sb1070 supreme court filing

8/6/2019 SB1070 Supreme Court filing

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QUESTION PRESENTED

Arizona enacted the Support Our Law Enforce-ment and Safe Neighborhoods Act (S.B. 1070) toaddress the illegal immigration crisis in the State.The four provisions of S.B. 1070 enjoined by thecourts below authorize and direct state law-enforcement officers to cooperate and communicatewith federal officials regarding the enforcement of federal immigration law and impose penalties understate law for non-compliance with federal immigra-

tion requirements.

The question presented is whether the federal im-migration laws preclude Arizonas efforts at coopera-tive law enforcement and impliedly preempt thesefour provisions of S.B. 1070 on their face.


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PARTIES TO THE PROCEEDINGS Petitioners, the State of Arizona and Governor

Janice K. Brewer, were the appellants in the courtbelow. Respondent, the United States, was theappellee in the court below.


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TABLE OF CONTENTS Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 4

A. FEDERAL IMMIGRATION LAW. ................... .4

B. ARIZONAS S.B. 1070. ...................................... .8

C. PROCEEDINGS BELOW. .............................. .10

REASONS FOR GRANTING THE PETITION ....... 16I. ARIZONAS AUTHORITY TO

ENACT S.B. 1070 IS A MATTEROF PRESSING IMPORTANCE. ............... .19

II. THE DECISION BELOW CREATES A SPLIT AMONG THE COURTSOF APPEALS ................................................ 24

III. THE NINTH CIRCUITSDECISION IS WRONG AND

CONFLICTS WITH THIS COURTSPRECEDENTS .............................................. 29


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A. THE PANEL MAJORITY MISAPPLIED THIS COURTSPRECEDENTS CONCERNINGFACIAL CHALLENGES ............................. .30

B. THE NINTH CIRCUITSDECISION CONFLICTS WITHTHIS COURTS IMMIGRATIONPREEMPTION DECISIONS ....................... .32

C. THE NINTH CIRCUITS

DECISION CONFLICTS WITHTHIS COURTS PREEMPTIONPRECEDENTS ............................................. .34

D. THE NINTH CIRCUITSFOREIGN-AFFAIRS PREEMP-TION ANALYSIS IS ERRONEOUS ........... .39

CONCLUSION .......................................................... 41

APPENDICES

Appendix A:

Opinion of the United States Courtof Appeals for the Ninth Circuit(April 11, 2011) .............................................. 1a

Appendix B:

Order of the United States DistrictCourt for the District of Arizona (Ju-ly 28, 2010) ................................................ 116a


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Appendix C:

Respondents Complaint ........................... 170a

Appendix D:

Order granting extension of time tofile petition for certiorari (June 30,2011) .......................................................... 205a

Appendix E:

Relevant Federal Statutes ........................ 206a

Appendix F:Relevant Arizona Statutes ........................ 239a


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TABLE OF AUTHORITIESPage

Cases

Altria Group, Inc. v. Good , 129 S. Ct.538 (2008) .................................................. 38

Barclays Bank PLC v. Franchise Tax Board of California , 512 U.S. 298(1994) ........................................................ 39, 40

Buquer v. City of Indianapolis , No. 1:11-cv-708-SEB-MJD (S.D. Ind. 2011). .......... 23

California Coastal Commission v.Granite Rock Co. , 480 U.S. 572 (1987) .... 30

Chamber of Commerce of United Statesv. Whiting , 131 S. Ct. 1968 (2011) ........... 4, 32,

33, 34Crosby v. National Foreign Trade

Council , 530 U.S. 363 (2000) .................... 40 De Canas v. Bica , 424 U. S. 351 (1976) ...... 4Estrada v. Rhode Island , 594 F.3d 56

(1st Cir. 2010) ........................................... 27

Geier v. American Honda Motor Co. , 529U.S. 861 (2000) ......................................... 38Georgia Latino Alliance for Human

Rights v. Deal , No. 1:11-cv-1804-TWT (N.D. Ga.). ................................................. 23

Haywood v. Drown , 129 S. Ct. 2108(2009) ........................................................ 29

Hines v. Davidowitz , 312 U.S. 52 (1941). ... 30Hispanic Interest Coalition of Alabama

v. Bentley , No. 5:11-cv-02484-SLB(N.D. Ala.). ................................................ 24


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INS v. National Center for Immigrants Rights, 502 U.S. 183 (1991) ...................... 12, 13

Lynch v. Cannatella , 810 F.2d 1363 (5 th Cir. 1987) .................................................. 27

Medtronic, Inc. v. Lohr , 518 U.S. 470(1996) ........................................................ 35, 38

Muehler v. Mena , 544 U.S. 93 (2005) .......... 15, 28National Center for Immigrants Rights,

Inc. v. INS , 913 F.2d 1350 (9th Cir.1990) .......................................................... 12

Parsley v. Bentley , No. 5:11-cv-02736(N.D. Ala.) ................................................. 24

Plyler v. Doe , 457 U.S. 202 (1982) ............... 30Riegel v. Medtronic, Inc. , 552 U.S. 312

(2008) ........................................................ 38Silkwood v. Kerr-McGee Corp. , 464 U.S.

238 (1984) .................................................. 38United States v. Di Re , 332 U.S. 581

(1948) ........................................................ 30United States v. Rodriguez-Arreola , 270

F.3d 611 (8th Cir. 2001) ........................... 27

United States v. Salerno , 481 U.S. 739(1987) ........................................................ 10, 30

United States v. Salinas-Calderon , 728F.2d 1298 (10th Cir. 1984) ....................... 26

United States v. Santana-Garcia , 264F.3d 1188 (10th Cir. 2001) ....................... 26

United States v. Soriano-Jarquin , 492F.3d 495 (4 th Cir. 2007) ............................ 27

United States v. Soto-Cervantes , 138F.3d 1319 (10th Cir. 1998) ....................... 26


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United States v. State of Alabama ,No.2:11-cv-02746-WMA (N.D. Ala.) ......... 24

United States v. Urrieta , 520 F.3d 569(6th Cir. 2008) ........................................... 28

Utah Coalition of La Raza v. Herbert ,No. 2:11-cv-401 CW (D. Utah) .................. 24

Wyeth v. Levine , 129 S. Ct. 1187 (2009) ..... 35, 38

Statutes

8 U.S.C. 1101 et seq. ................................. 48 U.S.C. 1252c ........................................... passim

8 U.S.C. 1302 ............................................ 68 U.S.C. 1303 ............................................ 68 U.S.C. 1304 ............................................ 6, 9, 118 U.S.C. 1306 ............................................ 6, 9, 118 U.S.C. 1324 ............................................ 7, 12, 338 U.S.C. 1357 ............................................ passim 8 U.S.C. 1373 ............................................ 5, 6, 8,

11, 14, 368 U.S.C. 1644 ............................................ 6, 118 U.S.C. 1226 ............................................ 728 U.S.C. 1254(1). ..................................... 128 U.S.C. 1292 .......................................... 10

Ariz. Rev. Stat. 11-1051 ........................... 8 Ariz. Rev. Stat. 13-1509 ........................... 9 Ariz. Rev. Stat. 13-2928(C) ...................... 9 Ariz. Rev. Stat. 13-3883(A)(5) .................. 9Beason-Hammon Alabama Taxpayer

and Citizen Protection Act, 2011 Ala.Laws 535 ................................................... 22

Co. Rev. Stat. 29-29-103 ........................... 23Ga. Code 16-5-46 ....................................... 23


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Ga. Code 17-5-100 ..................................... 23Ga. Code 42-4-14 ....................................... 22H.B. 2162, 2010 Ariz. Sess. Laws ch. 211 .. 8Immigration Reform and Control Act,

100 Stat. 3359 (1986). ............................... 4Ind. Code 11-10-1-2 .................................. 22Ind. Code. 5-2-18.2 .................................... 23Mo. Rev. Stat. 577.680(1) ......................... 22Okla. Stat. tit. 21, 446 .............................. 23Okla. Stat. tit. 22 171.2 ............................ 22S.B. 1070, 2010 Ariz. Sess. Laws ch. 113 ... passim S.C. Code 16-9-460.................................... 23S.C. Code 17-13-170 .................................. 22S.C. Code 23-3-1100 .................................. 22S.C. Code 23-6-60 ..................................... 23Tenn Code. 40-7-123 ................................. 22Utah Code 17-22-9.5 ................................. 22, 23Utah Code 76-9-1003 ................................ 22Utah. Stat. Ann. 76-10-2701 .................... 23

Va. Code 19.2-81.6 .................................... 23

Other Authorities David W. Chen & Kareem Fahim ,

Immigration Checks Ordered in NewJersey , N.Y. Times , August 23, 2007 ....... 22

Jeffrey S. Passel and DVera Cohn,Unauthorized Immigrant Population:National and State Trends, 2010 , p. 15tbl.5. .......................................................... 20, 21

Majority Staff of the House Committeeon Homeland Security Subcommittee


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on Investigations, A Line in the Sand:Confronting the Threat at the South-west Border ............................................... 2

Monica Yancy, Our National Parks , May10, 2007 ..................................................... 19

Peter H. Schuck, Taking ImmigrationFederalism Seriously , 2007 U. Chi.L.F. 57, 80 (2007). ..................................... 19

Prince William County, Virginia PoliceDepartment General Order 45.01,Local Enforcement Response to IllegalImmigration . ............................................. 22

Ralph Blumenthal, Citing BorderViolence, 2 States Declare a Crisis ,N.Y. Times, Aug. 17, 2005. ....................... 3

Ralph Vartabedian, The Law Loses Outat U.S. Parks , L.A. Times, Jan. 23,2003. .......................................................... 19

U.S. Immigration and Customs En-forcement, Law Enforcement SupportCenter ........................................................ 6

White House Office of the PressSecretary, Remarks by PresidentObama and President Caldern of Mexico at Joint Press Availability , May19, 2010. .................................................... 24


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PETITION FOR A WRIT OF CERTIORARI

Petitioners, the State of Arizona and GovernorJanice K. Brewer, respectfully petition this Court fora writ of certiorari to review the judgment of theUnited States Court of Appeals for the Ninth Circuitin this case.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 641F.3d 339, and reproduced in the appendix hereto(App.) at 1a. The opinion of the District Court forthe District of Arizona is reported at 703 F. Supp. 2d980, and reproduced at App. 116a.

JURISDICTION

The judgment of the Ninth Circuit was entered on April 11, 2011. App. 1a. On June 30, 2011, JusticeKennedy extended the time for filing a petition forcertiorari to and including August 10, 2011. App.205a. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 8, Clause 4 of the Constitutionprovides that Congress shall have power To estab-lish an uniform Rule of Naturalization.

Article VI, Clause 2, of the Constitution providesthat This Constitution, and the Laws of the UnitedStates which shall be made in Pursuance thereof . . .

shall be the supreme Law of the Land . . . .


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The Tenth Amendment to the Constitution pro-vides that The powers not delegated to the UnitedStates by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or tothe people.

Pertinent provisions of Title 8 of the United StatesCode and of the Arizona Revised Statutes are repro-duced in the Appendix.

INTRODUCTION

Arizona bears the brunt of the problems caused byillegal immigration. It is the gateway for nearly half of the nations illegal border crossings. 9th Cir.Excerpts of Record (ER) 380. Unlawful entrantsinclude criminals evading prosecution in their homecountries and members of Mexican drug cartels organizations the federal government has characte-rized as more sophisticated and dangerous than anyother organized criminal enterprise. 1 Beyond theobvious safety issues, the fiscal burdens imposed bythe disproportionate impact of illegal immigration on

Arizona are daunting. Arizona spends severalhundred million dollars each year incarceratingcriminal aliens and providing education and health-care to aliens who entered and reside in the countryin violation of federal law. ER 429. By 2005, the

1 Majority Staff of the House Committee on Homeland SecuritySubcommittee on Investigations A Line in the Sand: Confront-ing the Threat at the Southwest Border , http://www.house.gov/sites/members/tx10_mccaul/pdf/Investigations-Border-Report.pdf


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illegal immigration problem was so severe that then-Governor Janet Napolitano (currently the Secretaryof Homeland Security) declared a state of emergencyin Arizona. 2 Arizona has repeatedly asked thefederal government for more vigorous enforcement of the federal immigration laws, but to no avail.

To address the unique and disproportionate impactof illegal immigration on Arizona, Governor Brewersigned the Support Our Law Enforcement and SafeNeighborhoods Act (S.B. 1070) on April 29, 2010.

S.B. 1070, as amended, aims to ensure more effectiveenforcement of the federal immigration laws in

Arizona, consistent with the requirements of federallaw and the U.S. Constitution. Arizona was acutelyaware of the need to respect federal authority overimmigration-related matters. The legislation autho-rizes cooperative law enforcement and imposessanctions that consciously parallel federal law.Despite that effort, the United States took the ex-traordinary step of initiating a suit to enjoin the lawon its face before it ever took effect. That extraordi-nary federal effort to enjoin a duly enacted state lawunderscores the importance of this case. Moreover,the Ninth Circuit opinion enjoining four crucialprovisions of Arizonas law creates an express splitamong the Courts of Appeals on an issue of vitalimportance, casts constitutional doubt on dozens of

2 Ralph Blumenthal, Citing Border Violence, 2 States Declare aCrisis , N.Y. Times, Aug. 17, 2005, http://query.nytimes.com/gst/fullpage.html?res=9C0CE2DF133EF934A2575BC0A9639C8B63&pagewanted=all.


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statutes enacted by other States, and conflicts withthis Courts precedents in several respects. ThisCourts review is clearly warranted.

STATEMENT OF THE CASE

A. Federal Immigration Law

The federal immigration laws expressly contem-plate and authorize cooperative law enforcementefforts between federal and state officials. Indeed,they mandate federal cooperation with state andlocal efforts to ascertain individuals immigrationstatus.

The principal federal statute dealing with immi-gration is the Immigration and Nationality Act, 8U.S.C. 1101 et seq. (the INA), which has beenamended on numerous occasions, including by theImmigration Reform and Control Act, 100 Stat. 3359(IRCA), which addressed the employment of aliensin the United States. The INA set the terms andconditions of admission to the country and thesubsequent treatment of aliens lawfully in the

country. Chamber of Commerce of United States v.Whiting , 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas v. Bica , 424 U.S. 351, 359 (1976)). IRCA addressed the employment of aliens not authorizedto work, a field the original INA had largely left tothe States. See Whiting , 131 S. Ct. at 1974-75.

The INA both expressly authorizes specific cooper-ative law enforcement and acknowledges that suchcooperative efforts do not require express federalstatutory authorization. In particular, the INA


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includes provisions to deputize state officials toperform the functions of federal immigration officers.8 U.S.C. 1357(g)(1)-(9). But it also includes asavings clause underscoring that this specific autho-rization neither excludes other cooperative effortsnor suggests that federal statutory authorization isnecessary for state and local officials to assist in theenforcement of federal immigration laws. 1357(g)(9)-(10). Subsection 1357(g)(10) specificallyprovides that

[n]othing in this subsection shall be construedto require an agreement under this subsectionin order for any officer or employee of a State orpolitical subdivision of a State (A) to communi-cate with the Attorney General regarding theimmigration status of any individual . . . ; or (B)otherwise to cooperate with the Attorney Gen-eral in the identification, apprehension, deten-tion, or removal of aliens not lawfully presentin the United States.

Another provision, 8 U.S.C. 1373(c), mandatesfederal officials to respond to inquiries generated bystate and local law enforcement. That section pro-vides that federal authorities shall respond to aninquiry by a Federal, State, or local governmentagency, seeking to verify or ascertain the citizenshipor immigration status of any individual within the

jurisdiction of the agency for any purpose authorizedby law, by providing the requested verification orstatus information. And 1373(a) prohibits anyrestriction on the authority of state and local gov-


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ernments to send to or receive from the Immigra-tion and Naturalization Service information regard-ing the immigration status, lawful or unlawful, of analien in the United States. See also 1373(b),1644. In order to fulfill these statutory mandates, formore than a decade the federal government hasmaintained a Law Enforcement Support Center(LESC), a 24-hour-a-day, 365-day-per-year centra-lized database and response service, which providestimely customs information and immigration statusand identity information and real-time assistance tolocal, state and federal law enforcement agencies onaliens suspected, arrested or convicted of criminalactivity. 3

The INA also requires every alien present in theUnited States for longer than 30 days (except forforeign diplomats and members of their households,see 8 U.S.C. 1303(b)) to apply for registrationdocuments verifying their lawful status, and to carrythose documents at all times. 8 U.S.C. 1302.

Failure to apply is a federal misdemeanor punisha-ble by up to six months imprisonment and a $1000fine, 1306(a), and failure to carry the registrationdocuments is a misdemeanor punishable by up to 30days imprisonment and a $100 fine. 1304(e).

The INA authorizes the Attorney General to inves-tigate, apprehend and detain removable aliens.

3 U.S. Immigration and Customs Enforcement, Law Enforce-ment Support Center , www.ice.gov/lesc/.


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8 U.S.C. 1226, 1357. Federal law is largely silentregarding state enforcement authority in this regard,but 8 U.S.C. 1252c expressly authorizes state andlocal officials, if acting with confirmation from theINS, to arrest unlawfully-present aliens who havereentered the country after leaving or being deportedfollowing the commission of a felony.

IRCA addresses the problem of the unlawful em-ployment of illegal immigrants from the demandside. It prohibits employers from hiring or employ-

ing aliens who are not authorized to work. 8 U.S.C. 1324a(a) & 1324a(e)(4). IRCA also requiresemployers to follow certain employment-authorization verification procedures, see 1324a(b),compliance with which provides an affirmativedefense to the hiring of an unauthorized alien, 1324a(a)(3). IRCA permits the use of these verifica-tion documents for the enforcement of federal work-authorization law, or federal perjury and similarlaws, but prohibits their use for other purposes. 1324a(b)(5) & (d)(2)(F). IRCA contains an expresspreemption provision, 1324(h)(2):

The provisions of this section preempt any Stateor local law imposing civil or criminal sanctions(other than through licensing and similar laws)upon those who employ, or recruit or refer for afee for employment, unauthorized aliens.

IRCA does not address unlawful employment on thesupply side, i.e. , by imposing sanctions on illegalimmigrants who seek and obtain work in violation of


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federal law, and IRCAs preemption provision doesnot reach such state laws.

B. Arizonas S.B. 1070

S.B. 1070 was signed by Governor Brewer on April23, 2010, and was clarified and revised a week laterby Arizona H.B. 2162, 2010 Ariz. Sess. Laws ch. 211.The statute reflects a comprehensive effort to dealwith the disproportionate impact of illegal immigra-tion on Arizona. While the United States initially

sought to enjoin numerous sections of S.B. 1070, itwas only successful in enjoining the four provisionsat issue here: Sections 2(B), 3, 5(C), and 6.

Section 2, Ariz. Rev. Stat. 11-1051, is designed tofacilitate communications between federal, state andlocal officials regarding potential violations of thefederal immigration laws. Section 2(B) provides that[f]or any lawful stop, detention or arrest made by

Arizona law enforcement, where reasonable suspi-cion exists that the person is an alien and is unlaw-fully present in the United States, a reasonableattempt shall be made, when practicable, to deter-mine the immigration status of the person. Section2(B) further provides that [a]ny person who isarrested shall have the persons immigration statusdetermined, i.e. , verified by the federal governmentpursuant to 8 U.S.C. 1373(c), before the person isreleased. Section 2 must be implemented in amanner consistent with federal laws regulatingimmigration, protecting the civil rights of all persons


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and respecting the privileges and immunities of United States citizens. 2(L).

Section 3, Ariz. Rev. Stat. 13-1509, reinforces thefederal alien registration laws by providing that [i]naddition to any violation of federal law, a person isguilty of willful failure to complete or carry an alienregistration document if the person is in violation of 8 [U.S.C. ] 1304(e) or 1306(a). 3(A). Subsection3(H) imposes the same maximum penalties forviolations of subsection (A) that Congress has im-

posed for violations of 8 U.S.C. 1304(e), which inturn are less than the penalties for violations of 1306(a). The only substantive difference betweenSection 3 and the federal statutes is that Section 3has no application at all to persons authorized to bein the United States. 3(F).

Section 5(C) of S.B. 1070, Ariz Rev. Stat. 13-2928(C), reinforces the federal prohibitions on unau-thorized employment directed to the demand side of employers by addressing the supply side of would-be

employees. That provision makes it a misdemeanorunder Arizona law for a person who is unlawfullypresent in the United States and who is an unautho-rized alien to knowingly apply for work, solicit workin a public place or perform work as an employee orindependent contractor in this state.

Section 6, Ariz. Rev. Stat. 13-3883(A)(5), adds to Arizona peace officers warrantless arrest authorityby authorizing such arrests when the officer hasprobable cause to believe . . . [t]he person to be


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arrested has committed any public offense thatmakes the person removable from the UnitedStates.

C. Proceedings Below

1. On July 6, 2010, the United States took theextraordinary step of seeking to enjoin S.B. 1070before it could take effect. On July 28, 2010, just aday before S.B. 1070s effective date, the districtcourt preliminarily enjoined enforcement of Sections2(B), 3, 5(C), and 6. App. 122a-23a.

2. Arizona appealed the injunction to the NinthCircuit under 28 U.S.C. 1292(a)(1). The paneldivided with respect to Sections 2(B) and 6, butunanimously affirmed the District Court regardingSections 3 and 5(C).

The Ninth Circuit began its legal analysis by ac-knowledging both that the federal government hadbrought a facial challenge and that under UnitedStates v. Salerno , 481 U.S. 739 (1987) a successful

facial challenge requires the challenger [to] estab-lish that no set of circumstances exists under whichthe Act would be valid. App. 132a. Nonetheless, themajority expressly declined to determine whetherthere were constitutional applications of S.B. 1070scontested provisions and instead concluded thatthere can be no constitutional application of astatute that, on its face, conflicts with Congressionalintent. Id. at 7a & n.4.


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As to Section 2(B), the Ninth Circuit began itsanalysis by rejecting Arizonas interpretation of itsown statute, and interpreting it instead to maximizethe number of situations in which state law en-forcement authorities would contact federal officials.Then, despite the express savings clause in 8 U.S.C. 1357(g)(10), the majority interpreted 1357(g)(1)-(9)s grant of authority to the Attorney General todeputize state law enforcement officers in certaincircumstances as precluding other state efforts. TheNinth Circuit held that this grant demonstratesthat Congress intended for state officers to systemat-ically aid in immigration enforcement only under theclose supervision of the Attorney General. App. 17a(emphasis added). The majority acknowledged thesavings clause, and that 8 U.S.C. 1373 and 1644expressly permit communications between state andfederal authorities regarding possible immigrationviolations. Nonetheless, the majority focused on 8U.S.C. 1357(g)(1)-(9), and concluded that stateauthorities can communicate with federal authori-

ties only when the Attorney General calls uponstate and local law enforcement officersor suchofficers are confronted with the necessityto coope-rate with federal immigration enforcement on anincidental and as needed basis. App. 15a. Accor-dingly, Section 2(B) was preempted.

The Ninth Circuit then found Section 3 likelypreempted by viewing 8 U.S.C. 1304 and 1306 asa comprehensive scheme for immigrant registra-tion. App. 28a. The Court concluded that Congress


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did not intend[] for states to participate in theenforcement or punishment of federal immigrationregistration rules. App. 29a.

As to Section 5(C), the Ninth Circuit began by ac-knowledging that this employment provision ad-dresses an area of traditional state authority and sothe presumption against preemption applies. App.41a. Nevertheless, it relied on Circuit precedent toconstrue Congress decision to focus on the demandside and sanction only employers as precluding

States from enacting complementary sanctionsdirected to employees. Congresss inaction in IRCA in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers,according to the majority, implies Congress neces-sarily intended to prohibit states from criminalizingwork. App. 39a. The court did not discuss thereach and implications of the limited expresspreemption provision in 8 U.S.C. 1324a(h).

The panel professed itself bound by the Ninth Cir-

cuits decision in National Center for Immigrants Rights, Inc. v. INS , 913 F.2d 1350 (9th Cir. 1990),revd on other grounds , 502 U.S. 183 (1991) ( NCIR ),that Congress had not empowered the INS to prohi-bit work by aliens pending their deportation proceed-ings, because Congress intended to sanction employ-ers only. The panel did not acknowledge this Courtsholding in reversing NCIR that the no-work bondconditions at issue there were consistent with Con-gress intent to preserve jobs for American workers,


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which was forcefully recognized . . . in the IRCA.502 U.S. at 194 & n.8. Nor did the panel explainwhy a limitation on the INS, which like all federalagencies depends on statutory authorization, wouldapply to States who enjoy both plenary power andthe presumption against preemption in areas of traditional state authority. App. 34a-35a ([W]e donot believe that we can revisit our previous conclu-sion about Congress intent simply because we areconsidering the effect of that intent on a differentlegal question.).

Finally, in addressing Section 6, the panel majorityheld that states do not have the inherent authorityto enforce the civil provisions of federal immigrationlaw, App. at 45a. The Ninth Circuit acknowledgedthe contrary view of the Tenth Circuit, but disagreedand created an acknowledged and open conflict withUnited States v. Vasquez-Alvarez , 176 F.3d 1294(10th Cir. 1999). Because the majority found inhe-rent or plenary authority lacking, it demandedexpress federal statutory authority for Section 6. Itfound such authority absent because 8 U.S.C. 1252c permits state officers to arrest aliens whohave been convicted of crimes and deported (or havevoluntarily departed) but returned to the UnitedStates, but only in more limited circumstances.Section 6 significantly expands the circumstances inwhich Congress has allowed state and local officersto arrest immigrants. App. 44a-45a. Based on itsunusual approach to facial challenges in the preemp-tion context, the majority did not address Arizonas


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argument that, because 1252c clearly authorizedsome arrests permitted by Section 6, the latter hadconstitutional applications and could not be faciallyinvalidated.

The majority buttressed its preemption conclusionby referring to criticisms of S.B. 1070 attributableto foreign governments, which the majority viewedas demonstrating that S.B. 1070 thwarts the Execu-tives ability to singularly manage the spillovereffects of the nations immigration laws on foreign

affairs. App. 26a.

3. Judge Noonan issued a concurring opinionemphasizing that S.B. 1070 had engendered com-plaints from foreign governments, which should, inhis view, weigh heavily in the preemption analysis.

App. 55a.

4. Judge Bea dissented as to Sections 2(B) and 6and specifically distanced himself from some of thepanel majoritys broader reasoning. As to Section2(B), Judge Bea emphasized that both the savingsclause in 1357(g)(10) and 1373(c)s mandatoryduty on federal officials to respond to requests bystate law enforcement foreclosed the majoritys effortto read the express authorization for deputization in 1357(g)(1)-(9) as implicitly precluding other coop-erative efforts. App. 93a. Judge Bea further recog-nized that because this is a facial challenge, [thecourt] must assume that Arizona police officers willcomply with federal law and the Constitution inexecuting Section 2(B). App. 86a.


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Judge Bea also dissented as to Section 6. He tookissue with the majoritys reasoning that States lackinherent authority to enforce federal civil immigra-tion laws. He found the majoritys view inconsistentwith, inter alia , this Courts decision in Muehler v.Mena , 544 U.S. 93, 101 (2005), upholding the author-ity of state officers to ask individuals they encounterabout their immigration status even absent anyreasonable suspicion of unlawful conduct. App.104a. Judge Bea regarded 1252c as simply codify-ing a portion of this pre-existing inherent authoritywithout impliedly negating the balance. Judge Beaalso noted that Section 6 should survive a facialchallenge even under the majoritys understandingof state authority, because some of the arrests itauthorizes are also expressly permitted by 1252c.

App. 114a.

Finally, Judge Bea disagreed with the panel major-ity that complaints from foreign officials about S.B.1070 are relevant to the preemption analysis be-cause they ha[ve] had a deleterious effect on theUnited States foreign relations. App. 22a. JudgeBea argued that the Executives desire to appeaseforeign governments complaints cannot overrideCongressionally-mandated provisions, that S.B.1070 does not conflict with any established foreignrelations policy goal, and that the majoritys findingof preemption in this case gave a hecklers veto toother nations foreign ministries. App. 95a.


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REASONS FOR GRANTING THE PETITION

The Ninth Circuit has completely foreclosed Arizo-nas effort to address the disproportionate impact of unlawful immigration in a State with a 370-mileborder with Mexico. Without even consideringwhether Arizonas statute was capable of any consti-tutional application, and expressly rejecting Arizo-nas limiting construction of its own statute, theCourt of Appeals invalidated four key provisions of S.B. 1070 on their face before the statute ever took

effect. The Ninth Circuit did not conclude that theentire field of immigration enforcement waspreempted. Nor could it have, in light of this Courtsprecedents and the plain text of the federal immigra-tion statutes expressly inviting cooperative enforce-ment efforts and compelling federal officials torespond to state and local inquiries about immigra-tion status. Nor does the decision below turn on anyexpress preemption provision. Rather, the NinthCircuit found Arizonas efforts impliedly preemptedon their face, because they conflicted with the con-gressional purpose the Ninth Circuit divined fromvarious immigration statutes.

That decision turns well-established principles of federalism and facial challenges upside down, andimplicates issues of the most fundamental impor-tance. The baseline assumptions of our federalsystem are that States have inherent, plenary policepower and that cooperative law enforcement is thenorm. States, unlike federal agencies, are not crea-


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tures of the federal Congress and do not depend onfederal statutes for authorization. It is, moreover,commonplace for state and federal law to prohibitthe same conduct, and this Court has repeatedlyemphasized that state officials are primarily go-verned by state law even when they cooperate withfederal law enforcement officials. Thus, a conclusionthat States are completely foreclosed from enforcingfederal law or from enacting state laws that prohibitconduct made unlawful by Congress could be sup-ported only by the clearest of congressional state-ments. Here, far from foreclosing such cooperativelaw enforcement efforts, the federal immigrationlaws expressly contemplate such cooperation and goso far as to compel federal cooperation with stateefforts. The Ninth Circuit nonetheless condemned

Arizonas efforts ab initio by ignoring savings clausesand a presumption against preemption, and withouteven considering whether the laws were susceptibleof constitutional application.

This Court should review and reverse that deci-sion for three basic reasons. First, this case impli-cates issues of extraordinary importance, as unders-cored by the federal governments extraordinarydecision to initiate a facial challenge to Arizonas lawbefore it could take effect. No one can deny that theproblem of unlawful immigration is significant orthat it has a disproportionate impact on borderStates. It is thus no small matter to conclude, as theNinth Circuit did, that only the national governmentin Washington can address this problem.


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Second, the decision below creates an express andacknowledged circuit split over the preemptive forceof the federal immigration laws. The Tenth Circuitviews those laws as affirmatively encouraging coop-erative enforcement by States; the Ninth Circuitreads such authorization for specific cooperation asnegating any inherent state law enforcement author-ity.

Third, the decision below is wrong and flatly in-consistent with this Courts precedents. While this

Court has repeatedly emphasized that outside of theFirst Amendment context a law capable of constitu-tional application is not facially invalid, the NinthCircuit refused to even consider whether the rele-vant provisions of S.B. 1070 were capable of anyconstitutional application. While this Court hasemphasized that state efforts to cooperate with theenforcement of federal law are primarily governed bystate law and are a healthy component of our federalsystem, the Ninth Circuit viewed such efforts withwhat amounts to a presumption of unconstitutionali-ty. And while this Court has routinely viewedparallel prohibitionswhere state and federal lawprohibit the exact same conductas not implicatingissues of preemption whether express or implied, theNinth Circuit held that state efforts to facilitateenforcement or impose parallel prohibitions onconduct prohibited by federal immigration law areverboten.


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I. Arizonas Authority to Enact S.B. 1070 Isa Matter of Pressing Importance

It is widely recognized that the federal immigra-tion laws are not adequately enforced; the Presidenthimself has described the federal immigration sys-tem as broken. ER 398. This broken systemleaves the people and government of Arizona to beara disproportionate share of the burden of a nationalproblem. 4 The Arizona border is so porous that anestimated 50% of illegal aliens entering the United

States come through the State. ER 384. Its statusas a conduit for human and drug smuggling hasrendered large areas of southern Arizona highlydangerous. Significant swaths of public lands havebecome so dangerous that National Park rangershave been forced to patrol with M-16 carbines 5 andpublic access is forbidden or sternly discouraged.Strongly-worded warning signs are posted as far as80 miles from the border and only 30 miles from the

4 See Peter H. Schuck, Taking Immigration Federalism Serious-ly , 2007 U. Chi. L.F. 57, 80 (2007) (costs of illegal immigrationare mostly local while benefits are mostly national).

5 Ralph Vartabedian, The Law Loses Out at U.S. Parks, L.A.Times, Jan. 23, 2003, http://articles.latimes.com/2003/jan/23/nation/na-ranger23; see also Monica Yancy, Our NationalParks, May 10, 2007, http://ournationalparks.us/index.php/site/story_issues/budgetwoes_reduce_patrols_assistance_in_parks/ (park rangers voted Organ Pipe Cactus National Monumentthe nations most dangerous national parkland, seizing 14,000pounds of marijuana and engaging in more than 30 car chasesthere in 2001 alone).


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City of Phoenix. 6 Police officers in the border townof Nogales, Arizona have received death threats fromMexican drug cartels. ER 255-56. Private ranchersliving near the border constantly face the problemsand safety risks associated with a steady flow of illegal crossings of their land. ER 223-31, 405.

Approximately six percent of Arizonas total inha-bitantsan estimated 400,000 individualsarealiens who are unlawfully present and not autho-rized to work. 7 Nonetheless, over half230,000 engage in work, composing 7.4% of all Arizonaworkers. 8

Moreover, the Arizona Department of Correctionshas estimated that criminal aliens now make upmore than 17% of Arizonas prison population, andthe Maricopa County Attorneys Office notes that21.8% of the felony defendants in the MaricopaCounty Superior Court are illegal aliens. ER 264-74& 419. Arizona spends several hundred milliondollars each year incarcerating criminal aliens andproviding education and healthcare to aliens who

6 See ER 162, 165, 167 (photo of warning sign stating travelnot recommended and that visitors may encounter armedcriminals and smuggling vehicles moving at high rates of speed).

7 Jeffrey S. Passel and DVera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 , p. 15 tbl.5,pewhispanic.org/files/reports/133.pdf.8 Id. at 21 tbl. A1.


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entered and reside in the country in violation of federal law. ER 429.

While no one can deny that Arizona bears thebrunt of the impact of unlawful immigration, thefederal government has largely ignored Arizonaspleas for additional resources and help. ER 380-97.Between 2000 and 2010, the number of aliens unlaw-fully present in Arizona increased an average of 10,000 per year, 9 and yet the federal efforts remaindemonstrably inadequate. Thus, while Arizona

suffers disproportionate and distinct problems, theNinth Circuit decision suggests that there is almostnothing Arizona can do to supplement the inade-quate federal efforts. The injunction against S.B.1070 leaves Arizona and its people to suffer from aserious problem without any realistic legal tools foraddressing it. Such a conclusion is irreconcilablewith the basic tenets of Our Federalism, and borderStates should not be placed in such an untenableposition unless this Court determines that theConstitution and the federal immigration lawsdemand such a counterintuitive result.

The legal significance of the question presentedhere extends well beyond Arizona and its particular-ly dire straits. Although the burden placed on

Arizona by illegal immigration is unique, many other

9 The unauthorized-alien population rose and fell roughly inline with the fortunes of the economy, peaking at 500,000between the years 2005 and 2009 before receding somewhat to400,000 in 2010. Passel & Cohn, n.7 supra , at 23 tbl. A3.


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States and localities have enacted laws and policiesdesigned to reduce the effects of illegal immigration.

At least nine other States have begun requiring thatlaw enforcement officers conduct immigration statuschecks in various circumstances surrounding inves-tigations, arrests and jail bookings. 10 Many localagencies routinely check the immigration status of suspects or arrestees. 11 At least seven States have

10 See Beason-Hammon Alabama Taxpayer and CitizenProtection Act, 2011 Ala. Laws 535 (hereinafter Alabama

TCPA), 12 (on reasonable suspicion or booking into custody);id. 19(a) (for persons charged with a crime for which bail isrequired or confined in any state, county, or municipal jail);Ga. Code 42-4-14(b) & (c) (persons confined in jail); Ind. Code 11-10-1-2(a) (committed criminal offender[s]); Mo. Rev. Stat. 577.680(1) (persons charged and confined to jail); Okla.Stat. tit. 22 171.2(A) & (B) (felony and DUI suspects confinedin jail); Tenn Code. 40-7-123(a) & (b) (persons confined in

jail); S.C. Code 23-3-1100 (same); S.C. Code 17-13-170 (onreasonable suspicion of unlawful presence during any lawfulstop or investigation); Utah Code 17-22-9.5 (detaineescharged with felonies or DUI); Utah Code 76-9-1003(1)(a)(i)(persons arrested for felonies or serious misdemeanors); R.I.Exec. Order 08-01, ER 147-49 (arrestees and investigatees);David W. Chen & Kareem Fahim , Immigration Checks Orderedin New Jersey , N.Y. Times, August 22, 2007 (criminalsuspects), http://www.nytimes.com/2007/08/23/nyregion/23immig.html.

11 ER 135-36 (individual officer); 340-41 (59 surveyed Stateand local jurisdictions generally inquire into arresteesimmigration status, while only 34 do notand many others askfor serious criminals or later in the booking process); e.g.,Prince William Cnty., Va. Police Dept. Gen. Order 45.01, LocalEnforcement Response to Illegal Immigration, http://www.pwcgov.org/docLibrary/PDF/008333.pdf.


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expressly empowered their officers to enforce theimmigration laws in other contexts as well. 12 Inaddition to Arizona (in Section 5(C) of S.B. 1070),

Alabama and Mississippi have targeted the supplyside of the unlawful employment problem by prohi-biting the unauthorized acceptance or performanceof work by an alien. 13 And like Section 3 of S.B.1070, Alabama and South Carolina have addedstate-law prohibitions of violations of the federalalien registration laws. 14 Many of these statuteshave become the subject of legal challenges similarto the one against S.B. 1070, although only Arizonaand Alabama have prompted the United States tofile a declaratory action seeking to enjoin theirstatutes. See Georgia Latino Alliance for HumanRights v. Deal , No. 1:11-cv-1804-TWT (N.D. Ga.2011); Buquer v. City of Indianapolis , No. 1:11-cv-708-SEB-MJD (S.D. Ind. 2011); Hispanic InterestCoalition of Alabama v. Bentley , No. 5:11-cv-02484-SLB (N.D. Ala. 2011); Parsley v. Bentley , No. 5:11-cv-

12 Alabama TCPA, 5(b); Ga. Code 17-5-100(b); Ind. Code. 5-2-18.2(7)(2), 35-33-1-1(11) & (12); S.C. Code 23-6-60; UtahCode 17-22-9.5(3)(b)(ii); Va. Code 19.2-81.6; Co. Rev. Stat.29-29-103(2)(a)(I).13 See Alabama TCPA, 11(a); Miss. Code 71-11-3(c)(i)(unauthorized work a felony).

14 Alabama TCPA, 10(a); S.C. Code 16-17-750(A). A numberof other States have enacted criminal offenses mirroring otherfederal immigration offenses, such as human smuggling. E.g.,S.C. Code 16-9-460(C); Okla. Stat. tit. 21, 446, Utah. Stat.

Ann. 76-10-2701; Ga. Code 16-5-46.


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nas-Calderon , 728 F.2d 1298, 1301 & n.3 (10th Cir.1984) (A state trooper has general investigatoryauthority to inquire into possible immigration viola-tions.); United States v. Santana-Garcia , 264 F.3d1188, 1193 (10th Cir. 2001); United States v. Soto-Cervantes , 138 F.3d 1319, 1324 (10th Cir. 1998).The Tenth Circuit found its conclusion buttressed by8 U.S.C. 1357(g)(10). The Tenth Circuit read thatsavings clause as a savings clause and viewed it asa clear invitation from Congress for state and localagencies to participate in the process of enforcingfederal immigration laws. Vasquez-Alvarez , 176F.3d at 1300.

The Ninth Circuit here started from fundamentallydifferent premises and reached the opposite conclu-sion. Rather than begin with the premise thatStates enjoy plenary power and state law enforce-ment officers do not require authorization from thefederal Congress, the Ninth Circuit took the oppositeapproach. It concluded that States have no inherentenforcement power, App. 46a, and that, far frominviting state cooperation, 8 U.S.C. 1357(g) de-monstrates that Congress intended for state officersto systematically aid in immigration enforcementonly under the close supervision of the AttorneyGeneral, App. 17a (emphasis added). Based on thatreading of federal law a reading irreconcilable withthe Tenth Circuits view the panel found Sections2(B) and 6 preempted because of an absence of federal authorization for the States enforcementrole. Analogously, the panel found Section 5(C) to be


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preempted because nothing in IRCA expresslyinvites state enforcement of federal work authoriza-tion rules, App. 35a, and Section 3 to be preemptedbecause Congress had not authorized States toincorporate federal criminal alien-registration re-quirements into their own criminal codes. App. 28a-29a.

The Ninth Circuits rulethat States may not takeany investigative or enforcement action againstaliens based on their civil violations of the immigra-

tion laws without an express permission slip fromCongressdirectly conflicts with the approach notonly of the Tenth Circuit but also of other Circuits. See , e.g. , Estrada v. Rhode Island , 594 F.3d 56, 65(1st Cir. 2010) (passengers admission that theywere in the country illegally permitted extension of traffic stop by Rhode Island officer based on reason-able suspicion that they had committed immigra-tion violations); United States v. Rodriguez-Arreola ,270 F.3d 611, 617 (8th Cir. 2001) (statement by oneoccupant of a stopped vehicle that another was notlegally present in the United States provided rea-sonable suspicion for South Dakota officer to in-quire into [the others] alienage); United States v.Soriano-Jarquin , 492 F.3d 495, 501 (4th Cir. 2007)(Virginia State Police officer could contact ICE andextend traffic stop on being told that passengerswere illegal aliens) Lynch v. Cannatella , 810 F.2d1363, 1367 (5th Cir. 1987) (Port of New Orleans


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Harbor Police had authority to detain alien stowa-ways in incoming vessel). 16

This Court has not directly spoken on this ques-tion, although its decision in Muehler suggests thatthe Ninth Circuits view is mistaken. In Muehler ,this Court held that no independent justification wasrequired under the Fourth Amendment for a stateofficers questioning of an arrestee regarding herimmigration status, but did not address whether thequestioning was consistent with the federal immi-gration laws. 544 U.S. at 100-01. In light of the

16 The panel majority found support for its view in the SixthCircuits decision in United States v. Urrieta . App. 46a. There,the court considered an argument that an investigation was

justified by the state officers suspicion that the subject was anunlawful alien, and suggested that the investigation had to besupported by a reasonable suspicion that [the suspect] wasengaged in some nonimmigration-related illegal activity. 520F.3d 569, 574 (6th Cir. 2008). Although it is debatable whetherthis was part of the courts holding, as it noted that the gov-ernment had withdrawn the argument, id. , Urrieta doesillustrate the divergent approaches being taken to thesequestions, as do the conflicting opinions issued by the Depart-ment of Justice Office of Legal Counsel in the last decade. See

App. at 52a n.24 (OLCs conclusion about the issue in the 2002memo was different in 1996 under the direction of PresidentClinton, and was different in 1989, under the direction of President H.W. Bush.); Memorandum for the Attorney Gener-al from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Non-Preemption of the Authority of Stateand Local Law Enforcement Officials to Arrest Aliens forImmigration Violations (Apr. 3, 2002), ER 346.


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Ninth Circuits decision, it has become urgent thatthe Court answer this question definitively. Inhundreds or thousands of incidents every day, stateand local law enforcement officers are given reasonto suspect that persons they have encountered are inviolation of the federal immigration laws. There isabsolutely no reason the legal authority of thosestate and local officers should turn on the Circuit inwhich the incident arises. This Court thereforeshould grant certiorari to resolve the split betweenthe Courts of Appeals on this important issue.

III. The Ninth Circuits Decision Is Wrongand Conflicts With This Courts Prece-dents.

This Court has long recognized that federal law isas much the law of the several States as are the lawspassed by their legislatures. Federal and state lawtogether form one system of jurisprudence, whichconstitutes the law of the land for the State . . .Haywood v. Drown , 129 S. Ct. 2108, 2114-15 (2009).There is no immigration exception to this rule.This Court has consistently declined to find fieldpreemption in the immigration context, rejecting thepossibility that the INA might be so comprehensiveas to leave no room for state action, De Canas , 424U.S. at 354-63, and instead focusing on whether anadditional or auxiliary regulation[] by a Statestands as an obstacle to the accomplishment andexecution of the full purposes and objectives of Congress. Hines v. Davidowitz , 312 U.S. 52, 66-67,68 (1941). It has expressly upheld States authority


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to act with respect to illegal aliens, at least wheresuch action mirrors federal objectives and furthers alegitimate state goal. Plyler v. Doe , 457 U.S. 202,225 (1982). And as a general matter, this Court hasrecognized that state law enforcement may enforcefederal laws as part of cooperative law enforcementthat is a salutary aspect of Our Federalism. See,e.g., United States v. Di Re , 332 U.S. 581, 589-90(1948). The Ninth Circuits opinion cannot be recon-ciled with these fundamental tenets of this Courts

jurisprudence.

A. The Panel Majority Misapplied ThisCourts Precedents Concerning FacialChallenges

The Ninth Circuits approach to this facial chal-lenge cannot be reconciled with this Courts prece-dents. Under United States v. Salerno , 481 U.S. 739,745 (1987), it is clear that a plaintiff who elects tobring a facial challenge must establish that no set of circumstances exists under which the Act would bevalid. App. 65a. That principle applies with fullforce in the preemption context. Where a statestatute confers discretionary authority on its execu-tive officersas is obviously the case herethestatute will not be facially preempted unless thereis no possible set of conditions under which theauthority could be exercised that would not conflictwith federal law. California Coastal Commn v.Granite Rock Co. , 480 U.S. 572, 579-80 (1987).


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While the Ninth Circuit acknowledged Salerno , itexpressly declined to consider whether the chal-lenged provisions of S.B. 1070 had constitutionalapplications. Instead, it inverted the facial-challenge standard by stating that there can be noconstitutional application of a statute that, on itsface, conflicts with Congressional intent and there-fore is preempted by the Supremacy Clause. App.7a.

Not only is the conflict with this Courts precedent

stark; it is almost certainly outcome-determinative.With respect to Section 2(B), for example, even thepanel majority agree[d] that . . . Congress contem-plated state assistance in the identification of undo-cumented immigrants in some circumstances evenwithout the direction of the Attorney General. App.18a. Under Salerno and California Coastal Com-mission that should have been sufficient to reject thefacial challenge. Under the Ninth Circuits novelinverted rule, a few indisputably constitutionalapplications were not enough.

The majoritys mistake was even more stark withrespect to Section 6: despite acknowledging that 1252c expressly permits state authorities to arrestunlawfully-present aliens under some circums-tances, App. 43a, the majority found Section 6preempted solely because it would permit (but doesnot require) some arrests that expand the scope of 1252c, App. 44a n.20. The Ninth Circuit likewisefailed to consider constitutional applications of


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Sections 3 and 5(C) in light of its inverted rule forfacial challenges.

The Ninth Circuits analysis cannot be reconciledwith Salerno and California Coastal Commission .The Court should grant certiorari to vindicate itsfacial challenge precedents.

B. The Ninth Circuits Decision Conflicts With This Courts Immigration Preemp-tion Decisions

This Court has already rejected the argument thatStates have no role in enforcing federal immigrationlaw in Plyler and just last Term in Chamber of Commerce of the United States v. Whiting , 131 S. Ct.1968 (2011). The decision below cannot be reconciledwith those precedents or with other preemptionprecedents of this Court.

At every turn, the Ninth Circuit viewed state en-forcement of the federal immigration laws as ananomaly that required express authorization infederal law. Because cooperative law enforcement isthe norm, not some anomaly, the Ninth Circuitapproach could only be justified if immigration werean area of quasi-field preemption that States couldonly enter with express federal permission. ThisCourt has never adopted that view, and it has articu-lated the contrary view, including quite dramaticallyin Whiting .

In Whiting , the Court considered the validity of another Arizona statute intended to combat unau-


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qualifies as an unauthorized alien, and expresslydefined work authorization and the substantiveprohibitions on employment by federal standards inorder to prevent conflict between state and federallaw as to worker authorization. Id. The Court alsorejected a contention that the harshness of Arizo-nas law . . . impermissibly upsets [the] balance of sanctions struck by Congress in IRCA. Id. at 1983.

As in Whiting , each section of S.B. 1070 at issuehere avoids conflict concerns by adopting the rele-

vant federal definitions of unlawful presence, workauthorization, and registration requirements, andrequires Arizona law enforcement officials to followfederally-established procedures for identifyingunauthorized aliens. Moreover, as in Whiting , Sections 2(B) and 6 of S.B. 1070 are intended tooperate within the scope of an express savings clausein the federal immigration statutes, 1357(g)(10),which expressly reserves the authority of stateofficials to cooperate with the Attorney General inthe identification, apprehension, detention, or re-moval of aliens not lawfully present in the UnitedStates.

C. The Ninth Circuits Decision Conflicts With This Courts Preemption Prece-dents

The decision below conflicts with this Courtspreemption precedents in at least three respects. Itmisapplies the presumption against preemption;


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inverts a savings clause; and finds conflict preemp-tion of state laws that parallel federal requirements.

One of the cornerstones of [this Courts] pre-emption jurisprudence is the rule that

in all pre-emption cases, and particularly inthose in which Congress has legislated in afield which the States have traditionally occu-pied, we start with the assumption that the his-toric police powers of the States were not to besuperseded by the Federal Act unless that wasthe clear and manifest purpose of Congress.

Wyeth v. Levine , 129 S. Ct. 1187, 1194-95 (2009)(quoting Medtronic Inc. v. Lohr , 518 U.S. 470, 485(1996) (quotation marks and alterations omitted)).The Ninth Circuit wrongly found this rule inapplica-ble with respect to Sections 2(B), 3, and 6 of S.B.1070, and gave it only lip service with respect toSection 5(C).

With respect to Sections 2(B), 3, and 6, the panel

majority concluded that [t]he states have not tradi-tionally occupied the field of identifying immigrationviolations, App. 12a (discussing Section 2(B)),punishing unauthorized immigrants for their fail-ure to comply with federal registration laws, App.28a (Section 3), or arresting immigrants for civilimmigration violations, id. at 43a (Section 6). Thisapproach fundamentally distorts the state functioninvolved. If one views the relevant field at a level of generality that focuses on the federal issue e.g. , not


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law enforcement or arrest authority but law en-forcement and arrest authority for federal crimes then the relevant field can always be stated in waysthat minimize state authority.

That view is mistaken in general and cannot bereconciled with the federal immigration statutes. In8 U.S.C. 1373, 1357(g), and 1252c, Congress hasindisputably recognized that the States have sub-stantial authority to enforce the federal immigrationlaws in conjunction with their broad, pre-existing

law enforcement duties. In light of the Statestraditional authority over law enforcement matters,including the cooperative enforcement of federal law,and the numerous recognitions of that state role infederal immigration law, the presumption againstpreemption should have applied to Sections 2(B), 3,and 6. Nonetheless, the Ninth Circuit found itwholly inapplicable.

Although the panel acknowledged the applicabilityof the presumption against preemption with respect

to Section 5(C) of S.B. 1070, it then proceeded toignore it. It noted that because the power to regu-late the employment of unauthorized aliens remainswithin the states historic police powers, an assump-tion of nonpreemption applies. App 33a. Nonethe-less, and even though IRCA itself is silent on com-plementary supply side efforts to address would-beemployees, the Ninth Circuit professed itself boundby its previous holding in NCIR that IRCA does notpermit the federal INS to prohibit work pending the


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determination of an aliens deportability. App. 35a.Even putting to one side the reality that NCIR wasreversed by this Court on other grounds, the NinthCircuits reliance on NCIR was mistaken for reasonsthat demonstrate its failure to honor the presump-tion. States, unlike federal agencies, do not dependon federal statutes for their authority. If the pre-sumption against preemption means anything, itmeans that States and federal agencies are notsimilarly situated when it comes to the negativeimplication to be drawn from an express authoriza-tion of particular conduct. 17

The conflict with this Courts preemption prece-dents runs far deeper than just the Ninth Circuitsmisapplication of the presumption against preemp-tion. The court also violated the cardinal principle of preemption analysis that congressional intentgoverns by reading a savings clause expresslypreserving state authority out of the statute. [T]hepurpose of Congress is the ultimate touchstone inevery preemption case. Wyeth , 129 S. Ct. at 1194(quoting Lohr, 518 U.S. at 485). The presence of a

17 As further evidence of its complete abandonment of thepresumption, the panel relied on preemption cases from theforeign-relations contextthe opposite end of the federalismcontinuumfor the proposition that Section 5(C)s supposedadopt[ion] of a different technique from IRCA underminesthe congressional calibration of force, and is thereforepreempted. App. 40a (quoting Am. Ins. Assn v. Garamendi ,539 U.S. 396, 427 (2003); citing Crosby v. Natl Foreign TradeCouncil, 530 U.S. 363, 369-80 (2000)).


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saving clause reflects a congressional determinationin favor of nonuniformity within its scope. Geier v.

Am. Honda Motor Co. , 529 U.S. 861, 871 (2000).Despite these well-settled principles and Congressclear direction in 8 U.S.C. 1357(g)(10) that thedeputization provisions in 1357(g)(1)-(9) not beconstrued to limit pre-existing state efforts at coop-erative law enforcement, the Ninth Circuit didprecisely what Congress warned against. Thatconclusion is irreconcilable with both Congressintent and this Courts preemption precedents.

Finally, the Ninth Circuit further departed fromthis Courts precedents by treating state law provi-sions that expressly parallel federal law require-ments as the basis for finding conflict preemption.This Courts cases have routinely rejected the argu-ment that state law requirements that parallelfederal law prohibitions are a basis for preemption.See Medtronic , 518 U.S. at 481 (quoting 21 U.S.C. 360k(a)(1)); id. at 495 ( no preemption of state re-quirements that duplicate FDA requirements);Wyeth , 127 S. Ct. at 1187; Altria Group v. Good, 129S. Ct. 538, 541 (2008). Instead, this Court has beenquite reluctant to find preemption in the absence of adivergence in substantive requirements and basedonly on a conflict with the federal remedial scheme.Silkwood v. Kerr-McGee Corp. , 464 U.S. 238, 267(1984); see also Riegel v. Medtronic, Inc. , 552 U.S.312, 330 (2008) (States may provid[e] a damagesremedy for claims premised on a violation of FDA regulations; the state duties in such a case parallel,


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rather than add to, the federal requirement). Theone exception has been in the realm of sanctionsagainst foreign governments, but as explained infra , the Ninth Circuits invocation of such cases is justone more way in which its approach is in conflictwith this Courts precedents.

D. The Ninth Circuits Foreign-AffairsPreemption Analysis Is Erroneous.

Finally, over Judge Beas strenuous dissent, thepanel majority deviated from this Courts precedents

by allowing complaints by foreign government offi-cials and the disagreement of the Executive Branchto trump congressional intent. This approach is inconflict with this Courts decision in Barclays Bank

PLC v. Franchise Tax Board of California , 512 U.S.298 (1994).

In Barclays , as here, a number of foreign govern-ments and officials had deplor[ed] [a Californiastatute] in diplomatic notes, amicus briefs, and evenretaliatory legislation, id. at 320; and the Secretary

of State himself had noted the volume of complaints,id. at 324 n.22. This Court nonetheless rejected therelevance of these protests to the preemption analy-sis, holding that in the absence of evidence of preemptive Congressional intent, the contention thatthe statute is unconstitutional because it is likely toprovoke retaliatory action by foreign governments isdirected to the wrong forum. Id. at 327-28. TheCourt also rejected the contention that a series of Executive Branch actions, statements, and amicus


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filings . . . constitute a clear federal directive pro-scribing States use of [the tax method in question],id. at 328, noting that [t]he Constitution expresslygrants Congress, not the President, the power toregulate Commerce with foreign Nations, id. at329, and that therefore Executive Branch communi-cations that express federal policy but lack the forceof law cannot preempt an otherwise-valid statestatute in that field. Id. at 330.

The Ninth Circuit invoked this Courts decision in

Crosby v. National Foreign Trade Council , 530 U.S.363, 383-84 (2000). But Crosby involved sanctionsagainst foreign governments. Immigration is differ-ent. Like the tax context of Barclays , but unlike thecontext of sanctions against Burma, immigration hasserious (and disproportionate) domestic conse-quences and is not solely a matter of the vast exter-nal realm. Allowing foreign protests to trump theplenary power of the States in a matter with suchprofound domestic consequences as immigrationwould fundamentally reshape our federalist system.Such a significant reordering should not come fromthe Court of Appeals. This case clearly merits thisCourts plenary review.


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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

Joseph Sciarrotta, Jr. Paul D. ClementGeneral Counsel Counsel of Record OFFICE OF GOVERNOR Viet D. Dinh

J ANICE K. BREWER H. Christopher Bartolomucci1700 W. Washington Street Nicholas J. Nelson9th Floor B ANCROFT PLLCPhoenix, AZ 85007 1919 M Street, N.W.,(602) 542-1586 Washington, D.C. 20036

(202) 234-0090 [email protected]

John J. BoumaRobert A. HenryKelly Kszywienski

S NELL & W ILMER LLPOne Arizona Center400 East Van BurenPhoenix, AZ 85004(602) 382-6000

Counsel for Petitioners

August 10, 2011

sb1070 supreme court filing

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