight over police and county prosecutors, observers said it’s unclear whether the same level of oversight extends to county sheriffs.

ICE appears to have increased its enforcement activities in New Jersey in response to the state’s sanctuary directive, said Raymond Lahoud, an immigration lawyer with Norris McLaughlin in Bridgewater.

Lahoud also practices in Pennsylvania, which does not have a sanctuary state policy, and no such increase in immigration enforcement activity has been seen there, he said. But in New Jersey, manufacturing facilities, restaurants and landscaping companies have been hit with so-called I-9 audits, where they are directed to show that all of their workers have proper documentation, said Lahoud. Any workers who are deported as a result are a problem for employers, who are already shorthanded, he said.

Lahoud believes the main issue in any suit by Ocean County is whether the attorney general overstepped his legal authority with the directive. Ocean County is likely to argue that the directive limits its ability to protect the safety of its citizens, Lahoud said.

“I think there’s a certain argument that the state has overstepped its own boundaries,” Lahoud said.

The current maneuvers related to immigration are unfolding amid a shortage of laborers and farm workers in many areas, said Lahoud.

“I’m hoping all this leads to immigration reform, with a pathway to citizenship for people already in the U.S., and a change to more of a merit-based system, because we need workers,” Lahoud said.