BALLARD SPAHR ANDREWS & INGERSOLL, LLP
3300 NORTH CENTRAL AVENUE, SUITE 1800 PHOENIX, ARIZONA 85012 (602) 798-5400 FAX (602) 798-5595

1 David A. Selden (#007499)

2

Julie A. Pace (#014585) Heidi Nunn-Gilman (#023971)

3 BALLARD SPAHR ANDREWS & INGERSOLL, LLP

3300 North Central Avenue, Suite 1800 4 Phoenix, Arizona 85012-2518

5 Telephone: 602-798-5477 Fax: 602-998-3251
6 Email: seldend@ballardspahr.com

7

pacej@ballardspahr.com

8 Attorneys for Plaintiffs

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11

12

ARIZONA CONTRACTORS ASSOCIATION, INC., an Arizona non-

) )

13

profit corporation, ARIZONA EMPLOYERS FOR IMMIGRATION

) )

14

REFORM, INC., an Arizona non-profit corporation, CHAMBER OF

) )

15

COMMERCE OF THE UNITED STATES OF AMERICA, a Washington

) )

16

D.C. non-profit corporation, ARIZONA CHAMBER OF COMMERCE, an

) )

17

Arizona non-profit corporation, ARIZONA HISPANIC CHAMBER OF

) )

18

COMMERCE, INC., an Arizona nonprofit corporation, ARIZONA FARM

) )

19

BUREAU FEDERATION, an Arizona non-profit corporation, ARIZONA

) )

20

RESTAURANT AND HOSPITALITY ASSOCIATION, an Arizona non-profit

) )

21

corporation, ASSOCIATED MINORITY CONTRACTORS OF

) )

22

AMERICA, an Arizona non-profit limited liability company; ARIZONA

) )

23

ROOFING CONTRACTORS ASSOCIATION, an Arizona non-profit

) )

24

corporation, NATIONAL ROOFING CONTRACTORS’ ASSOCIATION, an

) )

25

Illinois not-for-profit corporation, WAKE UP ARIZONA! INC., an

) )

26

Arizona non-profit corporation, and ARIZONA LANDSCAPE

) )

27

CONTRACTORS ASSOCIATION, INC., an Arizona non-profit corporation.

) )

28

)

Plaintiffs,

)

Case No. ______________________
COMPLAINT
1. Violation of Procedural Due Process under U.S. Constitution
2. Violation of Procedural Due Process under Arizona Constitution
3. Violation of Commerce Clause of U.S. Constitution
4. Violation of Supremacy Clause of U.S. Constitution/Federal Pre-Emption
5. Violation of Separation of Powers of Arizona Constitution
6. Violation of Fourth Amendment of U.S. Constitution

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1 v.

)

)

2 CRISS CANDELARIA, Apache County )

Attorney, ED RHEINHEIMER, Cochise )

3 County Attorney, TERENCE C.

)

HANER, Coconino County Attorney, )

4 DAISY FLORES, Gila County Attorney, )

KENNY ANGLE, Graham County

)

5 Attorney, DEREK D. RAPIER, Greenlee )

County Attorney, MARTIN

)

6 BRANNAN, LaPaz County Attorney, )

ANDREW P. THOMAS, Maricopa

)

7 County Attorney, MATTHEW J.

)

SMITH, Mohave County Attorney,

)

8 JAMES CURRIER, Navajo County

)

Attorney, BARBARA LAWALL, Pima )

9 County Attorney, JAMES P. WALSH, )

Pinal County Attorney, GEORGE

)

10 SILVA, Santa Cruz County Attorney, )

SHEILA POLK, Yavapai County

)

11 Attorney, JON SMITH, Yuma County )

Attorney, TERRY GODDARD,

)

12 Attorney General of the State of

)

Arizona, and FIDELIS V. GARCIA,

)

13 Director of the Arizona Registrar of

)

Contractors,

)

14

)

Defendants.

)

15

For their Complaint against CRISS CANDELARIA, Apache County Attorney,

16

ED RHEINHEIMER, Cochise County Attorney, TERENCE C. HANER, Coconino

17

County Attorney, DAISY FLORES, Gila County Attorney, KENNY ANGLE,

18

Graham County Attorney, DEREK D. RAPIER, Greenlee County Attorney,

19

MARTIN BRANNAN, LaPaz County Attorney, ANDREW P. THOMAS, Maricopa

20

County Attorney, MATTHEW J. SMITH, Mohave County Attorney, JAMES

21

CURRIER, Navajo County Attorney, BARBARA LAWALL, Pima County Attorney,

22

JAMES P. WALSH, Pinal County Attorney, GEORGE SILVA, Santa Cruz County

23

Attorney, SHEILA POLK, Yavapai County Attorney, JON SMITH, Yuma County

24

Attorney, the HONORABLE TERRY GODDARD, Attorney General of the State of

25

Arizona, (the “State”), and FIDELIS V. GARCIA, Director, Arizona Registrar of

26

Contractors, Plaintiffs the Arizona Contractors Association, Inc. (“Arizona

27

Contractors Association”), Arizona Employers for Immigration Reform, Inc.

28

2
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1 (“AZEIR”), Chamber of Commerce of the United States of America (“U.S. Chamber

2 of Commerce”), Arizona Chamber of Commerce, Arizona Hispanic Chamber of

3 Commerce, Inc. (“Arizona Hispanic Chamber of Commerce”), Arizona Farm Bureau

4 Federation (“Arizona Farm Bureau”), Arizona Restaurant and Hospitality

5 Association, Associated Minority Contractors of America (“Associated Minority

6 Contractors”), Arizona Roofing Contractors Association, the National Roofing

7 Contractors’ Association (“National Roofing Contractors’ Association”), Wake Up

8 Arizona! Inc. (“Wake Up Arizona!”), and the Arizona Landscape Contractors

9 Association, Inc. (“Arizona Landscaping Contractors Association”), (hereinafter

10 collectively referred to as “Plaintiffs”) allege as follows:

11

SUMMARY

12

1. Plaintiffs bring this case to uphold and to prevent violations of the

13 Constitution of the United States, the laws of the United States, and the Constitution

14 of the State of Arizona.

15

2. On July 2, 2007, the Honorable Janet Napolitano, the Governor of

16 Arizona, signed into law HB 2779, a bill passed by the Arizona Legislature on June

17 20, 2007, codified in relevant part at A.R.S. § 23-211 to 23-214 (hereinafter the

18 “Legal Arizona Workers Act”).

19

3. The Legal Arizona Workers Act violates the United States and Arizona

20 Constitutions and is preempted by federal law.

21

4. The Legal Arizona Workers Act deprives Plaintiffs and others of

22 property without due process of law.

23

5. The Legal Arizona Workers Act regulates and interferes with interstate

24 commerce.

25

6. The Legal Arizona Workers Act violates the Supremacy Clause because

26 it conflicts with and is preempted by federal law.

27

7. The Legal Arizona Workers Act violates the separation of powers

28 doctrine of the Arizona Constitution.

3
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1

8. Plaintiffs seek and are entitled to a declaratory judgment and a

2 preliminary and permanent injunction to declare the Legal Arizona Workers Act

3 unconstitutional and illegal and to enjoin the County Attorneys and the Attorney

4 General from enforcing the Legal Arizona Workers Act.

5

PARTIES, JURISDICTION AND VENUE.

6

9. Plaintiff the Arizona Contractors Association is a non profit corporation

7 incorporated under the laws of the State of Arizona, with its principal place of

8 business located in the State of Arizona.

9

10. The Arizona Contractors Association is an employer that employs

10 employees in the State of Arizona. It transacts business in Arizona and holds what are

11 deemed to be licenses under A.R.S. § 23-211(7).

12

11. The Arizona Contractors Association is an association of members

13 (“Arizona Contractors Association Members”). Arizona Contractors Association

14 Members employ employees in the State of Arizona, transact business in Arizona, and

15 hold licenses and permits from the State and/or its political subdivisions.

16

12. The Arizona Contractors Association serves as a public policy advocate

17 on behalf of its members and urges the Arizona Legislature and Executive Branch

18 agencies to adopt and implement policies that promote a favorable legal and business

19 climate in Arizona for the benefit of its members.

20

13. Plaintiff AZEIR is a non profit corporation incorporated under the laws

21 of the State of Arizona, with its principal place of business located in the State of

22 Arizona.

23

14. AZEIR is an association of members (“AZEIR Members”). AZEIR

24 Members employ employees in the State of Arizona, transact business in Arizona, and

25 hold licenses and permits from the State and/or its political subdivisions.

26

15. AZEIR serves as a public policy advocate on behalf of its members and

27 urges the Arizona Legislature and Executive Branch agencies to adopt and implement

28

4
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1 policies that promote a favorable legal and business climate in Arizona for the benefit

2 of its members.

3

16. Plaintiff the U.S. Chamber of Commerce is a non profit corporation

4 incorporated under the laws of the District of Columbia with its principal place of

5 business located in Washington D.C.

6

17. The U.S. Chamber of Commerce is the world’s largest federation of

7 businesses, professional organizations, and state and local chambers of commerce.

8 The U.S. Chamber of Commerce represents an underlying membership of more than

9 three million businesses and organizations of every size in every industrial sector and

10 geographic region of the country, including Arizona, and its members transact

11 business in Arizona and hold what are deemed to be licenses under A.R.S. § 23-

12 211(7).

13

18. The U. S. Chamber of Commerce membership includes associations,

14 chambers of commerce and direct business members. The U. S. Chamber of

15 Commerce serves as a public policy advocate on behalf of its members. It advocates

16 the interests of the business community, including advocating the interests of its

17 members in courts across the nation in cases involving issues of national concern to

18 American businesses.

19

19. The U.S. Chamber of Commerce has also been involved heavily in

20 efforts to seek to achieve federal immigration legislation and laws that are uniform,

21 fair, and appropriate to the needs of businesses.

22

20. Plaintiff the Arizona Chamber of Commerce is a non profit corporation

23 incorporated under the laws of the State of Arizona, with its principal place of

24 business located in the State of Arizona.

25

21. The Arizona Chamber of Commerce employ employees in the State of

26 Arizona, transact business in Arizona, and holds what are deemed to be licenses under

27 A.R.S. § 23-211(7).

28

5
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1

22. The Arizona Chamber of Commerce is an association of members

2 (“Arizona Chamber of Commerce Members”). Arizona Chamber of Commerce

3 Members employ employees in the State of Arizona, transact business in Arizona, and

4 hold licenses and permits from the State an/or its political subdivision.

5

23. Arizona Chamber of Commerce Members employ employees in the

6 State of Arizona, transact business in Arizona, and hold licenses and permits from the

7 State and/or its political subdivisions.

8

24. The Arizona Chamber of Commerce serves as a public policy advocate

9 on behalf of its members and urges the Arizona Legislature and Executive Branch

10 agencies to adopt and implement policies that promote a favorable legal and business

11 climate in Arizona for the benefit of its members.

12

25. Plaintiff the Arizona Hispanic Chamber of Commerce is a non profit

13 corporation incorporated under the laws of the State of Arizona, with its principal

14 place of business located in the State of Arizona.

15

26. The Arizona Hispanic Chamber of Commerce is an employer that

16 employs employees in the State of Arizona. It transacts business in Arizona and holds

17 what are deemed to be licenses under A.R.S. § 23-211(7).

18

27. The Arizona Hispanic Chamber of Commerce is an association of

19 members (“Arizona Hispanic Chamber of Commerce Members”). Arizona Hispanic

20 Chamber of Commerce Members employ employees in the State of Arizona, transact

21 business in Arizona, and hold licenses and permits from the State and/or its political

22 subdivisions.

23

28. The Arizona Hispanic Chamber of Commerce serves as a public policy

24 advocate on behalf of its members and urges the Arizona Legislature and Executive

25 Branch agencies to adopt and implement policies that promote a favorable legal and

26 business climate in Arizona for the benefit of its members.

27

28

6
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1

29. Plaintiff the Arizona Farm Bureau is a non profit corporation

2 incorporated under the laws of the State of Arizona, with its principal place of

3 business located in the State of Arizona.

4

30. The Arizona Farm Bureau is an employer that employs employees in the

5 State of Arizona. It transacts business in Arizona and holds what are deemed to be

6 licenses under A.R.S. § 23-211(7).

7

31. The Arizona Farm Bureau is an association of members (“Arizona Farm

8 Bureau Members”). Arizona Farm Bureau members employ employees in the State

9 of Arizona, transact business in Arizona, and hold licenses and permits from the State

10 and/or its political subdivisions.

11

32. The Arizona Farm Bureau serves as a public policy advocate on behalf

12 of its members and urges the Arizona Legislature and Executive Branch agencies to

13 adopt and implement policies that promote a favorable legal and business climate in

14 Arizona for the benefit of its members.

15

33. Plaintiff the Arizona Restaurant and Hospitality Association is a non

16 profit corporation incorporated under the laws of the State of Arizona, with its

17 principal place of business located in the State of Arizona.

18

34. The Arizona Restaurant and Hospitality Association is an employer that

19 employs employees in the State of Arizona. It transacts business in Arizona and holds

20 what are deemed to be licenses under A.R.S. § 23-211(7).

21

35. The Arizona Restaurant and Hospitality Association is an association of

22 members (“Arizona Restaurant and Hospitality Association Members”). The Arizona

23 Restaurant and Hospitality Association Members employ employees in the State of

24 Arizona, transact business in Arizona, and hold licenses and permits from the State

25 and/or its political subdivisions.

26

36. The Arizona Restaurant and Hospitality Association serves as a public

27 policy advocate on behalf of its members and urges the Arizona Legislature and

28

7
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1 Executive Branch agencies to adopt and implement policies that promote a favorable

2 legal and business climate in Arizona for the benefit of its members.

3

37. Plaintiff the Associated Minority Contractors is a non profit corporation

4 incorporated under the laws of the State of Arizona, with its principal place of

5 business located in the State of Arizona.

6

38. Associated Minority Contractors is an employer that employs

7 employees in the State of Arizona. It transacts business in Arizona and holds what are

8 deemed to be licenses under A.R.S. § 23-211(7).

9

39. Associated Minority Contractors is an association of members

10 (“Associated Minority Contractors Members”). Associated Minority Contractors

11 Members employ employees in the State of Arizona, transact business in Arizona, and

12 hold licenses and permits from the State and/or its political subdivisions.

13

40. Associated Minority Contractors serves as a public policy advocate on

14 behalf of its members and urges the Arizona Legislature and Executive Branch

15 agencies to adopt and implement policies that promote a favorable legal and business

16 climate in Arizona for the benefit of its members.

17

41. Plaintiff the Arizona Roofing Contractors Association is a non profit

18 corporation incorporated under the laws of the State of Arizona, with its principal

19 place of business located in the State of Arizona.

20

42. The Arizona Roofing Contractors Association is an employer that

21 employs employees in the State of Arizona. It transacts business in Arizona and holds

22 what are deemed to be licenses under A.R.S. § 23-211(7).

23

43. The Arizona Roofing Contractors Association is an association of

24 members (“Arizona Roofing Contractors Association Members”). Arizona Roofing

25 Contractors Association Members employ employees in the State of Arizona, transact

26 business in Arizona, and hold licenses and permits from the State and/or its political

27 subdivisions.

28

8
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1

44. The Arizona Roofing Contractors Association serves as a public policy

2 advocate on behalf of its members and urges the Arizona Legislature and Executive

3 Branch agencies to adopt and implement policies that promote a favorable legal and

4 business climate in Arizona for the benefit of its members.

5

45. Plaintiff the National Roofing Contractors’ Association is a not for

6 profit corporation incorporated under the laws of the State of Illinois, with its

7 principal place of business located in the State of Illinois.

8

46. The National Roofing Contractors’ Association is an association of

9 roofing, roof deck, and waterproofing contactors, industry-related associate members,

10 including manufacturers, distributors, architects, engineers, and others. The National

11 Roofing Contractors’ Association has more than 4,600 members from all 50 states

12 and 54 countries and is affiliated with 105 local, state, regional and international

13 roofing contractor associates. Its members transact business in Arizona and hold what

14 are deemed to be licenses under A.R.S. § 23-211(7).

15

47. The National Roofing Contractors’ Association serves as a public policy

16 advocate on behalf of its members.

17

48. Plaintiff Wake Up Arizona! is a non profit corporation incorporated

18 under the laws of the State of Arizona, with its principal place of business located in

19 the State of Arizona.

20

49. Wake Up Arizona! Transacts business in Arizona and holds what are

21 deemed to be licenses under A.R.S. § 23-211(7).

22

50. Wake Up Arizona! is an association of members (“Wake Up Arizona!

23 Members”). Wake Up Arizona! Members employ employees in the State of Arizona,

24 transact business in Arizona, and hold licenses and permits from the State and/or its

25 political subdivisions.

26

51. Wake Up Arizona! serves as a public policy advocate on behalf of its

27 members and urges the Arizona Legislature and Executive Branch agencies to adopt

28

9
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1 and implement policies that promote a favorable legal and business climate in Arizona

2 for the benefit of its members.

3

52. Plaintiff the Arizona Landscape Contractors Association is a non profit

4 corporation incorporated under the laws of the State of Arizona, with its principal

5 place of business located in the State of Arizona.

6

53. The Arizona Landscape Contractors Association is an employer that

7 employs employees in the State of Arizona. It transacts business in Arizona and holds

8 what are deemed to be licenses under A.R.S. § 23-211(7).

9

54. The Arizona Landscape Contractors Association is an association of

10 members (“Arizona Landscape Contractors Association Members”). The Arizona

11 Landscape Contractors Association Members employ employees in the State of

12 Arizona, transact business in Arizona, and hold licenses and permits from the State

13 and/or its political subdivisions.

14

55. The Arizona Landscape Contractors Association serves as a public

15 policy advocate on behalf of its members and urges the Arizona Legislature and

16 Executive Branch agencies to adopt and implement policies that promote a favorable

17 legal and business climate in Arizona for the benefit of its members.

18

56. Defendant Criss Candelaria is the County Attorney for Apache County,

19 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

20

57. Defendant Ed Rheinheimer is the County Attorney for Cochise County,

21 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

22

58. Defendant Terence C. Hance is the County Attorney for Coconino

23 County, Arizona. He is named herein as a Defendant in his capacity as County

24 Attorney.

25

59. Defendant Daisy Flores is the County Attorney for Gila County,

26 Arizona. She is named herein as a Defendant in her capacity as County Attorney.

27

60. Defendant Kenny Angle is the County Attorney for Graham County,

28 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

10
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1

61. Defendant Derek D. Rapier is the County Attorney for Greenlee

2 County, Arizona. He is named herein as a Defendant in his capacity as County

3 Attorney.

4

62. Defendant Martin Brannan is the County Attorney for LaPaz County,

5 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

6

63. Defendant Andrew Thomas is the County Attorney for Maricopa

7 County, Arizona. He is named herein as a Defendant in his capacity as County

8 Attorney.

9

64. Defendant Andrew Thomas has entered into an agreement with the

10 Maricopa County Sheriff, Joe Arpaio, under which Thomas has delegated to the

11 Sheriff’s office certain investigation and enforcement authority that was conferred

12 upon Thomas in the Legal Arizona Workers Act. The actions of the Maricopa County

13 Sheriff’s office in enforcing the Legal Arizona Workers Act are therefore conducted

14 as an agent of Thomas and Thomas is liable for such actions.

15

65. Defendant Matthew J. Smith is the County Attorney for Mohave

16 County, Arizona. He is named herein as a Defendant in his capacity as County

17 Attorney.

18

66. Defendant James Currier is the County Attorney for Navajo County,

19 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

20

67. Defendant Barbara LaWall is the County Attorney for Pima County,

21 Arizona. She is named herein as a Defendant in her capacity as County Attorney.

22

68. Defendant James P. Walsh is the County Attorney for Pinal County,

23 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

24

69. Defendant George Silva is the County Attorney for Santa Cruz County,

25 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

26

70. Defendant Sheila Polk is the County Attorney for Yavapai County,

27 Arizona. She is named herein as a Defendant in her capacity as County Attorney.

28

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1

71. Defendant Jon Smith is the County Attorney for Yuma County,

2 Arizona. He is named herein as a Defendant in his capacity as County Attorney.

3

72. Defendant Terry Goddard is the Attorney General of the State of

4 Arizona (the “Attorney General”). He is named herein as a Defendant in his capacity

5 as Attorney General.

6

73. Defendant Fidelis V. Garcia is the Director of the Arizona Registrar of

7 Contractors. He is named herein as a Defendant in his capacity as Director of the

8 Arizona Registrar of Contractors.

9

74. Each Plaintiff and the members of each Plaintiff are affected by the

10 actions of the State of Arizona in enacting into law the Legal Arizona Workers Act.

11

75. Each Plaintiff has standing to sue in this action.

12

76. The Due Process, Commerce Clause, and Supremacy/Preemption claims

13 of Plaintiffs arise under the Constitution and laws of the United States. As a result,

14 Plaintiffs have a right to sue arising under 42 U.S.C. § 1983.

15

77. This Court has jurisdiction over the Due Process, Commerce Clause and

16 Supremacy Clause/Preemption claims of Plaintiffs pursuant to 28 U.S.C. §§ 1331 and

17 1343 because they arise under the Constitution and laws of the United States.

18

78. This Court has jurisdiction over the Plaintiffs’ state law claims pursuant

19 to 28 U.S.C. § 1367.

20

79. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).

21

80. Pursuant to 28 U.S.C. §§ 2201-2202, the Court may issue a declaratory

22 judgment and further necessary or proper relief.

23

ALLEGATIONS COMMON TO ALL CLAIMS

24

81. On July 2, 2007, the Honorable Janet Napolitano, the Governor of

25 Arizona, signed into law HB 2779, a bill passed by the Arizona Legislature on June

26 20, 2007, known as the Legal Arizona Workers Act, codified in relevant part at

27 A.R.S. § 23-211 to 23-214.

28

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1

82. A.R.S. § 23-212(A) prohibits employers from “knowingly” or

2 “intentionally” employing an unauthorized alien.

3

83. A.R.S. § 23-212(B) requires the Arizona Attorney General and the

4 County Attorneys of the several counties in Arizona to investigate all complaints that

5 an employer is knowingly or intentionally employing an unauthorized alien.

6

84. A.R.S. § 23-212(B)-(C) requires County Attorneys to prosecute all

7 complaints that are considered to be “not frivolous.”

8

85. When investigating complaints pursuant to A.R.S. § 23-212(B), the

9 County Attorneys or the Attorney General must verify an individual’s work

10 authorization exclusively by communicating with the federal government pursuant to

11 8 U.S.C. § 1373(c).

12

86. The County Attorneys take an oath of office and are to faithfully uphold

13 and enforce the law.

14

87. Under the Legal Arizona Workers Act, effective January 1, 2008,

15 employers that are deemed to have “knowingly” or “intentionally” hired unauthorized

16 aliens may have their business licenses suspended for a first violation of A.R.S. § 23-

17 212(A) and permanently revoked for a second violation of A.R.S. § 23-212(A).

18

88. A.R.S. § 23-214 requires that after December 31, 2007, every employer

19 must verify the employment eligibility of employees through the federal

20 government’s otherwise voluntary E-Verify Program.

21

89. In order to enroll in E-Verify, Arizona employers must access E-Verify

22 through a computer and the use of the Internet.

23

90. Some of Plaintiffs’ members are small businesses that do not own a

24 computer and do not have Internet access to be able to use E-Verify at their business.

25

91. One or more of Plaintiffs’ Members have already incurred expenses to

26 come into compliance with the Legal Arizona Workers Act’s requirements that

27 employers use E-Verify, including training, equipment, outsourcing the E-Verify

28 process and other expenses.

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1

92. Using E-Verify impose burdens on employers, including Plaintiffs and

2 their members. These include the costs for the equipment necessary to use E-Verify

3 and the staff time necessary for training and using E-Verify.

4

93. The annual operating costs for E-Verify is $1,800.

5

94. Arizona Contractors Association Members, Associated Minority

6 Contractors Members, Arizona Roofing Contractors Association Members, National

7 Roofing Contractors’ Association Members and some of the other Plaintiffs’ members

8 are contractors that hold contractors licenses from the State of Arizona.

9

95. Pursuant to A.R.S. § 32-1154(a)(12), the failure of a contractor to

10 comply with any labor law of the state government is grounds for revocation or

11 suspension of the Plaintiffs’ Members’ contractors license. The failure to use E-

12 Verify as required by the Legal Arizona Workers Act would constitute the failure to

13 comply with a labor law.

14

96. On information and belief, County Attorney Criss Candelaria has

15 already received complaints that one or more Plaintiffs or one or more of Plaintiffs’

16 members is employing an unauthorized alien.

17

97. On information and belief, County Attorney Ed Rheinheimer has

18 already received complaints that one or more Plaintiffs or one or more of Plaintiffs’

19 members is employing an unauthorized alien.

20

98. On information and belief, County Attorney Terence Hance has already

21 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

22 is employing an unauthorized alien.

23

99. On information and belief, County Attorney Daisy Flores has already

24 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

25 is employing an unauthorized alien.

26

100. On information and belief, County Attorney Kenny Angle has already

27 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

28 is employing an unauthorized alien.

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101. On information and belief, County Attorney Derek Rapier has already

2 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

3 is employing an unauthorized alien.

4

102. On information and belief, County Attorney Martin Brannan has already

5 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

6 is employing an unauthorized alien.

7

103. On information and belief, County Attorney Andrew Thomas has

8 already received complaints that one or more Plaintiffs or one or more of Plaintiffs’

9 members is employing an unauthorized alien.

10

104. On information and belief, the Maricopa County Sheriff’s Office with

11 whom Maricopa County Attorney Andrew Thomas has signed an agreement that the

12 Sheriff would help investigate complaints pursuant to the Legal Arizona Workers Act,

13 has already received complaints that one or more Plaintiffs or one or more of

14 Plaintiffs members is employing an unauthorized alien.

15

105. On information and belief, County Attorney Matthew J. Smith has

16 already received complaints that one or more Plaintiffs or one or more of Plaintiffs’

17 members is employing an unauthorized alien.

18

106. On information and belief, County Attorney James Currier has already

19 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

20 is employing an unauthorized alien.

21

107. On information and belief, County Attorney Barbara LaWall has

22 already received complaints that one or more Plaintiffs or one or more of Plaintiffs’

23 members is employing an unauthorized alien.

24

108. On information and belief, County Attorney James P. Walsh has already

25 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

26 is employing an unauthorized alien.

27

28

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109. On information and belief, County Attorney George Silva has already

2 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

3 is employing an unauthorized alien.

4

110. On information and belief, County Attorney Sheila Polk has already

5 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

6 is employing an unauthorized alien.

7

111. On information and belief, County Attorney Jon Smith has already

8 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

9 is employing an unauthorized alien.

10

112. On information and belief, Attorney General Terry Goddard has already

11 received complaints that one or more Plaintiffs or one or more of Plaintiffs’ members

12 is employing an unauthorized alien.

13

113. On information and belief, Defendants intend to fully and faithfully

14 prosecute the law and violations of the Legal Arizona Workers Act.

15

114. On information and belief, one or more Defendants intend to investigate

16 and prosecute one or more of Plaintiffs’ members after January 1, 2008.

17

115. At least one member of one of the Plaintiff associations employs an

18 undocumented worker, intends not to comply with the Legal Arizona Workers Act

19 and has been threatened with prosecution by the office of the Maricopa County

20 Sheriff and Maricopa County Attorney.

21

116. At least one member of one of the Plaintiff associations has received a

22 voicemail message from a caller identifying himself as being with the Maricopa

23 County Sheriff’s office Illegal Immigration Task Force. The caller communicated

24 that the Sheriff’s office had received complaints about the employer hiring

25 undocumented workers. The call was part of the investigation and enforcement

26 activities pursuant to the Legal Arizona Workers Act. As previously alleged, any

27 such actions by the Maricopa County Sheriff’s office were conducted under the

28

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1 authority and as an agent of Defendant Andrew Thomas, County Attorney of

2 Maricopa County.

3

117. Defendant Thomas, Maricopa County Attorney, has begun enforcement

4 activities pursuant to the Arizona Legal Workers Act.

5

118. The enforcement activities by Defendant Thomas include receiving

6 complaints and preparing to or actually beginning to investigate those complaints.

7

119. The enforcement activities of Defendant Thomas include preparations

8 to bring claims against employers pursuant to A.R.S. § 23-212.

9

120. The enforcement activities of Defendant Thomas include preparations to

10 investigate and bring claims against Plaintiffs and their members.

11

121. Plaintiffs are entitled to injunctive relief. They have a strong likelihood

12 of success on the merits and will suffer irreparable harm if the Legal Arizona Workers

13 Act is not enjoined and is enforced against employers in Arizona, including Plaintiffs.

14

122. Plaintiffs will suffer irreparable harm as a result of the potential

15 enforcement of the Legal Arizona Workers Act, as a result of the legal uncertainty

16 that they face due to the Legal Arizona Workers Act’s vagueness and its provisions

17 that conflict with other laws and the Constitution.

18

123. Plaintiffs are entitled to recover the costs and attorneys’ fees of bringing

19 this suit pursuant to 42 U.S.C.§ 1988.

20

FIRST CLAIM FOR RELIEF

21 VIOLATION OF PROCEDURAL DUE PROCESS GUARANTEES UNDER

22

THE U.S. CONSTITUTION

23

124. Plaintiffs hereby incorporate by this reference all allegations of the

24 preceding paragraphs of this Complaint, as if fully set forth herein.

25

125. Under the Fourteenth Amendment to the U.S. Constitution, state and

26 local governments are prohibited from depriving any person of property without due

27 process of law.

28

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126. Corporations, including Plaintiffs and their members, are persons

2 entitled to due process.

3

127. Licenses or permits from the State of Arizona and/or its political

4 subdivisions are property interests that are subject to the due process protections of

5 the Fourteenth Amendment to the U.S. Constitution.

6

128. The County Attorneys, the Attorney General, the State of Arizona and

7 its political subdivisions and other public officials are prohibited by the Fourteenth

8 Amendment from suspending or revoking business licenses or permits unless the

9 State or its political subdivisions provide due process of law to the holder of the

10 license or permit.

11

129. Due process of law requires, at a minimum, that before any person,

12 whether an individual, corporation or other business entity, may be deprived of a

13 license or permit, the State must provide:

14

(a) Notice and a reasonable definite statement of the charges or

15

matters at issue.

16

(b) Notice of the time and place of a hearing.

17

(c) The right to produce witnesses at a hearing.

18

(d) The right to examine witnesses at a hearing.

19

(e) The right to a full consideration and determination of the issues

20

based on the evidence.

21

130. The Legal Arizona Workers Act does not provide Plaintiffs, their

22 members, or other employers with due process before the State may deprive them of

23 property interests.

24

131. In contrast to the Legal Arizona Workers Act, federal immigration law

25 contains provisions to provide due process rights to employers. Under federal

26 immigration law, before an employer is found to have violated the law, the employer

27 is provided the following due process rights:

28

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(a) A signed, written complaint must be filed with sufficient

2

information to identify the complainant and the potential violator,

3

including names and addresses.

4

(b) The federal government investigates only those complaints

5

“which, on their face, have a substantial probability of validity.”

6

8 U.S.C. § 1324a(c)(1)(B).

7

(c) After investigation the federal government may issue a Warning

8

Notice or Notice of Intent to Fine.

9

(d) The Notice of Intent to Fine must include the basis for the

10

charges, the statutory provisions alleged to have been violated,

11

and the penalty to be imposed.

12

(e) The Notice of Intent to Fine must also notify the employer of its

13

rights, including the right to counsel, that any statement may be

14

used against the employer, and the employer’s right to a hearing.

15

(f) The respondent employer has a right to request a hearing before a

16

federal administrative law judge. 8 C.F.R. § 274a.9(e) and

17

8 U.S.C. § 1324a(e)(3).

18

(g) The employer has the right to an evidentiary hearing, with

19

appellate review, as is customary in other federal

20

administrative/adjudicative proceedings.

21

(h) At the hearing, the employer has the right to present evidence

22

and to cross-examine witnesses regarding the evidence presented

23

against it.

24

132. Under the Legal Arizona Workers Act, Plaintiffs, their members, and

25 other employers will not be provided any of the due process rights of federal law set

26 forth in the preceding paragraph.

27

133. Under the Legal Arizona Workers Act, Plaintiffs, their members and

28 other employers will be subject to an enforcement scheme that includes the following:

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(a)

2

3

4

5

6

7

8

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(b)

10

11

12

13

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(c)

15

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(d)

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(e)

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(f)

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(g)

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Complaints may be initiated by any person without a signed written complaint, without any standards, without any requirements for the identification of the person(s) who is accused of not being authorized to work in this country, without any disclosure or identification of the basis for the allegation that an employee is not authorized to work, and without any requirement that any basis for the allegation must exist before an investigation must be initiated. Complaints may be initiated based solely on or primarily on race, national origin, language ability or characteristics, accent, physical appearance, clothing characteristic of an ethnic group, religious attire, racial or ethnic prejudice or other unlawful factors. Complaints may be initiated for reasons unrelated to the enforcement of immigration laws. The Attorney General and County Attorneys are compelled to investigate all complaints regardless of the lack of any basis for the complaint. The Attorney General and County Attorneys must investigate all complaints, even if the basis for the complaint is racial or ethnic prejudice or discrimination or any other improper unlawful motive. There is no notice of the initiation of an investigation to the employer or to the individual who is the subject of the investigation (the “Affected Employee”). The investigation relating to whether an employee is authorized to work in the United States consists solely of a request by the Attorney General or a County Attorney to the federal government
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to check federal computer records pursuant to 8 U.S.C.

2

§ 1373(c).

3

(h) HB 2779 excludes the ability of the Attorney General or County

4

Attorneys to consider any other evidence besides the response

5

from the federal government pursuant to 8 U.S.C. § 1373(c) in

6

determining whether an employee is authorized to work.

7

(i) The County Attorneys are compelled to prosecute the employer

8

in every case in which a complaint was investigated and found

9

“not frivolous.”

10

(j) In any proceedings in Arizona courts to impose penalties under

11

A.R.S. § 23-212(F), including the suspension or revocation of all

12

business licenses or permits of Plaintiffs, their members, and

13

other employers, A.R.S. § 23-212(H) restricts the evidence that

14

may be considered.

15

(k) The Legal Arizona Workers Act provides in part, “On

16

determining whether an employee is an unauthorized alien, the

17

Court shall consider only the federal government’s determination

18

pursuant to 8 U.S.C. § 1373(c).” A.R.S. § 23-212(H). The

19

Legal Arizona Workers Act also states that Arizona courts may

20

take judicial notice of the federal government’s so-called

21

“determination” under 8 U.S.C. § 1373(c). Id.

22

(l) The Legal Arizona Workers Act does not give employers the

23

right to call witnesses on their behalf to establish the work

24

authorization of Affected Employees.

25

(m) The Legal Arizona Workers Act does not give Affected

26

Employees the right to call witnesses on their behalf to establish

27

their work authorization.

28

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(n)

2

3

4

5

(o)

6

7

8

(p)

9

10

(q)

11

12

13

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(r)

15

16

(s)

17

18

19

20

21

22

23

24

25

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27

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The Legal Arizona Workers Act does not give employers or Affected Employees the right to cross-examine witnesses for the federal or state government on the issue of the Affected Employee’s work authorization. The Legal Arizona Workers Act does not provide a procedure whereby an employer or Affected Employee may challenge erroneous “determinations” of immigration status. Due process rights are not provided to the employer or the Affected Employee under The Legal Arizona Workers Act. There is no “determination” made under 8 U.S.C. § 1373(c). The federal government’s informational response under 8 U.S.C. § 1373(c) is not a determination, but is merely a reflection of whatever information is in the federal government’s database. Due process rights are not provided before the federal government furnishes a response under 8 U.S.C. § 1373(c). The absence of any “determination” pursuant to 8 U.S.C. § 1373(c) is reflected by the fact that federal immigration law does not provide for any action to be taken by the federal government against a person or employer based upon response under 8 U.S.C. § 1373(c). Determinations by the federal government of whether an employer knowingly employed an unauthorized alien are made pursuant to 8 CFR § 274a.9, and require a hearing and due process, as set forth in paragraph 131 above. Determinations of an alien’s status are made pursuant to administrative procedures that provide due process protections. Determinations are not made pursuant to 8 U.S.C. § 1373(c), and the federal immigration system does not provide a final determination of immigration status at the request of a state or local government.
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(t) To find that an Arizona employer knowingly or intentionally

2

employed an unauthorized alien, the Arizona Court will be

3

required to make a determination that the Affected Employee is

4

an unauthorized alien, but the Arizona Court has no authority to

5

determine an alien’s immigration status. Such status

6

determinations may be made only by a federal immigration

7

judge. 8 U.S.C. § 1229a(a)(1) and (a)(3). The Legal Arizona

8

Workers Act does not provide due process to Employers and

9

Affected Employees to subject them to a hearing in an Arizona

10

Court that does not have jurisdiction to determine immigration

11

status.

12

134. The procedures established pursuant to the Legal Arizona Workers Act

13 do not satisfy the due process requirements of the United States Constitution.

14

135. It is a violation of Plaintiffs’ due process rights for the State of Arizona

15 to make mandatory the use of the federal government’s otherwise voluntary electronic

16 employment verification system known as E-Verify because the Legal Arizona

17 Workers Act conflicts with federal law and information given to employers by the

18 federal government regarding the voluntary nature of their participation in E-Verify,

19 as alleged more fully in paragraphs 203-225 below.

20

136. It is a violation of Plaintiffs’ due process rights for the Legal Arizona

21 Workers Act to make mandatory the use of the federal government’s E-Verify system

22 because the laws of the State of Illinois prohibit the use of E-Verify unless and until it

23 meets performance standards that it currently does not meet, as alleged more fully in

24 paragraphs 220-224 below.

25

137. The Legal Arizona Workers Act violates the due process rights of

26 members of Plaintiffs who have employees in both Arizona and Illinois because the

27 Legal Arizona Workers Act places employers in the position of violating the laws of

28

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1 either Arizona or Illinois and makes it impossible for such employers to comply with

2 the laws of both states.

3

138. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

4 Workers Act is unconstitutional because it violates the Fourteenth Amendment to the

5 U.S. Constitution.

6

139. Plaintiffs are entitled to a preliminary and permanent injunction to

7 enjoin the County Attorneys and Attorney General from taking actions to enforce or

8 implement the Legal Arizona Workers Act.

9

SECOND CLAIM FOR RELIEF

10

VIOLATION OF PROCEDURAL DUE PROCESS GUARANTEES OF

ARIZONA CONSTITUTION

11

140. Plaintiffs hereby incorporate by this reference all allegations of the

12 preceding paragraphs of this Complaint, as if fully set forth herein.

13

141. Article II, § 4 of the Arizona Constitution prohibits state and local

14 governments from depriving any person of property without due process of law.

15

142. Corporations, including Plaintiffs and their members, are persons

16 entitled to due process.

17

143. Licenses or permits from the State of Arizona and/or its political

18 subdivisions are property interests that are subject to the due process protections of

19 Article II, § 4 of the Arizona Constitution.

20

144. The County Attorneys, the Attorney General, the Registrar of

21 Contractors, the State of Arizona and its political subdivisions and other public

22 officials are prohibited by Article II, § 4 of the Arizona Constitution from suspending

23 or revoking business licenses or permits unless the State or its political subdivisions

24 provide the holder of the license or permit due process of law.

25

145. The Defendants’ actions that violate the Fourteenth Amendment to the

26 U.S. Constitution, as alleged in paragraphs 124-139 above, also violate the Arizona

27 Constitution.

28

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146. The procedures established by the Legal Arizona Workers Act do not

2 satisfy and are in conflict with provisions of existing Arizona law for the procedures

3 that must be used and due process rights that must be provided in order for

4 Defendants to suspend or revoke licenses or permits.

5

147. The procedures established under the Legal Arizona Worker Act do not

6 satisfy the due process requirements of the Arizona Constitution.

7

148. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

8 Workers Act is unconstitutional because it violates Article II § 4 of the Arizona

9 Constitution.

10

149. Plaintiffs are entitled to a preliminary and permanent injunction to

11 enjoin the County Attorneys and Attorney General from taking actions to enforce or

12 implement the Legal Arizona Workers Act.

13

THIRD CLAIM FOR RELIEF

14

VIOLATION OF COMMERCE CLAUSE

15

150. Plaintiffs hereby incorporate by this reference all allegations of the

16 preceding paragraphs of this Complaint, as if fully set forth herein.

17

151. The Commerce Clause of the U.S. Constitution vests Congress with the

18 exclusive authority to “regulate Commerce… among the several states.” U.S.

19 Constitution, Art. I, § 8, cl. 3. The Commerce Clause forbids states and local

20 governments, including the State of Arizona, from regulating or passing laws that

21 restrict or interfere with interstate commerce.

22

152. The Legal Arizona Workers Act purports to and will regulate interstate

23 commerce.

24

153. Although the definition of employer contained in A.R.S. § 23-211(4)

25 provides that the employer must have a license or permit from the State of Arizona, or

26 one of its political subdivisions, and must have at least one employee in Arizona, the

27 definition of employee in A.R.S. § 23-211(3) is limited to employees who were hired

28 or who perform services within Arizona.

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154. The definition of employee in A.R.S. § 23-211(3) includes “any person

2 who performs employment services for an employer pursuant to an employment

3 relationship between the employee and employer.”

4

155. By its terms, the above definition of employee contained in A.R.S. §

5 23-211(3) includes all employees who work for any business that has one or more

6 employees within the State of Arizona and a license or permit from the State of

7 Arizona or one of its political subdivisions.

8

156. The definition of employee subject to regulation by the Legal Arizona

9 Workers Act includes employees who work exclusively in states other than Arizona,

10 who were hired in states other than Arizona and who have never worked in Arizona,

11 but work for businesses that have at least one employee in Arizona and hold a license

12 or permit from the Sate of Arizona or one of its political subdivisions.

13

157. The above definition of employee subject to regulation by the Legal

14 Arizona Workers Act includes employees who were hired in states other than Arizona

15 and who later were transferred or relocated to Arizona to perform employment

16 services in Arizona.

17

158. The above definition of employee subject to regulation by the Legal

18 Arizona Workers Act includes employees who were hired in states other than Arizona

19 and who perform work in Arizona on only an occasional basis.

20

159. Under the Legal Arizona Workers Act, the Attorney General or County

21 Attorneys will be required to investigate complaints relating to employees who were

22 hired in states other than the State of Arizona.

23

160. Under the Legal Arizona Workers Act, the Attorney General or County

24 Attorneys will be required to investigate complaints relating to employees who were

25 hired in states other than Arizona and who are residents of states other than Arizona

26 and who perform services in Arizona on only an occasional or temporary basis or not

27 at all.

28

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161. Under the Legal Arizona Workers Act, the Attorney General or County

2 Attorneys will be required to investigate complaints relating to employees who were

3 hired in states other than Arizona and who perform services only in states other than

4 Arizona, as there is nothing in the Legal Arizona Workers Act that restricts the

5 regulation and enforcement of its provisions to employees who are performing

6 services within the State of Arizona.

7

162. Under the Legal Arizona Workers Act, the enforcement actions of the

8 State of Arizona will extend to employees or job sites in states other than Arizona, as

9 there is nothing in the Legal Arizona Workers Act that restricts the regulation and

10 enforcement of its provisions to employees performing services in the State of

11 Arizona or work sites in the State of Arizona.

12

163. Under the Legal Arizona Workers Act, Arizona businesses could lose

13 their Arizona licenses for conduct that occurred wholly outside the State of Arizona

14 and that the State of Arizona has no authority to regulate.

15

164. A.R.S. § 23-214 requires employers to use E-Verify to verify the

16 employment eligibility of its employees after December 31, 2007.

17

165. The requirement that employers use E-Verify to verify the employment

18 eligibility of its employees is not limited to employees in the State of Arizona, but

19 applies to all employees of businesses that have at least one employee in Arizona and

20 a license or permit issued by the State or one of its political subdivisions.

21

166. By requiring that employers use E-Verify to verify the work

22 authorization of employees who do not perform services in Arizona and by extending

23 investigations and enforcement actions to employees outside of Arizona, Arizona is

24 regulating commerce that occurs wholly outside the State of Arizona and that the

25 State of Arizona has no authority to regulate.

26

167. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

27 Workers Act is unconstitutional because it violates the Commerce Clause of the U.S.

28

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1 Constitution due to its extraterritorial effects and control of commerce that occurs

2 outside the borders of Arizona.

3

168. Plaintiffs are entitled to a preliminary and permanent injunction to

4 enjoin the County Attorneys and Attorney General from taking actions to enforce or

5 implement the Legal Arizona Workers Act.

6

FOURTH CLAIM FOR RELIEF

7 VIOLATIONS OF SUPREMACY CLAUSE OF U.S. CONSTITUTION AND
PRE-EMPTION BY FEDERAL IMMIGRATION LAW 8
169. Plaintiffs hereby incorporate by this reference all allegations of the 9
preceding paragraphs of this Complaint, as if fully set forth herein. 10
170. Under the Supremacy Clause of the U.S. Constitution, federal law may 11
expressly or implicitly preempt state and local laws. 12
171. In accordance with its exclusive power over matters of immigration, the 13
U.S. Congress has adopted, pursuant to the Immigration and Nationality Act, 8 U.S.C. 14
§ 1101 et seq., and other laws, a comprehensive system of laws, regulations, and 15
procedures and has created administrative agencies that determine, subject to judicial 16
review, whether and under what conditions individuals may enter, stay in, and work in 17
the U.S. and a system of civil and criminal penalties for those violating the law, 18
including employers who knowingly employ unauthorized aliens. 19
172. When enacting the Immigration Reform and Control Act, Congress 20
expressly pre-empted state and local laws. The Immigration Reform and Control Act 21
provides, in part, as follows: “[Federal law] pre-empts any state or local law 22
imposing similar criminal sanctions (other than through licensing and similar laws) 23
upon those who employ unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). 24
173. The licensing exception was designed and intended to allow state 25
governments to take action against the business license for employers “found to have 26
violated the sanctions provision” of 8 U.S.C. § 1324a – essentially only after the 27
employer had been found by the federal government to have violated the federal law. 28

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174. The licensing exception to the preemption clause in 8 U.S.C. §

2 1324a(h)(2) does not allow states to pass laws prohibiting the employment of

3 unauthorized aliens.

4

175. The federal government has enacted broad, comprehensive immigration

5 laws that govern who is eligible to work in the United States and that govern the

6 process by which employers must verify the eligibility of job applicants.

7

176. The federal government has occupied the field of immigration

8 regulation through the Immigration and Nationality Act (“INA”), the Immigration

9 Reform and Control Act of 1986 (“IRCA”), the Illegal Immigration Reform and

10 Immigrant Responsibility Act (“IIRIRA”), and other laws, including occupying the

11 field relating to prohibiting the employment of unauthorized workers and verifying

12 the eligibility of job applicants.

13

177. The immigration laws, procedures, and policies created by the federal

14 government regulate immigration and confer rights in a careful balance reflecting the

15 national interest.

16

178. Congress carefully balanced the requirements and penalties in the

17 federal immigration law with consideration of the tension that immigration

18 compliance and sanctions might cause relating to race, national origin, and citizenship

19 discrimination.

20

179. The Constitution bars Defendants from altering or obstructing the

21 federal government’s carefully crafted comprehensive immigration regime.

22

180. The Constitution bars Defendants from enacting or enforcing laws that

23 conflict with federal law, including federal immigration laws.

24

181. The Legal Arizona Workers Act conflicts with federal law and is

25 therefore preempted by federal law and is unconstitutional pursuant to the Supremacy

26 Clause of the U.S. Constitution.

27

28

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182. Federal law governs the documents that employers must accept to make

2 employment decisions regarding whether persons are authorized to work in this

3 country.

4

183. Federal law prohibits employers from conducting any further

5 investigation or taking any steps other than reviewing any of the 24 forms of

6 documents that employees have the right, under federal law, to present to an employer

7 to establish eligibility for employment in this country. Once an employee has

8 satisfied the verification requirements of 8 U.S.C. § 1324a, employers are barred by

9 federal law from seeking additional information regarding their authorization to work.

10

184. Federal law prohibits employers from making additional inquiries,

11 conducting additional investigations, or taking additional steps to determine an

12 applicant’s or employee’s eligibility to work in this country, other than (i) having

13 examined the original documents that the employee chose to present, (ii) if the

14 employer voluntarily enters into an agreement, to utilize E-Verify, and (iii) taking

15 certain steps in response to receiving a communication from the Social Security

16 Administration that an employee’s name does not match an employee’s Social

17 Security number.

18

185. Federal law prohibits the use of the Form I-9 for any law enforcement

19 purpose other than for enforcement of IRCA or other specified federal laws. 8 U.S.C.

20 § 1324a(d)(2)(F).

21

186. Federal law prohibits the use of the Form I-9 or any information on the

22 I-9 except by the Department of Homeland Security, Department of Labor, or

23 Department of Justice for purposes of enforcing IRCA or other specified federal laws.

24 8 U.S.C. § 1324a(b)(5).

25

26

27

28

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187. The Legal Arizona Workers Act provides that employers who comply

2 with the federal I-9 requirement have an affirmative defense that they did not 3 knowingly or intentionally employ an unauthorized alien. A.R.S. § 23-212(J).1

4

188. The affirmative defense provided in A.R.S. § 23-212(J) conflicts with

5 federal limitations on the use of the Form I-9 and thus is preempted by federal law.

6

189. The factors to be considered by Arizona courts in determining whether

7 to suspend business licenses include “whether the employer made good faith efforts to

8 comply with any applicable requirements,” which necessarily will require the

9 consideration of the employer’s compliance with the Form I-9. The foregoing

10 enforcement provisions of A.R.S. § 23-212(F)(1)(d) conflicts with the federal

11 limitations on the use of the Form I-9 and is thus preempted by federal law.

12

190. The federal government has failed to issue tamper-proof and forgery-

13 proof forms of identification to persons that employers may rely upon to confirm with

14 accuracy and reliability the identity of a person or the person’s eligibility to work in

15 the United States.

16

191. The State of Arizona has failed to issue tamper-proof and forgery-proof

17 documents establishing the identity of residents of the State of Arizona.

18

192. Federal immigration law and federal employment discrimination laws

19 prohibit employers from taking action to refuse to hire or discharge employees based

20 upon their citizenship, national origin, race, ethnicity, color or other classifications

21 protected by law.

22

193. The Legal Arizona Workers Act threatens the uniformity and primacy

23 of the federal immigration system and conflicts with federal immigration law.

24

25

26

1

A.R.S. 23-212(J) actually provides that good faith compliance with 8 U.S.C. §

1324b, the non-discrimination provisions of IRCA, is a good-faith defense. This is a

27

typographical error. The law intended to refer to 8 U.S.C. § 1324a(b), the I-9 employment verification system.

28

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194. The Legal Arizona Workers Act stands as an obstacle to the uniform

2 enforcement and application of federal immigration laws and the comprehensive

3 regime created by Congress.

4

195. The Legal Arizona Workers Act imposes penalties on employers for

5 Arizona’s state-regulated immigration enforcement measures beyond and different

6 than what the federal government requires.

7

196. The Legal Arizona Workers Act makes unlawful an additional

8 immigration-related employment practice that is not prohibited under federal law, that

9 of “intentionally” employing an unauthorized alien.

10

197. The prohibition in A.R.S. § 23-212(A) against “intentionally”

11 employing an unauthorized alien is preempted by IRCA. It is inconsistent with the

12 uniform enforcement of federal immigration law and Congress has already acted,

13 through IRCA, to occupy the field regarding controlling the employment of aliens.

14

198. The definition of “license” in A.R.S. § 23-211(7) subject to being

15 suspended or revoked includes items that are not licenses within any traditional sense

16 of the word or as the term is used in 8 U.S.C. § 1324a(h)(2).

17

199. Articles of Incorporation, a grant of authority, a Certificate of

18 Partnership, a Partnership Registration and Articles of Organization are not

19 “licenses.”

20

200. The Arizona Legislature exceeded the savings clause in 8 U.S.C. §

21 1324a(h)(2) when it defined “license” to include Articles of Incorporation, a grant of

22 authority, a Certificate of Partnership, a Partnership Registration, and Articles of

23 Organization.

24

201. Under The Legal Arizona Workers Act, Arizona courts could order the

25 Arizona Corporation Commission to “suspend” corporations’ Articles of

26 Incorporation.

27

28

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202. There is no legal meaning to “suspending” a corporation’s Article of

2 Incorporation. Either the corporation’s charter exists or it does not. There is no in-

3 between concept of a “suspended” Articles of Incorporation.

4

203. The federal government does not require employers to use E-Verify. It

5 is a strictly voluntary program, except in the few cases where the federal government

6 requires employers that violated the employment verification laws to use E-Verify as

7 part of a settlement with the federal government.

8

204. Authorization for E-Verify expires November 30, 2008 at which time

9 the program expires and will no longer exist without further action by the U.S.

10 Congress before November 30, 2008.

11

205. The fact that the federal government does not require employers to use

12 E-Verify evidences the intent of the federal government that E-Verify remain

13 voluntary and that employers are not to be required to use E-Verify.

14

206. In order to use E-Verify, employers must enter into a contract with the

15 federal government that is contained in a Memorandum of Understanding issued by

16 the federal government.

17

207. The terms of the contract with the federal government for use of E-

18 Verify obligate employers to use E-Verify in accordance with the federal

19 government’s requirements and procedures, including but not limited to the matters

20 set forth in the federal government’s Memorandum of Understanding and a 64-page

21 User’s Manual for E-Verify.

22

208. The federal government provides information to potential and actual

23 users of E-Verify, via a computer internet connection, to inform potential and actual

24 users of E-Verify about the terms and conditions for operation and use of E-Verify.

25

209. The information provided by the federal government to potential and

26 actual users of E-Verify specifically informs them that the use of E-Verify by

27 employers is voluntary.

28

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210. The Legal Arizona Workers Act is preempted by federal law and is

2 unconstitutional under the Supremacy Clause, and is a denial of due process because

3 of the conflicting and inconsistent provisions of the state and federal law and the

4 conflicting and inconsistent information that employers receive from the State of

5 Arizona and the federal government. The State of Arizona, by enacting the Legal

6 Arizona Workers Act, and Defendants, by enforcing it, mandate that Arizona

7 employers must log onto a federal website that provides Arizona employers with

8 information from the federal government that is the opposite of and contradictory to

9 the provisions of the Legal Arizona Workers Act.

10

211. The Legal Arizona Workers Act places Arizona employers, including

11 plaintiffs and their members, at risk of being found to be in violation of Arizona law

12 because Arizona employers followed and complied with the information from the

13 federal government that their use of E-Verify is voluntary, as communicated to them

14 by the federal government on the computer system maintained by the federal

15 government and that is made mandatory by the Legal Arizona Workers Act.

16

212. It is preempted by the federal law, unconstitutional, and a denial of due

17 process for the State of Arizona and Defendants to place Arizona employers in the

18 position of disregarding, ignoring, or not following the information and directions

19 given to them by the federal government on the very computer system that the State

20 of Arizona requires Arizona employers to use in order to participate in E-Verify.

21

213. The federal government’s Memorandum of Understanding provides that

22 the federal government may revoke the right of any employer to use E-Verify if they

23 do not comply with all of the federal government’s requirements for use of the

24 program.

25

214. Studies by the federal government document that at least half of the

26 users of E-Verify violate the federal government’s requirements in the manner in

27 which they use the program.

28

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215. The Memorandum of Understanding that is a contract between

2 employers and the federal government for use of E-Verify obligates the federal

3 government to furnish to the employer the name, address and telephone number of a

4 federal government employee who will available to answer the employer’s questions

5 and provide support for the employer’s use of E-Verify.

6

216. The State of Arizona does not have the authority to require employers to

7 use E-Verify, and its attempt to do so in the Legal Arizona Workers Act is preempted

8 by federal law.

9

217. The Legal Arizona Workers Act will place burdens on the Executive

10 Branch of the federal government including the Department of Justice, Department of

11 Homeland Security, and Social Security Administration, that will impede the

12 functions of those agencies.

13

218. By requiring that every complaint be investigated and that every

14 investigation must involve querying the federal government under 8 U.S.C. § 1373(c),

15 the Legal Arizona Workers Act places an impermissible burden on the federal

16 government.

17

219. By requiring that every Arizona employer use E-Verify, the Legal

18 Arizona Workers Act places an impermissible burden on the Executive Branch of the

19 federal government, including the Social Security Administration and the Department

20 of Homeland Security, who currently do not have the resources to successfully

21 absorb, support, monitor and enforce the compliance of 139,500 new Arizona users of

22 E-Verify, which currently has approximately 17,000 companies enrolled and only half

23 that many that actively use the program.

24

220. The Legal Arizona Workers Act is preempted by the Constitution and

25 federal law because it places some Arizona employers, including some of the

26 Plaintiffs and some of their members in the position of being compelled to violate the

27 laws of the State of Illinois.

28

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221. The State of Illinois has enacted Public Act 095-0138, that states, in

2 part, “employers are prohibited from enrolling in any employment eligibility

3 verification system, including E-Verify, as authorized by 8 U.S.C. § 1324(a) … until

4 the Social Security Administration (SSA) and Department of Homeland Security

5 (DHS) databases are able to make a determination on 99% of the tentative non-

6 confirmation notices issued to employers within three days, unless otherwise required

7 by federal law.”

8

222. The Social Security Administration and Department of Homeland

9 Security databases do not meet the performance standards mandated by the State of

10 Illinois, as set forth above.

11

223. Arizona employers who also have employees in Illinois are therefore

12 prohibited by the State of Illinois from using E-Verify, but are compelled by the State

13 of Arizona to use E-Verify under the Legal Arizona Workers Act effective on January

14 1, 2008.

15

224. The Legal Arizona Workers Act violates the Supremacy Clause of the

16 Constitution, is preempted by federal law, and violates due process rights. It places

17 some Arizona employers, including some of the Plaintiffs and their members, in the

18 position of mandating under Arizona law that they violate the laws of the State of

19 Illinois.

20

225. E-Verify is intended to be and has been adopted and implemented by

21 the federal government as a program for which enrollment by participating employers

22 is voluntary.

23

226. The obligations imposed upon employers pursuant to the terms of E-

24 Verify Memorandum of Understanding include the employer’s consent to certain

25 rights of the federal government to inspect the employer’s property and documents.

26

227. As set forth in the Sixth Claim for Relief, under the Fourth Amendment

27 to the U.S. Constitution, the federal government would not possess the right to

28 conduct searches without a warrant of the property and documents of employers who

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1 participate in E-Verify without the consent of employers to allow such searches

2 without a warrant.

3

228. E-Verify’s requirement that participating employers consent to the right

4 of the federal government to conduct searches of the property and documents of

5 employers who participate in E-Verify requires that the participation of employers in

6 E-Verify must be voluntary on the part of the employers.

7

229. If employers are compelled to participate in E-Verify, they will not have

8 consented to the rights of the federal government to conduct searches of the

9 employers’ property and documents.

10

230. The Legal Arizona workers Act compels Arizona employers, including

11 Plaintiffs and their members, to participate in the otherwise voluntary E-Verify

12 systems.

13

231. By compelling participation in E-Verify, the Legal Arizona Workers

14 Act is inconsistent with and negates the voluntariness of E-Verify that is essential for

15 there to be consent to the federal government’s right to inspect the participating

16 employers’ property and documents without a warrant.

17

232. E-Verify is preempted by federal law and violates the Supremacy

18 Clause of the U.S. Constitution by interfering with, contradicting, and negating the

19 voluntariness of the participating in E-Verify that is essential for the participants in

20 the program having given consent to the federal government’s rights under the

21 Memorandum of Understanding to conduct searches of the employers’ property and

22 documents without a warrant.

23

233. The requirement in A.R.S. § 32-1154(12) that would deprive Plaintiffs

24 or their members of a contractor’s license as a result of their failure to comply with

25 the Legal Arizona Workers Act, including the mandate to enroll in the E-Verify

26 Program, is preempted and conflicts with federal law and imposes a burden on some

27 of the members of Plaintiff associations.

28

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234. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

2 Workers Act is unconstitutional because it is preempted by federal law.

3

235. Plaintiffs are entitled to a preliminary and permanent injunction to

4 enjoin the County Attorneys and Attorney General from taking actions to enforce or

5 implement the Legal Arizona Workers Act.

6

236. Plaintiffs are entitled to a preliminary and permanent injunction to

7 enjoin Fidelis V. Garcia from taking any action against any Plaintiff or member of

8 Plaintiff associations on the basis that such Plaintiff or Plaintiff member failed to

9 comply with the Legal Arizona Workers Act.

10

FIFTH CLAIM FOR RELIEF

11 VIOLATION OF THE SEPARATION OF POWERS DOCTRINE OF THE

ARIZONA CONSTITUTION. 12
237. Plaintiffs hereby incorporate by this reference all allegations of the

13

preceding paragraphs of this Complaint, as if fully set forth herein.

14

238. The Constitution of Arizona divides the State Government of Arizona

15

into three branches, the executive, legislative and judicial. Article III of the

16

Constitution states as follows:

17

The powers of the government of the State of Arizona shall be divided

18

into three separate departments, the Legislative, the Executive, and the

Judicial, and, except as provided in this Constitution, such departments

19

shall be separate and distinct, and no one of such departments shall

exercise the powers properly belonging to either of the others. 20

239. The Arizona Constitution prohibits each branch of government from

21

exercising the powers that are given by the Constitution to a separate branch of

22

government.

23

240. The Constitution of Arizona prohibits the Legislative Branch of

24

government from exercising executive powers that properly belong to the Executive

25

Branch of government.

26

241. The Legislative Branch has the power to write and pass laws. The

27

Executive Branch has the sole power to carry out the provisions of the law.

28

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242. The Legal Arizona Workers Act contains a legislative mandate that the

2 Executive Branch of government investigate every complaint that it receives alleging

3 that an employer is knowingly or intentionally employing an unauthorized alien.

4 A.R.S. § 23-212(A).

5

243. A.R.S. § 23-212(B) dictates the method by which the Executive Branch

6 of government shall investigate each complaint. A.R.S. § 23-212(B) mandates that

7 the investigation regarding an employee’s status shall consist solely of an inquiry to

8 the federal government pursuant to 8 U.S.C. § 1373(c).

9

244. A.R.S. § 23-212(B) prohibits the Executive Branch of government

10 from considering information other than a response from the federal government

11 pursuant to 8 U.S.C. § 1373(c) in acting upon each complaint received by the

12 Executive Branch and determining whether an alien is authorized to work in the

13 United States.

14

245. The Legal Arizona Workers Act mandates that the Executive Branch of

15 government prosecute each complaint that is “not frivolous.”

16

246. The Legal Arizona Workers Act does not allow the exercise of

17 discretion by the Executive Branch in enforcing the Act. Prosecutors will be required

18 to bring lawsuits that on balance lack merit but do not fall to the level of being

19 “frivolous.”

20

247. The Legal Arizona Workers Act mandates that the Executive Branch

21 take each of the above actions regardless of the resources, other duties, professional

22 judgment and other priorities or factors that the Executive Branch would otherwise

23 consider in discharging its duties under the Legal Arizona Workers Act and under all

24 other laws for which it has the responsibility to take action.

25

248. Because of the mandate of the Legal Arizona Workers Act that all

26 complaints under A.R.S. § 23-212(B) must be investigated and all non-frivolous

27 complaints under the Legal Arizona Workers Act must be prosecuted, it is possible

28 that the Executive Branch of the Arizona Government may be unable to discharge

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1 other important duties that are the responsibility of the Executive Branch, including

2 but not limited to prosecuting suspects for murder, rape, child molestation, hate

3 crimes, financial fraud, driving while intoxicated, and other crimes.

4

249. The above provisions of the Legal Arizona Workers Act violate the

5 separation of powers clause of the Arizona Constitution. Each of the provisions set

6 forth above constitutes the exercise by the Legislative Branch of powers that are

7 reserved to the Executive Branch.

8

250. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

9 Workers Act is unconstitutional because it violates the separation of powers of the

10 Arizona Constitution.

11

251. Plaintiffs are entitled to a preliminary and permanent injunction to

12 enjoin the County Attorneys and Attorney General from taking actions to enforce or

13 implement the Legal Arizona Workers Act.

14

SIXTH CLAIM FOR RELIEF

15 VIOLATION OF PROTECTION AGAINST UNREASONABLE SEARCHES

16

AND SEIZURES UNDER THE U.S. CONSTITUTION

17

252. Plaintiffs hereby incorporate by reference all allegations of the

18 preceding paragraphs of this Complaint, as fully set forth herein.

19

253. Pursuant to the Fourth and Fourteenth Amendments of the U.S

20 Constitution, state and local governments are prohibited from conducting

21 unreasonable searches and seizures. The Fourth Amendment provides:

22

The right of people to be secure in their persons, houses, papers, and

23

effects, against unreasonable searches and seizures, shall not be

24

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

25

to be search, and the person or things to be seized.

26

254. The Legal Arizona Workers Act mandates that after December 31,

27 2007, every employer must verify the employment eligibility of employees through

28 the federal government’s otherwise voluntary E-Verify.

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255. Every employer that participates in the E-Verify must sign a

2 Memorandum of Understanding that states responsibilities and obligations of the

3 employer. Article II, Section C(15) of the Memorandum of Understanding requires

4 employers to allow the Department of Homeland Security, or authorized agents to

5 make periodic visits to the employers, to review E-Verify-related records, to interview

6 employees of the employer, and to inspect other employment records.

7

256. An employer’s enrollment in E-Verify subjects the employer to greater

8 rights by the federal government to inspect records and obtain access to an employer’s

9 property than would otherwise exist without a warrant.

10

257. The Legal Arizona Workers Act, by compelling Plaintiffs and their

11 members to enroll and participate in E-Verify, constitutes a forced waiver of Fourth

12 Amendment rights to be free from unreasonable searches and seizures. Mandating

13 participation in E-Verify and mandating signing the Memorandum of Understanding

14 is not a proper consent to search or waiver of employers’ Fourth Amendment

15 protections. Rather, it effectively forces employers to waive their constitutionally

16 guaranteed protections against warrantless searches.

17

258. Plaintiffs are entitled to a declaratory judgment that the Legal Arizona

18 Workers Act is unconstitutional because it violates the Fourth Amendment of the U.S.

19 Constitution.

20

259. Plaintiffs are entitled to a preliminary and permanent injunction to

21 enjoin the County Attorneys and Attorney General from taking actions to enforce or

22 implement HB 2779.

23

DEMAND FOR RELIEF

24

WHEREFORE, Plaintiffs respectfully demand judgment awarding the

25 following:

26

A. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

27

declaring that the Legal Arizona Workers Act is unconstitutional

28

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because it violates the procedural due process guarantees of the

2

Fourteenth Amendment to the U.S. Constitution.

3

B. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

4

declaring that the Legal Arizona Workers Act is unconstitutional

5

because it violates the procedural due process guarantee of Article II § 4

6

of the Arizona Constitution.

7

C. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

8

declaring that the Legal Arizona Workers Act is unconstitutional

9

because it is preempted by federal law.

10

D. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

11

declaring that the Legal Arizona Workers Act is unconstitutional

12

because it violates the Commerce Clause of the U.S. Constitution.

13

E. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

14

declaring that the Legal Arizona Workers Act is unconstitutional

15

because it violates the separation of powers of the Arizona Constitution.

16

F. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

17

declaring that the Legal Arizona Workers Act is unconstitutional

18

because it violates the Fourth Amendment to the U.S. Constitution.

19

G. A preliminary and permanent injunction to enjoin the County Attorneys,

20

Attorney General and Fidelis V. Garcia from taking actions to enforce

21

or implement the Legal Arizona Workers Act.

22

H. An award of attorneys’ fees and costs, plus interest, pursuant to 42

23

U.S.C. § 1988.

24

I. Such other relief as the Court deems just and proper.

25 ///

26 ///

27 ///

28 ///

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1

RESPECTFULLY SUBMITTED this 9th day of December, 2007.

2

BALLARD SPAHR ANDREWS &

3

INGERSOLL, LLP

4 By:/s/ David A. Selden

5

David A. Selden

6

Julie A. Pace Heidi Nunn-Gilman

7

3300 N. Central Avenue, Suite 1800

Phoenix, Arizona 85012 8

9

Louis R. Moffa, Jr.

Plaza 1000, Suite 500

10

Main Street

11

Voorhees, New Jersey 08043 856-761-3493

12 OF COUNSEL
13

14

Robin S. Conrad

Shane Brennan

15

National Chamber Litigation Center, Inc.

1615 H Street, NW

16

Washington, D.C. 20062

17 Attorneys for Plaintiffs
18

19

20

I hereby certify that on the 9th day of December, 2007, I caused the foregoing document:

21 COMPLAINT

22 To be filed electronically with the Clerk of

23

Court through ECF; and that ECF will send an e-notice of the electronic filing to the

24 following ECF participants:

25 And to be delivered as a courtesy hard copy 26 To:

27 28 /s/ Kathleen Reynolds_________________

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 1 Stephen P. Berzon

Jonathan Weissglass

2 Rebecca Smullin

ALTSHULER BERZON LLP

3 177 Post Street, Suite 300

San Francisco, CA 94108

4 Telephone: (415) 421-7151

Facsimile: (415) 362-8064

Linton Joaquin

5 Email: jweissglass@altshulerberzon.com Monica T. Guizar

Karen C. Tumlin

6 Kristina M. Campbell

NATIONAL IMMIGRATION LAW CENTER

(AZ Bar No. 023139)

3435 Wilshire Blvd., Suite 2850

7 Cynthia A. Valenzuela

Los Angeles, CA 90010

MEXICAN AMERICAN LEGAL

Telephone: (213) 639-3900

8 DEFENSE AND EDUCATIONAL

Facsimile: (213) 639-3911

FUND

Email: tumlin@nilc.org

9 634 S. Spring Street, 11th Floor

Los Angeles, CA 90014

Daniel Pochoda (AZ Bar No. 021979)

10 Telephone: (213) 629-2512, x136

ACLU FOUNDATION OF ARIZONA

Facsimile: (213) 629-0266

P.O. Box 17148

11 Email: kcampbell@maldef.org

Phoenix, AZ 85011-0148

Telephone: (602) 650-1854

12 (Additional Counsel on Next Page)

Facsimile: (602) 650-1376

Email: dpochoda@acluaz.org

13

Attorneys for Plaintiffs

14

15

UNITED STATES DISTRICT COURT

16

FOR THE DISTRICT OF ARIZONA

17

PHOENIX DIVISION

18 VALLE DEL SOL, INC.; CHICANOS ) Case No. _________

POR LA CAUSA, INC.; and SOMOS )

19 AMERICA,

) COMPLAINT

)

20

Plaintiffs,

)

)

21

vs.

)

)

22 TERRY GODDARD, in his official

)

capacity as Attorney General of the State )

23 of Arizona; GALE GARRIOTT, in his )

official capacity as the Director of the

)

24 Arizona Department of Revenue; and

)

ANDREW THOMAS, in his official

)

25 capacity as Maricopa County Attorney, )

)

26

Defendants.

)

___________________________________) 27

28

COMPLAINT, Valle del Sol, Inc. v. Go ddard, Case No. _________
Case 2:07-cv-02518-SMM Document 1 Filed 12/12/2007 Page 1 of 18

1 Lucas Guttentag Jennifer C. Chang
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
3 Immigrants’ Rights Project 39 Drumm Street
4 San Francisco, CA 94111 Telephone: (415) 343-0770
5 Facsimile: (415) 395-0950 E-mail: jchang@aclu.org
6 Omar C. Jadwat
7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
8 Immigrants’ Rights Project 125 Broad Street, 18th Floor
9 New York, NY 10004 Telephone: (212) 549-2620
10 Facsimile: (212)-549-2654 Email: ojadwat@aclu.org
11 Attorneys for Plaintiffs
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27
28
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1

INTRODUCTION

2

1. This lawsuit challenges Arizona’s attempt to enact laws regulating

3 immigration that intrude on the federal government’s plenary power and provide less

4 protection to workers and employers than federal laws.

5

2. The recently-enacted Legal Arizona Workers Act (the “Act”), establishes a

6 system unique to Arizona for sanctioning employers that employ aliens who are not

7 authorized to work. The Act also requires employers to verify the employment eligibility

8 of each employee through a federal verification program known as “E-Verify,” even

9 though federal law establishes that participation in that program is voluntary. The Act is

10 attached as Exhibit A.

11

3. The Act violates the Supremacy Clause of the United States Constitution

12 because it is preempted by federal immigration law and the federal government’s

13 exclusive authority to regulate immigration. The Act also violates the Fourteenth

14 Amendment to the U.S. Constitution because it deprives employers and workers of liberty

15 and property without due process of law.

16

4. Were the Act’s provisions regarding employment of unauthorized aliens

17 and verification of employment eligibility to be upheld, it would be license for every state

18 and, indeed, every locality to enact its own immigration laws. The result would be

19 inconsistency and extreme confusion. This lawsuit seeks to avoid that result.

20

5. This lawsuit also seeks to prevent the inevitable harm to workers who are

21 authorized to work in the United States, particularly foreign-born workers and national

22 origin minorities, that the Act will cause if it is allowed to take effect. The Act will cause

23 authorized workers to not be hired, to be terminated, to have to undertake additional state-

24 created efforts to demonstrate that they are authorized to work, or to suffer other harms.

25 Finally, the suit seeks to prevent harm to employers who must comply with the Act.

26

JURISDICTION AND VENUE

27

6. This Court has jurisdiction under 28 U.S.C. §§1331 and 1343 because

28 Plaintiffs assert claims under the Constitution of the United States and 42 U.S.C. §1983.

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1

7. Venue is proper in this judicial district under 28 U.S.C. §1391(b).

2

PARTIES

3

8. Plaintiff Valle del Sol, Inc., is an Arizona non-profit corporation located in

4 Phoenix, Maricopa County, Arizona. Founded in 1970, Valle del Sol’s mission is to

5 empower the Latino community through advocacy and a continuum of culturally sensitive

6 health services, partnerships, and social services. Valle del Sol’s programs include

7 substance abuse prevention and treatment and a wide range of support services for youth

8 and families, such as counseling, parenting classes, a family resource center, a leadership

9 institute, and health education. Valle del Sol employs approximately 175 persons in

10 Arizona and regularly contracts with independent contractors. Valle del Sol is licensed by

11 the State of Arizona. Valle del Sol believes the Act will harm workers that are authorized

12 to work in the United States and their families. In particular, Valle del Sol brings this

13 challenge out of concern that workers, particularly foreign-born workers and national

14 origin minorities, will not be hired in the first place, will lose their jobs, will have to

15 undertake additional efforts to demonstrate that they are authorized to work, or will

16 otherwise be harmed because of the Act. Valle del Sol in turn may need to respond by

17 diverting resources from its present programs to assist people who are denied employment

18 or terminated. Complying with the employer sanctions and verification provisions of the

19 Act will also harm Valle del Sol. Valle del Sol currently complies with federal legal

20 requirements for verifying employment, but does not use the voluntary E-Verify program

21 as a means of verifying employment eligibility of its employees. If the Act takes effect,

22 Valle del Sol will be forced to use the voluntary E-Verify system to verify employment

23 eligibility. Not only does the Act require employers to use E-Verify (Ariz. Rev. Stat.

24 §23-214), but it also provides a rebuttable presumption against liability for intentionally

25 or knowingly employing an unauthorized alien (Ariz. Rev. Stat. §23-212(I)) and allows

26 for enhanced penalties if E-Verify is not used (Ariz. Rev. Stat. §23-212(F)(1)(d)(ii), (iv),

27 (2)(c)(ii), (iv)). Valle del Sol fears that if it does not use E-Verify and a new employee

28 turns out to be unauthorized, Valle del Sol may not have as strong a defense under the Act

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1 and may be subject to harsh penalties. Using E-Verify would impose added costs and

2 obligations on Valle del Sol, including learning how to use E-Verify; registering for E-

3 Verify, which includes signing a Memorandum of Understanding with the Department of

4 Homeland Security (“DHS”) and Social Security Administration (“SSA”) that in turn

5 requires employers to complete a tutorial and become familiar with and comply with a

6 lengthy manual; and submitting data to E-Verify for all new hires such as name, date of

7 birth, and social security number. If the Act does not take effect, Valle del Sol will not

8 use E-Verify and will not incur the attendant costs and obligations.

9

9. Plaintiff Chicanos Por La Causa, Inc. (“CPLC”) was formed in 1969 by

10 concerned Hispanic citizens to address social issues in their community. Today, CPLC is

11 one of Arizona’s largest non-profit, community-based organizations, as well as one of the

12 largest community development corporations in the nation. CPLC is licensed by the State

13 of Arizona and is headquartered in Phoenix. CPLC is committed to building stronger,

14 healthier communities as a lead advocate, coalition builder, and direct service provider.

15 CPLC employs more than 600 people in Arizona and regularly contracts with independent

16 contractors. CPLC has programs in education, including the Migrant Head Start

17 Program, charter schools, prevention programs, and school enrichment programs. CPLC

18 also has programs in housing, including property management; client counseling; and

19 single, multi-family, senior, and self-help housing. CPLC’s economic development

20 programs include business lending, commercial development, and employment and

21 training. CPLC runs social services programs, including behavioral health, emergency

22 assistance, domestic violence, elderly, immigration, HIV, health, and legal information

23 and referral services. CPLC subsidiaries include a facility management company, federal

24 credit union, mortgage company, women’s care center, construction company, day labor

25 center, and property/real estate purchasing and management company. CPLC challenges

26 the Act because of the harm it will cause to workers that are authorized to work in the

27 United States and to their families. CPLC is concerned that workers, particularly

28 foreign-born workers and national origin minorities, will not be hired in the first place,

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1 will lose their jobs, will have to undertake additional efforts to demonstrate that they are

2 authorized to work, or will otherwise be harmed because of the Act. CPLC in turn may

3 need to divert resources from its ongoing programs to assist persons who are denied

4 employment or terminated. Complying with the employer sanctions and verification

5 provisions of the Act will also harm CPLC. Currently, CPLC complies with federal legal

6 requirements, but does not use the voluntary E-Verify system as a means of verifying

7 employment eligibility of its employees. If the Act takes effect, CPLC will use the

8 voluntary E-Verify program to verify employment eligibility both because the Act

9 requires employers to do so (Ariz. Rev. Stat. §23-214) and, separately, because doing so

10 provides a rebuttable presumption against liability for intentionally or knowingly

11 employing an unauthorized alien (Ariz. Rev. Stat. §23-212(I)). Using E-Verify would

12 impose added costs and obligations on CPLC, including learning how to use the program;

13 registering for E-Verify, which includes signing a Memorandum of Understanding; and

14 submitting to E-Verify for all new hires information such as name, date of birth, and

15 social security number.

16

10. Plaintiff Somos America is a community based coalition of grassroots

17 organizations, community and religious leaders, labor unions, and students established in

18 March 2006 to mobilize for social justice and equal rights for immigrant communities in

19 Arizona and for comprehensive immigration reform. Somos America seeks to challenge

20 injustice and the exploitation of workers and to promote civic participation, political

21 awareness, and education within the Latino community.

22

11. Defendant Terry Goddard is sued in his official capacity as the Attorney

23 General of the State of Arizona. The Attorney General is in charge of and directs the

24 department of law and is Arizona’s chief legal officer. Ariz. Rev. Stat. §41-192(A). The

25 department of law supervises the county attorneys. Ariz. Rev. Stat. §41-193(A)(4). The

26 department of law also shall, [“a]t the direction of the governor, or when deemed

27 necessary, assist the county attorney of any county in the discharge of the county

28 attorney’s duties.” Ariz. Rev. Stat. §41-193(A)(5). The Act appropriates $100,000 in

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1 fiscal year 2007-2008 to the Attorney General for enforcing the Act. An injunction in this

2 lawsuit would prevent the Attorney General from using this and any future appropriations

3 to enforce the Act, and the Attorney General would no longer be able to exercise his

4 authority under and with respect to the Act.

5

12. Defendant Gale Garriott is sued in his official capacity as the Director of

6 the Arizona Department of Revenue. Section 3 of the Act requires the Department of

7 Revenue to provide notice of the Act to every employer on or before October 1, 2007.

8 The Director has complied with Section 3. The notice is attached as Exhibit B. An

9 injunction in this case would require the Director to rescind this notice.

10

13. Defendant Andrew Thomas is the County Attorney for Maricopa County,

11 Arizona. The County Attorney intends to enforce the Act. A news release from the

12 County Attorney is attached as Exhibit C.

13

GENERAL BACKGROUND

14

14. Governor Janet Napolitano signed the Legal Arizona Workers Act, House

15 Bill 2779, into law on July 2, 2007. Section 2 of the Act institutes sanctions against

16 employers that intentionally or knowingly employ an unauthorized alien and requires

17 employers to use the federal “Basic Pilot Program” – since renamed “E-Verify” – to

18 verify employment eligibility of their employees.

19

Prohibition on Intentionally or Knowingly Employing an Unauthorized Alien

20

15. Section 23-212 prohibits employers from intentionally or knowingly

21 employing an unauthorized alien. Ariz. Rev. Stat. §23-212(A). An “unauthorized alien”

22 is defined as an alien who does not have the legal right to work in the United States under

23 federal law. Ariz. Rev. Stat. §23-211(8). An “employer” is defined as any individual or

24 organization that transacts business in Arizona, has a license issued by an Arizona

25 agency, and employs at least one person who performs employment services in Arizona.

26 Ariz. Rev. Stat. §23-211(4). A “license” is broadly defined to include “any agency

27 permit, certificate, approval, registration, charter or similar form of authorization that is

28 required by law” and that is issued by any state or local agency for the purposes of

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1 operating a business in Arizona, and includes articles of incorporation and partnership

2 registrations. Ariz. Rev. Stat. §23-211(1), (7).

3

16. On receipt of a complaint that an employer is violating the prohibition on

4 employing an unauthorized alien, the Arizona Attorney General or county attorney must

5 investigate the complaint by verifying the work authorization of the alleged unauthorized

6 alien with the federal government, according to the federal inquiry procedure set forth in

7 8 U.S.C. §1373(c). Ariz. Rev. Stat. §23-212(B).

8

17. 8 U.S.C. §1373(c) provides: “The Immigration and Naturalization Service

9 shall respond to an inquiry by a Federal, State, or local government agency, seeking to

10 verify or ascertain the citizenship or immigration status of any individual within the

11 jurisdiction of the agency for any purpose authorized by law, by providing the requested

12 verification or status information.” (Emphasis added.)

13

18. Employment authorization status is distinct from citizenship or immigration

14 status under federal law. For instance, some persons who lack lawful immigration status

15 may nonetheless be authorized to work by the federal government.

16

19. If upon completion of the federal inquiry regarding citizenship or

17 immigration status the Arizona Attorney General or county attorney determines that the

18 complaint that an employer is employing an unauthorized alien was not frivolous, then he

19 or she must notify United States Immigration and Customs Enforcement and the local law

20 enforcement agency of the presence of the allegedly unauthorized alien. Ariz. Rev. Stat.

21 §23-212(C)(1), (2). For all non-frivolous complaints to the Attorney General, the Act

22 requires the Attorney General to “notify the appropriate county attorney to bring an action

23 pursuant to Subsection D.” Ariz. Rev. Stat. §23-212(C)(3).

24

20. Subsection D provides that the county attorney bring an action against an

25 employer who intentionally or knowingly employs an unauthorized alien in the county

26 where the unauthorized alien is employed. Ariz. Rev. Stat. §23-212(D). In determining

27 whether an employee is unauthorized to work, the Superior Court may only consider the

28 federal government’s “determination” under 8 U.S.C. §1373(c), even though that

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1 “determination” is deemed to create a “rebuttable presumption of the employee’s lawful

2 status.” Ariz. Rev. Stat. §23-212(H) (emphasis added).

3

21. An employer that has verified its employee’s employment authorization

4 through a voluntary federal verification program known as E-Verify is entitled to a

5 rebuttable presumption that the employer did not intentionally or knowingly employ an

6 unauthorized alien. Ariz. Rev. Stat. §23-212(I). E-Verify is a voluntary program the

7 federal government has offered employers.

8

22. The Act authorizes several state-created employer sanctions for an

9 employer found to have intentionally or knowingly employed unauthorized aliens under

10 the Act. First, the employer must terminate the employment of all unauthorized aliens

11 and file a sworn affidavit stating that it has done so and that it will not intentionally or

12 knowingly employ any unauthorized aliens. Ariz. Rev. Stat. §23-212(F)(1)(a), (1)(c),

13 (2)(a), (2)(d). Second, the employer is placed on probation for the first violation – for

14 three years for a knowing violation and five years for an intentional violation – during

15 which time the employer must file quarterly reports of each new employee it has hired at

16 the location where the unauthorized alien performed work. Ariz. Rev. Stat. §23-

17 212(F)(1)(b), (2)(b). Third, all of the employer’s licenses may be suspended for a

18 knowing violation; must be suspended for an intentional violation; and, upon a second

19 violation of any type during the probation period, must be permanently revoked. Ariz.

20 Rev. Stat. §23-212(F)(1)(d), (2)(c), (3). Finally, all court orders with respect to violations

21 will be posted on the Attorney General’s website to publicize employer violations. Ariz.

22 Rev. Stat. §23-212(G).

23

Mandated Verification of Work Status Through E-Verify

24

23. The Legal Arizona Workers Act also requires employers, after hiring any

25 employee, to “verify the employment eligibility of the employee through the Basic Pilot

26 Program.” Ariz. Rev. Stat. §23-214.

27

24. The Basic Pilot Program, now known as “E-Verify,” refers to a voluntary

28 and experimental program established by Congress in the Illegal Immigration Reform and

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1 Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208 (Sept. 30, 1996),

2 along with two other employment verification pilot programs which have since been

3 suspended. E-Verify is set to expire in November 2008 under the Basic Pilot Program

4 Extension and Expansion Act of 2003, Pub. L. No. 108-156 (Dec. 3, 2003). 8 U.S.C.

5 §1324a note; 69 Fed. Reg. 75997, 75998 (Dec. 20, 2004). E-Verify permits employers

6 who choose to participate to verify electronically workers’ employment eligibility.

7 (Pursuant to statute, a few employers that have violated federal employment verification

8 laws may be required to use E-Verify by the federal government.)

9

25. E-Verify started in 1997 in only five states, and has been available

10 nationwide since December 2004. Employers who use E-Verify must engage in various

11 activities, including learning how to use the program; registering for E-Verify, which

12 includes signing a Memorandum of Understanding (“MOU”) with DHS and SSA; and

13 submitting to E-Verify for all new hires data such as employee name, date of birth, and

14 social security number. In addition to initial training, employers must periodically update

15 and re-train the persons using E-Verify each time the system is updated or changed.

16

26. The MOU imposes requirements on employers, including the following: All

17 employer representatives who use E-Verify must complete a tutorial; the employer must

18 become familiar with and comply with the E-Verify manual (which is 64 pages); the

19 employer must agree that in verifying employment eligibility of an employee at the time

20 of hire via the federal Form I-9 process, the employer will only accept documents to

21 establish identity that contain a photograph even though other employers are not so

22 limited under federal law pursuant to 8 C.F.R. §274a.2(b)(1)(v)(B); and the employer

23 must agree not to use E-Verify as a pre-employment screening procedure or to engage in

24 any unlawful employment practice. The MOU also provides that the federal government

25 may terminate access to E-Verify with 30 days’ notice.

26

27. E-Verify compares data submitted by employers via the Internet to

27 information in federal SSA and DHS databases. The system first uses the SSA database

28 to verify an employee’s name, date of birth, and social security number. Upon such

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1 verification, if the employee claimed U.S. citizenship and such citizenship is confirmed

2 by SSA’s database, E-Verify confirms employment eligibility. For non-U.S. citizens, E-

3 Verify uses the DHS database and sometimes DHS personnel to check whether the

4 employee is authorized to work. If the SSA database is unable to verify the employee

5 information or DHS is unable to verify employment authorization, E-Verify issues a

6 tentative nonconfirmation. An employee may contest a tentative nonconfirmation by

7 contacting the federal government to resolve inaccuracies in the records. If an employee

8 does not contest the tentative nonconfirmation within eight federal working days, it

9 becomes final and employers must terminate the employee or notify DHS that the

10 employer is not terminating the employee.

11

28. E-Verify has encountered a number of problems with accuracy and capacity

12 since its inception. As the United States Citizenship and Immigration Services found in

13 its 2004 report mandated by Congress, the problems include “unacceptably high”

14 tentative nonconfirmation rates for foreign-born work-authorized employees and “higher

15 than desirable” rates for U.S.-born employees; lack of employer compliance with the

16 program’s requirements, which reduces E-Verify’s effectiveness and contributes to

17 discrimination against foreign-born employees; and unattractiveness of the program to

18 employers. In 2006, the SSA Inspector General found that the SSA database contained

19 enough discrepancies to result in an incorrect finding in four percent of E-Verify

20 submissions. Moreover, the records for supposedly non-U.S. citizens showed seven

21 percent were actually U.S. citizens who had not updated their citizenship status. As of

22 May 2007, approximately 17,000 employers nationwide had registered for E-Verify, of

23 which fewer than 9,000 were active users. The Act will add 130,000-150,000 businesses

24 to E-Verify, and the State of Arizona believes that this “could strain the system.” Letter

25 from Governor Janet Napolitano to Speaker Nancy Pelosi and Majority Leader Harry

26 Reid, July 2, 2007, attached as Exhibit D.

27

28

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1

Effective Date and Harm

2

29. Both the prohibition on intentionally or knowingly employing an

3 unauthorized alien and the verification requirement in Section 2 of the Act become

4 effective on January 1, 2008. Ariz. Rev. Stat. §§23-212(D), §23-214. Under Section 3 of

5 the Act, the Department of Revenue provided notice of Section 2 of the Act to every

6 employer on or before October 1, 2007.

7

30. The Act will have at least the following adverse effects: (a) cause workers

8 who are eligible for employment, particularly foreign-born workers and national origin

9 minorities, not to be hired in the first place, to lose their jobs, and to have to undertake

10 additional, state-created efforts to demonstrate that they are authorized to work; and (b)

11 impose additional costs and obligations on employers not required by federal law.

12

FIRST CLAIM FOR RELIEF

13

(Article VI, Section 2, of the United States Constitution; 42 U.S.C. §1983)

14

31. Plaintiffs re-allege and incorporate by reference ¶¶1 through 30.

15

32. Article VI, Section 2, of the United States Constitution, known as the

16 Supremacy Clause, provides: “This Constitution, and the Laws of the United States which

17 shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under

18 the Authority of the United States, shall be the supreme Law of the Land; and the Judges

19 in every State shall be bound thereby, any Thing in the Constitution of Laws of any State

20 to the Contrary notwithstanding.”

21

33. The Supremacy Clause mandates that federal law preempts any state

22 regulation of any area over which Congress has expressly or impliedly exercised

23 exclusive authority or which is constitutionally reserved to the federal government.

24

34. The power to regulate immigration is an exclusively federal power that is

25 inherent in the nation’s sovereignty and derives from the Constitution’s grant to the

26 federal government of the power to “establish a uniform Rule of Naturalization,” U.S.

27 Const. art. I, §8, cl. 4., and to “regulate Commerce with foreign Nations,” id., cl. 3.

28

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1

35. Pursuant to its exclusive power over matters of immigration, the federal

2 government has established a comprehensive system of laws, regulations, procedures, and

3 administrative agencies that determine, subject to judicial review, whether and under

4 what conditions a person may enter and live in the United States, including the

5 Immigration and Nationality Act (“INA”), 8 U.S.C. §1101, et seq. In 1986, for the first

6 time, Congress prohibited employers from knowingly hiring unauthorized aliens and

7 established a detailed employment verification process with sanctions for employing

8 unauthorized aliens. Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C.

9 §§1324a-1324b. The process of verifying employment eligibility of an employee at the

10 time of hire is known as the federal Form I-9 process.

11

36. The INA as amended by IRCA sets forth a comprehensive employer

12 sanctions scheme that includes safeguards such as an affirmative defense for employers

13 who comply with the Form I-9 process in good faith; restrictions on reverification of

14 employees after they are hired; extensive antidiscrimination provisions; prohibitions on

15 employers requesting additional documents once an employee presents minimally

16 adequate documentation; a 10-day cure period for good-faith violations; and a graduated

17 series of penalties.

18

37. Before finding an employer in violation, federal immigration law requires

19 notice, an opportunity for a hearing with witnesses and evidence before a federal

20 administrative law judge, a finding that a violation has occurred based on a

21 preponderance of the evidence, a chance for an administrative appeal, and an opportunity

22 for review in the appropriate United States Court of Appeals. 8 U.S.C. §1324a(e)(2)-(3),

23 (7)-(8).

24

38. The comprehensive federal employer sanctions scheme does not require that

25 employers verify the immigration status of certain categories of workers, such as

26 independent contractors and casual domestic workers. 8 C.F.R. §274a.1(f), (h), (j).

27

28

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1

39. The documents used in the federal verification process “may not be used for

2 purposes other than for enforcement of this chapter [IRCA] and sections [of Title 18 of

3 the U.S. Code].” 8 U.S.C. §1324a(b)(5).

4

40. Under the Supremacy Clause, the federal government has the authority to

5 enforce immigration statutes and regulations, confer benefits, make discretionary

6 determinations, undertake adjudication, and otherwise administer the federal immigration

7 laws.

8

41. The federal government retains and exercises the power to investigate

9 employment of unauthorized aliens at workplaces and has publicly raided workplaces

10 allegedly employing undocumented aliens.

11

42. The laws, procedures, and policies created by the federal government confer

12 rights in a careful balance reflecting the national interest. The Legal Arizona Workers

13 Act’s prohibition on employers intentionally or knowingly employing an unauthorized

14 alien and requirement that employers verify employment eligibility threaten that balance

15 and are preempted.

16

43. IRCA provides for express preemption as follows: “The provisions of this

17 section preempt any State or local law imposing civil or criminal sanctions (other than

18 through licensing and similar laws) upon those who employ, or recruit or refer for a fee

19 for employment, unauthorized aliens.” 8 U.S.C. §1324a(h)(2).

20

44. The Act is expressly preempted under IRCA’s preemption provision

21 because it is not a licensing law. Rather, the Act is an employment law that includes

22 licensing sanctions. The Act’s title makes no reference to licensing; the Act is codified

23 separately from any licensing provisions; the Act encompasses legal instruments that

24 neither the State nor common sense would consider “licenses” in the usual context; the

25 Act imposes sanctions beyond even the “licenses” as defined in the Act; and the goal of

26 the Act is to set forth a general prohibition on the employment of unauthorized workers,

27 not to impose particular conditions as part of specific licensing procedures.

28

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1

45. Under IRCA’s preemption provision, licensing penalties are permitted only

2 when the federal government has found an employer to have violated IRCA. The Legal

3 Arizona Workers Act purports to allow licensing penalties for employers that

4 intentionally or knowingly employ an unauthorized alien even if the federal government

5 has not found those employers to have violated IRCA, and is therefore expressly

6 preempted.

7

46. The Act’s institution of licensing penalties for employers that intentionally

8 or knowingly employ an unauthorized alien and the requirement that employers verify

9 employment are impliedly preempted because they:

10

a. Amount to an attempt to regulate immigration and its incidents.

11

b. Operate in a field occupied by the federal government through

12 Congress’ actions with respect to prohibiting the employment of unauthorized workers

13 and verifying employment eligibility.

14

c. Stand as an obstacle to federal law by posing a number of actual

15 obstacles to the objectives of Congress, including:

16

i. The Act will burden federal resources because the Arizona

17 Attorney General or county attorney must investigate every complaint about unauthorized

18 aliens through the federal inquiry procedure under 8 U.S.C. §1373(c). Ariz. Rev. Stat.

19 §23-212(B). Under IRCA, only complaints “which, on their face, have a substantial

20 probability of validity” or other violations “as the [U.S.] Attorney General determines to

21 be appropriate,” are investigated. 8 U.S.C. §1324a(e)(1).

22

ii. The Act’s unauthorized alien provisions disrupt and override

23 the carefully balanced system that Congress designed to guarantee due process, protect

24 employees against discrimination, and minimize disruption to businesses. 8 U.S.C.

25 §§1324a-1324b.

26

iii. The Act covers independent contractors and casual domestic

27 workers. Ariz. Rev. Stat. §23-211(3). Federal law does not. 8 C.F.R. §274a.1(f), (h), (j).

28

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1

iv. IRCA contains an affirmative defense for employers who

2 comply in good faith with the Form I-9 process. 8 U.S.C. §1324a(a)(3). The Arizona Act

3 purports to provide a similar affirmative defense. Ariz. Rev. Stat. §23-212(J). But IRCA

4 precludes use of the Form I-9 documents for this purpose. 8 U.S.C. §1324a(b)(5).

5

v. The Act’s mandatory verification requirement contravenes

6 Congress’ manifest intent to establish a voluntary and temporary E-Verify program.

7

vi. The Act’s mandatory verification requirement also threatens

8 to strain the federal system by using E-Verify in an unanticipated manner. As

9 demonstrated by Exhibit D, the law will add 130,000 to 150,000 new businesses to the

10 experimental program, and even Governor Napolitano has cast doubt on the ability of the

11 federal system to handle the volume of usage resulting from the Arizona law.

12

47. For the above and other reasons, the effect of the Act is to upset the system

13 established by Congress by implementing Arizona’s own enforcement mechanism,

14 penalties, and interpretations in place of the federal system, detracting from and impeding

15 the integrated scheme of regulation Congress created.

16

48. The Legal Arizona Workers Act’s prohibition on employers intentionally or

17 knowingly employing an unauthorized alien and requirement that employers verify

18 employment eligibility violate the Supremacy Clause.

19

SECOND CLAIM FOR RELIEF

20

(Fourteenth Amendment to the United States Constitution; 42 U.S.C. §1983)

21

49. Plaintiffs re-allege and incorporate by reference ¶¶1 through 48.

22

50. The Due Process Clause of the Fourteenth Amendment to the United States

23 Constitution guarantees certain fundamental rights, including the right to a meaningful

24 hearing prior to the deprivation of liberty or property.

25

51. The right to work is a liberty and property interest protected by the

26 Fourteenth Amendment.

27

52. The right to a business license is a property interest protected by the

28 Fourteenth Amendment.

COMPLAINT, Valle del Sol, Inc. v. Go ddard, Case No. _________

14

Case 2:07-cv-02518-SMM Document 1 Filed 12/12/2007 Page 16 of 18

1

53. Under federal immigration law, a violation for employing an unauthorized

2 alien is found only after a number of steps culminating in an administrative law judge

3 with expertise in immigration matters determining, “upon the preponderance of the

4 evidence received,” including any witnesses and production of evidence, that the

5 violation had occurred. 8 U.S.C. §1324a(e)(2), (3). An employer can appeal this order

6 administratively and seek judicial review in federal court. 8 U.S.C. §1324a(e)(7)-(8).

7

54. The investigation and court procedures contemplated by the Legal Arizona

8 Workers Act do not provide employers or employees with the opportunity to be heard

9 regarding the work status of an employee and the license of an employer in a meaningful

10 manner. An employee’s work status is determined through a mere inquiry procedure to

11 the federal government about citizenship or immigration status, which is the only matter

12 an Arizona Superior Court may consider in deciding whether an employee is authorized

13 or not. Ariz. Rev. Stat. §23-212(H). The inquiry procedure under 8 U.S.C. §1373(c) does

14 not provide the protections set forth in the preceding paragraph or other protections

15 afforded by federal law.

16

55. The insufficient process afforded under the Legal Arizona Workers Act

17 means that employers who may not be found to have violated IRCA could be found liable

18 under the Act.

19

56. Any purported process provided by the Act relating to the determination of

20 immigration status is illusory because state courts lack the authority to determine such

21 status.

22

57. The Act’s provisions on employing an unauthorized alien violate Due

23 Process rights.

24

PRAYER FOR RELIEF

25

WHEREFORE, Plaintiffs pray for the following relief:

26

A. A temporary and permanent injunction enjoining Defendants, their officials,

27 agents, employees, assigns, and all persons acting in concert or participating with them

28 from implementing or enforcing Section 2 of the Legal Arizona Workers Act;

COMPLAINT, Valle del Sol, Inc. v. Go ddard, Case No. _________

15

Case 2:07-cv-02518-SMM Document 1 Filed 12/12/2007 Page 17 of 18

1

B. A permanent injunction enjoining Defendants, their officials, agents,

2 employees, assigns, and all persons acting in concert or participating with them from

3 failing to notify employers that the Act is no longer valid and the notice sent under

4 Section 3 of the Legal Act should be disregarded;

5

C. A declaration pursuant to 28 U.S.C. §§2201 and 2202 that Sections 2 and 3

6 of the Legal Arizona Workers Act are unlawful and invalid;

7

D. Reasonable attorneys’ fees and expenses pursuant to 42 U.S.C. §1988;

8

E. Costs of suit; and

9

F. Such other and further relief as the Court deems equitable, just, and proper.

10 Dated: December 12, 2007 11 12 13 14

Stephen P. Berzon Jonathan Weissglass Rebecca Smullin ALTSHULER BERZON LLP
Kristina M. Campbell Cynthia A. Valenzuela MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

15

Linton Joaquin

Monica T. Guizar

16

Karen C. Tumlin

NATIONAL IMMIGRATION LAW CENTER

17

Daniel Pochoda

18

ACLU FOUNDATION OF ARIZONA

19

Lucas Guttentag

Jennifer C. Chang

20

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION – Immigrants’ Rights Project

21

Omar C. Jadwat

22

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION – Immigrants’ Rights Project

23

By: /s/ Kristina M. Campbell

24

Kristina M. Campbell

25

Attorneys for Plaintiffs

26

27

28

COMPLAINT, Valle del Sol, Inc. v. Go ddard, Case No. _________

16

Case 2:07-cv-02518-SMM Document 1 Filed 12/12/2007 Page 18 of 18

 
 534 F.Supp.2d 1036 (2008)
ARIZONA CONTRACTORS ASSOCIATION, INC., an Arizona nonprofit corporation; Arizona Employers for Immigration Reform, Inc., an Arizona non-profit corporation; Chamber of Commerce of the United States of America, a Washington D.C. non-profit corporation; Arizona Chamber of Commerce, an Arizona, non-profit corporation; Arizona Hispanic Chamber of Commerce, Inc., an Arizona nonprofit corporation; Arizona Farm Bureau Federation, an Arizona non-profit corporation; Arizona Restaurant and Hospitality Association, an Arizona non-profit corporation; Associated Minority Contractors of America, an Arizona non-profit limited liability company; Arizona Roofing Contractors Association, an Arizona non-profit corporation; National Roofing Contractors' Association, an Illinois not-for-profit corporation; Wake Up Arizona! Inc., an Arizona nonprofit corporation; and Arizona Landscape Contractors Association, Inc., an Arizona nonprofit corporation, Plaintiffs, v.
Criss CANDELARIA, Apache County Attorney; Ed Rheinheimer, Cochise County Attorney; Terence C. Haner, Coconino County Attorney; Daisy Flores, Gila County Attorney; Kenny
Angle, Graham County Attorney; Derek D. Rapier, Greenlee County Attorney; Martin Brannan, LaPaz County Attorney; Andrew P. Thomas, Maricopa County Attorney; Matthew
J. Smith, Mohave County Attorney; James Currier, Navajo County Attorney; Barbara Lawall, Pima County Attorney; James P. Walsh, Pinal County Attorney; George Silva, Santa Cruz County Attorney; Sheila Polk, Yavapai County Attorney; Jon Smith, Yuma County Attorney; Terry Goddard, Attorney General of the State of Arizona; and Fidelis V.
Garcia, Director of the Arizona Registrar of Contractors, Defendants. Valle del Sol, Inc.; Chicanos por la Causa, Inc.; and Somos America, Plaintiffs,
v. Terry Goddard, in his official capacity as Attorney General of the State of Arizona; Gale Garriott, in his official capacity as the Director of the Arizona Department of Revenue; and
Andrew Thomas, in his official capacity as Maricopa County Attorney, Defendants.
Nos. CV07-02496-PHX-NVW, CV07-02518-PHIL-NVW.
United States District Court, D. Arizona.
February 7, 2008.
1040 *1040 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
NEIL V. WAKE, District Judge.
Plaintiffs present a facial challenge to the validity of the Legal Arizona Workers Act ("the Act"), A.R.S. §§ 23-211 to 23-214 (Supp.2007), enacted July 2, 2007, and effective January 1, 2008. 2007 Ariz. Sess. Laws, Ch. 279. The Act provides the Superior Court of Arizona with the power to suspend or revoke the business licenses of employers who intentionally or knowingly employ unauthorized aliens. By agreement of the parties, the two cases were consolidated and accelerated for trial on January 16, 2008, on stipulated facts and written evidence. This order states findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).
Background

Procedural History and Related Proceedings
These consolidated actions are refilings, with some changes in parties, of consolidated actions dismissed 1041 December 7, 2007, for lack of jurisdiction under Article III of *1041 the United States Constitution. Arizona
Contractors Ass'n v. Napolitano (Arizona Contractors I), 526 F.Supp.2d 968 (D.Ariz, 2007). Plaintiffs appealed that judgment of dismissal and sought an injunction pending appeal. They concurrently filed this action (Arizona Contractors II), naming the county attorneys of Arizona as defendants and seeking a temporary restraining order and preliminary injunction against the Act's enforcement. Plaintiffs' motions for injunctions pending appeal in Arizona Contractors I and for temporary restraining orders in Arizona Contractors II were heard on December 18 and denied on December 21, 2007. (Arizona Contractors I, Doc. # 106; Arizona Contractors II, Doc. #75.)
The parties then stipulated to hold a consolidated preliminary injunction hearing and trial on the merits in this case on January 16, 2008. (Doc. # 135.) At that hearing, the County Attorney Defendants acknowledged that it would take them weeks or months to investigate complaints and initiate any proceedings under the Act. They avowed that they would carry out their duties without intentional delay, but that they could and would bring no proceedings before March. The Joint Statement of Stipulated Facts includes all of the evidence from Arizona Contractors I with extensive additions.
The Plaintiffs are the same as in Arizona Contractors I, with the addition of Plaintiff Valle Del Sol, Inc., a non-profit corporation that employs many workers in Arizona and holds various business licenses. Plaintiffs have dropped the Governor as a defendant and have added the County Attorneys and the Arizona Registrar of Contractors. In light of the rulings in Arizona Contractors I, the Defendants have stipulated not to contest Plaintiffs' standing before this court, but have reserved the right to raise the issue on appeal. (Doc # 96, 106.) The actions will be dismissed as against the Attorney General for lack of justiciable case or controversy for the reasons stated in Arizona Contractors I, which the court does not understand the Attorney General to be abandoning.
B. State and Federal Sanctions for Employing Unauthorized Workers
The court's December 7, 2007 order in Arizona Contractors I explained the implicated statutes and made findings of fact, most of which apply equally to this case. 2007 WL 4293641, at *2-7. That discussion is incorporated into this order with the following summary and the following additional and, where noted, different findings. With the benefit of additional briefing and study, the court finds it unnecessary to resolve some of the legal questions noted in its previous orders in Arizona Contractors I and raised in this case.
The federal government first created sanctions for employers of unauthorized aliens in the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 (employer sanctions provisions codified at 8 U.S.C. § 1324a to 1324c (2000)). States at that time had authority to enact and enforce sanctions against employers of unauthorized aliens. See De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). Indeed, at least twelve states had employer sanctions statutes that proscribed "knowing" employment of unauthorized aliens. U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST, STAFF REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 565 (1981).
IRCA expanded those state efforts to the, national level. Congress also declared that IRCA "preempt[s] any State 1042 or local law imposing civil or criminal sanctions (other than through licensing or similar *1042 laws) upon those
who employ, or recruit or refer for a fee for, employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). Under federal enforcement of IRCA, an administrative law judge adjudicates whether an employer knowingly employed an unauthorized alien, and the decision is subject to judicial review. Congress also created an employment eligibility verification system based on Form I-9 which requires employees to swear that they have authorization to work and requires employers to examine specific identification documents for facial validity. § 1324a(b).
Congress realized that the I-9 system was imperfect. In IRCA's text, it authorized evaluation and change of the employment verification system:
The President shall provide for the monitoring and evaluation of the degree to which the employment verification system . . . provides a secure system to determine employment eligibility

in the United States and shall examine the suitability of existing Federal and State identification systems for use for this purpose.
To the extent that the system established under subsection (b) is found not to be a secure system to determine employment eligibility in the United States, the President shall . . . implement such changes . . . as may be necessary to establish a secure system to determine employment eligibility in the United States.
§ 1324a(d). Congress later passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § § 401-405, 110 Stat. 3009, 3009-655 to 3009-665 (note following 8 U.S.C. § 1324a (2000)), which directed the Attorney General to conduct three pilot programs to improve the employment verification system. In a section entitled "Voluntary Election to Participate in a Pilot Program," IIRIRA specified that "any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program . . . the Attorney General may not require any person or other entity to participate in a pilot program." § 402, 110 Stat. at 3009-656.
One of the systems created by IIRIRA was formerly known as the Basic Pilot. The Basic Pilot Program Extension and Expansion Act of 2003 ("Expansion Act"), Pub.L. No. 108-156, 117 Stat. 1944 (note following 8 U.S.C. § 1324a (Supp.IV. 2000)), amended IIRIRA to make the Basic Pilot available to employers in all fifty states, extend its authorization until November, 2008, and place the Secretary of Homeland Security in charge of the program. The Basic Pilot is now known as the Web Basic Pilot or E-Verify. This primarily internet-based system reports the work authorization status of a new hire to an employer by checking records at the Social Security Administration (SSA) and Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS). When the system provides a tentative nonconfirmation, the employee has an opportunity to contact SSA or USCIS, using instructions provided by the employer, to clear up his records. If the employee is successful, the E-Verify databases are updated. If the employee fails to contest the nonconfirmation or is unsuccessful in doing so, EVerify issues a final nonconfirmation to the employer, who must then terminate the employee or face a presumption that it violated IRCA. (Facts, Doc. # 148, Ex. 7, E-Verify Memorandum of Understanding, Art. II § C ¶ 9, Art. III; Doc. # 152, Ex. 52, Findings of the Web Basic Pilot Evaluation 11-15, Sept. 2007.)
1043 In the December 7, 2007 order dismissing Arizona Contractors I, the court made *1043 findings of fact regarding employers' costs to set-up and operate E-Verify. With the benefit of the most recent survey data on E-Verify published in September 2007, the court, now finds that the cost to employers is considerably less than previously determined. The average cost to set-up E-Verify is $125, with 85% of employers spending $100 or less. The average annual operation cost is $728, with 75% of employers spending $100 or less annually. (Facts, Doc. # 152, Ex. 52 at 104.) Though this is considerably less than the modest expenses the court found in Arizona Contractors I, such costs of compliance are still sufficient to provide Plaintiffs with standing.
Because E-Verify remains voluntary at the national level, the I-9 process is still the main employment verification process used by employers. However, the I-9 system has been thoroughly defeated by document and identity fraud, allowing upwards of eleven million unauthorized workers to gain employment in the United States labor force, with the number increasing at about a half a million a year. (Facts, Doc. # 149, Ex. 15 at 1-3.)
The Act, A.R.S. §§ 23-211 to 23-214, is a conscious attempt to address this problem at the State level by imposing sanctions by "licensing and similar laws" upon those who employ unauthorized aliens, as expressly permitted by IRCA. Under the Act, county attorneys may bring suit in the Superior Court of Arizona against employers for intentionally or knowingly employing unauthorized aliens. An employer found liable faces possible suspension or revocation of its business licenses, and it can be ordered to file quarterly reports of new hires and to file an affidavit that it has terminated all unauthorized aliens. A.R.S. § 23-212(F).
The Act adopts IRCA's definition of "unauthorized alien," A.R.S. § 23-211(8), which means an alien who is not "lawfully admitted for permanent residence, or . . . authorized to be so employed by [IRCA] or by the Attorney General," 8 U.S.C. § 1324a(h)(3). The Act also relies on the federal determination of a person's immigration status and employment authorization. According to federal law, "[n]otwithstanding any other provision of Federal, State, or local law," federal, state, and local government entities may request from USCIS (formerly the INS) "information regarding the immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(i) and (b)

(2000) (enacted by IIRIRA § 642, 110 SW. at 3009-707). USCIS has an affirmative obligation to provide "verification or status information" requested by state and local entities "for any purpose authorized by law." § 1373(c).
In responding to § 1373 requests, USCIS accesses the Verification Information System, which is the same database that it uses to process E-Verify requests. Privacy Act: Verification Information System Records Notice, 72 Fed.Reg. 17,569 (Apr. 9, 2007). DHS reports that routine uses of the database are to provide information to "Federal, State, tribal, and local government agencies seeking to verify or determine the citizenship or immigration status of any individual within the jurisdiction of the DHS as authorized or required by law" and to "to enable [such] agencies to make decisions concerning: (1) Determination of eligibility for a Federal, State, or local public benefit; (2) issuance of a license or grant; or (3) government-issued credential." Id. at 17,571-72. USCIS also uses this system to respond to state requests to verify the citizenship and immigration status of individuals seeking government benefits under the Systematic Alien Verification for Entitlements (SAVE) program. Id. at 17,569.
1044 The Act utilizes § 1373 to obtain a person's immigration and work authorization *1044 status. First, it states that when the attorney general and county attorneys investigate complaints, they "shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States." Rather, they must use 1373 to verify the alien's "immigration status or work authorization status" with USCIS. A.R.S. § 23-212(B). Second, when the county attorney brings a case, the Superior Court proceeds as follows:
On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States Code section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).
A.R.S. § 23-212(H). In a separate section, the Act also requires that after December 31, 2007, "every employer, after hiring an employee, shall verify the employment eligibility of the employee through the basic pilot program." A.R.S. § 23-214.
C. Burden in a Facial Challenge
Plaintiffs "face a heavy burden in seeking to have [the Act] invalidated as facially unconstitutional." Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Engine Mfrs. Ass'n v. S. Coast Air Quality Maint. Dist., 498 F.3d 1031, 1048 (9th Cir.2007) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). "The fact that the regulations might operate unconstitutionally under some conceivable set of circumstances is insufficient to render them wholly invalid." Rust, 500 U.S. at 183, 111 S.Ct. 1759 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095).
II. Federal Preemption Standards
"[U]nder our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause [of the United States Constitution]." Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). The Supremacy Clause gives Congress the power to exclude state legislation in a field as Congress defines it, so long as Congress is acting within the powers granted it under the Constitution. However, where "federal law is said to bar state action in fields of traditional state regulation, . . . [courts proceed] on the assumption that the historic police powers of the States were not . . . superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)). Conversely, "an `assumption' of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence." United

States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). The intent of Congress is the "touchstone" of any preemption analysis. Retail Clerks Inn Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963).
1045 *1045 Federal preemption can be either "explicitly stated in [a] statute's language or implicitly contained in its structure and purpose." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality opinion) (citations omitted). Where Congress has explicitly provided that federal law is to be exclusive in a given field, states cannot regulate in that field, even if their efforts complement or further federal objectives. See, e.g., Morales v. TWA, 504 U.S. 374, 387, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (stating that an express preemption provision may displace "all state laws that fall within its sphere, even including state laws that are consistent with [the federal law's] substantive requirements."). Congress also has preempted an entire field where federal law is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Gade, 505 U.S. at 98, 112 S.Ct. 2374 (citations omitted).
Where Congress has enacted federal law on a given Subject, but evinces no express or implied intention to preempt the field, states retain the power to regulate in the area concurrently with the federal government. Any regulation enacted by the states must not, however, conflict with federal law. A state law conflicts with federal law "where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). The conflict posed must be more than "hypothetical" or "potential"; rather, the state statute must have an effect that "actually" and "irreconcilably" conflicts with Congress' intent. English v. General Elec. Co., 496 U.S. 72, 79, 90, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990); Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 73 L.Ed.2d 1042 (1982).
III. The Immigration Reform and Control Act Expressly Authorizes, Rather Than Preempts, the Licensing Sanctions in the Act
When Congress enacted IRCA, it expressly preempted some state powers and expressly preserved other state powers. The task at hand is to "identify the domain expressly preempted" by IRCA's language and give fair meaning to its savings clause for state employment sanctions through licensing and similar laws. Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm'n, 410 F.3d 492, 495 (9th Cir.2005) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). "Since preemption claims turn on Congress's intent, we begin as we do in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs." Id. (quoting Travelers Ins. Co., 514 U.S. at 655, 115 S.Ct. 1671).
A. The Plain Language of 8 U.S.C. 1324a(h)(2) Authorizes State Licensing Sanctions
Section 1324a(h)(2) of Title 8, U.S.C., provides:
The provisions of this section [8 U.S.C. § 1324a] preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
(Emphasis added.) By this section, states may not impose "civil or criminal sanctions" upon employers of 1046 unauthorized aliens, "other than through licensing and similar laws.". Therefore, if the Act constitutes *1046 a
licensing or similar law, it is expressly authorized by IRCA's savings clause.
The Act authorizes state courts to suspend or revoke the business licenses of employers who knowingly or intentionally employ unauthorized aliens. A.R.S. § 23-212(A) and (F). By the terms of the Act, "license" means any state or local "authorization that is required by law and that is issued . . . for the purposes of operating a business in this state." § 23-211(7)(a). It includes articles of incorporation, a certificate of partnership, a foreign corporation registration, and a transaction privilege (sales) tax license, but not a professional license. § 23-211(7) (b) and (c). The Act's definition of license does not depart from common sense or traditional understandings of what is a license. A license is a "permission, usually revocable, to commit some act that would otherwise be unlawful." BLACK'S LAW DICTIONARY 938 (8th ed.2004). The Act is a ""licensing law" because it sets out

criteria and a process to suspend or revoke a permission to do business in the state. It therefore falls within the plain meaning of IRCA's savings clause.
Plaintiffs argue that Congress intended a narrow construction of licensing laws, concerned only With a person's fitness to receive a license. This construction ignores that licenses are revokable, so states must have the power to create revocation criteria and procedures. Plaintiffs would also have the Act invalidated because its definition of license reaches some legal instruments that allegedly do not supply permission to do business in the state. Even if this were the case, the Act is not facially invalid if its definition sometimes exceeds the savings clause for "licensing laws." Plaintiffs are free to raise this defense if and when the State applies its law to revoke a legal instrument that falls outside of the definition of "license:"
B. The Licensing Sanction Authorization is Not Conditioned on Completed Federal Proceedings Against the Violator; the Legislative History Does Not So State and Could Not Defeat the Statutory Language if it Did
Plaintiffs contend that the § 1324a(h)(2) authorization of state licensing sanctions allows sanctions only on employers who already have been found liable in completed federal proceedings under IRCA. Plaintiffs base their argument on a sentence in the House Judiciary Committee Report on IRCA. H.R.Rep. No. 99-682(I), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662. The legislative history does not substantiate Plaintiffs' interpretation, but even if it did, it could not change or add words to the statute.
The language of the statute that Congress approved, not language from the House Report concerning the statute, Controls. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ("[T]he authoritative statement is the statutory text, not the legislative history."); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 n. 4, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (describing House Report No. 99-682 as a "single Committee Report from one House of a politically divided Congress" and noting that the dissent's reliance on the report "is a rather slender reed"); Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)) (asserting that express preemption analysis focuses on the plain wording of the statute, "which necessarily contains the best evidence of Congress' pre-emptive intent."). IRCA's savings 1047 clause does not contain any language indicating that prior federal *1047 enforcement action is necessary before a state may sanction an employer's license. Plaintiffs' interpretation would reduce the express authorization of state "licensing and similar laws" almost to nothing, in contravention of the plain language of the statute.
In any event, the legislative history, and the House Report in particular, do not compel the meaning Plaintiffs urge. After the De Canas decision, Congressional bills calling for federal employer sanctions began to contain preemption clauses for the first time. See, e.g., S. 2252, 95th Cong. §. 5 (1976); H.R. 9531, 95th Cong. § 5 (1976). None passed. In following sessions of Congress, bills were introduced that included preemption clauses similar to those of the 95th Congress. See S. 1765, 97th Cong. (1981); H.R. 4832, 97th Cong. (1981); S. 2222, 97th Cong. (1982); H.R. 5872, 97th Cong. (1982); S. 529, 98th Cong. (1983); H.R. 1510, 98th Cong. (1983). Again, none passed.
However, in the 99th Congress, S. 1200 and H.R. 3810 contained preemption clauses that for the first time included the exception "other than through licensing and similar laws." Unlike the earlier bills, S. 1200 was enacted and became the Immigration Reform and Control Act of 1986. The Senate Judiciary Committee Report on S. 1200, dated August 25, 1985, did not comment on the express authorization of state licensing and similar laws; and the Senate passed the bill on September 19, 1985. See S.Rep. No. 99-432 (1985). One of four House Committee Reports on H.R. 3810, however, the House Judiciary Committee Report dated July 16, 1986, did comment on the licensing exception to preemption:,
The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens.
They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to

preempt licensing or "fitness to do business laws," such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.
H.R.Rep. No. 99-682(I), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662 ("House Report"). The conference committee report said nothing about preemption. See H. Conf. Rep. No. 99-4000 (1986), reprinted, in 1986 U.S.C.C.A.N. 5840. Therefore, whatever the meaning of the House Judiciary Committee Report's comment, it was not before the Senate when it approved the bill.
The text of the House Report also does not support Plaintiffs' argument. Their interpretation overlooks the first quoted sentence, which paraphrases the bill as preempting only state "civil fines" and "criminal sanctions." The Arizona Act imposes no fines or criminal sanctions. Plaintiffs rely on the second quoted sentence, which no doubt correctly states that state licensing processes are not preempted as to "any person who has been found to have violated the sanctions provisions of this legislation." But Plaintiffs go further and assert that the example given in that sentence exhausts the entire meaning of the licensing sanction authorization. The passage does not so state, and the very next sentence gives further examples of permitted licensing and fitness to do business laws 1048 that are not tied to completed federal proceedings. One need look only *1048 to the sentence after the one Plaintiffs rely upon to see that the House Report does not bear the meaning they would give it.
Finally, if the House Report did mean what Plaintiffs contend, such an attempt to override the plain language of the statute would be precisely the kind of excess that the modern view of legislative history illegitimates. The Members or their staff must write amendments into the bill, not into the Report.
C. The Structure and. Purpose of IRCA Do Not Support Plaintiffs' Restrictive Interpretation of the Savings Clause
Congress expressly preempted some state powers and expressly affirmed other state powers when it passed IRCA. "[A]n express definition of the pre-emptive reach of a statute `implies' 0907 i.e., supports a reasonable inference 0907 that Congress did not intend to pre-empt other matters." Freightliner Corp. v. Myrick, 514 U.S. 280, 288, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). See also Sprietsma v. Mercury Marine, 537 U.S. 51, 69, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 547, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (plurality opinion). Because IRCA contains both an express preemption provision and a savings clause, Congress has defined the scope of its preemptive intent with respect to laws prohibiting the employment of unauthorized aliens. Plaintiffs nevertheless urge that the structure and purpose of IRCA create an inference of field preemption and require a narrow interpretation of the § 1324a(h)(2) savings clause, which will deprive the states of all practical power. For the sake of thoroughness, that contention is now addressed.
Unlike interstate transportation, foreign affairs, and even immigration, employment of unauthorized aliens is neither intrinsically nor historically an exclusive concern of the federal government such "that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). To the contrary, the Supreme Court held in De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), that the states have strong local interests in prohibiting the employment of unauthorized aliens. In De Canas, a California statute prohibited employers from hiring aliens who were not entitled to lawful residence in the United States if the employment would adversely affect lawful resident workers. The Supreme Court held that federal law did not preempt California's law. It stated that "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by [the federal government's] constitutional power [to regulate immigration]." The California law did not regulate immigration because it did not determine "who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355, 96 S.Ct. 933.
The Court also found no implied field preemption because "States possess broad authority under their police powers to regulate the employment relationship and protect workers within the State."
[State attempts] to prohibit the knowing employment by . . . employers of persons not entitled to lawful residence in the United States; let alone to work here, [are] certainly within the mainstream of such police power regulation. Employment, of illegal aliens in times of high unemployment

1049

deprives citizens and legally admitted aliens of jobs; acceptance *1049 by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute . . . in light of the significant influx into [a border state] of illegal aliens from neighboring Mexico.

Id. at 356-57, 96 S.Ct. 933 (emphasis added). The Court reiterated this conclusion several years later in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). That case did not concern preemption, but the Court noted:

Although the State has no direct interest in controlling, entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this, Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.

Id. at 228 n. 23, 102 S.Ct. 2382.

1. IRCA Does Not Clearly Evidence Congressional Intent to Prevent States From Independently Revoking the Business Licenses of Those Who Knowingly Employ Unauthorized Aliens

Plaintiffs argue that in IRCA, passed after De Canas, Congress carefully balanced competing policy interests surrounding employer sanctions, including the tension among enforcement, the risk of increased discrimination, and employer burdens. They say that Congress could not have intended to permit the State to revoke a business's license, a sanction they say is disproportionate to the direct federal sanctions. They would restrict the states' power, of licensing sanctions to the narrowest of limits 0907 so narrow that it would lack deterrence and not be worth the cost of enforcement to the State. Plaintiffs cite no case holding that Congress impliedly so cabined the states' residual police powers in this area of great and pervasive local import.

Plaintiffs do point to the Supreme Court's statement in Hoffman Plastic Compounds, Inc. v. N.L.R.B. 0907 a case that did not involve federal preemption-that IRCA is a "comprehensive scheme prohibiting the employment of illegal aliens in the United States," through which the federal government "`forcefully' made combating the employment of illegal aliens central to the policy of immigration law.'" 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (quoting another nonpre-emption case, INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194 n. 8, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991)). That statement did not find an intent to displace state police power over employers of unauthorized aliens, and Congressional intent is the touchstone of field preemption analysis. Retail Clerks Int'l Ass'n, 375 U.S. at 103, 84 S.Ct. 219. The Court's holding in Hoffman did not overrule its prior decision in De Canas or contradict its statement in Plyler.

Plaintiffs also argue that courts should "decline to give broad effect to saving clauses where doing, so would upset the careful regulatory scheme established by federal law." Locke, 529 U.S. at 106, 120 S.Ct. 1135 (citations omitted). See also Geier v. Am. Honda Motor Co., 529 U.S. 861, 870, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (quoting Locke, 529 U.S. at 106, 120 S.Ct. 1135). The cases cited by the Supreme Court in these two 1050 Opinions, American *1050 Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 227-28, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), simply state that a savings clause cannot be interpreted to defeat the central purpose of a statute's express provisions. Plaintiffs understand the Court's restatement of that principle in Locke and Geier as creating a universal rule that whenever a savings clause appears in a carefully balanced federal statute, the savings clause must be minimized, no matter the effect on, or the magnitude of, state police powers. No such rule can be derived from those cases.

Locke concerned Washington State rules that imposed "tanker design, equipment, reporting, and operating requirements" aimed at preventing oil spills by interstate carriers. 529 U.S. at 97, 120 S.Ct. 1135. In the federal Oil Pollution Act, Congress included a savings clause preserving state authority to impose "additional liability or

requirements" pertaining to "the discharge of oil or other pollution by oil within [a] state." Id. at 104-05, 120 S.Ct. 1135. Nevertheless, the Court held that the state law was "in an area where the federal interest has been manifest since the beginning of our Republic," that is, "[t]he authority of Congress to regulate interstate navigation, without embarrassment from intervention of the separate States and resulting difficulties with foreign' nations." Id. at 99, 120 S.Ct. 1135.
It construed the savings clause to "respect[] the established federal-state balance in matters of maritime commerce between the subjects as to which the States retain concurrent powers and those over which the federal authority displaces state control." Id. at 107, 120 S.Ct. 1135. It recognized that states have "residual powers" that are appropriately "exercised in concurrence with those of the national government." Id. at 109, 120 S.Ct. 1136 (citing McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819)). However, since states historically and by recent precedent had little or no "residual powers" over interstate vessel operation, design, or manning, it was "quite unlikely that Congress would use a means so indirect as the savings clauses in [the statute] to upset the settled division of authority." Id. at 106, 120 S.Ct. 1135. The Court therefore interpreted the Act to prohibit state regulation of vessel operation, design, or manning, but to permit state laws concerning liability and compensation from oil pollution. See also Geier, 529 U.S. at 868, 120 S.Ct. 1913 (interpreting the literal language of an express preemption provision with a savings clause to "leav[e] adequate room for state tort law to operate," but not to foreclose the finding of a conflict with federal law).
When Congress enacted employer sanctions in IRCA, it acted "within the mainstream of [state] police power regulation." De Canas, 424 U.S. at 356, 96 S.Ct. 933. The preemption analysis therefore "proceeds on the assumption that the historic police powers of the States were not . . . superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Dillingham Constr., 519 U.S. at 325, 117 S.Ct. 832. "This presumption against preemption leads us to the principle that express preemption statutory provisions should be given a narrow interpretation." Air Conditioning & Refrigeration Inst., 410 F.3d at 495. Furthermore, its savings clause should be interpreted to "respect[] the established federal-state balance . . . between the subjects as to which the States retain concurrent powers and those over which the federal authority displaces state control," Locke, 529 U.S. at 107, 120 S.Ct. 1135; Geier, 529 U.S. at 868, 120 S.Ct. 1913.
1051 *1051 In enacting IRCA, Congress' was distinctly aware of the localized impacts of unauthorized immigration. It included provisions to reimburse states for the costs of incarcerating illegal aliens, IRCA § 501, 100 Stat. at 3443, and for the health, welfare, education, and other costs imposed upon states by its legalization of unauthorized aliens then in the country. § 204, 100 Stat. at 3405-11. Unlike IRCA's temporary worker program provisions, which "preempt any State or local law regulating admissibility of nonimmigrant workers," § 216(h)(2), 110 Stat. at 3416 (emphasis added), Congress passed employer sanctions provisions that expressly preempt only some state power and expressly preserve other state powers. It allowed complementary enforcement by states through "licensing and similar laws." 8 U.S.C. § 1324a(h)(2).
If the authorized state and federal sanctions are disproportional in severity, that is because Congress recognized the disproportional harm to core state and federal responsibilities from unauthorized alien labor. The pervasive adverse effects of such employment fall directly on the states. De Canal, 424 U.S. at 356-57, 96 S.Ct. 933; Plyler, 457 U.S. at 228 n. 3, 102 S.Ct. 2382. See also Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 79-80 (2007) ("The concentration of the undocumented in a small number of states . . . means that the adverse political and fiscal effects of these concentrations are disproportionate in these states."). Congress conspicuously did not take responsibility for those costs. In light of the disproportionate responsibilities and burdens on the states, Congress could reasonably conclude that states are better equipped than Congress to judge which licenses to sanction, and how much. It left the strong deterrence of licensing sanctions to individual states to implement in their own circumstances.
Thus, Congress expressly reserved to the states the police power described in De Canas to act upon the business licenses of those who knowingly employ unauthorized aliens. At the time of De Canes, and therefore also today, that Power included the power to revoke such a license. Preservation of that state power was itself part of Congress' careful balancing of policy objectives. The structure and purpose of IRCA do not clearly evidence an intent to prevent the states from independently revoking the business licenses of those who knowingly employ unauthorized aliens.

2. The Act Does Not Impermissibly Regulate in the Field of Immigration
Plaintiffs argue that the Act intrudes into the federal government's plenary power over the field of immigration. See Hines, 312 U.S. at 66, 61 S.Ct. 399. Neither A.R.S. § 23-214's requirement that all employers in the State use E-Verify, nor the licensing sanction provisions of section § 23-212 regulate immigration. Like the California law at issue in De Canas, the Act does not determine "who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." De Canas, 424 U.S. at 355, 96 S.Ct. 933. It "adopt[s] federal standards in imposing . . . sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country." 424 U.S. at 355, 96 S.Ct. 933. "The State may borrow the federal classification" provided "that the classification is reasonably adapted to `the purposes for which the state desires to use it.'" Plyler, 457 U.S. at 226, 102 S.Ct. 2382 (quoting Oyama v. California, 332 U.S. 633, 664-665, 68 S.Ct. 269, 92 L.Ed. 249 (1948)).
The Act adopts the federal government's substantive classification of aliens, which appears in IRCA's definition of 1052 "unauthorized alien." 8 U.S.C. 1324a(h)(3); A.R.S. *1052 § 23-211(8). Under that definition, all aliens who are not
permanent residents or authorized to work by IRCA's legalization and temporary worker provisions already have been classified as "unauthorized aliens." The Act's E-Verify requirement simply designates the procedure for verifying the existing classification of a person. E-Verify and I-9 are "employment verification system[s]" that Congress created to operate within the context of employer sanctions laws. 8 U.S.C. 1324a(b) (emphasis added); IIRIRA § 401(a), 100 Stat. at 3009-655 (establishing "pilot programs of employment eligibility confirmation"). They do not substantively classify persons as work authorized. Aliens do not gain, lose, or change their status in the United States when they are processed through E-Verify. The Act's E-Verify requirement is therefore a regulation of employment, not immigration.[1]
The sanctions provisions of A.R.S. § 23-212 also regulate only licensing and employment. According to that section, State enforcement officials and State courts must request and rely exclusively on the federal determination of "immigration status or work authorization status" provided by USCIS under 8 U.S.C. § 1373. A.R.S. § 23-212(B), (H). Plaintiffs are mistaken that the only way to verify whether an alien is unauthorized is through a federal deportation hearing. Rather, the federal government allows the states to verify a person's immigration status in relation to work authorization using § 1373. See Privacy Act: Verification Information System Records Notice, 72 Fed. Reg. 17,569, 17,571-72 (Apr. 9, 2007) (describing USCIS's use of the same database to process immigration status requests from state agencies and E-Verify). The Act therefore validly "adopt[s] federal standards in imposing . . . sanctions against state employers." De Canas, 424 U.S. at 355, 96 S.Ct. 933.
IV. The Act Does Not Conflict With the Purposes arid Objectives of Congress
As noted above, conflict preemption exists when "compliance with both State and federal law is impossible, or when the state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Gade, 505 U.S. at 98, 112 S.Ct. 2374 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Conflict preemption in this case turns on the second form of conflict, where state law "stands as an obstacle" to federal law. This form of conflict is difficult to define and apply in a judicially prudent manner, for "[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Crosby v. Nat'l Foreign Trade 1053 Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352.[2] As *1053 Justice Kennedy explained in his precedential concurring opinion in Gade, where he cast the decisive vote, "A freewheeling judicial inquiry into whether a state statute is in tension with federal objectives would undercut the principle that it is Congress rather than the courts that preempts state law." 505 U.S. at 110, 112 S.Ct. 2374 (Kennedy, J., concurring).
That is why the Court has emphasized that conflict preemption arises only when the federal and state laws "actually conflict." English, 496 U.S. at 79, 110 S.Ct. 2270. See also Sprietsma v. Mercury Marine, 537 U.S. 51, 64, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002); Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995); Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). A mere difference between state and federal law is not conflict. Paul, 373 U.S. at 141-46, 83 S.Ct. 1210. The conflict must be "irreconcilable." Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 73

L.Ed.2d 1042 (1982). "The teaching of [the Supreme Court's] decisions . . . enjoins seeking out conflicts between state and federal regulation where none clearly exists." English, 496 U.S. at 90, 110 S.Ct. 2270. Those "decisions establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act . . . [Conflict] preemption should be limited to state laws which impose prohibitions or obligations which are in direct contradiction to Congress' primary objectives, as conveyed with clarity in the federal legislation." Gade, 505 U.S. at 110, 112 S.Ct. 2374 (Kennedy, J., concurring).
A. The Act's. Licensing Sanctions Procedures Do Not Conflict With the Purposes and Objectives of Congress
The licensing sanctions provisions of § 23-212 carefully track the federal employer sanctions law. The Act does not make employers conform to a stricter standard of conduct than federal law. Both the Act and IRCA prohibit employers from "knowingly" employing an unauthorized alien. Compare A.R.S. § 23-212(A) with 8 U.S.C. § 1324a(a)(1)(A). The Act also sanctions employers who "intentionally" employ unauthorized aliens, but "intentional" is at least as strict a standard as "knowing." AIM like IRCA, the Act's restrictions apply only with respect to those persons who have an "employment relationship" with an employer, so it does not include casual hires. Compare A.R.S. § 23-211(3) with 8 U.S.C. § 1324a(a). Nor would it include domestic workers because a business license is not needed to hire those persons.
Just like the federal law, the Act contains procedures for weeding out frivolous complaints and provides enforcement officers with discretion. Compare A.R.S. § 23-212(C) with 8 U.S.C. § 1324a(e). It does not change the degree of inspection that employers must perform on I-9 documents, but rather accords employers who have 1054 "complied in good faith" with the I-9 system with the same "affirmative defense" that is provided by federal law. *1054 Compare A.R.S. § 23-212(J) with 8 U.S.C. § 1324a(a)(3).[3] Also like IRCA, the Act accords employers who verify a new hire's employment eligibility through E-Verify with a "rebuttable presumption" of nonliability. Compare A.R.S. § 23-212(I) with IIRIRA § 402(b), 110 Stat. at 3009-656.
The Act's adjudicatory procedures do not conflict with federal law merely because a State Superior Court judge and a federal administrative law judge could disagree about the evidence. That possibility arises in every instance of parallel state and federal adjudication. Furthermore, the Act precludes liability for employers whose employees are authorized to work in the United States according to the federal government. The Act requires State investigators to request a federal determination of a person's immigration status. When USCIS determines that an employee is authorized to work, State investigators and courts must accept that determination and the employer cannot be liable. A.R.S. §§ 23-211(8), 23-212(B), (H). See League of United Latin Am. Citizens v. Wilson, 908 F.Supp. 755, 770 (C.D.Cal. 1995) (upholding the state's ability to "verify immigration status by referring to INS information"). Any burden this imposes on the federal agency is authorized by federal law, which states that USCIS "shall respond" to a request for "verification or status information" "for any purpose authorized by law." 8 U.S.C. § 1373(c).
Plaintiffs argue that because the Act does not contain an explicit prohibition on discrimination, it conflicts with federal law. Arizonans are protected by the prohibitions against discrimination in IRCA, other federal laws, and Arizona law. See 8 U.S.C. § 1324b (prohibiting discrimination "against any individual . . . with respect to the hiring . . . or the discharging of the individual from employment"); 42 U.S.C. § 2000e-2 (prohibiting discrimination based on "race, color, religion, sex, or national origin"); A.R.S. § 41-1463(B) (prohibiting employment discrimination based on "race, color, religion, sex, age, disability or national origin"). The State did not have to duplicate these laws by inserting an independent discrimination provision into the Act. It provided that the Act "shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or state law." A.R.S. § 23-213. There is no actual conflict with the federal goal of discouraging discrimination because the Act prohibits discrimination through deference to State and federal protections.
1055 Plaintiffs also contend that the Act's threat of license revocation upsets the balance *1055 that Congress struck between deterring employment of unauthorized aliens and minimizing discrimination. This false dichotomy amounts to an assertion that the Act defeats Congress' objectives because it achieves better deterrence than IRCA. Congress did not intend that the price of avoiding discrimination would be ineffective deterrence. Instead, it made discrimination illegal, imposed its own sanctions, and affirmed states' power to impose licensing sanctions.

Plaintiffs rely upon two foreign relations cases to argue that a slight shift in the mix of enforcement and discrimination creates a conflict. In Crosby v. National Foreign Trade Council, the Supreme Court held that states could not upset "the federal decision about the right degree of pressure to employ" and "undermine[] the congressional calibration of force" by "penalizing individuals and conduct that Congress . . . explicitly exempted or excluded from [trade] sanctions," especially "when the President exercises his discretionary authority to impose sanctions under the federal Act," 530 U.S. 363, 378-380, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Likewise, the Supreme Court held in American Ins. Ass'n v. Garamendi, that "the state Act [cannot] stand[] in the way of the President's diplomatic objectives" by requiring public disclosure of dealings in Europe during the Holocaust that did not have to be disclosed under federal rules, and thereby "use an iron fist where the President has consistently chosen kid gloves." 539 U.S. 396, 427, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (quoting Crosby, 530 U.S. at 386, 120 S.Ct. 2288) (alterations omitted).
Unlike the state laws in Crosby and Garamendi, the Act does not authorize sanctioning employers for acts that Congress has exempted or excluded from sanction. The sanctioned activity under IRCA and the Act is exactly the same. Furthermore, Crosby and Garamendi dealt with foreign relations, where the federal interest is dominant and therefore "any concurrent state power that may exist . . . is restricted to the narrowest of limits." Hines, 312 U.S. at 68, 61 S.Ct. 399. In contrast, the Act's employer sanctions provisions are employment regulations that are squarely within the police power of the State and that mirror those of IRCA in every significant respect. They do not conflict with the purposes and objectives of Congress. See Schuck, supra, at 80 ("[I]t is hard to see how state employer sanctions provisions that are carefully drafted to track the federal employer sanctions law can be inconsistent with it 0907 unless we take ineffective enforcement to be the `real' federal policy from which state law must not deviate.").
B. The Act's Requirement that Employers Use E-Verify Does Not Conflict With the Purposes and Objectives of Congress
Because use of E-Verify is voluntary under federal law, Plaintiffs assert that the State's E-Verify requirement in § 23-214 is preempted. "To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute." Gade, 505 U.S. at 98, 112 S.Ct. 2374 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)). When Congress enacted IIRIRA, it declared that "the Attorney General may not require any person or other entity to participate in [E-Verify]." § 402(a), 110 Stat. at 3009-656. This and every other provision in IIRIRA that mentions voluntary participation refers to how E-Verify is to operate in the context of the federal employer sanctions system. Those provisions strongly evidence Congress' 1056 intent not to make E-Verify mandatory at the national level for the national sanctions law. Without *1056 more, they do not raise an inference that Congress intended to prevent the states from mandating use of the system in their licensing laws.
Congress wishes E-Verify to be used and revised through experimentation. In IRCA, it authorized the President to implement changes to the I-9 system "to establish a secure system to determine employment eligibility." 8 U.S.C. § 1324a(d)(1). Congress' objective is to create a system that will reliably determine employment eligibility, will be counterfeit-resistant, and will protect privacy rights. § 1324a(d)(2). The system also needs to "have reasonable safeguards against the system's resulting in unlawful discriminatory practices." IIRIRA § 404(d)(4), 110 Stat. at 3009-663. But Congress has not conditioned use of E-Verify on the perfect achievement of these goals. It ordered the Secretary of Homeland Security to make the program accessible nationwide despite its alleged imperfection. Expansion Act § 3(b), 117 Stat. at 1944. Unless and until Congress fails to re-authorize the program by November, 2008,[4] E-Verify is a Congressionally approved tool for employers nationwide.
The Act's E-Verify requirement does not misuse federal resources for an unintended purpose. See Garrett v. City of Escondido, 465 F.Supp.2d 1043, 1057 (S.D.Cal.2006) (holding that a local government could not misuse a system for ascertaining benefits eligibility to verify eligibility for housing). It requires employers to use E-Verify for the precise purpose that Congress intended. It also does not force the federal government to allocate more resources to the program than Congress intended to allocate. The Secretary of Homeland Security must accommodate employer enrollment to the maximum extent that he deems possible given his budgetary and technical resources. See IIRIRA § 402(c)(3), 110 Stat. at 3009-657 (the Secretary "shall accept all elections" of

employers to participate, but has the power to "reject an election [to participate] . . . if [he] has determined that there are insufficient resources to provide appropriate services."). There is no evidence that the Secretary, or any executive officer for that matter, has balked at the number of Verify users that Arizona would add to the system. Indeed, the court can take judicial notice that DHS has placed billboard and radio advertisements in the Phoenix area to encourage greater participation.
The E-Verify requirement does not overburden employers with financial and administrative costs. The overwhelming majority of E-Verify users pay very little in setup and operational costs and find the system easier to use than I-9 alone. Plaintiffs have no evidence that Congress intended to protect employers from state laws that impose such incremental costs. Furthermore, unlike the regulation in Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), Congress did not intend to vest employers with individual rights, good against the states' police powers, to choose whether or not to participate in E-Verify. In Geier, the Department of Transportation faced public discontent over its mandate that car manufacturers use particular passive restraint systems, so it issued a regulation that "deliberately sought variety 0907 a mix of several different passive restraint systems." It contemporaneously explained that allowing manufacturers to choose would avoid 1057 another "backlash" and "facilitate the development of alternative, *1057 cheaper, and safer restraint systems." Id. at 876-79, 120 S.Ct. 1913. Here, plaintiffs have no evidence that Congress intended to vest employers with an autonomous choice for the sake of a higher federal, goal.
Federal policy encourages the utmost use of E-Verify. The Act effectively in, creases employer use of the system with no evidence of surpassing logistical limits, and it does so in the context of a licensing sanction law that is within the police power of the states as expressly recognized by IRCA. That Congress has not yet approved a bill mandating use of E-Verify within the federal employer sanctions process evinces Congressional intent regarding national 0907 not state level 0907 use of E-Verify. The Act's requirement that Arizona employers use E Verify therefore does not actually conflict with Congress' objectives.
V. The Act Provides Employers With Procedural Due Process
Under both the federal and State constitutions, procedural due process requires that a party have an opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ). Due process requires notice that is reasonably calculated under all of the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It also requires a fair trial in a fair tribunal." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 628, 99 L.Ed. 942 (1955); United States v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985). Due process "is flexible and calls for such procedural protections as the particular situation demands." Mathews, 424 U.S. at 334, 96 S.Ct. 893 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
Plaintiffs contend that the Act on its face violates procedural due process of law by denying employers any fair ascertainment of an essential element of liability. Again, the Act provides the following concerning Superior Court proceedings:
On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States. Code section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).
A.R.S. § 23-212(H). This subsection requires interpretation. On the one hand, the Superior. Court "shall consider only" the federal government's determination "whether an employee is an unauthorized alien." But on the other hand, that determination only creates "a rebuttable presumption," meaning that other evidence may be considered. The. Superior Court itself may request "automated or testimonial verification" from the federal government.

The parties offer different interpretations of this subsection. Plaintiffs say that the federal determination of the employee's authorization status is conclusive, and thus denies employers any chance to present evidence that the employee is authorized. They give no effect to the second sentence, which subjects the federal determination 1058 to rebuttal evidence. Defendants' interpretation gives some effect to both sentences. They interpret the provision *1058 to preclude the State from enforcing the Act unless it has received federal verification that the employee is unauthorized, but to allow the Superior Court to consider all evidence on questions of liability. Under either interpretation, an employer can present evidence of the employee's immigration status or work authorization to prove he lacked knowledge or intent to employ an unauthorized alien.
This court need not resolve which interpretation of the statute is correct. For Plaintiffs to prevail in this facial challenge, they must show there is no procedurally adequate application of the statute. They have not done that, as each of the offered meanings of § 23-212(H) entails minimally fair procedure, or better.
A. Defendants' Interpretation Meets Due Process
Defendants' interpretation of § 23-212(H) easily meets due process requirements. No employer may, be sanctioned without a full evidentiary hearing in the Superior Court of Arizona. A.R.S. § 23-212(E); Ariz. R. Civ. P. 65.2. The State has the burden to prove that the employer knowingly or intentionally employed an unauthorized alien. The Superior Court has full evidence-taking, fact-finding, and discretionary authority on all issues of liability, it simply cannot find an employee unauthorized absent a federal determination to that effect under 8 U.S.C. § 1373(c).
Under Defendants' interpretation, subsection (H) parallels subsection (B), which prohibits enforcing officers from "independently making a final determination on whether an alien is authorized to work in the United States" apart from the government's § 1373(c) response. Subsections (B) and (H) harmonize the Act with federal law and may be meant to protect workers from being the direct subject of investigation and enforcement. But where the employer's liability is at issue, the § 1373(c) determination creates only a rebuttable presumption-meaning that the employer may present any evidence to rebut the presumption that the employee is unauthorized or prove that it lacked knowledge of the employee's unauthorized status. Because the State cannot conclude that the employee is unauthorized without the federal determination, additional evidence of the employee's status can only exonerate the employer from liability.
This interpretation provides the employer with a meaningful hearing on the subject of liability and avoids the constitutional issues posed by Plaintiffs. See Mejak v. Granville, 212 Ariz. 555, 557, 136 P.3d 874, 876 (2006) ("[I]n interpreting a statute, this Court must . . . give effect to every provision in the statute . . . [and] interpret the statute so, that no provision is rendered meaningless, insignificant, or void."); Business Realty v. Maricopa County, 181 Ariz. 551, 559, 892 P.2d 1340, 1349 (1995) ("We interpret statutes to uphold their constitutionality, if that is possible. As a corollary, we strive to give statutes meanings that avoid serious constitutional issues. We reach those only when absolutely necessary.").
B. Plaintiffs Have Not Shown That Their Interpretation Fails Due Process
Even if the government's § 1373(c) response that the employee is unauthorized is conclusive upon the Superior Court, as Plaintiffs contend, employers still have doubly fair and adequate procedure embedded in the federal determination itself. That fair procedure is found in the E-Verify process, which Arizona employers must use, and again in the § 1373(c) response that the county attorney and the Superior Court may request from the government.
1059 *1059 1. The E-Verify process itself is fair, prompt, interactive, and adequate. It provides opportunity for the employee to be heard. After an initial report to the employer that the employee is not authorized to work, USCIS must make available a "secondary verification process to confirm the validity of information provided?' IIRIRA § 404(c), 110 Stat. at 3009-663. USCIS records the result of both its initial response and its secondary verification process in the Verification Information System' database, and then issues a final determination. (Facts, Doc. # 152, Ex. 52, Findings of the Web Basic Pilot Evaluation 11-15, Sept. 2007.) The employer, is the beneficiary of that process, with the authorized employee having his federal records cleared up unless he abandons the effort. The employer is protected by his ability to terminate an employee who declines to clear up his records through

the interactive process of E-Verify. An employee who proceeds to a final non-confirmation under E-Verify may even have federal judicial review of that final determination. See 5 U.S.C. § 702. When the State later submits its § 1373(c) request and USCIS checks its, verification database, the data will reflect the outcome of the secondary process and the response given to the State will be a final determination of employment status.
With employers on notice that they must avail themselves of this prior adequate procedure, due process does not require a second procedure (though § 23-212(H) does give them a second procedure under 8 U.S.C. § 1373(c)). Due process of law does not prevent legislation from requiring recourse to prior adequate proceedings, the result of which may not be questioned in a later proceeding, such as an enforcement proceeding. Natural Resources Defense Council, Inc. v. U.S. EPA, 673 F.2d 400, 406-07 (D.C.Cir.1982) (due process concerns arising from preclusion of review have little weight where, in fact, the regulated parties were on full notice of the need to challenge regulations within a specified time). The Act builds on this due process principle and thus accords employers and workers fair and adequate process. Obligatory deference to the procedurally adequate and mandatory federal determination process is not unconstitutional.
Of course, the procedural adequacy of E-Verify could count as a substitute for original Superior Court evidence and fact-finding concerning the employee's unauthorized status only if the employer was on notice to use E-Verify when hiring the worker. That is not the case for workers who were hired before E-Verify became mandatory in Arizona on January 1, 2008. There is debate over whether the Act permits enforcement proceedings concerning employees hired before January 1, 2008. Though at least some county attorneys say the Act does apply to previous hires, no county attorney has expressed any intention, of enforcing with respect to previous hires. (Trial Tr. 109.) The cost-of-compliance injury upon which the court has found standing against the county attorneys would not apply to enforcement for previous hires since the Act does not purport to require E-Verify confirmation for them. In any event, the court need not decide whether the Act permits enforcement for old hires, which would have to await an actual case with those facts. It is enough that the statute is capable of some constitutional application to defeat this facial challenge.
2. Employers who have not confirmed under E-Verify have one or two more chances for secondary verification of the employee's status, thus affording adequate procedure to the employer. The first may occur when the State submits its request under § 1373(e). Second, the Superior Court may "request the federal government to provide 1060 automated or testimonial *1060 verification pursuant to [§ 1373]," A.R.S. § 23-212(H), which is another chance to submit evidence of the employee's work authorization and have the government act upon it. Under federal law, USCIS has an affirmative duty to respond to such verification requests. 8 U.S.C. § 1373(c).
USCIS has not clearly defined many of the procedures that it follows when responding to state § 1373(c) inquiries. It might perform secondary verifications of employee documentation at the behest of State investigators and the Superior Court. The number of such requests will be insignificant compared to the number of E-Verify requests, so the agency easily could do so. Arguable legal authority also exists for secondary checks, through § 1373 requests. IIRIRA §§ 403(a)(4), 404(c), 642, 110 Stat. 3009-660, 661, 663, 707 (requiring the federal government to "provid[e] the requested verification or status information" to the states in the same statute that created E-Verify and mandated a secondary verification process) (emphasis added). If USCIS, performs secondary verification of employee documentation, then its § 1373(c) process will be the same as the E-Verify process.
Neither the federal government nor the flexible principles of due process explained in Mathews, 424 U.S. at 334, 96 S.Ct. 893, require that the employer be allowed to interact directly with the federal government agency in its verifying process. Even under E-Verify, Congress gave the employee access to the secondary verification process, not the employer, though the employer must inform and assist the employee. IIRIRA § 403(a)(4), 100 Stat. 3009-660 to 661. (See also Facts, Doc. # 148, Ex. 7, E-Verify Memorandum of Understanding, Art. II § C ¶ 9, Art. III.)
The Act provides employers opportunities to be heard through the federal processes themselves. They may be heard indirectly through their employees' dialog with the government in E-Verify, and directly by presenting evidence of an employee's immigration status, perhaps to the county attorney and certainly to the Superior Court. Both can pass it on to the federal government for secondary review of work authorization and a further determination under § 1373(c). Plaintiffs' evidence does not prove that USCIS will refuse to consider such

evidence and con duct secondary review of the employee's work authorization. Therefore, even if the government's § 1373(c) response is conclusive upon the Superior Court, Plaintiffs fall short of showing that the § 1373(c) process itself will lack adequacy and fairness. That is enough to defeat this facial challenge.
The facial constitutionality of this process is not defeated by hypothetical situations that may result in no secondary verification taking place. Such abstraction is not the business of a facial challenge. Plaintiffs may raise those as-applied challenges if and when such procedural failures occur.
C. The Superior Court Process Is Fair and Adequate
Plaintiffs' other procedural due process challenges have no merit. "The other Superior Court processes are subject to all the procedural protections of the Arizona Rules of Civil Procedure. Since the Superior Court has full evidence-taking, fact-finding, and discretionary authority on these issues, with the burden of proof on the State, there can be no due process right to participate in the enforcing officer's investigation and preparation of his case (though civil enforcement proceedings are rarely brought without first contacting the defendant).
Nowhere in the Act does it say that county attorneys must prosecute all nonfrivolous cases, or ones motivated by 1061 discrimination. Plaintiffs' other procedural *1061 fears are improbable. If they ever arose in a real case, they
could be decided, but there are no real facts here and the Act is not deficient on its face.
VI. Other Contentions
The Business Group Plaintiffs' complaint (Doc. # 1) also alleges that the Act violates the Commerce Clause of the U.S. Constitution, the separation of powers doctrine of the Arizona Constitution, and the Fourth Amendment of the U.S. Constitution. They have stipulated to withdraw the separation of powers and Fourth Amendment claims. (Doc. # 134).
With respect to the Commerce Clause argument, the Act does not regulate employees completely outside of the State. The Act defines "employee" as "[a]ny person who performs employment services for an employer" who is licensed to do business in the State. A.R.S. § 23-211(3). However, enforcement actions must be filed "against the employer by the county attorney in the county where the unauthorized alien is employed." § 23-212(D) (emphasis added). This precludes the extra-territorial application upon which the Business Group Plaintiffs ground their Commerce Clause argument. It also pre, eludes conflict with the laws of another state where an employee works.
IT IS THEREFORE ORDERED that the Clerk enter judgment dismissing these actions as against Defendant Arizona Attorney General Terry Goddard without prejudice for lack of subject matter jurisdiction, there being no justiciable case or controversy against him.
IT IS FURTHER ORDERED as to all other Defendants that the Clerk enter judgment against Plaintiffs and in favor of those Defendants and that Plaintiffs take nothing. The Clerk shall terminate this action.
IT IS FURTHER ORDERED that the motions for preliminary injunction (Doc. # 4 in No. CV 07-2496 and Doc. # 3 in No. CV 07-2518) are denied.
INDEX
I. Background .................................................................. 1040
A. Procedural History and Related Proceedings .............................. 1040 B. State and Federal Sanctions for Employing Unauthorized Workers........... 1041 C. Burden in a Facial Challenge ............................................ 1044
II. Federal Preemption Standards ................................................ 1044
III. The Immigration Reform and Control Act Expressly Authorizes, Rather Than..... 1044 Preempts, the Licensing Sanctions in the Act ............................... 1045

A. The Plain Language of 8 U.S.C. § 1324a(h)(2) Authorizes State Licensing Sanctions ............................................................... 1045
B. The Licensing Sanction Authorization is Not Conditioned on Completed Federal Proceedings Against the Violator; the Legislative History Does Not So State and Could Not Defeat the Statutory Language if it Did................................................................... 1046
C. The Structure and Purpose of IRCA Do Not. Support Plaintiffs' Restrictive Interpretation of the Savings Clause ........................ 1048
1. IRCA Does Not Clearly Evidence Congressional Intent to Prevent States From Independently Revoking the Business Licenses of Those Who Knowingly Employ Unauthorized Aliens ........................ 1049
2. The Act Does Not Impermissibly Regulate in the Field of Immigration ........................................................... 1051
IV. The Act Does Not Conflict With the Purposes and Objectives of Congress........ 1052
1062 *1062
A. The Act's Licensing Sanctions Procedures Do Not Conflict With the Purposes and Objectives of Congress ...................................... 1053
B. The Act's Requirement that Employers Use E-Verify Does Not Conflict With the Purposes and Objectives of Congress ............................ 1055
V. The Act Provides Employers With Procedural Due Process ........................ 1057 A. Defendants' Interpretation Meets Due Process .............................. 1058 B. Plaintiffs Have Not Shown That Their Interpretation Fails Due Process ..... 1058 C. The Superior Court Process Is Fair and Adequate ........................... 1060
VI. Other Contentions ............................................................ 1061
[1] If the E-Verify requirement of A.R.S. § 23-214 were invalid, it would be severed and the remainder of the Act upheld. 2007 Ariz. Sess. Laws, Ch. 279, Sec. 5 ("If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.").
[2] The Supreme Court has observed that its "pre-emption categories are not rigidly distinct'" but that the preemptive label chosen can "carry with it substantive implications for the scope of pre-emption." Gade, 505 U.S. at 104 n. 2, 112 S.Ct. 2374 (quoting English, 496 U.S. at 79 n. 5, 110 S.Ct. 2270 (emphasis added)). See also Crosby, 530 U.S. at 372 n. 6, 120 S.Ct. 2288. The occasional conflation of implied field preemption and implied conflict preemption can be especially troubling. See Gade, 505 U.S. at 115-16, 112 S.Ct. 2374 (Souter, J. dissenting) (quoting L. TRIBE, AMERICAN CONSTITUTIONAL LAW 486 (2d ed.1988) (noting that some conflict preemption analysis presents "`a situation similar in practical effect to that of federal occupation of a field.'")). Both require analysis of the structure and purpose of a statute to glean Congress' intent, but the substantive implication is different. With field preemption, state police powers are relegated to the narrowest of limits, With conflict preemption, states retain their police powers in full, but they cannot use those powers to defeat federal objectives. Conflict preemption analysis, if loosely used, can allow invalidation of state laws based upon concerns that more properly go to field preemption, but without having to say straightly that states are excluded from the entire field.
[3] The Act's replication of the federal affirmative defense of I-9 compliance is not prohibited by 8 U.S.C. § 1324a (b)(4) and (5). These provisions protect persons' privacy rights from employer misuse, and ensure that the government cannot expand use of the I-9 Form to prosecutions other than for employment of unauthorized aliens. Arizona's replication of the federal affirmative defense respects' those policies. Subparagraph (4) restricts

employers from using copies of identification documents presented by new hires for any purpose other than "complying with the requirements of this subsection." The subsection creates IRCA's employment verification system. The Act allows employers to use I-9 documentation to prove their compliance with the federal employment verification system and then accords employers a rebuttable presumption of innocence. Subparagraph (5) restricts I-9 Forms from being used "for purposes other than for enforcement of [IRCA]." IRCA expressly includes state permission to impose sanctions on employers of unauthorized aliens through "licensing and similar laws." 8 U.S.C. 1324a(h)(2). State use of I-9 Forms to enforce employer licensing sanctions is therefore incorporated into subparagraph (5) by section (h)(2).
[4] The federal government may terminate an employer's use of E-Verify. There is no reason to think that the government would exclude users except for their own misconduct. Even if a user were terminated or E-Verify ceased to exist, the remainder of the Act could be validly implemented and would survive.
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 No. 09-115 Title: Chamber of Commerce of the United States, et al., Petitioners v. Michael B. Whiting, et al. Docketed: July 28, 2009 Linked with 08A1076 Lower Ct: United States Court of Appeals for the Ninth Circuit Case Nos.: (07-17272, 07-17274, 08-15357, 08-15359, 08-15360) Decision Date: March 9, 2009 Questions Presented
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ May 28 2009 Application (08A1076) to extend the time to file a petition for a writ of certiorari from June 7, 2009 to August 6, 2009, submitted to Justice Kennedy. Jun 2 2009 Application (08A1076) granted by Justice Kennedy extending the time to file until July 24, 2009. Jul 24 2009 Petition for a writ of certiorari filed. (Response due August 27, 2009) Aug 18 2009 Order extending time to file response to petition to and including September 28, 2009, for all respondents. Aug 27 2009 Brief amici curiae of Business Organizations filed. Aug 27 2009 Brief amici curiae of National Employment Law Project, et al. filed. Aug 27 2009 Brief amici curiae of Asian American Justice Center, et al. filed. Sep 28 2009 Brief of respondents Janice K. Brewer, Arizona Governor, et al. in opposition filed. Oct 13 2009 Reply of petitioners Chamber of Commerce of the United States, et al. filed. (Distributed) Oct 14 2009 DISTRIBUTED for Conference of October 30, 2009. Nov 2 2009 The Solicitor General is invited to file a brief in this case expressing the views of the United States. May 28 2010 Brief amicus curiae of United States filed. Jun 7 2010 Supplemental brief of petitioners Chamber of Commerce of the United States, et al. filed. (Distributed) Jun 8 2010 DISTRIBUTED for Conference of June 24, 2010. Jun 17 2010 Supplemental brief of respondents Janice K. Brewer, Arizona Governor, et al. filed. (Distributed) Jun 28 2010 Petition GRANTED. Jul 13 2010 Record received from U.S.D.C. for District of Arizona. (1 envelope) Jul 15 2010 Record received from U.S.C.A. for 9th Circuit. (1 envelope) Jul 30 2010 Consent to the filing of amicus briefs, in support of either party or of neither party, received from counsel for the petitioner. Jul 30 2010 Consent to the filing of amicus briefs, in support of either party or of neither party, received from counsel for respondents. Aug 2 2010 The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 1, 2010.

Aug 2 2010 The time to file respondents' brief on the merits is extended to and including October 21, 2010. Sep 1 2010 Joint appendix filed. (Statement of Costs received.). Sep 1 2010 Brief of petitioners Chamber of Commerce of the United States, et al. filed. Sep 7 2010 SET FOR ARGUMENT ON Wednesday, December 8, 2010. Sep 7 2010 Justice Kagan is recused in this case. Sep 8 2010 Brief amicus curiae of United States filed. Sep 8 2010 Brief amici curiae of Business Organizations filed. Sep 8 2010 Brief amici curiae of Representative Romano L. Mazzoli. et al. filed. Sep 8 2010 Brief amici curiae of Asian American Justice Center, et al. filed. Sep 8 2010 Brief amici curiae of National Immigrant Justice Center, et al. filed. Sep 8 2010 Brief amicus curiae of Equal Employment Advisory Council filed. Sep 8 2010 Brief amicus curiae of Service Employees International Union filed. Oct 8 2010 CIRCULATED Oct 21 2010 Brief of respondents Michael B. Whiting, et al. filed. (Distributed) Oct 27 2010 Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. Oct 27 2010 Brief amicus curiae of Immigration Reform Law Institute filed. (Distributed) Oct 28 2010 Brief amicus curiae of American Center for Law and Justice filed. (Distributed) Oct 28 2010 Brief amicus curiae of American Unity Legal Defense Fund filed. (Distributed) Oct 28 2010 Brief amicus curiae of NumbersUSA Education & Research Foundation filed. (Distributed) Oct 28 2010 Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed. (Distributed) Oct 28 2010 Brief amicus curiae of State Senator Russell Pearce filed. (Distributed) Oct 28 2010 Brief amici curiae of Missouri, et al. filed. (Distributed) Nov 15 2010 Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Kagan took no part in the consideration or decision of this motion. Nov 22 2010 Reply of petitioners Chamber of Commerce of the United States, et al. filed. (Distributed) Dec 8 2010 Argued. For petitioners: Carter G. Phillips, Washington, D. C.; and Neal Kumar Katyal, Acting Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Mary R. O'Grady, Solicitor General, Phoenix, Ariz.

~~Name~~~~~~~~~~~~~~~~~~~~~

~~~~~~~Address~~~~~~~~~~~~~~~~~~

~~Phone~~~

Attorneys for Petitioners:

Carter G. Phillips Sidley Austin LLP (202) 736-8000

Counsel of Record 1501 K Street, N.W.

Washington, DC 20005

cphillips@sidley.com

Party name: Chamber of Commerce of the United States, et al.

Attorneys for Respondents:

Christopher Munns Assistant Attorney General (602) 542-8303

Counsel of Record 1275 West Washington Phoenix, AZ 85007 Christopher.Munns@azag.gov
Party name: Michael B. Whiting, et al.

Mary R. O'Grady Solicitor General (602) 542-3333 1275 W. Washington St. Phoenix, AZ 85007-2928 SolicitorGeneral @azag.gov
Party name: Michael B. Whiting, et al. Other: Linda T. Coberly Winston & Strawn LLP (312) 558-5600
35 West Wacker Drive Chicago, IL 60601 LCoberly@winston.com Party name: National Immigrant Justice Center, et al.

Leon Dayan 805 Fifteenth Street, NW (202) 842-2600 Washington, DC 20005
Party name: Service Employees International Union

Leon Dayan Bredhoff & Kaiser PLLC (202) 842-2600 805 Fifteenth Street, NW Suite 1000 Washington, DC 20005
Party name: National Employment Law Project, et al.

Walter Dellinger III O'Melveny & Myers LLP 1625 Eye Street, N.W. Washington, DC 20006 wdellinger@omm.com
Party name: Business Organizations

(202) 383-5319

Kevin Murray Fong Pillsbury Winthrop Shaw Pittman, LLP 50 Fremont Street, P.O. B.7880 San Francisco, CA 94105 kevin.fong@pillsburylaw.com
Party name: Asian American Justice Center, et al.

(415) 983-1000

Michael M. Hethmon Immigration Reform Law Institute 25 Massachusetts Avenue, N. W. Suite 335 Washington, DC 20001 mhethmon@irli.org
Party name: Immigration Reform Law Institute

(202) 232-5590

Lawrence J. Joseph 1250 Connecticut, NW

(202) 669-5135

Suite 200

Washington, DC 20036

ljoseph@larryjoseph.com

Party name: Eagle Forum Education & Legal Defense Fund

Neal Kumar Katyal Acting Solicitor General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 SupremeCtBriefs@USDOJ
Party name: United States

(202) 514-2217

Judith A. Lampley Norris Tysse Lampley & Lakis LLP (202)-629-5600 1501 M Street, NW Suite 400 Washington, DC 20005 jlampley@ntll.com
Party name: Equal Employment Advisory Council

J. E. McNeil McNeil & Ricks, PC (202) 256-7441 4119 Garrison St., N.W. Washington, DC 20016 jmcnrick@yahoo.com
Party name: NumbersUSA Education & Research Foundation

Jeremiah J. Morgan Deputy Solicitor General P.O. Box 899 Jefferson City, MO 65102
Party name: Missouri, et al.

(573) 751-1800

Paul J. Orfanedes Judicial Watch, Inc. 425 Third Street, S.W., Suite 800 Washington, DC 20024 porfanedes@judicialwatch.org
Party name: State Senator Russell Pearce

(202) 646-5172

Jay Alan Sekulow American Center for Law & Justice (202) 546-8890 201 Maryland Ave., N.E. Washington, DC 20002 sekulow@aclj.org
Party name: American Center for Law and Justice

Paul M. Smith Jenner & Block LLP (202) 639-6000 1099 New York Avenue, N.W., Suite 900 Washington, DC 20001

psmith@jenner.com Party name: Representative Romano L. Mazzoli. et al.
Barnaby W. Zall Weinberg, Jacobs & Tolani, LLP 11300 Rockville Pike, #1200 Rockville, MD 20852 bzall@bzall.com
Party name: American Unity Legal Defense Fund

(301) 231-6943

 
 No. 09IN THE

CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA et al., Petitioners,
CRISS CANDELARIA et al., Respondents.
Petition for a Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI

ROBIN S. CONRAD

CARTER G. PHILLIPS*

SHANE B. KAWKA

ERIC A. SHUMSKY

NATIONAL CHAMBER

QUIN M. SORENSON

LITIGATION CENTER, INC. SIDLEY AUSTIN LLP

1615 H Street, N.W.

1501 K Street, N.W.

Washington, D.C. 20062 Washington, D.C. 20005

(202) 463-5337

(202) 736-8000

Counsel for Petitioner Chamber of Commerce of the United States of America

July 24, 2009

* Counsel of Record

[Additional Counsel Listed Inside]

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20002

DAVID A. SELDEN

BURT M. RUBL~N

JUL~E A. PAC~.

BALLAP~ SPAHR ANDREWS

BALLARD SPAHR ANDREWS & INGERSOLL, LLP

& IN6~.RSOLL, LLP

1735 Market Street

3300 N. Central Avenue 51st Floor

Suite 1800

Philadelphia, PA 19103

Phoenix, AZ 85012

(215) 665-8500

(602) 798-5472

Cour~sel for Petitioners Arizona Contractors Association; Arizona Chamber of Commerce; Arizor~a Employers for Immigration Reform; Arizona Farm Bu-
reau Federation; Arizor~a Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurar~t and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; National Roofing Con-
tractors Association

DANIEL POCHODA ACLU FOUNDATION OF ARIZONA P.O. Box 17148 Phoenix, AZ 85011 (602) 650-1854

STEPHEN P. BERZON JONATHAN WEISSGLASS REBECCA SM-tYLLIN ALSHUI~R BERZON LLP
177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151

LUCAS GUTTENTAG

STEV~.N R. SHAPmO

JENNIFER CHANG NEWELL OMAR C. JADWAT

AMEP~CAN Crv~L

AMER~CA~ Crv-[L

LIBERTIES UNION

LIBERTIES UNION

FOUNDATION

FOUNDATION

39 Drumm Street

125 Broad Street,

San Francisco, CA 94111 18th Floor

(415) 343-0770

New York, NY 10004

(212) 549-2500

KRISTINA CAMPBELL CYNTHIA VALENZUELA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
634 S. Spring Street 1 lth Floor Los Angeles, CA 90014 (213) 629-2512 x136

LINTON JOAQUIN KAREN C. TUMLIN NATIONAL IMMIGRATION
LAW CENTER
3435 Wilshire Blvd. Suite 2850 Los Angeles, CA 90010 (213) 639-3900

Counsel for Petitioners Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.

PAUL F. ECKSTEIN
JOEL W. NOMKIN PERKINS COIE BROWN &
BAIN P.A. 2601 N. Central Avenue Post Office Box 400 Phoenix, AZ 85001 (602) 351-8000
Counsel for Petitioner Wake Up Arizona! Inc.

QUESTIONS PRESENTED 1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). 2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note. 3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the eraployment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).
(i)

ii
PARTIES TO THE PROCEEDING
Petitioners which were plaintiffs/appellants below are Chamber of Commerce of the United States of America; Arizona Contractors Association; Arizona Chamber of Commerce; Arizona Employers for Immigration Reform; Arizona Farm Bureau Federation; Arizona Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurant and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.; National Roofing Contractors Association; and Wake Up Arizona! Inc.
Respondents who were defendants/appellees below are Criss Candelaria; Kenny Angle; Melvin R. Bowers Jr.; Martin Brannan; James Currier; Daisy Flores; Fidelis V. Garcia; Gale Garriott; Terry Goddard; Terrence Haner; Barbara Lawall; Janet Napolitano; Sheila Polk; Derek D. Rapier; Ed Rheinheimer; George Silva; Jon Smith; Matthew J. Smith; Andrew P. Thomas; and James P. Walsh.
There are no parent corporations or publicly held corporations that own 10% or more of the stock of any of Petitioners.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................. i PARTIES TO THE PROCEEDING .................... ii

TABLE OF AUTHORITIES ................................ v

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

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

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS ......................... 1

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

STATEMENT OF THE CASE ............................. 5

I. STATUTORY AND REGULATORY BACKGROUND ...................................................... 5

II. THE ARIZONA STATUTE ........................... 8

III. PROCEDURAL BACKGROUND ................. 10

REASONS FOR GRANTING THE PETITION .... 11
I. REVIEW IS WARRANTED BECAUSE THIS CASE PRESENTS A QUESTION OF EXCEPTIONAL NATIONAL IMPORTANCE .......................................................... 12
II. REVIEW IS WARRANTED BECAUSE THE DECISION BELOW CONFLICTS WITH THIS COURT’S PRECEDENT, AND MISINTERPRETS FEDERAL LAW .... 20

CONCLUSION .................................................... 28

APPENDIX A: Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009) ......... la

APPENDIX B: Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976 (9th Cir. 2008) ......... 26a

(iii)

iv
APPENDIX C: Arizona Contractors Ass’n, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 2008) ................................................................... 49a
APPENDIX D: Arizona Contractors Ass’n, Inc. v. Candelaria, 526 F. Supp. 2d 968 (D. Ariz. 2007) ................................................................... 95a
APPENDIX E: Federal Statute ...........................127a
APPENDIX F: State Statutes .............................169a

V

CASES

TABLE OF AUTHORITIES

Page

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) ............................ 11
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) .................................... 11
Chamber of Commerce v. Chertoff, No. 8:08-cv-3444 (D. Md. filed Dec. 23, 2008) ........................................................... 7
Chamber of Commerce v. Henry, No. 08-
109, 2008 WL 2329164 (W.D. Okla. June 4, 2008), appeals docketed, Nos. 08-6127, 08-6128 (10th Cir. June 19, 2008) ............. 19 Collins Foods Int’l, Inc., v. INS, 948 F.2d 549 (9th Cir. 1991) ..................................... 13 De Canas v. Bica, 424 U.S. 351 (1976) .... 5, 21, 22 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) ............................................. 12, 25, 27 Gray v. City of Valley Park, No. 07-00881,
2008 WL 294294 (E.D. Mo. Jan. 31, 2008), aff’d on other grounds, 567 F.3d 976 (8th Cir. 2009) ..................................... 19 Hines v. Davidowitz, 312 U.S. 52 (1941) ...... 5 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ..................... passim Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), appeal docketed, No. 07-3531 (3d Cir. Aug. 30, 2007) ................ 19, 20 Miss. Band of Choctaw Indians v. Holy-
field, 490 U.S. 30 (1989) ............................. 23 O’Melveny & Myers v. FDIC, 512 U.S. 79
(1994) .......................................................... 26 Rowe v. N.H. Motor Transp. Ass’n, 128 S.
Ct. 989 (2008) ............................................. 15 United States v. Illinois, No. 07-3261, 2009
WL 662703 (C.D. Ill. Mar. 12, 2009) ......... 16

vi
TABLE OF AUTHORITIES - continued Page
Zadvydas v. Davis, 533 U.S. 678 (2001) ....... 12
CONSTITUTION, STATUTES AND REGULATIONS
U.S. Const. art. VI, cl. 2 ................................ 2 Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 ........................ 7, 25, 26 Immigration and Nationality Act, ch. 447, 66 Stat. 163 (1952) ..................................... 5 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 ........................................... 3, 12, 13, 17, 24 8 U.S.C. § 1324a(a) ................................. 6, 9, 13
§ 1324a(b) ....................................... 6, 27 § 1324a(d) ....................................... 8 § 1324a(e) ....................................... 6, 23 § 1324a(h) .......................... 2, 3, 8, 14, 23 § 1324b ............................................ 18 § 1324c ............................................ 13 29 U.S.C. § 1813(a)(6) ................................. 24 8 C.F.R. § 274a.2(b) ................................... 6, 27 § 274a.10(b)(1)(ii)(A) ...................... 6 28 C.F.R. pt. 68 .............................................. 6, 23 Pilot Programs for Employment Eligibility Confirmation, 62 Fed. Reg. 48,309 (Sept. 15, 1997) ..................................................... 26 Federal Acquisition Regulation, 73 Fed. Reg. 67,651 (Nov. 14, 2008) ....................... 7 Ariz. Rev. Stat. § 23-211 .................................9, 25
§ 23-212 ................................ 9, 16 § 23-214 ................................ 9, 15 Colo. Rev. Stat. § 8-17.5-102 ......................... 15 Ga. Code Ann. § 13-10-91 .............................. 15

vii
TABLE OF AUTHORITIES - continued Page
820 Ill. Comp. Stat. § 55/12 ........................... 16 La. Rev. Stat. Ann. § 23:992.2 ...................... 16
§ 23:993 ......................... 17 § 23:994 ......................... 17 Miss. Code Ann. § 71-11-3 ..................... 15, 16, 17 Mo. Rev. Stat. § 285-525 ............................. 15, 16 § 285-530 .............................. 15, 16 Okla. Stat., tit. 25 § 1312 ............................. 16 § 1313 ............................ 16, 17 S.C. Code Ann. § 41-8-20 ............................... 16 § 41-8-50 .............................. 16 Tenn. Code Ann. § 50-1-103(e) ...................... 16 § 50-1-106 .......................... 16 Utah Code Ann. § 63G-11-103 ...................... 16 W. Va. Code § 21-1B-5 .................................... 17 § 21-1B-7 ................................... 16 Albertville, Ala., Resolution No. 945-08 ....1..5, 16 Apple Valley, Cal., Resolution No. 200682 ................................................................ 16 Exec. Order No. 08-01 (Minn. Jan. 7, 2008) .... 15 Exec. Order No. 08-01 (R.I. Mar. 27, 2008) ..... 15 Hazleton, Pa., Ordinance No. 200618 ........................................................ 15, 16, 17 Mission Viejo, Cal., Ordinance No. 07-260 ...... 15 Suffolk County, N.Y., Local Law No. 522006 ............................................................ 17
LEGISLATIVE HISTORY
H.R. 1951, 110th Cong. (2007) ...................... 27 H.R. 98, 110th Cong. (2007) .......................... 27 H.R. Rep. No. 99-682, pt. I (1986) ........ 13, 18, 24 S. Rep. No. 99-132 (1985) ............................. 13, 18 Statement of the President, Nov. 10, 1986,
reprinted in 1986 U.S.C.C.A.N. 5856-1 ..... 13

viii

TABLE OF AUTHORITIES - continued

OTHER AUTHORITIES

Page

Stephen Dinah, Judge Overturns Hazle-

ton’s Law Targeting Illegals, The Wash-

ington Times, July 27, 2007 ....................... 3

Immigration Reform Law Institute,

IRLI Model Taxpayer and Citizen Pro-

tection Act, available at http://www.irli.org/tcpa_partb.html .......... 15 Nat’l Conf. of State Legislatures, 2009

Immigration-Related Bills and Resolu-

tions in the States (Apr. 22, 2009), at

http://www.ncsl.org/docments/immig/200

9ImmigFinalApri1222009.pdf ..............3.., 14,18

Pew Research Ctr., State

of

the States Report-2008, available at

http://archive.stateline.org/fiash-

data/StateOfl~heStates2008.pdf. ............... 3

Social Sec. Admin., Social Security Number

Verification Service (SSNVS) Handbook (Dec. 2008) .................................................. 16 Westat, Findings of the Web Basic

Pilot Evaluation (Sept. 2007)

available at http://www.uscis.gov/ files/article/WebBasicPilotRprtSept2007.

pdf .................................................. 15, 17, 26, 27

PETITION FOR A WRIT OF CERTIORARI
Petitioners are business, community-based, and civil rights organizations that hereby petition for a writ of certiorari to review the decision and judgment of the United States Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The opinions of the United States District Court for the District of Arizona are published at 534 F. Supp. 2d 1036 and 526 F. Supp. 2d 968, and are reproduced at Pet. App. 49a-94a, 95a-126a. The opinion of the Ninth Circuit, which was captioned Chicanos Por La Causa v. Napolitano, is published at 544 F.3d 976, and reproduced at Pet. App. 26a-48a. The Ninth Circuit’s order amending its opinion, and denying rehearing and rehearing en banc, is published at 558 F.3d 856, and reproduced at Pet. App. la-25a.
JURISDICTION
The Ninth Circuit entered judgment on September 17, 2008. A timely petition for rehearing and rehearing en banc was denied on March 9, 2009. On June 2, 2009, Justice Kennedy granted an extension of time to and including July 24, 2009, to file a petition for a writ of certiorari. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS
The Supremacy Clause of the United States Constitution provides, in pertinent part, that "the Laws of the United States ... shall be the supreme Law of the

2
Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2.
Relevant provisions of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, codified at 8 U.S.C. § 1324a, are reproduced at Pet. App. 127a-47a. Relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104208, 110 Stat. 3009, are set forth in a note to 8 U.S.C. § 1324a, and are reproduced at Pet. App. 147a-68a.
Relevant provisions of the Legal Arizona Workers Act, Ariz. Rev. Stat. §§ 23-211 to 23-216, are reproduced at Pet. App. 169a-92a.
INTRODUCTION
This case involves a question of exceptional national importance: whether state legislatures and municipal governments may override Congress’s judgment concerning United States immigration policy. Plainly they may not. This Court has made clear that federal law creates a "comprehensive scheme" for regulating the employment of aliens and the verification of immigration status. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). And, with one tightly circumscribed exception, IRCA expressly preempts state laws that would regulate in this field. 8 U.S.C. § 1324a(h)(2).
In contravention of these clear directives, state legislatures and municipal governments across the country are seeking to regulate the employment of aliens. In the first three months of 2009 alone, over 1,000 immigration-related bills and resolutions were introduced, in all 50 states. At least 150 of these bills related specifically to employment, and 40 such bills

3
have been enacted in 28 states since 2007.1 The result is a "cacophony" of state immigration laws,e which are disrupting the congressional plan to comprehensively and "uniformly" regulate status verification and employment of immigrants. IRCA § 115, 100 Stat. at 3384. During the presidential campaign, then-Senator Obama properly described these statutes as "unconstitutional and unworkable," noting that they "underscore[] the need for comprehensive immigration reform so local communities do not continue to take matters into their own hands.’’3
At issue here is the "Legal Arizona Workers Act." Pertinent here, this statute imposes sanctions on employers that knowingly hire unauthorized workers, and requires all Arizona employers to use "E-Verify," a federally administered electronic employment verification system (which formerly was known as the "Basic Pilot Program"). In the decision below, the Ninth Circuit held that these provisions are not preempted, notwithstanding that IRCA expressly prohibits states from regulating the employment of aliens, see 8 U.S.C § 1324a(h)(2), and notwithstanding that IIRIRA explicitly provides that the use of E-Verify is voluntary, see IIRIRA § 402. It did so by transforming the narrow savings clause in the statute’s preemption provision for "licensing and similar laws"
1See Nat’l Conf. of State Legislatures, 2009 ImmigrationRelated Bills and Resolutions in the States (Apr. 22, 2009), at http://www.ncsl.org/documents/immig/2009ImmigFinalApri1222 009.pdf.
2 See Pew Research Ctr., State of the States Report-2008 at 56-62, available at http://archive.stateline.org/flashdata/StateOfl?heStates2008.pdf.
3 Stephen Dinah, Judge Overturns Hazleton’s Law Targeting Illegals, The Washington Times, July 27, 2007, at A05.

4
into a gaping loophole that would upend the system Congress enacted.
Review by this Court is appropriate now and in this case. Without immediate action by this Court, the crazy-quilt of state and local immigration statutes will continue to expand, multiplying burdens on employers and unfairness to employees. The result will be a flood of lawsuits, years of litigation, and an unnecessary waste of judicial, legislative, and executive resources. This case is a particularly good vehicle to address these issues, because it presents two questions-the scope of § 1324a’s preemption provision and savings clause, and whether states may require the use of E-Verify--that are implicated by many of the state and local enactments and proposed legislation. The Arizona statute’s reliance on a state determination of immigration status, in the absence of a prior federal adjudication, likewise is an important federal question implicating the scope of federal immigration statutes and regulations. And, the decision below threatens to undo Congress’s careful and deliberate crafting of a "comprehensive scheme" regulating the employment of aliens. Hoffman, 535 U.S. at 147.
The severity of the broader national problem--and in particular the burdens on employers who must meet different and sometimes conflicting laws in numerous jurisdictions--is reflected in the broad coalition supporting this petition. Business, labor, and civil rights organizations, which only rarely see eye to eye, joined in challenging the statute below; support the petition here; and individually and collectively recognize the fundamental need for review and clarification of the law by this Court. The important missing voice, however, is that of the Executive Branch of the United States, which has a critical interest in en-

5
suring the integrity and uniformity of immigration laws, in regulating the employment of aliens, and in ensuring that the Legislative Branch’s intent is not thwarted. It is the Executive Branch that administers the federal status verification systems at issue here, as well as the exclusive system for adjudicating violations of federal immigration law into which Arizona now would intrude. The Court should invite the views of the Solicitor General on these important national issues, and then grant certiorari to resolve them.
STATEMENT OF THE CASE
This case centers on the interplay between federal immigration law and the Legal Arizona Workers Act, which seeks to regulate employment eligibility and immigration status verification. It therefore is necessary to briefly explain the federal and state statutes implicated here.
I. STATUTORY AND REGULATORY BACKGROUND
This Court long has recognized that most questions involving immigration are regulated exclusively by the federal government. Hines v. Davidowitz, 312 U.S. 52, 60-62 (1941). One exception used to be the employment of aliens. Prior to 1986, it could fairly be said that federal law (in the form of the thencontrolling Immigration and Nationality Act, ch. 447, 66 Stat. 163 (1952)) had only "a peripheral concern with employment of illegal entrants." De Canas v. Bica, 424 U.S. 351, 360 (1976). After 15 years of study, however, Congress changed course when it enacted IRCA in 1986. That statute constituted a "comprehensive scheme prohibiting the employment of illegal aliens in the United States." Hoffman, 535 U.S. at 147.

6
IRCA makes it unlawful "to hire, or to recruit or fer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien." 8
U.S.C. § 1324a(a)(1)(A). Violations of the statute are adjudicated before a federal administrative law judge in accordance with procedures dictated in detailed and lengthy statutory and regulatory provisions. See generally id. § 1324a(e); 28 C.F.R. pt. 68. These provisions specify civil and criminal sanctions for employers that violate IRCA, including graduated monetary penalties, civil injunctions, criminal fines (of up to $3,000 per unauthorized worker), and even imprisonment (of up to six months). 8 U.S.C. § 1324a(e)(4),
(f); 8 C.F.R. § 274a.10(a), (b)(1)(ii)(A). The administrative law judge’s decision is subject to administrative appellate review, and then to federal judicial re-
view. 8 U.S.C. § 1324a(e)(7), (8).
To ensure compliance with the statute, Congress established a system for employers to verify employees’ work eligibility. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b). This system, known as the I-9 Form process, requires employers to collect documents establishing the employee’s work authorization and identity, and then to complete a form (the federal I-9 Employment Eligibility Form) for submission upon request to federal officials. 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b). An employer who in good faith complies with this process cannot be sanctioned, even if the employee later is determined to lack employment eligibility. 8 U.S.C. § 1324a(a)(3).
For a decade, the I-9 Form process served as the exclusive means for employers to verify employees’ work authorization status. See Hoffman, 535 U.S. at 147-48. In 1996, Congress additionally established three test "pilot programs" for employment status verification. Relevant here, these included the Basic

7
Pilot Program (since rebranded "E-Verify" by the Department of Homeland Security). E-Verify is a method of electronic verification that an employer may use in addition to the I-9 system. See IIRIRA §§ 401-405. Under E-Verify, an employer who enters into an agreement with the federal government is granted access to Internet databases maintained by the government. An employer then can check the information in those databases against information submitted by prospective hires, and determine (tentatively) whether the employee is authorized to work. Id.
E-Verify is massive in scope and error-prone. It imposes substantial transaction and opportunity costs on businesses, and it was feared to lead to unlawful discrimination on the basis of national origin. Accordingly, Congress expressly made the program voluntary. IIRIRA § 402. The government "may not require any person or other entity to participate" in the program, id. (emphasis added), subject only to enumerated exceptions for certain departments of the federal government and congressional offices, id. § 402(e).4
Federal law also makes clear the primacy of federal authority in regulating the employment of aliens. IRCA expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ,
4 Federal regulation in this arena is evolving. A recently
adopted federal regulation would make E-Verify mandatory for certain federal contractors and subcontractors. Federal Acquisition Regulation, 73 Fed. Reg. 67,651 (Nov. 14, 2008); see Chamber of Commerce v. Chertoff, No. 8:08-cv-3444 (D. Md. filed Dec. 23, 2008) (challenging the legality of the regulation). That regulation, however, does not broadly mandate the use of E-Verify, much less authorize states or localities to do so.

8
or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). And, Congress made clear that changes to the system regulating the employment of aliens would come incrementally, in order to permit careful study, rather than as the result of shifting political winds. IRCA therefore requires the Executive Branch to provide Congress with advance warning before making significant modifications to employment verification requirements. Specifically, the President must transmit to Congress detailed written reports of any proposed changes before those changes become effective, in some cases up to two years in advance. Id. § 1324a(d).
The notice requirement is not intended merely to put a leash on the Executive Branch. Rather, the deliberate process chosen by Congress reaffirms the careful fashion in which IRCA and IIRIRA balance between and among multiple considerations: deterring illegal immigration; preventing unauthorized employment; limiting burdens on employers; and recognizing the civil rights and interests of individuals seeking employment, as well as current employees. Congress calibrated that balance and dictated that the Executive Branch not recalibrate it without providing Congress ample notice and an opportunity to respond. 8 U.S.C. § 1324a(d). It is against this legislative and regulatory backdrop that states and localities have attempted to impose their own, different judgments about how to deal with the employment of aliens in the United States.
II. THE ARIZONA STATUTE
In 2007, Arizona enacted the Legal Arizona Workers Act. Its express purpose was to take on the role of immigration enforcement that was occupied by the federal government. In signing the legislation, thenGovernor Janet Napolitano (now the Secretary of the

9
Department of Homeland Security) acknowledged that "[i]mmigration is a federal responsibility," but asserted that state regulation was necessary because, in her view, "Congress [is] incapable of coping with the comprehensive immigration reforms of our country’s needs." Pls./Appellant’s Excerpts of Rec. 287, No. 07-17272 (9th Cir. filed Mar. 31, 2008) ("ER").
The Act contradicts federal immigration policy in at least two important ways. First, it establishes an independent state prohibition on the hiring of unauthorized aliens, see Ariz. Rev. Stat. 5 23-212(A), and imposes additional sanctions on employers who are found by a state judge to have violated that prohibition, id. 5 23-212(F). These sanctions include the revocation or suspension of a company’s "licenses," defined broadly to include articles of incorporation and other such foundational company documents. Id. 55 23-211, 23-212. In short, a company found to have violated the new state immigration law could have its charter revoked and its very existence extinguished by the state. See id. Governor Napolitano accurately christened this draconian provision the "business death penalty." ER, supra, at 291.
Second, the Arizona statute makes the voluntary EVerify program mandatory for all Arizona employers. Ariz. Rev. Stat. 5 23-214. It no longer suffices for employers in Arizona to employ the document-based I-9 Form process established by, and acceptable under, federal law. See 8 U.S.C. 5 1324a(a)(1), (a)(3), (b). An Arizona employer that fails to participate in E-Verify may be denied economic development benefits, and forced to repay any benefits previously obtained from the state. Ariz. Rev. Stat. 5 23-214.

10
III. PROCEDURAL BACKGROUND
A broad coalition of groups challenged the constitutionality of the Act soon after its passage. See Pet. App. 6a, 12a, 107a-09a. They alleged, among other things, that the Act was expressly and impliedly preempted by IRCA. Id. Named as defendants were Governor Napolitano, the Arizona Attorney General, Arizona county attorneys, and other state officials responsible for enforcing the Act. Id. The multiple similar lawsuits later were consolidated for decision. Id.
The district court held that the Act was not preempted. With respect to express preemption, it acknowledged that the penalties imposed by the Act qualify as "sanctions" within the meaning of IRCA’s preemption provision. Pet. App. 61a-76a. It concluded, however, that the Act constituted a "licensing [or] similar law~," and so fell within the preemption provision’s savings clause. Id. The court further held that the Act’s provisions concerning E-Verify were not impliedly preempted. Id. at 82a-85a. Although it recognized that Congress had made E-Verify voluntary, it found no preemption because Congress had not explicitly precluded states from making the program mandatory.
The Ninth Circuit affirmed. It agreed that, because Arizona had defined the sanctions imposed by the Act as "licensing" penalties, the statute fell within the savings clause of IRCA’s preemption provision. Pet. App. 14a-19a. It also agreed that, because Congress "could have, but did not, expressly forbid state laws from requiring E-Verify participation," the sections of the Act mandating use of E-Verify were not preempted. Id. at 20a.

11
Both the district court and the Ninth Circuit viewed themselves as largely bound by this Court’s 1976 decision in De Canas v. Bica. See Pet. App. 15a16a, 69a-70a. That case, decided a decade before IRCA’s enactment, held that a state statute regulating the employment of unauthorized workers was not preempted because the federal immigration laws in effect at the time did not address employment. The Ninth Circuit acknowledged that this Court recognized in 2002 that IRCA had dramatically changed the legal landscape~specifically, that IRCA "forcefully made combating the employment of illegal aliens central to the policy of immigration law." Hoffman, 535 U.S. at 147 (alteration and internal quotation marks omitted); see Pet. App. 15a-16a. Nevertheless, the court of appeals summarily dismissed this Court’s clear statement of IRCA’s impor-
tance, on the basis that Hoffman "did not concern state law or the issue of preemption." Pet. App. 16a.
REASONS FOR GRANTING THE PETITION
The growing discord between national immigration policy enacted by the federal government, and the shadow immigration policy being enacted by states and localities, is an issue of great national importance. So too are the specific issues presented here; the decision below implicates the status verification process that every single employer is required to undertake for every single new hire. This affects not just each prospective employee in the nine states within the Ninth Circuit, but every employer doing business in the dozens of states that have legislated on the subjects of alien hiring and immigration status verification. See generally Bonito Boats, Inc. v.
Thunder Craft Boats, Inc., 489 U.S. 141, 161 (1989) (considering the "prospect" of action by "all 50 States" in evaluating preemption); Buckman Co. v. Plaintiffs’

12
Legal Comm., 531 U.S. 341, 350 (2001) (same). This is an area in which Congress has declared that uniformity is essential, see generally Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (recognizing the "Nation’s need to ’speak with one voice’ in immigration mat-
ters"), and the current state of affairs is intolerable for workers and employers alike. This burgeoning uncertainty is only exacerbated by the absence thus far of the United States’ views on this debate. Cf. Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000) (considering federal agency’s views).
The decision below was able to approve of this result only by departing from this Court’s decision in Hoffman and badly misreading federal law. To bring uniformity and clarity to rules that fundamentally affect primary conduct of an enormous number of people, to clarify the meaning and scope of Hoffman, and to resolve any possible tension between Hoffman and De Canas, the views of the Solicitor General should be sought and the petition should be granted.
I. REVIEW IS WARRANTED BECAUSE THIS CASE PRESENTS A QUESTION OF EXCEPTIONAL NATIONAL IMPORTANCE.
1. Congress crafted a national immigration policy that is, and expressly is intended to be, "comprehensive" and "uniformS." Hoffman, 535 U.S. at 147; IRCA § 115, 100 Stat. at 3384. IRCA generally, and the employment status verification system in particular, affect every employer and every employee in the country. In creating this national system, Congress balanced multiple competing considerations implicated by the employment of aliens. So, for instance, Congress intended IRCA to deter illegal immigration, but not at all costs; it also sought a system that was "the least disruptive to the American businessman," and to "minimize the possibility of employment dis-

13
crimination." H.R. Rep. No. 99-682, pt. I, at 56 (1986); S. Rep. No. 99-132, at 8-9 (1985); see Collins Foods Int’l, Inc., v. INS, 948 F.2d 549, 554 (9th Cir. 1991) ("the legislative history of section 1324a indicates that Congress intended to minimize the burden and the risk placed on the employer in the verification process").
The I-9 Form process, which was the "keystone and major element" of this statute, reflected these goals. Statement of the President, Nov. 10, 1986, reprinted
in 1986 U.S.C.C.A.N. 5856-1; see Hoffman, 535 U.S. at 147-48. Congress intended this system to be enforced "uniformly" throughout the United States, IRCA § 115, 100 Stat. at 3384, and this uniform system likewise is comprehensive. Federal law specifies who may work in this country, and who may not. See supra pp. 5-8. It details the obligations of employers, and of employees. See supra pp. 5-8. It prohibits certain conduct by employers and employees, provides a specialized federal system for adjudicating violations, and creates a substantial safe harbor for employers who "compl[y] in good faith" with the I-9 Form’s requirements. See 8 U.S.C. §§ 1324a(a)(3), 1324c. The subsequent establishment of E-Verify and the other pilot programs took place against this backdrop. Congress established these programs on a limited and experimental basis so as not to fracture the nationally uniform system that it had created, and to forestall other adverse effects of E-Verify that it anticipated might arise. See infra p. 27.
Having crafted a national status verification system for employment that balanced multiple considerations, and having calibrated its chosen enforcement mechanisms, Congress took pains to preserve its authority in this field. IRCA expressly preempts "any State or local law imposing civil or criminal

14
sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). That is, Congress enacted a broad preemption provision that contained only a limited exception for sanctions based on true licensing laws that require proper qualifications, and that rely on a federal finding of an IRCA violation.
2. The consistency sought by Congress is severely threatened by state legislatures and local governments across the country, which have enacted a "cacophony" of statutes that disrupt and seek to supplant federal immigration law. To permit this situation to persist is to sow confusion among employers and employees, as well as legislatures and town councils attempting to ascertain the proper zones of federal and local interest in the field of immigration.
The stream of state immigration legislation that began to flow a few years ago has become a flood. The National Conference of State Legislatures (NCSL) recently reported that 300 immigration bills were introduced in state legislatures in 2005, and 38 laws were enacted. NCSL, 2009 Immigration-Related Bills and Resolutions in the States, supra. Those numbers doubled in 2006, when 570 bills were introduced and 84 laws enacted. Id. The numbers then tripled in 2007 and 2008, with more than 1,300 bills introduced and 200 laws enacted in each year. Id. And in the first three months of this year alone, legis-
latures across all 50 states introduced over 1,000 bills pertaining to immigration. Id. At least 150 of these bills (in 41 states) relate specifically to employment. Id.
These statutes have created a "patchwork of... [different] laws, rules, and regulations," which is difficult for employers and employees to understand, and even

15
harder for them to follow. Rowe v. N.H. Motor Transp. Ass’n, 128 S. Ct. 989, 996 (2008); see Hoffman, 535 U.S. at 147-49. Some states have enacted laws similar to one another--relying, for instance, on model legislation proposed by the anti-immigration group IRLI.5 Others have enacted slight variations, while still more have enacted directly contradictory rules. An area that is intended to be nationally uniform now requires national employers to engage in a 50-state compliance strategy, and local and regional employers to proceed town-by-town or county-bycounty in making employment decisions. It also subjects employees to a labyrinth of differing and conflicting requirements for proof of work authorization, and exposes them to a much greater risk of unlawful harassment and discrimination, as DHS-sanctioned reports have found.6
Directly relevant here, this variability plagues state efforts to implement E-Verify. Some states, including Arizona and Mississippi, now require all employers to use E-Verify. See Ariz. Rev. Stat. § 23-214; Miss.
Code Ann. § 71-11-3(3)(d), (4)(b)(i). In Colorado, Georgia, Minnesota, Missouri, and Rhode Island, as well as municipalities in Alabama, California, and Pennsylvania, E-Verify is required for businesses seeking public contracts.7 Still other states require
~ See Immigration Reform Law Institute, IRLI Model Taxpayer and Citizen Protection Act, Part B, available at http://www.irli.org/tcpa_partb.html.
6 Westat, Findings of the Web Basic Pilot Evaluation 77-79 (Sept. 2007) (hereafter "Findings"), available at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.
7 See Colo. Rev. Stat. § 8-17.5-102; Ga. Code Ann. § 13-10-91; Exec. Order No. 08-01 (Minn. Jan. 7, 2008); Mo. Rev. Stat. §§ 285-525, -530; Exec. Order No. 08-01 (R.I. Mar. 27, 2008); AIbertville, Ala., Resolution No. 945-08 § 4; Mission Viejo, Cal.,

16
employers to use a state-created employment verification system, which may or may not be compatible with E-Verify. See, e.g., Okla. Stat. tit. 25, §§ 1312, 1313(B)(2); Utah Code Ann. § 63G-11-103.s For its part, Illinois enacted a law that forbade employers from using E-Verify. 820 Ill. Comp. Stat. 55/12. The United States sued Illinois, and prevailed, on its argument that the Illinois statute was preempted by federal law. See United States v. Illinois, No. 073261, 2009 WL 662703 (C.D. Ill. Mar. 12, 2009).9
Ordinance No. 07-260 § 1; Hazleton, Pa., Ordinance No. 2006-18 § 4(D).
s The "Status Verification System" mandated in Oklahoma,
for example, encompasses not only E-Verify, but also the "Social Security Number Verification Service" (even though it is impermissible to use the Social Security system for this purpose, see Social Sec. Admin., Social Security Number Verification Service (SSNVS) Handbook (Dec. 2008)) and other "third party" verification systems (which do not yet exist and are not authorized by federal law). See Okla. Stat. tit. 25, §§ 1312, 1313(B)(2); cf. S.C. Code Ann. § 41-8-20 (requiring employers to verify the status of new employees either by using E-Verify or through state documentation). Louisiana and Tennessee restrict the number and types of documents employers can use to verify work authorization status, which arguably prohibits compliance with E-Verify. See Tenn. Code Ann. § 50-1-106; La. Rev. Stat. Ann. § 23:992.2.
9 These requirements are enforced by a wide range of sanc-
tions. In Arizona, as discussed above, violations are punishable by suspension or revocation of the employer’s "licenses," which the state defines broadly to go well beyond the traditional deftnition of a "license" and include withdrawal of the company’s charter. See Ariz. Rev. Stat. § 23-212. Similar penalties are available for violations in Mississippi, Missouri, South Carolina, Tennessee, and West Virginia, as well as in certain municipalities in Alabama, California, and Pennsylvania. See Miss. Code Ann. 71-11-3(7)(e); Mo. Rev. Stat. §§ 285-525, -530; S.C. Code Ann. § 41-8-50; Tenn. Code Ann. § 50-1-103(e); W. Va. Code § 21-1B-7; Albertville, Ala., Resolution No. 945-08 § 4; Apple Valley, Cal., Resolution No. 2006-82; Hazleton, Pa., Ordinance

17
These are just a few of the differing verification requirements that states and municipalities have imposed on employers in recent years, and still more statutes--with still different standards and penalties--are under consideration.
3. It is immensely burdensome, if not in some circumstances impossible, to comply with the different immigration regulations of all 50 states and even more individual localities. Actions that are required in some jurisdictions are prohibited in others, and variations on state-level requirements abound. And, employers always must further take into account federal immigration law, with its detailed--and supposedly "comprehensive" and "uniform []"--requirements.
See Hoffman, 535 U.S. at 147; IRCA § 115, 100 Stat. at 3384.
Employees also suffer. It is all but certain-particularly given the state of the economy and the numerous applicants for every job opportunity--that some employers, when confronted with this patchwork of conflicting state regulations and the severe sanctions for violations, will simply avoid hiring individuals who even appear to pose a risk of an immigration violation, based on their race, ethnicity, or national origin. See, e.g., Findings, supra, at 78-79 (noting problems with employer response to E-Verify
No. 2006-18 § 4(B). Other jurisdictions provide that employers found to have violated state immigration laws are subject to tort liability and civil damages. See Okla. Stat. tit. 25, § 1313(C); La. Rev. Stat. Ann. 23:994; Miss. Code Ann. § 71-11-3(4)(d); Hazleton, Pa., Ordinance No. 2006-18 § 4(E). In Louisiana and West Virginia, authorities may also impose civil and criminal penalties (including fines or, in some cases, imprisonment) on eraployers they deem to have hired illegal aliens. La. Rev. Stat. Ann. § 23:993; W. Va. Code § 21-1B-5; see also Suffolk County, N.Y., Local Law No. 52-2006 § 8.

18
requirements). This approach will adversely impact racial and ethnic minority groups most heavily, but the burdens will extend to all persons, regardless of nationality or race. Congress itself recognized that permitting individual jurisdictions to institute different employee verification systems, many of them focused single-mindedly on the exclusion of illegal aliens, likely would lead to increased discrimination and fraud. See H.R. Rep. No. 99-682, pt. I, at 56; S. Rep. No. 99-132, at 8-9. Indeed, several measures in IRCA were designed to prevent this result, which is now threatened by state legislative efforts. See 8 U.S.C. § 1324b(a) (prohibiting several practices, including "request[ing] ... more or different documents" than § 1324a requires, which might mask discrimination).
The range of individuals and interests adversely affected by these laws is reflected in the extraordinary coalition that has joined arms in opposition to the Arizona statute. Business and community based associations, labor groups, and civil rights organizations all have submitted briefs challenging the Arizona statute and others like it. The simple fact that these parties readily join together on this issue testities to its exceptional importance and the urgent need for this Court’s review.
4. Nothing will be gained, and much will be lost, by allowing these problems to fester. For every month that passes without clarification of the law, state legislatures and county and municipal governments will continue to enact more immigration statutes that intrude upon the federal domain. NCSL, 2009 Immigration-Related Bills and Resolutions in the States, supra (noting the "record numbers of bills and resolutions" recently introduced). Additional challenges will be filed, to be followed by years of

19
costly litigation. Only if state and local legislators receive guidance now can they be induced to hold or modify their legislative efforts, and can the limited resources of litigants and lower courts be saved.
Only this Court can provide the clarity and uniformity that the problem of hiring unauthorized aliens requires. The preemption issues presented in this case have been vetted by lower courts, and already have resulted in a split of authority. The district court and Ninth Circuit in this case held that state employment verification statutes are neither expressly nor impliedly preempted by federal immigration law. Specifically, both courts gave a broad construction to the savings clause in IRCA’s preemption provision, thereby as a practical matter eviscero ating the preemption provision. Pet. App. 14a-19a, 61a-76a. A district court in Missouri, addressing a similar municipal ordinance, held likewise. See Gray v. City of Valley Park, No. 07-881, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008), aff’d on other grounds, 567 F.3d 976 (8th Cir. 2009).
In contrast, district courts in Oklahoma and Pennsylvania have held that local immigration regulations of this sort conflict with the "comprehensive" federal immigration scheme, and therefore are preempted. Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), appeal docketed, No. 07-3531 (3d Cir. Aug. 30, 2007); Chamber of Commerce v. Henry, No. 08109, 2008 WL 2329164 (W.D. Okla. June 4, 2008), appeals docketed, Nos. 08-6127, 08-6128 (10th Cir. June 19, 2008). The Pennsylvania court explicitly rejected the broad interpretation of "licensing" adopted here by the Ninth Circuit, holding instead that a state statute falls within the savings clause only when it conditions a license or business permit on a

20
record of prior compliance with federal immigration law. Lozano, 496 F. Supp. 2d at 525.
Lower-court decisions, however, will do little to solve this national problem. An opinion by one court of appeals on the constitutionality of one statute, or even several, will not stop states and municipalities in other circuits from enforcing their own provisions, or enacting new ones. This Court is the only one that can address this issue definitively, and it should do so now. Delay will allow the pace of state and local immigration legislation to continue, and the concomitant damage to federal immigration policy. The collateral effects of this process, if permitted to go forward, will be felt by employers, employees, states and localities, and the lower courts for years to come. To bring some level of control and certainty to the process, this Court should grant the petition.
II. REVIEW IS WARRANTED BECAUSE THE DECISION BELOW CONFLICTS WITH THIS COURT’S PRECEDENT, AND MISINTERPRETS FEDERAL LAW.
Review is further warranted to correct the Ninth Circuit’s disregard of this Court’s decision in Hoffman, and its resulting misinterpretation of IRCA and IIRIRA.
1. This Court in Hoffman recognized that IRCA is a "comprehensive scheme" for regulating the eraployment of undocumented aliens and, further, that federal law "forcefully made combating the employment of illegal aliens central to the policy of immigration law." 535 U.S. at 147 (alteration and internal quotation marks omitted). Hoffman explained that IRCA occupies this field, and so precludes the enforcement of conflicting regulations--there, regulations administered by the National Labor Relations

21
Board. Id. at 145-49. Just as IRCA preempted the federal regulation at issue in Hoffman, it preempts the state statute at issue here.
The Ninth Circuit, however, held Hoffman irrelevant on the theory that Hoffman "did not involve preemption, or indeed any state regulation." Pet. App. 39a-40a. That reasoning simply ignores Hoffman’s fundamental holding. The question presented there, as here, was whether IRCA is sufficiently comprehensive to displace other employment-related regulation of immigration policy. 535 U.S. at 145-49. This Court held that it is. Id. That Hoffman addressed displacement of a federal regulation, rather than preemption of a state statute, is no justification for so lightly casting it aside.
The Ninth Circuit further reasoned that, because Hoffman is irrelevant, its preemption analysis instead must be governed by this Court’s earlier decision in De Canas. Pet. App. 40a ("Because it did not concern state law or the issue of preemption, Hoffman did not affect the continuing vitality of De Canas."). To the extent there is any inconsistency between De Canas and Hoffman, any such conflict can be resolved only by this Court, a factor that additionally would justify this Court’s review. In fact, however, De Canas interprets a statutory regime that no longer exists--for the reasons explained in Hoffman--and the Ninth Circuit’s decision to rely on it anyway suggests a less than faithful reading of this Court’s precedents.
De Canas held that a state statute regulating the employment of aliens was not preempted by federal immigration law. 424 U.S. at 355-56. That case, however, was decided in 1976, a decade before the passage of IRCA. See id. It interpreted the preemptive effect of a prior statutory scheme (the Immigra-

22
tion and Nationality Act), and concluded that at that time federal law evinced "at best ... a peripheral concern with employment of illegal entrants." Id. at 360. IRCA amended federal immigration law to fill precisely this gap, as Hoffman explained: Under IRCA, "the employment of illegal aliens [became] central to the policy of immigration law." Hoffman, 535 U.S. at 147 (alteration and internal quotation marks omitted).
Simply put, the Ninth Circuit relied on a 30-yearold decision interpreting the preemptive effect of a superseded federal law in order to ignore a sevenyear-old decision of this Court that did take account of the major intervening changes in federal law. A faithful application of Hoffman would have recognized that IRCA created a comprehensive scheme concerning employment of aliens, and that it precludes inconsistent regulatory regimes. Hoffman, 535 U.S. at 147 The Arizona statute (and others like it) is just such a regime. It establishes independent standards and penalties that are not contemplated by federal law, and it mandates that state employers use an employment verification system that federal law explicitly states shall be voluntary. These state regulations, no less than the federal ones at issue in Hoffman, intrude into a field that Congress "forcefully" declared is addressed exclusively by federal immigration law. See id.
2. The Ninth Circuit’s misunderstanding of Hoffman contributed to its misinterpretation of IRCA and IIRIRA. Those provisions, read correctly, clearly preempt the Arizona statute.
a. IRCA expressly preempts state and local laws that "impos[e] civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment,

23
unauthorized aliens." 8 U.S.C. § 1324a(h)(2). The Ninth Circuit held that the Arizona statute--which imposes sanctions on employers that knowingly hire unauthorized aliens (as determined by a state judge)--is not preempted because the statute affects what the state calls "licenses," and therefore qualifies as a "licensing [or] similar law" within the savings clause of IRCA’s preemption provision. Pet. App. 14a-19a.1°
This conclusion seriously distorts the meaning of the phrase "licensing [or] similar law," and subverts congressional intent. A state statute is a "licensing [or] similar law" under IRCA only if it conditions the issuance or retention of a genuine license (or similar business permit) on a prior determination by federal authorities of noncompliance with federal immigration law. See 8 U.S.C. § 1324a(h)(2). Far from permitting state authorities to adjudicate an individual’s federal immigration status, or whether he or she is work-authorized, IRCA provides for these determinations to be made by federal officials, in specialized administrative proceedings conducted under federal rules and regulations. See generally id. § 1324a(e); 28 C.F.R. pt. 68. It is only after such a predicate federal adjudication that a state may tack on additional "sanctions" through a "licensing [or] similar law," and so be preserved by IRCA’s savings clause.11
10 There is no dispute that the Arizona Act, if it does not qualify as a "licensing [or] similar law" under the savings clause, is preempted by § 1324a(h)(2).
11 See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989) ("[I]n the absence of a plain indication to the contrary ... Congress when it enacts a statute is not making the application of the federal act dependent on state law.") (emphasis added; internal quotation marks omitted).

24
This interpretation of the savings clause is confirmed by its history and purpose. The savings clause was adopted to ensure that states could rely on federal determinations of compliance with federal immigration laws when issuing or considering business licenses or permits (in particular, for farm labor contractors). See H.R. Rep. No. 99-682, pt. I, at 58; see also 29 U.S.C. § 1813(a)(6) (permitting actions against the license of a farm labor contractor only after the individual "has been found to have violated [IRCA]"). It never was intended to allow states to judge for themselves the federal immigration or work authorization status of individuals. The committee report that accompanied IRCA affirms that the savings clause was intended merely to allow states to add on additional sanctions (in the form of the "suspension, revocation or refusal to reissue a license") for persons "who ha[ve] been found to have violated the sanctions provisions in this legislation." H.R. Rep. No. 99-682, pt. I, at 58 (emphasis added). Arizona’s contrary rule flies in the face of IRCA’s fundamental purposes of establishing a national and "uniform[]" verification system. IRCA § 115, 100 Stat. at 3384.
IRCA’s broad preemption provision indicates that the savings clause was intended to mean "licensing" in the traditional sense--i.e., as a genuine qualification to do business, such as a professional certification or permit. Arizona has taken this narrow exception to the preemption provision and allowed it to swallow the rule by defining licenses to include mere documentation requirements that enable an employer to do business, such as articles of incorporation. Congress could not have meant to allow states to circumvent IRCA’s express limitation simply by requiring businesses to register a name or tax identification number and calling such documentation a "license."

25
Indeed, Arizona has exempted from the definition of "license" the very heart of what licensing has traditionally meant--professional licenses. Arizona Rev. Stat. § 23-211(9)(c)(ii).
This Court has repeatedly "declined to give broad effect to savings clauses where doing so would upset the careful regulatory scheme established by federal law." Geier, 529 U.S. at 870 (quoting United States v. Locke, 529 U.S. 89, 106-07 (2000) (alteration omitted)). That is exactly what the Ninth Circuit’s interpretation of IRCA’s savings clause would accomplish. It would authorize the creation of a parallel system of state and municipal employment verification and penalty provisions, backed by the bluntest of sanctions--the "business death penalty"--without any prior adjudication by the designated federal authorities. This is not what Congress intended.
b. The Ninth Circuit further erred in its conclusion that Arizona acted permissibly by making EVerify mandatory. IIRIRA provides that the federal government "may not require any person or other entity to participate" in E-Verify. IIRIRA § 402(a). The Ninth Circuit concluded, however, that this provision expressly limits only the federal government, and so does not apply to state statutes like Arizona’s. Pet. App. 20a. In short, it concluded that what DHS Secretary Napolitano now is expressly forbidden from doing as a federal official, she--and her fellow 49 governors--were free to do as state executives. Nothing in IIRIRA supports this counterintuitive result.
The text of IIRIRA repeatedly and expressly makes clear that E-Verify is, and must be administered as, a voluntary program. The voluntary nature of E-Verify is clear from the very title of the relevant statutory provision: "Voluntary Election to Participate in a Pilot Program." IIRIRA § 402 (emphasis added). The

26
statute gives employers the choice as to whether to participate: "[A]ny person or other entity that conducts any hiring ... may elect to participate in that pilot program." Id. § 402(a) (emphasis added); see also id. § 402(c)(2)(A) (a participating employer is an "electing person"). And, the Attorney General is required to "widely publicize ... the voluntary nature of the pilot programs." Id. § 402(d)(2); accord ido § 402(d)(3)(A). Everything about E-Verify is voluntary--with the exception of certain specified applications to the federal government, the enumeration of which demonstrates the otherwise blanket nature of the rule. See id. § 402; see also O’Melveny & Myers v. FDIC, 512 U.S. 79, 86 (1994) ("Inclusio unius, exclusio alterius.").
Congress made E-Verify voluntary for good reason: It is error-prone and requires participating employers to weigh possible benefits against serious burdens. A recent DHS-commissioned study of the program found that it misidentified the employment eligibility of naturalized citizens almost 10% of the time, and that foreign-born, work-authorized individuals were 30 times more likely to receive an erroneous tentative nonconfirmation than U.S.-born individuals. Findings, supra, at 97. These errors impose significant costs on employers. Under federal law, an employer is not permitted to rely on an initial, "tentative nonconfirmation" to take adverse action against the employee.12 Instead, the employer must allow the eraployee to lodge a challenge, and then must wait until a federal agency has resolved the challenge, id., which takes on average anywhere from 19 to 74 days, see Findings, supra, at 78-79. The burdens of this
12 See Pilot Programs for Employment Eligibility Confirmation, 62 Fed. Reg. 48,309, 48,312 (Sept. 15, 1997).

27
process are particularly acute for small businesses, which cannot afford significant delays in training and transitioning new employees. Id. at xxii-xxiii, 24. And, of course, employees who receive a "tentative nonconfirmation"--even if they later succeed in challenging that designation--can lose valuable training opportunities and may suffer harassment or other forms of discrimination. Id.
Congress considered these issues in enacting IIRIRA, and struck the delicate balance it deemed appropriate. It made the I-9 Form process (with a variety of document-based verification methods) mandatory, and created E-Verify as a voluntary and experimental system, which employers may choose to use--or not--in their discretion. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b). Congress has repeatedly rejected proposals to make the E-Verify system mandatory for all employers. See, e.g., H.R. 98, 110th Cong. § 5(a) (2007); H.R. 1951, 110th Cong. § 3 (2007). It is not for Arizona to disregard this judgment. See, e.g., Geier, 529 U.S. at 881-82. Indeed, this Court has held that the Supremacy Clause prohibits a state from requiring the use of a single standard when Congress "deliberately sought variety" by approving "a mix of several different" options to reach its regulatory goal, as it did when it enacted IRCA and created the I-9 Form process. See id. at 878. Arizona’s law stands in clear conflict with Congress’s express decision to make E-Verify voluntary, and therefore is preempted. See id. at 881-82.
Because Arizona’s law is typical of state and local laws throughout the United States that regulate eraployment of aliens, and which intrude into an area Congress plainly preempted, it is particularly appropriate for the Court to review the ruling of the court of appeals in this case. At a minimum, the Court

28 should solicit the views of the Executive Branch on the importance of the issue presented and the scope of Congress’s preemptive intent.
CONCLUSION For the foregoing reasons, the petition for writ of certiorari should be granted.
Respectfully submitted,

ROBIN S. CONRAD

CARTER G. PHILLIPS*

SHANE B. KAWKA

ERIC A. SHUMSKY

NATIONAL CHAMBER

QUIN M. SORENSON

LITIGATION CENTER, INC. SIDLEY AUSTIN LLP

1615 H Street, N.W.

1501 K Street, N.W.

Washington, D.C. 20062 Washington, D.C. 20005

(202) 463-5337

(202) 736-8000

Counsel for Petitioner Chamber of Commerce of the United States of America

DAVID A. SELDEN

BURT M. RUBLIN

JULIE A. PACE

BALLARD SPAHR ANDREWS

BALLARD SPAHR ANDREWS & INGERSOLL, LLP

& INGERSOLL, LLP

1735 Market Street

3300 N. Central Avenue 51st Floor

Suite 1800

Philadelphia, PA 19103

Phoenix, AZ 85012

(215) 665-8500

(602) 798-5472

Counsel for Petitioners Arizona Contractors Association; Arizona Chamber of Commerce; Arizona Employers for
Immigration Reform; Arizona Farm Bureau Federation; Arizona Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurant and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; Na-
tional Roofing Contractors Association

29

DANIEL POCHODA
ACLU FOUNDATION OF ARIZONA
P.O. Box 17148 Phoenix, AZ 85011 (602) 650-1854

STEPHEN P. BERZON JONATHAN WEISSGLASS
REBECCA SMULLIN ALSHULER BERZON LLP
177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151

LUCAS GUTTENTAG

STEVEN R. SHAPIRO

JENNIFER CHANG NEWELLOMAR C. JADWAT

AMERICAN CIVIL

AMERICAN CIVIL

LIBERTIES UNION FOUNDATION

LIBERTIES UNION
FOUNDATION

39 Drumm Street

125 Broad Street,

San Francisco, CA 94111 18th Floor

(415) 343-0770

New York, NY 10004

(212) 549-2500

KRISTINA CAMPBELL
CYNTHIA VALENZUELA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street
11th Floor Los Angeles, CA 90014
(213) 629-2512 x136

LINTON JOAQUIN KAREN C. TUMLIN NATIONAL IMMIGRATION LAW CENTER
3435 Wilshire Blvd. Suite 2850 Los Angeles, CA 90010 (213) 639-3900

Counsel for Petitioners Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.

July 24, 2009

3O
PAUL F. ECKSTEIN JOEL W. NOMKIN PERKINS COIE BROWN & BAIN P.A. 2601 N. Central Avenue Post Office Box 400 Phoenix, AZ 85001 (602) 351-8000
Counsel for Petitioner Wake Up Arizona! Inc.
* Counsel of Record

 
 No. 09-115

IN THE

Supreme Court of the United States
___________

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA et al.,
Petitioners, v.

CRISS CANDELARIA et al.,
Respondents. ___________

On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit ___________

BRIEF FOR THE PETITIONERS ___________

ROBIN S. CONRAD SHANE B. KAWKA NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337

CARTER G. PHILLIPS* ERIC A. SHUMSKY QUIN M. SORENSON MATTHEW D. KRUEGER TARA MIKKILINENI SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 cphillips@sidley.com

Counsel for Petitioner Chamber of Commerce of the United States of America

September 1, 2010

* Counsel of Record

[Additional Counsel Listed Inside]

DAVID A. SELDEN JULIE A. PACE HEIDI NUNN-GILMAN THE CAVANAGH LAW FIRM 1850 North Central Ave. Suite 2400 Phoenix, AZ 85004 (602) 322-4046

BURT M. RUBLIN BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street 51st Floor Philadelphia, PA 19103 (215) 665-8500

Counsel for Petitioners Arizona Contractors Association; Arizona Chamber of Commerce; Arizona
Employers for Immigration Reform; Arizona Farm Bureau Federation; Arizona Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurant and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; National Roofing
Contractors Association

DANIEL POCHODA ACLU FOUNDATION OF ARIZONA P.O. Box 17148 Phoenix, AZ 85011 (602) 650-1854

STEPHEN P. BERZON JONATHAN WEISSGLASS ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151

LUCAS GUTTENTAG JENNIFER CHANG NEWELL AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770

STEVEN R. SHAPIRO OMAR C. JADWAT AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street,
18th Floor New York, NY 10004 (212) 549-2500

CYNTHIA VALENZUELA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street 11th Floor Los Angeles, CA 90014 (213) 629-2512 x136

LINTON JOAQUIN KAREN C. TUMLIN NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd. Suite 2850 Los Angeles, CA 90010 (213) 639-3900

Counsel for Petitioners Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.

PAUL F. ECKSTEIN JOEL W. NOMKIN PERKINS COIE BROWN & BAIN P.A. 2601 N. Central Avenue Post Office Box 400 Phoenix, AZ 85001 (602) 351-8000

Counsel for Petitioner Wake Up Arizona! Inc.

QUESTIONS PRESENTED 1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). 2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note. 3. Whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens.
(i)

ii
PARTIES TO THE PROCEEDING
Petitioners, which were plaintiffs/appellants below, are Chamber of Commerce of the United States of America; Arizona Contractors Association; Arizona Chamber of Commerce; Arizona Employers for Immigration Reform; Arizona Farm Bureau Federation; Arizona Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurant and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.; National Roofing Contractors Association; and Wake Up Arizona! Inc.
Respondents, who were defendants/appellees below, are Criss Candelaria; Kenny Angle; Melvin R. Bowers Jr.; Martin Brannan; James Currier; Daisy Flores; Fidelis V. Garcia; Gale Garriott; Terry Goddard; Terrence Haner; Barbara Lawall; Janet Napolitano; Sheila Polk; Derek D. Rapier; Ed Rheinheimer; George Silva; Jon Smith; Matthew J. Smith; Andrew P. Thomas; and James P. Walsh.
There are no parent corporations or publicly held corporations that own 10% or more of the stock of any of Petitioners.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................................. i

PARTIES TO THE PROCEEDING ..................... ii

TABLE OF AUTHORITIES ................................. v

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

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

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

STATEMENT OF THE CASE.............................. 2

A. Federal Regulation Of Immigration......... 3

B. The Legal Arizona Workers Act And Other State Laws ...................................... 10

C. Procedural Background ............................ 15

SUMMARY OF ARGUMENT .............................. 16

ARGUMENT ......................................................... 20

I. THE UNAUTHORIZED WORKER PROVISIONS OF THE ARIZONA ACT ARE PREEMPTED. .............................................. 20

A. The Unauthorized Worker Provisions Are Expressly Preempted. ........................ 20

1. The Ninth Circuit’s Interpretation Of The Preemption Provision Does Violence To Its Language And Purposes. ..................................................... 21

(iii)

iv
TABLE OF CONTENTS—Continued Page
2. The Phrase “Licensing And Similar Laws” Was Aimed At Very Specific State Laws And Certainly Does No More Than Preserve Genuine Licensing Laws Governing Fitness To Do Business. ............................................... 24
3. IRCA Preempted Alternate Regimes For Adjudicating Unauthorized Worker Violations. ................................ 28
4. The Arizona Act Is Not A Licensing Or Similar Law. .................................... 34
B. The Unauthorized Worker Provisions Are Impliedly Preempted.......................... 37
1. The Unauthorized Worker Provisions Conflict With IRCA’s Structure And Operation. ............................................. 37
2. De Canas Does Not Require A Different Result. ............................................. 46
II. ARIZONA’S E-VERIFY MANDATE IS IMPLIEDLY PREEMPTED. ............................... 47
CONCLUSION ..................................................... 52
STATUTORY ADDENDUM................................ Add1

v

CASES

TABLE OF AUTHORITIES

Page

Adams Fruit v. Barrett, 494 U.S. 638 (1996) .......................................................... 39
Altria Group v. Good, 129 S. Ct. 538 (2008) ........................................................ 20, 37
Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) .......................................................... 25
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) ........................................................ 40, 45
AT&T v. Cent. Office Tel., 524 U.S. 214 (1998) .......................................................... 36
Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25 (1996)......................... 39
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) ................................................. 36, 51
Bonito Boats v. Thunder Craft Boats, 489 U.S. 141 (1989) ......................................... 24, 45
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) ................................ passim
Chamber of Commerce v. Napolitano, 648 F. Supp. 2d 726 (D. Md. 2009) ................... 48
Chy Lung v. Freeman, 92 U.S. 275 (1875).... 41 Cipollone v. Liggett Group, 505 U.S. 504
(1992) .......................................................... 37 Cleveland v. United States, 531 U.S. 12
(2000) .......................................................... 27 Crosby v. Nat’l Foreign Trade Council, 530
U.S. 363 (2000) ................................... 20, 45, 46 CSX Transp. v. Easterwood, 507 U.S. 658
(1993) .......................................................... 20 De Canas v. Bica, 424 U.S. 351 (1976) ... 3, 21, 47 Engine Mfrs. Ass’n v. S. Coast Air Quality
Mgmt. Dist., 541 U.S. 246 (2004) .............. 25 English v. Gen. Elec., 496 U.S. 72 (1990) ..... 38

vi
TABLE OF AUTHORITIES—continued Page
Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982)..................... 20, 39
Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963) ........................................... 46
Foster v. Love, 522 U.S. 67 (1997) .............. 24, 46 Freightliner Corp. v. Myrick, 514 U.S. 280
(1995) ........................................................ 37, 38 Geier v. Am. Honda Motor Co., 529 U.S.
861 (2000) ................................................. 37, 50 Hines v. Davidowitz, 312 U.S. 52 (1941) ...... 3 Hoffman Plastic Compounds v. NLRB, 535
U.S. 137 (2002) ........................................... 4, 47 INS v. Nat’l Ctr. for Immigrants’ Rights,
502 U.S. 183 (1991) .................................... 4, 47 Int’l Paper v. Ouellette, 479 U.S. 481
(1987) .................................................. 25, 34, 42 Lawrence County v. Lead-Deadwood Sch.
Dist. No. 40-1, 469 U.S. 256 (1985) ........... 39 Lorillard Tobacco v. Reilly, 533 U.S. 525
(2001) .......................................................... 32 MCI Telecomms. Corp. v. AT&T Co., 512
U.S. 218 (1994) ........................................... 27 Medtronic v. Lohr, 518 U.S. 470 (1996)...... 23, 25 Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. Dabit, 547 U.S. 71 (2006)....................... 39 Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30 (1989) ..................... 24 Morales v. Trans World Airlines, 504 U.S.
374 (1992) ................................................... 24 O’Melveny & Myers v. FDIC, 512 U.S. 79
(1994) .......................................................... 48 Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. 440 (1989) ........................................... 27 Riegel v. Medtronic, 552 U.S. 312 (2008) ... 36, 51

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TABLE OF AUTHORITIES—continued Page
Rowe v. N.H. Motor Transp. Ass’n, 128 S. Ct. 989 (2008) ............................................. 15
Rush Prudential HMO v. Moran, 536 U.S. 355 (2002) ................................................... 37
Toll v. Moreno, 458 U.S. 1 (1982) ................. 47 United States v. Locke, 529 U.S. 89
(2000) ........................................................ 36, 46 Whitman v. Am. Trucking Ass’ns, 531 U.S.
457 (2001) ................................................... 23 Wyeth v. Levine, 129 S. Ct. 1187 (2009) ..... 37, 46
CONSTITUTION, STATUTES, AND ORDINANCES
U.S. Const. Article VI, cl. 2 ........................... 1 Immigration and Nationality Act, ch. 447,
66 Stat. 163 (1952) ..................................... 3 Farm Labor Contractor Registration Act of
1963, Pub. L. No. 88-582, 78 Stat. 920 (1964) .......................................................... 33 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 ........................................................ passim Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ........... passim Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, 115 Stat. 2407....................... 10 Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108156, 117 Stat. 1944 .................................... 9, 10 Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, 122 Stat. 3574 (2008). ................................................ 10

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TABLE OF AUTHORITIES—continued Page
Department of Homeland Security Appropriations Act, Pub. L. No. 111-83, 123 Stat. 2142 (2009) ........................................ 10
6 U.S.C. § 236 ................................................ 5 § 271................................................ 5 § 557................................................ 5
7 U.S.C. § 499c............................................... 27 § 2044(b)(6) (1976).......................... 33 § 2045(f) (1976) ............................... 33
8 U.S.C. § 1103 .............................................. 5 § 1151.............................................. 5 § 1153.............................................. 5 § 1182(a)(5) ..................................... 5 § 1201.............................................. 5 § 1226(d) ......................................... 23 § 1254a............................................ 41 § 1357(g) ......................................... 23 § 1324a........................................ passim § 1324b............................................ 7, 44
18 U.S.C. § 923(d)(1)(F)................................. 27 19 U.S.C. § 1641(b)(2) ................................... 27
§§ 1801-1816 (1985) ...................... 2 §§ 1801-1872 ................................. 26 § 1802 ............................................ 26 § 1811 ............................................ 26 § 1813(a)(6) ........................... 17, 26, 34 § 1816 (1985)................................. 33 § 1851 (1985)................................. 33 §§ 1851-1863 (1985) ...................... 2 § 1871 (1985)................................. 33 § 1871 ............................................ 34 §§ 1871-1872 (1985) ...................... 2 42 U.S.C. § 1395w-26(b)(3) ........................... 23 49 U.S.C. § 41304(c) ...................................... 27 Ariz. Rev. Stat. § 10-1501 ............................. 22

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Ariz. Rev. Stat. § 10-1505 ............................. 22 § 10-1530 ............................. 22 § 20-295(A) .......................... 32 § 23-211 ................. 11, 13, 22, 35 § 23-211 to -212.01 .............. 35 § 23-211 to -214 ................... 10 § 23-211 to -216 ................... 2 § 23-212 ........................... passim § 23-212.01 ...... 11, 12, 13, 35, 40 § 23-214 ....................... 13, 14, 47 § 32-2124(M)........................ 32 § 42-5005 ............................. 22 § 42-5008 ............................. 22
Cal. Lab. Code § 1690 (1986) ...................... 26, 32 §§ 1693-1694 (1986) ........... 25, 26 § 2805 (1984) ........................ 30
Colo. Rev. Stat. § 8-17.5-102 ......................... 14 Conn. Gen. Stat. Ann. § 31-51k (1972)....... 30, 31 Del. Code Ann. tit. 19, § 705 (1977) .............. 30 Exec. Order No. 08-01 (Minn. Jan. 7,
2008) ........................................................... 14 Exec. Order No. 08-01 (R.I. Mar. 27,
2008) ........................................................... 14 Fla. Stat. § 448.09 (1973) .............................. 30
§§ 450.28-.35 (1986) ...................... 25 Ga. Code Ann. § 13-10-91.............................. 14 225 Ill. Comp. Stat. 505/3 ............................. 26
505/6 (1986) .......... 25, 26, 32 820 Ill. Comp. Stat. 55/12, held preempted
in United States v. Illinois, No. 07-3261, 2009 WL 662703 (C.D. Ill. Mar. 12, 2009) ........................................................... 15 Kan. Stat. Ann. § 21-4409 (1977) ................. 30 La. Rev. Stat. Ann. § 23:993 ......................... 14
§ 23:994 ......................... 14

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TABLE OF AUTHORITIES—continued Page
La. Rev. Stat. Ann. § 23:995 (1985) .............. 30 Mass. Gen. Laws ch. 149, § 19C (1976) ...... 30, 31 Md. Code Ann., Lab. & Empl. § 100-80A to
-80E (1986) ................................................. 25 Me. Rev. Stat. Ann. tit. 26, § 871 (1977) .... 30, 31 Mich. Comp. Laws Ann. §§ 286.651-.657
(1986) .......................................................... 25 Miss. Code Ann. § 71-11-3............................. 14 Mo. Rev. Stat. § 285-525 ............................... 14
§ 285-530 ............................... 14 Mont. Code Ann. § 41-121 (1977) ................. 30 N.H. Rev. Stat. Ann. § 275-A:4-a (1976) ...... 30 N.J. Stat. Ann. § 34:8A-11 (1986) ................. 25
§ 34:9-1 (1977) ..................... 30 N.Y. Lab. Law § 212-a (1986) ....................... 25 Neb. Rev. Stat. §§ 48-1701 to -1714 (1986) .. 25 Okla. Stat. tit. 25, § 1312 .............................. 15 Okla. Stat. tit. 25, § 1313, held preempted
in Chamber of Commerce of U.S. v. Edmonson, 594 F.3d 742 (10th Cir. 2010) ......................................................... 14, 15 Or. Rev. Stat. §§ 658.405-.503 (1986) ........... 25
§ 658.440(3)(d) (1986) ............ 25 43 Pa. Stat. Ann. § 1301.501-.505. (1983) .... 25
§ 1301.505 (1983) ............. 25 S.C. Code Ann. § 41-8-20(A).......................... 23
§ 41-8-50 ............................ 14, 23 Tenn. Code Ann. § 50-1-103(b) (1986) .......... 30
§ 50-1-103(e) ..................... 14 Tex. Rev. Civ. Stat. Ann. art. 5221a-5
(1986) .......................................................... 25 Utah Code Ann. § 13-47-201 ......................... 14 Va. Code Ann. § 40.1-11.1 (1977).................. 30
§ 40.1-11.2............................. 14 Vt. Stat. Ann. tit. 21, § 444a (1977).............. 30

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TABLE OF AUTHORITIES—continued Page
W. Va. Code § 21-1B-5................................... 14 § 21-1B-7 .................................. 14
Wash. Rev. Code § 19.30.010-.200 (1986)..... 25 Albertville, Ala., Resolution No. 945-08
§ 4................................................................ 14 Apple Valley, Cal., Resolution No. 2006-82 . 14 Mission Viejo, Cal., Ordinance No. 07-260
§ 1.............................................................. 14, 15 Hazelton, Pa., Ordinance No. 2006-18 § 4,
held preempted in Lozano v. City of Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) ......................................................... 14, 15
REGULATIONS
8 C.F.R. pt. 274a, subpt. B ............................ 41 8 C.F.R. § 274a.2 ..................................... 7, 19, 50
§ 274a.9 ........................................... 5 § 274a.10 ......................................... 6 § 274a.12 ..................................... 4, 5, 41 8 C.F.R. pt. 1003............................................ 5 20 C.F.R. pt. 655............................................ 5
pt. 656............................................ 5 28 C.F.R. pt. 68.............................................. 5, 18 29 C.F.R. § 500.58-.59 (1984) ........................ 33 Privacy Act of 1974: System of Records, 66
Fed. Reg. 46,812 (Sept. 7, 2001) .............. 41, 42 Medicare Program, 69 Fed. Reg. 46,866
(proposed Aug. 3, 2004).............................. 23 Privacy Act: Verification Information
System Records Notice, 72 Fed. Reg. 17,569 (Apr. 9, 2007) .................................. 9 Employment Eligibility Verification, 73 Fed. Reg. 67,651 (Nov. 14, 2008) ............... 48

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TABLE OF AUTHORITIES—continued Page
Privacy Act of 1974; USCIS–004 Verification Information System (VIS) System of Records Notice, 73 Fed. Reg. 75,445 (Dec. 11, 2008) ..................................................... 41
ADMINISTRATIVE DECISION
In re Garcia, No. 86-MSP-107, 1991 WL 733599 (Sec’y of Labor Oct. 10, 1991) ....... 33
LEGISLATIVE HISTORY
H.R. 9531, 95th Cong. (1977)........................ 31 H.R. 19, 110th Cong. (2007).......................... 10 H.R. 1951, 110th Cong. (2007)...................... 10 H.R. 1, 111th Cong. (2009)............................ 10 H.R. 2083, 111th Cong. (2009)...................... 10 H.R. 3308, 111th Cong. (2009)...................... 10 S. 2252, 95th Cong. (1977) ............................ 31 S. 2611, 109th Cong. (2006) .......................... 10 S. 1348, 110th Cong. (2007) .......................... 10 S. 1505, 111th Cong. (2009) .......................... 10 Hearings Before Subcomm. No. 1 of the H.
Comm. on the Judiciary, pt. 1, 92d Cong. (1971) .......................................................... 31 Hearings Before the Subcomm. on Immigration and Naturalization of the S. Comm. on the Judiciary, 94th Cong. (1976) .......................................................... 31 Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the H. Comm. on the Judiciary, 97th Cong. (1981)................................................ 31 H.R. Rep. No. 94-506 (1975) ......................... 31 H.R. Rep. No. 99-682(I) (1986).................. passim

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TABLE OF AUTHORITIES—continued Page
H.R. Rep. No. 108-304(I) (2003).................... 49 H.R. Conf. Rep. No. 99-1000 (1986).............. 7, 44 S. Rep. No. 99-132 (1985).......................... passim S. Rep. No. 104-249 (1996)............................ 49
SCHOLARLY AUTHORITY
1 L. Tribe, American Constitutional Law (3d ed. 2000) ............................................... 38
OTHER AUTHORITIES
Arizona Legislative Bill Drafting Manual (2009), available at http://www.azleg.gov/ alisPDFs/council/2010%20Bill%20Drafting%20Manual.pdf ..................................... 28
Business Licenses by Agency or Department, https://az.gov/app/license/bus. xhtml (last visited Aug. 31, 2010) ............. 28
Oxford English Dictionary (2d ed. 1989) ...... 27 Statement of the President Upon Signing
S. 1200, Nov. 10, 1986, reprinted in 1986 U.S.C.C.A.N. 5856-1 .................................. 4 Random House Webster’s Unabridged Dictionary (1993)........................................ 27 Webster’s Third New International Dictionary (1993).................................................... 27 DHS, Report to Congress on the Basic Pilot Program (June 2004), available at http:// www.nilc.org/immsemplymnt/ircaempverif/basicpilot_uscis_rprt_to_congress_ 2004-06.pdf ................................................. 9

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TABLE OF AUTHORITIES—continued Page
Nat’l Conf. of State Legislatures, 2009 Immigration-Related Bills and Resolutions in the States (Apr. 22, 2009), available at http://www.ncsl.org/documents/Immig/ImmigrationReportJAN 2009.pdf ...................................................... 13
Nat’l Conf. of State Legislatures, 2010 Immigration-Related Bills and Resolutions in the States (Apr. 27, 2010), available at http://www.ncsl.org/default. aspx?TabId=20881............................... 13
U.S. Citizenship & Immigration Servs., EVerify User Manual for Employers (June 2010), available at http://www.uscis.gov... 9
Westat, Findings of the E-Verify Program Evaluation (Dec. 2009), available at http://www.uscis.gov/USCIS/E-Verify/ E-Verify/Final%20E-Verify%20Report %2012-16-09_2.pdf ..................................... 49
Westat, Findings of the Web Basic Pilot Evaluation (Sept. 2007), available at http://www.uscis.gov/files/article/ WebBasicPilotRprtSept2007.pdf ............... 49

OPINIONS BELOW
The opinions of the United States District Court for the District of Arizona are published at 534 F. Supp. 2d 1036 and 526 F. Supp. 2d 968, and reproduced at Pet. App. 49a-94a, 95a-126a. The Ninth Circuit’s opinion is published at 544 F.3d 976, and reproduced at Pet. App. 26a-48a. The Ninth Circuit’s order amending its opinion, and denying rehearing and rehearing en banc, is published at 558 F.3d 856, and reproduced at Pet. App. 1a-25a.
JURISDICTION
The Ninth Circuit entered judgment on September 17, 2008, and denied a timely petition for rehearing and rehearing en banc on March 9, 2009. On June 2, 2009, Justice Kennedy granted an extension of time to and including July 24, 2009, to file a petition for a writ of certiorari. The petition was filed on July 24, 2009, and granted on June 28, 2010. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Supremacy Clause provides that “the Laws of the United States … shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
Relevant provisions of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, codified at 8 U.S.C. § 1324a and § 1324b, are reproduced at Pet. App. 127a-147a and at Add1Add15 of the addendum to this brief. Relevant provisions of the pre-amendment version of the Migrant and Seasonal Agricultural Worker Protection Act, co-

2
dified at 29 U.S.C. §§ 1801-1816, 1851-1863, and 1871-1872 (1985), as well as the conforming amendments in IRCA § 101(b), are reproduced at Add16Add38 of the addendum. Relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546, set forth in a note to 8 U.S.C. § 1324a, are reproduced at Pet. App. 147a-168a.
Relevant provisions of the Legal Arizona Workers Act (LAWA), Ariz. Rev. Stat. §§ 23-211 to -216 (2009), and recent amendments to certain of those provisions, are reproduced at Pet. App. 169a-192a and at Add39-Add41 of the addendum.
STATEMENT OF THE CASE
In IRCA, Congress created a comprehensive scheme for regulating the employment of aliens, including the methods by which to verify a job applicant’s eligibility for employment. It balanced multiple, sometimes competing, objectives: deterring illegal immigration, protecting applicants from discrimination, accommodating privacy concerns, and minimizing burdens on employers. This scheme was intended to be “uniform[ ],” IRCA § 115, and exclusive of state regulation: Congress broadly and expressly preempted state laws that regulate the employment of unauthorized workers, 8 U.S.C. § 1324a(h)(2), and imposed precise sanctions for violations of federal law, id. § 1324a(e), (f). Congress left a narrow exception for sanctions imposed “through licensing and similar laws,” id. § 1324a(h)(2), which serves the limited purpose of preserving aspects of traditional state and local licensing authority.
Arizona has done precisely what federal law says it cannot. Using the “licensing” exception as its own license to regulate, it has enacted a statute that does

3
not remotely resemble a licensing law, nor any traditional exercise of licensing authority. Rather, the “Legal Arizona Workers Act” is a regime by which the State purports to regulate and enforce employment status verification. It authorizes state officials to adjudicate employment eligibility. It imposes sanctions more severe than those carefully calibrated by federal law, including withdrawal of a company’s charters and articles of incorporation—the “business death penalty,” as the then-Arizona governor accurately described it. J.A. 399. This separate system of regulating and enforcing work-status authorization is utterly unlike the very limited state licensing authority that Congress meant to preserve, and is expressly preempted by and conflicts with the federal system enacted by Congress.
Confirming the extraordinary nature of Arizona’s overreach, the State has arrogated to itself the power to mandate participation in a federal verification system that Congress repeatedly and explicitly has declared to be voluntary. At a minimum, Arizona has undermined Congress’s objectives in adopting and enacting a non-mandatory verification system.
A. Federal Regulation Of Immigration.
This Court long has recognized that most questions involving immigration are regulated exclusively by the federal government. Hines v. Davidowitz, 312 U.S. 52, 60-62 (1941). One exception used to be the employment of aliens. Prior to 1986, it could fairly be said that federal law (in the form of the thencontrolling Immigration and Nationality Act, ch. 447, 66 Stat. 163 (1952)) had only “a peripheral concern with employment of illegal entrants.” De Canas v. Bica, 424 U.S. 351, 360 (1976). This fundamentally changed when Congress enacted IRCA. That statute, which President Reagan termed “the product of one of

4
the longest and most difficult legislative undertakings in recent memory,”1 created a “comprehensive scheme prohibiting the employment of illegal aliens in the United States” and it “forcefully made combating the employment of illegal aliens central to the policy of immigration law.” Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 147 (2002) (alterations and internal quotation marks omitted); see also INS v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 194 n.8 (1991). Congress was explicit that enforcement was to be “uniform[ ].” IRCA § 115.
1. IRCA prohibits hiring unauthorized workers, and establishes a federal system for verifying workauthorization status and defining, investigating, and adjudicating violations. Under IRCA, it is unlawful to “hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324a(a)(1). An “unauthorized alien” is defined by federal law as one who is (i) not “lawfully admitted for permanent residence” or (ii) not “authorized to be so employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3). Whether a worker is “authorized” is not coextensive with citizenship or immigration status: The Attorney General has promulgated an array of rules setting forth allowances and exclusions for dozens of classes of individuals who are “authorized” to be employed in this country. See, e.g., 8 C.F.R. § 274a.12.2 Federal statutes and regulations vest ex-
1 Statement of the President Upon Signing S. 1200, Nov. 10, 1986, reprinted in 1986 U.S.C.C.A.N. 5856-1; see also H.R. Rep. No. 99-682(I), at 51-56 (1986) (discussing 15-year history of IRCA); S. Rep. No. 99-132, at 18-26 (1985) (same).
2 For example, 8 C.F.R. § 274a.12(a) and (c) allow work authorization for lawful permanent residents; lawful temporary resi-

5
clusive authority to administer these requirements in the Departments of State, Labor, Homeland Security (DHS), and Justice. See, e.g., 6 U.S.C. §§ 236, 271; 8 U.S.C. §§ 1103(a), 1103(g), 1151, 1153, 1182(a)(5), 1201; 8 C.F.R. § 274a.12; id. pt. 1003; 20 C.F.R. pts. 655, 656.
Alleged violations are investigated by federal immigration officials. 8 U.S.C. § 1324a(e)(2); see 6 U.S.C. § 557 (noting the transfer of certain authority to DHS). The Attorney General must provide to the employer formal notice of the allegations and an opportunity for a hearing. 8 U.S.C. § 1324a(e)(3)(A). That hearing must be held before a federal administrative law judge at the time and place prescribed by federal statute and regulation. Id. § 1324a(e)(3)(B); 8 C.F.R. § 274a.9. The federal government bears the burden of proof, and every aspect of the procedures— from the admissibility of evidence to the size of the paper on which pleadings are submitted—is spelled out by federal law. 28 C.F.R. pt. 68. The employer is further guaranteed the right to appeal an adverse finding through an administrative review process (including, in certain circumstances, review by the At-
dents; refugees; asylees; persons granted withholding of removal, extended voluntary departure, or temporary protective status; persons subject to a final order of removal; parents or children of certain lawful permanent residents; certain spouses, fiancées, and dependents of holders of A, G, K, and J visas; persons subject to the federal government’s “Family Unity Program”; certain persons holding E, F, G, H, I, J, L, O, P, Q, R, S, T, U, and V visas, and certain Mexican and Canadian holders of A, E, G, H, I, J, L, O, P, and R visas under NAFTA; certain applicants for asylum, withholding of removal, cancellation of removal, and suspension of deportation; certain staff and employees of holders of B, E, F, H, I, J, and L visas; and battered spouses and children under the federal Violence Against Women Act.

6
torney General), and to petition for review in a federal court of appeals. 8 U.S.C. § 1324a(e)(7)-(8). Orders issued under these provisions may be enforced through a suit brought by the Attorney General “in any appropriate district court of the United States.” Id. § 1324a(e)(9).
IRCA also carefully regulates the penalties that may be assessed against employers. Id. § 1324a(e)(4). The administrative law judge is required to impose a monetary fine of “not less than $250 and not more than $2,000 for each unauthorized alien” for a first violation. Id. Penalties increase to $2,000-$5,000 for a second violation, and $3,000-$10,000 for subsequent violations.3 Id. An employer that engages in a “pattern or practice” of violations is subject to criminal fines of $3,000 and six months’ imprisonment for each unauthorized alien. Id. § 1324a(f).
2. IRCA does not focus single-mindedly on enforcement and punishment. To the contrary, Congress recognized other, ofttimes-competing goals. In particular, it intended IRCA to be the “least disruptive to the American businessman … [while] also minimiz[ing] the possibility of employment discrimination.” H.R. Rep. No. 99-682(I), at 56; S. Rep. No. 99-132, at 8-9 (same).
Over the course of the lengthy legislative debates, particular concern arose that imposing penalties on businesses could cause employers to discriminate against job applicants based on perceived national origin. The fear was that employers would simply choose to hire candidates who safely “appear” employable, rather than risk violating federal law. To
3 These penalties have been increased by regulation to account for inflation. 8 C.F.R. § 274a.10.

7
combat that danger, IRCA specifically prohibits discrimination by employers on the basis of nationality or citizenship. 8 U.S.C. § 1324b; see H.R. Rep. No. 99-682(I), at 69-70 (discussing anti-discrimination provisions); H.R. Conf. Rep. No. 99-1000, at 87 (1986). The statute prescribes escalating fines for violations of this prohibition, which precisely mirror the fines for knowingly employing an unauthorized worker. Compare 8 U.S.C. § 1324a(e)(4) (unauthorized worker violations), with id. § 1324b(g)(2)(B)(iv) (discrimination violations); see H.R. Rep. No. 99-682(I), at 56.
These same considerations were reflected in the I-9 process that Congress created for determining a prospective employee’s work-authorization status. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b). That process directs employers to provide a new employee with a list of the types of documents that he or she may submit as proof of identity and employment authorization. 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(a)(2), (3). The employee may choose any of the permissible documents to submit to the employer. 8 U.S.C. § 1324a(b)(1)(A). So long as the documents “reasonably appear[ ] on [their] face to be genuine,” the employer must accept them as proof of identity or work authorization, and is forbidden from requesting different or additional documents. Id. An employer who complies with these requirements “in good faith” cannot be held liable for knowingly hiring an unauthorized worker, notwithstanding “a technical or procedural failure to meet [a prescribed] requirement,” and even if the individual is later revealed to have been unauthorized to work. Id. § 1324a(a)(3), (b)(6). The I-9 form and “any information contained in or appended to such form, may not be used for purposes other than for enforcement of” the INA. Id. § 1324a(b)(5).

8
In addition to providing a means to ensure verification of employees, see H.R. Rep. No. 99-682(I), at 56, Congress anticipated that the I-9 process and related good-faith defense would decrease burdens on employers, and prevent them from making personal or unnecessary inquiries that would intrude on privacy and might result in discrimination. Id.; S. Rep. No. 99-132, at 8-9 (describing as “imperative” the need for a “formal, effective verification system combined with an affirmative defense for those [employers] who in good faith follow the proper procedure,” in order to ensure that employers do not “seek to avoid penalties by avoiding persons they suspect might be illegal aliens”).
Having balanced these considerations and calibrated its chosen enforcement mechanisms, Congress asserted the primacy of its authority: It expressly preempted “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Even within the federal government, changes to the congressional design would require significant study and advance warning. The statute required the Comptroller General to prepare annual studies for several years, so that Congress could consider refinements. IRCA § 101(a)(1) (codified at 8 U.S.C. § 1324a(j)(1) (1986)). IRCA requires the President to monitor the effectiveness of the verification system, and to transmit to Congress detailed written reports of proposed changes well in advance of their effective date. 8 U.S.C. § 1324a(d). Any change in the documents used to prove workauthorization status is a “major change” requiring two years’ written notice to Congress. Id. § 1324a(d)(3)(A)(iii), (D)(i).

9
3. For a decade, the I-9 process was the exclusive means for verifying employees’ work-authorization status. In 1996, Congress established three “pilot programs” for status verification, IIRIRA § 401, in which employers could “[v]oluntar[il]y elect[ ]” to participate, id. § 402. The only pilot program that remains in existence4 is an Internet-based program— first called the Basic Pilot Program and currently known as E-Verify—that is administered by the Secretary of Homeland Security. Id. § 403.5 Employers who choose to participate in the program still must utilize the I-9 form. Id. § 403(a)(1); see U.S. Citizenship & Immigration Servs., E-Verify User Manual for Employers 13 (June 2010), available at http://www. uscis.gov. Participating employers submit statusverification information about new employees to the federal government over the Internet, which the government checks against databases. Privacy Act: Verification Information System Records Notice, 72 Fed. Reg. 17,569 (Apr. 9, 2007). The employer then receives either confirmation that the employee is workauthorized, or a tentative response of nonconfirmation. IIRIRA § 403(a). In the latter case, the employee bears the burden of contesting the response with the federal government. Id. § 403(a)(4)(B). Participating employers are prohibited from terminating an employee because of the tentative non-
4 See DHS, Report to Congress on the Basic Pilot Program 1 (June 2004), available at http://www.nilc.org/immsemplymnt/ ircaempverif/basicpilot_uscis_rprt_to_congress_2004-06.pdf.
5 Responsibility for administering E-Verify was initially vested in the Attorney General, see IIRIRA § 403, and later transferred to the Secretary of DHS, see Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, §§ 34, 117 Stat. 1944, 1944-45.

10
confirmation during his or her challenge to a tentative non-confirmation. Id.
From E-Verify’s inception, the program has been designed and implemented as experimental, and explicitly declared to be “voluntary.” Id. § 402. Congress directed that the Secretary of Homeland Security “may not require any person or other entity to participate” in the program, id., subject to limited, enumerated exceptions covering the federal government and IRCA violators, id. § 402(e). Congress has reauthorized and modified the program on several occasions,6 and has repeatedly declined to act on proposals to make E-Verify or a similar program mandatory.7
B. The Legal Arizona Workers Act And Other State Laws.
Arizona enacted the Legal Arizona Workers Act in 2007. Ariz. Rev. Stat. §§ 23-211 to -214. Arizona’s governor declared in signing the legislation: “Because of Congress’ failure to act, States like Arizona
6 E.g., Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, § 2, 115 Stat. 2407, 2407; Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, §§ 3-4, 117 Stat. at 1944-45; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3574, 3580 (2008); Department of Homeland Security Appropriations Act, Pub. L. No. 111-83, § 547, 123 Stat. 2142, 2177 (2009).
7 E.g., H.R. 2083, 111th Cong. § 8 (2009); H.R. 3308, 111th Cong. § 201 (2009); S. 1505, 111th Cong. §§ 201-202 (2009); H.R. 1951, 110th Cong. § 3 (2007); H.R. 19, 110th Cong. § 3 (2007); S. 2611, 109th Cong. § 301(a) (2006); S. 1348, 110th Cong. § 301(a) (2007); cf. American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. § 1114 (2009) (rejected proposal to require contractors receiving stimulus funds to participate in E-Verify).

11
have no choice but to take strong action to discourage the further flow of illegal immigration through our borders.” J.A. 397. While nominally recognizing that “[i]mmigration is a federal responsibility,” Arizona decided that “Congress [is] incapable of coping with the comprehensive immigration reforms of our country’s needs.” J.A. 394. Multiple States and localities followed Arizona’s lead, enacting their own independent systems by which they purport to regulate authorization to work in the United States.
1. The Arizona Act has two principal parts: a regime to define who is an unauthorized worker and to adjudicate and impose sanctions on those who employ one; and an E-Verify mandate.
a. The Arizona Act creates a new state-law offense of “knowingly” or “intentionally” employing “an unauthorized alien.” Ariz. Rev. Stat. §§ 23-212(A), 23-212.01(A). It also establishes a state-law enforcement regime to enforce this prohibition. The Act directs Arizona’s attorney general to “prescribe a complaint form for a person to allege,” including “anonymous[ly],” that an employer is employing an unauthorized alien. Id. §§ 23-212(B), 23-212.01(B). Upon receiving any complaint that is not both “false and frivolous,” the attorney general or county attorney must notify federal immigration enforcement officials and “local law enforcement” officials “of the unauthorized alien.” Id. §§ 23-212(C), 23.212.01(C). Moreover, the attorney general must “notify the appropriate county attorney to bring” an enforcement action against the employer in state court “in the county where the unauthorized alien employee is or was employed by the employer.” Id. §§ 23-212(C)-(D), 23212.01(C)-(D).
The Arizona Act defines “unauthorized alien” by reference to that term’s federal definition, id. § 23-

12
211(11) (citing 8 U.S.C. § 1324a(h)(3)), and specifies how to adjudicate such status. It directs state courts, in “determining whether an employee is an unauthorized alien,” to “consider only the federal government’s determination pursuant to 8 United States Code § 1373(c).” Id. §§ 23-212(H), 23-212.01(H). Section 1373(c), however, directs federal officials to respond to state inquiries about “citizenship or immigration status,” not work authorization. Infra pp. 4042; cf. supra note 2 (identifying classes of individuals with work authorization but not necessarily immigration status). In addition, the federal government’s determination creates only “a rebuttable presumption of the employee’s lawful status.” Ariz. Rev. Stat. §§ 23-212(H), 23-212.01(H). Thus, a state court can reject immigration status information received from the federal government under § 1373(c), and reach its own determination under the Arizona Act whether an employee is an “unauthorized alien” and whether the employer knowingly or intentionally employed such an unauthorized worker. Id. §§ 23-212(I), 23212.01(I); see also id. §§ 23-212(J), 23-212.01(J) (establishing defense of “good faith” compliance with federal I-9 process, as determined by state court).
In addition to the new state-law prohibition and system of investigation and adjudication, the Arizona Act establishes a range of sanctions. For any violation, the court must order the employer “to terminate the employment of all unauthorized aliens” and to file quarterly reports with the county attorney listing new employees hired. Id. §§ 23-212(F)(1), 23212.01(F)(1). In addition, for a first “knowing” violation, a state court may direct the suspension of an employer’s “licenses.” Id. § 23-212(F)(1). The court must direct suspension of an employer’s “licenses” upon a first “intentional” violation, id. § 23-

13
212.01(F)(1), and for a second “knowing” or “intentional” violation, the court must order state agencies to “permanently revoke all licenses,” id. §§ 23212(F)(2), 23-212.01(F)(2).
The Act does not use the term “license” as it is used elsewhere in Arizona law; rather, it specially defines the term to include “any agency permit, certificate, approval, registration, charter, or similar form of authorization,” as well as a company’s foundational documents, such as “[a]rticles of incorporation” and “certificate[s] of partnership.” Id. § 23-211(9). The definition expressly excludes “[a]ny professional license.” Id. § 23-211(9)(ii). Thus, a company found to have violated Arizona’s law faces not only losing the ability to engage in a particular business, but also having its existence extinguished.
b. The Act also requires all Arizona employers to participate in E-Verify. Id. § 23-214(A). Employers must provide proof of E-Verify registration to any state entity from which they seek any “grant, loan or performance-based incentive.” Id. § 23-214(B). An employer that fails to participate in E-Verify will be denied these incentives, and forced to repay any benefits it previously obtained. Id.
2. As the governor forthrightly predicted, J.A. 397, States and municipalities across the country have followed Arizona’s lead, enacting an array of different laws. The National Conference of State Legislatures reports that thousands of immigration bills have been introduced by state legislatures in the last five years, with hundreds enacted into law.8 The re-
8 Nat’l Conf. of State Legislatures, 2010 Immigration-Related Bills and Resolutions in the States (July 20, 2010), available at http://www.ncsl.org/default.aspx?TabId=20881; see also Nat’l

14
sult has been a radical departure from the “uniform and uniformly enforced immigration law” that even Arizona’s governor agreed is necessary. Id. These laws impose a variety of different and sometimes conflicting obligations on employers, and subject them to a range of penalties for unauthorized worker violations, including in some cases imprisonment.9 This variability particularly plagues legislation concerning E-Verify, with some States requiring participation, others attempting to preclude it, and various alternatives in-between.10 These statutes have created a
Conf. of State Legislatures, 2009 Immigration-Related Bills and Resolutions in the States (Apr. 22, 2009), available at http://www.ncsl.org/documents/Immig/ImmigrationReportJAN2 009.pdf.
9 Compare Miss. Code Ann. § 71-11-3(7)(e) (imposing so-called “licensing” sanctions similar to Arizona’s); Mo. Rev. Stat. §§ 285525, -530; S.C. Code Ann. § 41-8-50; Tenn. Code Ann. § 50-1103(e); W. Va. Code § 21-1B-7; Albertville, Ala., Resolution No. 945-08 § 4; Apple Valley, Cal., Resolution No. 2006-82; Hazleton, Pa., Ordinance No. 2006-18 § 4(B), held preempted in Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 520-29 (M.D. Pa. 2007), and Okla. Stat. tit. 25, § 1313(C) (subjecting employers found to have violated state immigration laws to tort liability and civil damages), held preempted in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 765-70 (10th Cir. 2010); La. Rev. Stat. Ann. § 23:994; Miss. Code Ann. § 71-11-3(4)(d); Hazleton, Pa., Ordinance No. 2006-18 § 4(E), held preempted in Lozano, 496 F. Supp. 2d at 520-29, with La. Rev. Stat. Ann. § 23:993 (imposing civil and criminal penalties on employers deemed to have hired unauthorized workers); W. Va. Code § 21-1B-5.
10 Compare Ariz. Rev. Stat. § 23-214 (requiring E-Verify of all employers); Miss. Code Ann. § 71-11-3(3)(d), (4)(b)(i); Utah Code Ann. § 13-47-201; Va. Code Ann. § 40.1-11.2, and Colo. Rev. Stat. § 8-17.5-102 (requiring E-Verify for businesses seeking public contracts); Ga. Code Ann. § 13-10-91; Exec. Order No. 0801 (Minn. Jan. 7, 2008); Mo. Rev. Stat. §§ 285-525, -530; Exec. Order No. 08-01 (R.I. Mar. 27, 2008); Albertville, Ala., Resolu-

15
“patchwork of … [different] laws, rules, and regulations,” which is difficult for employers and employees to understand, much less to follow. Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 373 (2008).
C. Procedural Background.
A strikingly diverse group of business, labor, and civil rights groups challenged the constitutionality of the Arizona Act in the United States District Court for the District of Arizona. They alleged, among other things, that the Act was expressly and impliedly preempted by IRCA. The multiple similar lawsuits later were consolidated for decision. Pet. App. 6a, 12a, 107a-09a.
The district court held the Act not preempted. With respect to express preemption, it acknowledged that the penalties imposed by the Act are “sanctions” within the meaning of IRCA’s preemption provision. Pet. App. 61a-76a. It concluded, however, that the Act constituted a “licensing [or] similar law[ ],” and so fell within the preemption provision’s savings clause. Id. The court further held that the Act’s provisions concerning E-Verify were not impliedly preempted. Id. at 82a-85a. Although it recognized that Congress had made E-Verify voluntary, the court found no preemption because Congress had not explicitly precluded States from making the program mandatory. Id.
tion No. 945-08 § 4; Mission Viejo, Cal., Ordinance No. 07-260 § 1; Hazleton, Pa., Ordinance No. 2006-18 § 4(D), held preempted in Lozano, 496 F. Supp. 2d at 526-29, and Okla. Stat. tit. 25, §§ 1312, 1313(B)(2) (requiring employers to use a statecreated employment verification system, which may or may not be compatible with E-Verify), with 820 Ill. Comp. Stat. 55/12(a) (forbidding employers to participate in E-Verify), held preempted in United States v. Illinois, No. 07-3261, 2009 WL 662703, at *23 (C.D. Ill. Mar. 12, 2009).

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The Ninth Circuit affirmed. It agreed with the district court that, because Arizona had defined the Act’s sanctions to be “licensing” penalties, the statute fell within IRCA’s savings clause. Pet. App. 14a-19a. It also agreed that, because Congress “could have, but did not, expressly forbid state laws from requiring EVerify participation,” Arizona’s E-Verify mandate was not preempted. Id. at 20a. Both the district court and the Ninth Circuit viewed themselves as largely bound by this Court’s 1976 decision in De Canas. See id. at 15a-16a, 69a-70a. The Ninth Circuit followed De Canas, notwithstanding its recognition that IRCA’s enactment had dramatically changed the legal landscape. See id. at 15a-16a.
SUMMARY OF ARGUMENT
1. The Ninth Circuit erred when it held that the Arizona Act is saved from preemption as a “licensing [or] similar law[ ]” because one of the various possible consequences under the comprehensive regulatory regime enacted by Arizona is to deny or revoke a “license” as Arizona has redefined that term. Pet. App. 14a-19a. On this theory, a State may regulate work-authorization status in whatever fashion it wishes—so long as, at the end of the day, something labeled a license may be affected.
This conclusion distorts the meaning of the statute, and subverts congressional intent. If this is all that is required to constitute a “licensing [or] similar law[ ],” the preemption clause is meaningless, as this very case demonstrates. Nothing about the Arizona Act remotely resembles a “licensing law.” In purpose and function, it is a law regulating the employment of unauthorized workers. It establishes state law prohibitions against employing unauthorized workers; creates methods under state law (different from those

17
under federal law) for investigating and adjudicating violations, including methods (different from those under federal law) for determining who is an unauthorized worker; and authorizes an array of sanctions for violations (of which a license sanction is just one) having little to do with “licensing” in the traditional sense. If this regime is not preempted, then IRCA’s fundamental purpose of establishing a national and “uniform[ ]” system of regulating alien employment, IRCA § 115, is utterly without effect.
IRCA’s history and structure demonstrate that the savings clause targeted a narrow purpose: ensuring that States could rely on federal determinations of compliance with federal immigration laws when issuing business licenses or permits to farm labor contractors. This purpose is clear from the legislative history and is reflected in IRCA’s conforming amendments to the federal Migrant and Seasonal Agricultural Worker Protection Act (AWPA). These amendments removed AWPA’s independent prohibition against hiring unauthorized workers, which had been enforced through federal administrative proceedings, and substituted a requirement of a predicate IRCA determination. See 29 U.S.C. § 1813(a)(6). IRCA’s displacement of other federal enforcement provisions demonstrates the statute’s sharply preemptive effect, and belies any suggestion that IRCA was intended to allow States to judge for themselves an individual’s work-authorization status.
At most, a state statute is a “licensing [or] similar law” under IRCA if it conditions the issuance or retention of a genuine license—a registration or permit governing “fitness to do business,” H.R. Rep. No. 99682(I), at 58—on a prior federal determination of noncompliance with federal immigration law. The savings clause permits States to tack on certain sanc-

18
tions—in the form of the “suspension, revocation or refusal to reissue a license”—for persons “who ha[ve] been found to have violated the sanctions provisions in this legislation.” Id.11 IRCA provides for these determinations to be made by federal officials, in specialized administrative proceedings conducted under federal rules and regulations, see 8 U.S.C. § 1324a(e); 28 C.F.R. pt. 68, and nothing in the statute hints at authorizing States to adjudicate immigration status or employment eligibility—much less in the face of a contrary federal determination. Quite the contrary, the preemption provision was aimed at displacing existing state statutes that undertook just such regulation.
The preemption provision in fact confirms what would already be the case: Competing state regulatory schemes like Arizona’s conflict with the comprehensive system that Congress crafted in IRCA. IRCA represents a careful compromise among multiple interests and objectives beyond enforcement— preventing discrimination, protecting privacy, and avoiding undue burdens on business. The balance struck by Congress is reflected in IRCA’s detailed administrative scheme for investigating, adjudicating, and sanctioning unauthorized worker violations, with corresponding anti-discrimination protections and a right to petition for federal judicial review. The Arizona scheme upsets this balance. It imposes sanctions that federal law does not allow, through an adjudicatory process that federal law does not contemplate, and without providing the rights of fair process and appeal that federal law guarantees. In short, Arizona has created its own separate status-
11 Emphases are added throughout unless otherwise noted.

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verification system that, in focusing exclusively on enforcement, ignores the methods Congress chose and subverts the public interest balance Congress struck.
2. The Ninth Circuit further erred in authorizing Arizona to make mandatory the voluntary federal EVerify program. Federal law repeatedly and expressly makes clear that E-Verify is, and must be administered as, a voluntary program. This is clear from the very title of the authorizing statute: “Voluntary Election to Participate in a Pilot Program.” IIRIRA § 402. The statute affords employers the choice whether to participate: “[A]ny person or other entity that conducts any hiring … may elect to participate in that pilot program.” Id. § 402(a). And, the Secretary of Homeland Security is required to “widely publicize … the voluntary nature of the pilot programs.” Id. § 402(d)(2).
Congress made E-Verify voluntary for good reason. E-Verify was initiated as an experimental program, to assess its viability as an alternative to the I-9 process and its acceptance by the business community. It never has been made permanent. It historically has been error-prone, and requires participating employers to weigh possible benefits against serious burdens. Congress considered these issues in enacting IIRIRA, making the I-9 process (with a variety of document-based verification methods) mandatory, while instituting E-Verify as a voluntary test program—“the Basic Pilot Program”—that employers may choose to use. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b). Arizona’s decision to make E-Verify mandatory conflicts directly with Congress’s decision to make it voluntary, and the state law therefore is preempted.

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ARGUMENT
I. THE UNAUTHORIZED WORKER PROVISIONS OF THE ARIZONA ACT ARE PREEMPTED.
A. The Unauthorized Worker Provisions Are Expressly Preempted.
A cornerstone of our constitutional structure is the supremacy of federal law. E.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). Statutes passed by Congress are “the supreme Law of the Land,” and cannot be nullified, contradicted, or frustrated by local regulation. Altria Group v. Good, 129 S. Ct. 538, 543 (2008) (quoting U.S. Const. art. VI, cl. 2). State laws that conflict with federal provisions—whether because Congress explicitly foreclosed state regulation in the field, or because state regulation would impede the operation or objectives of federal law—are thus “without effect.” Id.; CSX Transp. v. Easterwood, 507 U.S. 658, 663 (1993); Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152-53 (1982). The Arizona Act runs afoul of these basic principles.
IRCA expressly preempts state law, and it does so broadly: The preemption provision covers “any” state law that imposes sanctions on those who hire unauthorized workers.
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
8 U.S.C. § 1324a(h)(2).
It is undisputed that the unauthorized worker provisions of the Arizona Act constitute “sanctions” with-

21
in the meaning of this provision. Pet. App. 14a-19a; see Pet. 23 n.10; BIO 4. This concession is plainly correct: Those provisions prohibit employers from hiring unauthorized workers, establish a state process for adjudicating violations, and impose penalties for violations. Ariz. Rev. Stat. § 23-212(A)-(J). The unauthorized worker provisions therefore are saved from preemption only if they are a “licensing [or] similar law[ ].” They are not.
1. The Ninth Circuit’s Interpretation Of The Preemption Provision Does Violence To Its Language And Purposes.
The Ninth Circuit interpreted IRCA’s savings clause in a boundless fashion that would nullify the preemption provision to which it is a limited exception. First, the Ninth Circuit discussed at some length this Court’s earlier decision in De Canas, 424 U.S. 351. But De Canas concerned implied field rather than express preemption, id. at 356—indeed, it was decided before IRCA’s express preemption provision was enacted—and its discussion even of implied preemption has been overtaken by the comprehensive legislation that Congress subsequently enacted in IRCA and IIRIRA. Infra pp. 46-47.
The Ninth Circuit’s express preemption theory is contained within just a few sentences. Because “[t]he Act provides for the suspension of employers’ licenses,” the court reasoned, “the savings clause therefore exempts such state licensing regulation from express preemption.” Pet. App. 17a. Arizona has advocated this same capacious interpretation. In its view, the Arizona Act is “permitted by federal law” because “it provides for the suspension or revocation of business licenses under certain circumstances.” Defs.Appellees’ Consolidated Answering Br. 19 (9th Cir.

22
Dkt. No. 51). In short, any law that could lead to sanctions being imposed against what the State labels a license would be saved from preemption, regardless what else that law purports to regulate or how it seeks to do so.
If this is all that is required to satisfy the savings clause, the preemption provision is a nullity. On this reasoning, a State could—as Arizona has done here— evade IRCA’s broad preemption provision through the artifice of redefining “licensing” differently from any traditional meaning. Indeed, the Arizona Act goes so far as to define “license” differently even from the term’s usual meaning under Arizona law: It excludes “professional license[s],” Ariz. Rev. Stat. § 23211(9)(c)(ii), but includes a broad swath of other forms of documents, such as
• a “transaction privilege tax license,” which is required under Arizona law for “[e]very person who receives gross proceeds of sales or gross income … desiring to engage or continue in business,” id. §§ 42-5005(A), 42-5008;
• “[a] grant of authority issued under title 10, chapter 15,” under which foreign corporations transact business within the State, id. §§ 10-1501, 10-1505, 10-1530; and, most notably,
• “[a] certificate of partnership” and “[a]rticles of incorporation.”
Id. § 23-211(9)(b); see supra pp. 12-13.
Under the Ninth Circuit’s reasoning, a State could evade the force of Congress’s prohibition by disguising any sanction as a “licensing fee” to be levied on any employer found to have hired unauthorized workers. Or, it could “impute” an “employment li-

23
cense” to every employer, then suspend that “license” for knowingly or intentionally hiring an unauthorized alien—which, in fact, is what South Carolina has done. S.C. Code Ann. §§ 41-8-20(A), 41-8-50(D)(2)-(4). Or it could, as Arizona has done here, create an entire regulatory structure for determining who is lawfully in the country and authorized to work, enforced through a sanction—seizing a company’s articles of incorporation—that is unlike “licensing” in any traditional sense.
Had Congress intended to allow States such a role in regulating and enforcing work authorization, it surely would have said so in some less obscure fashion than using the term “licensing” in a parenthetical. “Congress … does not … hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). When Congress desires state involvement in immigration enforcement, it commonly makes that purpose clear. E.g., 8 U.S.C. §§ 1226(d), 1357(g). Simply put, if Congress meant to reach this counter-intuitive result, “it chose a singularly odd word with which to do it.” Medtronic v. Lohr, 518 U.S. 470, 487 (1996) (plurality).12
12 The Medicare Modernization Act contains a preemption provision and savings clause that closely track those in IRCA: “The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part.” 42 U.S.C. § 1395w-26(b)(3). The agency responsible for implementing this provision has noted that “licensing” must be defined narrowly, and cannot include even the conditions for keeping the license, because such a broad definition of licensing could allow the State to regulate in preempted areas. Medicare Program, 69 Fed. Reg. 46,866, 46,904 (proposed Aug. 3, 2004).

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There must, in short, be some limit on the meaning of the term “licensing and similar laws” beyond, as the Ninth Circuit concluded here, any statute that uses the word “license.” As we discuss next, at most the term as used in IRCA refers to traditional regulation of fitness to engage in a profession, such as the farm labor contractor businesses that were the focus of Congress’s attention. But, whatever the precise boundaries of the term, there is no need to “par[e] the term … down to the definitional bone” to see that the scheme enacted by Arizona is not a “licensing” law in any sense of the word. Foster v. Love, 522 U.S. 67, 72 (1997); Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 157 (1989) (“It is readily apparent that the Florida statute does not operate to prohibit ‘unfair competition’ in the usual sense that the term is understood.”); see Morales v. Trans World Airlines, 504 U.S. 374, 390 (1992) (“[T]he present litigation plainly does not present a borderline question [on the reach of the preemption provision], and we express no views about where it would be appropriate to draw the line.”).
2. The Phrase “Licensing And Similar Laws” Was Aimed At Very Specific State Laws And Certainly Does No More Than Preserve Genuine Licensing Laws Governing Fitness To Do Business.
The meaning of the term “licensing and similar laws” in IRCA is a matter of federal law. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989) (“[I]n the absence of a plain indication to the contrary ... Congress when it enacts a statute is not making the application of the federal act dependent on state law.”). Federal law establishes the metes and bounds of the term, in accordance with the statute’s language and structure, and Congress’s objec-

25
tives and expectations. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-53 (2004); see also, e.g., Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 223-24 (1995). A State may not evade the statute’s strictures by seeking to define them away. Cf. Int’l Paper v. Ouellette, 479 U.S. 481, 495 (1987) (declining to interpret a savings clause to permit “States [to] do indirectly what they could not do directly”).
“‘[T]he purpose of Congress is the touchstone’ in every pre-emption case.” Medtronic, 518 U.S. at 485. Here, when Congress preserved sanctions imposed through “licensing and similar laws” from express preemption, it had in mind a particular type of state statute: “‘fitness to do business laws,’ such as state farm labor contractor laws.” H.R. Rep. No. 99-682(I), at 58. At the time IRCA was enacted, approximately 12 States had enacted laws requiring a state license or registration certificate to engage in the business of farm labor contracting.13 These laws typically conditioned such licenses on specified qualifications and
13 See Cal. Lab. Code §§ 1693-1694 (1986); Fla. Stat. §§ 450.28-.35 (1986); 225 Ill. Comp. Stat. 505/6 (1986); Md. Code Ann., Labor & Empl. § 100-80A to -80E (1986); Mich. Comp. Laws §§ 286.651-.657 (1986); Neb. Rev. Stat. §§ 48-1701 to -1714 (1986); N.J. Stat. Ann. § 34:8A-11 (1986); N.Y. Lab. Law § 212-a (1986); Or. Rev. Stat. §§ 658.405-.503 (1986); 43 Pa. Stat. Ann. §§ 1301.501-.505 (1983); Tex. Rev. Civ. Stat. Ann. art. 5221a-5 (1986); Wash. Rev. Code § 19.30 (1986). Few of these laws independently prohibited the hiring of unauthorized workers. See Or. Rev. Stat. § 658.440(3)(d) (1986); 43 Pa. Stat. Ann. § 1301.505 (1983). These provisions essentially replicated the prohibition then found in AWPA (and which at the time were permitted by AWPA’s savings clause), and were preempted when Congress conformed AWPA to IRCA. See IRCA § 101(b); infra pp. 32-34.

26
requirements that demonstrated the contractor’s fitness, e.g., Cal. Lab. Code §§ 1693-1694 (1986), and most conditioned issuance or maintenance of a license upon the contractor’s record of compliance with federal law, e.g., id. § 1690; 225 Ill. Comp. Stat. 505/6 (1986).14
That Congress had such laws in mind is confirmed by the interrelationship between IRCA and the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. §§ 1801-1872. As discussed in further detail below, infra pp. 32-34, IRCA modified the AWPA through a set of conforming amendments. And, pertinent here, the AWPA is a classic fitness-todo-business provision: It prohibits individuals and businesses from engaging in any “farm labor contracting activity” (i.e., “employing, furnishing, or transporting any migrant or seasonal agricultural worker,” 29 U.S.C. § 1802) without first securing a registration certificate from the Department of Labor. 29 U.S.C. § 1811. To obtain that certificate, the applicant must certify that it “has [not] been found to have violated” IRCA’s prohibition against hiring unauthorized workers. Id. § 1813(a)(6).
If the licensing proviso preserves anything more than farm labor contracting and similar laws, it certainly permits no more than sanctions imposed through traditional “fitness to do business laws.” H.R. Rep. No. 99-682(I), at 58. Statutory interpreta-
14 Several of these state laws described the license as a “certificate of registration.” E.g., 225 Ill. Comp. Stat. 505/3. This explains why § 1324a(h)(2) refers to “licensing and similar laws”: Congress wished to ensure that all such state laws—regardless of the superficial language used by a State—would be preserved.

27
tion requires more than reliance on dictionaries,15 but they demonstrate that fitness to do business is a common meaning of the term “license.” E.g., Webster’s Third New International Dictionary 1304 (1993) (defining “license” as “a right or permission granted in accordance with law by a competent authority to engage in some business or occupation”); Random House Webster’s Unabridged Dictionary 1109 (2d ed. 1997) (similar); Oxford English Dictionary 891 (2d ed. 1989) (“To grant (a person) a licence or authoritative permission to hold a certain status or to do certain things, e.g. to practise some trade or profession ….”); see also Cleveland v. United States, 531 U.S. 12, 21 (2000) (“licensing schemes long characterized by this Court as exercises of state police powers” include “license to transport alcoholic beverages,” “license to sell corporate stock,” “ferry license,” and “license to sell liquor”).
Other federal statutes use “licensing” in this same manner. E.g., 7 U.S.C. § 499c (commission merchant licensing); 19 U.S.C. § 1641(b)(2) (customs broker licensing). Such statutes often impose a condition of complying with other specified laws or regulations. E.g., 18 U.S.C. § 923(d)(1)(F) (certain firearms dealer licenses); 49 U.S.C. § 41304(c) (foreign air carrier certificate). Particularly telling here, Arizona itself uses
15 E.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 226 (1994) (in interpreting a statutory term, the Court “d[oes] not rely exclusively upon dictionary definitions, but also upon contextual indications”); Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 454-55 (1989) (“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish”) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (L. Hand, J.), aff'd, 326 U.S. 404 (1945)).

28
the term “licensing”—outside of this one context—to mean fitness to do business, and defines it as the
process by which an agency of government grants permission … to engage in a given occupation on finding that the applicant has attained the minimal degree of competency required to ensure that the public health, safety and welfare will be reasonably protected.
See Arizona Legislative Bill Drafting Manual § 4.21 (2009), available at http://www.azleg.gov/alisPDFs /council/2010%20Bill%20Drafting%20Manual.pdf; see also Business Licenses by Agency or Department, https://az.gov/app/license/bus.xhtml (last visited Aug. 31, 2010) (listing forms of Arizona business licenses and linking to governing provisions).
In short, when Congress used the term “licensing” in IRCA, it was referring to traditional licensing and registration schemes, like AWPA, that condition permission to engage in a business—such as the labor contracting businesses that were the focus of Congress’s attention—on a record of compliance with federal immigration law. This understanding takes account of the accepted understanding of “licensing”; preserves traditional state authority to set conditions on issuing licenses; and, at the same time, ensures that the regulation of those who “employ … unauthorized aliens,” 8 U.S.C. § 1324a(h)(2), remains a uniform matter of federal law.
3. IRCA Preempted Alternate Regimes For Adjudicating Unauthorized Worker Violations.
At the core of what Congress meant to displace were regimes, like Arizona’s, that established unauthorized worker prohibitions and mechanisms for enforcement and adjudication separate from IRCA. For

29
this reason as well, the Arizona Act is not a “licensing [or] similar law[ ],” because it creates a separate regime regulating the employment of unauthorized workers, and would predicate violations on statecourt adjudication of a state-defined offense.
a. This interpretation of IRCA flows first from its language. By its terms, the savings clause allows States only to impose a particular type of “sanction” on employers found to have hired “unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). It does not authorize a State to define the core federal question of who is “unauthorized,” nor to adjudicate whether a worker is unauthorized or whether an employer knowingly hired such a person. See id. To the contrary, IRCA defines “unauthorized alien” as a matter of federal law, id. § 1324a(h)(3); it establishes “employ[ing]” an “unauthorized alien” as a violation of federal law, id. § 1324a(a); and it vests authority over those determinations in the U.S. Attorney General, id. The “licensing laws” preserved by the savings clause are “lawful state or local processes concerning the suspension, revocation, or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. No. 99682(I), at 58.
The statutory structure demonstrates plainly that Congress expected violations of IRCA giving rise to licensing sanctions to be adjudicated exclusively by the federal government. Congress established a “uniform[ ]” nationwide system for regulating employment verification and authorization, IRCA § 115, and expressly forbade use of the verification information for purposes other than enforcement of the INA and enumerated prohibitions against false statements, 8 U.S.C. § 1324a(b)(5). Congress carefully calibrated procedures for adjudicating alleged violations

30
through federal agency procedures (including a right to seek federal judicial review). Supra pp. 4-6. In the debates that raged in Congress for over a decade about how to craft federal policy concerning the employment of aliens, the only issue that seems never to have been in doubt was the need for federal primacy. See, e.g., S. Rep. No. 99-132, at 18-26; H.R. Rep. No. 99-682(I), at 51-56. There is no inkling in IRCA’s text, its purpose, or its legislative debates that, having created this “comprehensive” and “uniform” system, Congress meant to give States carte blanche to establish independent adjudicatory procedures for determining who is and who is not authorized to work.
b. On the contrary, IRCA’s historical backdrop shows that Congress’s very purpose was to get States out of the business of adjudicating unauthorized worker violations. At the time IRCA was enacted, there were two principal groups of state statutes touching on work-authorization status. There were the fitness-to-do-business laws governing farm labor contractors, which Congress meant to preserve. Supra pp. 25-28. There also existed another 14 or so state laws that prohibited the employment of, for instance, people “not entitled to lawful residence in the United States.”16 These laws directly regulated employers, typically through fines and other sanctions unrelated to licensing, and many created separate
16 Cal. Lab. Code § 2805 (1984); Conn. Gen. Stat. § 31-51k (1972); Del. Code Ann. tit. 19, § 705 (1977); Fla. Stat. § 448.09 (1973); Kan. Stat. Ann. § 21-4409 (1977); La. Rev. Stat. Ann. § 23:995 (1985); Me. Rev. Stat. tit. 26, § 871 (1977); Mass. Gen. Laws ch. 149, § 19C (1976); Mont. Code Ann. § 41-121 (1977); N.H. Rev. Stat. Ann. § 275-A:4-a (1976); N.J. Stat. Ann. § 34:9-1 (1977); Tenn. Code Ann. § 50-1-103(b) (1986); Vt. Stat. Ann. tit. 21, § 444a (1977); Va. Code Ann. § 40.1-11.1 (1977).

31
state administrative regimes for ensuring compliance. E.g., Conn. Gen. Stat. § 31-51k(c) (1972); Me. Rev. Stat. tit. 26, § 871(3) (1977); Mass. Gen. Laws ch. 149, § 19C (1976). It was these laws that Congress meant to preempt. These statutes were brought repeatedly to Congress’s attention over the course of the legislative debates leading to IRCA.17 Indeed, the California statute upheld in De Canas was one of these statutes, and De Canas led quickly to calls for preemption of such state statutes,18 which were followed by the first IRCA precursors containing preemption provisions. See S. 2252, 95th Cong. § 5(a)(3) (1977); H.R. 9531, 95th Cong. § 5(a)(3) (1977).
The licensing proviso certainly offers no contrary indication that it was intended to authorize States to create separate adjudicatory mechanisms. Obtaining or retaining a license commonly is predicated on compliance with specified laws, but a licensing authority would not itself typically have the time, expertise, or resources independently to adjudicate whether the prospective licensee violated the law of
17 H.R. Rep. No. 94-506, at 7 (1975) (“many states have recognized the need for criminal sanctions against employers of illegal aliens”); see, e.g., Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the H. Comm. on the Judiciary, 97th Cong. 1251 (1981) (statement of Roger Conner, Federation for American Immigration Reform); Hearings Before Subcomm. No. 1 of the H. Comm. on the Judiciary, pt. 1, 92d Cong. 149-62 (1971) (Statement of Hon. Dixon Arnett, California State Assemblyman).
18 E.g., Hearings Before the Subcomm. on Immigration and Naturalization, S. Comm. on the Judiciary, 94th Cong. 25 (1976) (statement of Leonard F. Chapman, Jr., Commissioner, INS); id. at 103 (statement of Stanley Mailman, President, Association of Immigration and Nationality Lawyers).

32
some other jurisdiction, much less one outside the licensor’s core expertise. A State’s insurance commissioner, for instance, is an unlikely candidate to adjudicate whether the applicant committed a felony under the laws of some other State—but can reasonably take note of whether an insurance producer was “convicted of a felony.” Ariz. Rev. Stat. § 20295(A)(6).19 This is all the more true in a specialized administrative framework like immigration and work-authorization status, in which the fact of whether a worker is “unauthorized” is immensely complicated and governed by extensive federal regulation. See, e.g., supra pp. 4-6 & note 2.
c. Congress’s desire to centralize the regulation of work-authorization status through IRCA is confirmed by the manner in which IRCA amended AWPA to harmonize the two statutes. See Lorillard Tobacco v. Reilly, 533 U.S. 525, 542 (2001) (“We are aided in our interpretation by considering the predecessor preemption provision and the circumstances in which the current language was adopted.”). Prior to IRCA’s
19 This generally has been true of farm labor contractor laws. Supra pp. 25-26 & note 13; e.g., Cal. Lab. Code § 1690 (1986) (authorizing license suspension, revocation, or denial if a farm labor contractor “has been found, by a court or the [U.S.] Secretary of Labor, to have violated any provision of the Federal Farm Labor Contractor Registration Act”); 225 Ill. Comp. Stat. 505/6(d) (1986) (authorizing license suspension, revocation, or denial if a contractor “has been convicted of violating any provision of … federal law”).
It also remains true of numerous other state licensing regimes, including in Arizona. E.g., Ariz. Rev. Stat. § 32-2124(M) (Department of Real Estate may not issue license to certain convicted felons); id. § 20-295(A)(13) (insurance producer’s license may be suspended or revoked for violations of regulations governing premium finance companies).

33
enactment, AWPA contained its own independent prohibition on hiring unauthorized workers. 29 U.S.C. § 1816(a) (1985).20 AWPA also provided for criminal penalties, id. § 1851, and a separate goodfaith defense to a charge of knowingly hiring unauthorized workers, id. § 1816(b). The Secretary of Labor promulgated regulations addressing verification of work authorization, 29 C.F.R. §§ 500.58-.59 (1984), and adjudicated whether an employer had hired unauthorized workers. E.g., In re Garcia, No. 86-MSP107, 1991 WL 733599 (Sec’y of Labor Oct. 10, 1991). AWPA also specifically permitted complementary state regulation: “This chapter is intended to supplement State law, and compliance with this chapter shall not excuse any person from compliance with appropriate State law and regulation.” 29 U.S.C. § 1871 (1985).
Congress repealed these separate prohibitions concerning employment status verification in a series of “conforming amendments” to AWPA. IRCA § 101(b). IRCA repealed AWPA’s independent prohibition on unauthorized workers, and made corresponding changes to AWPA’s defenses and penalties. Id. With these amendments, an AWPA registration certificate could be suspended or revoked based only on a predicate violation of IRCA—i.e., if the employer “has been found to have violated” 8 U.S.C. § 1324a(a). Id. And, Congress added the separate provision of IRCA expressly preempting state laws (which previously had been allowed under AWPA’s broad savings clause), with only the limited exception for “licensing”
20 AWPA was the successor to the Farm Labor Contractor Registration Act, Pub. L. No. 88-582, 78 Stat. 920 (1964), which, as amended, also independently prohibited the hiring of unauthorized workers. 7 U.S.C. §§ 2044(b)(6), 2045(f) (1976).

34
schemes. Id. § 101(a)(1) (codified at 8 U.S.C. § 1324a(h)(2)).
This history confirms the narrow scope of the “licensing” exception. IRCA displaced alternate regimes—including those under federal law governing status verification. At the same time, it avoided interfering with the traditional authority of States and localities to enforce laws which, like AWPA, conditioned a license or registration to engage in the business of labor contracting on compliance with IRCA’s fundamental prohibition on unauthorized workers. See H.R. Rep. No. 99-682(I), at 58 (describing “licensing” laws as those “concerning the suspension, revocation, or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation”). Without the savings clause, local officials would have been unable to bar a labor contracting business found to have violated the federal prohibition on hiring unauthorized workers from operating within their jurisdiction, even though AWPA contemplated this very result. See 29 U.S.C. §§ 1813(a)(6), 1871. It was such authority that the savings clause was intended to preserve. See Ouellette, 479 U.S. at 497 (“This delineation of authority represents Congress’ considered judgment as to the best method of serving the public interest and reconciling the often competing concerns”). Congress did not intend, however, to authorize States in the guise of “licensing” to return to adjudicating in this domain.
4. The Arizona Act Is Not A Licensing Or Similar Law.
Arizona’s law departs wildly from any traditional understanding of a “licensing” law, and undertakes precisely the regulation of employment authorization that Congress meant to preempt. The Act does not speak to a company’s fitness to engage in any particu-

35
lar type of business, and it establishes no conditions for issuing a “license” or registration of any sort. See Ariz. Rev. Stat. §§ 23-211 to 23-212.01.
Rather, in purpose and effect it establishes a regulatory system for determining employment authorization. It contains numerous provisions prohibiting the employment of unauthorized workers and establishing procedures for investigating and adjudicating violations thereof. See supra pp. 11-13. Yet it refers to a “license” only in those few sections that grant authority to state court judges to direct, as one among multiple possible penalties against the employer,21 “the appropriate agencies to suspend [or] … to permanently revoke all licenses that are held by the employer.” Ariz. Rev. Stat. §§ 23-212(F), 23-212.01(F). And, even where the statute does authorize sanctions against what it terms “licenses,” it does so through a special definition that is unlike the ordinary meaning of that term. The Act defines “license” to exclude “professional licenses,” id. § 23-211(9)(c)(ii), and to include various foundational corporate documents that are not “licenses” in any common sense of the term, including a “transaction privilege tax license,” and certificates of partnership and articles of incorporation, id. § 23-211(9)(b). Withdrawing a company’s charter—the “business death penalty,” J.A. 399—is not a traditional “licensing” sanction; it does not act against a license; and it is not anything Congress reasonably anticipated.
21 The Arizona Act also allows for several sanctions which, even under the Act’s strained definition, do not affect a “license” at all, including an injunction directing the employer “to terminate the employment of all unauthorized aliens” and to file periodic status and compliance reports to county officials. Ariz. Rev. Stat. § 23-212(F).

36
In contrast to its merely incidental relationship to traditional licensure, the Arizona Act directly regulates the hiring of unauthorized workers. It establishes an independent state prohibition on hiring unauthorized workers, Ariz. Rev. Stat. § 23-212(A), creates an independent state process for investigating, adjudicating, and sanctioning violations of the state prohibition, id. § 23-212(B)-(J), and establishes independent standards for state judges to determine employment authorization status, even if that determination conflicts with the prior decision of a federal official, id. § 23-212(I). Supra pp. 11-13. Far from simply imposing “sanctions,” much less a sanction in the sense of “licensing,” the Arizona Act sets up its own competing regulatory and enforcement system.
The fact that Congress thought it necessary to repeal AWPA’s separate prohibition concerning unauthorized workers belies any suggestion that IRCA meant to authorize each of the 50 States (and indeed every locality) to impose its own separate prohibition. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 451-53 (2005) (cautioning against an interpretation of a savings clause that would allow for “50 different [regulatory] regimes”); see also Riegel v. Medtronic, 552 U.S. 312, 326 (2008); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350 (2001). To permit Arizona to regulate in this fashion, in the face of the careful balancing undertaken by Congress, is to permit IRCA “to destroy itself,” AT&T v. Cent. Office Tel., 524 U.S. 214, 228 (1998), and would violate the settled rule against “giv[ing] broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law,” United States v. Locke, 529 U.S. 89, 106 (2000).

37
B. The Unauthorized Worker Provisions Are Impliedly Preempted.
The unauthorized worker provisions of the Arizona Act also are impliedly preempted. The existence of an express preemption provision (or savings clause) does not “bar the ordinary working of conflict preemption principles,” or impose any “special burden” on demonstrating preemption. Geier v. Am. Honda Motor Co., 529 U.S. 861, 869-72 (2000); see Buckman, 531 U.S. at 348-51; Altria, 129 S. Ct. at 543; Freightliner Corp. v. Myrick, 514 U.S. 280, 287-89 (1995); see also Wyeth v. Levine, 129 S. Ct. 1187, 1220 (2009) (Alito, J., dissenting); Rush Prudential HMD v. Moran, 536 U.S. 355, 392-93 (2002) (Thomas, J., dissenting); Cipollone v. Liggett Group, 505 U.S. 504, 547-48 (1992) (Scalia, J., dissenting). Rather, the question here, as in any other implied preemption case, is whether the state statute “conflicts” with the federal scheme, either because the federal and state statutes create contradictory rights or obligations, or because the state statute otherwise frustrates the federal scheme. Geier, 529 U.S. at 872-74; see also Wyeth, 129 S. Ct. at 1215-16 (Thomas, J., dissenting).
Arizona’s unauthorized worker provisions establish an investigatory and adjudicatory process at odds with the procedures set forth in IRCA, and they disrupt the careful balance that Congress struck among competing interests when it enacted IRCA. For both of those reasons, the Arizona Act is impliedly preempted.
1. The Unauthorized Worker Provisions Conflict With IRCA’s Structure And Operation.
a. There is “clear evidence” that, with respect to employment authorization, “Congress intended to

38

centralize all authority over the regulated area in one decisionmaker: the Federal Government.” Buckman, 531 U.S. at 352; Freightliner, 514 U.S. at 292. As set forth above in the context of express preemption, see supra pp. 28-34,22 IRCA contemplates a predicate federal adjudication by expert federal officials. And more generally, it creates a detailed process for investigating and adjudicating issues related to workauthorization status. Supra pp. 4-6. Befitting a regime implicating immigration status, IRCA directs “the Attorney General of the United States” to define the classes of individuals who are “authorized” to be employed in this country, to establish procedures governing the submission of complaints alleging unauthorized worker violations, and to promulgate rules “for the investigation of those complaints which, on their face, have substantial probability of validity.” 8 U.S.C. § 1324a(e), (h)(3).

The statute accords “authority in investigations”

only to “immigration officers,” “administrative law

judges,” and “the Attorney General.”

Id.

§ 1324a(e)(1)-(2). It prohibits the imposition of sanc-

tions until “the Attorney General … provide[s] the

person or entity with notice and, upon request made

within a reasonable time[,] … a hearing respecting

the violation,” id. § 1324a(e)(3), which must be held

before an “administrative law judge” and conducted

“in accordance with the requirements of the [Admin-

22 English v. Gen. Elec., 496 U.S. 72, 79 n.5 (1990) (“By referring to these three categories [of express, field, and conflict preemption], we should not be taken to mean that they are rigidly distinct.”), quoted in Crosby, 530 U.S. at 372 & n.6; cf. 1 L. Tribe, American Constitutional Law 1177 (3d ed. 2000) (“field” preemption may fall into any of the categories of express, implied, or conflict preemption).

39
istrative Procedure Act],” id. IRCA also guarantees the employer the right to petition for review of an adverse order “in the Court of Appeals for the appropriate circuit.” Id. § 1324a(e)(8).
There is no room in this scheme for alternative investigatory and adjudicatory systems. See Geier, 529 U.S. at 883 (“Congress has delegated to [a federal agency] authority to implement the statute; the subject matter is technical; and the relevant history and background are complex and extensive”); see also Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85-87 (2006) (same). Such a system would be managed by state officials, rather than the federal officials specifically granted authority under IRCA. They would be conducted under procedures that do not provide the safeguards required under IRCA, including notice and a hearing by the U.S. Attorney General, and would not be subject to oversight by federal immigration officials. They would also deny to employers the right to seek federal appellate review that is guaranteed to them by federal law.23
The Arizona Act illustrates vividly why Congress properly intended the federal system to be exclusive. Rather than investigation by federal officials expert in matters of immigration, the Arizona Act directs state officials—including the local county attorney— to investigate, assisted by “[t]he county sheriff or other local law enforcement agency.” Ariz. Rev. Stat. § 23-212(B). Upon finding that a complaint is “not
23 See Adams Fruit v. Barrett, 494 U.S. 638, 649-50 (1996) (state law that denies right accorded under federal law is preempted); Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 32-33 (1996) (same); de la Cuesta, 458 U.S. at 154-59 (same); Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 267-68 (1985) (same).

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false and frivolous,” the investigating official must notify both “the United States immigration and customs enforcement” and “the local law enforcement agency” of the identity “of the unauthorized alien,” and the attorney general must “notify the appropriate county attorney to bring an action.” Id. §§ 23-212(C), 23-212.01(C). The action is not adjudicated before an agency expert in the complicated questions of citizenship status or work-authorization status, e.g., supra pp. 4-6 & note 2 (examples of federal regulations governing work authorization), but in state superior court “in the county where the unauthorized alien employee is or was employed.” Ariz. Rev. Stat. § 23212(C)-(D). There is no explicit procedure for further judicial review, see id. § 23-212(E), and certainly not through the federal courts of appeals as guaranteed by IRCA.
The Arizona Act demonstrates the mischief that has been and will be wrought if States are permitted under the cover of “licensing” to create their own separate systems for adjudicating violations of IRCA (or, as here, of similar state prohibitions). Most strikingly, the Arizona Act purports to authorize state officials to disregard federal findings concerning federal work-authorization status. An Arizona state court evaluating an alleged violation will accord “the federal government’s determination” of work-authorization status only “a rebuttable presumption of the employee’s lawful status.” Id. § 23-212(H). This provision flatly contradicts IRCA’s provisions placing responsibility for status determination with federal officials, and violates the longstanding principle that “federal power in the field affecting foreign relations”—particularly the conditions for admission of individuals into this country—“be left entirely free from local interference.” Am. Ins. Ass’n v. Garamen-

41
di, 539 U.S. 396, 418 (2003) (quoting Hines, 312 U.S. at 63); see also Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”).
Compounding this fundamental defect, and confirming the incoherence of Arizona’s scheme, is the fashion in which Arizona’s evaluation of workauthorization status is tied to “the federal government’s determination pursuant to 8 [U.S.C. §] 1373(c).” Ariz. Rev. Stat. § 23.212(H). Section 1373(c) provides for no “determination” by the federal government at all, and it is wholly separate from the detailed procedure required under federal law to determine whether an employer knowingly hired an unauthorized worker. Rather, § 1373(c) directs federal officials to disclose “information,” and it is the wrong information at that: Section 1373(c) has the federal government disclose information concerning an individual’s “citizenship or immigration status”— not “employment authorization” or “employment eligibility,” as would be relevant to determining workauthorization status.24 Work-authorization status and immigration status are separate inquiries, and although certain categories of immigration status can determine employment authorization, e.g., 8 C.F.R. § 274a.12(a), in numerous circumstances individuals
24 See Privacy Act of 1974; System of Records, 66 Fed. Reg. 46,812, 46,812, 46,815 (Sept. 7, 2001); see also 8 U.S.C. § 1254a (distinguishing between “immigration status” and “work authorization”); 8 C.F.R. pt. 274a, subpt. B (addressing “Employment Authorization”); Privacy Act of 1974; USCIS–004 Verification Information System (VIS) System of Records Notice, 73 Fed. Reg. 75,445, 75,448 (Dec. 11, 2008) (same).

42
without status under the immigration laws are authorized to work. Supra note 2. In addition, the information provided in response to a § 1373 request does not necessarily reflect the individual’s authorization status at the time of employment, see 66 Fed. Reg. at 46,812-15, and thus cannot properly be relied upon to support an alleged violation of an unauthorized worker prohibition.
Moreover, the Arizona Act calls for the use of employment verification information in ways that Congress proscribed. Under IRCA, the I-9 form and “any information contained in or appended to” it “may not be used for purposes other than for enforcement of this chapter” and specified federal criminal laws. 8 U.S.C. § 1324a(b)(5); see also id. § 1324a(b)(4) (limiting copying and retention of identification documents); id. § 1324a(d)(2)(F) (similar prohibition on use of I-9 system; specifically forbidding use of information for “law enforcement purposes”); IIRIRA § 404(h)(1) (similar prohibition on use of E-Verify system). Yet, the Arizona Act has critical aspects of its regulatory scheme turn on questions—such as proof of compliance with the I-9 process and with EVerify—that would require the use of just such information, contrary to the federal prohibition. Ariz. Rev. Stat. §§ 23-212(J); see also id. § 23-212(C)-(D) (requiring that information be shared with “local law enforcement agency”).
b. Finally, Arizona’s unauthorized worker regime disrupts the balance that Congress struck among its various policy objectives. “An interpretation of the saving clause that preserved actions brought under [the] State’s law would disrupt this balance of interests.” Ouellette, 479 U.S. at 494-96.
One of those objectives—but only one—was to deter unlawful immigration. 8 U.S.C. § 1324a(a); see also,

43
e.g., H.R. Rep. No. 99-682(I), at 51-56; S. Rep. No. 99132, at 1, 18-26. Congress, however, did not intend to pursue enforcement at all costs. It also gave effect to other objectives, some of which would be impaired by a strategy of maximal enforcement. H.R. Rep. No. 99-682(I), at 56; S. Rep. No. 99-132, at 8-9. For instance, Congress intended to minimize burdens on employers. See, e.g., IRCA § 101(a)(1) (codified at 8 U.S.C. § 1324a(j)(1)(c) (1986)) (requiring GAO to study, and issue reports concerning, whether “an unnecessary regulatory burden has been created for employers”). To that end, Congress established a verification system that allows employers to rely on facially reasonable documents as proof of employment authorization status. 8 U.S.C. § 1324a(a)(3), (b)(1); see S. Rep. No. 99-132, at 10-12, 32; H.R. Rep. No. 99682(I), at 52-56, 60-62. Employers would not bear the burden of verifying that the documents presented by the employee actually were valid, and would benefit from a good-faith defense for following the statutory requirements. 8 U.S.C. § 1324a(a)(3), (b)(1)(A), (b)(6). Congress likewise sought to protect the privacy of prospective employees, and so permitted individuals to select the form of documentation with which to establish authorization status; prohibited employers from asking for additional documentation; and barred immigration authorities from establishing a “national identification card.” Id. § 1324a(b)(1), (b)(2), (c); see H.R. Rep. No. 99-682(I), at 49, 68.
Perhaps most significant, Congress was deeply concerned that too heavy a thumb on the side of enforcement would cause employers to discriminate against prospective employees on the basis of actual or perceived national origin. Supra pp. 6-8. This concern was behind Congress’s prohibition against employers asking for additional proof of identity or

44
employment authorization. Supra pp. 7-8. Congress in IRCA also expressly and independently “prohibit[ed] … discrimination based on national origin or citizenship status.” 8 U.S.C. § 1324b. And, for this same reason, Congress created a graduated schedule of civil monetary penalties for discrimination violations that matches precisely the penalties available for unauthorized worker violations. See id. § 1324b(g)(2)(B)(iv); supra p. 7; see also, e.g., H.R. Conf. Rep. No. 99-1000, at 87 (“The antidiscrimination provisions of this bill are a complement to the sanctions provisions, and must be considered in that context.”); H.R. Rep. No. 99-682(I), at 49, 68 (same).
Finally, Congress considered and balanced the respective roles of federal and state regulation. 8 U.S.C. § 1324a(h)(2). Immigration and employment authorization are matters of national concern properly subject to federal governance. States and localities, however, have traditional authority over licensing. And, States in the past had relied on federal findings of violations of federal law—including federal immigration law—as predicates for registration and licensing schemes, particularly in the field of farm labor contracting. See H.R. Rep. No. 99-682(I), at 58. Congress therefore allowed States to deny or revoke such licenses and similar registrations based on a violation of IRCA. See 8 U.S.C. § 1324a(h)(2). The narrowness of this exception reflects again the care that Congress took in balancing all of the relevant interests, and its concern that additional sanctions—beyond those associated with traditional “licensing” decisions—would disrupt the federal system. H.R. Rep. No. 99-682(I), at 58; S. Rep. No. 99-132, at 8-12 (level of sanctions is reasonable in light of competing concerns); see also H.R. Conf. Rep. No. 991000, at 86 (detailing graduated sanctions scheme).

45
It is inconceivable that, having resolved for itself the appropriate balance of these competing interests, Congress intended—through the oblique reference to “licensing”—to permit States to re-weigh those interests and craft a different system, with different adjudicatory standards and different penalties. “Where,” as here, “it is clear how the [federal] laws strike that [congressional] balance in a particular circumstance, that is not a judgment the States may second-guess.” Bonito Boats, 489 U.S. at 152. This is precisely what Arizona has done.
Arizona’s statute pursues a single goal—the prevention of unlawful immigration—to the exclusion of all others. It has adopted an enforcement-at-all costs strategy, with the solitary goal of “stop[ping] illegal immigration.” J.A. 395. “[T]he inconsistency of sanctions here undermines the congressional calibration of force.” Crosby, 530 U.S. at 380; cf. Am. Ins. Ass’n, 539 U.S. at 427 (“The basic fact is that [the State] seeks to use an iron fist where the President has consistently chosen kid gloves.”). Arizona has not made even a passing nod to the other considerations that Congress weighed and sought to effectuate. The Arizona Act includes no anti-discrimination provision concerning employers—a fact that concerned Governor Napolitano when she signed the legislation, J.A. 399. And, considerations of limiting burdens on employers never have entered the picture; on the contrary, Arizona’s chosen method is the in terrorem effect of the “business death penalty.” In these ways, the Arizona system “exert[s] an extraneous pull on the scheme established by Congress, and is therefore pre-empted by that scheme.” Buckman, 531 U.S. at 353.
That Arizona purports to share one of the concerns that motivated Congress—enforcement of the unau-

46
thorized worker prohibition—does not mean that it may re-craft federal policy to single-mindedly pursue its own preferred goal by its own preferred methods. “When Congress has taken the particular subjectmatter in hand coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.” Locke, 529 U.S. at 115; Crosby, 530 U.S. at 379 (“The fact of a common end hardly neutralizes conflicting means ….”).25 The Arizona Act “go[es] farther than Congress has seen fit to go,” and is thus preempted.
2. De Canas Does Not Require A Different Result.
The decisions below interpreted this Court’s decision in De Canas as holding that unauthorized worker provisions like those enacted by Arizona cannot be impliedly preempted by federal law. Pet. App. 39a40a, 67a-68a, 73a. This reflects a fundamental misunderstanding of De Canas and subsequent changes in federal immigration law.
The legal landscape that De Canas surveyed is utterly unlike the one that exists today. De Canas was decided in 1976, a decade before the passage of IRCA, and held that at that time federal immigration law
25 Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963) (“The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.”); see Foster, 522 U.S. at 73 (Congress may “remedy more than one evil” at a time); see also Wyeth, 129 S. Ct. at 1215 (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”).

47
evinced “at best … a peripheral concern with employment of illegal entrants.” 424 U.S. at 360. IRCA amended federal immigration law to fill precisely this gap. It made the regulation of unauthorized workers “forcefully” the subject of federal law, Nat’l Ctr. for Immigrants’ Rights, 502 U.S. at 194 n.8; see also Hoffman, 535 U.S. at 152, and expressly preempted state systems imposing sanctions for unauthorized worker violations, 8 U.S.C. § 1324a(h)(2). Nothing demonstrates more clearly the limited current relevance of De Canas than the fact that the state statute there at issue—which imposed fines for employers found to hire unauthorized workers, see 424 U.S. at 352 n.1—now is expressly preempted by § 1324a(h)(2). Moreover, De Canas involved field preemption, not conflict preemption. Id. at 356-58. And, finally, De Canas relied upon a provision of the Farm Labor Contractor Registration Act that saved state authority, id. at 361-62; see Toll v. Moreno, 458 U.S. 1, 13 n.18 (1982), and which subsequently was limited by IRCA itself, supra pp. 32-34 & note 20. Given the fundamentally different context in which De Canas arose, it is not controlling here.
II. ARIZONA’S E-VERIFY MANDATE IS IMPLIEDLY PREEMPTED.
Arizona further requires employers to participate in the federal E-Verify program that federal law explicitly makes voluntary. Ariz. Rev. Stat. § 23-214. That mandate conflicts with federal law, and therefore is preempted.
1. There can be no doubt that Congress intended E-Verify to operate as a voluntary program, in which employers could choose whether to participate. The statutory provision defining the program’s applicability is titled “Voluntary Election to Participate in a Pilot Program.” IIRIRA § 402. The statute provides

48
that employers “may elect to participate in that pilot program.” Id. § 402(a); see also id. § 402(c)(2)(A) (a participating employer is an “electing person”). And the Secretary of Homeland Security—the official authorized under IIRIRA to administer the program—is expressly prohibited from “requir[ing] any person or other entity to participate” in E-Verify, id. § 402(a), and is further directed to “widely publicize … the voluntary nature of the pilot programs,” id. § 402(d)(2); accord id. § 402(d)(3)(A). Everything about E-Verify is voluntary, other than a small handful of specified exceptions,26 the enumeration of which demonstrates the otherwise blanket nature of the rule. Id. § 402; see O’Melveny & Myers v. FDIC, 512 U.S. 79, 86 (1994) (“Inclusio unius, exclusio alterius.”).
Congress made E-Verify voluntary for good reasons. It was designed as a “pilot program”—temporary and experimental in nature—to test as a possible alternative to the document-based I-9 process. IIRIRA § 402. By making the program voluntary, Congress could avoid imposing serious burdens on employers and the federal government while it tested whether the new program effectively served Congress’s multiple goals, including “assist[ing] employers in complying with
26 E-Verify is mandatory for certain entities within the federal government, see IIRIRA § 402(e)(1), and under IIRIRA § 402(e)(2) one who violates specified provisions of IRCA may be required under an IRCA enforcement order to participate in a pilot program. The federal government also by rule has made EVerify mandatory for certain federal contractors. See Employment Eligibility Verification, 73 Fed. Reg. 67,651 (Nov. 14, 2008). Over a legal challenge, a district court held, among other things, that the rule did not make E-Verify “mandatory” because a business always can choose not to undertake government contracting. See Chamber of Commerce v. Napolitano, 648 F. Supp. 2d 726, 736 (D. Md. 2009).

49
the laws” against hiring unauthorized aliens, “prevent[ing] unlawful discrimination and privacy violations,” and “minimiz[ing] the burden on business.” S. Rep. No. 104-249, at 9 (1996). It could also thereby assess any problems with E-Verify, to determine whether it ever could prove workable for employers.27 For all of these reasons, Congress deliberately made the I-9 process (with a variety of document-based verification methods) mandatory, and created E-Verify as a voluntary and experimental system, which em-
27 A recent DHS-commissioned study of E-Verify found that foreign-born, work-authorized individuals were 20 times more likely to receive an erroneous tentative nonconfirmation than U.S.-born individuals and, notably, that States that require the use of E-Verify have higher error rates than employers in States with no such requirement. Westat, Findings of the E-Verify Program Evaluation 122, 235 (Dec. 2009), available at http:// www.uscis.gov/USCIS/E-Verify/E-Verify/Final%20E-Verify%20 Report%2012-16-09_2.pdf. These errors impose significant costs on employers and employees. Under federal law, an employer is not permitted to rely on a “tentative nonconfirmation” to take adverse action against the employee. IIRIRA § 403(a)(4)(B)(iii). The employer must allow the employee to lodge a challenge, and then must wait until a federal agency has resolved the challenge, before taking any action. Id. The burdens of this process are particularly acute for small businesses, which cannot afford significant delays in training and transitioning new employees. Westat, Findings of the Web Basic Pilot Evaluation xxii-xxiii, 24, 97 (Sept. 2007), available at http://www.uscis.gov/files/article/ WebBasicPilotRprtSept2007.pdf. And, of course, employees who receive a “tentative nonconfirmation”—even if they later succeed in challenging that designation—can lose valuable training opportunities and may suffer harassment or other forms of discrimination. Id. While the most recent study of EVerify reported improvement in the system’s accuracy rates, the pattern of error reinforces why the program has remained voluntary and experimental. See, e.g., H.R. Rep. No. 108-304(I), at 26-27 (2003) (statement by Rep. Berman regarding E-Verify error rates and consequences for employees).

50
ployers may choose to use—or not—in their discretion. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2(b).
2. It is not for Arizona, or any other State, to disregard Congress’s judgment. In enacting E-Verify as a voluntary program, Congress “weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing considerations should be resolved in a particular case or set of cases, and implemented that conclusion via [federal law].” Medtronic, 518 U.S. at 501. It “deliberately sought variety” in the field of employment verification by approving “a mix of several different” options, including the mandatory I-9 process and the voluntary E-Verify program, to reach its regulatory goal. Geier, 529 U.S. at 878.
The Ninth Circuit concluded that this provision expressly limits only the federal government, and so does not apply to state statutes like Arizona’s. Pet. App. 20a. In short, it concluded that what DHS Secretary Napolitano now is expressly forbidden from doing as a federal official, she—and her fellow 49 governors—were free to do as state executives. Nothing in IIRIRA supports this counterintuitive result.
That IIRIRA explicitly precludes only the “Secretary of Homeland Security” from mandating participation in E-Verify does not suggest that States are free to alter E-Verify requirements or mandate participation. E-Verify is a federally created program, administered exclusively by federal authorities. See Buckman, 531 U.S. at 347 (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.”). Indeed, if the 49 other States followed Arizona’s lead, the state-mandated

51
drain on federal resources would overwhelm the federal system and render it completely ineffective, thereby defeating Congress’s primary objective in establishing E-Verify. See, e.g., Bates, 544 U.S. at 451-53 (noting potential burdens imposed by “50 different [regulatory] regimes”); see also Riegel, 552 U.S. at 322; Buckman, 531 U.S. at 351. There is simply no reason to believe that Congress anticipated that States would have any role in enforcing E-Verify.
In this light, the fact that IIRIRA refers only to the Secretary of Homeland Security makes perfect sense: the Secretary is the only official authorized under IIRIRA to administer the program, and the only one potentially empowered to mandate participation in EVerify. See IIRIRA § 402. Far from suggesting a broad exception for States to mandate E-Verify participation, the provision confirms Congress’s understanding that other officials—particularly state officials—would lack authority to administer or mandate participation in E-Verify.
The E-Verify mandate of the Arizona Act, like the unauthorized worker provisions, conflicts with the language, structure, and intent of federal immigration law. The state law is therefore preempted.

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CONCLUSION
For these reasons, the Court should reverse the decision of the Court of Appeals for the Ninth Circuit with instructions to vacate the judgment of the District Court.
Respectfully submitted,

ROBIN S. CONRAD SHANE B. KAWKA NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337

CARTER G. PHILLIPS* ERIC A. SHUMSKY QUIN M. SORENSON MATTHEW D. KRUEGER TARA MIKKILINENI SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 cphillips@sidley.com

Counsel for Petitioner Chamber of Commerce of the United States of America

53

DAVID A. SELDEN JULIE A. PACE HEIDI NUNN-GILMAN THE CAVANAGH LAW FIRM 1850 North Central Ave. Suite 2400 Phoenix, AZ 85004 (602) 322-4046

BURT M. RUBLIN BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street 51st Floor Philadelphia, PA 19103 (215) 665-8500

Counsel for Petitioners Arizona Contractors Association; Arizona Chamber of Commerce; Arizona
Employers for Immigration Reform; Arizona Farm Bureau Federation; Arizona Hispanic Chamber of Commerce; Arizona Landscape Contractors Association; Arizona Restaurant and Hospitality Association; Arizona Roofing Contractors Association; Associated Minority Contractors of America; National Roofing
Contractors Association

DANIEL POCHODA ACLU FOUNDATION OF ARIZONA P.O. Box 17148 Phoenix, AZ 85011 (602) 650-1854

STEPHEN P. BERZON JONATHAN WEISSGLASS ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151

LUCAS GUTTENTAG JENNIFER CHANG NEWELL AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0770

STEVEN R. SHAPIRO OMAR C. JADWAT AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street,
18th Floor New York, NY 10004 (212) 549-2500

CYNTHIA VALENZUELA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street 11th Floor Los Angeles, CA 90014 (213) 629-2512 x136

54
LINTON JOAQUIN KAREN C. TUMLIN NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd. Suite 2850 Los Angeles, CA 90010 (213) 639-3900

Counsel for Petitioners Chicanos Por La Causa; Somos America; Valle Del Sol, Inc.

PAUL F. ECKSTEIN JOEL W. NOMKIN PERKINS COIE BROWN & BAIN P.A. 2601 N. Central Avenue Post Office Box 400 Phoenix, AZ 85001 (602) 351-8000

Counsel for Petitioner Wake Up Arizona! Inc.

Add1
STATUTORY ADDENDUM
8 U.S.C. § 1324b. Unfair immigration-related employment practices
(a) Prohibition of discrimination based on national origin or citizenship status
(1) General rule
It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual's national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) a person or other entity that employs three or fewer employees,
(B) a person's or entity's discrimination because of an individual's national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e2], or
(C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or re-

Add2
quired by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.
(3) “Protected individual” defined
As used in paragraph (1), the term “protected individual” means an individual who—
(A) is a citizen or national of the United States, or
(B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (i) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6, 1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time con-sumed in the Service's processing the application shall not be counted toward the 2-year period.
(4) Additional exception providing right to prefer equally qualified citizens
Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is

Add3
a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.
(5) Prohibition of intimidation or retaliation
It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g) of this section, to have been discriminated against.
(6) Treatment of certain documentary practices as employment practices
A person's or other entity's request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
(b) Charges of violations
(1) In general
Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employ-ment practice (or a person on that person's behalf) or an

Add4
officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel (appointed under subsection (c) of this section). Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires. The Special Counsel by certified mail shall serve a notice of the charge (including the date, place, and circumstances of the alleged unfair immigration-related employment practice) on the person or entity involved within 10 days.
(2) No overlap with EEOC complaints
No charge may be filed respecting an unfair immigration-related employment practice described in subsection (a)(1)(A) of this section if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under title VII of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e et seq.], unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this subsection, unless the charge is dismissed under this section as being outside the scope of this section.
(c) Special Counsel
(1) Appointment
The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices (hereinafter in this section referred to as the “Spe-

Add5
cial Counsel”) within the Department of Justice to serve for a term of four years. In the case of a vacancy in the office of the Special Counsel the President may designate the officer or employee who shall act as Special Counsel during such vacancy.
(2) Duties
The Special Counsel shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges and the exercise of certain functions under subsection (j)(1) of this section.
(3) Compensation
The Special Counsel is entitled to receive compensation at a rate not to exceed the rate now or hereafter provided for grade GS-17 of the General Schedule, under section 5332 of Title 5.
(4) Regional offices
The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out his duties.
(d) Investigation of charges
(1) By Special Counsel
The Special Counsel shall investigate each charge received and, within 120 days of the date of the receipt of the charge, determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his own initiative, conduct investigations respecting unfair immigration-related employment practices and, based

Add6
on such an investigation and subject to paragraph (3), file a complaint before such a judge.
(2) Private actions
If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within such 120-day period, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice. The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.
(3) Time limitations on complaints
No complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel. This subparagraph shall not prevent the subsequent amending of a charge or complaint under subsection (e)(1) of this section.
(e) Hearings
(1) Notice
Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigration-related employment practice,

Add7
an administrative law judge shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the judge at a place therein fixed, not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing, upon the motion of the party filing the complaint, in the judge's discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.
(2) Judges hearing cases
Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Attorney General as having special training respecting employment discrimination and, to the extent practicable, before such judges who only consider cases under this section.
(3) Complainant as party
Any person filing a charge with the Special Counsel respecting an unfair immigration-related employment practice shall be considered a party to any complaint before an administrative law judge respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the judge conducting the hearing, any other person may be allowed to intervene in the proceeding and to present testimony.

Add8
(f) Testimony and authority of hearing officers
(1) Testimony
The testimony taken by the administrative law judge shall be reduced to writing. Thereafter, the judge, in his discretion, upon notice may provide for the taking of further testimony or hear argument.
(2) Authority of administrative law judges
In conducting investigations and hearings under this subsection28 and in accordance with regulations of the Attorney General, the Special Counsel and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated. The administrative law judges by subpoena may compel the attendance of witnesses and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the administrative law judge, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
(g) Determinations
(1) Order
The administrative law judge shall issue and cause to be served on the parties to the proceeding an order, which shall be final unless appealed as provided under subsection (i) of this section.
28 So in original. Probably should be “section”.

Add9
(2) Orders finding violations
(A) In general
If, upon the preponderance of the evidence, an administrative law judge determines that any person or entity named in the complaint has engaged in or is engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue and cause to be served on such person or entity an order which requires such person or entity to cease and desist from such unfair immigration-related employment practice.
(B) Contents of order
Such an order also may require the person or entity—
(i) to comply with the requirements of section 1324a(b) of this title with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years;
(ii) to retain for the period referred to in clause (i) and only for purposes consistent with section 1324a(b)(5) of this title, the name and address of each individual who applies, in person or in writing, for hiring for an existing position, or for recruiting or referring for a fee, for employment in the United States;
(iii) to hire individuals directly and adversely affected, with or without back pay;
(iv)(I) except as provided in subclauses (II) through (IV), to pay a civil penalty of not less than $250 and not more than $2,000 for each individual discriminated against,
(II) except as provided in subclauses (III) and (IV), in the case of a person or entity

Add10
previously subject to a single order under this paragraph, to pay a civil penalty of not less than $2,000 and not more than $5,000 for each individual discriminated against,
(III) except as provided in subclause (IV), in the case of a person or entity previously subject to more than one order under this paragraph, to pay a civil penalty of not less than $3,000 and not more than $10,000 for each individual discriminated against, and
(IV) in the case of an unfair immigrationrelated employment practice described in subsection (a)(6) of this section, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against;
(v) to post notices to employees about their rights under this section and employers' obligations under section 1324a of this title;
(vi) to educate all personnel involved in hiring and complying with this section or section 1324a of this title about the requirements of this section or such section;
(vii) to remove (in an appropriate case) a false performance review or false warning from an employee's personnel file; and
(viii) to lift (in an appropriate case) any restrictions on an employee's assignments, work shifts, or movements.
(C) Limitation on back pay remedy
In providing a remedy under subparagraph (B)(iii), back pay liability shall not accrue from a date more than two years prior to the date of the filing of a charge with the Special Counsel. Inte-

Add11
rim earnings or amounts earnable with reasonable diligence by the individual or individ-uals discriminated against shall operate to reduce the back pay otherwise allowable under such paragraph. No order shall require the hiring of an individual as an employee or the payment to an individual of any back pay, if the individual was refused employment for any reason other than discrimination on account of national origin or citizenship status.
(D) Treatment of distinct entities
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(3) Orders not finding violations
If upon the preponderance of the evidence an administrative law judge determines that the person or entity named in the complaint has not engaged and is not engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue an order dismissing the complaint.
(h) Awarding of attorneys’ fees
In any complaint respecting an unfair immigrationrelated employment practice, an administrative law judge, in the judge's discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee, if the losing party's argument is without reasonable foundation in law and fact.

Add12
(i) Review of final orders
(1) In general
Not later than 60 days after the entry of such final order, any person aggrieved by such final order may seek a review of such order in the United States court of appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business.
(2) Further review
Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of Title 28.
(j) Court enforcement of administrative orders
(1) In general
If an order of the agency is not appealed under subsection (i)(1) of this section, the Special Counsel (or, if the Special Counsel fails to act, the person filing the charge) may petition the United States district court for the district in which a violation of the order is alleged to have occurred, or in which the respondent resides or transacts business, for the enforcement of the order of the administrative law judge, by filing in such court a written petition praying that such order be enforced.
(2) Court enforcement order
Upon the filing of such petition, the court shall have jurisdiction to make and enter a decree enforcing the order of the administrative law judge. In such a proceeding, the order of the administrative law judge shall not be subject to review.

Add13
(3) Enforcement decree in original review
If, upon appeal of an order under subsection (i)(1) of this section, the United States court of appeals does not reverse such order, such court shall have the jurisdiction to make and enter a decree enforcing the order of the administrative law judge.
(4) Awarding of attorney's fees
In any judicial proceeding under subsection (i) of this section or this subsection, the court, in its discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee as part of costs but only if the losing party's argument is without reasonable foundation in law and fact.
(k) Termination dates
(1) This section shall not apply to discrimination in hiring, recruiting, or referring, or discharging of individuals occurring after the date of any termination of the provisions of section 1324a of this title, under subsection (l) of that section.
(2) The provisions of this section shall terminate 30 calendar days after receipt of the last report required to be transmitted under section 1324a(j) of this title if—
(A) the Comptroller General determines, and so reports in such report that--
(i) no significant discrimination has resulted, against citizens or nationals of the United States or against any eligible workers seeking employment, from the implementation of section 1324a of this title, or
(ii) such section has created an unreasonable burden on employers hiring such workers; and

Add14
(B) there has been enacted, within such period of 30 calendar days, a joint resolution stating in substance that the Congress approves the findings of the Comptroller General contained in such report.
The provisions of subsections (m) and (n) of section 1324a of this title shall apply to any joint resolution under subparagraph (B) in the same manner as they apply to a joint resolution under subsection (l) of such section.
(l) Dissemination of information concerning antidiscrimination provisions
(1) Not later than 3 months after November 29, 1990, the Special Counsel, in cooperation with the chairman of the Equal Employment Opportunity Commission, the Secretary of Labor, and the Administrator of the Small Business Admini-stration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section and under title VII of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e et seq.] in connection with unfair immigration-related employment practices. Such campaign shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities, and remedies under this section and such title.
(2) In order to carry out the campaign under this subsection, the Special Counsel—
(A) may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign, and
(B) shall consult with the Secretary of Labor, the chairman of the Equal Employment Opportunity

Add15
Commission, and the heads of such other agencies as may be appropriate.
(3) There are authorized to be appropriated to carry out this subsection $10,000,000 for each fiscal year (beginning with fiscal year 1991).

Add16
29 U.S.C. § 1801 (1985). Congressional statement of purpose
It is the purpose of this chapter to remove the restraints on commerce caused by activities detrimental to migrant and seasonal agricultural workers; to require farm labor contractors to register under this Act; and to assure necessary protections for migrant and seasonal agricultural workers, agricultural associations, and agricultural employers.
29 U.S.C. § 1802 (1985). Definitions
As used in this chapter—
(1) The term “agricultural association” means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law, which recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.
(2) The term “agricultural employer” means any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.
(3) The term “agricultural employment” means employment in any service or activity included within the provisions of section 3( f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of title 26 and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state.
(4) The term “day-haul operation” means the assembly of workers at a pick-up point waiting to be hired

Add17
and employed, transportation of such workers to agricultural employment, and the return of such workers to a drop-off point on the same day.
(5) The term “employ” has the meaning given such term under section 3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the purposes of implementing the requirements of that Act [29 U.S.C. 201 et seq.].
(6) The term “farm labor contracting activity” means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
(7) The term “farm labor contractor” means any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.
(8)(A) Except as provided in subparagraph (B), the term “migrant agricultural worker” means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence.
(B) The term “migrant agricultural worker” does not include—
(i) any immediate family member of an agricultural employer or a farm labor contractor; or
(ii) any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii) and 214(c) of title 8.

Add18
(9) The term “person” means any individual, partnership, association, joint stock company, trust, cooperative, or corporation.
(10)(A) Except as provided in subparagraph (B), the term “seasonal agricultural worker” means an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence—
(i) when employed on a farm or ranch performing field work related to planting, cultivating, or harvesting operations; or
(ii) when employed in canning, packing, ginning, seed conditioning or related research, or processing operations, and transported, or caused to be transported, to or from the place of employment by means of a day-haul operation.
(B) The term “seasonal agricultural worker” does not include—
(i) any migrant agricultural worker;
(ii) any immediate family member of an agricultural employer or a farm labor contractor; or
(iii) any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii) and 214(c) of title 8.
(11) The term “Secretary” means the Secretary of Labor or the Secretary's authorized representative.
(12) The term “State” means any of the States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and Guam.

Add19
29 U.S.C. § 1803 (1985). Applicability of chapter
(a) The following persons are not subject to this chapter.
(1) FAMILY BUSINESS EXEMPTION.—Any individual who engages in a farm labor contracting activity on behalf of a farm, processing establishment, seed conditioning establishment, cannery, gin, packing shed, or nursery, which is owned or operated exclusively by such individual or an immediate family member of such individual, if such activities are performed only for such operation and exclusively by such individual or an immediate family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes.
(2) SMALL BUSINESS EXEMPTION.—Any person, other than a farm labor contractor, for whom the man-days exemption for agricultural labor provided under section 13(a)(6)(A) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(6)(A)) is applicable.
(3) OTHER EXEMPTIONS.—(A) Any common carrier which would be a farm labor contractor solely because the carrier is engaged in the farm labor contracting activity of transporting any migrant or seasonal agricultural worker.
(B) Any labor organization, as defined in section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5)) (without regard to the exclusion of agricultural employees in that Act [29 U.S.C. 141 et seq.]) or as defined under applicable State labor relations law.
(C) Any nonprofit charitable organization or public or private nonprofit educational institution.

Add20
(D) Any person who engages in any farm labor contracting activity solely within a twenty-five mile intrastate radius of such person's permanent place of residence and for not more than thirteen weeks per year.
(E) Any custom combine, hay harvesting, or sheep shearing operation.
(F) Any custom poultry harvesting, breeding, debeaking, desexing, or health service operation provided the employees of the operation are not regularly required to be away from their permanent place of residence other than during their normal working hours.
(G)(i) Any person whose principal occupation or business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to detassel, rogue, or otherwise engage in the production of seed and to engage in related and incidental agricultural employment, unless such full-time students or other individuals are required to be away from their permanent place of residence overnight or there are individuals under eighteen years of age who are providing transportation on behalf of such person.
(ii) Any person to the extent he is supplied with students or other individuals for agricultural employment in accordance with clause (i) of this subparagraph by a person who is exempt under such clause.
(H)(i) Any person whose principal occupation or business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to string or harvest shade grown tobacco

Add21
and to engage in related and incidental agricultural employment, unless there are individuals under eighteen years of age who are providing transportation on behalf of such person.
(ii) Any person to the extent he is supplied with students or other individuals for agricultural employ-ment in accordance with clause (i) of this subpara-graph by a person who is exempt under such clause.
(I) Any employee of any person described in subparagraphs (A) through (H) when performing farm labor contracting activities exclusively for such person.
(b) Subchapter I of the chapter does not apply to any agricultural employer or agricultural association or to any employee of such an employer or association.
29 U.S.C. § 1811 (1985). Certificate of registration required
(a) Persons engaged in any farm labor contracting activity
No person shall engage in any farm labor contracting activity, unless such person has a certificate of registration from the Secretary specifying which farm labor contracting activities such person is authorized to perform.

Add22
(b) Hire, employ, or use of any individual to perform farm labor contracting activities by farm labor contractor; liability of farm labor contractor for violations
A farm labor contractor shall not hire, employ, or use any individual to perform farm labor contracting activities unless such individual has a certificate of registration, or a certificate of registration as an employee of the farm labor contractor employer, which authorizes the activity for which such individual is hired, employed, or used. The farm labor contractor shall be held responsible for violations of this Act or any regulation under this Act by any employee regardless of whether the employee possesses a certificate of registration based on the contractor's certificate of registration.
(c) Possession and exhibition of certificate
Each registered farm labor contractor and registered farm labor contractor employee shall carry at all times while engaging in farm labor contracting activities a certificate of registration and, upon request, shall exhibit that certificate to all persons with whom they intend to deal as a farm labor contractor or farm labor contractor employee.
(d) Refusal or failure to produce certificate
The facilities and the services authorized by the Act of June 6, 1933 (29 U.S.C. 49 et seq.), known as the Wagner-Peyser Act, shall be denied to any farm labor contractor upon refusal or failure to produce, when asked, a certificate of registration.

Add23
29 U.S.C. § 1812 (1985). Issuance of certificate of registration
The Secretary, after appropriate investigation and approval, shall issue a certificate of registration (including a certificate of registration as an employee of a farm labor contractor) to any person who has filed with the Secretary a written application containing the following:
(1) a declaration, subscribed and sworn to by the applicant, stating the applicant's permanent place of residence, the farm labor contracting activities for which the certificate is requested, and such other relevant information as the Secretary may require;
(2) a statement identifying each vehicle to be used to transport any migrant or seasonal agricultural worker and, if the vehicle is or will be owned or controlled by the applicant, documentation showing that the applicant is in compliance with the requirements of section 401 with respect to each such vehicle;
(3) a statement identifying each facility or real property to be used to house any migrant agricultural worker and, if the facility or real property is or will be owned or controlled by the applicant, documentation showing that the applicant is in compliance with section 203 with respect to each such facility or real property;
(4) a set of fingerprints of the applicant; and
(5) a declaration, subscribed and sworn to by the applicant, consenting to the designation by a court of the Secretary as an agent available to accept service of summons in any action against the applicant, if the applicant has left the jurisdiction in

Add24
which the action is commenced or otherwise has become unavailable to accept service.
29 U.S.C. § 1813 (1985). Registration determinations
(a) Grounds for refusal to issue or renew, suspension, or revocation of certificate
In accordance with regulations, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration (including a certificate of registration as an employee of a farm labor contractor) if the applicant or holder—
(1) has knowingly made any misrepresentation in the application for such certificate;
(2) is not the real party in interest in the application or certificate of registration and the real party in interest is a person who has been refused issuance or renewal of a certificate, has had a certificate suspended or revoked, or does not qualify under this section for a certificate;
(3) has failed to comply with this Act or any regulation under this Act;
(4) has failed—
(A) to pay any court judgment obtained by the Secretary or any other person under this Act or any regulation under this Act or under the Farm Labor Contractor Registration Act of 1963 or any regulation under such Act, or
(B) to comply with any final order issued by the Secretary as a result of a violation of this Act or any regulation under this Act or a violation of the Farm Labor Contractor Registration Act of 1963 or any regulation under such Act; or

Add25
(5) has been convicted within the preceding five years—
(A) of any crime under State or Federal law relating to gambling, or to the sale, distribution or possession of alcoholic beverages, in connection with or incident to any farm labor contracting activities; or
(B) of any felony under State or Federal law involving robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, prostitution, peonage, or smuggling or harboring individuals who have entered the United States illegally.
(b) Administrative review procedures applicable
(1) The person who is refused the issuance or renewal of a certificate or whose certificate is suspended or revoked under subsection (a) shall be afforded an opportunity for agency hearing, upon request made within thirty days after the date of issuance of the notice of the refusal, suspension, or revocation. In such hearing, all issues shall be determined on the record pursuant to section 554 of title 5, United States Code. If no hearing is requested as herein provided, the refusal, suspension, or revocation shall constitute a final and unappealable order.
(2) If a hearing is requested, the initial agency decision shall be made by an administrative law judge, and such decision shall become the final order unless the Secretary modifies or vacates the decision. Notice of intent to modify or vacate the decision of the administrative law judge shall be issued to the parties within thirty days after the decision of the adminis-

Add26
trative law judge. A final order which takes effect under this paragraph shall be subject to review only as provided under subsection (c) of this section.
(c) Judicial review procedures available
Any person against whom an order has been entered after an agency hearing under this section may obtain review by the United States district court for any district in which he is located or the United States District Court for the District of Columbia by filing a notice of appeal in such court within thirty days from the date of such order, and simultaneously sending a copy of such notice by registered mail to the Secretary. The Secretary shall promptly certify and file in such court the record upon which the order was based. The findings of the Secretary shall be set aside only if found to be unsupported by substantial evidence as provided by section 706(2)(E) of title 5, United States Code. Any final decision, order, or judgment of such District Court concerning such review shall be subject to appeal as provided in chapter 83 of title 28.
29 U.S.C. § 1814 (1985). Transfer or assignment; expiration; renewal
(a) Transfer or assignment prohibited
A certificate of registration may not be transferred or assigned.
(b) Expiration; renewals
(1) Unless earlier suspended or revoked, a certificate shall expire twelve months from the date of issuance, except that (A) certificates issued under this Act during the period beginning December 1, 1982, and ending November 30, 1983, may be issued for a period of up to twenty-four months for the purpose of an order-

Add27
ly transition to registration under this Act, (B) a certificate may be temporarily extended by the filing of an application with the Secretary at least thirty days prior to its expiration date, and (C) the Secretary may renew a certificate for additional twelve-month periods or for periods in excess of twelve months but not in excess of twenty-four months.
(2) Eligibility for renewals for periods of more than twelve months shall be limited to farm labor contractors who have not been cited for a violation of this Act, or any regulation under this Act, or the Farm Labor Contractor Registration Act of 1963 [7 U.S.C. 2041 et seq.], or any regulation under such Act, during the preceding five years.
29 U.S.C. § 1815 (1985). Notice of address change; amendment of certificate of registration
During the period for which the certificate of registration is in effect, each farm labor contractor shall—
(1) provide to the Secretary within thirty days a notice of each change of permanent place of residence; and
(2) apply to the Secretary to amend the certificate of registration whenever the farm labor contractor intends to—
(A) engage in another farm labor contracting activity,
(B) use, or cause to be used, another vehicle than that covered by the certificate to transport any migrant or seasonal agricultural worker, or
(C) use, or cause to be used, another real property or facility to house any migrant agricultural worker than that covered by the certificate.

Add28
29 U.S.C. § 1816 (1985). Prohibition against employing illegal aliens
(a) No farm labor contractor shall recruit, hire, employ, or use, with knowledge, the services of any individual who is an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment.
(b) A farm labor contractor shall be considered to have complied with subsection (a) if the farm labor contractor demonstrates that the farm labor contractor relied in good faith on documentation prescribed by the Secretary, and the farm labor contractor had no reason to believe the individual was an alien referred to in subsection (a).
29 U.S.C. § 1851 (1985). Criminal sanctions
(a) Violations of chapter or regulations
Any person who willfully and knowingly violates this Act or any regulation under this Act shall be fined not more than $1,000 or sentenced to prison for a term not to exceed one year, or both. Upon conviction for any subsequent violation of this Act or any regulation under this Act, the defendant shall be fined not more than $10,000 or sentenced to prison for a term not to exceed three years, or both.
(b) Violations of section 1324a(a) of title 8
If a farm labor contractor who commits a violation of section 106 has been refused issuance or renewal of, or has failed to obtain, a certificate of registration or is a farm labor contractor whose certificate has been suspended or revoked, the contractor shall, upon conviction, be fined not more than $10,000 or sentenced to prison for a term not to exceed three years, or both.

Add29
29 U.S.C. § 1852 (1985). Judicial enforcement
(a) Injunctive relief
The Secretary may petition any appropriate district court of the United States for temporary or permanent injunctive relief if the Secretary determines that this Act, or any regulation under this Act, has been violated.
(b) Control of civil litigation
Except as provided in section 518(a) of title 28, United States Code, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under this Act, but all such litigation shall be subject to the direction and control of the Attorney General.
29 US.C. § 1853 (1985). Administrative sanctions
(a) Civil money penalties for violations; criteria for assessment
(1) Subject to paragraph (2), any person who commits a violation of this Act or any regulation under this Act, may be assessed a civil money penalty of not more than $1,000 for each violation.
(2) In determining the amount of any penalty to be assessed under paragraph (1), the Secretary shall take into account (A) the previous record of the person in terms of compliance with this Act and with comparable requirements of the Farm Labor Contractor Registration Act of 1963, and with regulations promulgated under such Acts, and (B) the gravity of the violation.
(b) Administrative review

Add30
(1) The person assessed shall be afforded an opportunity for agency hearing, upon request made within thirty days after the date of issuance of the notice of assessment. In such hearing, all issues shall be determined on the record pursuant to section 554 of title 5, United States Code. If no hearing is requested as herein provided, the assessment shall constitute a final and unappealable order.
(2) If a hearing is requested, the initial agency decision shall be made by an administrative law judge, and such decision shall become the final order unless the Secretary modifies or vacates the decision. Notice of intent to modify or vacate the decision of the administrative law judge shall be issued to the parties within thirty days after the decision of the administrative law judge. A final order which takes effect under this paragraph shall be subject to review only as provided under subsection (c) of this section.
(c) Judicial review
Any person against whom an order imposing a civil money penalty has been entered after an agency hearing under this section may obtain review by the United States district court for any district in which he is located or the United States District Court for the District of Columbia by filing a notice of appeal in such court within thirty days from the date of such order, and simultaneously sending a copy of such notice by registered mail to the Secretary. The Secretary shall promptly certify and file in such court the record upon which the penalty was imposed. The findings of the Secretary shall be set aside only if found to be unsupported by substantial evidence as provided by section 706(2)(E) of title 5, United States Code. Any final decision, order, or judgment of such District Court concerning such review shall be subject to appeal as provided in chapter 83 of title 28.

Add31
(d) Failure to pay assessment; maintenance of action
If any person fails to pay an assessment after it has become a final and unappealable order, or after the court has entered final judgment in favor of the agency, the Secretary shall refer the matter to the Attorney General, who shall recover the amount assessed by action in the appropriate United States district court. In such action the validity and appropriateness of the final order imposing the penalty shall not be subject to review.
(e) Payment of penalties into Treasury of United States
All penalties collected under authority of this section shall be paid into the Treasury of the United States.
29 U.S.C. § 1854 (1985). Private right of action
(a) Maintenance of civil action in district court by aggrieved person
Any person aggrieved by a violation of this chapter or any regulation under this Act by a farm labor contractor, agricultural employer, agricultural association, or other person may file suit in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy and without regard to the citizenship of the parties and without regard to exhaustion of any alternative administrative remedies provided herein.
(b) Appointment of attorney and commencement of action
Upon application by a complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action.

Add32
(c) Award of damages or other equitable relief; amount; criteria; appeal
(1) If the court finds that the respondent has intentionally violated any provision of this Act or any regulation under this Act, it may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation, or other equitable relief, except that (A) multiple infractions of a single provision of this Act or of regulations under this Act shall constitute only one violation for purposes of determining the amount of statutory damages due a plaintiff; and (B) if such complaint is certified as a class action, the court shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000 or other equitable relief.
(2) In determining the amount of damages to be awarded under paragraph (1), the court is authorized to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation.
(3) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28.
29 U.S.C. 1855 (1985). Discrimination prohibited
(a) Prohibited activities
No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, filed any complaint or instituted, or caused to be instituted, any proceeding under or related to this Act, or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such

Add33
worker on behalf of himself or others of any right or protection afforded by this Act.
(b) Proceedings for redress of violations
A migrant or seasonal agricultural worker who believes, with just cause, that he has been discriminated against by any person in violation of this section may, within 180 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this section have been violated, the Secretary shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown, to restrain violation of subsection (a) and order all appropriate relief, including rehiring or reinstatement of the worker, with back pay, or damages.
29 U.S.C. § 1856 (1985). Waiver of rights
Agreements by employees purporting to waive or to modify their rights under this Act shall be void as contrary to public policy, except that a waiver or modification of rights in favor of the Secretary shall be valid for purposes of enforcement of this chapter.
29 U.S.C. § 1861 (1985). Rules and regulations
The Secretary may issue such rules and regulations as are necessary to carry out this Act, consistent with the requirements of chapter 5 of title 5.

Add34
29 U.S.C. § 1862 (1985). Authority to obtain information
(a) Investigation and inspection authority concerning places, records, etc.
To carry out this Act the Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate, and in connection therewith, enter and inspect such places (including housing and vehicles) and such records (and make transcriptions thereof), question such persons and gather such information to determine compliance with this Act, or regulations prescribed under this Act.
(b) Attendance and testimony of witnesses, and production of evidence; subpoena authority
The Secretary may issue subpenas requiring the attendance and testimony of witnesses or the production of any evidence in connection with such investigations. The Secretary may administer oaths, examine witnesses, and receive evidence. For the purpose of any hearing or investigation provided for in this Act, the authority contained in sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49, 50), relating to the attendance of witnesses and the production of books, papers, and documents, shall be available to the Secretary. The Secretary shall conduct investigations in a manner which protects the confidentiality of any complainant or other party who provides information to the Secretary in good faith.
(c) Prohibited activities
It shall be a violation of this Act for any person to unlawfully resist, oppose, impede, intimidate, or interfere with any official of the Department of Labor assigned to perform an investigation, inspection or law enforcement function pursuant to this Act during the performance of such duties.

Add35
29 U.S.C. § 1863 (1985). Agreements with Federal and State agencies
(a) Scope of agreements
The Secretary may enter into agreements with Federal and State agencies (1) to use their facilities and services, (2) to delegate, subject to subsection (b), to Federal and State agencies such authority, other than rulemaking, as may be useful in carrying out this Act, and (3) to allocate or transfer funds to, or otherwise pay or reimburse, such agencies for expenses incurred pursuant to agreements under clause (1) or (2) of this section.
(b) Delegations of authority pursuant to written State plan
Any delegation to a State agency pursuant to subsection (a)(2) shall be made only pursuant to a written State plan which—
(1) shall include a description of the functions to be performed, the methods of performing such functions, and the resources to be devoted to the performance of such functions; and
(2) provides assurances satisfactory to the Secretary that the State agency will comply with its description under paragraph (1) and that the State agency's performance of functions so delegated will be at least comparable to the performance of such functions by the Department of Labor.
29 U.S.C. §1871 (1985). State laws and regulations
This chapter is intended to supplement State law, and compliance with this chapter shall not excuse

Add36
any person from compliance with appropriate State law and regulation.
29 U.S.C. §1872 (1985). Transition provision
The Secretary may deny a certificate of registration to any farm labor contractor, as defined in this Act, who has a judgment outstanding against him under the Farm Labor Contractor Registration Act of 1963 (7 U.S.C. 2041 et seq.), or is subject to a final order of the Secretary under that Act assessing a civil money penalty which has not been paid. Any findings under the Farm Labor Contractor Registration Act of 1963 may also be applicable to determinations of willful and knowing violations under this chapter.

Add37
Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359.
Sec. 101. Control of unlawful employment of aliens.
* * * *
(b) CONFORMING AMENDMENTS TO MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT.—(1) The Migrant and Seasonal Agricultural Worker Protection Act “29 USC 1801 note” (Public Law 97-470) is amended—
(A) by striking out “101(a)(15)(H)(ii)” in paragraphs (8)(B) and (10)(B) of section 3 (29 U.S.C. 1802) and inserting in lieu thereof “101(a)(15)(H)(ii)(a)”;
(B) in section 103(a) (29 U.S.C. 1813(a))—
(i) by striking out “or” at the end of paragraph (4),
(ii) by striking out the period at the end of paragraph (5) and inserting in lieu thereof “; or”, and
(iii) by adding at the end the following new paragraph:
“(6) has been found to have violated paragraph (1) or (2) of section 274A(a) of the Immigration and Nationality Act.”;
(C) by striking out section 106 (29 U.S.C. 1816) and the corresponding item in the table of contents; and
(D) by striking out “section 106” in section 501(b) (29 U.S.C. 1851(b)) and by inserting in lieu thereof “paragraph (1) or (2) of section 274(A)(a) of the Immigration and Nationality Act”.

Add38
(2) The amendments made by paragraph (1) shall apply to the employment, recruitment, referral, or utilization of the services of an individual occurring on or after the first day of the seventh month beginning after the date of the enactment of this Act.
* * * *

Add39
2010 Ariz. Sess. Laws ch. 113, § 7, amending Ariz. Rev. Stat. § 23.212 by adding:
K. It is an affirmative defense to a violation of subsection A of this section that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:
1. The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
2. The law enforcement officers or their agents urged and induced the employer to commit the violation.
3. The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.
L. An employer does not establish entrapment if the employer was predisposed to violate subsection A of this section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

Add40
2010 Ariz. Sess. Laws ch. 113, § 8, amending Ariz. Rev. Stat. § 23.212.01 by adding:
K. It is an affirmative defense to a violation of subsection A of this section that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:
1. The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
2. The law enforcement officers or their agents urged and induced the employer to commit the violation.
3. The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.
L. An employer does not establish entrapment if the employer was predisposed to violate subsection A of this section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

Add41
2010 Ariz. Sess. Laws ch. 113, § 9, amending Ariz. Rev. Stat. § 23.214(A) by adding [in brackets]:
A. After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program [and shall keep a record of the verification for the duration of the employee's employment or at least three years, whichever is longer].

 
 No. 09-115 ================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al.,
Petitioners, vs.
MICHAEL B. WHITING, et al.,
Respondents.
--------------------------------- ♦ ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
--------------------------------- ♦ ---------------------------------
BRIEF FOR THE RESPONDENTS
--------------------------------- ♦ ---------------------------------
TERRY GODDARD Attorney General of Arizona MARY R. O’GRADY* Solicitor General KATHLEEN P. SWEENEY CHRISTOPHER A. MUNNS Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007 (602) 542-8986 SolicitorGeneral@azag.gov *Counsel of Record
Counsel for Respondents Arizona Governor Janice K. Brewer, Department of Revenue Director Gale Garriott, and William Mundell, Registrar of Contractors
[Additional Counsel Listed On Inside Cover]
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

ROGER W. HALL BUCHALTER, NEMER, P.C. 16435 North Scottsdale Road Suite 440 Scottsdale, Arizona 85254 (480) 383-1845 Counsel for Respondents
County Attorneys of Apache, Cochise, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, and Yavapai Counties
EILEEN GILBRIDE JONES SKELTON &
HOCHULI PLC 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 (602) 263-1752 Counsel for Respondent
Richard Romley, Maricopa County Attorney
CHRIS M. ROLL PINAL COUNTY
ATTORNEY’S OFFICE P.O. Box 887 Florence, Arizona 85232 (520) 866-6935 Attorneys for Respondent
James P. Walsh, Pinal County Attorney

MICHAEL JAY LESSLER COCONINO COUNTY
ATTORNEY’S OFFICE 110 East Cherry Street Flagstaff, Arizona 86001 (928) 779-6518 Counsel for Respondent
David W. Rozema, Coconino County Attorney
DANIEL S. JURKOWITZ PIMA COUNTY
ATTORNEY’S OFFICE 32 North Stone Avenue Suite 2100 Tucson, Arizona 85701 (520) 740-5750 Counsel for Respondent
Barbara LaWall, Pima County Attorney
WILLIAM J. KEREKES YUMA COUNTY
ATTORNEY’S OFFICE 250 West 2nd Street Suite G Yuma, Arizona 85364 (928) 817-4300 Attorneys for Respondent
Jon Smith, Yuma County Attorney

i
QUESTIONS PRESENTED
1. Whether federal law expressly preempts Arizona’s law authorizing sanctions against licenses of employers that knowingly or intentionally employ unauthorized aliens when 8 U.S.C. § 1324a(h)(2) specifically preserves state sanctions “through licensing and similar laws.”
2. Whether Arizona’s law authorizing licensing sanctions against an employer is impliedly preempted by federal law even though the sanctions are within the savings clause in 8 U.S.C. § 1324a(h)(2) and Arizona’s law is otherwise consistent with IRCA.
3. Whether Arizona’s statute requiring employers within the State to use the federal E-Verify program to confirm that new employees are legally authorized to work in this country is impliedly preempted because Congress has not mandated the use of this federal program nationally.

ii
PARTIES TO THE PROCEEDING
Petitioners, who were plaintiffs/appellants below, are accurately listed in Petitioners’ brief. Due to changes in state and county officers and pursuant to Rule 35.3 of the Supreme Court Rules, Respondents, who were defendants/appellees below, are now Michael B. Whiting; Kenny Angle; Melvin R. Bowers Jr.; Sam Vederman; Brad Carlyon; Daisy Flores; William Mundell; Gale Garriott; Terry Goddard; David Rozema; Barbara Lawall; Janice K. Brewer; Sheila Polk; Derek D. Rapier; Ed Rheinheimer; George Silva; Jon Smith; Matthew J. Smith; Richard M. Romley; and James P. Walsh.

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................... vi INTRODUCTION ................................................... 1 STATEMENT .......................................................... 3
I. FEDERAL EMPLOYER SANCTIONS AND VERIFICATION REQUIREMENTS........... 3 A. IRCA’s Employer Sanctions .................. 4 B. The I-9 Document Verification Process.... 5 C. The I-9 Process’s Shortcomings and Immigration Reform.............................. 6 D. The Development of E-Verify ................ 8
II. THE LEGAL ARIZONA WORKERS ACT .... 11 A. The Sanction Statute ............................ 13 B. The E-Verify Requirement .................... 17
III. PROCEEDINGS BELOW............................ 18 SUMMARY OF ARGUMENT ................................ 21 ARGUMENT........................................................... 27
I. FEDERAL LAW DOES NOT PREEMPT ARIZONA’S EMPLOYER SANCTIONS LAW .............................................................. 27 A. Federal Law Does Not Expressly Preempt Arizona’s Employer Sanctions Statute ................................................... 30 1. Arizona’s Statute Is Consistent with the Plain Language of IRCA’s Savings Clause ....................................... 30

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TABLE OF CONTENTS – Continued
Page
2. IRCA’s Purpose and History Support the Conclusion that It Does Not Preempt Arizona’s Employer Sanctions Law .................................. 37
B. Arizona’s Employer Sanctions Law Does Not Impliedly Conflict with Federal Law ................................................. 44
1. The State’s Authority to Impose Sanctions that are Against State Licenses Does Not Disrupt the Balance That Congress Struck in IRCA.......... 45
2. Arizona’s Investigations and Adjudications of Claims that an Employer Knowingly or Intentionally Employs Unauthorized Aliens Do Not Conflict With IRCA ................... 46
3. Arizona’s Law Does Not Conflict with Federal Law by Disrupting the Balance that Congress Struck Regarding Possible Discrimination or the Potential Burdens on Employers .............................................. 53
II. FEDERAL LAW DOES NOT PREEMPT ARIZONA’S E-VERIFY REQUIREMENT.... 58
CONCLUSION ....................................................... 67

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TABLE OF CONTENTS – Continued Page
ADDENDUM 8 U.S.C. § 1373 ...................................................... Add1 Arizona Rules of Civil Procedure Rule 65.2 ......... Add3 Arizona Contractors Ass’n v. Candeloria, U.S.
District Court Nos. CV07-02496-PHX-NVW, CV07-02518-PHX-NVW Order (February 19, 2008) ................................................................... Add8

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TABLE OF AUTHORITIES Page
CASES
Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) .......................................................................34
American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003)........................................................57
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) .................................................................34, 48
Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888 (1988) .................................................33
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001) ...........................................65, 66
Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987)........................................................59
Chamber of Commerce v. Napolitano, 648 F. Supp. 2d 726 (D. Md. 2009) ..........................62, 63
Cipollone v. Liggett Group, 505 U.S. 504 (1992) .......45
Crosby v. National Foreign Trade Council, 53 U.S. 363 (2000)........................................................57
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) .......................................................................30
CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987) ..................................................................32
DeCanas v. Bica, 424 U.S. 351 (1976)................ passim
Eli Lilly & Co. v. Sav-on-Drugs, Inc., 366 U.S. 276 (1961) ................................................................33

vii
TABLE OF AUTHORITIES – Continued Page
English v. Gen. Elec. Co., 496 U.S. 72 (1990) ...............................................44, 47, 50, 53, 59
Exxon Mobil Corp. v. Allapatah Servs., Inc., 545 U.S. 546 (2005) .................................................40
Felix v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 986 P.2d 161 (Wyo. 1999)....................57
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) .................................................60
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) .......................................................................45
G.D. Searle & Co. v. Cohn, 455 U.S. 404 (1982)........33
Gade v. Nat’l Solid Wastes Mgm’t Ass’n, 505 U.S. 88 (1992)..........................................................53
Geier v. American Honda Motor Co., 529 U.S. 861 (2000) ..........................................................64, 65
Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................38
Haywood v. Brown, 129 S. Ct. 2108 (2009) ...............48
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984) .......................................33
Hernandez v. Lynch, 167 P.3d 1264 (Ariz. App. 2007) ........................................................................57
Hines v. Davidowitz, 312 U.S. 52 (1941) ...................57
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) .................................................40
Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315 (1935)........................................................37

viii
TABLE OF AUTHORITIES – Continued Page
Incalza v. Fendi N. Am., Inc., 479 F.3d 1005 (9th Cir. 2007) .........................................................57
Jesus M. v. Ariz. Dep’t of Econ. Sec., 53 P.3d 203 (Ariz. App. 2002) ..............................................57
Jimenez v. Quarterman, 129 S. Ct. 681 (2009)..........31
Johnson v. United States, 130 S. Ct. 1265 (2010) .......................................................................31
Lozano v. City of Hazleton, No. 07-3531, 2010 WL 3504538 (3d Cir. Sept. 9, 2010)............34, 38, 46
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .......34, 66
N.Y. State Dep’t of Social Servs. v. Dublino, 413 U.S. 405 (1973)........................................................47
O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994).......47
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)..........................................................41
Pac. Gas & Elec. Co., v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983) .......................................................................58
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)........................................................53
Plyler v. Doe, 457 U.S. 202 (1982) ........................27, 28
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......................................................................34
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) .......................................................................44
Smith v. United States, 508 U.S. 223 (1993) .............31

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TABLE OF AUTHORITIES – Continued Page
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ...........................................................30, 44, 59
State of Arizona v. Danny’s Subway Inc., No. CV2010-005886 (Maricopa Cnty. Super. Ct. filed March 9, 2010) ................................................16
State of Arizona v. Scottsdale Art Factory, LLC, No. CV2009-036359 (Maricopa Cnty. Super. Ct. filed Nov. 18, 2009)............................................16
State of Arizona v. Waterworld Ltd. P’ship, No. CV2009-038848 (Maricopa Cnty. Super. Ct. filed Dec. 21, 2009)..................................................16
Tafflin v. Levitt, 493 U.S. 455 (1990) .........................48 Trs. of Dartmouth College v. Woodward, 17 U.S.
(4 Wheat.) 518 (1819)..............................................32 United States v. Eurodif S.A., 129 S. Ct. 878
(2009) .......................................................................35 United States v. Illinois, No. 07-3261, 2009 WL
662703 (C.D. Ill. March 12, 2009) ..........................62 United States v. Snyder, 852 F.2d 471 (9th Cir.
1988) ........................................................................37
STATUTES 8 U.S.C. § 1231(i) ........................................................28 8 U.S.C. § 1324a(a) .....................................................45 8 U.S.C. § 1324a(a)(1)(A)..............................................4 8 U.S.C. § 1324a(a)(3)...........................................14, 50

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TABLE OF AUTHORITIES – Continued Page
8 U.S.C. § 1324a(b)(1)...................................................5 8 U.S.C. § 1324a(b)(1)(A)(iii) ........................................5 8 U.S.C. § 1324a(b)(2)...................................................5 8 U.S.C. § 1324a(b)(3)...................................................5 8 U.S.C. § 1324a(b)(4)...........................................50, 51 8 U.S.C. § 1324a(b)(5).................................................50 8 U.S.C. § 1324a(d)(2)(F)............................................50 8 U.S.C. § 1324a(e), (f), (g) .........................................46 8 U.S.C. § 1324a(e)(4) ...................................................4 8 U.S.C. § 1324a(f)(1) ...................................................4 8 U.S.C. § 1324a(h)(2) ........................................ passim 8 U.S.C. § 1324a(h)(3) ............................................4, 43 8 U.S.C. § 1324b .........................................................54 8 U.S.C. § 1373 .......................................................7, 29 8 U.S.C. § 1373(c) .................................................14, 48 8 U.S.C. § 1611............................................................56 8 U.S.C. § 1621 .....................................................29, 56 8 U.S.C. § 1621(c) .......................................................33 8 U.S.C. § 1644 .......................................................7, 29 29 U.S.C. § 1871 .........................................................41 42 U.S.C. § 666(a)(16).................................................33 42 U.S.C. § 2000e-2 ....................................................54

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TABLE OF AUTHORITIES – Continued Page
A.R.S. § 10-201............................................................32 A.R.S. § 10-1420..........................................................32 A.R.S. § 10-1422..........................................................32 A.R.S. § 10-1430..........................................................32 A.R.S. § 10-1434..........................................................32 A.R.S. § 10-1503..........................................................33 A.R.S. § 12-2101(B).....................................................15 A.R.S. § 23-211(7) .......................................................46 A.R.S. § 23-211(8) .................................................13, 22 A.R.S. § 23-211(9) .......................................................23 A.R.S. § 23-211(9)(a) .............................................15, 32 A.R.S. § 23-211(9)(b) .............................................15, 32 A.R.S. § 23-211(9)(b)(ii) ..............................................33 A.R.S. § 23-211(9)(c) ...................................................15 A.R.S. § 23-211(11)....................................13, 22, 30, 45 A.R.S. § 23-212......................................................12, 43 A.R.S. § 23-212(A)...........................................45, 49, 55 A.R.S. § 23-212(B)............................................... passim A.R.S. § 23-212(C).................................................14, 55 A.R.S. § 23-212(D) ................................................12, 14 A.R.S. § 23-212(F).................................................13, 14 A.R.S. § 23-212(F)(1)(a) ..............................................16 A.R.S. § 23-212(F)(1)(b) ..............................................16

xii
TABLE OF AUTHORITIES – Continued Page
A.R.S. § 23-212(F)(1)(d) ..............................................16 A.R.S. § 23-212(F)(2) ..................................................16 A.R.S. § 23-212(H) ..............................14, 22, 46, 49, 50 A.R.S. § 23-212(I)................................................passim A.R.S. § 23-212(J) .....................................14, 22, 30, 46 A.R.S. § 23-212(K) ......................................................12 A.R.S. § 23-212.01.................................................12, 43 A.R.S. § 23-212.01(A)............................................45, 49 A.R.S. § 23-212.01(B).......................................... passim A.R.S. § 23-212.01(C)..................................................14 A.R.S. § 23-212.01(D) ...........................................12, 14 A.R.S. § 23-212.01(F)............................................13, 14 A.R.S. § 23-212.01(F)(1)(a) .........................................16 A.R.S. § 23-212.01(F)(1)(b) .........................................16 A.R.S. § 23-212.01(F)(1)(c) .........................................16 A.R.S. § 23-212.01(F)(2) .............................................16 A.R.S. § 23-212.01(H) .........................14, 22, 46, 49, 50 A.R.S. § 23-212-01(I)...........................13, 22, 30, 46, 50 A.R.S. § 23-212.01(J) ................................14, 22, 30, 46 A.R.S. § 23-212.01(K) .................................................12 A.R.S. § 23-213............................................................54 A.R.S. § 23-214......................................................12, 19 A.R.S. § 23-214(A)...........................................12, 17, 63

xiii
TABLE OF AUTHORITIES – Continued Page
A.R.S. § 23-214(B)...........................................12, 17, 64 A.R.S. § 23-214(B)(1) ..................................................17 A.R.S. § 23-214(C).................................................17, 64 A.R.S. § 23-215............................................................12 A.R.S. § 28-3153(D) ....................................................56 A.R.S. § 38-431.06.......................................................55 A.R.S. § 41-1403..........................................................55 A.R.S. § 41-1463(B).....................................................54 A.R.S. § 42-5008..........................................................33 A.R.S. § 44-1406..........................................................55 A.R.S. § 44-1524..........................................................55 2007 Ariz. Sess. Laws ch. 279 ................................8, 12 2008 Ariz. Sess. Laws ch. 152 ..............................12, 64 2010 Ariz. Sess. Laws ch. 113 ....................................12 2006 Colo. Sess. Laws ch. 340......................................8 2006 Ga. Laws 457 .......................................................8 2008 Miss. Laws ch. 312...............................................8 2008 Mo. Laws 85 .........................................................8 2007 N.C. Sess. Laws 259, § 23.1(a) ............................8 2009 Neb. Laws L.B. 403 .............................................8 2007 Okla. Sess. Laws ch. 112 .....................................9 2008 S.C. Acts 280 ........................................................9 2010 Utah Laws ch. 403 ...............................................9

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TABLE OF AUTHORITIES – Continued Page
Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, 117 Stat. 1944 ...........................................................................8
Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Title V, § 547, 123 Stat. 2142...........................................8, 60
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104208, Div. C, § 401, 110 Stat. 3009 § 401(b) ......................................................................8 § 401(c)(1) ..................................................................8 § 402(a) ..............................................................59, 63 § 402(b) ....................................................................13 § 403(a)(4)(B)(iii) .....................................................10 § 403(a)(4)(C)(i) .......................................................10 § 403(a)(4)(C)(i)-(iii) ................................................10 § 404(d) ................................................................8, 60 § 404(h)(1)..........................................................50, 51
Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 § 101 ..........................................................................3 § 101(b)(1)(B).....................................................40, 41 § 115.........................................................................55
Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C. §§ 1801 to 1872 .......................................................39, 40, 41, 42

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TABLE OF AUTHORITIES – Continued Page
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104193, §§ 401-402, 411-412, 110 Stat. 2105 (1996) .........................................................................7
RULES Ariz. R. Civ. P. 65.2 .....................................................15 Ariz. R. Civ. P. 65.2(B) ..........................................15, 49
REGULATIONS 48 C.F.R. § 22.1800-1802 (2009)...................................8
CONSTITUTIONAL PROVISIONS Ariz. Const. art. II, § 22..............................................56
OTHER AUTHORITIES 131 Cong. Rec. 13,590 (1985) .....................................38 143 Cong. Rec. E55 (Extension of Remarks,
daily ed. Jan. 7, 1997) ...............................................6 Bruno, Cong. Research Serv., RL 33973, Unau-
thorized Employment in the United States: Issues and Options (2007).......................................11 Department of Homeland Security Appropriations for 2009, Hearing Before the H. Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 110th Cong. 300 (2008) .......................................................................61

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TABLE OF AUTHORITIES – Continued
Page
Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse, Hearing Before the Subcomm. on Immigr., Citizenship, Refugees, Border Sec., and Int’l Law of the H. Comm. of the Judiciary, 110th Cong. 52 (2008) .....................62
Immigration Enforcement at the Workplace: Learning from the Mistakes of 1986: Hearing Before the Subcomm. on Immigr., Border Sec., and Citizenship of the S. Comm. on the Judiciary, 109th Cong. 13 (2006) (statement of Richard M. Stana, Dir. of Homeland Sec. & Justice, U.S. Gov. Accountability Office)................52
H.R. Rep. No. 99-682(I) (1986) ........................... passim
H.R. Rep. No. 104-469(I) (1996) ...................................6
Idaho Exec. Order 2009-10...........................................9
Minn. Exec. Order 08-01 ..............................................9
R.I. Exec. Order 08-01 ..................................................9
S. Rep. No. 104-249 (1996) .....................................6, 59
Temple University Institute for Survey Research and Westat Findings of the Basic Pilot Program Evaluation (2002) ..........................................11
U.S. Citizenship & Immigration Services, I am an Employer, How do I . . . use E-Verify (2008) .........................................................................9
U.S. Citizenship & Immigration Servs., E-Verify Memorandum of Understanding for Employers (2009) ...................................................................9, 10

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TABLE OF AUTHORITIES – Continued
Page
U.S. Citizenship & Immigration Servs., E-Verify User Manual for Employers (Sept. 2010) ...........9, 10
U.S. Gen. Accounting Office, GAO/GDD 90-62, Immigration Reform: Employer Sanctions and the Question of Discrimination (1990) ..............6
U.S. Gen. Accounting Office, PAD 80-22, Illegal Aliens: Estimating Their Impact on the United States (1980) .........................................................3
Wasem, Cong. Research Serv., RL 33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986 (2009)................6, 7, 11
Webster’s Third New International Dictionary (1993) .................................................................31, 32
Westat Evaluation of the E-Verify Program: USCIS Synopsis of Key Findings and Program Implications (2010) ...................................9, 11
Westat, Findings of the Web Basic Pilot Evaluation (2007) ....................................................... 11, 60
Westat, Findings of the E-Verify Program Evaluation (2009) ......................................... 8, 11, 61

1
INTRODUCTION
The Legal Arizona Workers Act (the “Act”) simply attempts to ensure that workers who are hired by Arizona employers are legally authorized to work in this country. This Court recognized more than thirty years ago in DeCanas v. Bica, 424 U.S. 351, 357 (1976), that such legislation is “within the mainstream of [State] police power” and acknowledged that an unlawful work force can significantly impact wages and working conditions for all workers. Arizona’s law addresses these problems by (1) providing that the State licenses of employers that knowingly or intentionally employ unauthorized aliens may be suspended or revoked, and (2) requiring all employers to use the federal E-Verify program to confirm that the people they hire are legally authorized workers.
Arizona’s employer sanction scheme does not conflict with federal law. When Congress enacted federal employer sanctions in 1986 as part of the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359, it specifically preserved State authority to impose sanctions through licensing and similar laws. Arizona’s law is crafted to fall within that savings clause and is modeled after IRCA to ensure that it is otherwise consistent with federal requirements. The employer sanctions law imposes no new obligation on employers, but merely authorizes the suspension or revocation of State-issued business licenses of employers that knowingly or intentionally employ unauthorized aliens – conduct that has been illegal in this country since IRCA’s enactment in

2
1986. Because Arizona’s law falls within IRCA’s savings clause and is otherwise consistent with federal law, it is not preempted.
Federal law also does not preclude Arizona from requiring employers in that State to use the federal E-Verify program. Although Congress has not made the program’s use mandatory on a nationwide basis, federal law does not prohibit a State from making its use mandatory for employers within its boundaries. Congress developed E-Verify to have a more effective employee verification system than the I-9 process that was created when Congress enacted IRCA in 1986. Requiring employers within Arizona to use E-Verify in a manner consistent with the program’s purpose does not conflict with federal law. Rather, it furthers the interest of both the State and the federal governments in having an effective employee verification system and a lawful work force in this country.
The Ninth Circuit correctly concluded that federal law does not preempt Arizona’s licensing sanctions and E-Verify requirement, and this Court should affirm that decision.
--------------------------------- ♦ ---------------------------------

3
STATEMENT
I. FEDERAL EMPLOYER SANCTIONS AND VERIFICATION REQUIREMENTS.
Until Congress enacted IRCA, federal immigration law did not prohibit employers from hiring unauthorized aliens. See DeCanas v. Bica, 424 U.S. at 360 (noting that immigration law showed at best “a peripheral concern with employment of illegal entrants”). In contrast, various States had laws prohibiting the employment of unauthorized aliens within their borders. See U.S. Gen. Accounting Office, PAD 80-22, Illegal Aliens: Estimating Their Impact on the United States, 46, tbl. 12 (1980).
In its 1976 DeCanas decision, this Court recognized that regulating the employment of unauthorized aliens came within the States’ traditional police power and that federal law had not displaced this authority. DeCanas, 424 U.S. at 357. The Court observed that “[S]tates possess broad authority under their police powers to regulate the employment relationship to protect workers within the state,” and that regulating the employment of unauthorized aliens fell within that power. Id. at 356. Ten years after DeCanas affirmed the States’ police power to sanction those who employ unauthorized aliens within State borders, Congress enacted IRCA, which made significant changes to the nation’s immigration laws and included the first federal law penalizing employers who hire unauthorized aliens. IRCA § 101 (codified as 8 U.S.C. § 1324a).

4
A. IRCA’s Employer Sanctions.
Under IRCA, employers cannot hire, recruit or refer for a fee “for employment in the United States an alien knowing the alien is an unauthorized alien.”1 8 U.S.C. § 1324a(a)(1)(A). IRCA’s employer sanctions provision created a federal administrative hearing process to determine violations and impose civil penalties, which consist mainly of monetary fines. 8 U.S.C. § 1324a(e)(4). IRCA also established criminal penalties for employers who have a pattern or practice of unlawfully employing unauthorized aliens. 8 U.S.C. § 1324a(f)(1). Congress specifically addressed State laws concerning employer sanctions by providing that, “[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).
Congress intended employer sanctions to reduce illegal immigration. “Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of
1 IRCA defines an “unauthorized alien” as an alien who at the time of employment is not “either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3).

5
employment.” H.R. Rep. No. 99-682(I), at 46 (1986), reprinted in U.S.C.C.A.N. 5641, 5650.
B. The I-9 Document Verification Process.
IRCA also created a document-based verification process (called the “I-9” process after the required verification form) in which the employer examines certain identification documents specified by law and then attests to examining them on the I-9 document. 8 U.S.C. § 1324a(b)(1). The employer is not required to determine whether the identification documents are genuine, but may rely on a document if it “reasonably appears on its face to be genuine.” 8 U.S.C. § 1324a(b)(1)(A)(iii). The employee must also sign the I-9 form attesting that he or she is either a United States citizen or national or is otherwise authorized to work in the United States. 8 U.S.C. § 1324a(b)(2). The employer must then retain the verification form for a specified amount of time and make it available for inspection by various federal agencies. 8 U.S.C. § 1324a(b)(3). This verification process was an important component of the employer sanctions program: “[A]n effective verification procedure, combined with an affirmative defense for those who in good faith follow the procedure, is essential. Otherwise, the system cannot both be effective and avoid discrimination.” H.R. Rep. No. 99-682(I) at 60.

6
C. The I-9 Process’s Shortcomings and Immigration Reform.
In the decade after IRCA’s enactment, it became clear that document fraud had undermined the I-9 process. As early as 1990, the General Accounting Office observed that “[w]holly apart from their impact on discrimination, the prevalence of counterfeit and fraudulently obtained documents threatens the security of the IRCA’s verification system for prohibiting unauthorized alien employment.” U.S. Gen. Accounting Office, GAO/GDD 90-62, Immigration Reform: Employer Sanctions and the Question of Discrimination 76 (1990). In 1996, a House committee reported that IRCA’s employer verification system and sanctions were “riddled with document fraud, and ineffective in deterring both the hiring of illegal aliens and the illegal entry of aliens seeking employment. . . .” H.R. Rep. No. 104-469(I), at 119 (1996); see also S. Rep. No. 104-249, at 4 (1996) (observing that “as was feared – there is widespread fraud in [the I-9 process’s] use”); see also 143 Cong. Rec. E55 (Extension of Remarks, daily ed. Jan. 7, 1997) (statement of Rep. McCollum) (“The primary reason employer sanctions are not working today is the rampant fraud in the documents to prove eligibility to work, specifically the Social Security card.”)
And the number of undocumented immigrants was rising. In 1986, an estimated 3.2 million unauthorized aliens lived in the United States. Ruth Ellen Wasem, Cong. Research Serv., RL 33874, Unauthorized Aliens Residing in the United States: Estimates

7
Since 1986 at 3 (2009). Although the number dropped to 1.9 million following IRCA’s enactment, it rose again to 5.8 million in 1996, nearly doubling the preIRCA number. Id.
As a result of these concerns, Congress again addressed immigration-related issues in 1996. Landmark welfare reform legislation, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, significantly limited access to public benefits based on immigration status. Pub. L. No. 104-193, §§ 401, 402, 411-412, 110 Stat. 2105, 2261-2265, 2268-2270 (1996). Congress also mandated increased State and federal cooperation regarding immigration enforcement. Two new statutes, 8 U.S.C. §§ 1644 and 1373, required State and federal officials to exchange information about immigration status.
Congress also began the process of improving the employer verification system in 1996 by approving three pilot programs as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Pub. L. No. 104-208, Div. C, § 401, 110 Stat. 3009-546, 655. Congress mandated that four goals guide the pilot program’s development and operation: (1) ensuring maximum reliability and ease of use for employers while protecting the underlying information’s privacy and security; (2) responding to all inquiries concerning an employee’s work authorization from employers participating in the pilot program; (3) preventing any unauthorized disclosure of personal information; and (4) ensuring that the verification system did not cause unlawful discriminatory

8
practices based on national origin or citizenship. IIRIRA, § 404(d). Of the three pilot programs authorized by that law, only the Basic Pilot program (now called “E-Verify”) remains in operation today. Westat, Findings of the E-Verify Program Evaluation (2009) (“2009 Westat Report”).
D. The Development of E-Verify.
The history of E-Verify has been one of continuous improvement and expansion. When authorized in 1996, the Basic Pilot program was available in five of the seven States that had the highest populations of unauthorized aliens. IIRIRA, § 401(c)(1). Congress initially authorized the program for only four years (IIRIRA, § 401(b)), but it has consistently extended the program’s life.2 It expanded the program in 2003, making it available in all fifty States. Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, 117 Stat. 1944 (2003). In 2008, the federal government began requiring any entity that maintained or applied for federal contracts to use E-Verify. 48 C.F.R. § 22.1800-1802 (2009). And beginning in 2006, States began requiring employers to use E-Verify.3 In response to these changes, U.S.
2 Department of Homeland Security Appropriations Act, Pub. L. No. 111-83, § 547, 123 Stat. 2177 (extending E-Verify to Sept. 30, 2012).
3 2007 Ariz. Sess. Laws ch. 279; 2006 Colo. Sess. Laws ch. 340; 2006 Ga. Laws 457; 2008 Miss. Laws ch. 312; 2008 Mo. Laws 85; 2009 Neb. Laws L.B. 403; 2007 N.C. Sess. Laws 259,
(Continued on following page)

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Citizenship and Immigration Services’ (USCIS) website directs employers to consult State law to determine if their State requires them to use E-Verify. I am an Employer, How do I . . . use E-Verify at 1 (2008). USCIS also contracted with the University of Arizona’s Center of Excellence for Border Security and Immigra-tion and the Federal Consulting Group “to examine the E-Verify program in a mandatory environment (Arizona).” Westat Evaluation of the EVerify Program: USCIS Synopsis of Key Findings and Program Implications 2 (2010) (“USCIS Synopsis”).
E-Verify allows employers to ensure that they are hiring authorized workers by electronically comparing the identification and authorization information that employees provide with information contained in federal Social Security Administration (“SSA”) and Department of Homeland Security (“DHS”) databases. To participate in E-Verify, the employer must sign a memorandum of understanding that governs the system’s operation. U.S. Citizenship & Immigration Servs., E-Verify User Manual for Employers (Sept. 2010) (“User Manual”); U.S. Citizenship & Immigration Servs., E-Verify Memorandum of Understanding for Employers (2009) (“MOU”). After enrolling in E-Verify, employers must still complete the I-9 verification process, but they also submit the verification form information through a secure internet
§ 23.1(a); 2007 Okla. Sess. Laws ch. 112; 2008 S.C. Acts 280; 2010 Utah Laws ch. 403; Idaho Exec. Order 2009-10; Minn. Exec. Order 08-01; R.I. Exec. Order 08-01.

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connection to be compared with the SSA and DHS databases. User Manual at 13-16.
If the information that the employer submits matches the records in the federal databases, EVerify immediately notifies the employer that the individual is employment authorized. If the information that the employee has provided does not match the information in the federal databases, EVerify issues a tentative nonconfirmation. MOU Art. III. Before issuing a tentative nonconfirmation, however, E-Verify will ask the employer to confirm that the information submitted is accurate to avoid inaccurate results based on typographical errors. User Manual at 17. If a tentative nonconfirmation is issued, the employee is notified and given an opportunity to contact SSA or DHS to resolve any potential problem. Id. at 27-30 (SSA), 35-38 (DHS). Until there is a final determination, the employer may not terminate the employee for being unauthorized. IIRIRA, § 403(a)(4)(B)(iii). Upon receipt of a final nonconfirmation, an employer may terminate the employee. IIRIRA, § 403(a)(4)(C)(i). An employer who chooses not to terminate the employee must inform DHS and is subject to a rebuttable presumption of having knowingly hired an unauthorized alien. IIRIRA, § 403(a)(4)(C)(i)-(iii).

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E-Verify has been the subject of a number of independent evaluations.4 Most recently, a 2009 independent evaluation concluded that E-Verify was 95.9% accurate in its initial determination regarding employment authorization. USCIS Synopsis at 4; 2009 Westat Report at 116. E-Verify participants reported minimal costs to participate and were generally satisfied with the program. 2009 Westat Report at 169. USCIS has called E-Verify “the best available tool to help employers determine whether their employees are authorized to work in the United States.” USCIS Synopsis at 1.
II. THE LEGAL ARIZONA WORKERS ACT.
Over the years, the nation’s unauthorized alien population has continued to increase. By 2005, there were approximately 7.2 million unauthorized workers in the United States, representing about five percent of the labor force. Andorra Bruno, Cong. Research Serv., RL 33973, Unauthorized Employment in the United States: Issues and Options 1 (April 20, 2007). And by 2007, the number of unauthorized aliens reached an estimated 11.8 to 12.5 million people. Wasem at 3. According to the district court, unauthorized aliens in Arizona’s work force “dr[ove] down wages for competing authorized workers.” Add19.
4 2009 Westat Report; Westat, Findings of the Web Basic Pilot Evaluation (2007) (“2007 Westat Report”); Temple University Institute for Survey Research and Westat, Findings of the Basic Pilot Program Evaluation (2002).

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In response, on July 2, 2007, Arizona’s Governor signed into law the Legal Arizona Workers Act (“the Act”). (Joint Appendix [“JA”] 402-04.) The Act authorized sanctions against the licenses of Arizona employers who knowingly or intentionally employed unauthorized aliens, A.R.S. §§ 23-212, -212.01,5 and required Arizona employers to use E-Verify, A.R.S. § 23-214. 2007 Ariz. Sess. Laws ch. 279, § 2. Implementation of employer sanctions and the E-Verify requirement began January 1, 2008. A.R.S. §§ 23212(D), -212.01(D) (limiting sanctions to conduct occurring after January 1, 2008); -214(A) (requiring E-Verify use as of January 1, 2008).
As the Legislature required, before October 1, 2007, the Arizona Department of Revenue mailed notice to employers of the new E-Verify requirement and employer sanctions. 2007 Ariz. Sess. Laws ch. 279, § 3. JA 404-08. Beginning January 1, 2008,
5 As originally enacted, the Act contained sanction provisions in a single provision (A.R.S. § 23-212). 2007 Ariz. Sess. Laws ch. 279, § 2. In 2008, the Legislature enacted legislation that amended the Act in several ways. 2008 Ariz. Sess. Laws ch. 152. This legislation separated knowing violations and intentional violations into separate provisions (A.R.S. §§ 23-212, -212.01); provided that businesses would forfeit government economic development incentives if they did not use E-Verify (A.R.S. § 23-214(B)); and created a new voluntary employer compliance program (A.R.S. § 23-215). Id. The Legislature further amended the sanction statute in 2010 to add an affirmative defense for entrapment (A.R.S. §§ 23-212(K), -212.01(K)) and to add a record-retention requirement for employee verifications (A.R.S. § 23-214). 2010 Ariz. Sess. Laws ch. 113, §§ 7-9.

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Arizona’s Attorney General and county attorneys began investigating any complaints that they received concerning the employment of unauthorized aliens.
A. The Sanction Statute.
The Act’s employer sanctions provision was drafted to ensure consistency with federal law. For example, the Act:
• incorporates the IRCA definition of “unauthorized alien,” A.R.S. § 23-211(11);
• requires that the phrase “knowingly employ an unauthorized alien” “be interpreted consistently with 8 [U.S.C.] § 1324a and any applicable federal rules and regulations,” A.R.S. § 23-211(8);
• authorizes sanctions only against employer licenses so that the sanctions are within IRCA’s savings clause that preserved State authority to impose sanctions “through licensing and similar laws,” A.R.S. § 23212(F), -212.01(F); 8 U.S.C. § 1324a(h)(2);
• incorporates the federal rebuttal presumption that the employer did not knowingly or intentionally employ an unauthorized alien if the employer verified the employee’s employment authorization through the federal E-Verify program, A.R.S. §§ 23-212(I), -212.01(I); IIRIRA, § 402(b), Pub. L. No. 104208, Div. C., 110 Stat. 3009-546, 656-57;

14
• replicates the federal affirmative defense for employer sanctions if the employer “complied in good faith” with the I-9 system, A.R.S. §§ 23-212(J), -212.01(J); 8 U.S.C. § 1324a(a)(3).
It also establishes requirements for processing complaints. The Arizona’s Attorney General and county attorneys may investigate complaints that an employer has knowingly or intentionally employed an unauthorized alien. A.R.S. §§ 23-212(B), -212.01(B). It prohibits authorities from investigating complaints based “solely on race, color or national origin.” Id. In investigating and prosecuting complaints under the sanction statutes, State officials must rely on information obtained from the federal government pursuant to 8 U.S.C. § 1373(c) to establish the employee’s immigration status. A.R.S. §§ 23-212(B), (H); -212.01(B), (H). Although the Attorney General has joint investigative authority, only county attorneys may bring enforcement actions under the sanction statute. A.R.S. §§ 23-212(D), -212.01(D). If an investigation shows that a complaint is not frivolous, the investigating official must notify federal immigration authorities and the local law enforcement agency of the unauthorized alien, and in the case of a complaint filed with the Attorney General, must notify the appropriate county attorney. A.R.S. §§ 23-212(C), -212.01(C).
A county attorney must file an action in State court to impose sanctions against an employer. A.R.S. §§ 23-212(F), -212.01(F). These actions are governed generally by the Arizona Rules of Civil Procedure and

15
specifically by Rule 65.2, which the Arizona Supreme Court adopted to address the requirements of the sanction statutes. These rules require that the complaint identify the licenses at issue and specify the “facts alleged to show that one or more employees are unauthorized aliens” and the “facts alleged to show that the employer intentionally or knowingly employed one or more unauthorized aliens.” Ariz. R. Civ. P. 65.2(B).
The Act defines “license” as “any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this state.” A.R.S. § 23-211(9)(a). It includes in the definition articles of incorporation, certificates of partnership, foreign corporation registrations, and transaction privilege (sales tax) licenses, but excludes from it licenses issued under title 45 (governing water), title 49 (governing the environment), and any professional license. A.R.S. § 23-211(9)(b), (c). Employers found to have violated the sanction statutes have the same appeal rights and other procedural protections that exist for other civil actions. A.R.S. § 12-2101(B).
Arizona’s sanction statute creates a tiered system of licensing penalties for adjudicated violations. For a first knowing violation, the court may, in its discretion, suspend the business licenses for up to ten days after considering various factors, such as the number of unauthorized aliens employed, the duration of the violation, prior misconduct, and the degree of harm

16
resulting from the violation. A.R.S. § 23-212(F)(1)(d). A first knowing violation also requires a three-year probationary term during which the employer must file quarterly reports for all new hires. A.R.S. § 23212(F)(1)(b). A first intentional violation results in the mandatory suspension of an employer’s business licenses for a minimum of ten days and a probationary period of five years. A.R.S. § 23-212.01(F)(1)(b), (c). In addition, for any first violation, the employer is required to terminate the employment of all unauthorized aliens and file an affidavit indicating that the employer has taken this action within three days of the court’s order. A.R.S. §§ 23-212(F)(1)(a); -212.01(F)(1)(a). If the employer does not file the affidavit with the court in three days, the employer’s licenses are suspended until the affidavit is filed. Id. For a second knowing or intentional violation during the probation period, business licenses are permanently revoked. A.R.S. §§ 23-212(F)(2); -212.01(F)(2).6
6 As of this date, only three enforcement actions have been filed against Arizona employers under the Act. See State of Arizona v. Waterworld Ltd. P’ship, No. CV2009-038848 (Maricopa Cnty. Super. Ct. filed Dec. 21, 2009) (resolved by consent judgment); State of Arizona v. Danny’s Subway Inc., No. CV2010-005886 (Maricopa Cnty. Super. Ct. filed March 9, 2010) (resolved by consent decree); State of Arizona v. Scottsdale Art Factory, LLC, No. CV2009-036359 (Maricopa Cnty. Super. Ct. filed Nov. 18, 2009) (pending).

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B. The E-Verify Requirement.
To help prevent the employment of unauthorized aliens, Arizona also requires employers to use the federal government’s E-Verify program to confirm that newly hired employees are authorized to work in this country. A.R.S. § 23-214(A). Initially, the only consequence for failing to verify the employment authorization status of new hires through E-Verify was the loss of the rebuttable presumption set forth in A.R.S. § 23-212(I). In 2008, the Legislature amended the verification statute so that a business must participate in E-Verify to receive economic development incentives from government entities. A.R.S. § 23214(B). An employer applying for an economic development incentive must provide proof to the government entity that it has enrolled and is participating in E-Verify. Id. If the government entity determines that an employer failed to participate in E-Verify after receiving an economic development incentive, the employer may be required to repay all the monies that it has received. Id. An “economic development incentive” includes “any grant, loan or performancebased incentive from any government entity that is awarded after September 30, 2008,” but it does not include “any tax provision under title 42 or 43.” A.R.S. § 23-214(B)(1). The names of Arizona’s employers participating in E-Verify are available on the Arizona Attorney General’s Office website, and that list is updated quarterly. A.R.S. § 23-214(C).

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III. PROCEEDINGS BELOW.
On August 29, 2007, the Petitioners filed the first of two consolidated actions challenging the Act in the District of Arizona. JA 223-66; 267-85. After the district court dismissed the first cases based on lack of jurisdiction because the State defendants lacked authority to enforce the Act, Pet. App. 126a, the Petitioners re-filed their complaints adding the county attorneys as defendants and asserting the same legal challenges. JA 291-344; 345-66.
On February 7, 2008, the district court entered judgment in Respondents’ favor. Pet. App. 94a. It found that IRCA did not expressly preempt the sanction statute. “The Act’s definition of license does not depart from common sense or traditional understandings of what is a license. . . . It therefore falls within the plain meaning of IRCA’s savings clause” preserving State authority to impose sanctions through licensing and similar laws. Pet. App. 62a. The district court also found that the State could impose sanctions without a prior federal adjudication because IRCA’s plain language contained no such restriction. Pet. App. 64a. It further disagreed with Petitioners’ narrow interpretation of the savings clause, noting that “Congress passed employer sanctions provisions that expressly preempt only some state powers and expressly preserve other state powers. It allowed complementary enforcement by States through ‘licensing and similar laws.’ ” Pet. App. 73a. It also found that the sanction statute did not conflict with Congress’s purposes and objectives because it did not

19
impose stricter standards of conduct than federal law did or undermine the federal adjudication system. Pet. App. 78a-80a.
The district court also found that the verification statute did not conflict with federal law. It noted that IIRIRA prohibited only the Attorney General (now the Secretary of DHS) from requiring the use of E-Verify and that without more, this prohibition does not “raise an inference that Congress intended to prevent the states from mandating use of the system in their licensing laws.” Pet. App. 83a. The district court also concluded that A.R.S. § 23-214’s requirement of using E-Verify did not create an obstacle to Congress’s purposes and objectives because “[f]ederal policy encourages the utmost use of E-Verify” and the Act “effectively increases employer use of the system with no evidence of surpassing logistical limits.” Pet. App. 85a.
On September 17, 2008, the Ninth Circuit issued a decision affirming the district court, Pet. App. 26a, which it then amended on March 9, 2009, Pet. App. 1a. Citing this Court’s decision in DeCanas, the court concluded that regulating the employment of unauthorized aliens was within the States’ historic police power and was therefore subject to a presumption against preemption absent clear preemptive intent by Congress. Pet. App. 15a-16a. The court then turned to Petitioners’ two preemption claims.

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The court first found that IRCA did not preempt the sanction statute because the Act’s “broad definition of ‘license’ is in line with the terms traditionally used and falls within the savings clause.” Pet. App. 17a. It did not find any support for Petitioners’ contention that the savings clause encompassed “only licenses to engage in specific professions, such as medicine or law, and not licenses to conduct business.” Id. And it disagreed with Petitioners’ claim that a federal adjudication was a prerequisite to State sanctions because IRCA’s legislative history clearly recognized the ability of a State to “condition an employer’s ‘fitness to do business’ on hiring documented workers.” Pet. App. 18a.
With regard to E-Verify, the court found that the verification statute did not conflict with federal law and agreed with the district court’s conclusion that “while Congress made participation in E-Verify voluntary at the national level, that did not in and of itself indicate that Congress intended to prevent states from making participation mandatory.” Pet. App. 20a. Congress did not expressly preempt State activity in the area of employee verification, although it demonstrated that it knew how to do so in enacting the preemption clause in IRCA’s sanction provisions. Id. Finding no express preemption, the court examined whether the verification statute constituted an obstacle to accomplishing Congress’s full purposes and objectives and decided that it did not: “Though Congress did not mandate E-Verify, Congress plainly envisioned and endorsed an increase in its usage.

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The Act’s requirement that employers participate in E-Verify is consistent with and furthers this purpose, and thus does not raise conflict-preemption concerns.” Pet. App. 21a. The Petitioners requested rehearing en banc, which the court denied on March 9, 2009. JA 146, 166, 184, 202, 220.
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SUMMARY OF ARGUMENT
1. Although the federal government is responsible for regulating immigration, there remains room for State legislation that touches on immigration issues. This is particularly true in the area of employment. As this Court recognized in DeCanas, “[S]tates possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” 424 U.S. at 356. Employment of unauthorized aliens may deprive citizens and authorized noncitizens of jobs and depress wages and working conditions. Id. Because State laws addressing unauthorized workers are “within the mainstream of [State] police power,” id., federal law preempts those laws only if “the clear and manifest purpose of Congress would justify that conclusion.” Id. at 357 (internal quotation marks omitted).
Congress recognized the need to preserve State authority to address unauthorized employment when it enacted IRCA in 1986. In IRCA, Congress approved the first federal sanctions against employers that hire

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unauthorized aliens. Although it preempted State authority to impose civil and criminal sanctions against employers, it specifically preserved State authority to impose sanctions “through licensing and similar laws.” 8 U.S.C. § 1324a(h)(2). This division of authority respects the State’s traditional responsibility over State licenses but gives the federal government the exclusive authority to impose other types of sanctions against employers who hire unauthorized aliens.
Arizona’s law authorizing the suspension and revocation of State licenses of an employer that has knowingly or intentionally employed unauthorized aliens fits easily within the savings clause that Congress enacted in IRCA. Arizona’s law is also otherwise consistent with IRCA’s requirements. It adopts the federal definition of unauthorized alien, A.R.S. § 23-211(11), relies on the federal scienter requirement, A.R.S. § 23-211(8), and incorporates defenses for the use of E-Verify and good faith compliance with the I-9 procedures that are in federal law, A.R.S. §§ 23-212(I), (J), -212.01(I), (J). It also requires that State officials rely on information from the federal government to establish whether a person is an unauthorized alien. A.R.S. § 23-212(B), (H), -212.01(B), (H).
Arizona’s law includes measures to prevent abuses. Law enforcement officials are responsible for any investigations, and no complaint based on “race, color or national origin” may be investigated. A.R.S. §§ 23212(B), -212.01(B). In addition, criminal penalties are

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established for “false and frivolous” complaints. Id. Sanctions are imposed in civil proceedings in State court where the parties have the usual procedural protections and appeal rights.
The Court of Appeals correctly concluded that IRCA does not preempt Arizona’s employer sanctions law. IRCA does not expressly preempt Arizona’s sanctions law because it imposes sanctions that are within IRCA’s savings clause for sanctions through “licensing and similar laws.” 8 U.S.C. § 1324a(h)(2). Arizona’s law defines license to include various forms of permission or authorization that are “required by law and that [are] issued by any agency for operating a business in this state.” A.R.S. § 23-211(9). It specifically includes articles of incorporation, certificates of partnership, and authority for foreign entities to transact business in the State. Id. Each of them constitutes “a right or permission granted in accordance with law by a competent authority to engage in some business or occupation” – the definition of license accepted by all parties in this case.
Although Petitioners complain that Arizona’s definition of license is too broad to fit within IRCA’s savings clause, as the court of appeals correctly concluded, Arizona’s law is consistent with the traditional definition of “license.” Pet. App. 40a. Nor does Arizona’s law fall outside the savings clause because it addresses the suspension and revocation of licenses but not the issuance of licenses. Sanctions through licensing laws logically includes the suspension and revocation of State licenses, and a State need not

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address issuance and revocation in the same statute to fall within the savings clause.
Petitioners propose various restrictions on State authority to suspend and revoke State licenses, but none of them are supported by IRCA’s text. The savings clause is not, for example, limited to specific types of licenses such as those for farm labor contractors. Nor does IRCA require a federal adjudication against an employer for IRCA violations before a State can take action against that employer’s license.
The legislative history also does not support Petitioners’ effort to restrict the plain language of IRCA’s savings clause. They argue that a House Report supports requiring a prior federal adjudication as a prerequisite to State sanctions against a licensee. It says that IRCA does not intend to preempt State laws that “require [the] licensee . . . to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. No. 99-682(I) at 58. It also refers to “lawful state or local processes,” for the suspension or revocation of licenses. The Report does not support Petitioners’ attempt to limit the reach of the savings clause. Even if the Report could be read to support Petitioners, principles of statutory construction preclude a House Report from altering the plain language that Congress enacted.
2. IRCA also does not preempt the sanctions statute under implied conflict preemption principles. Although IRCA established a federal enforcement

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scheme, the existence of a federal enforcement scheme for federal sanctions does not preclude State enforcement actions for sanctions within the savings clause. To the contrary, imposing such a requirement undermines the savings clause by substantially restricting a State’s ability to impose sanctions against its licensees when it deems appropriate. It also intrudes on State sovereignty by preventing a State enforcement against a State licensee unless the federal government has completed its own enforcement action against that entity. There is no evidence Congress intended such a significant limitation on State authority.
Arizona’s law does not disrupt the balance that Congress struck when it enacted IRCA. The savings clause for sanctions through “licensing and similar laws” is part of the balance that Congress struck. Arizona’s law also does not undermine IRCA’s protections against discrimination. While Arizona did not include an anti-discrimination remedy, it does not undermine any of the protections available under State and federal law. It also does not create new burdens for employers that conflict with IRCA. Although Arizona provides significant penalties for knowingly or intentionally employing unauthorized aliens, they are sanctions that Congress preserved for the State through the savings clause.
3. Arizona’s E-Verify requirement is also not preempted. Although E-Verify is not mandatory nationally, and Congress expressly prohibited the Secretary of the DHS from requiring its use, Congress

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has not addressed whether States may require employers within their boundaries to use the program. Implied conflict preemption principles do not preclude a State E-Verify requirement. As an initial matter, it is not impossible to comply with both a State E-Verify requirement and federal law. An employer who uses E-Verify to comply with Arizona law would not be in violation of federal law.
Second, requiring E-Verify does not pose an obstacle to federal goals. Congress directed the development of this electronic verification system in direct response to the failures of the I-9 process. The Congressional objective was to develop a more effective verification system to help ensure that employers do not hire unauthorized workers. Requiring employers to use the program should advance these goals by increasing participation. As the United States amicus brief indicated, the increased workload does not burden the federal program, which can handle the additional workload from the State E-Verify requirements.
The consequences for an Arizona employer who does not participate in E-Verify are similar to the consequences under federal law. Arizona law provides no direct sanction, but the employer loses the benefit of a rebuttable presumption in an enforcement action, and the employer cannot receive government contracts or other economic incentives from governmental entities. This type of requirement does not create an obstacle to the federal goals of the E-Verify program.

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For these reasons, the Court of Appeals decision correctly concluded that Arizona’s employer sanctions law and E-Verify requirement are not preempted.
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ARGUMENT
I. FEDERAL LAW DOES NOT PREEMPT ARIZONA’S EMPLOYER SANCTIONS LAW.
Although the “power to regulate immigration is unquestionably exclusively a federal power,” State laws that touch on immigration issues are not per se preempted. DeCanas, 424 U.S. at 354. States may enact legislation that affects immigrants and immigrationrelated matters provided they comply with the relevant constitutional principles. See, e.g., Plyler v. Doe, 457 U.S. 202, 226 (1982) (recognizing that a State may “borrow” the federal classification concerning who is not legally in this country and analyzing the State’s use of this classification under equal protection requirements); DeCanas, 424 U.S. at 355 (applying preemption analysis to determine constitutionality of California law prohibiting employment of unauthorized workers).
While delineating the parameters of State authority, this Court has recognized the important State interests that the problem of illegal immigration affects. In DeCanas, this Court acknowledged that State legislation concerning the employment of unauthorized aliens was in the “mainstream of [state] police power.” 424 U.S. at 356. The Court recognized

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that illegal immigration may “deprive[ ] citizens and legally admitted aliens of jobs . . . [and] depress wage scales and working conditions of citizens and legally admitted aliens” and acknowledged the States’ interest in addressing “local problems” that may result from a work force that is not authorized to work in this country. Id. at 356-57. In Plyler v. Doe, this Court again acknowledged the State’s interest in immigration-related legislation:
[a]lthough the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. See DeCanas v. Bica, 424 U.S. at 354-56.
Plyler, 457 U.S. at 228 n.23.
Congress has also recognized the impact of unlawful immigration on States and the important role States play in addressing its consequences. For example, Congress has enacted legislation to reimburse States for the costs of incarcerating unlawful immigrants who have been imprisoned for violations of State criminal laws, 8 U.S.C. § 1231(i),

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to generally preclude immigrants who are not lawfully within this country from receiving State and local public benefits, 8 U.S.C. § 1621, and to mandate federal and State cooperation and communication regarding immigration issues, 8 U.S.C. §§ 1373, 1644.
IRCA, too, reflects Congress’s recognition of the continuing role States play in this area. In adopting the first-ever federal law penalizing employers for hiring unauthorized aliens, Congress could have expressly preempted States from that entire field. Congress likewise could have expressly preempted States from investigating and adjudicating employers’ alleged hiring of unauthorized aliens. And Congress could have expressly preempted States from imposing any sanctions for employers’ violations of federal immigration laws. It did none of those things. To the contrary, IRCA is silent on State investigations and adjudications of employers’ misconduct, and expressly preserves the States’ authority to impose “sanctions . . . through licensing and similar laws.” 8 U.S.C. § 1324(a)(h)(2).
By authorizing States to sanction employers through license denials and revocations, IRCA ensures that the full panoply of sanctions is available against employers who illegally hire unauthorized aliens. While the federal government is fully capable of imposing civil fines and criminal penalties, the revocation of State-issued licenses is peculiarly within the province of the States themselves. IRCA’s savings clause preserves States’ longstanding power to regulate business entities to which State licenses

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were issued and States’ traditional power to revoke licenses to do business as a sanction for violating immigration laws.
The Act falls squarely within IRCA’s savings clause. The law provides for the revocation or suspension of State-issued licenses. And to be consistent with federal law, it uses the federal definition of unauthorized alien, A.R.S. § 23-211(11), adopts federal scienter standards, incorporates a defense for good faith compliance with the I-9 process, A.R.S. §§ 23212(J), -212.01(J), and establishes a rebuttable presumption that a worker is lawful if the employer uses the E-Verify program, A.R.S. § 23-212(I), -212.01(I). The Arizona law is a permissible complement to federal enforcement efforts, and is consistent with the plain language, structure, and history of IRCA.
A. Federal Law Does Not Expressly Preempt Arizona’s Employer Sanctions Statute.
1. Arizona’s Statute Is Consistent with the Plain Language of IRCA’s Savings Clause.
a. The express-preemption analysis “ ‘must in the first instance focus on the plain wording of the [preemption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’ ” Sprietsma v. Mercury Marine, 537 U.S. 51, 62 (2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). That principle is a straightforward

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application of the more general rule that statutory construction “begins with the plain language of the statute.” Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009). The preemption clause at issue here provides:
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment unauthorized aliens.
8 U.S.C. § 1324a(h)(2) (emphasis added). Congress thereby preempted States from imposing “civil and criminal sanctions” on employers, but specifically preserved State authority to impose sanctions “through licensing and similar laws.”
The plain meaning of “licensing and similar laws” encompasses a law that revokes a business’s Stateissued authorization to do business in the State. Although Petitioners denigrate the use of dictionaries to determine the plain meaning of a statute, see Pet. Br. 27, that is the standard means of doing so when a term is not defined. See, e.g., Johnson v. United States, 130 S. Ct. 1265, 1270 (2010); Smith v. United States, 508 U.S. 223, 228-229 (1993). Both Petitioners and the United States cite Webster’s Third New International Dictionary 1304 (1993), which defines the term “license” as a “right or permission granted in accordance with law by a competent authority to engage in some business or occupation.” The “licenses” subject to revocation under Arizona’s law – “any agency permit, certificate, approval, registration,

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charter or similar form of authorization that is required by law and that is issued . . . for the purposes of operating in the business in this state,” including articles of incorporation, certificates of partnership, foreign corporation registrations, and transaction privilege licenses, A.R.S. §§ 23-211(9)(a), (b) – fall comfortably within that definition.
To become authorized to do business as an Arizona corporation, an entity must file articles of incorporation with the Arizona Corporation Commission, A.R.S. § 10-201, and thereby subject itself to the longstanding sanction of dissolution, through administrative or judicial proceedings, for certain violations of law. A.R.S. §§ 10-1420 to -1422 (administrative dissolution); 10-1430 to -1434 (judicial dissolution). As this Court has observed, it “is an accepted part of the business landscape for States to create corporations [and] to prescribe their powers.” CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 91 (1987); see also Trs. of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it. . . .”). Put another way, State-issued articles of incorporation are “a right or permission granted in accordance with law by a competent authority to engage in some business or occupation.” See Webster’s Third New International Dictionary at 1304.

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Business entities must likewise file certificates of partnership, A.R.S. § 23-211(9)(b)(ii), foreign corporation registrations, A.R.S. § 10-1503, and transaction privilege licenses, A.R.S. § 42-5008 to obtain the authority to engage in specified conduct within Arizona and to receive certain protections that Arizona law provides. Indeed, this Court has often referred to State-issued registrations to transact business as a foreign corporation as “licenses.” See, e.g., Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 417 (1984); G.D. Searle & Co. v. Cohn, 455 U.S. 404, 413 n.8 (1982); Eli Lilly & Co. v. Sav-on-Drugs, Inc., 366 U.S. 276, 282 (1961); see also Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 899 (1988) (Rehnquist, C.J., dissenting) (referring to State’s “licensure of a foreign corporation”).
All told, the sanction of revoking various forms of authorization to do business in the State that Arizona’s law imposes fall within the plain meaning of the savings clause in 8 U.S.C. § 1324a(h)(2). Several additional considerations buttress that conclusion. First, when Congress has intended to limit a measure to a specific type of license, it has expressly done so. See, e.g., 8 U.S.C. § 1621(c) (defining “state and local public benefit” subject to eligibility restrictions based on immigration status to include “professional and commercial licenses”); 42 U.S.C. § 666(a)(16) (requiring that States have procedures to restrict “driver’s licenses, professional and occupational licenses, and recreational and sporting licenses” of people owing child support). Second, the savings clause covers

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“licensing and similar laws,” 8 U.S.C. 1324a(h)(2), indicating an intent broadly to cover documents or laws that provide employers permission to engage in certain activities.
Third, the presumption against preemption dictates that the preemption analysis begin “ ‘with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was a clear and manifest purpose of Congress.’ ” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Accordingly, “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’ ” Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)). This Court recognized in DeCanas that the presumption applies in this precise context, 424 U.S. at 357, and IRCA’s enactment “does not negate [its] operation. . . . The applicability of the presumption turns on a state’s historic police powers. By definition, that means that the presumption depends on the past balance of state and federal regulation, not the present.” Lozano v. City of Hazleton, No. 07-3531, 2010 WL 3504538, at *29 (3d Cir. Sept. 9, 2010). Even if the phrase “licensing and similar laws” were ambiguous – and it is not – any ambiguity must be resolved in the State’s favor.

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b. Petitioners and their amici’s efforts to overcome that plain language and presumption are unavailing. First, Petitioners and the United States argue that Arizona’s law is not a “licensing law” within IRCA’s savings clause because it is not part of a statutory scheme through which licenses are issued. Pet. Br. 34-35; U.S. Br. 10-12. It is difficult to fathom, however, how a State law that specifically addresses the revocation of a license is any less a “licensing and similar law” than a State law that specifically addresses the issuance of a license. It cannot be that IRCA permits a State to deny a license to a business entity based on that entity’s past hiring of unauthorized aliens, but does not permit a State to revoke a license for that same reason. At bottom, their objection appears to be about the organization of Arizona’s State code in which the State’s power to revoke various licenses appears in a different section than the sections in which the State’s power to issue those licenses is specified. It is commonplace, however, that the substance of State law, and not its form, controls. See United States v. Eurodif S.A., 129 S. Ct. 878, 887 (2009) (“in reading regulatory and taxation statutes, form should be disregarded for substance”) (internal quotation marks omitted). It does not matter whether the sanctions against various licenses are established through a single statute, as Arizona has chosen to do, or by amendments to the various statutes governing specific licenses.

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Second, and relatedly, the United States argues that the licenses that Arizona’s law covers are not within the savings clause because they pertain to the entity’s “very existence,” whereas a business that loses its license remains a “going concern.” U.S. Br. 15-16. The consequence of losing a critical business license that requires a cessation of the company’s operations, however, is similar to a suspension or revocation of articles of incorporation. Although theoretically a business that loses its license may remain a “going concern,” it cannot do the business that it was established to do. A law or medical practice whose members have lost their licenses to practice law or medicine might still exist, and its members might find some other way to earn a living. But it would be passing strange to characterize their new jobs as part of a “going concern” in any way connected to their previous work.
Finally, Petitioners insist that the savings clause authorizes a State to impose sanctions only after a federal tribunal has determined that the employer violated IRCA by hiring an unauthorized alien. Pet. Br. 28-30. Not a single word in IRCA imposes that limitation on a State’s exercise of the powers that the savings clause preserved. The savings clause itself, of course, says nothing of the sort. Any suggestion that Congress expressly preempted States from investigating and adjudicating whether State entities are

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unlawfully hiring unauthorized aliens as a predicate to applying a licensing sanction is untenable.7
2. IRCA’s Purpose and History Support the Conclusion that It Does Not Preempt Arizona’s Employer Sanctions Law.
The savings clause ensures that a full range of sanctions is available to be used against businesses that employ unauthorized aliens. IRCA authorizes the federal government to impose civil fines and criminal sanctions against employers that knowingly employ unauthorized aliens, while leaving to the States their uniquely sovereign power to revoke or suspend State-issued licenses. See Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 336-38 (1935) (holding that the dissolution of State-chartered corporations is a matter of State law and that the Tenth Amendment bars Congress from authorizing a federal agency to dissolve such corporations “in other ways and for other causes” than State law permits); United States v. Snyder, 852 F.2d 471, 474-75 (9th Cir. 1988) (invalidating on Tenth Amendment grounds portion of federal sentence requiring surrender of State-issued driver’s license). By leaving licensing sanctions to the States, Congress retained that important penalty for
7 Petitioners’ contention that States are impliedly preempted from investigating and adjudicating whether employers have violated IRCA by hiring unauthorized aliens is separately addressed in § I(B), infra.

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wrongdoing while sidestepping any potential constitutional objections and avoiding “upset[ting] the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
The United States nonetheless contends that “it would be exceedingly odd for Congress to have precluded [States from imposing] small fines but permitted sanctions that suspend or terminate a business entity’s very existence.” U.S. Br. 22-23. But Petitioners’ position has that effect, however, for it allows (for example) a State to revoke a doctor’s license to practice medicine – thereby depriving him of his profession – yet bars the State from imposing a $10 fine upon the doctor. Congress did not divide sanctions so that the federal government got to impose the large ones and the States the small ones. It divided sanctions responsibility by category, allowing States and local governments to impose licensing sanctions large and small. See also Lozano, 2010 WL 3504538, at *31 (“Nowhere in IRCA’s text or legislative history is there an indication that Congress intended [the savings clause] to apply only to licensing laws that impose minor penalties, and not to licensing laws that impose more significant sanctions.”).
IRCA’s history also supports the conclusion that IRCA does not preempt Arizona’s law. Congress considered employer sanctions for several years before it enacted IRCA in 1986, but it did not include the express preemption provision with a savings clause until the bill was introduced in 1985. 131

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Cong. Rec. 13,590 (1985). The only discussion of preemption of State employer sanctions is found in the House Judiciary Committee Report:
The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/ or criminal sanctions on the hiring, recruitment or referral of undocumented aliens.
They were not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.
H.R. Rep. No. 99-682(I) at 58.
Petitioners assert that this passage and the relationship between IRCA and the Migrant and Seasonal Agricultural Workers Protection Act (AWPA), 29 U.S.C. §§ 1801 to 1872 show that (1) Congress intended the savings clause to embrace only “fitness-todo-business laws governing farm labor contractors” and similar laws and (2) Congress intended that a federal proceeding must occur before a State can impose licensing sanctions. Of course, Congress’s “authoritative statement is the statutory text, not the

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legislative history.” Exxon Mobil Corp. v. Allapatah Servs., Inc., 545 U.S. 546, 568 (2005); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 n.4 (2002) (describing House Report No. 99682 as a “single Committee Report from one House of a politically divided Congress” and noting that the dissent’s reliance on the report “is a rather slender reed”). In any event, Petitioners’ arguments fail on their own terms.
a. To be sure, the House Report specifies farm labor contractor laws as an example of a nonpreempted State licensing law. But the Report did not state, or even imply, that such laws – or substantially identical laws – constitute the sum and substance of the exception. To the contrary, the sentence discussing farm labor contractor laws begins with the word “further” and follows a sentence that more generally states that the preemption clause was “not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” It is difficult to imagine a broader description of the “licensing and similar laws” carve-out.
Nor does IRCA’s relationship with AWPA suggest a narrow, atextual reading of the savings clause. IRCA included “conforming amendments” that permitted the Secretary of Labor to suspend, revoke, or refuse to issue a federal farm labor contract certificate if the employer had been found to violate IRCA. IRCA § 101(b)(1)(B) (codified at 29 U.S.C. § 1813ll(a)).

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Under the amendments, the procedures under IRCA, rather than a separate proceeding at the Department of Labor, determine whether a farm labor contractor has unlawfully employed an unauthorized alien. Id. This bears on the meaning of the savings clause, Petitioners insist, because AWPA (and its predecessor) imposed a federal licensing regime upon farm labor contractors and expressly provided that “compliance with this chapter shall not excuse any person from compliance with appropriate State law and regulation.” 29 U.S.C. § 1871. According to Petitioners, IRCA’s savings clause was designed to ensure that States may continue to impose “State law and regulation[s]” on farm labor contractors, and on no other State license. Pet. Br. 32-34.
As an initial matter, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Congress did not limit the savings clause to “farm labor contractors” or to “fitness-to-do-business” laws; it covers all “licensing and similar laws.” Moreover, the evidence that Congress adopted the savings clause solely or primarily to preserve existing State licensing laws relating to farm labor contractors is exceedingly thin. All Petitioners can point to is the pre-IRCA existence of AWPA’s antipreemption provision (which itself was not limited to licensing measures) and the above-quoted passage from the House Report, which, as noted, describes the exception in far broader terms. In the end, nothing in IRCA’s

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amendments to AWPA supports the conclusion that Congress intended to preempt the States’ ability to revoke or suspend employers’ licenses, including articles of incorporation and similar State authorizations.
b. In support of their contention that the savings clause authorizes a State to impose sanctions only after a federal tribunal has found an IRCA violation, Petitioners point to the sentence in the House Report stating that the preemption provision was “not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. No. 99-682(I) at 58, quoted in part in Pet. Br. 29. That sentence is perfectly consistent with the State’s construction of the savings clause. It expressly authorizes “state or local processes.” It merely notes that a State may impose a license sanction only upon a person who has been found to have violated IRCA. The House Report does not declare that the violation has to have been determined through a federal adjudication. Any ambiguity regarding authorization for State adjudication is resolved by the next sentence that preserves State laws “which specifically require such licensee or contractor to refrain from hiring, recruiting, or referring undocumented aliens.” H.R. Rep. No. 99-682(I) at 58. Arizona’s law operates in precisely that fashion. An Arizona employer is subject to sanction only if it knowingly or intentionally hires an “unauthorized

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alien,” A.R.S. §§ 23-212, -212.01, which is defined to “mean[ ] an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 [U.S.C. §] 1324a(h)(3).”
The only confusing note is that the Report speaks of “violat[ing] the sanctions provision in this legislation.” Given that employers are subject to, and can only violate, the substantive provisions of IRCA (thereby subjecting themselves to the statute’s sanctions), the best reading of the Report’s language is that it describes States’ authority to invoke their processes to impose licensing sanctions on entities that have knowingly employed unauthorized aliens. At worst, the House Report is ambiguous – and therefore does not advance Petitioners’ countertextual claim that a federal proceeding must precede a State licensing sanction.
Because Congress preserved State authority to impose sanctions through “licensing and similar laws,” federal law does not expressly preempt Arizona’s employer sanctions law that provides for the suspension and revocation of State licenses. The savings clause and the express preemption provision ensure that a range of sanctions against businesses that employ unauthorized aliens are available. Consequently, the federal government may impose the civil and criminal sanctions against employers that knowingly employ unauthorized aliens, and States may revoke or suspend State-issued licenses.

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B. Arizona’s Employer Sanctions Law Does Not Impliedly Conflict with Federal Law.
Implied conflict preemption exists “where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Spreitsma, 537 U.S. at 65. It requires an “actual conflict.” English v. Gen. Elec. Co., 496 U.S. 72, 90 (1990) (internal quotation marks omitted). Tension between federal and State law is not enough to establish implied conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).
Petitioners and the United States assert that Arizona’s law impliedly conflicts with IRCA by imposing the sanction of revoking or suspending business licenses, by authorizing State officials and bodies to investigate and adjudicate claims, and by “disrupt[ing] the careful balance that Congress struck.” Pet. Br. 37. None of those claims can be reconciled with the scope of State authority Congress expressly reserved, with Congress’s refusal to expressly preempt State authority beyond the power to impose civil and criminal sanctions, and with the Arizona law’s careful incorporation of myriad federal laws and standards.

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1. The State’s Authority to Impose Sanctions that are Against State Licenses Does Not Disrupt the Balance That Congress Struck in IRCA.
The savings clause for State sanctions “through licensing and similar laws” is part of the careful balance of competing interests that Congress struck when it enacted IRCA. Although a savings clause does not altogether eliminate the possibility of implied conflict preemption, its existence strongly reflects Congress’s decision about the scope of State authority regarding employer sanctions. Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995) (“[A]n express definition of the preemptive reach of a statute ‘implies’ – i.e., supports a reasonable inference – that Congress did not intend to pre-empt other matters.”); Cipollone v. Liggett Group, 505 U.S. 504, 517 (1992) (“Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.”). A State does not disrupt the balance that IRCA struck when it investigates, adjudicates and imposes sanctions that are within IRCA’s savings clause.
Moreover, Arizona’s law authorizes State sanctions for conduct that is already illegal under federal law, A.R.S. §§ 23-212(A), -212.01(A); 8 U.S.C. §§ 1324a(a), and, as previously explained, the only sanctions that it authorizes are against State licenses. Arizona’s law relies on the federal definition of unauthorized alien, A.R.S. § 23-211(11), incorporates defenses for

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employers that are included in the federal law, A.R.S. §§ 23-212(I), (J), -212.01(I), (J), includes the federal scienter requirement, A.R.S. § 23-211(7), and requires that State investigators rely on federal information when determining whether a person is an unauthorized alien, A.R.S. §§ 23-212(B), (H), -212.01(B), (H). This law presents no actual conflict with any IRCA requirement.8
Arizona’s law merely exercises the authority that Congress preserved for States in the savings clause, and it does so in a way that does not conflict with IRCA’s requirements. Therefore, it is not preempted.
2. Arizona’s Investigations and Adjudications of Claims that an Employer Knowingly or Intentionally Employs Unauthorized Aliens Do Not Conflict With IRCA.
a. As described in the express preemption analysis above, IRCA established procedures for federal investigations and adjudications, 8 U.S.C. § 1324a(e), (f), (g), but did not establish procedures for State adjudications or require completion of a federal adjudication as a prerequisite for a State
8 In contrast, the local ordinance recently held that the Third Circuit conflicted with IRCA provided no I-9 defense to contractors (Lozano, 2010 WL 3504538 at *37) and applied to independent contractors (id. at *34). It also authorized sanctions against a business without any prior judicial or administrative proceedings (id.).

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licensing enforcement action. The previous analysis demonstrates that nothing in IRCA’s text or legislative history supports prohibiting a State from investigating and adjudicating claims within the savings clause.
That Congress established procedures for federal investigations and adjudications in IRCA does not indicate any intent to oust State authority to investigate and adjudicate claims within the savings clause. This Court has long recognized that “[t]he mere existence of a federal regulatory or enforcement scheme, even one [that is] detailed does not by itself imply pre-emption of state remedies.” English, 496 U.S. at 87; see also N.Y. State Dep’t of Social Servs. v. Dublino, 413 U.S. 405, 415 (1973) (preemption cannot “be inferred merely from the comprehensive character” of the federal law). IRCA is silent on the subject of State procedures, and “matters left unaddressed [in a federal regulatory scheme] are presumably subject to state law.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994). Arizona’s investigations and adjudications merely implement the State sanctions that Congress authorized in its savings clause. When Congress explicitly preserves a State remedy, it follows that a federal enforcement scheme does not impliedly preempt the predicate investigations and adjudications.
Permitting State investigations and adjudications to impose sanctions against employers for infractions that are within IRCA’s savings clause is consistent with principles that typically govern State

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authority. See Bates, 544 U.S. at 442 (recognizing State authority to determine whether federal requirements are violated and to make a violation of federal law a State offense). State courts as well as federal courts are “entrusted with providing a forum for the vindication of federal rights,” Haywood v. Brown, 129 S. Ct. 2108, 2114 (2009), and State courts typically have the authority to resolve questions involving State or federal law, see, e.g., Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (concluding that State courts have jurisdiction over federal RICO claims). Petitioners cite no authority supporting a finding that State investigations and enforcements conflict with federal law when Congress has specifically preserved a State remedy.
b. The specific procedures used in Arizona’s investigations and adjudications also do not conflict with federal law. Although no federal law requires that it do so, Arizona requires that its State investigations rely exclusively on information from federal authorities regarding an employee’s work authorization. A.R.S. §§ 23-212(B), -212.01(B). The State must request information from the federal authorities through 8 U.S.C. § 1373(c), which requires federal authorities to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any purpose authorized by law, by providing the requested verification of status information.” In addition to this information concerning work authorization, local authorities need evidence

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that the employer “knowingly” or “intentionally” employed the unauthorized alien before they can file an action to seek sanctions against a State license. A.R.S. § 23-212(A), -212.01(A); Ariz. R. Civ. P. 65.2(B) (requiring that complaints in sanctions actions include the “facts alleged to show that the employer intentionally or knowingly employed unauthorized aliens”).
Petitioners criticize Arizona’s law for providing that the information from the federal government regarding an employee’s work authorization creates only “a rebuttable presumption of the employee’s lawful status.” Pet. Br. 40; A.R.S. § 23-212(H). This rebuttable presumption ensures that the employer has an opportunity to rebut the evidence presented to establish a worker’s unlawful status. The county attorney must rely on the information from the federal government regarding an employee’s work authorization in presenting its case, A.R.S. §§ 23212(B), (H), -212.01(B), (H), but the employer necessarily has an opportunity to rebut the evidence presented. Nothing in IRCA precludes a State from giving an employer the opportunity to rebut the evidence presented concerning the work authorization, and this procedure ensures that the employer has the opportunity to present any defenses to the court before sanctions are imposed.9 This rebuttable
9 Ironically, in the proceedings below, Respondents argued that Arizona’s statutory scheme violated employers’ due process rights because it precluded them from rebutting the immigration
(Continued on following page)

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presumption therefore does not conflict with federal law.10
Arizona’s law also incorporates the federal law’s affirmative defense for employers that in good faith comply with the I-9 process and the favorable presumption for using E-Verify. A.R.S. §§ 23-212(H), (I), -212.01(H), (I); 8 U.S.C. § 1324a(a)(3); IIRIRA, § 404(h)(1). Yet Petitioners allege that including these defenses conflicts with federal laws limiting the use of the I-9 forms and E-Verify information. Pet. Br. 42 (citing 8 U.S.C. §§ 1324a(b)(5), 1324a(b)(4), 1324a(d)(2)(F); IIRIRA, § 404(h)(1)); see also U.S. Amicus Br. 24.
These provisions in federal law do not prevent an employer from using the I-9 forms or E-Verify information to establish defenses in a State enforcement
status information that federal authorities provide. Pet. App. 23a-24a. The court of appeals and the district court both rejected this argument, accepting Respondents’ analysis that State law permitted employers to rebut the information regarding immigration status. Id. 25a.
10 Petitioners question whether the information provided under 8 U.S.C. § 1373(c) will, in all circumstances, establish whether an employee is an unauthorized alien. As a practical matter, if the information from the federal authorities does not establish that a person is an unauthorized alien, it means that the county attorney cannot satisfy his burden of proof in an enforcement action. Nevertheless, speculation about how the law might work in a particular case is not a basis for preemption. English, 496 U.S. at 90 (stating that allegations concerning possible future occurrences were “too speculative a basis on which to rest a finding of preemption”).

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action against the employer’s license. Section 1324a(b)(4) limits an employer’s authority to copy the information it receives through the I-9 process, for purposes other than “complying with the requirements of this subsection.” Paragraph (5) restricts the use of the I-9 form “for purposes other than enforcement of this chapter [IRCA]” and specified criminal laws. The reference to enforcement indicates that paragraph (5) limits the government’s use of the form, not the employer’s. Because IRCA’s savings clause authorizes State action to impose licensing sanctions against employers, an employer should be able to use the forms to establish an affirmative defense of good faith compliance with the I-9 process in a sanctions proceeding in State court.
For the same reasons, IIRIRA, § 404(h)(1) does not prohibit an employer from using E-Verify information as a defense in a State enforcement action against a State license. Subsection (h)(1) prohibits “any department, bureau, or other agency of the United States government [from] utiliz[ing] [E-Verify information] for any other purpose other than as provided for under a pilot program.” This language restricts the government’s use of the E-Verify information, but it does not restrict an employer from using E-Verify information in an enforcement action to earn a rebuttable presumption that an employee is authorized to work in this country.
In any case, whether either issue ever arises is speculative. Indeed, the United States argues only that “employers will likely need to use the I-9 forms”

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to establish an affirmative defense in a sanctions proceeding. U.S. Amicus Br. 25. (Emphasis added). An employer may choose to establish good faith compliance with I-9 processes in another way, such as through testimony of employees and descriptions of office policy. As a practical matter, the E-Verify issue is unlikely to arise because Arizona officials must rely on information from the federal authorities regarding an employee’s work authorization in order to bring a sanctions action in the first place. Therefore, if the employer is using E-Verify to confirm the employee’s status through the federal databases, most likely no sanctions case would ever be filed.
Arizona’s processes for investigation and adjudicating complaints are reasonable measures to implement sanctions that are within IRCA’s savings clause. Prohibiting States from investigating and adjudicating complaints that an employer is knowingly or intentionally employing unauthorized aliens would restrict the State’s independent exercise of prosecutorial discretion by conditioning a State’s ability to take action against a State licensee on a prior federal action, which may never occur. See Immigration Enforcement at the Workplace: Learning from the Mistakes of 1986: Hearing Before the Subcomm. on Immigr., Border Sec., and Citizenship of the S. Comm. on the Judiciary, 109th Cong. 13 (2006) (statement of Richard M. Stana, Dir. of Homeland Sec. & Justice, U.S. Gov. Accountability Office) (noting that “worksite enforcement has been a relatively low priority” and DHS focused resources on national security cases).

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There is no evidence that Congress attempted to so restrict States’ ability to impose sanctions against its licensees. Because Arizona’s procedures do not conflict with IRCA, Arizona’s law is not preempted.
3. Arizona’s Law Does Not Conflict with Federal Law by Disrupting the Balance that Congress Struck Regarding Possible Discrimination or the Potential Burdens on Employers.
Arizona’s law need not attempt to further all of the interests that Congress considered when enacting IRCA to avoid conflict preemption. Gade v. Nat’l Solid Wastes Mgm’t Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (noting that conflict preemption analysis should not be “[a] free wheeling judicial inquiry into whether a state statute is in tension with federal objectives”); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646 (1990) (“[T]here are numerous federal statutes that could be said to embody countless policies.”). Arizona’s law need only avoid an actual conflict with federal requirements. English, 496 U.S. at 90 (stating that the Court does not “seek[ ] out conflicts . . . where none clearly exists”) (internal quotation marks omitted).
When Congress enacted IRCA, it included new protections against “discrimination based on national origin or citizenship status.” 8 U.S.C. § 1324b. Arizona’s law does not undermine the existing protections

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against discrimination in State and federal law in any way. See, e.g., 8 U.S.C. § 1324b (prohibiting discrimination based on national origin or citizenship status); 42 U.S.C. § 2000e-2 (prohibiting employment discrimination based on “race, color, religion, sex, or national origin”); A.R.S. § 41-1463(B) (prohibiting employment discrimination based on “race, color, religion, sex, age, disability or national origin”). Although Arizona did not include any additional antidiscrimination protections in its law, Congress did not require States to do so in order to exercise their authority to impose sanctions through “licensing and similar laws.” 8 U.S.C. § 1324a(h)(2).
Plaintiffs are wrong to assert that Arizona’s employer sanctions statute attempts to prevent unlawful immigration without any concern about potential discrimination. Pet. Br. 45. Although it did not add any new civil rights remedies, Arizona’s Legislature explicitly required that the Act “shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or state law.” A.R.S. § 23-213. And it prohibited the State from investigating complaints based solely on a person’s “race, color or national origin.” A.R.S. §§ 23-212(B); -212.01(B). To deter potential abuses, “false and frivolous complaints” are subject to criminal penalties. Id.
It is also wrong to suggest that Arizona’s law disregards IRCA’s balance with regard to employers. The penalties for false reports protect employers. The judicial proceeding before any sanctions are imposed

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protects employers. Arizona also attempts to prevent violations by requiring employers to use E-Verify. In addition, the Legislature severely restricted the investigative authority of local officials by giving them no subpoena power or other authority to require witnesses to provide documents or testimony in employer sanctions investigations. Compare A.R.S. § 23-212(A), (B), (C) with A.R.S. §§ 38-431.06 (authorizing Attorney General to obtain documents and examine witnesses as part of open meeting law investigations); 41-1403 (similar provisions regarding civil rights investigations); 44-1406 (similar authority regarding anti-trust investigations); 44-1524 (similar authority regarding consumer fraud investigations). Although the threat of a sanction against a State license is a serious matter, IRCA preserved State authority to impose such sanctions against a business. The possibility of those sanctions is part of the balance that IRCA struck.
Nor does Arizona’s law undermine IRCA’s mandate for “vigorous[ ] and uniform[ ] ” enforcement. IRCA § 115. The risk of sanctions against licenses in multiple jurisdictions is part of the balance that IRCA struck by preserving State authority to impose sanctions against State licenses.
Permitting States to take actions against licensees who are knowingly employing unauthorized aliens supports the Congressional interest in “vigorous[ ] . . . enforcement” and respects the savings clause for State enforcement against State licensees. IRCA § 115. In contrast, prohibiting the States from

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taking any action against the license of an employer unless and until the federal government has completed its own enforcement action against that employer undermines both the savings clause and Congress’s interest in vigorous enforcement.
Moreover, State authority is not limited in this context merely because the issues relate to immigration. Ordinary preemption doctrine applies to matters that touch on immigration. DeCanas, 424 U.S. at 360. DeCanas recognized the State’s strong interest in avoiding the harms to wages and working conditions that may result from the presence of unauthorized workers. Although social scientists may debate the impact of unlawful immigration, in its order denying an injunction pending appeal, the district court found that Arizona’s unauthorized alien population adversely impacts wages in Arizona. Add19.
It is also not unusual for State officials to address issues concerning immigration status. For example, federal law mandates that State and local officials administering certain public benefits make eligibility determinations based on the applicant’s citizenship or immigration status. E.g., 8 U.S.C. §§ 1611, 1621. Arizona considers immigration status when issuing driver’s licenses. A.R.S. § 28-3153(D) (requiring “proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law”). Under Arizona law, immigration status is relevant to bail determinations. Ariz. Const. art. II, § 22 (stating that bail not available for serious felonies “if the person charged has entered or remained

57
in the United States illegally”).11 And the issue of a person’s immigration status may arise in a number of State proceedings, including, for example, wrongful termination cases, e.g., Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1008 (9th Cir. 2007) (originally filed in State court but removed to federal court), worker’s compensation benefits, e.g., Felix v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 986 P.2d 161, 163 (Wyo. 1999), and child welfare cases, e.g., Jesus M. v. Ariz. Dep’t of Econ. Sec., 53 P.3d 203, 207 (Ariz. App. 2002). There are many more examples.
The significant local interests relevant here distinguish this case from those that more directly concern foreign affairs. For example, both Crosby v. National Foreign Trade Council, 53 U.S. 363 (2000) and American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003), addressed foreign affairs issues that involved weaker State interests than those that are at stake here. Garamendi, 539 U.S. at 425 (noting weak State interest in requiring disclosure of Holocaustera insurance policies); Crosby, 53 U.S. at 379-80 (noting that State law concerning sanctions against Burma undermined President’s ability to speak for the Nation with one voice on the issue). And, unlike the State alien registration law at issue in Hines v. Davidowitz, 312 U.S. 52, 64-66 (1941), this legislation imposes no unique burdens on noncitizens,
11 The Arizona Court of Appeals upheld the constitutionality of this provision in Hernandez v. Lynch, 167 P.3d 1264, 1275 (Ariz. App. 2007).

58
but rather focuses on the responsibilities of employers within the State.
At bottom, Petitioners’ conflict preemption argument asks the Court to use the implied conflict preemption theory to rewrite IRCA’s savings clause. The Court should decline to do so. It is up to Congress to determine whether to modify IRCA’s savings clause. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 223 (1983) (“[g]iven this statutory scheme, it is for Congress to rethink the division of regulatory authority” between the States and the federal government).
Congress itself explicitly declined to preempt all State authority to impose sanctions against employers who knowingly employ unauthorized aliens. Instead, it expressly preserved State authority to impose sanctions through licensing and similar laws. 8 U.S.C. § 1324a(h)(2). Arizona’s law merely exercises the authority Congress preserved in IRCA’s savings clause. It does not conflict with IRCA, and it therefore is not preempted.
II. FEDERAL LAW DOES NOT PREEMPT ARIZONA’S E-VERIFY REQUIREMENT.
Arizona’s requirement that employers within its jurisdiction use the federal E-Verify program is also not impliedly preempted. Although federal law does not require all employers throughout the country to use E-Verify, Arizona’s E-Verify requirement does not make it impossible to comply with federal law or

59
create an obstacle to accomplishing federal goals. See Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987) (stating principles governing conflictpreemption analysis); see also Spreitsma, 537 U.S. at 65-70 (finding no preemption of State tort liability for failure to install propeller guard even though federal regulations did not require propeller guards).
An employer sanctions regime “cannot be effective without a reliable and easy-to-use method for employers to verify work authorization.” S. Rep. No. 104-249, at 4 (1996). IRCA’s verification system, which relied on the presentation of work authorization documents, was susceptible to widespread document fraud. Id. Congress authorized E-Verify, first as a limited pilot and later as a nationwide program, to develop a more effective system for verifying that new employees were authorized workers.
Congress has specifically prohibited the Secretary of Homeland Security from mandating the EVerify program nationally, IIRIRA, § 402(a), but has not spoken to whether other federal entities, or States, may mandate use of E-Verify. This Court should not read such a prohibition into the statute.
First, it is beyond dispute that it is not “impossible for a private party to comply with both state and federal requirements.” Sprietsma, 537 U.S. at 64 (citing English v. General Elec. Co., 496 U.S. 79). Arizona employers will not violate the requirements of federal law if they comply with the State’s E-Verify requirement. Thus, there is “no inevitable collision” between the requirements of the IIRIRA and the

60
verification statute. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963) (upholding State regulation of avocado maturity that was different from federal regulation).
Second, Arizona’s requirement does not pose an obstacle to federal goals. The federal government’s goal in developing and supporting E-Verify was not to establish a voluntary employee verification system, but to develop an effective one. Cf. IIRIRA, § 404(d) (establishing that the goals of the pilot programs were (1) to ensure reliability and ease of use for employers while protecting the privacy and security of the underlying information; (2) to respond to all inquiries from participating employers; (3) to prevent unauthorized disclosure of personal information; and (4) to ensure that the verification system did not cause unlawful discrimination practices). Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Title V, § 547, 123 Stat. 2142 (2009) (Appropriations bill noting that the E-Verify program was meant “to assist U.S. employers with maintaining a legal workforce”).
A State E-Verify requirement helps advance the federal goals of having an effective verification system and a lawful workforce. A 2007 study of E-Verify indicated that one of the barriers to E-Verify’s effectiveness had been a lack of employer participation, which “plac[ed] limitations on its effectiveness of preventing unauthorized employment on a national basis.” 2007 Westat Report at xxii. Arizona’s requirement facilitates expanding the program’s use. From

61
April through June 2005, employers submitted only 217,000 cases to E-Verify. 2009 Westat Report at xxxii. In the period of April through June 2008, this amount had grown eightfold to 1.7 million cases. Id. Westat characterizes this rapid expansion as a strength of the E-Verify program. Id. Although it does not account for all of E-Verify’s expansion, Arizona’s E-Verify requirement clearly supports the program by creating an influx of new participants.
Contrary to Petitioners’ argument,12 nothing in the record suggests that Arizona’s requirement or similar requirements by other States overburden the E-Verify program. As the United States acknowledges, “DHS advises in this case that the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.” U.S. Amicus Br. 34. This is consistent with congressional testimony of USCIS officials that Arizona’s law did not siphon organizational resources away from the agency’s E-Verify mission when it became effective. Department of Homeland Security Appropriations for 2009, Hearing Before the H. Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 110th Cong. 300 (2008) (statement of USCIS Director Emilio Gonzalez). In fact, the USCIS concluded as early as 2008 that the E-Verify program could handle the
12 Petitioners wrongly assert that if all fifty States required E-Verify, it would “overwhelm the federal system.” Pet. Br. 5051. Neither the record in this facial challenge nor the United States’ brief in this case supports that statement.

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verification workload if the program were mandatory for all U.S. employers. Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse, Hearing Before the Subcomm. on Immigr., Citizenship, Refugees, Border Sec., and Int’l Law of the H. Comm. of the Judiciary, 110th Cong. 52 (2008) (statement of Acting USCIS Director Jonathan Scharfen).
The United States’ actions, prior to briefing before this Court, were consistent with this understanding and supported E-verify. When then-Arizona Governor Napolitano signed the Act in July 2007, she advised federal officials of Arizona’s new requirement, JA 402, but heard no objection in response. In contrast, when Illinois attempted to ban the use of E-Verify in that jurisdiction, the United States promptly brought suit to enjoin Illinois’ law. United States v. Illinois, No. 07-3261, 2009 WL 662703 (C.D. Ill. March 12, 2009).
Moreover, the United States pointed favorably to Arizona’s law when it successfully defended the Executive Order and regulation requiring federal contractors to participate in the E-Verify program. In Chamber of Commerce v. Napolitano, 648 F. Supp. 2d 726 (D. Md. 2009), the United States successfully defended the Executive Order and subsequent regulation requiring federal contractors to participate in the E-Verify program. In that case, the United States disputed the notion that no one could require employers to participate in E-Verify as “patently and demonstrably false.” Defs.’ Reply Mem. in Supp. of Mot. for

63
Summ. J. at 7. According to the United States’ brief in that case, IIRIRA, § 402(a) enjoined only the Secretary of Homeland Security – and no one else – from requiring participation. Id. The United States cited Arizona’s law in support of that proposition and conceded that it was “permissible because the state of Arizona is not the Secretary of Homeland Security.” Id. (citing Chicanos Por La Causa, 558 F.3d at 867). In conclusion, the United States argued that Congress “allows states to mandate [E-Verify’s] use by public and private employers within their jurisdiction.” Id. at 21-22.13
The United States now attempts to distinguish the federal government’s requirement that its contractors use E-Verify based on the voluntary nature of the contractual relationship. U.S. Amicus Br. 29 n.10. Under Arizona law, however, the consequences of not using E-Verify are similar to the consequences under federal law. Arizona imposes no direct penalty against employers who do not comply with the mandate in A.R.S. § 23-214(A) that they “shall” use E-Verify. Under Arizona law, an employer that does not use E-Verify will not receive a rebuttable presumption in a sanctions action and is not eligible for economic
13 The United States attempts to harmonize its position in this case with its arguments supporting an E-Verify requirement for federal contractors in Chamber of Commerce v. Napolitano. U.S. Amicus Br. 29, n.10. Their current position suggests that even if States cannot require all employers to use E-Verify, they can still require State contractors and State grant recipients to use E-Verify since those requirements are voluntary in nature.

64
development incentives from government entities. A.R.S. § 23-212(I); A.R.S. § 23-214(B). The employer would also not be listed on the Arizona Attorney General’s website as an Arizona business that uses EVerify. A.R.S. § 23-214(C).14 This type of E-Verify requirement poses no more of an obstacle to Congress’s goals than the federal government’s E-Verify requirement for its contractors. Both further Congress’s goals of improving the employee verification system and ensuring that employers hire people authorized to work in this country.
Petitioners and the United States place significant weight on Geier v. American Honda Motor Co., 529 U.S. 861 (2000) but that decision is readily distinguishable. In Geier, the Court determined that imposing liability on car manufacturers for failing to install airbags conflicted with the federal law that gave manufacturers the option of selecting among different safety systems. Id. at 886. The Court was persuaded that mandating airbags through State tort law directly undermined the agency’s policy of giving “more time for manufacturers to develop airbags or other, better, safer passive restraint systems.” Id. at 879.
14 Petitioners filed their lawsuit in this case when the only consequence of not using E-Verify specified in statute was losing the benefit of a rebuttable presumption in a sanctions action. The Legislature added the other consequences in 2008. 2008 Ariz. Sess. Laws ch. 152.

65
Unlike the State law at issue in Geier, a State E-Verify requirement does not undermine the development of other verification systems. As described above, Congress experimented with three pilot programs beginning in 1996, but E-Verify is now the only one that remains. In Geier, the private marketplace was responsible for market innovations, and the federal agency responsible for highway safety did not want to thwart innovation by imposing a particular system. Id. at 879. Here, the federal government, not the private marketplace, develops the verification system. And requiring Arizona employers to participate in the E-Verify program advances Congress’ interest in improving that employee verification system.
Petitioners’ and the United States’ reliance on Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), is equally misplaced. In Buckman, the Court rejected a State-tort claim alleging “fraud on the Food and Drug Administration.” Noting that federal law gave the FDA the responsibility to police fraud and that State tort regimes might create incentives to provide unnecessary information to the FDA and might deter applications for FDA approval of medical devices because of liability concerns, the Court determined that tort liability conflicted with the federal scheme. Id. at 349-51. A State E-Verify requirement creates none of those problems.
Petitioners rely on Buckman for the principle that the “relationship between a federal agency and

66
the entity it regulates is inherently federal in nature.” Pet. Br. 50. Arizona requires employers to participate in the program, but does not interfere with the relationship between the business and those administering E-Verify. That was not the case in Buckman. In that case, indirectly imposing additional disclosure requirements on applicants to the FDA would interfere with the federal agency’s procedures and ability to process applications for new medical devices. Buckman, 531 U.S. at 350-51.
Similarly, relying on Buckman, the United States argues broadly for the principle that “absent a clearer indication than is present here, federal statutes of this kind should not be understood to allow States to impose such burdens on federal programs.” United States Br. 34. But the United States also concedes that Arizona’s requirement does not burden the Department of Homeland Security. Id. And federal authorities have no cap on participation and no control over the volume of participation nationally. Moreover, the broad principle that the United States asserts contradicts conflict-preemption principles, which look for clear evidence that Congress intended to oust State authority, rather than for evidence that Congress intended to preserve State authority. Medtronic, 518 U.S. at 485.
The conflict-preemption analysis asks whether this law makes it impossible to comply with federal law or creates obstacles to achieving federal objectives. Arizona’s law does not impede compliance with federal law and in fact helps to advance the federal

67
government’s interest in ensuring a lawful workforce and developing an effective employee verification program. Therefore, Arizona’s E-Verify requirement does not conflict with federal law and is not preempted.
--------------------------------- ♦ ---------------------------------
CONCLUSION
For these reasons, this Court should affirm the court of appeals decision.
Respectfully submitted,
TERRY GODDARD Attorney General of Arizona MARY R. O’GRADY* Solicitor General KATHLEEN P. SWEENEY CHRISTOPHER A. MUNNS Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007 (602) 542-8986 SolicitorGeneral@azag.gov *Counsel of Record Counsel for Respondents Arizona
Governor Janice K. Brewer, Department of Revenue Director Gale Garriott, and William Mundell, Registrar of Contractors

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ROGER W. HALL BUCHALTER, NEMER, P.C. 16435 North Scottsdale Road Suite 440 Scottsdale, Arizona 85254 (480) 383-1845 Counsel for Respondents
County Attorneys of Apache, Cochise, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, and Yavapai Counties
EILEEN GILBRIDE JONES SKELTON & HOCHULI PLC 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 (602) 263-1752 Counsel for Respondent
Richard Romley, Maricopa County Attorney
CHRIS M. ROLL PINAL COUNTY ATTORNEY’S OFFICE P.O. Box 887 Florence, Arizona 85232 (520) 866-6935 Attorneys for Respondent
James P. Walsh, Pinal County Attorney

69
MICHAEL JAY LESSLER COCONINO COUNTY
ATTORNEY’S OFFICE 110 East Cherry Street Flagstaff, Arizona 86001 (928) 779-6518 Counsel for Respondent
David W. Rozema, Coconino County Attorney
DANIEL S. JURKOWITZ PIMA COUNTY ATTORNEY’S OFFICE 32 North Stone Avenue Suite 2100 Tucson, Arizona 85701 (520) 740-5750 Counsel for Respondent Barbara LaWall,
Pima County Attorney
WILLIAM J. KEREKES YUMA COUNTY ATTORNEY’S OFFICE 250 West 2nd Street Suite G Yuma, Arizona 85364 (928) 817-4300 Attorneys for Respondent
Jon Smith, Yuma County Attorney

Add1
ADDENDUM A
8 U.S.C. § 1373. Communication between Government agencies and the Immigration and Naturalization Service
(a) In general
Notwithstanding any other provision of Federal, State, or local law, 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.
(b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.

Add2
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Add3
ADDENDUM B
Arizona Rules of Civil Procedure, Rule 65.2. Action pursuant to A.R.S. § 23-212 or § 23-212.01
(a) Commencement of Action. An action brought by the county attorney pursuant to A.R.S. § 23-212 or § 23-212.01 shall be commenced by filing a verified complaint with the clerk of the superior court. The attorney signing the complaint shall verify that the attorney believes the assertions in the complaint to be true on the basis of a reasonably diligent inquiry.
(b) Contents of Complaint. A complaint filed under this Rule shall include the following:
(1) The name and address(es) of the employer;
(2) Specification of one or more business licenses subject to suspension or revocation under A.R.S. § 23212 or § 23-212.01 that are held by the employer, and the identity and address of the licensing agency(ies), including the identity(ies) and mailing address(es) of the agency official(s) authorized to accept service under this Rule;
(3) A statement of specific facts alleged to show that one or more employees are unauthorized aliens;
(4) A statement of specific facts alleged to show that the employer intentionally or knowingly employed one or more unauthorized aliens; and
(5) In the case of an action for a second violation of A.R.S. § 23-212 or § 23-212.01, the case number of the first action and the date of the order or judgment

Add4
finding a first violation of A.R.S. § 23-212 or § 23-212. 01. The complaint shall also include as an attachment a copy of the court’s order or judgment finding a first violation of A.R.S. § 23-212 or § 23-212.01.
(c) Nature of Proceedings. An action brought pursuant to A.R.S. § 23-212 or § 23-212.01 shall be denominated as a civil action and assigned a specific subcategory code for purposes of case tracking. An action brought pursuant to A.R.S. § 23-212 or § 23-212.01 shall be heard and decided by the court sitting without a jury, except as otherwise permitted by Rule 39(m).
(d) Venue. An action brought pursuant to A.R.S. § 23-212 or § 23-212.01 shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. If the employee is or was employed by the employer in more than one county, the action shall be proper in any county in which the employee is or was employed by the employer.
(e) Expedited Proceedings. The court shall expedite an action brought pursuant to A.R.S. § 23-212 or § 23212.01.
(f) Scheduling Conference. Simultaneously with the filing of the complaint required by subsection (a) of this Rule, the county attorney shall file an application and submit a form of order requesting the court to set a date for a scheduling conference to determine the schedule for expedited proceedings. A copy of the signed order shall be served on the employer and may

Add5
be served with the complaint. At the scheduling conference, the court may address the matters set forth in Rule 16(b) and may set such additional hearings as it deems necessary. On or before the date of the scheduling conference, the employer shall file and serve a written disclosure of the identity of all business licenses that it holds in this State.
(g) Evidentiary Hearing; Summary Judgment. The court may not order a license suspension or license revocation pursuant to A.R.S. § 23-212 or § 23-212.01 without first affording the parties the opportunity for an evidentiary hearing, unless all parties waive the hearing. Rule 56 shall not apply to these proceedings except upon the agreement of all parties.
(h) Standard of Proof. All factual issues required to be determined by the court shall be determined by a preponderance of the evidence.
(i) Applicability of Rules of Evidence. Except as provided in A.R.S. § 23-212(H) or § 23-212.01(H), the Arizona Rules of Evidence shall apply to proceedings under this Rule.
(j) Enforcement of Court Orders.
(1) After the entry of an order under A.R.S. § 23212(F)(1) or § 23-212.01(F)(1) for a first violation, if an employer fails to file a timely sworn affidavit required by A.R.S. § 23-212(F)(1)(c) or § 23-212.01(F)(1)(d), the county attorney shall file an application for an order to show cause why the employer’s licenses with the appropriate licensing agencies should not be

Add6
suspended beyond any period prescribed in any prior court order. The application shall be accompanied by an affidavit or other proof demonstrating that the employer has failed to file the required sworn affidavit and shall set forth the identity and address of any appropriate licensing agency, including the identity and mailing address of the agency official authorized to accept service under this Rule.
(2) Within five (5) days after service of an application for an order to show cause, the employer may file an opposition to the relief sought in the application and to any further license suspension on the ground that the employer has filed an affidavit meeting the requirements of A.R.S. § 23-212(F)(1)(c) or § 23212.01(F)(1)(d). If such an opposition is timely filed, the court shall hold a hearing and shall not order any further license suspension until it renders its decision on whether to grant the relief sought in the application. If no opposition is timely filed or if the court grants the relief sought in the application, the court shall order the appropriate licensing agencies to suspend indefinitely all applicable licenses held by the employer.
(3) After the entry of an order suspending a license for a first violation for failure to file a required sworn affidavit, the employer may, by motion or stipulation, seek relief from the order on the ground that the employer has filed a sworn affidavit required by A.R.S § 23-212(F)(1)(c) or § 23-212.01(F)(1)(d). If such a showing is made and subject to the completion of any term of license suspension ordered under

Add7
A.R.S. § 23-212(F)(1)(d) or § 23-212.01(F)(1)(c), the court shall enter an order terminating any further license suspension.
(4) The clerk of the superior court shall distribute by any method authorized by Rule 58(e) a certified copy of any order suspending or revoking a license, or terminating a license suspension, entered under this Rule, or under A.R.S. § 23-212 or § 23-212.01, to the parties, the Arizona Attorney General, and any licensing agency ordered to suspend an employer’s license.
(k) Action for Second Violation. An action alleging a second violation under A.R.S. § 23-212(F)(2) or § 23212.01(F)(2) shall be filed and served as a new action.
(l) Requirement of Electronic or Facsimile Service. After a party has appeared in a proceeding brought under this Rule, any papers served on that party by mail under Rule 5(c) shall also be served at the same time by electronic mail or by facsimile, or as agreed to by the parties or ordered by the court. If the party on whom service is to be made does not have access to electronic mail or facsimile, then service shall be made as otherwise provided by Rule 5(c).
(m) Fees. The court shall assess such fees in these proceedings as may be prescribed by A.R.S. §§ 12-284, 12-284.01, and 12-284.02.

Add8
ADDENDUM C
UNITED STATES DISTRICT COURT, D. ARIZONA
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Nos. CV07-02496-PHX-NVW, CV07-02518-PHX-NVW.
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ARIZONA CONTRACTORS ASSOCIATION, INC., AN ARIZONA NONPROFIT CORPORATION; ARIZONA EMPLOYERS FOR IMMIGRATION REFORM, INC., AN ARIZONA NONPROFIT CORPORATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, A WASHINGTON D.C. NON-PROFIT CORPORATION; ARIZONA CHAMBER OF COMMERCE, AN ARIZONA NON-PROFIT CORPORATION; ARIZONA HISPANIC CHAMBER OF COMMERCE, INC., AN ARIZONA NONPROFIT CORPORATION; ARIZONA FARM BUREAU FEDERATION, AN ARIZONA NON-PROFIT CORPORATION; ARIZONA RESTAURANT AND HOSPITALITY ASSOCIATION, AN ARIZONA NON-PROFIT CORPORATION; ASSOCIATED MINORITY CONTRACTORS OF AMERICA, AN ARIZONA NON-PROFIT LIMITED LIABILITY COMPANY; ARIZONA ROOFING CONTRACTORS ASSOCIATION, AN ARIZONA NON-PROFIT CORPORATION; NATIONAL ROOFING CONTRACTORS’ ASSOCIATION, AN ILLINOIS NOT-FORPROFIT CORPORATION; WAKE UP ARIZONA! INC., AN ARIZONA NON-PROFIT CORPORATION; AND ARIZONA LANDSCAPE CONTRACTORS ASSOCIATION, INC., AN ARIZONA NON-PROFIT CORPORATION,
Plaintiffs,
v.

Add9
CRISS CANDELARIA, APACHE COUNTY ATTORNEY; ED RHEINHEIMER, COCHISE COUNTY ATTORNEY; TERENCE C. HANER, COCONINO COUNTY ATTORNEY; DAISY FLORES, GILA COUNTY ATTORNEY; KENNY ANGLE, GRAHAM COUNTY ATTORNEY; DEREK D. RAPIER, GREENLEE COUNTY ATTORNEY; MARTIN BRANNAN, LAPAZ COUNTY ATTORNEY; ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY; MATTHEW J. SMITH, MOHAVE COUNTY ATTORNEY; JAMES CURRIER, NAVAJO COUNTY ATTORNEY; BARBARA LAWALL, PIMA COUNTY ATTORNEY; JAMES P. WALSH, PINAL COUNTY ATTORNEY; GEORGE SILVA, SANTA CRUZ COUNTY ATTORNEY; SHEILA POLK, YAVAPAI COUNTY ATTORNEY; JON SMITH, YUMA COUNTY ATTORNEY; TERRY GODDARD, ATTORNEY GENERAL OF THE STATE OF ARIZONA; AND FIDELIS V. GARCIA, DIRECTOR OF THE ARIZONA REGISTRAR OF CONTRACTORS,
Defendants.
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VALLE DEL SOL, INC.; CHICANOS POR LA CAUSA, INC.; AND SOMOS AMERICA,
Plaintiffs,
v.
TERRY GODDARD, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF ARIZONA; GALE GARRIOTT, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF THE ARIZONA DEPARTMENT OF REVENUE; AND ANDREW THOMAS, IN HIS OFFICIAL CAPACITY AS MARICOPA COUNTY ATTORNEY,
Defendants.

Add10
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Feb. 19, 2008.
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ORDER
NEIL V. WAKE, District Judge.
Plaintiffs have appealed the February 7, 2008 judgment dismissing Defendant Arizona Attorney General Terry Goddard without prejudice for lack of subject matter jurisdiction and entering judgment in favor of all other Defendants. They now seek an injunction preventing Defendants from implementing or enforcing the Legal Arizona Workers Act (“the Act”), A.R.S. §§ 23-211 through 214, for the duration of the appeal. Fed.R.Civ.P. 62(c). (Doc. 181, 182, and 183.) The court’s findings of fact and conclusions of law (Doc. # 175) principally concluded: (1) that the Act is not expressly preempted by the Immigration Reform and Control Act of 1986 (“IRCA”), Pub.L. No. 99-603, 100 Stat. 3359 (employer sanctions provisions codified at 8 U.S.C. § 1324a to 1324c (2000)); (2) that the structure and purpose of IRCA do not clearly indicate Congressional intent to occupy the field of licensing sanctions for employers of unauthorized aliens; (3) that the Act does not regulate immigration; (4) that neither the licensing sanctions provisions of A.R.S. § 23-212, nor the requirement to use E-Verify found in A.R.S. § 23-214 conflicts with the purposes and objectives of Congress; (5) that the Act affords employers due process of law; and (6) that the Act

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does not violate the Commerce Clause of the U.S. Constitution.
I. Standards for Injunction Pending an Appeal
An injunction pending appeal under Federal Rule of Civil Procedure 62(c) is an extraordinary remedy that should be granted sparingly. Reading & Bates Petroleum Co. v. Musslewhite, 14 F.3d 271, 275 (5th Cir.1994) (“Stays pending appeal constitute extraordinary relief.”); United States v. Texas, 523 F.Supp. 703, 729 (E.D.Tex.1981) (“Since such an action interrupts the ordinary process of judicial review and postpones relief for the prevailing party at trial, the stay of an equitable order is an extraordinary device which should be sparingly granted.”).
Four factors must be considered on Rule 62(c) motions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).
In general, to prevail on a motion for injunction pending appeal, the moving party must show either (1) “a strong likelihood of success on the merits” and “the possibility of irreparable injury to plaintiff if preliminary relief is not granted” or (2) “that serious legal questions are raised and that the balance of

Add12
hardships tips sharply in its favor.” Golden Gate Restaurant Ass’n. v. City of San Francisco, No. 0717370, ___ F.3d ___, 2008 WL 90078, at *2, 2008 U.S.App. LEXIS 364, at *4 (9th Cir. Jan.9, 2008) (quoting Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir.2007); Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir.1983)). “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” Winter, 502 F.3d at 862. Courts must “consider ‘where the public interest lies’ separately from and in addition to” the balance of hardships between the parties. Id. at 863.
All laws passed by State legislatures are entitled to a presumption of validity. That presumption is an equity to be considered in favor of the State when balancing hardships. See Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324, 105 S.Ct. 11, 82 L.Ed.2d 908 (1984) (Rehnquist, J., chambers). For that reason, in cases “in which ‘the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,’ the injunction should be granted only if the moving party meets the more rigorous likelihood-ofsuccess standard.” Bery v. City of New York, 97 F.3d 689, 694 (2d Cir.1996) (citing Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)); Tunick v. Safir, 209 F.3d 67, 70 (2d Cir.2000). Cf. Golden Gate Restaurant Ass’n., 2008 WL 90078, at *13, 2008 U.S.App. LEXIS 364, at *37 (stating that to overcome

Add13
the public interest factor, it must be “obvious” that the law is invalid).
In this case an injunction is not needed to protect appellate jurisdiction and would upset the status quo.
II. Plaintiffs are Unlikely to Succeed in Invalidating the Act
Plaintiffs bear a heavy burden to invalidate the Act on appeal. They challenge the Act on its face, so they must prove that the Act cannot operate validly under any circumstance. To show that the federal government has occupied the field of licensing sanctions laws, Plaintiffs will have to overcome IRCA’s preservation of state authority for employer sanctions by “licensing and similar laws.” 8 U.S.C. § 1324a(h)(2).
Congress has extensive authority to destroy residual state police powers – to close the fifty laboratories of experiment. The protection of our federalism lies in Congress having to do so clearly and having to answer for it. “[T]he structural safeguards inherent in the normal legislative process operate to defend state interests from undue infringement.” Geier v. American Honda Motor Co., 529 U.S. 861, 907, 120 S.Ct. 1913, 146 L.Ed.2d 914 (Stevens, J., dissenting). But no one answers for it when, from special knowledge of purposes and proportionalities, the courts attribute preemption to Congress free of its own words that are plain enough to citizens. This would disarrange our federalism. It would require a bicameral majority to

Add14
restore state power, rather than leaving state power as our constitutional default position in the absence of a federal bicameral majority. Plaintiffs are unlikely to succeed in reading the express preservation of state licensing sanctions out of IRCA.
Plaintiffs’ conflict preemption, due process, and dormant Commerce Clause arguments are even weaker. To some extent they attack the edges of the Arizona Act, not its core, on hypothetical facts not shown in this case. To that extent their attacks are directed at particular applications of the Act and are beyond this facial challenge. Further, if any single provision fails, the Act’s severability clause will save the remainder, provided that the Act is not entirely preempted.
Plaintiffs do not have a probability of success on appeal, much less a strong probability. A mere “serious question” is not enough to suspend state action “taken in the public interest pursuant to a statutory . . . scheme.” Bery v. City of New York, 97 F.3d at 694. This shortfall alone requires denial of the motions for injunction pending appeal.
III. The Balance of Hardships Favors Defendants
A. Plaintiffs’ Hardship is Minimal
Plaintiffs’ hardship comes down to nothing more than the expense of using E-Verify. If the federal government’s statistics hold true for Arizona employers, 85% will spend less than $100 to set-up

Add15
E-Verify and 75% will spend less than $100 annually to operate the system. The average employer will likely spend $125 in set-up and $728 in maintenance of the system. (Joint Statement of Stipulated Facts (“Facts”), Doc. # 152, Ex. 52 at 104.)
The Act’s E-Verify requirement is an increment to the already pervasive regulation of labor and employment in our society. A complaint that there is more cost to comply with labor regulation has little purchase. It is difficult to establish irreparable injury based on prospective monetary damages alone. See Stop H-3 Ass’n v. Volpe, 353 F.Supp. 14, 18 (D.Haw.1972) rev’d on other grounds, 533 F.2d 434 (9th Cir.1976) (citations omitted) (“Traditionally, the irreparable injury contemplated by Rule 62(c) is that which will make the appeal moot. Thus, prospective monetary damage is not irreparable injury.”). While the cost of using E-Verify meets the minimum for standing, it is not so great as to warrant an injunction. See Yniguez v. Mofford, 730 F.Supp. 309, 317 (D.Ariz.1990) rev’d on other grounds, 939 F.2d 727 (9th Cir.1991) (“While Yniguez has established a sufficient threat of enforcement to provide an actual controversy for purposes of Article III and the Declaratory Judgment Act, she has not established an enforcement threat sufficient to warrant injunctive relief.”); Lawson v. Hill, 368 F.3d 955, 959 (7th Cir.2004) (“Even if we are wrong to suppose the risk of prosecution too remote to confer standing to sue . . . the district judge was right not to enter an injunction. . . . [a]n injunction is an extraordinary remedy.”).

Add16
Moreover, complying with E-Verify will have offsetting business benefits for Plaintiffs. It effectively ensures that they will be virtually immune from licensing sanction proceedings. Arizona Contractors Ass’n v. Napolitano, No. CV07-1355-PHX-NVW, ___ F.Supp.2d ___, 2007 WL 4293641, at * 11, 2007 U.S. Dist. LEXIS 90694, at * 34 (D.Ariz. Dec.7, 2007). Based upon past users’ experiences, an overwhelming majority of Arizona employers will likely find E-Verify an effective and convenient tool for employment verification, (Facts, Doc. # 152, Ex. 52 at 140), and will rate the program “Excellent,” “Very Good,” or “Good” (Facts, Doc. # 149, Ex. 13 at 4).
Plaintiffs submit two declarations from Arizona employers who assert that they will have to spend much more than the usual amount to set up E-Verify. (Facts, Doc. # 150, Ex. 26 & 27.) Both are owners of franchise restaurants who allegedly will have to purchase computer equipment and dedicated Internet connections for each location to comply with E-Verify. One employer states that he will need to spend more than 82 times the national average to set up the system. Both declarations state bare conclusions. Neither displays any of the resourcefulness one expects from business people seeking efficient solutions to problems. The failure to explain and exclude other solutions leaves the court unpersuaded that either declaration states a likely true cost. Even if the declarations are taken at face value, their costs are minor compared to the cost to the State, others, and

Add17
to the public interest from suspending the Act, as explained below.
B. An Injunction Will Injure the Direct Financial Interests of the State
The State will suffer monetary damages from an injunction pending appeal. Its expenditure to inform every employer by October 1, 2007, of the Act and of the obligation to comply with E-Verify after December 31, 2007, will be wasted. 2007 Ariz. Sess. Laws, Ch. 279, § 3. (Facts, Doc. # 148, Ex. 6.) Giving individuals actual notice of the law, when it begins, and how to avoid risk by complying with E-Verify, was critical to the legislature’s purpose of achieving effective deterrence with the fewest number of employers suffering actual sanctions. If the Act is suspended by court order, that legislative purpose of individual fairness will be defeated unless a new notice is sent in the event that the Act is allowed to go back into effect. Therefore, if an injunction were issued, the court would require Plaintiffs to post a bond under Rule 62(c) to cover the cost of a new notice.
IV. The Harm to the Public Interest from an Injunction Against Enforcement of the Act Would Greatly Outweigh Plaintiffs’ Cost of Compliance
A. The Arizona Legislature Has Declared the Public Interest
The parties have submitted a number of expert reports and declarations concerning the effect of

Add18
immigration on the Arizona economy and wages. Significantly, Plaintiffs’ studies do not distinguish between the effect of authorized and unauthorized immigration. Only Defendants’ expert, Prof. George Borjas, offers a conservative estimate of the effect of unauthorized alien labor on authorized labor, both alien and citizen. For this and other reasons discussed below, the court finds Defendants’ expert to be persuasive.
In any event, this is not an appropriate forum for second guessing the Arizona legislature’s decision that the public interest is best served by strongly deterring the knowing or intentional employment of unauthorized aliens. This court’s “consideration of the public interest is constrained in this case, for the responsible public officials in [the State] have already considered that interest.” Golden Gate Restaurant Ass’n., 2008 WL 90078, at *13, 2008 U.S.App. LEXIS 364, at *37. The Arizona legislature, like the federal government before it, balanced competing social and economic interests and decided in favor of an economy for those authorized to work in the United States. “[If it were obvious that the [Act] was unconstitutional or preempted by a duly enacted federal law[,]” there might be some basis to conclude that the public interest is not served by the Arizona legislature’s preferred values. Id. However, one cannot by any stretch of reason describe the Act as obviously invalid. It is therefore in the public interest that this court exercise its “discretionary power with proper regard for the rightful independence of state governments in

Add19
carrying out their domestic policy.” Id. (quoting Burford v. Sun Oil Co., 319 U.S. 315, 318, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)). Declining an injunction pending appeal will allow the Act’s continued application, and therefore will “in a real sense, preserve rather than change the status quo.” Id. at *3, 2008 U.S.App. LEXIS 364, at *7, 2008 WL 90078.
B. By the Most Conservative of Measures, the Balance of Hardships Favors the Defendants and the Public Interest
In addition to noting the illegitimacy of disagreeing with the legislative body’s preferred values, the court of appeals in Golden Gate Restaurant Association did assess the harm to the public and the beneficiaries of the challenged ordinance. Id. at * 13, 2008 U.S.App. LEXIS 364, 2008 WL 90078 at *35-37. Here also, the court is persuaded by Defendants’ expert, Prof. George Borjas, that the number of unauthorized workers in Arizona is very substantial and that their presence in the work force drives down wages for competing authorized workers. For high school dropouts alone, wages are depressed by at least 4.7%, or about $950 annually. This exceeds $200 million per year just for those authorized workers. The numbers are far greater when including all authorized workers. (Facts, Doc # 150, Ex. 1 of Ex. 39 at 16.) Again, though these are gross estimates, Prof. Borjas has favored conservative figures.

Add20
Plaintiffs’ experts are unpersuasive. Professor Marc R. Rosenblum, a political scientist and not an economist, offers general political arguments why employer sanctions have been ineffective and are a bad idea. While his historical narrative is helpful, his conclusions are not empirical science. Rather, they are speculations about the effects of the Arizona employer sanctions law, speculations which the legislature was not bound to accept. His conclusion that “[e]mployer sanctions depress wages for all U.S. workers” is not persuasive, and the court does not believe it. (Facts, Doc. # 150, Ex. 36 at 9.)
The conclusions of Judith K. Gans, also not an economist, about the general benefits of immigration do not address the effects of unauthorized alien labor upon those whom the legislature chose to protect. (Facts, Doc. # 150, Ex. 35.) The opinions of Prof. Giovanni Peri (Facts, Doc. # 150, Ex. 38) also do not persuasively undercut the opinions of Prof. Borjas (Doc. # 159, Borjas Aff.).
These expert reports include, and therefore inappropriately attempt to give weight to, the value of benefits produced by unauthorized alien labor. The benefits in fact to those who come to this country against the law to make better lives for themselves, to those who save from lower cost labor and general depression of wages from employing unauthorized aliens, and to those who enjoy the products of unauthorized labor at lower prices, do not count. The beneficiaries chosen identically by federal and Arizona law prevail over all who benefit from unauthorized

Add21
alien labor. They are the authorized workers in the United States who compete with unauthorized aliens. See Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1011 (9th Cir.2007) (quoting H.R. Rep. 99-682(I), at 46, as reprinted in 1986 U.S.C.C.A.N. at 5650) (“In passing IRCA, Congress wished to stop payments of wages to unauthorized workers, which act as a ‘magnet . . . attract[ing] aliens here illegally,’ and to prevent those workers from taking jobs that would otherwise go to citizens.”). For these reasons, Plaintiffs’ experts’ conclusions are not helpful or persuasive in balancing the hardships.
The court finds as a fact that the cost of complying with E-Verify for Plaintiffs and all other Arizona employers is far less than the wage depression to the poorest Arizona workers from unauthorized alien labor. This effect on the public interest strongly weighs in favor of allowing the Act’s continued implementation. Further, as persuasively detailed by Prof. Borjas, there are other and greater costs to workers from the large number of unauthorized alien workers in Arizona. An injunction would retreat from a status quo in which those with the least are getting a fairer chance at a small share of the prosperity of our Nation.
C. An Injunction Would Forfeit the Deterrence Already Achieved
There is good reason to think that the Act will significantly stem the increase and reduce the

Add22
absolute number of unauthorized alien workers in Arizona. It reduces employers’ incentive to discriminate against foreign-appearing applicants, as E-Verify use assures that they are safe in retaining or terminating any new hire. Most frauds are easily caught. Unlike IRCA and the I-9 system alone, the Act apparently has a real deterrent effect. Unauthorized alien workers are more likely to cease their perjured claims of authorization if they think their efforts will fail. Employers may now accord the verification process more of the seriousness that Congress originally intended, and even identity theft may decrease as E-Verify includes photo identification.
Though no enforcement has begun yet, anecdotal accounts in the press indicate that pre-enforcement deterrence is occurring; unauthorized aliens are leaving and some wage levels may be increasing. Of course, anecdotes are not proof of systemic successonly the future can show that. But an injunction pending appeal would stop the future before it happens. It would forfeit the momentum of deterrence that the Act already has achieved.
D. The Public Interest Favors Learning the Effect of the Arizona Experiment Before Congress Considers Renewal of E-Verify in November 2008
Another factor in the public interest further disfavors an injunction in this case. Though the Act could survive without E-Verify, that mandatory verification system greatly aids the Act’s economy and

Add23
effectiveness, and provides easy avoidance of liability. The Act directly serves the interests of Congress, which is to experiment with and refine the employment eligibility verification system. Unless extended, E-Verify’s authorization will expire in November, 2008. Basic Pilot Program Extension and Expansion Act of 2003 (“Expansion Act”), Pub.L. No. 108-156, 117 Stat.1944 (note following 8 U.S.C. § 1324a (Supp.IV.2000)). Before then, Congress would benefit from the experience of Arizona employers under the Act.
V. CONCLUSION
Plaintiffs have shown neither a likelihood of success on the merits nor a balance of hardships in their favor. An injunction pending appeal is not warranted.
IT IS THEREFORE ORDERED that the motions for injunction pending appeal (Doc. 181, 182, and 183) are denied.

 
 No. 09-115
In the Supreme Court of the United States
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., PETITIONERS
v. MICHAEL B. WHITING, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
NEAL KUMAR KATYAL Acting Solicitor General Counsel of Record
TONY WEST THOMAS E. PEREZ
Assistant Attorneys General SAMUEL R. BAGENSTOS
Deputy Assistant Attorney General
WILLIAM M. JAY Assistant to the Solicitor General
MARK L. GROSS NATHANIEL S. POLLOCK
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
Federal immigration law expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. 1324a(h)(2). The Legal Arizona Workers Act, an Arizona statute, imposes civil sanctions on employers that knowingly or intentionally employ an unauthorized alien, up to and including the mandatory revocation of articles of incorporation, partnership agreements, and other documents that the Arizona statute defines as “licenses.” The questions presented are:
1. Whether the Arizona statute is saved from express preemption as a “licensing [or] similar law[].”
2. Whether the Arizona statute conflicts with the federal framework regulating the employment of unauthorized aliens and therefore is impliedly preempted.
3. Whether the Arizona statute’s requirement that all employers participate in a federal electronic employment verification system conflicts with, and is preempted by, the federal law establishing that verification system, which provides that participation shall be voluntary.
(I)

TABLE OF CONTENTS

Page

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Argument: I. Federal law preempts the Arizona statute’s
employer-sanctions provisions . . . . . . . . . . . . . . . . . . . . . 10 A. The Arizona statute is not a “licensing law” . . . . . . 10
1. No licenses are issued under the Arizona statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. The Arizona statute imposes sanctions on holders of documents that are not licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. The structure and history of the federal employer-sanctions provisions confirm that the Arizona statute is not saved from preemption . . . . 16 1. The federal employer-sanctions provisions reflect a careful balance . . . . . . . . . . . . . . 17 2. Congress expressly preempted state laws that would disrupt that balance, and the savings clause must not be read to frustrate that goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. The Arizona statute obstructs the administration of the federal employer-sanctions framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
II. Federal law specifies that E-Verify is a voluntary program and preempts Arizona’s requirement to use E-Verify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. Ordinary principles of conflict preemption apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(III)

IV

Table of Contents—Continued:

Page

B. Congress has specified that E-Verify should grow through voluntary enrollment, and the Arizona statute frustrates that policy . . . . . . . . . . . 27 1. The statutory text expressly specifies that participation in E-Verify shall be voluntary, with only a few enumerated exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2. The history of E-Verify confirms that Congress has managed the program’s growth by insisting upon voluntary participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 3. Arizona’s requirement to participate in E-Verify conflicts with the federal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Cases:

TABLE OF AUTHORITIES

Alvin v. State, 42 P.3d 1156 (Alaska Ct. App. 2002) . . . . . 13 Brock v. State, 299 S.E.2d 71 (Ga. Ct. App. 1983) . . . . . . . 13 Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S.
341 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 34 Chamber of Commerce v. Brown, 128 S. Ct. 2408
(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Chamber of Commerce v. Napolitano, 648 F. Supp. 2d
726 (D. Md. 2009), appeal voluntarily dismissed, No. 09-2006 (4th Cir. Dec. 14, 2009) . . . . . . . . . . . . . 29, 30 De Canas v. Bica, 424 U.S. 351 (1976) . . . . . . . . 2, 7, 9, 25, 26 Drye v. United States, 528 U.S. 49 (1999) . . . . . . . . . . . . . . 14

V

Cases—Continued:

Page

Geier v. American Honda Motor Co., 529 U.S. 861 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27, 33
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Knight v. Commissioner, 552 U.S. 181 (2008) . . . . . . . . . . 16 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 130 S. Ct. 1431, 1438 (2010) . . . . . . . . . . . . . . . . . . . 28 United States v. Locke, 529 U.S. 89 (2000) . . . . . . . . . . . . . 16 United States v. Singh, 390 F.3d 168 (2d Cir. 2004) . . . . . 13

Statutes and regulations:

Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, § 2, 115 Stat. 2407 . . . . . . . . . . . . . . . . . . . . . . . . . 4
Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, 117 Stat. 1944 . . . . . . . . . . . . 4 § 3(a), 117 Stat. 1944 . . . . . . . . . . . . . . . . . . . . . . . . 5, 31 § 3(b)(2), 117 Stat. 1945 . . . . . . . . . . . . . . . . . . . . . . . . 32 § 3(d), 117 Stat. 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580 . . . . . . . . . . . . . . . . . . . . . . . . 4
Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Farm Labor Contractor Registration Act of 1963, 7 U.S.C. 2041 et seq. (1976) . . . . . . . . . . . . . . . . . . . . . . . 20 7 U.S.C. 2041(a) (1976) . . . . . . . . . . . . . . . . . . . . . . . . 20 7 U.S.C. 2043 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VI

Statutes and regulations—Continued:

Page

7 U.S.C. 2044(b)(6) (1976) . . . . . . . . . . . . . . . . . . . . . . 20 7 U.S.C. 2051 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Tit. IV, 110 Stat. 3009-655 (8 U.S.C. 1324a note) . . . . . . 2 § 401(a), 110 Stat. 3009-655 . . . . . . . . . . . . . . . . . . . . . . 3 § 401(b), 110 Stat. 3009-655 . . . . . . . . . . . . . . . . . . . 4, 30 § 401(c), 110 Stat. 3009-656 . . . . . . . . . . . . . . . . . . . . . . 4 § 401(c)(1), 110 Stat. 3009-656 . . . . . . . . . . . . . . . . . . 30 § 401(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 31 § 402(a), 110 Stat. 3009-656 . . . . . . . . . . . . . . . . . . . . . . 4 § 402(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 28, 30, 31 § 402(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 § 402(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 402(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 402(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 § 402(c)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 402(c)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 402(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 29, 31 § 402(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28 § 402(d)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 29 § 402(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 § 402(e)(1)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 § 402(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 § 403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 405(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 § 405(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

VII

Statutes and regulations—Continued:

Page

Immigration and Nationality Act, 8 U.S.C. 1101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1324a . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. 1324a(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1324a(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1324a(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 U.S.C. 1324a(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 8 U.S.C. 1324a(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 8 U.S.C. 1324a(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 8 U.S.C. 1324a(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1324a(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1324a(e)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324a(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324a(e)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . 18 8 U.S.C. 1324a(e)(4)(A)(i)-(iii) . . . . . . . . . . . . . . . . . . . 18 8 U.S.C. 1324a(e)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1324a(f) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324a(f )(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . 3, 7, 10, 22 8 U.S.C. 1324a(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8 U.S.C. 1324b . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 17, 28 8 U.S.C. 1324b(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 U.S.C. 1324b(g)(2)(B)(iv)(I)-(III) . . . . . . . . . . . . . . 18 8 U.S.C. 1373(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VIII

Statutes and regulations—Continued:

Page

Immigration Reform and Control Act of 1986, Pub. L. No. 99-608, 100 Stat. 3359 . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 101(b)(1)(B), 100 Stat. 3372 . . . . . . . . . . . . . . . . . . . 22 § 101(b)(1)(C), 100 Stat. 3372 . . . . . . . . . . . . . . . . . . . 22 § 115(1), 100 Stat. 3384 . . . . . . . . . . . . . . . . . . . . . . . . 24
Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C. 1801 et seq. . . . . . . . . . . . . . . 20 29 U.S.C. 1813(a)(3) (1982) . . . . . . . . . . . . . . . . . . . . . 21 29 U.S.C. 1813(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 U.S.C. 1816 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 29 U.S.C. 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
40 U.S.C. 121(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Ariz. Rev. Stat. Ann. (Supp. 2009):
§ 4-210(A)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 4-210(A)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 4-210(A)(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 10-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 §§ 23-521 et seq. (1995 & Supp. 2009) . . . . . . . . . . . . . . . 12 § 29-308 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 § 29-631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 § 29-842(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 § 32-1232(C)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 § 32-1263(A)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Legal Arizona Workers Act, Ariz. Rev. Stat. §§ 23-211 et seq. (Supp. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
§ 23-211(9)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-211(9)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IX

Statutes and regulations—Continued:

Page

§ 23-211(9)(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 23-211(9)(b)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12 § 23-211(9)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 23-211(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212(F)(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-212(F)(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 § 23-212(F)(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-212(F)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 § 23-212(F)(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-212(H) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212(J) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25 § 23-212.01(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212.01(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212.01(F)(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23.212.01(F)(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 § 23-212.01(F)(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 23-212.01(F)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 § 23-212.01(F)(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-212.01(H) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 § 23-212.01(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 § 23-212.01(J) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25 § 23-214(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 23-214(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

X

Statutes and regulations—Continued:

Page

Or. Rev. Stat. (Supp. 1983): § 658.440(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 § 658.445(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 § 658.453(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
43 Pa. Stat. Ann. (West Supp. 1985): § 1301.306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 § 1301.503(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 § 1301.505(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 § 1301.606(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Exec. Order No. 13,465, 3 C.F.R. 192 (2009) . . . . . . . . . . . 29 § 3, 3 C.F.R. 193 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8 C.F.R.: Section 1.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 274a.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 274a.2(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 274a.9(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 274a.9(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 C.F.R.: Sections 68.1 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Sections 68.53-68.56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Miscellaneous:

Arizona Dep’t of Econ. Sec.:
Arizona Joint Tax Application, https://www.azdes.gov/main. aspx?menu =316&id=3960 (last visited Sept. 3, 2010) . . . . . . . . 14

XI

Miscellaneous—Continued:

Page

Who Pays Unemployment Taxes?, https://www.azdes.gov /main.aspx?menu =316&id=3962 (last visited Sept. 3, 2010) . . . . . . . . 14
Black’s Law Dictionary: 5th ed. (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8th ed. (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
149 Cong. Rec. (2003): pp. 29,761-29,764 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 p. 29,763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
73 Fed. Reg. (2008): p. 10,130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 p. 10,136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 p. 33,837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
H.R. Rep. No. 682, 99th Cong., 2d Sess. (1986): Pt. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
H.R. Rep. No. 304, 108th Cong., 1st Sess. Pt. 1 (2003) . . . 32 Institute for Survey Research & Westat,
INS Basic Pilot Evaluation: Summary Report (Jan. 19, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 S. Rep. No. 202, 88th Cong. 1st Sess. (1963) . . . . . . . . . . . 21 S. Rep. No. 1295, 93d Cong. 2d Sess. (1974) . . . . . . . . . . . . 20 The E-Verify Program for Employment Verification Memorandum of Understanding, http://www. uscis.gov/files/nativedocuments/MOU.pdf (Oct. 29, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 United States GAO, PAD-80-22, Illegal Aliens: Estimating Their Impact on the United States (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22

XII

Miscellaneous—Continued:

Page

Webster’s Third New International Dictionary (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Westat, Findings of the E-Verify Program Evaluation (Dec. 2009), http://www.uscis.gov/ USCIS/E-Verify/E-Verify/Final%20 E-Verify%20Report%2012-16-09_2.pdf . . . . . . . . . . 31, 33

In the Supreme Court of the United States
No. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., PETITIONERS
v. MICHAEL B. WHITING, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case presents the question whether provisions of the Legal Arizona Workers Act (Arizona statute), Ariz. Rev. Stat. Ann. §§ 23-211 et seq.,1 are preempted by federal law regulating the employment of aliens. The Department of Homeland Security (DHS) and Department of Justice enforce the prohibition against hiring unauthorized aliens, and the corresponding nondiscrimination provisions, that were enacted in the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. See 8 U.S.C. 1324a, 1324b. DHS
1 Unless otherwise indicated, Arizona statutory provisions appear in the 2009 supplement.
(1)

2
now administers the voluntary E-Verify program originally created by Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-655. At the Court’s invitation, the United States filed a brief at the petition stage of this case.
STATEMENT
1. a. Before 1986, the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., did not specifically regulate the employment of unauthorized aliens. De Canas v. Bica, 424 U.S. 351 (1976). Congress changed course in IRCA, concluding that measures to prevent employers from hiring unauthorized aliens were necessary to reduce the incentive for aliens to come to the United States illegally. See, e.g., H.R. Rep. No. 682, 99th Cong., 2d Sess. Pt. 1, at 46 (1986) (IRCA Report).
IRCA added two new provisions to the INA that are relevant here. The first prohibits employers from hiring unauthorized aliens and authorizes sanctions against employers that violate that prohibition. The second applies a parallel set of civil-rights protections to ensure that employers do not engage in racial, ethnic, or other invidious discrimination against legal immigrants and other minorities.
The employer-sanctions provision, 8 U.S.C. 1324a, prohibits employers from hiring for employment “an alien knowing the alien is an unauthorized alien,” as well as hiring any individual “without complying with the requirements of [8 U.S.C. 1324a(b)].” 8 U.S.C. 1324a(a)(1). Subsection (b), in turn, establishes the paper-based “I-9 system,” pursuant to which an employer must examine specified documents to verify a

3
new employee’s identity and authorization to work in the United States. 8 U.S.C. 1324a(b); 8 C.F.R. 274a.2.
Employers that violate these requirements may be sanctioned. Immigration and Customs Enforcement (ICE), within DHS, brings such charges; an employer may seek a hearing before an administrative law judge (ALJ) in the Department of Justice. The ALJ may assess civil monetary penalties and issue cease-and-desist orders. Any sanctions may be reviewed in an administrative appeal and then by a federal court of appeals. 8 U.S.C. 1324a(e); 8 C.F.R. 274a.9(e) and (f); 28 C.F.R. 68.1 et seq.; see 8 C.F.R. 1.1(c). Employers that engage in a pattern or practice of violating the requirements may also be criminally prosecuted, enjoined, or restrained in proceedings brought in federal district court by the Attorney General. 8 U.S.C. 1324a(f ). Good-faith compliance with the I-9 system generally establishes “an affirmative defense” against charges of knowingly employing an unauthorized alien. 8 U.S.C. 1324a(a)(3) and (b)(6).
Section 1324a expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. 1324a(h)(2).
b. In 1996, Congress directed the Attorney General (who was then responsible for immigration enforcement) to “conduct 3 pilot programs of employment eligibility confirmation.” IIRIRA § 401(a), 110 Stat. 3009-655. The first (originally called the Basic Pilot Program) has evolved into what is now called E-Verify. (The other two pilot programs no longer exist.) E-Verify “is an internetbased system that allows an employer to verify an employee’s work-authorization status.” Pet. App. 10a. An

4
employer that participates in E-Verify and uses that system to confirm a new employee’s identity and employment authorization is rebuttably presumed not to have knowingly hired an unauthorized alien. IIRIRA § 402(b), 8 U.S.C. 1324a note.2
In IIRIRA, Congress required that federal departments participate in one of the three pilot programs. § 402(e)(1)(A)(i). Employers that violate Section 1324a or 1324b also may be required to participate. § 402(e)(2). Subject to those exceptions, however, Congress provided that “the Attorney General may not require any person or * * * entity to participate in a pilot program.” § 402(a), 110 Stat. 3009-656. Instead, IIRIRA states that an employer “may elect to participate in [a] pilot program,” and describes such participation as “voluntary.” Ibid.; see § 402(d)(2) and (3)(A) (referring to program’s “voluntary nature”).
The pilot program was originally to last four years and to be made available in at least “5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States.” § 401(b) and (c), 110 Stat. 3009-655 to 3009-656. Since 1996, Congress has on four occasions extended the program’s term.3 In the 2003 extension, Congress substituted the Secretary of Homeland Security (Secretary) for the Attorney Gen-
2 Unless otherwise indicated by a parallel citation from the Statutes at Large, references to sections of IIRIRA refer to the statute as subsequently amended and set out at 8 U.S.C. 1324a note.
3 Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, § 2, 115 Stat. 2407; Basic Pilot Program Extension and Expansion Act of 2003 (2003 Act), Pub. L. No. 108-156, 117 Stat. 1944; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580; Department of Homeland Security Appropriations Act (2010 Act), Pub. L. No. 111-83, § 547, 123 Stat. 2177.

5
eral, and directed the Secretary to make E-Verify available in all 50 States. 2003 Act, § 3(a) and (d), 117 Stat. 1944, 1945; IIRIRA § 401(c)(1). The E-Verify program is currently authorized through September 30, 2012. 2010 Act, § 547, 123 Stat. 2177.
2. a. The Arizona statute makes it a violation of state law for an employer to “knowingly” or “intentionally” employ “an unauthorized alien,” and provides for enforcement of that prohibition in actions brought in state court by elected county attorneys. Ariz. Rev. Stat. Ann. §§ 23-212(A) and (D), 23-212.01(A) and (D). The Arizona statute defines “[u]nauthorized alien” by reference to federal law. Id. § 23-211(11) (incorporating 8 U.S.C. 1324a(h)(3)). In determining whether a particular alien meets that definition, the Arizona statute first provides that a state court “shall consider only the federal government’s determination pursuant to 8 [U.S.C.] 1373(c),” id. §§ 23-212(H), 23-212.01(H), which requires federal officials to respond to inquiries about “the citizenship or immigration status of any individual.” In its next sentence, however, the Arizona statute states that “[t]he federal government’s determination” pursuant to Section 1373(c) creates only “a rebuttable presumption of the employee’s lawful status.” Ibid.
The Arizona statute does not require a prior federal determination of whether an employer knowingly or intentionally employed an unauthorized alien. Instead, the statute provides for the state court to make its own determination, subject to two evidentiary rules that refer to federal law. First, an employer’s demonstration that it verified the employee’s work authorization through the federal E-Verify program “creates a rebuttable presumption” that the employer did not violate the Arizona statute. Ariz. Rev. Stat. Ann. §§ 23-212(I),

6
23-212.01(I). Second, as under Section 1324a(a)(6), an employer “establishes an affirmative defense” to liability under the Arizona statute if it shows “that it has complied in good faith with the requirements of 8 [U.S.C.] 1324a(b).” Id. §§ 23-212( J), 23-212.01( J).
b. For a first knowing violation of the Arizona statute, the state court “[m]ay” order all relevant state agencies to suspend for up to ten business days “all licenses” held by the employer that are “specific to the business location where the unauthorized alien performed work,” or, if the employer has no such licenses, “all licenses that are held by the employer at the employer’s primary place of business.” Ariz. Rev. Stat. Ann. § 23-212(F)(1)(c) and (d). For a first intentional violation, the court “shall” order such a suspension “for a minimum of ten days.” Id. § 23-212.01(F)(1)(c).
Any first violation results in three to five years of probation. An employer on probation must file quarterly reports with respect to every new hire at the business location where the previous violation occurred. Ariz. Rev. Stat. Ann. §§ 23-212(F)(1)(b), 23-212.01(F)(1)(b). If the state court finds that an employer has committed a violation (whether knowing or intentional) while on probation, the court “shall order the appropriate agencies to permanently revoke all licenses” at the business location of the violation or the primary place of business. Id. §§ 23-212(F)(2) and (3)(b), 23-212.01(F)(2) and (3)(b).
The Arizona statute includes a general definition of a “[l]icense” as “any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this state.” Ariz. Rev. Stat. Ann. § 23-211(9)(a).

7
The Arizona statute further provides, however, that “[l]icense” also includes the organizing documents of corporations, partnerships, and limited liability companies. See id. § 23-211(9)(b)(i)-(ii). “Any professional license” is excluded, as are certain water and environmental permits. Id. § 23-211(9)(c).
c. The Arizona statute also requires that all employers “verify the employment eligibility of [every newly hired] employee through the [federal] e-verify program.” Ariz. Rev. Stat. Ann. § 23-214(A). Failure to use E-Verify renders an employer ineligible for “any grant, loan or performance-based incentive from any [state or local] government entity.” Id. § 23-214(B).
3. Petitioners brought this action to enjoin enforcement of the Arizona statute as expressly and impliedly preempted by federal law. After a bench trial on stipulated facts, the district court concluded that the Arizona statute is not preempted. Pet. App. 49a-94a.
4. The court of appeals affirmed. Pet. App. 1a-25a. a. The court of appeals first concluded that the Arizona statute’s employer-sanctions provisions fall within the savings clause permitting States to impose sanctions “through licensing and similar laws.” 8 U.S.C. 1324a(h)(2); see Pet. App. 14a-19a. Relying on De Canas, supra, the court of appeals applied a presumption against preemption “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers.” Pet. App. 16a. The court also determined that the Arizona “statute’s broad definition of ‘license’ is in line with” the dictionary definition of the term and that IRCA’s legislative history did not require a different result. Id. at 17a-18a.

8
The court further concluded that the employer-sanctions provisions are not impliedly preempted by federal law. Pet. App. 21a.
b. The court of appeals rejected petitioners’ contention that the requirement to use E-Verify “is impliedly preempted because it conflicts with Congressional intent to keep the use voluntary.” Pet. App. 19a. The court observed that “Congress could have, but did not, expressly forbid state laws from requiring E-Verify participation,” and it determined that Congress’s decision to make “participation * * * voluntary at the national level” did not “in and of itself indicate that Congress intended to prevent states from making participation mandatory.” Id. at 20a. The court concluded that Congress “strongly encouraged” use of E-Verify “by expanding its duration and its availability,” and that “Congress plainly envisioned and endorsed an increase in its usage.” Id. at 21a.
SUMMARY OF ARGUMENT
I. The Arizona statute is expressly preempted because it does not fit into the narrow exception for “licensing and similar laws.” The statute prohibits employing unauthorized aliens and punishes employers that violate that prohibition. That those employers happen to hold documents that the statute calls “licenses” does not turn the statute into a licensing law. No licenses are issued under the statute, and it does not regulate licensees’ professional conduct or fitness to do a particular business. It only imposes punishment, and only for violation of a single, across-the-board rule. And the punishment it imposes extends far beyond any common understanding of “licenses”: the Arizona statute provides for the suspension and termination of business

9
entities’ very legal existence. Articles of incorporation and similar charters are not “licenses,” and the Arizona statute’s broad punitive sweep confirms that it is not a licensing law.
In addition, and independently, the Arizona statute is impliedly preempted because it upsets the careful balance that IRCA established. The INA permits federal officials to decide when to seek sanctions and requires them to do so within a carefully crafted framework of procedural and substantive protections, which include graduated penalties; specialized federal tribunals; federal judicial review; and civil-rights provisions that prevent discriminatory or overzealous enforcement. Not only does the Arizona statute omit these protections, it affirmatively contradicts them: it allows elected Arizona prosecutors to demand and obtain sanctions in Arizona courts even after federal officials decide to seek lesser penalties, or federal tribunals reject sanctions altogether. In finding no conflict with federal law, the court of appeals wrongly relied on De Canas v. Bica, 424 U.S. 351 (1976), which pre-dates and is superseded by Congress’s determination in IRCA that restricting the employment of unauthorized aliens should be an essential part of the federal framework of immigration regulation. Indeed, the very state law upheld against a preemption challenge in De Canas was preempted by IRCA.
II. The requirement that employers enroll in E-Verify also conflicts with federal law and is preempted. Congress made voluntary participation a hallmark of E-Verify: the clear text provides that an employer “may” make a “voluntary election” to participate and “may terminate” that election. IIRIRA § 402(a) and (c)(3). The court of appeals erroneously relied on Congress’s 2003 decision to give the program nationwide

10
scope; Congress did not thereby approve of any and all measures to expand participation.
ARGUMENT
I. FEDERAL LAW PREEMPTS THE ARIZONA STATUTE’S EMPLOYER-SANCTIONS PROVISIONS
The INA expressly preempts “any State or local law imposing civil or criminal sanctions * * * upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. 1324a(h)(2). Neither respondents nor the court of appeals disputes that the Arizona statute is a sanctions law, Pet. App. 14a; Br. in Opp. 12, and all such laws are preempted unless they are “licensing and similar laws.” Because the Arizona statute does not confer or administer any license to do anything, but instead creates an independent state-law prohibition against employing unauthorized aliens and prescribes a unique and mandatory sanction that sweeps far more broadly than the term “license” allows, the statute is not a “licensing [or] similar law[]” and is not saved from preemption.
The Arizona statute is also preempted because it disrupts the delicate balance that federal law embodies. Neither the savings clause nor principles of conflict preemption permit the States to undermine federal law in that manner.
A. The Arizona Statute Is Not A “Licensing Law”
The court of appeals erroneously concluded that because the Arizona statute mentions the term “license,” it is within the scope of the savings clause. A mere intersection with “licenses” is not enough for a state statute to qualify as a “licensing * * * law[].” Rather, a licensing law must actually provide for the granting and

11
administration of licenses, not just the punishment of entities that happen to be licensees. Furthermore, the Arizona statute imposes sanctions that do not pertain to any “license” as Section 1324a uses that term.
1. No licenses are issued under the Arizona statute
The court of appeals’ decision treated the savings clause as if it used the term “law related to licenses.” Congress instead used the more specific term “licensing * * * law[].” “Licensing” is the participial form of a transitive verb. A licensing law, therefore, must at least be one pursuant to which licenses are granted to someone. Indeed, the court acknowledged that “ ‘licensing’ generally refers to ‘[a] governmental body’s process of issuing a license.’ ” Pet. App. 17a (brackets in original; emphasis added) (quoting Black’s Law Dictionary 940 (8th ed. 2004)). But the court then went on to hold that the Arizona law is saved from preemption as a licensing law because it “provides for the suspension of employers’ licenses.” Ibid. (emphasis added). That holding misapplied the ordinary meaning of “licensing.”
The Arizona statute is not a “law” for the “licensing” of any activity, because no licenses are issued under the Arizona statute whatsoever. It does not establish an application process or any standards for assessing an applicant’s fitness to engage in a particular type of activity. Its enactment did not require Arizona businesses to obtain state permission to engage in any new category of activity, nor did it provide a new way for businesses to obtain permission to engage in activities already requiring licensure. To the contrary, a large and paradigmatic category of licensing laws—those for the licensing of doctors, lawyers, and other professionals—are ex-

12
cluded from the Arizona statute altogether. Ariz. Rev. Stat. Ann. § 23-211(9)(b)(ii).
Instead, the Arizona statute provides only for the suspension or revocation of the various already-existing types of registrations that it defines, in sweeping terms, as “licenses.” It appears as part of the state labor code, which principally regulates wages, hours, and working conditions, not licensure or fitness to do business.4 And its new form of sanction does not fit within any existing framework for regulating licensees. The Arizona statute provides for an elected county attorney to request, and a court of general jurisdiction to order, that all licenses at a particular location be suspended or revoked. Indeed, for several categories of violations, suspension or revocation is mandatory. See Ariz. Rev. Stat. Ann. §§ 23-212(F)(2), 23-212.01(F)(1)(c) and (F)(2); see also id. §§ 23-212(F)(1)(c), 23-212.01(F)(1)(d) (mandatory suspension upon failure to file required affidavit). By contrast, virtually every true Arizona licensing statute empowers an expert regulatory agency to suspend or revoke a single license on specified grounds, with the choice of penalty—for even egregious misconduct—left to agency discretion. See, e.g., id. § 4-210(A)(3), (8) and (12) (liquor license may be suspended or revoked based on felony conviction, association with racketeering, or knowing commission of perjury).
Thus, the Arizona statute does not create or provide for the issuance of any licenses, nor does it amend any law that does. Rather, it is a freestanding provision that specifies across-the-board penalties in the form of suspension or revocation of any existing license.
4 For the sole exception, see Ariz. Rev. Stat. Ann. §§ 23-521 et seq. (1995 & Supp. 2009) (licensure of private employment agents).

13
b. Such a single-purpose license-revocation law is not a “licensing law.” Of course Congress understood that licensing laws include provisions for sanctioning licensees; that is why licensing laws fall within the scope of the express-preemption clause in the first place. But penalties are not automatically within the exception in that clause for “licensing * * * laws” merely because they are imposed on entities that happen to have received licenses under other provisions of state law. To the contrary, Congress’s choice of the term “licensing law” indicates an intent simply to preserve a regulator’s ability to evaluate its licensees’ fitness to do business in its particular regulatory field—whether by conferring, withholding, renewing, or revoking a license. The Arizona statute, however, provides only for the punishment of entities that happen to be licensees; it lacks even the most elementary features of a licensing law.
Merely imposing a penalty on entities that happen to have received licenses does not amount to “licensing.” For example, courts in criminal proceedings may sometimes order that licenses be suspended or forfeited, either as part of the criminal sentence or in a judgment of criminal forfeiture. See, e.g., United States v. Singh, 390 F.3d 168, 190 (2d Cir. 2004) (criminal forfeiture of medical license); Alvin v. State, 42 P.3d 1156 (Alaska Ct. App. 2002) (criminal sentence including lifetime revocation of driver’s license); Brock v. State, 299 S.E.2d 71, 72 (Ga. Ct. App. 1983) (criminal sentence including suspension of driver’s license). But in ordinary usage, these criminal statutes are not “licensing laws.”

14
2. The Arizona statute imposes sanctions on holders of documents that are not licenses
The court of appeals also erred in its conclusion that the Arizona statute defines the term “license” in a way that is “in line with” the federal statute’s use of that term. Pet. App. 17a. Federal law controls the meaning of a term in a federal statute. See, e.g., Drye v. United States, 528 U.S. 49, 58 (1999). The Arizona statute thus is not saved from preemption merely because Arizona chose to define the scope of its sanctions using the term “license.” Rather, the sanctions must actually fall on “licenses” as Congress used that term. In fact, the Arizona statute extends far beyond any common understanding of “licensing.” For that reason as well, it is not a “licensing law.”
The court of appeals focused on the Arizona statute’s general definition of “[l]icense” to include various forms of “authorization that [are] required by law and [are] issued by any agency for the purposes of operating a business in [Arizona].” Ariz. Rev. Stat. Ann. § 23-211(9)(a). But the Arizona statute also specifically treats as “[l]icense[s]” several other categories of documents, including “[a]rticles of incorporation,” “[a] certificate of partnership [or] partnership registration,” and a limited liability company’s (LLC) “articles of organization.” Id. § 23-211(9)(b). Indeed, even registration with the state agencies responsible for administering the state unemployment tax program—something every employer must do—appears to meet the law’s definition of “license.”5 The inclusion of those documents makes
5 See Arizona Dep’t of Econ. Sec., Who Pays Unemployment Taxes, https://www.azdes.gov/main.aspx?menu=316&id=3962 (last visited Sept. 3, 2010); Arizona Dep’t of Econ. Sec., Arizona Joint Tax Applica-

15
clear that the Arizona statute is not a licensing law, but simply a means of punishing anyone who hires unauthorized aliens.
A license is “a right or permission granted in accordance with law * * * to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Webster’s Third New International Dictionary 1304 (1993) (emphasis added). Simply creating a business entity such as a corporation is not a license to do anything that a sole proprietor could not previously have done. Filing the articles of incorporation, for instance, simply commences a corporation’s existence, see Ariz. Rev. Stat. Ann. § 10-203; it does not confer a license to do any particular business, which (if needed) must be issued separately. See, e.g., Black’s Law Dictionary 829 (5th ed. 1979) (defining “license” as “[a] permit, granted by an appropriate governmental body, * * * to a person, firm, or corporation to pursue some occupation or to carry on some business”) (emphasis added). The same is true of a certificate of limited partnership or an LLC’s articles of organization. See Ariz. Rev. Stat. Ann. § 29-308 (1998); id. § 29-631. See generally id. § 29-842(A) (licensed professionals generally may practice in any business-entity form they choose).
Thus, articles of incorporation and the like pertain not to a business entity’s fitness to engage in a particular type of pursuit or business, but to its very existence. The Arizona statute’s revocation penalty therefore is unlike any conventional license revocation: a corporation, partnership, or LLC whose existence is terminated must wind up its affairs and proceed to liquidation. By
tion, https://www.azdes.gov/main.aspx?menu=316&id=3960 (last visited Sept. 3, 2010).

16
contrast, a business that loses an ordinary license continues to be a going concern even if it cannot continue to run a particular establishment or engage in a particular line of work.
Accordingly, even if a law limited to the revocation of licenses could be characterized as a “licensing law,” the Arizona statute is not such a law; it is altogether untethered to the common meaning of licensure.6
B. The Structure And History Of The Federal EmployerSanctions Provisions Confirm That The Arizona Statute Is Not Saved From Preemption
Section 1324a’s context, purpose, and history reinforce the conclusion that the Arizona statute is not a “licensing law” that Congress saved from preemption. This Court has long “decline[d] to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law.” United States v. Locke, 529 U.S. 89, 106 (2000). And this Court has further warned that when “Congress has enacted a general rule,” courts “should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception.” Knight v. Commissioner, 552 U.S. 181, 191 (2008) (citation omitted). This Court should not read the savings clause to permit such subversion of the statutory purpose.
6 Likewise, respondents cannot show that the Arizona statute is a “similar law[]” even if it is not a “licensing * * * law[].” The phrase “or similar” simply eliminates dispute about whether a document constitutes a “license” if it is formally denominated a “certificate” or a “permit” (for example). By contrast, articles of incorporation are neither licenses nor materially “similar” to licenses.

17
1. The federal employer-sanctions provisions reflect a
careful balance
IRCA created a federal regime that imposes sanctions on employers that hire unauthorized aliens. But Congress acknowledged the “widespread fear” that employers would, out of an abundance of caution, respond to the possibility of sanctions by engaging in “employment discrimination against Hispanics and other minority groups.” IRCA Report Pt. 1, at 49. Congress therefore took steps to combat “the potential for [an] unfortunate cause and effect relationship between sanctions enforcement and resulting employment discrimination.” Id. Pt. 2, at 12.
First, Congress provided various procedural protections and limits on liability for employers accused of violating Section 1324a by employing unauthorized aliens. Hearings are held before federal tribunals, and an employer may obtain federal administrative and judicial review of adverse decisions. 8 U.S.C. 1324a(e)(3)(B), (e)(8) and (f)(2); 28 C.F.R. 68.53-68.56. And sanctions under federal law are far less severe than the revocation penalty the Arizona statute permits: outside pattern-orpractice cases, see 8 U.S.C. 1324a(f)(1), monetary penalties under federal law are now limited to $3200 per unauthorized worker in the case of a first violation, $6500 for a second violation, and $16,000 for a subsequent violation. 8 U.S.C. 1324a(e)(4); 73 Fed. Reg. 10,130, 10,136 (2008) (inflation adjustment).
Second, Congress enacted Section 1324b, which makes it “an unfair immigration-related employment practice” to discriminate based on citizenship or immigration status or based on national origin, 8 U.S.C. 1324b(a)(1), and establishes an administrative regime to enforce that prohibition that is essentially parallel to

18
the regime to enforce Section 1324a. In particular, the schedule of civil penalties under the two statutes is the same. Compare 8 U.S.C. 1324a(e)(4)(A)(i)-(iii), with 8 U.S.C. 1324b(g)(2)(B)(iv)(I)-(III). The adoption of that parallel regime implements Congress’s judgment that “sanctions enforcement and liability” for employers that hire unauthorized aliens “must be” balanced by “an equally strong and readily available remedy if resulting employment discrimination occurs.” IRCA Report Pt. 2, at 12.
2. Congress expressly preempted state laws that would disrupt that balance, and the savings clause must not be read to frustrate that goal
State sanctions provisions—even those that incorporate federal standards in other respects—are expressly preempted because of the risk that they will disrupt the careful balance that Congress struck.
a. At the time of IRCA’s enactment, several States had adopted employer-sanctions provisions. See, e.g., United States GAO, PAD-80-22, Illegal Aliens: Estimating Their Impact on the United States 45-46 & tbl.12 (1980) (GAO Report). Those States imposed smaller maximum fines than Congress authorized in IRCA, compare id. at 45 (maximum fine $1000), with 8 U.S.C. 1324a(e)(4)(A) (maximum fine $2000 per alien for a first offense).7 Congress nonetheless decided to preempt even those modest state sanctions, in the interest of ensuring that the federal framework—with charg-
7 Some also authorized criminal penalties of up to a year of imprisonment. GAO Report 45-46 & tbl.12. All of those state statutes, civil and criminal, lay largely unused: as of 1980, 11 States had adopted sanctions legislation but only a single employer had been sanctioned (by Kansas, in the amount of $250). Id. at 45, 47.

19
ing decisions by federal officials, adjudication by federal ALJs and federal courts, and calibrated penalties— would be the exclusive enforcement method.
b. Congress decided to exempt only one small category—licensing laws—from preemption. As the statutory backdrop and the legislative history demonstrate, that proviso creates only a narrow exception, directed primarily at farm labor contractors, an industry often found to employ unauthorized aliens and in which there was a longstanding tradition of concurrent federal-state enforcement. The licensing laws governing farm labor contractors were everything the Arizona statute is not: they required a license to engage in particular work, prescribed qualifications for licensure, and provided for the denial or revocation of such a license based on unlawful acts germane to the licensee’s fitness to do a particular business. See pp. 20-22, infra. And even in that context, Congress fashioned a calibrated federal framework to constrain the sanctions.
A House Committee Report on IRCA explained that Congress did not wish to preempt state licensing authorities from basing “the suspension, revocation or refusal to reissue a license” on the licensee’s having “been found to have violated the sanctions provision in this legislation.” IRCA Report Pt. 1, at 58 (emphasis added); see Pet. App. 18a (quoting this passage). Thus, the committee agreed, the States could impose non-monetary licensing sanctions that were based on federally adjudicated hiring violations—violations for which the Attorney General (now ICE) had filed charges and a federal tribunal designated under Section 1324a had found the employer liable. Many state licensing laws take such an “adjudicated violation” approach, under which the state regulator considers prior convictions as part of the appli-

20
cant’s character and fitness for licensure. See, e.g., Ariz. Rev. Stat. Ann. §§ 32-1232(C)(1), 32-1263(A)(2) (dentistry license may be denied or revoked based on conviction of a felony).
The committee also stated that it “d[id] not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting, or referring undocumented aliens.” IRCA Report Pt. 1, at 58; Pet. App. 18a. Both federal and state law had long identified farm labor contractors as particular targets of regulation, and restrictions on their hiring and referral practices were particularly germane to that regulation.
Farm labor contractors provide seasonal labor to farmers when they need it. Beginning with the Farm Labor Contractor Registration Act of 1963 (FLCRA), 7 U.S.C. 2041 et seq. (1976), Congress had provided for the federal licensure and regulation of such contractors, in part because unscrupulous contractors “exploit * * * migrant agricultural laborers” whose unauthorized status could force them to accept substandard wages and working conditions. 7 U.S.C. 2041(a) (1976); see S. Rep. No. 1295, 93d Cong., 2d Sess. (1974). The law was truly a licensing law: it required all farm labor contractors to obtain a federal certificate of registration, and it provided that the certificate could be denied, suspended, or revoked if the contractor engaged in the kind of abuses that made federal licensing and oversight necessary, including if the contractor knowingly employed an unauthorized alien. 7 U.S.C. 2043, 2044(b)(6) (1976). In 1983, Congress replaced the FLCRA with the Migrant and Seasonal Agricultural Workers Protection Act (MSWPA), 29 U.S.C. 1801 et seq., but continued to pro-

21
vide that a certificate could be denied, suspended, or revoked based on knowing employment of unauthorized aliens. See 29 U.S.C. 1813(a)(3), 1816 (1982).
Both the FLCRA and the MSWPA provided that they were “intended to supplement State action” and that “compliance with [the FLCRA or MSWPA] shall not excuse [a regulated entity] from compliance with appropriate State law and regulation.” 7 U.S.C. 2051 (1976); 29 U.S.C. 1871. Indeed, Congress recognized that a number of States already had similar farm-laborcontractor licensing schemes. S. Rep. No. 202, 88th Cong., 1st Sess. 4 (1963).
By the time IRCA was enacted, at least two of the States with their own such schemes had specified that knowingly hiring illegal aliens would be a ground for revocation or denial of a farm-labor-contractor license. See Or. Rev. Stat. §§ 658.440(2)(d), 658.445(1) (Supp. 1983) (permitting revocation or denial of license if licensee or applicant “[k]nowingly employ[s] an [unauthorized] alien”); 43 Pa. Stat. Ann. §§ 1301.503(1), 1301.505(3) (West Supp. 1985) (permitting revocation or denial of certificate if licensee or applicant employs “any person with knowledge that such person is in violation of any provision of the [federal] immigration and naturalization laws”).8
In IRCA, Congress explicitly sought to harmonize the INA’s new employer-sanctions provisions with the existing federal-state licensing scheme for farm labor contractors. IRCA replaced the MSWPA’s restriction on farm labor contractors’ employing unauthorized
8 Both States also authorized civil penalties for violations of their farm-labor-contractor regulations, including the hiring provision. Or. Rev. Stat. § 658.453(1)(c) (Supp. 1983); 43 Pa. Stat. Ann. § 1301.306 (West Supp. 1985); see also id. § 1301.606(a) (criminal penalties).

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aliens with a provision, 29 U.S.C. 1813(a)(6), permitting the suspension or revocation of a farm labor contractor’s license only after the contractor “has been found to have violated” Section 1324a(a) (which applies to all employers) by one of the federal tribunals specified in that section. See IRCA § 101(b)(1)(B) and (C), 100 Stat. 3372. And IRCA did not modify the MSWPA’s nonpreemption provision permitting concurrent federal-state regulation of farm labor contractors, 29 U.S.C. 1871.
This history illuminates the intended scope of Section 1324a(h)(2)’s savings clause. Before IRCA, pursuant to the FLCRA and later the MSWPA, States could require farm labor contractors to obtain a state license, in addition to the required federal license, and could revoke or suspend the state licenses of contractors who knowingly hired unauthorized aliens. At least two States had such laws at the time of IRCA. The savings clause in Section 1324a(h)(2) preserved such arrangements: States can conclude that a finding by federal authorities under Section 1324a that a contractor has hired unauthorized aliens is germane to a particular licensing scheme if such hiring has been integral to abuses the state licensing scheme seeks to prevent.
c. The Arizona statute is fundamentally different from the narrow group of laws that Congress decided to save, for several reasons. First, the Arizona statute permits extraordinarily severe sanctions—up to and including the termination of a corporation’s legal existence—to be sought by locally elected prosecutors and imposed by state courts of general jurisdiction, not under a specialized federal adjudicatory framework. Congress expressly preempted sanctions laws that imposed fines as low as $200, see GAO Report 46 tbl.12; it would be exceedingly odd for Congress to have precluded small

23
fines but permitted sanctions that suspend or terminate a business entity’s very existence. Second, and relatedly, the Arizona statute’s requirement that employers operate in the shadow of that sweeping sanctions regime frustrates the balance in the federal framework resulting from the procedural protections of Section 1324a and the corresponding prohibition on immigration-related unfair employment practices. Third, far from imposing a “ ‘fitness to do business’ ” requirement germane to a particular industry or profession, IRCA Report Pt. 1, at 58, the Arizona statute imposes a blanket penalty on any business found to be in violation. The Arizona statute therefore is not saved from preemption, notwithstanding its nominal focus on “licenses.”
C. The Arizona Statute Obstructs The Administration Of
The Federal Employer-Sanctions Framework
Even if this Court were to conclude, contrary to our submission above, that the Arizona statute could come within the scope of the savings clause, Congress plainly did not abandon ordinary conflict-preemption principles in IRCA. See, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 352 (2001) (“[N]either an express pre-emption provision nor a saving clause ‘bar[s] the ordinary working of conflict pre-emption principles.’ ”) (quoting Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000)) (second pair of brackets in original). Those principles independently require reversal of the decision below.
The Arizona statute’s obstruction of Congress’s goals and purpose is manifest. First, the Arizona statute permits Arizona prosecutors and courts to second-guess determinations made under the exclusive, carefully crafted federal framework for alleging and adjudicating

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charges that an employer has knowingly employed unauthorized aliens. Federal law gives ICE authority to bring such charges; requires that federal tribunals decide whether the charges and defenses have been proved; and provides for appellate review by lifetenured federal judges. Although genuine state licensing laws may impose additional sanctions when a federal tribunal finds a violation and that violation is relevant to a licensee’s fitness to do business, the INA does not permit a State to bring charges that ICE declined to bring, to find liability where the federal tribunal found none, or to impose sanctions beyond those provided under traditional licensing regimes.
Congress provided generally that federal immigration law “should be enforced vigorously and uniformly.” IRCA § 115(1), 100 Stat. 3384 (emphasis added). Section 1324a itself makes clear that Congress did not countenance any state law requiring employers to litigate in a non-federal forum the lawfulness of their procedures to verify employment authorization. Congress specifically provided that the I-9 form, and copies of employees’ associated documentation, may be used and retained only for purposes of complying with specified federal laws. See 8 U.S.C. 1324a(b)(5) (“A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of [the INA] and [specified federal criminal laws].”); see also 8 U.S.C. 1324a(b)(4) (restriction on use of copies of documentation); 8 C.F.R. 274a.2(b)(4). Congress recognized that requiring employers to gather identifying information from employees and retain copies of it throughout their employment posed significant privacy concerns, and it accordingly provided that those

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documents would be reviewed only under the INA’s federal enforcement framework, and associated criminal provisions. Accord IRCA Report Pt. 1, at 58 (Section 1324a does not preempt sanctions against a licensee “who has been found to have violated the sanctions provisions in this legislation”) (emphases added). Yet under the Arizona statute, employers will likely need to use I-9 forms to prove that they complied with the I-9 procedure. See Ariz. Rev. Stat. Ann. §§ 23-212( J), 23-212.01( J).
Furthermore, Congress consciously rejected a regime that would have imposed sanctions without simultaneously protecting civil rights, because of the real and well-documented probability that such a law would lead employers to adopt discriminatory practices in an effort to avoid liability. Arizona has nonetheless adopted precisely such a sanctions-only regime, without the parallel procedural and civil-rights protections that IRCA included. See pp. 17-18, supra.
Against these considerations, the court of appeals erred in relying (Pet. App. 15a) on this Court’s preIRCA decision in De Canas v. Bica, 424 U.S. 351 (1976). In De Canas, the Court rejected a preemption challenge to a California law barring employers from knowingly employing an unauthorized alien when doing so would have an adverse effect on lawful resident workers. Id. at 352. In reaching that conclusion, the Court observed that States had “broad authority under their police powers to regulate the employment relationship to protect workers within the State,” and described the challenged law as “within the mainstream of” a State’s police powers. Id. at 356.
But when De Canas was decided, federal law did not generally regulate the employment of unauthorized

26
aliens, unauthorized employment thus was only of “peripheral concern” under the INA, and the Court saw “Congress’ failure to enact” such a law as evidence that “Congress believes this problem * * * is appropriately addressed by the States as a local matter.” 424 U.S. at 360 & n.9. Since that time, however, Congress concluded in IRCA that the INA must prescribe measures to combat the employment of unauthorized aliens, because the availability of such employment undermines the INA’s mission of regulating entry into the United States. See IRCA Report Pt. 1, at 46. Congress therefore enacted Section 1324a—just such a “general law[]” that makes it unlawful for employers to hire unauthorized aliens. De Canas, 424 U.S. at 360 n.9.9 Congress thus has brought regulation of the employment of aliens within the INA’s framework for regulation of immigration—traditionally an area of exclusive federal, not state or local, authority. Indeed, the very law at issue in De Canas would now be preempted by Section 1324a.
II. FEDERAL LAW SPECIFIES THAT E-VERIFY IS A
VOLUNTARY PROGRAM AND PREEMPTS ARIZONA’S
REQUIREMENT TO USE E-VERIFY
The court of appeals concluded that Arizona’s requirement that all employers use E-Verify is not impliedly preempted for two reasons: because Congress did not expressly preempt it, Pet. App. 20a, and because Congress “envisioned and endorsed an increase in
9 The court of appeals was correct that Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), did not involve preemption. Pet. App. 16a. Petitioners cited Hoffman as an instance in which this Court recognized, albeit in a different context involving the interplay between two federal laws, the point made in the text: that since IRCA, it is no longer true that federal immigration law does not speak to employment of unauthorized aliens. See 535 U.S. at 147.

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[E-Verify’s] usage,” id. at 21a. Neither reason can sustain the court of appeals’ conclusion.
A. Ordinary Principles Of Conflict Preemption Apply
If a state law conf licts with a federal statute, by preventing the federal law from fully attaining Congress’s goals or by interfering with the implementation of federal law, the state law is preempted. Contrary to the court of appeals’ negative inference from the express preemption clause in Section 1324a—a provision that the E-Verify provisions of IIRIRA did not amend—those conf lict-preemption principles apply whether or not the statute contains an express preemption clause and, indeed, whether or not the state law is saved from express preemption. See p. 23, supra. Whether the E-Verify requirement is preempted therefore turns on “ordinary * * * principles of conf lict pre-emption.” Geier, 529 U.S. at 874.
B. Congress Has Specified That E-Verify Should Grow Through Voluntary Enrollment, And The Arizona Statute Frustrates That Policy
The court of appeals concluded that the requirement to use E-Verify was not preempted because it did not think that the federal E-Verify statute reflected any congressional intent to “balance federal goals.” Pet. App. 20a-21a. Rather, the court concluded that Congress’s sole purpose was to encourage and expand E-Verify. That flawed understanding of the E-Verify statute was the basis for the court’s erroneous preemption analysis. In fact, Congress has repeatedly specified that participation shall be voluntary, as one means of allowing E-Verify to grow at a measured pace and in a manner that encourages public acceptance, while the

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program remains under evaluation, revision, and regular reconsideration by Congress.
1. The statutory text expressly specifies that participa-
tion in E-Verify shall be voluntary, with only a few
enumerated exceptions
As part of a section entitled “Voluntary election to participate,” and a subsection entitled “Voluntary election,” Congress specified that employers “may elect to participate” in the E-Verify program. IIRIRA § 402(a) (emphasis added). The word “may” by itself suggests a discretionary decision. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1438 (2010).
Subsection (e) of the “Voluntary election to participate” section, in turn, is entitled “Select entities required to participate in a pilot program.” § 402(e). The only entities required to participate are federal employers and a small set of private employers—those that have been found to have violated Section 1324a or 1324b and are ordered by the federal administrative tribunal to participate in E-Verify. Ibid. With those specified exceptions, “the Secretary of Homeland Security may not require any person or other entity to participate.” § 402(a). By specifying that participation shall generally be voluntary and then enumerating specified exceptions to that rule, Congress underscored its expectation that the general rule—voluntary participation—would apply wherever the express exceptions do not.
Congress also insisted that potential participants be informed that the program is voluntary. IIRIRA requires the Secretary to “widely publicize the [E-Verify] election process * * * including the voluntary nature of ” the E-Verify program. § 402(d)(2) (emphasis added).

29
Likewise, the Secretary must designate persons in district offices “to inform persons and other entities that seek information about [E-Verify] of [its] voluntary nature.” § 402(d)(3)(A) (emphasis added).
In accordance with those required explanations, Congress also specified that employers may limit or terminate their participation as they wish. For instance, employers may opt to participate only in particular States or particular hiring locations. § 402(c)(2)(A). And a participating employer “may terminate [its] election” by following the Secretary’s prescribed procedures. § 402(c)(3). Indeed, throughout the statute, Congress repeatedly referred to program participants as “electing” persons or entities and called participation in the program “election.” §§ 402(b)(2), (c)(1), (c)(2)(A) and (c)(2)(B), 403(a).10
10 In 2008, pursuant to his authority under the federal procurement statute, 40 U.S.C. 121(a), President Bush issued Executive Order No. 13,465, 3 C.F.R. 192 (2009), directing federal agencies to “require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the [Secretary] to verify the employment eligibility of ” certain employees. § 3, 3 C.F.R. 193 (2009). The E-Verify program, “modified as necessary and appropriate,” was designated as the verification system. 73 Fed. Reg. at 33,837. The Executive Order and the regulation promulgated to enforce it were challenged and were upheld. Chamber of Commerce v. Napolitano, 648 F. Supp. 2d 726 (D. Md. 2009), appeal voluntarily dismissed, No. 09-2006 (4th Cir. Dec. 14, 2009).
Unlike the Arizona statute, the federal rule requiring use of E-Verify by federal contractors does not fundamentally alter the voluntary nature of the E-Verify program. Federal contractors have, by definition, entered into a voluntary contractual relationship with the government. The agreement to use E-Verify, and fulfill the responsibilities that come

30
2. The history of E-Verify confirms that Congress has managed the program’s growth by insisting upon voluntary participation
Voluntary participation is one of several ways in which the scope of E-Verify has been consciously circumscribed since its initial authorization. Congress created the initial Basic Pilot Program with a four-year time limit and a narrow scope, requiring only that it be offered to employers in at least five of the seven States with the highest concentration of unauthorized aliens. IIRIRA § 401(b) and (c)(1), 110 Stat. 3009-655 to 3009-656. Congress has since reauthorized it several times, in carefully circumscribed increments (see note 3,
with it, becomes part of the larger—voluntary—agreement between government and private contractor. 648 F. Supp. 2d at 735-736.
The government also pointed out that the Executive Order, issued by the President and not by the Secretary, is not contrary to the statutory provision specifying that “the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program.” In the course of that discussion, the United States noted that the Arizona statute’s E-Verify requirement, too, is not expressly foreclosed by Section 402(a). Defs.’ Reply Mem. in Supp. of Mot. for Summ. J. at 7, Chamber of Commerce, supra (“[T]he State of Arizona has required all public and private employers in that State to use E-Verify * * * . This is permissible because the State of Arizona is not the Secretary of Homeland Security.”) (citations omitted); see Opp’n to Pls.’ Emergency Mot. for Inj. Pending Appeal at 13-14, Chamber of Commerce v. Napolitano, No. 09-2006 (4th Cir. filed Sept. 6, 2009) (similar). That statement did not address the question here—whether, in light of the entire federal statutory framework, the Arizona requirement, applicable to all employers, is barred by principles of implied conflict preemption (which, of course, do not limit the broad authority over federal contracting expressly granted the President by another federal statute). Cf. Chamber of Commerce v. Brown, 128 S. Ct. 2408, 2418 (2008) (state requirement not saved from preemption merely because federal government imposes analogous, but narrower, requirement).

31
supra), always with a sunset provision; the program is currently scheduled to expire in 2012 unless further reauthorized. And Congress has never changed the program’s expressly voluntary character, although many proposals to make the program mandatory have been introduced. See Pet. Br. 10 n.7. That limitation does not detract from E-Verify’s successful track record, which is borne out by findings documenting the system’s accuracy and participants’ satisfaction.11 The government continues to encourage more employers to participate. But under the statute as written, the States may not require statewide participation.
The court of appeals relied on the 2003 reauthorization, in which Congress decided to require that voluntary participation be available to employers nationwide. See 2003 Act § 3(a), 117 Stat. 1944 (amending IIRIRA § 401(c)(1)). That reasoning was erroneous. Congress undertook that expansion at a time when it had reservations about mandatory participation; the 2003 expansion, therefore, does not reflect a judgment that any and every measure increasing participation in E-Verify would be appropriate. Nor has Congress since changed the statute in any way, except to extend the program’s duration.
In the 2003 legislation to expand E-Verify, Congress made no change to the provisions specifying that employers “may” elect to participate, “may” elect to participate on a limited basis, and “may terminate” their participation. IIRIRA § 402(a), (c)(2) and (c)(3). And Congress noted that a congressionally mandated report on the then-existing Basic Pilot Program’s efficacy (see IIRIRA
11 See, e.g., Westat, Findings of the E-Verify Program Evaluation at xxxi, xxxv-xxxvi (Dec. 2009), http://www.uscis.gov/USCIS/E-Verify/ E-Verify/Final%20E-Verify%20Report%2012-16-09_2.pdf (E-Verify 2009 Report).

32
§ 405(a)) had identified “problems,” and it directed that the Secretary of Homeland Security further report on whether those problems had been resolved “before undertaking the expansion of the basic pilot program to all 50 States.” 2003 Act § 3(b)(2), 117 Stat. 1945 (adding IIRIRA § 405(b)).
The report to which the 2003 Act referred and the history of that legislation confirm that Congress continued to contemplate voluntary participation. Several members of the House Judiciary Committee objected to requiring that E-Verify be available nationwide and contended that the congressionally mandated study supported their position. In response, the proponents of nationwide availability repeatedly emphasized the program’s voluntary nature: “What we’re talking about here is not a mandatory program, but an expansion of a voluntary program.” H.R. Rep. No. 304, 108th Cong., 1st Sess, Pt. 1, at 28 (2003) (Rep. Hostettler); see also ibid. (Rep. King of Iowa); id. at 31 (Rep. Cannon). The sponsors acknowledged that according to the congressionally mandated study, “expanding [E-Verify] on a mandatory basis would not be appropriate” at that time. Id. at 29 (Rep. Hostettler) (emphasis added). But, the proponents noted, the study had concluded that the responsible federal agencies could successfully handle a nationwide program “of limited scope,” i.e., on a voluntary basis. Id. at 28. See generally Institute for Survey Research & Westat, INS Basic Pilot Evaluation: Summary Report 41 (Jan. 29, 2002) (“Based on the evaluation findings, the Basic Pilot program should not be expanded to a manda-

33
tory or large-scale program.”) (boldface and italics omitted).12
As Congress contemplated, see § 405(b), DHS’s consistent work since 2003 to improve the program has resolved many of the concerns previously identified.13 Congress, however, has not amended the authorizing statute to alter the voluntary nature of participation.
3. Arizona’s requirement to participate in E-Verify con-
flicts with the federal framework
The court of appeals thought that because Congress has expanded E-Verify in “duration and * * * availability,” no federal policy would be frustrated if the States were to mandate participation. Pet. App. 21a. That reasoning misapprehends the balance that Congress struck in reauthorizing E-Verify, a balance in which voluntary participation is an essential element.
As the foregoing discussion shows, Congress’s approach to E-Verify has never been “the more participation, and the sooner, the better.” Cf. Geier, 529 U.S. at 874 (state tort-law duty requiring the immediate and universal installation of airbags was preempted, because although the responsible agency approved and favored airbags, it had rejected a policy of “the more airbags, and the sooner, the better,” in favor of a more measured phase-in approach). Rather, Congress’s steps to renew and expand the program have maintained E-Verify’s voluntary character and have been incremental, within care-
12 Debate on the substantially similar Senate bill ultimately adopted, which delayed the required nationwide availability for a year, similarly emphasized that the program was “in no way mandatory.” 149 Cong. Rec. 29,763 (2003) (Rep. Calvert); see id. at 29,761-29,764 (Reps. Sensenbrenner, Jackson-Lee, Smith of Texas, Osborne) (noting participation was voluntary).
13 See, e.g., E-Verify 2009 Report at xxxii, xxxv, 57-61.

34
ful limits. Permitting the States to require all employers to participate would upset the balance that Congress struck.
The court of appeals further erred in suggesting (Pet. App. 20a) that congressional silence could be read as permission for the States to require private employers to enter into contracts with the federal government, pursuant to which federal agencies commit to provide the employer with certain services. See The E-Verify Program for Employment Verification Memorandum of Understanding 1-3, http://www.uscis.gov/files/ nativedocuments/MOU.pdf (Oct. 29, 2008) (formal agreement between DHS and each participating employer). In many instances participation requirements imposed by state or local governments may overload otherwise elective federal programs and thus frustrate Congress’s intent—although DHS advises in this case that the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create. But the court of appeals did not rely on any such practical considerations specific to E-Verify, and the general interpretive principle should be that, absent a clearer indication than present here, federal statutes of this kind should not be understood to allow States to impose such burdens on federal programs. “[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.” Buckman, 531 U.S. at 347.

35
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
NEAL KUMAR KATYAL Acting Solicitor General
TONY WEST THOMAS E. PEREZ
Assistant Attorneys General SAMUEL R. BAGENSTOS
Deputy Assistant Attorney General
WILLIAM M. JAY Assistant to the Solicitor General
MARK L. GROSS NATHANIEL S. POLLOCK
Attorneys
SEPTEMBER 2010

 
 07-17272 Docket

General Docket United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 07-17272 Nature of Suit: 3440 Other Civil Rights CPLC, et al v. Napolitano, et al Appeal From: U.S. District Court for Arizona, Phoenix Fee Status: Paid

Case Type Information: 1) civil 2) private 3) null

Originating Court Information: District: 0970-2 : CV-07-01355-NVW Trial Judge: Neil V. Wake, District Judge Date Filed: 07/13/2007 Date Order/Judgment: 12/10/2007

Date NOA Filed: 12/13/2007

Prior Cases: None

Current Cases: Companion Consolidated
Related

Lead
07-17272
07-17272 07-17272 07-17272 07-17272
08-15357 08-15357

Member
07-17289
07-17274 08-15357 08-15359 08-15360
08-15359 08-15360

Start

End

12/17/2007

12/14/2007 02/22/2008 02/22/2008 02/22/2008

02/20/2008 02/20/2008

5/10/11 9:53 AM
Docketed: 12/14/2007 Termed: 09/17/2008

CHICANOS POR LA CAUSA, INC. Plaintiff - Appellant,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

Stephen P. Berzon [COR LD NTC Retained] Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108
Linton Joaquin, Esquire, Attorney Direct: 213-674-2909 [COR LD NTC Retained] NATIONAL IMMIGRATION LAW CENTER Suite 2850 3435 Wilshire Boulevard Los Angeles, CA 90010
Cynthia A. Valenzuela, Esquire, Attorney [COR LD NTC Retained] Mexican American Legal Defense and Educational Fund 11th Floor 634 S. Spring St. Los Angeles, CA 90014
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] ACLU - AMERICAN CIVIL LIBERTIES UNION FOUNDATION 18th Floor
Page 1 of 16

07-17272 Docket
SOMOS AMERICA Plaintiff - Appellant,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

125 Broad Street New York, NY 10004
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] Perkins Coie LLP 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] Ballard Spahr LLP 51st Floor 1735 Market Street Philadelphia, PA 19103-7599
Karen Cassandra Tumlin, Staff Attorney Direct: 213-674-2850 [COR NTC Retained] NATIONAL IMMIGRATION LAW CENTER Suite 2850 3435 Wilshire Boulevard Los Angeles, CA 90010
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] Altshuler Berzon LLP Suite 300 177 Post Street San Francisco, CA 94108
Stephen P. Berzon [COR LD NTC Retained] (see above)
Linton Joaquin, Esquire, Attorney Direct: 213-674-2909 [COR LD NTC Retained] (see above)
Dan Pochoda [COR LD NTC Retained] ACLU of Arizona Firm: 602-650-1967 P.O. Box 17148 Phoenix, AZ 85011-0148
Cynthia A. Valenzuela, Esquire, Attorney [COR LD NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)

5/10/11 9:53 AM Page 2 of 16

07-17272 Docket
ARIZONA EMPLOYERS FOR IMMIGRATION REFORM INC. Plaintiff,
CHAMBER OF COMMERCE OF THE UNITED STATES Plaintiff,
ARIZONA CHAMBER OF COMMERCE Plaintiff,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Karen Cassandra Tumlin, Staff Attorney Direct: 213-674-2850 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] Ballard Spahr LLP 1 East Washington Street Suite 2300 Phoenix, AZ 85004-2555
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185

5/10/11 9:53 AM Page 3 of 16

07-17272 Docket
ARIZONA HISPANIC CHAMBER OF COMMERCE Plaintiff,
ARIZONA FARM BUREAU FEDERATION Plaintiff,
ARIZONA RESTAURANT AND HOSPITALITY ASSOCIATION Plaintiff,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

[COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116

5/10/11 9:53 AM Page 4 of 16

07-17272 Docket
ASSOCIATED MINORITY CONTRACTORS OF AMERICA Plaintiff,
ARIZONA ROOFING CONTRACTORS ASSOCIATION Plaintiff,
NATIONAL ROOFING CONTRACTORS' ASSOCIATION Plaintiff,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

[COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151

5/10/11 9:53 AM Page 5 of 16

07-17272 Docket
WAKE UP ARIZONA! INC. Plaintiff,
ARIZONA LANDSCAPE CONTRACTORS' ASSOCIATION Plaintiff,
ARIZONA CONTRACTORS ASSOCIATION Plaintiff,
v.
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

[COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
David Allen Selden, Esquire, Attorney Direct: 602-798-5477 [COR LD NTC Retained] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)

5/10/11 9:53 AM Page 6 of 16

07-17272 Docket
JANET NAPOLITANO Defendant - Appellee,
TERRY GODDARD Defendant - Appellee,
GALE GARRIOTT Defendant - Appellee,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

Christopher Munns, Assistant Attorney General Direct: 602-542-8303 [COR LD NTC Dep State Aty Gen] OFFICE OF THE ATTORNEY GENERAL 1275 W. Washington Street Phoenix, AZ 85007
Mary O'Grady [COR LD NTC Dep State Aty Gen] ARIZONA ATTORNEY GENERAL'S OFFICE 1275 West Washington Street Phoenix, AZ 85007
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
Christopher Munns, Assistant Attorney General Direct: 602-542-8303 [COR LD NTC Dep State Aty Gen] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151 [COR NTC Retained] (see above)
Christopher Munns, Assistant Attorney General Direct: 602-542-8303 [COR LD NTC Dep State Aty Gen] (see above)
Joel W. Nomkin, Esquire Direct: 602-351-8185 [COR NTC Retained] (see above)
Burt M. Rublin, Esquire, Attorney Direct: 215-864-8116 [COR NTC Retained] (see above)
Jonathan Weissglass, Attorney Direct: 415-421-7151

5/10/11 9:53 AM Page 7 of 16

07-17272 Docket
-----------------------------LAWYERS COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA
Amicus Curiae,
NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER
Amicus Curiae,
UNITED STATES HISPANIC CHAMBER OF COMMERCE Amicus Curiae,
OKLAHOMA STATE CHAMBER OF COMMERCE Amicus Curiae,
ASSOCIATED INDUSTRIES INCORPORATED Amicus Curiae,
FLORIDA CHAMBER OF COMMERCE Amicus Curiae,
TENNESSEE CHAMBER OF COMMERCE Amicus Curiae,
AMERICAN UNITY LEGAL DEFENSE Amicus Curiae,
https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

[COR NTC Retained] (see above)
Robert Rubin Direct: 415-543-9444 [COR NTC Retained] LAWYERS' COMMITTEE FOR CIVIL RIGHTS Suite 400 131 Steuart St. San Francisco, CA 94105
Brian J. Wong, Esquire, Counsel Direct: 650-363-1960 [COR NTC Retained] OFFICE OF THE COUNTY COUNSEL 6th Floor 400 County Center Redwood City, CA 94063
Leslie Robert Stellman, Esquire, Attorney Direct: 410-938-8800 [COR NTC Retained] HODES, PESSIN & KATZ, P.A Suite 400 Firm: 410-938-8800 901 Dunlaney Valley Rd Suite 400 Towson, MD 21204
Melinda Guzman Direct: 916-448-0448 [COR LD NTC Retained] Suite 250 777 12th Street Sacramento, CA 95814
Carter Glasgow Phillips Direct: 202-736-8270 [COR LD NTC Retained] SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005
Carter Glasgow Phillips Direct: 202-736-8270 [COR LD NTC Retained] (see above)
Carter Glasgow Phillips Direct: 202-736-8270 [COR LD NTC Retained] (see above)
Carter Glasgow Phillips Direct: 202-736-8270 [COR LD NTC Retained] (see above)
Barnaby W. Zall, Esquire Direct: 301-231-6943 [COR NTC Retained] WEINBERG & JACOBS

5/10/11 9:53 AM Page 8 of 16

07-17272 Docket
LAWYERS' COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA
Amicus Curiae,

1200 Firm: 301-231-6943 11300 Rockville Pike Suite 1200 Rockville, MD 20852

5/10/11 9:53 AM

https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

Page 9 of 16

07-17272 Docket

5/10/11 9:53 AM

CHICANOS POR LA CAUSA, INC.; SOMOS AMERICA,
Plaintiffs - Appellants,
and
ARIZONA EMPLOYERS FOR IMMIGRATION REFORM INC.; CHAMBER OF COMMERCE OF THE UNITED STATES; ARIZONA CHAMBER OF COMMERCE; ARIZONA HISPANIC CHAMBER OF COMMERCE; ARIZONA FARM BUREAU FEDERATION; ARIZONA RESTAURANT AND HOSPITALITY ASSOCIATION; ASSOCIATED MINORITY CONTRACTORS OF AMERICA; ARIZONA ROOFING CONTRACTORS ASSOCIATION; NATIONAL ROOFING CONTRACTORS' ASSOCIATION; WAKE UP ARIZONA! INC.; ARIZONA LANDSCAPE CONTRACTORS' ASSOCIATION; ARIZONA CONTRACTORS ASSOCIATION,
Plaintiffs,
v.
JANET NAPOLITANO; TERRY GODDARD; GALE GARRIOTT,
Defendants - Appellees.

https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom

Page 10 of 16

07-17272 Docket

5/10/11 9:53 AM

12/14/2007

3

12/14/2007

5

12/19/2007

6

12/19/2007

7

12/19/2007

8

12/21/2007

9

12/24/2007

10

12/26/2007

11

01/11/2008

12

01/18/2008

13

01/30/2008

15

02/01/2008

30

02/08/2008

17

02/12/2008

18

02/13/2008

19

02/18/2008

21

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): y. setting schedule as follows: CADS is past due; CADS must be filed no later than 12/21/07; appellant's designation of RT is due 12/24/07, ; appellee's designation of RT is due 1/2/08,, ; appellant shall order transcript by 1/14/08, ; court reporter shall file transcript in DC by 2/12/08; certificate of record shall be filed by 2/19/08 ; appellant's opening brief is due 3/31/08, ; appellees' brief is due 4/29/08,, ; appellants' reply brief is due 5/13/08, ; [07-17272] (KKW)
Filed Appellants CPLC and Somos America's emergency motion for injunction pending appeal; decaration of Jonathan Weissglass; exhibits; served on 12/14/07 [6374644] (to MOATT)
Filed Appellant's reply in support of emergency motion for injunction pending appeal; declaration of Jonathan Weissglass. served on 12/19/07 (COPY IN MOATT) [07-17272] (SW)
Filed attorney for Appellant Civil Appeals Docketing Statement served on 12/13/07 (to CONFATT) [07-17272] [07-17272] (SW)
Filed "electronically" Appellees Janet Napolitano, et al. emergency response to motion for injunction pending appeal [5]; served on 12/19/07 (to MOATT) [07-17272]
Filed order MOATT ( Alfred T. GOODWIN, Diarmuid F. O'SCANNLAIN, William A. FLETCHER, ): Aplt Chicanos Por La Causa, Inc.'s motion to consolidate case no. 07-17272 with case no. 0717274 is GRANTED. The state has represented that it will refrain from initiating proceedings to enforce the Legal Arizona Workers Act, A.R.S. 22-211 through 214, until at least February 2008. The DC has scheduled argument on the preliminary injunction in Arizona Contractors Association, Inc. v. Candelaria, no. CV-07-2496 PHX-NVW (Arizona II) for 1/16/08 and intends to render a decision before 2/08. Under these circumstances, the panel will defer decision on the emergency motions for injunction pending appeal in these consolidated cases until the DC has issued a decision on the motion for preliminary injunction in Arizona II, provided that decision is reached with reasonable promptness. (CSL FAXED by Moatt) [07-17272, 07-17274]
Received copy of District Court order filed on 12/21/07: the motions for injunction pending appeal are denied - US District Judge Neil V. Wake. (to MOATT) [07-17272, 07-17274] (RT)
Received Appellants CPLC, Somos America notice of designation of reporter's transcript (various hering dates) (CASEFILE). [07-17272, 07-17274] (RT)
Filed Appellant motion for leave to file supplemental brief in support of emergency motion for injunction pending appeal; supplemental brief. (MOATT) [07-17272, 07-17274] served on 1/11/08 [6395936] [07-17272, 07-17274] (SW)
Filed Appellees response to motion for leave to file supplemental brief insupport of emergency motion for injunction pending appeal. served on 1/17/08 (MOATT) [07-17272, 07-17274] (SW)
Filed order (Alfred T. GOODWIN, Diarmuid F. O'SCANNLAIN, William A. FLETCHER): Aplts Chicanos Por La Causa's (CPLC) motion for leave to file a supplemental brief in support of the emergency motion for injunction pending appeal is DENIED. This denial is without prejudice to renewing the motion to supplement after the district court has rendered a decision on the preliminary injunction in Arizona Contractors Association, Inc. V. Candelaria, No. CV 07-2496 PHXNVW, provided that decision is reached with reasonable promptness. in 07-17272, 07-17274 [0717272, 07-17274] (LA)
Case rejected from Circuit Mediation Program. (SB)
Filed Appellant CPLC renewal of (i) emergency motion for injunction pending appeal; and (ii) motion for leave to file supplemental brief. (COPY IN MOATT) [07-17272, 07-17274] served on 2/8/08 [07-17272, 07-17274] (SW)
Filed Appellant Wake Up Arizona! motion for leave to file supplemental memorandum in suppor of motion for injunction pending appeal with supplemental memorandum in support of motion for injunction pending appeal. (MOATT) [07-17272, 07-17274] served on 2/11/08 [07-17272, 0717274] (SW)
*FAX* Filed pltf aplts renewed emerg mtn for inj pending appeal under CR 27-3. [07-17272, 0717274] ; served on 2/12/08 MOATT (RCVD HARDCOOPY OF EMERGENCY MOTION FOR INJUNCTION) (CW)
Filed Defendants-Appellees response to (1) Chicanos Po La causa renewal of emergency motion for injunction pending appeal and motion for leave to file supplemental beif and (2) wake up AZ's motion for leave to file supplemental memorandum supporting motion for injunction pending

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appeal. served on 2/15/08 (MOATT) [07-17272, 07-17274] (SW)

02/19/2008

20

Filed Appellant CPLC, reply in support of (i) renewal of emergency motion and (ii) motion for leave to file supplemental brief. (COPY ON MOATT) [07-17272, 07-17274] (SW)

02/19/2008

22

Filed "FAXED ORIGINAL" Appellant AZ contractors Association, Inc. et al. motion for consolidation with identical appeals. (MOATT) [07-17272, 07-17274] served on 2/19/08 [07-17272, 07-17274] (SW)

02/20/2008

23

Filed Arizona Contractors response to defendants-aples motion strike. served on 2/19/08 (MOATT) [07-17272, 07-17274] (SW)

02/20/2008

24

Filed Wake Up Arizona! Arizona! reply to response to ; served on 2/19/08 (MOATT) [07-17272, 0717274] (SW)

02/22/2008

25

Filed attorney for Appellant in 07-17272 Civil Appeals Docketing Statement served on 2/19/08 (to CONFATT) [07-17272] [07-17272] (SW)

02/22/2008

26

Filed Appellant Arizona Contractors Corporate Disclosure Statement. Served on 2/21/08 (CASEFILE) [07-17272, 07-17274] (SW)

02/22/2008

27

Filed order MOATT (LN) The following briefing schedule govern these consolidated appeals: the consolidated opening briefs and excerpts of record are due March 31, 2008; the consolidated answering brief is due April 29, 2008; and the consolidated optional reply brief is due within 14 days after service of the answering brief. All parties on a side are encouraged to join in a single brief to the greatest extent practicable. The briefing schedule may be revised at a party's request following disposition of the pending emergency motions. [07-17272, 07-17274, 08-15357, 0815359, 08-15360] (SW)

02/28/2008

28

4 pg, 93.33 KB

Filed order (J. CLIFFORD WALLACE, EDWARD LEAVY and PAMELA ANN RYMER) Denying appellants' emergency motions for injunction pending appeal; Granting renewed motions of appellants Chicanos Por La Causa, Inc. and Wake Up Arizona!, Inc. for leave to file supplemental briefs in support of the emergency motion for injunction pending appeal; Granting Appellant Wake Up Arizona!, Inc.’s motion to join in the emergency motion filed by Arizona Contractors Association, Inc.; Granting the motions of appellees Andrew Thomas, Fidelis Garcia, Gale Garriott and Terry Goddard to file responses to the emergency motion in excess of 20 pages; Granting the various County Attorney appellees’ motions to join in Mr. Thomas’ response; Denying as moot all other pending motions. The previously-established briefing schedule remains in effect. (FAXED to parties on 2/28/08) (SS)

03/28/2008

29

Calendar check performed. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (MW)

03/31/2008

34

Filed original and 15 copies of Appellants (Informal: No) Consolidated opening brief of 61 pages. Five copies Excerpts of record in 6 volumes. Served on 03/31/2008. [07-17272, 07-17274, 0815357, 08-15359, 08-15360] (FT)

04/01/2008

31

1 pg, 142.88 KB

(Amended) Received original and 15 copies of Appellants Substitute opening brief (Informal: No) 61 pages. Served on 04/01/2008. Deficiency: Other deficiencies: motion pending Notified counsel. [0717272, 07-17274, 08-15357, 08-15359, 08-15360]--[Edited 04/07/2008 by BY]--[Edited 04/07/2008 by BY] (FT)

04/01/2008

32

Filed Appellants motion to file substitute or corrected brief (replacement).. Served on 04/01/2008. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (PANEL)--[Edited 04/16/2008 by BY] (FT)

04/02/2008

33

Received notice regarding proof of service. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (RC)

04/07/2008

40

1 pg, 128.57 KB

Received original and 15 copies of Amicus Curiae United States Hispanic Chamber of Commerce brief in 15 pages. Deficiency: Motion needed to file amicus brief. Served on. 04/07/2008 Notified counsel. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (FT)

04/07/2008

42

Filed Amicus Curiae United States Hispanic Chamber of Commerce in 07-17272 motion for leave to file brief as amicus curiae. Served on 04/07/2008. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (PANEL) (FT)

04/09/2008

35

Calendar materials being prepared. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (AM)

04/09/2008

36

Received original and 15 copies of Amicus Curiae Lawyers Committee For Civil Rights of the San Francisco Bay Area brief in 21 pages. Deficiency: Motion pending Served on. 04/09/2008 [0717272, 07-17274, 08-15357, 08-15359, 08-15360] (FT)

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04/09/2008

37

Filed Amicus Curiae Lawyers Committee For Civil Rights of the San Francisco Bay Area in 0717272, 07-17274, 08-15357, 08-15359, 08-15360 motion to file an amicus curiae brief, served on 04/09/2008 [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (PANEL)--[Edited 04/16/2008 by BY] (FT)

04/09/2008

38

Filed National Federation of Independent Business Small Business Legal Center motion to to become amicus curiae, served on 04/08/2008 [07-17272, 07-17274, 08-15357, 08-15359, 0815360] (PANEL) (Motion is attached to brief)--[Edited 04/16/2008 by BY] (FT)

04/09/2008

39

Received original and 15 copies of Amicus Curiae National Federation of Independent Business Small Business Legal Center in 07-17272, 07-17274 brief in 27 pages. Deficiency: Motion pending Other deficiencies: ( Font appears to be too small). Served on. 04/08/2008 . [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (FT)

04/14/2008

41

CALENDARED: 06/12/2008 9:00 AM San Francisco, CA Courtroom 1 (AM)

04/14/2008

43

1 pg, 152.48 KB

Received original and 15 copies of Amicus Curiaes Oklahoma State Chamber of Commerce, Associated Industries Incorporated, Florida Chamber of Commerce and Tennessee Chamber of Commerce brief in 29 pages. Deficiency: Motion needed to file amicus brief. Served on. 04/09/2008 Notified counsel. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (FT)

04/14/2008

46

Filed original and 15 copies of Florida Chamber of Commerce, Oklahoma State Chamber of Commerce and Tennessee Chamber of Commerce, etc amicus brief of 29 pages. Served on 04/09/2008 [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (PANEL) (FT)

04/17/2008

44

Filed appearance notice of Attorney(s) Omar C. Jadwat for party(s) - Chicanos Por La Causa, Inc. Valle Del Sol Inc - Somos America, in case 08-15360 Attorney(s) Omar C. Jadwat for party(s) Appellant CPLC Appellant Somos America, in case 07-17272 Attorney(s) Omar C. Jadwat for party(s) Appellant Chicanos Por La Causa, Inc. Appellant Somos America Valle Del Sol Inc, in case 08-15359 Attorney(s) Omar C. Jadwat for party(s) - Somos America - CPLC, in case 0717274.. Dated on "4/16/07". [07-17272, 07-17274, 08-15359, 08-15360] (RC)

04/18/2008

45

Added attorney Karen C. Tumlin for Appellants, in case 07-17272. (TSP)

04/25/2008

47

8 pg, 126.66 KB

Hearing Notice for JUNE Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Attention: The Notice of Docket Activity may not list your case number. Please open attached documents to view details about your case. [06-10529, 06-10733, 07-15921, 06-16189, 07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (AM)

04/25/2008

48

7 pg, 40.81 KB

Filed clerk order (Deputy Clerk:JF): The National Federation of Independent Business Small Business Legal Center and Associated Builders and Contractors, Inc.’s motion for leave to file an amicus brief is GRANTED. The United States Hispanic Chamber of Commerce’s motion for leave to file brief as amicus curiae is GRANTED. The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area et al.’s motion for leave to file and amicus curiae brief is GRANTED. PlaintiffAppellants’ motion for leave to file replacement brief is GRANTED. All the briefs are ordered filed. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (SC)

04/25/2008

49

Filed original and 15 copies of National Federation of Independent Business Small Business Legal Center in 07-17272 amicus brief of 27 pages. Served on 04/08/2008 [07-17272, 07-17289, 0717274, 08-15359, 08-15360] (FT)

04/25/2008

50

(AMENDED) Filed original and 15 copies of Lawyers Committee For Civil Rights of the San Francisco Bay Area in 07-17272 amicus brief of 21 pages. Served on 04/09/2008 [07-17272, 0717274, 08-15357, 08-15359, 08-15360] (PANEL)--[Edited 05/01/2008 by BY] (FT)

04/25/2008

58

Filed original and 15 copies of - Arizona Chamber of Commerce, Arizona Contractors Association, Arizona Employers for Immigration Reform Inc., Arizona Farm Bureau Federation, Arizona Hispanic Chamber of Commerce, Arizona Landscape Contractors' Association, Arizona Restaurant and Hospitality Association, Arizona Roofing Contractors Association, Associated Minority Contractors of America, Chamber of Commerce of the United States and National Roofing Contractors' Association in 07-17272 (Informal: No) substitutionOPENING brief of 61 pages.. Served on 04/01/2008. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] ( EXCERPTS ALREADY FILED WITH PREVIOUSLY FILED OPENING BRIEF) (FT)

04/25/2008

61

Filed original and 15 copies of United States Hispanic Chamber of Commerce's amicus brief, in support of aplts, of 15 pages. Served on 04/07/2008 [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (LA)

04/30/2008

51

(Amended) Filed original and 15 copies of Appellees Consolidated answering brief of 59 pages.

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Supplemental Excerpts of record in 1 volumes. Served on 04/29/2008. [07-17272, 07-17274, 0815357, 08-15359, 08-15360] (PANEL)--[Edited 05/01/2008 by BY] (FT)

05/06/2008

52

Filed original and 15 copies of Amicus Curiae American Unity Legal Defense in 07-17272, Amicus Curiae American Unity Legal Defense in 07-17274, Amicus Curiae American Unity Legal Defense in 08-15357, Amicus Curiae American Unity Legal Defense in 08-15359 and Amicus Curiae American Unity Legal Defense in 08-15360 amicus brief of 33 pages. Served on 05/05/2008 [0717272, 07-17274, 08-15357, 08-15359, 08-15360] (PANEL) (FT)

05/12/2008

53

3 pg, 27.95 KB

Filed clerk order (Deputy Clerk:pi): Granting Audio-Record Application from Capitol Media Services. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (PA)

05/13/2008

54

Filed original and 15 copies of Appellants (Informal: No) reply brief of 27 pages. Further excerpts of record in1volumes.. Served on 05/13/2008. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (FT)

05/16/2008

55

Received Attorney Michael Jay Lessler, Esq. for Appellee Terrence Haner in 08-15357, 08-15359, 08-15360 letter dated 05/13/2008 re: Mr. Hance should be on the aple's consolidated answering brief. Served on [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (RC)

06/02/2008

56

UPDATED CASE CALENDARED: 06/12/2008 9:00 AM San Francisco, CA Courtroom 1 (AW)

06/05/2008

57

ENTRY UPDATED. Filed - Plaintiffs' additional citations. Served on 6/5/08. (panel) [07-17272, 0717274, 08-15357, 08-15359, 08-15360] (RC)

06/11/2008

59

Filed Defendants' additional citations. Served on 06/10/2008. (panel) [07-17272, 07-17274, 0815357, 08-15359, 08-15360] (RC)

06/12/2008

60

ARGUED AND SUBMITTED TO MARY M. SCHROEDER, JOHN WALKER, JR. and N. RANDY SMITH. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (RT)

06/25/2008

62

Filed Plaintiffs/Appellants' additional citations. Served on 6/25/08. (panel) [07-17272, 07-17289, 0717274, 08-15357, 08-15359, 08-15360] (RC)

07/03/2008

63

Filed Appellees' response to Plaintiffs' 6/25/08 additional citations. Served on 07/02/2008. (panel) [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (RC)

07/08/2008

64

Filed Amicus Curiae National Federation of Independent Business Small Business Legal Center in 07-17272 letter in support of appellants' 6/25/08 corrrespondence to the court. Served on 7/01/2008. (panel) [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (EL)

09/17/2008

65

FILED OPINION (MARY M. SCHROEDER, JOHN WALKER, JR. and N. RANDY SMITH)

31 pg, 187.74 KB AFFIRMED. FILED AND ENTERED JUDGMENT. [07-17272, 07-17274, 08-15357, 08-15359, 0815360] (RP)

10/01/2008

66

Filed original and 50 copies of Appellants' petition for panel rehearing and petition for rehearing en banc Number of Pages 19. Served on 10/01/2008. Deficiency: None. Date circulated to the court: 10/02/2008 (PANEL-ACTIVE JUDGES-ANY INTERESTED SENIOR JUDGES) [07-17272, 0717274, 08-15357, 08-15359, 08-15360] (GV)

10/08/2008

68

Received original and 50 copies of Amici Curiae Lawyers Committee For Civil Rights of the San Francisco Bay Area , 11 pages. Deficiency: Motion pending . Served on 10/08/2008. (PANEL ALL ACTIVE JUDGES AND ALL INTERESTED SENIOR JUDGES) [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

10/09/2008

67

Filed Lawyers' Committee for Civil Rights of the San Francisco Bay Area's motion for leave to file an amicus curiae brief in support of Plas/Aplts' petition for rehearing; served on 10/8/08 (PANEL) [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

12/01/2008

69

7 pg, 36.79 KB

Filed order (MARY M. SCHROEDER, JOHN WALKER, JR. and N. RANDY SMITH) Within 14 days from the date of this order, defendants-appellees are directed to file a response to the petition for rehearing and suggestion for rehearing en banc filed by plaintiffs-appellants on October 1, 2008. An original and 50 copies of the response shall be filed with the Clerk of Court, and shall not exceed 15 pages. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (SC)

12/08/2008

70

Filed (ECF) Appellees Gale Garriott, Terry Goddard and Janet Napolitano Unopposed Motion to

4 pg, 101.41 KB extend time to comply with the order dated. Date of service: 12/08/2008. [6731073] (CM)

12/15/2008

71

Filed (ECF) Appellees Gale Garriott, Terry Goddard and Janet Napolitano in 07-17272, 07-17274,

19 pg, 721.4 KB 07-17289, Appellees Fidelis V Garcia, Gale Garriott and Terry Goddard in 08-15357, Appellees

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Fidelis V Garcia and Terry Goddard in 08-15359, 08-15360 response to Order , Order to set response by any party to anything. Date of service: 12/15/2008. [6739637]. [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (CM)

12/17/2008

72

8 pg, 43.06 KB

Electronically-filed document [71] Response to PFPR and/or PFREB (ECF Filing) is stricken because there is an error in the document. Document is not PDF. [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (LC)

12/18/2008

73

19 pg, 54.73 KB

Filed (ECF) Appellees Gale Garriott, Terry Goddard and Janet Napolitano in 07-17272, 07-17274, 07-17289, Appellees Fidelis V Garcia, Gale Garriott and Terry Goddard in 08-15357, 08-15359, 08-15360 response to Order , Order to set response by any party to anything. Date of service: 12/15/2008. [6742812]. [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (MO)

12/24/2008

74

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by

37 pg, 271.47 KB Eagle Forum Education & Legal Defense Fund. Date of service: 12/24/2008. [6748544] [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (LJJ)

03/09/2009

75

Filed order and amended opinion (MARY M. SCHROEDER, JOHN WALKER, JR. and N. RANDY

28 pg, 131.92 KB SMITH).The Opinion filed on September 17, 2008, and appearing at 544 F.3d 976, is amended as follows: (see order for full text). With these amendments, the panel judges have voted to deny the

petition for panel rehearing. Judges Schroeder and N.R. Smith have voted to deny the petition for

rehearing en banc, and Judge Walker so recommends. The full court has been advised of the

petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter

en banc. Fed. R. App. P. 35. The petition for rehearing and petition for rehearing en banc are

DENIED. No further petitions for rehearing or rehearing en banc will be accepted.[07-17272, 07-

17274, 08-15357, 08-15359, 08-15360] (RP)

03/12/2009

76

7 pg, 37.32 KB

Filed order (MARY M. SCHROEDER, JOHN WALKER, JR. and N. RANDY SMITH) Lawyers’ Committee for Civil Rights of the San Francisco Bay Area’s motion for leave to file an amicus curiae brief in support of Plaintiffs-Appellants’ petition for rehearing is DENIED. The motion for leave to file amicus curiae brief of Eagle Forum Education & Legal Defense Fund in support of Defendants-Appellees for denial of petitions for rehearing is DENIED. [07-17272, 07-17274, 0815357, 08-15359, 08-15360] (SC)

03/27/2009

77

8 pg, 42.05 KB

MANDATE ISSUED.(MMS, JW and NRS) [07-17272, 07-17289, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

06/09/2009

78

1 pg, 29.29 KB

Received letter from the Supreme Court dated 06/02/2009 regarding extending time to file Cert to an including 7/24/98. [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

08/07/2009

79

1 pg, 24.88 KB

Received notice from the Supreme Court: petition for certiorari filed on 07/24/2009. Supreme Court Number 09-115. [7020681] [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

06/16/2010

80

Terminated Charles A. Blanchard for Wake Up Arizona! Inc in 08-15357, Wake Up Arizona! Inc in 08-15359 and Wake Up Arizona! Inc in 08-15360 [7373615] [08-15360, 07-17272, 07-17274, 0815357, 08-15359] -- Counsel no longer with Perkins Coie (per phone conversation with firm). Assistant sent information with instructions on how to update ECF account. (ASW)

06/30/2010

81

1 pg, 22.91 KB

Received notice from the Supreme Court. Petition for certiorari GRANTED on 06/28/2010. Supreme Court Number 09-115. [7390989] [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (GV)

09/24/2010

82

Transmitted to the U.S. Supreme Court: 1 volume(s) of 9th Circuit U.S. Court of Appeals record proceedings; the district court record is electronic. U.S. Supreme Court Case Number: 09-115. Tracking Information: FedEx 943607172320. [7486296] [07-17272, 07-17274, 08-15357, 08-15359, 08-15360] (SS)

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 Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 1 of 34
CLOSED, LEAD, STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:07−cv−02496−NVW

Arizona Contractors Association, Inc., et al v. Candelaria, et al Assigned to: Judge Neil V Wake Member case: (View Member Case) Case: 2:07−cv−02518−NVW
Case in other court: Ninth Circuit, 08−15357
Ninth Circuit, 08−15359
Ninth Circuit, 08−15360 Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 12/09/2007 Date Terminated: 02/07/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Arizona Contractors Association Incorporated an Arizona non−profit corporation

represented by David A Selden Ballard Spahr LLP 3300 N Central Ave Ste 1800 Phoenix, AZ 85012 602−798−5477 Fax: 602−798−5595 Email: seldend@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell ACLU Foundation Immigrants Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0774 Fax: 415−395−0950 Email: jnewell@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag ACLU Foundation Immigrants Rights Project 125 Broad St 18th Floor New York, NY 10004 212−549−2660 Fax: 212−549−2654 Email: lguttentag@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman Ballard Spahr Andrews &Ingersoll LLP 3300 N Central Ave Ste 800 Phoenix, AZ 85012 602−798−5400 Fax: 602−798−5595 Email: nunngilmanh@ballardspahr.com ATTORNEY TO BE NOTICED

Julie A Pace Ballard Spahr Andrews &Ingersoll LLP 3300 N Central Ave

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 2 of 34

Ste 1800 Phoenix, AZ 85012 602−798−5477 Fax: 602−798−5595 Email: pacej@ballardspahr.com ATTORNEY TO BE NOTICED

Louis R Moffa , Jr Ballard Spahr Andrews &Ingersoll LLC Plaza 1000 Ste 500 Main St Voorhees, NJ 08043−4636 856−761−3493 Fax: 856−761−1020 Email: moffal@ballardspahr.com ATTORNEY TO BE NOTICED

Robin S Conrad , National Chamber Litigation Ctr 1615 H St NW Washington, DC 20062 202−463−5337 Fax: 202−463−5346 Email: rconrad@uschamber.com ATTORNEY TO BE NOTICED

Plaintiff
Arizona Employers for Immigration Reform Incorporated an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
United States Chamber of Commerce a Washington D.C. non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 3 of 34

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Arizona Chamber of Commerce

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arizona Hispanic Chamber of Commerce Incorporated an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 4 of 34

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arizona Farm Bureau Federation an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arizona Restaurant and Hospitality Association an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 5 of 34

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Associated Minority Contractors of America an Arizona non−profit limited liability company

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arizona Roofing Contractors Association an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 6 of 34

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
National Roofing Contractors Association an Illinois not−for−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Wake Up Arizona! Incorporated an Arizona non−profit corporation

represented by Charles A Blanchard Perkins Coie Brown &Bain PA PO Box 400 Phoenix, AZ 85001−0400

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 7 of 34

602−351−8000 Fax: 602−648−7045 Email: CBlanchard@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Selden (See above for address) TERMINATED: 12/18/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joel W Nomkin Perkins Coie LLP PO Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7185 Email: JNomkin@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heidi Nunn−Gilman (See above for address) TERMINATED: 12/18/2007 ATTORNEY TO BE NOTICED

Julie A Pace (See above for address) TERMINATED: 12/18/2007 ATTORNEY TO BE NOTICED

Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED

Paul F Eckstein Perkins Coie LLP PO Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7122 Email: PEckstein@perkinscoie.com ATTORNEY TO BE NOTICED

Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arizona Landscape Contractors Association Incorporated an Arizona non−profit corporation

represented by David A Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 8 of 34

Plaintiff Valle Del Sol Incorporated

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heidi Nunn−Gilman (See above for address) ATTORNEY TO BE NOTICED
Julie A Pace (See above for address) ATTORNEY TO BE NOTICED
Louis R Moffa , Jr (See above for address) ATTORNEY TO BE NOTICED
Robin S Conrad , (See above for address) ATTORNEY TO BE NOTICED
represented by Cynthia Valenzuela Dixon MALDEF 634 S Spring St 11th Floor Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: cvalenzuela@maldef.org ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda ACLU 3707 N 7th St., Ste. 235 Phoenix, AZ 85014 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org ATTORNEY TO BE NOTICED
Jennifer Chang Newell (See above for address) ATTORNEY TO BE NOTICED
Jonathan Weissglass Altshuler Berzon LLP 177 Post St Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jweissglass@altshulerberzon.com ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin National Immigration Law Ctr 3435 Wilshire Blvd

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 9 of 34
Ste 2850 Los Angeles, CA 90010 213−674−2850 Fax: 213−639−3911 Email: tumlin@nilc.org ATTORNEY TO BE NOTICED
Kristina Michelle Campbell MALDEF 634 S Spring St 11th Floor Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: kcampbell@maldef.org ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Ctr 3435 Wilshire Blvd Ste 2850 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: joaquin@nilc.org ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED
Monica Teresa Guizar National Immigration Law Ctr 3435 Wilshire Blvd Ste 2850 Los Angeles, CA 90010 213−674−2823 Fax: 213−639−3911 Email: guizar@nilc.org ATTORNEY TO BE NOTICED
Omar C Jadwat ACLU Immigrants Rights Project 125 Broad St 18th Floor New York, NY 10011 212−549−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org ATTORNEY TO BE NOTICED
Rebecca Smullin Altshuler Berzon LLP 177 Post St Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8094 Email: rsmullin@altshulerberzon.com ATTORNEY TO BE NOTICED
Stephen Paul Berzon Altshuler Berzon LLP 177 Post St

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 10 of 34

Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sberzon@altshulerberzon.com ATTORNEY TO BE NOTICED

Plaintiff Chicanos Por La Causa Incorporated

represented by Cynthia Valenzuela Dixon (See above for address) ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) ATTORNEY TO BE NOTICED

Jonathan Weissglass (See above for address) ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) ATTORNEY TO BE NOTICED

Kristina Michelle Campbell (See above for address) ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED

Monica Teresa Guizar (See above for address) ATTORNEY TO BE NOTICED

Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED

Rebecca Smullin (See above for address) ATTORNEY TO BE NOTICED

Stephen Paul Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Somos America

represented by Cynthia Valenzuela Dixon (See above for address) ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 11 of 34

Jennifer Chang Newell (See above for address) ATTORNEY TO BE NOTICED
Jonathan Weissglass (See above for address) ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) ATTORNEY TO BE NOTICED
Kristina Michelle Campbell (See above for address) ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED
Monica Teresa Guizar (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED
Rebecca Smullin (See above for address) ATTORNEY TO BE NOTICED
Stephen Paul Berzon (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Criss E Candelaria Apache County Attorney also known as Criss Candelaria
Defendant Ed Rheinheimer Cochise County Attorney
Defendant Terence C Haner Coconino County Attorney

represented by Roger William Hall Buckley King 2020 N Central Ave Ste 1120 Phoenix, AZ 85004 602−424−2550 Fax: 602−424−2566 Email: rhall@buckleyking.com
represented by Roger William Hall (See above for address)
represented by Michael Jay Lessler Coconino County Attorneys Office 110 E Cherry St Flagstaff, AZ 86001−4627

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 12 of 34

928−779−6518 Fax: 928−779−5618 Email: mlessler@coconino.az.gov ATTORNEY TO BE NOTICED

Defendant
Daisy Flores Gila County Attorney

represented by Roger William Hall (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kenny Angle Graham County Attorney

represented by Roger William Hall (See above for address)

Defendant
Derek D Rapier Greenlee County Attorney

represented by Roger William Hall (See above for address)

Defendant
Martin Brannan LaPaz County Attorney

represented by Roger William Hall (See above for address)

Defendant
Andrew P Thomas Maricopa County Attorney

represented by Georgia A Staton Jones Skelton &Hochuli PLC 2901 N Central Ave., Ste. 800 Phoenix, AZ 85012 602−263−1700 Fax: 602−200−7854 Email: gstaton@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eileen Dennis GilBride Jones Skelton &Hochuli PLC 2901 N Central Ave Ste 800 Phoenix, AZ 85012 602−263−1700 Fax: 602−200−7827 Email: egilbride@jshfirm.com ATTORNEY TO BE NOTICED

Defendant
Matthew J Smith Mohave County Attorney

represented by Roger William Hall (See above for address)

Defendant
James Currier Navajo County Attorney

represented by Roger William Hall (See above for address)

Defendant
Barbara Lawall Pima County Attorney

represented by Daniel S Jurkowitz Pima County Attorneys Office 32 N Stone Ave., Ste. 2100 Tucson, AZ 85701 520−740−5750 Fax: 520−740−5600 Email: Daniel.Jurkowitz@pcao.pima.gov ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 13 of 34

Defendant James P Walsh Pinal County Attorney
Defendant George Silva Santa Cruz County Attorney Defendant Sheila Polk Yavapai County Attorney Defendant Jon Smith Yuma County Attorney
Defendant Terry L Goddard Attorney General of the State of Arizona TERMINATED: 02/07/2008
Defendant Fidelis V Garcia Director of the Arizona Registrar of Contractors
Defendant Gale Garriott in his official capacity as the Director of

represented by Chris Myrl Roll Pinal County Attorneys Office PO Box 887 Florence, AZ 85232 520−866−6271 Fax: 520−866−6521 Email: chris.roll@pinalcountyaz.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Roger William Hall (See above for address)
represented by Roger William Hall (See above for address) ATTORNEY TO BE NOTICED
represented by William J Kerekes Yuma County Attorneys Office 250 W 2nd St Ste G Yuma, AZ 85364 928−817−4300 Fax: 928−817−4321 Email: YCAttyCivil@yumacountyaz.gov ATTORNEY TO BE NOTICED
represented by Christopher Arthur Munns Office of the Attorney General 1275 W Washington St Phoenix, AZ 85007 602−542−7997 Fax: 602−364−3202 Email: christopher.munns@azag.gov
Mary Ruth OGrady Office of the Attorney General 1275 W Washington Phoenix, AZ 85007−2997 602−542−8986 Fax: 602−542−8308 Email: mary.ogrady@azag.gov
represented by Christopher Arthur Munns (See above for address) ATTORNEY TO BE NOTICED
Mary Ruth OGrady (See above for address) ATTORNEY TO BE NOTICED

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 14 of 34

the Arizona Department of Revenue

Defendant Melvin R Bowers, Jr.

represented by Lance B Payette Navajo County Attorney PO Box 668 Holbrook, AZ 86025 928−524−4002 Fax: 928−524−4244 Email: lance.payette@navajocountyaz.gov ATTORNEY TO BE NOTICED

Defendant Melvin R Bowers, Jr.

represented by Roger William Hall (See above for address)

Date Filed 12/09/2007 12/10/2007 12/10/2007 12/10/2007 12/10/2007 12/10/2007
12/10/2007 12/10/2007
12/10/2007

# Docket Text
1 COMPLAINT. Filing fee received: $ 350.00, receipt number 09700000000001598760 (TRO Requested), filed by Arizona Contractors Association, Inc..(Selden, David) (Entered: 12/10/2007)
2 Corporate Disclosure Statement by Arizona Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
3 Additional Attachments to Main Document Civil Cover Sheet by Plaintiff Arizona Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
4 MOTION for Temporary Restraining Order and Preliminary Injunction by Arizona Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
Notice of request for e−notices by Faith Klepper. (Klepper, Faith) (Entered: 12/10/2007)
5 Notice re Summons by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America (Attachments: # 1 Summons Cochise County, # 2 Summons Coconino County, # 3 Summons Flores Gila County, # 4 Summons Angle Graham, # 5 Summons Rapier Greenlee, # 6 Summons Brannan La Paz, # 7 Summons Thomas Maricopa, # 8 Summons Currier Navajo, # 9 Summons LaWall Pima, # 10 Summons Walsh Pinal County, # 11 Summons Silva Santa Cruz County, # 12 Summons Polk Yavapai County, # 13 Summons Smith Yuma, # 14 Summons Goddard AG, # 15 Summons Garcia ROC, # 16 Summons Smith Mohave)(Selden, David) (Entered: 12/10/2007)
6 ORDER REASSIGNING CASE. Case reassigned to Judge Mary H Murguia for all further proceedings. Judge Earl H Carroll no longer assigned to case. All future pleaddings should now list the following complete case number: CV 07−2496 PHX−MHM. Signed by Judge Earl H Carroll on 12/10/07. (Attachments: # 1 Letter of Reassignment)(LSP) (Entered: 12/10/2007)
7 Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d) by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
Notice of request for e−notices by Barry H. Uhrman. (Uhrman, Barry) (Entered: 12/10/2007)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 15 of 34

12/10/2007 12/10/2007
12/10/2007 12/10/2007 12/10/2007
12/10/2007 12/11/2007 12/11/2007 12/11/2007

8 Notice re Summons of Terence Haner by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc. (Selden, David) (Entered: 12/10/2007)
9 Summons Issued as to Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Andrew P Thomas, Matthew J Smith, James Currier, Barbara LaWall, James P Walsh, George Silva, Sheila Polk, Jon Smith, Terry Goddard, Fidelis V Garcia. (Attachments: # 1 Angle, # 2 Brannan, # 3 Currier, # 4 Flores, # 5 Garcia, # 6 Goddard, # 7 LaWall, # 8 Matthew, # 9 Polk, # 10 Rapier, # 11 Rheinheimer, # 12 Silva, # 13 Smith, # 14 Thomas, # 15 Walsh)(REK). *** IMPORTANT: You must select "Document and stamps" or "Document and comments" on the print screen in order for the court seal to appear on the summons you print. (Entered: 12/10/2007)
10 Summons Issued as to Terence C Haner. (REK). *** IMPORTANT: You must select "Document and stamps" or "Document and comments" on the print screen in order for the court seal to appear on the summons you print. (Entered: 12/10/2007)
11 MOTION for Leave to File Excess Pages for Motion to Exceed Page Limit by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
12 LODGED Proposed Legal Brief in Support of Temporary Restraining Order and Motion for Preliminary Injunction re: 11 MOTION for Leave to File Excess Pages for Motion to Exceed Page Limit. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
13 MOTION for Protective Order Regarding John Doe Members by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/10/2007)
14 ORDER REASSIGNING CASE. Case reassigned to Judge Neil V Wake for all further proceedings. Judge Mary H Murguia no longer assigned to case. All future pleadings in this matter should list the following complete case number: CV 07−2496 PHX−NVW. Signed by Judge Mary H Murguia on 12/10/07. (Attachments: # 1 Reassignment Letter)(LSP) (Entered: 12/11/2007)
15 NOTICE of Appearance by Mary Ruth O'Grady on behalf of Terry Goddard, Fidelis V Garcia (O'Grady, Mary) (Entered: 12/11/2007)
16 Notice re Summons to Melvin R. Bowers, Jr., Navajo County Attorney by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 16 of 34

12/11/2007 12/11/2007
12/11/2007
12/12/2007 12/12/2007
12/12/2007 12/12/2007 12/12/2007
12/13/2007 12/13/2007 12/13/2007 12/13/2007 12/13/2007

America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc. (Selden, David) (Entered: 12/11/2007)
17 NOTICE of Appearance by Eileen Dennis GilBride on behalf of Andrew P Thomas (GilBride, Eileen) (Entered: 12/11/2007)
18 ORDER − IT IS ORDERED that Plaintiffs' 11 Motion to Exceed Page Limit is granted, and Plaintiff's Legal Brief in Support of Temporary Restraining Order and Motion for Preliminary Injunction (lodged at doc. #12) shall be deemed filed December 10, 2007. Signed by Judge Neil V Wake on 12/11/07.(SAT) (Entered: 12/11/2007)
19 Legal BRIEF in Support of 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc. (SAT) (Entered: 12/11/2007)
20 NOTICE of Appearance by Christopher Arthur Munns on behalf of Terry Goddard, Fidelis V Garcia (Munns, Christopher) (Entered: 12/12/2007)
21 MOTION for Admission Pro Hac Vice as to attorney Louis R. Moffa Jr. by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Moffa, Louis) (Entered: 12/12/2007)
Notice of request for e−notices by Donald Peder Johnsen. (Johnsen, Donald) (Entered: 12/12/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX065701 as to Louis R Moffa, Jr. (BAS, ) (Entered: 12/12/2007)
22 ORDER pursuant to General Order 05−25 granting 21 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/12/2007)
Notice of request for e−notices by Jill J. Chasson. (Chasson, Jill) (Entered: 12/13/2007)
23 ORDER setting hearing on 4 MOTION for Temporary Restraining Order for 12/18/2007 at 1:30 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V. Wake. Signed by Judge Neil V. Wake on 12/13/2007. (NVW, ) (Entered: 12/13/2007)
Notice of request for e−notices by Jeffrey Toppel. (Toppel, Jeffrey) (Entered: 12/13/2007)
24 NOTICE of Appearance by Michael Jay Lessler on behalf of Terence C Haner (Lessler, Michael) (Entered: 12/13/2007)
25 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Andrew P Thomas served on

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 17 of 34

12/13/2007 12/13/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007

12/10/2007. (Selden, David) (Entered: 12/13/2007)
26 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Fidelis V Garcia served on 12/10/2007. (Selden, David) (Entered: 12/13/2007)
27 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Terry Goddard served on 12/10/2007. (Selden, David) (Entered: 12/13/2007)
28 NOTICE of Appearance by Chris Myrl Roll on behalf of James P Walsh (Roll, Chris) (Entered: 12/14/2007)
29 CONSOLIDATION ORDER − LEAD CASE with Member Case CV 07−2518 PHX−FJM. Plaintiff's 2 Motion to Reassign and Consolidate in CV 07−2518 is granted. Motion Hearing re 3 Motion for Temporary Restraining Order is set for 12/18/07 at 1:30. Signed by Judge Neil V Wake on 12/14/07. (Attachments: # 1 Letter)(LSP) (Entered: 12/14/2007)
30 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. James P Walsh served on 12/11/2007. (Selden, David) (Entered: 12/14/2007)
31 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Barbara LaWall served on 12/11/2007. (Selden, David) (Entered: 12/14/2007)
32 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Daisy Flores served on 12/11/2007. (Selden, David) (Entered: 12/14/2007)
33 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Jon Smith served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
34 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 18 of 34

12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007

Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Sheila Polk served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
35 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Matthew J Smith served on 12/13/2007. (Selden, David) (Entered: 12/14/2007)
36 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Martin Brannan served on 12/13/2007. (Selden, David) (Entered: 12/14/2007)
37 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Criss Candelaria served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
38 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. James Currier served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
39 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Terence C Haner served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
40 RESPONSE to Motion re 7 Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d)Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d)Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d) filed by Criss Candelaria. (O'Grady, Mary) (Entered: 12/14/2007)
41 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Derek D Rapier served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 19 of 34

12/14/2007 12/14/2007 12/14/2007 12/14/2007 12/16/2007
12/17/2007 12/17/2007

42 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Kenny Angle served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
43 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. Ed Rheinheimer served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
44 SUMMONS Returned Executed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc.. George Silva served on 12/12/2007. (Selden, David) (Entered: 12/14/2007)
45 Notice re Notice of Service of Plaintiffs' First Request for Production of Documents and First Request for Admissions by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Plaintiffs, # 2 Exhibit Plaintiffs' First Request for Production of Documents)(Selden, David) (Entered: 12/14/2007)
46 Notice re Notice of Filing of Attachments to Legal Brief in Support of Motion for Temporary Restraining Order and Preliminary Injunction by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Wake Up Arizona! Inc., Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Exbibit A−E to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction, # 2 Exhibit Exhibits F−I to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction, # 3 Exhibit Exhibit J to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction, # 4 Exhibit Exhibit J (cont.) to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction, # 5 Exhibit Exhibits K−L to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction, # 6 Exhibit Exhibit M−Q to Notice of Filing of Attachments to Legal Brief in Support of Motion for TRO and Preliminary Injunction)(Selden, David) (Entered: 12/16/2007)
47 NOTICE of Appearance by Daniel S Jurkowitz on behalf of Barbara LaWall (Jurkowitz, Daniel) (Entered: 12/17/2007)
48 EX PARTE MOTION Application for Substitution of Counsel (With Client Approval) by Wake Up Arizona! Inc.. (Attachments: # 1 Text of Proposed Order Order Granting Ex Parte Application)(Eckstein, Paul) (Entered: 12/17/2007)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 20 of 34

12/17/2007 12/17/2007 12/17/2007
12/17/2007
12/17/2007
12/18/2007 12/18/2007 12/18/2007
12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007

49 Notice re of Errata by Wake Up Arizona! Inc. (Attachments: # 1 Errata Ex Parte Application for Substitution of Counsel (attaching omitted signed Client Approval page))(Eckstein, Paul) (Entered: 12/17/2007)
50 OBJECTION re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Andrew P Thomas. (GilBride, Eileen) (Entered: 12/17/2007)
51 OBJECTION re 7 Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d)Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d)Joint MOTION to Expedite Motion for Expedited Discovery and to Waive Rule 26(d) filed by Andrew P Thomas. (GilBride, Eileen) (Entered: 12/17/2007)
52 SUPPLEMENT of Supplemental Brief in Support of Motion for a Temporary Restraining Order and in Response to the Court's December 13, 2007 Order by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Moffa, Louis) (Entered: 12/17/2007)
53 RESPONSE to Motion re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Criss Candelaria. (Attachments: # 1 Exhibit Transcript excerpt, # 2 Exhibit 2007 E−verify evaluation part 1, # 3 Exhibit 2007 e−verify evaluation part 2, # 4 Exhibit 2007 e−verify evaluation part 3, # 5 Exhibit 2007 e−verify evaluation part 4, # 6 Exhibit E−verify manual, # 7 Exhibit Congressional RS Service, # 8 Exhibit DHS/COmmerce Fact Sheet &Joint statement, # 9 Exhibit Defendants Response)(O'Grady, Mary) (Entered: 12/17/2007)
54 MOTION for Admission Pro Hac Vice as to attorney Jonathan Weissglass on behalf of plaintiffs Valle Del Sol Inc, Chicanos Por La Causa, Inc., and Somos America. (BAS, ) (Entered: 12/18/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX065826 as to Jonathan Weissglass. (BAS, ) (Entered: 12/18/2007)
55 ORDER pursuant to General Order 05−25 granting 54 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/18/2007)
56 NOTICE of Appearance by Lance B Payette on behalf of Melvin R Bowers, Jr (Payette, Lance) (Entered: 12/18/2007)
Notice of request for e−notices by Joel Nomkin. (Nomkin, Joel) (Entered: 12/18/2007)
Notice of request for e−notices by Charles Blanchard. (Blanchard, Charles) (Entered: 12/18/2007)
Notice of request for e−notices by Steven Monde. (Monde, Steven) (Entered: 12/18/2007)
57 RESPONSE to Motion re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Terry Goddard, Fidelis V Garcia, Gale Garriott. (Munns, Christopher) (Entered: 12/18/2007)
58 Notice re of Supplemental Authority by Terry Goddard, Fidelis V Garcia, Gale Garriott (Attachments: # 1 Exhibit)(Munns, Christopher) (Entered: 12/18/2007)
59 ORDER granting 48 EX PARTE MOTION for Substitution of Counsel (With Client Approval). Attorney Paul F Eckstein, Joel W Nomkin and Charles A Blanchard for Wake Up Arizona! Inc added. Attorney David A Selden; Heidi Nunn−Gilman and Julie A Pace terminated for Wake Up Arizona! Inc. Signed by

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 21 of 34

12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007
12/19/2007

Judge Neil V Wake on 12/17/07. (LSP) (Entered: 12/18/2007)
60 Notice re Notice of Submission of Additional Declarations in Support of Temporary Restraining Order and Application for Preliminary Injunction by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Declarations)(Selden, David) (Entered: 12/18/2007)
61 REPORT of Business Group Plaintiffs' Report to the Court Regarding Scheduling and Procedural Matters for the December 18, 2007 Hearing by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/18/2007)
62 Notice re Notice of Submission of Complete Copy of Levecke Declaration by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. re 60 Other Notice,, (Attachments: # 1 Exhibit Declaration of Jason LeVecke)(Selden, David) (Entered: 12/18/2007)
63 Reply re 50 Objection to Motion for Temporary Restraining Order by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Maricopa County Attorney Press Release 12/17/07)(Selden, David) Modified on 12/19/2007, DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE, (LSP). (Entered: 12/18/2007)
64 SUMMONS Returned Executed by Valle Del Sol Inc. Andrew P Thomas served on 12/14/2007; Terry Goddard served on 12/14/2007; Gale Garriott served on 12/14/2007. (Attachments: # 1 Service of Summons on Garriott, # 2 Service of Summons on Goddard)(Weissglass, Jonathan) (Entered: 12/18/2007)
65 Minute Entry: Proceedings held before Judge Neil V Wake: Motion Hearing held on 12/18/2007 re 4 MOTION for Temporary Restraining Order and Preliminary Injunction and Motions #91 and #94 in CV−07−1355; Scheduling Conference held on 12/18/2007. Discovery due by 1/11/2008. Taking under advisement 4 Motion for TRO and motions #91 and #94 in CV−07−1355. Preliminary Injunction Hearing set for 1/16/2008 09:00 AM before Judge Neil V Wake. Preliminary Injunction Hearing set for 1/17/2008 09:00 AM before Judge Neil V Wake. (Court Reporter Laurie Adams.)(LSP) Modified on 12/21/2007 (LAD). DOCKET TEXT MODIFIED TO REFLECT THAT MOTIONS #7 and #13 ARE NOT UNDER ADVISEMENT. MOTION #4 IN CV−07−2496 AND MOTIONS #91 and #94 IN CV−07−1355 ARE TAKEN UNDER ADVISEMENT. (Entered: 12/19/2007)
66 TRANSCRIPT DESIGNATION AND ORDER FORM by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors'

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 22 of 34

12/19/2007 12/19/2007 12/19/2007 12/19/2007 12/20/2007 12/20/2007
12/20/2007
12/21/2007 12/21/2007 12/21/2007 12/21/2007 12/21/2007
12/21/2007
12/21/2007

Association, Arizona Landscape Contractors Association, Inc. for proceedings held on 12/18/2007 before Judge Wake. (Selden, David) (Entered: 12/19/2007)
67 TRANSCRIPT DESIGNATION AND ORDER FORM by Valle Del Sol Inc for proceedings held on December 18, 2007 before Judge Neil V. Wake. (Weissglass, Jonathan) (Entered: 12/19/2007)
68 TRANSCRIPT DESIGNATION AND ORDER FORM by Terry Goddard, Fidelis V Garcia, Gale Garriott for proceedings held on 12/18/2007 before Judge Neil V. Wake. (O'Grady, Mary) (Entered: 12/19/2007)
69 MOTION for Admission Pro Hac Vice as to attorney Cynthia Valenzuela by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. (Valenzuela, Cynthia) (Entered: 12/19/2007)
Notice of request for e−notices by Taylor Young. (Young, Taylor) (Entered: 12/19/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX065964 as to Cynthia Ann Valenzuela. (BAS, ) (Entered: 12/20/2007)
70 ORDER pursuant to General Order 05−25 granting 69 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/20/2007)
71 Notice re of Submission of Corrected Brandt Declaration by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Selden, David) (Entered: 12/20/2007)
72 TRANSCRIPT DESIGNATION AND ORDER FORM by Andrew P Thomas for proceedings held on 12/18/07 before Judge Neil Wake. (GilBride, Eileen) (Entered: 12/21/2007)
Notice of request for e−notices by Catherine O'Grady with the Office of the Attorney General. (O'Grady, Catherine) (Entered: 12/21/2007)
73 MOTION for Admission Pro Hac Vice as to attorney Omar C Jadwat on behalf of plaintiffs Valle Del Sol Inc, Chicanos Por La Causa, Inc., and Somos America. (BAS, ) (Entered: 12/21/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX066017 as to Omar C Jadwat. (BAS, ) (Entered: 12/21/2007)
74 ORDER pursuant to General Order 05−25 granting 73 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/21/2007)
75 ORDER Plaintiffs' 4 MOTION for Temporary Restraining Order and Plaintiffs' Application for Temporary Restraining Order ( 3 in (CV 07−2518, now conslidated with CV 07−2496) is denied. This order does not dispose of the motions for preliminary injunction, which are set for hearing on January 16, 2007. Signed by Judge Neil V Wake on 12/21/07. (Attachments: # 1 Exhibit)(LSP) (Entered: 12/21/2007)
76 DECLARATION of Marioin "Mac" Magruder by Plaintiff Wake Up Arizona! Inc.. (Eckstein, Paul) (Entered: 12/21/2007)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 23 of 34

12/21/2007 12/21/2007 12/24/2007
12/24/2007
12/24/2007
12/26/2007 12/26/2007 12/26/2007 12/26/2007

77 Notice re of Filing Declaration of Marion "Mac" Magruder by Wake Up Arizona! Inc. re 76 Declaration (Eckstein, Paul) (Entered: 12/21/2007)
78 RESPONSE in Opposition re 13 MOTION for Protective Order Regarding John Doe Members filed by Criss Candelaria. (O'Grady, Mary) (Entered: 12/21/2007)
79 Notice re of Submission of Declaration and Report of Judith K. Gans by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Declaration of Judith K. Gans, # 2 Exhibit Judith Gans CV, # 3 Exhibit Exhibit 3−1 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 4 Exhibit Exhibit 3−2 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 5 Exhibit Exhibit 3−3 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 6 Exhibit Exhibit 3−4 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 7 Exhibit Exhibit 3−5 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 8 Exhibit Exhibit 3−6 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts", # 9 Exhibit Exhibit 3−7 − Report entitled "Immigrants in Arizona: Fiscal and Economic Impacts")(Selden, David) (Entered: 12/24/2007)
80 Notice re Notice of Expert Witness Designation of Marc R. Rosenblum, Ph.D. by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Exhibit 1 − Dr. Rosenblum CV, # 2 Exhibit Report of Dr. Rosenblum, # 3 Exhibit Testimony of Dr. Rosenblum)(Selden, David) (Entered: 12/24/2007)
81 Notice re Notice of Submission of Westat Report and Declaration of Heidi Nunn−Gilman by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Declaration of Heidi Nunn−Gilman, # 2 Exhibit Exhibit 2−1 (Westat Report), # 3 Exhibit Exhibit 2−2 (Westat Report), # 4 Exhibit Exhibit 2−3 (Westat Report), # 5 Exhibit Exhibit 2−4 (Westat Report), # 6 Exhibit Exhibit 2−5 (Westat Report), # 7 Exhibit Exhibit 2−6 (Westat Report), # 8 Exhibit Exhibit 2−7 (Westat Report), # 9 Exhibit Exhibit 2−8 (Westat Report), # 10 Exhibit Exhibit 2−9 (Westat Report))(Selden, David) (Entered: 12/24/2007)
82 MOTION for Admission Pro Hac Vice as to attorney Jennifer C Chang on behalf of the plaintiffs. (BAS, ) (Entered: 12/26/2007)
83 MOTION for Admission Pro Hac Vice as to attorney Lucas Guttentag on behalf of the plaintiffs. (BAS, ) (Entered: 12/26/2007)
PRO HAC VICE FEE PAID. $ 200, receipt number PHX066059 as to Jennifer C Chang, Lucas Guttentag. (BAS, ) (Entered: 12/26/2007)
84 ORDER pursuant to General Order 05−25 granting 82 Motion for Admission Pro Hac Vice; granting 83 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/26/2007)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 24 of 34

12/26/2007 12/27/2007 12/27/2007 12/27/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007
12/28/2007
12/31/2007 12/31/2007 12/31/2007 12/31/2007
01/02/2008

85 MOTION to Strike re Notice of Expert Designation re Rosenblum by Andrew P Thomas. (GilBride, Eileen) (Entered: 12/26/2007)
Notice of request for e−notices by Jennifer A. Baker. (Baker, Jennifer) (Entered: 12/27/2007)
Notice of request for e−notices by Mary Jo Foster, with the Office of the Attorney General. (Foster, Mary) (Entered: 12/27/2007)
86 NOTICE of Appearance by Roger William Hall on behalf of Criss Candelaria, Ed Rheinheimer, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, James Currier, George Silva, Sheila Polk (Hall, Roger) (Entered: 12/27/2007)
87 NOTICE of Appearance by Roger William Hall on behalf of Daisy Flores (Hall, Roger) (Entered: 12/28/2007)
88 Joinder re 78 Response in Opposition to Motion for Protective Order (Re John Doe Affidavits) by Defendant Andrew P Thomas filed by Andrew P Thomas. (GilBride, Eileen) (Entered: 12/28/2007)
89 Notice re Defendants' Notice of Willingness to Stipulate to Undisputed Facts by Terry Goddard, Fidelis V Garcia, Gale Garriott (Munns, Christopher) (Entered: 12/28/2007)
90 NOTICE of Appearance by Roger William Hall on behalf of Melvin R Bowers, Jr (Hall, Roger) (Entered: 12/28/2007)
91 Notice re Business Group Plaintiffs' Supplementation of Notice of Expert Witness Designation of Marc Rosenblum by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. re 80 Other Notice,, (Selden, David) (Entered: 12/28/2007)
92 RESPONSE in Opposition re 85 MOTION to Strike re Notice of Expert Designation re Rosenblum filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/28/2007)
93 REPLY in Support re 85 MOTION to Strike re Notice of Expert Designation re Rosenblum filed by Andrew P Thomas. (Attachments: # 1 Exhibit A and B)(GilBride, Eileen) (Entered: 12/31/2007)
94 MOTION to Expedite Ruling on Motion to Strike by Andrew P Thomas. (GilBride, Eileen) (Entered: 12/31/2007)
95 OBJECTION re 91 Other Notice,, to Plaintiffs' Supplementation of Rosenblum Designation by Defendant Andrew P Thomas. (GilBride, Eileen) (Entered: 12/31/2007)
96 STIPULATION Regarding Scheduling and Case Management Deadlines and Details by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 12/31/2007)
97 MOTION for Admission Pro Hac Vice as to attorney Robin S Conrad on behalf of Chamber of Commerce of the USA. (BAS, ) (Entered: 01/03/2008)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 25 of 34

01/02/2008
01/03/2008 01/03/2008 01/03/2008
01/04/2008
01/04/2008 01/04/2008 01/04/2008 01/04/2008 01/04/2008
01/04/2008

124 TRANSCRIPT of Proceedings re: Motion Hearing and Scheduling Conference re Preliminary Injunction held on 12/18/07 before Judge Neil V Wake. Court Reporter: Laurie A Adams. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/23/2008. Redacted Transcript Deadline set for 2/4/2008. Release of Transcript Restriction set for 4/1/2008. (BAS, ) (Entered: 01/10/2008)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX066205 as to Robin S Conrad. (BAS, ) (Entered: 01/03/2008)
98 ORDER pursuant to General Order 05−25 granting 97 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/03/2008)
99 REPLY in Support re 13 MOTION for Protective Order Regarding John Doe Members filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibits A and B to Reply re Motion for Protective Order)(Selden, David) (Entered: 01/03/2008)
100 ORDER denying 85 Dft Thomas' Motion to Strike Plaintiff's Expert Designation of Marc Rosenblum and 95 Objection to Plaintiff's "Supplementation" of Rosenblum Designation. Granting 94 Motion to Expedite Ruling. Paragraph 1 of 96 Stipulation, which would extend the time for Dfts to file responsive pleading to 2/15/08 is denied, Dfts time to answer is extended to 1/11/08. Paragraph 2 of 96 Stipulation, which withdraws certain discovery requests, is accepted on the assumption that Mr. Hall joins in it. The Parties shall Report to the court by 1/11/2008, an agreed schedule, or separate schedules if they cannot agree, for bringing this case to final trial on the merits as quickly as possible, bearing in mind that evidence presented at the preliminary injunction hearing need not be repeated. Motion Hearing on Plaintiff's Motions for Preliminary Injunction is continued to 1/16/08 at 1:30. Granting 7 Plaintiffs' Motion to Expedite Discovery. Signed by Judge Neil V Wake on 1/4/08.(LSP) (Entered: 01/04/2008)
101 MOTION for Admission Pro Hac Vice as to attorney Stephen P Berzon on behalf of plaintiffs Valle Del Sol Inc, Chicanos Por La Causa, Inc., and Somos America. (BAS, ) (Entered: 01/04/2008)
102 MOTION for Admission Pro Hac Vice as to attorney Rebecca Smullin on behalf of Valle Del Sol Inc, Chicanos Por La Causa, Inc., and Somos America. (BAS, ) (Entered: 01/04/2008)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX066308 as to Stephen Paul Berzon. (BAS, ) (Entered: 01/04/2008)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX066307 as to Rebecca Smullin. (BAS, ) (Entered: 01/04/2008)
103 ORDER pursuant to General Order 05−25 granting 101 Motion for Admission Pro Hac Vice; granting 102 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/04/2008)
104 MOTION for Admission Pro Hac Vice as to attorney Linton Joaquin on behalf of plaintiffs by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order Order for Admission Pro Hac Vice)(Joaquin, Linton) (Entered: 01/04/2008)

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01/07/2008 01/07/2008 01/08/2008 01/08/2008 01/08/2008 01/08/2008 01/08/2008

105 MOTION for Admission Pro Hac Vice as to attorney Karen C. Tumlin on behalf of plaintiffs by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order Proposed Order Admission Pro Hac Vice)(Tumlin, Karen) (Entered: 01/04/2008)
106 STIPULATION by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 01/04/2008)
107 RESPONSE to Motion re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Andrew P Thomas. (Attachments: # 1 Exhibit A to Thomas' Response to Motion for Preliminary Injunction, # 2 Exhibit B to Thomas' Response to Motion for Preliminary Injunction, # 3 Exhibit C &D to Thomas' Response to Motion for Preliminary Injunction)(GilBride, Eileen) (Entered: 01/07/2008)
108 AFFIDAVIT of George Borjas re 107 Response to Motion, in Support of Response to Motion for Preliminary Injunction by Defendant Andrew P Thomas. (Attachments: # 1 Appendix A, B &C)(GilBride, Eileen) (Entered: 01/07/2008)
109 MOTION for Leave to File Excess Pages. Filed by Terry Goddard. (O'Grady, Mary) Modified on 1/8/2008, INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Lodged Proposed" TO "Motion", (LSP). (Entered: 01/07/2008)
110 RESPONSE re 13 MOTION for Protective Order Regarding John Doe Members Response to the Court's Question Regarding Motion for Protective Order Regarding John Doe Declarations filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 01/07/2008)
111 ADDITIONAL ATTACHMENT Proposed Order Granting re 109 Defendants' Motion to Exceed Page Limit. Filed by Terry Goddard. (O'Grady, Mary) Modified on 1/8/2008, INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Lodged Proposed" TO "Additional Attachments", (LSP). (Entered: 01/07/2008)
112 RESPONSE to Motion re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Terry Goddard. (Attachments: # 1 Exhibit Exhibit 1 &2, # 2 Exhibit Exhibit 3, Part A, # 3 Exhibit Exhibit 3, Part B, # 4 Exhibit Exhibit 3, Part C, # 5 Exhibit Exhibit 3, Part D)(O'Grady, Mary) (Entered: 01/07/2008)
113 Joinder of Defendant James P. Walsh, Pinal County Attorney, to State 112 Defendants' Response to Motion for Preliminary Injunctions by Defendant James P Walsh. (Roll, Chris) Modified on 1/9/2008, DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE, (LSP). (Entered: 01/08/2008)
114 Notice re Notice Regarding Mootness of Plaintiffs Motion for Protective Order by Terry Goddard (O'Grady, Mary) (Entered: 01/08/2008)
115 Joinder re 114 Other Notice by State re Position on Mootness of PLs' Motion for Protective Order by Defendant Andrew P Thomas. (GilBride, Eileen) (Entered: 01/08/2008)
PRO HAC VICE FEE PAID. $ 200, receipt number PHX066310 as to Linton Joaquin, Karen Cassandra Tumlin. (BAS, ) (Entered: 01/08/2008)
116 ORDER pursuant to General Order 05−25 granting 104 Motion for Admission Pro Hac Vice; granting 105 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in

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01/10/2008

which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/08/2008)
117 MOTION for Admission Pro Hac Vice as to attorney Monica T. Guizar by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order)(Guizar, Monica) Modified on 1/9/2008, DOCUMENT FILED WITH INCORRECT CASE NUMBER, (LSP). (Entered: 01/08/2008)
118 Joinder in 112 Defendants' Response to Motions for Preliminary Injunction by Defendant Barbara LaWall filed by Barbara LaWall. (Jurkowitz, Daniel) Modified on 1/9/2008, DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE, (LSP). (Entered: 01/08/2008)
119 Joinder re 112 Response to Motion, 107 Response to Motion, Statement of Position by Defendants Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, George Silva, Sheila Polk, Melvin R Bowers, Jr filed by Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, George Silva, Sheila Polk, Melvin R Bowers, Jr. (Hall, Roger) (Entered: 01/08/2008)
120 Joinder re 114 Other Notice, 78 Response in Opposition to Motion by Defendant Sheila Polk filed by Sheila Polk. (Hall, Roger) (Entered: 01/08/2008)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX066310 as to Monica Teresa Guizar. (BAS, ) (Entered: 01/08/2008)
121 ORDER pursuant to General Order 05−25 granting 117 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/08/2008)
Remark as to attorney Shane Brennan Labor &Employment Counsel National Chamber Litigation Center Inc 1615 H St NW Washington DC 20062 removed from database per attorney request; party represented by other admitted counsel. (BAS, ) (Entered: 01/09/2008)
122 Joinder of Defendant Terence C. Hance, Coconino County Attorney, to State Defendants' Response to Motions for Preliminary Injunctions by Defendant Terence C Haner filed by Terence C Haner. (Lessler, Michael) (Entered: 01/09/2008)
123 AFFIDAVIT of George Borjas re 107 Response to Motion, (Supplemental Affidavit) in Support of Response to Plaintiffs' Motion for Preliminary Injunction by Defendant Andrew P Thomas. (GilBride, Eileen) (Entered: 01/10/2008)
125 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (BAS, ) (Entered: 01/10/2008)
126 ORDER granting 109 Motion for Leave to File Excess Pages; State Defendants' Response to Motions for Preliminary Injunction 112 shall be deemed filed 1/7/08. Signed by Judge Neil V Wake on 1/10/08.(LSP) (Entered: 01/10/2008)
127 Notice re Notice of Filing of Additional Evidence in Support of Reply by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Exhibits 1−6 to Notice of Filing of Additional Evidence in Support of Reply)(Selden, David) (Entered: 01/10/2008)
128 REPLY in Support re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Valle Del Sol Inc. (Weissglass, Jonathan) (Entered:

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01/10/2008)
129 MOTION for Leave to File Excess Pages for Motion to Exceed Page Limit Regarding Reply in Support of Motion for Preliminary Injunction and Judgment on the Merits by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 01/10/2008)
130 LODGED Proposed Reply in Support of Motion for Preliminary Injunction and Judgment on the Merits re: 129 MOTION for Leave to File Excess Pages for Motion to Exceed Page Limit Regarding Reply in Support of Motion for Preliminary Injunction and Judgment on the Merits. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) Modified on 1/11/2008, COVER SHEET IS MISSING, ATTORNEY NOTICED, (LSP). (Entered: 01/10/2008)
131 MOTION for Leave to File Excess Pages for Reply in Support of Motion for Preliminary Injunction by Wake Up Arizona! Inc.. (Attachments: # 1 Text of Proposed Order)(Blanchard, Charles) (Entered: 01/10/2008)
132 LODGED Proposed Reply in Support of Motion for Preliminary Injunction. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Wake Up Arizona! Inc.. (Blanchard, Charles) Modified on 1/11/2008, COVER SHEET IS MISSING, ATTORNEY NOTICED, (LSP). (Entered: 01/10/2008)
133 Notice re Second Notice of Filing of Additional Evidence in Support of Reply by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Exhibits 1−3 to Second Notice of Filing of Additional Evidence in Support of Reply)(Selden, David) (Entered: 01/10/2008)
144 REPLY to Response to Motion in Support of 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (SAT) (Entered: 01/11/2008)
146 REPLY to Response to Motion in Support of 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Wake Up Arizona! Inc.. (SAT) (Entered: 01/11/2008)
134 STIPULATION re Consolidation by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Pace, Julie) (Entered: 01/11/2008)

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01/11/2008 01/11/2008
01/11/2008 01/11/2008
01/11/2008

135 ANSWER to Complaint of ARIZONA CONTRACTORS INC., ET. AL. by Jon Smith.(Kerekes, William) (Entered: 01/11/2008)
136 Separate ANSWER to 1 Complaint in CIV07−2496 by Andrew P Thomas.(GilBride, Eileen) (Entered: 01/11/2008)
137 ANSWER to 1 Complaint by Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, George Silva, Sheila Polk, Melvin R Bowers, Jr.(Hall, Roger) (Entered: 01/11/2008)
138 Notice re Notice of Filing Separate Answer by Andrew P. Thomas to Complaint filed by Valle del Sol by Andrew P Thomas (GilBride, Eileen) (Entered: 01/11/2008)
139 ANSWER to 1 Complaint of Arizona Contractors Inc, et. al by James P Walsh.(Roll, Chris) (Entered: 01/11/2008)
140 ANSWER to 1 Complaint of AZ Contractors Inc. et al. by Terry Goddard.(O'Grady, Mary) (Entered: 01/11/2008)
141 JOINDER AND ANSWER to Complaint by Arizona Contractors et al by Barbara LaWall.(Jurkowitz, Daniel) (Entered: 01/11/2008)
142 ORDER − IT IS ORDERED that Plaintiffs' 129 Motion to Exceed Page Limit Regarding Reply in support of Motion for Preliminary Injunction and Judgment on the Merits is granted, and Plaintiffs' Reply in Support of Motion for Preliminary Injunction and Judgment on the Merits (lodged at doc. # 130) shall be deemed filed January 10, 2008. Signed by Judge Neil V Wake on 1/11/08.(SAT) (Entered: 01/11/2008)
143 ANSWER to 1 Complaint of Valle Del Sol, Inc. et al. by Terry Goddard.(O'Grady, Mary) (Entered: 01/11/2008)
145 ORDER − Upon consideration of Plaintiff Wake Up Arizona! Inc.'s 131 Motion to Exceed Page Limit, IT IS HEREBY ORDERED that the Motion is granted, and Wake Up Arizona! Inc.s Reply in Support of Motion for Preliminary Injunction (lodged at doc. # 132) shall be deemed filed January 10, 2008. Signed by Judge Neil V Wake on 1/11/08.(SAT) (Entered: 01/11/2008)
147 ORDER − IT IS THEREFORE ORDERED that Defendants may file sur−reply briefs to Plaintiff's reply briefs by January 16, 2008. Signed by Judge Neil V Wake on 1/11/08. (SAT) (Entered: 01/11/2008)
148 STATEMENT of Statement of Joint Stipulated Facts by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibits 1−7, # 2 Exhibit Exhibit 8 (part 1), # 3 Exhibit Exhibit 8 (part 2), # 4 Exhibit Exhibit 9, # 5 Exhibit Exhibit 10 (part 1), # 6 Exhibit Exhibit 10 (part 2))(Selden, David) (Entered: 01/11/2008)
149 Additional Attachments to Main Document re 148 Statement,, Exhibits 11−22 (part 4) to Statement of Stipulated Facts by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibit 13, # 2 Exhibit Exhibit 14, # 3 Exhibit Exhibits 15−16, # 4 Exhibit Exhibit 17−18, # 5 Exhibit Edhibits 19 − 22 (part 1), # 6 Exhibit Exhibit 22 (part 2), # 7 Exhibit Exhibit 22 (part 3), # 8 Exhibit Exhibit 22 (part 4))(Selden, David) (Entered: 01/11/2008)

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150 Additional Attachments to Main Document re 148 Statement,, Exhibits 23−44 by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibit 25 (part 1), # 2 Exhibit Exhibit 25 (part 2), # 3 Exhibit Exhibits 26−34, # 4 Exhibit Exhibit 35 (part 1), # 5 Exhibit Exhibit 35 (part 2), # 6 Exhibit Exhibit 35 (part 3), # 7 Exhibit Exhibit 35 (part 4), # 8 Exhibit Exhibit 36, # 9 Exhibit Exhibit 37, # 10 Exhibit Exhibit 38, # 11 Exhibit Exhibit 39, # 12 Exhibit Exhibits 40−41, # 13 Exhibit Exhibit 42 (part 1), # 14 Exhibit Exhibits 42 (part 2) − 44)(Selden, David) (Entered: 01/11/2008)
151 Additional Attachments to Main Document re 148 Statement,, Exhibits 45 − 47 by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibit 45 (part 2), # 2 Exhibit Exhibit 45 (part 3), # 3 Exhibit Exhibit 45 (part 4), # 4 Exhibit Exhibit 45 (part 5), # 5 Exhibit Exhibit 45 (part 6), # 6 Exhibit Exhibit 45 (part 7), # 7 Exhibit Exhibit 45 (part 8), # 8 Exhibit Exhibit 46 (part 1), # 9 Exhibit Exhibit 46 (part 2), # 10 Exhibit Exhibit 46 (part 3) − 47)(Selden, David) (Entered: 01/11/2008)
152 Additional Attachments to Main Document re 148 Statement,, Exhibits 48−61 by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Attachments: # 1 Exhibit Exhibit 49 (part 1), # 2 Exhibit Exhibit 49 (part 2) − 51, # 3 Exhibit Exhibit 52 (part 1), # 4 Exhibit Exhibit 52 (part 2), # 5 Exhibit Exhibit 52 (part 3), # 6 Exhibit Exhibit 52 (part 4), # 7 Exhibit Exhibit 52 (part 5), # 8 Exhibit Exhibit 52 (part 6), # 9 Exhibit Exhibit 52 (part 7), # 10 Exhibit Exhibits 53−56, # 11 Exhibit Exhibits 57−61)(Selden, David) (Entered: 01/11/2008)
153 ANSWER to 1 Complaint by Terence C Haner.(Lessler, Michael) (Entered: 01/11/2008)
154 ORDER granting 106 STIPULATION. Dfts named in this order are not required to respond to the Requests for Production of Documents and Request for Admission served on them on December 11−13, 2007 by Plaintiffs Arizona Contractors Association, Inc. et al.; as Business Group Plaintiffs have withdrawn their pending discovery requests. Signed by Judge Neil V Wake on 1/11/08. (LSP) (Entered: 01/14/2008)
155 ORDER granting 134 STIPULATION re Consolidation. The hearing on the Motion for Preliminary Injunction set for 1/16/08 is consolidated with a trial on the merits. See order for details of the filing deadlines. The fifth and sixth claims are withdrawn and dismissed without prejudice. Defendants shall submit their answers by 1/11/08. No motions to dismiss this case shall be filed by Defendants. Signed by Judge Neil V Wake on 1/11/08. (LSP) (Entered: 01/14/2008)
156 ORDER denying 13 Plas' Motion for Protective Order Regarding John Doe Members and the the anonymous affidavits are stricken, without prejudice to refiling the motion if Plaintiffs think it necessary. Signed by Judge Neil V Wake on 1/14/08.(LSP) (Entered: 01/14/2008)
157 Notice re Clarification of Record by Derek D Rapier re 144 Reply to Response to Motion,, (Hall, Roger) (Entered: 01/14/2008)

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01/14/2008
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158 Notice re Notice of Filing of Declaration and Supplemental Expert Report of Marc R. Rosenblum by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Attachments: # 1 Exhibit Declaration and Supplemental Expert Report of Marc R. Rosenblum)(Selden, David) (Entered: 01/14/2008)
159 AFFIDAVIT of George Borjas re 107 Response to Motion, (Second Supplemental Affidavit) for Preliminary Injunction by Defendant Andrew P Thomas. (GilBride, Eileen) (Entered: 01/14/2008)
160 ORDER that the parties be prepared to address the questions included in this order at the 1/16/08 trial. Signed by Judge Neil V Wake on 1/15/08. (LSP) (Entered: 01/15/2008)
161 BRIEF State Defendants' Sur−Reply by Defendant Terry Goddard filed by Terry Goddard. (O'Grady, Mary) (Entered: 01/15/2008)
162 Joinder of Defendant James P. Walsh to State Defendants' Sur−Reply by Defendant James P Walsh. (Roll, Chris) (Entered: 01/16/2008)
163 RESPONSE re 160 Order dated January 15, 2008 filed by the Court by Plaintiffs Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 01/16/2008)
164 Notice re of Filing Second Supplemental Affidavit of George Borjas by Andrew P Thomas re 159 Affidavit (GilBride, Eileen) (Entered: 01/16/2008)
165 Minute Entry. Proceedings held before Judge Neil V Wake: Bench Trial begun on 1/16/2008; Injunction Hearing held on 1/16/2008 re 4 MOTION for Preliminary Injunction, Court takes the issues under advisement. (Court Reporter Laurie Adams.)(LSP) (Entered: 01/17/2008)
202 TEXT−ONLY Minute Entry. Administrative Only to conclude bench trial entry from this date. Bench Trial completed on 1/16/2008. (Court Reporter Laurie Adams.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SJF, ) (Entered: 04/15/2008)
166 TRANSCRIPT DESIGNATION AND ORDER FORM by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. for proceedings held on 1−16−08 before Judge Wake. (Selden, David) (Entered: 01/17/2008)
167 TRANSCRIPT DESIGNATION AND ORDER FORM by Valle Del Sol Inc for proceedings held on 1/16/08 before Judge Neil V. Wake. (Weissglass, Jonathan) (Entered: 01/17/2008)
168 TRANSCRIPT DESIGNATION AND ORDER FORM by Wake Up Arizona! Inc. for proceedings held on January 16, 2008 before Judge Neil V. Wake. (Blanchard, Charles) (Entered: 01/18/2008)
169 TRANSCRIPT DESIGNATION AND ORDER FORM by Andrew P Thomas for proceedings held on 01/16/08 before Judge Neil V. Wake. (GilBride, Eileen) (Entered: 01/18/2008)

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170 TRANSCRIPT DESIGNATION AND ORDER FORM by Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, George Silva, Sheila Polk, Melvin R Bowers, Jr for proceedings held on January 16, 2008 before Judge Neil V. Wake. (Hall, Roger) (Entered: 01/18/2008)
171 TRANSCRIPT DESIGNATION AND ORDER FORM by Terry Goddard, Fidelis V Garcia, Gale Garriott for proceedings held on 01/16/2008 before Judge Neil V. Wake. (O'Grady, Mary) (Entered: 01/23/2008)
172 TRANSCRIPT of Proceedings re: Bench Trial − Injunction Hearing held on 1/16/08 before Judge Neil V Wake. Court Reporter: Laurie A Adams. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/14/2008. Redacted Transcript Deadline set for 2/25/2008. Release of Transcript Restriction set for 4/23/2008. (VAR) (Entered: 01/25/2008)
173 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (VAR) (Entered: 01/25/2008)
174 Notice re Notice of Supplemental Authority by Terry Goddard (O'Grady, Mary) (Entered: 02/01/2008)
175 ORDER − IT IS THEREFORE ORDERED that the Clerk enter jgm dismissing these actions as against Dft Arizona Atty General Terry Goddard without prejudice for lack of subject matter jurisdiction, there being no justiciable case or controversy against him. FURTHER ORDERED as to all other Dfts that the Clerk enter jgm against Plas and in favor of those Dfts and that Plas take nothing. The Clerk shall terminate this action. FURTHER ORDERED that the 4 Motion for TRO and Doc. # 3 in No. CV 07−2518 are denied. Signed by Judge Neil V Wake on 2/7/08. (SAT) (Entered: 02/07/2008)
176 JUDGMENT IN A CIVIL CASE − IT IS ORDERED AND ADJUDGED that pursuant to the Court's order filed February 7, 2008, Defendant Terry Goddard is dismissed without prejudice for lack of subject matter jurisdiction. Judgment is entered in favor of all remaining defendants and against plaintiffs. Plaintiffs to take nothing, and complaint and action are dismissed. (SAT) (Entered: 02/07/2008)
177 MEMORANDUM − re motion for injunction pending appeal and letters received from members of the public (see pdf attached for more details). Signed by Judge Neil V Wake on 2/7/08. (SAT) (Entered: 02/07/2008)
178 Notice re Notice of Appeal to 9th Circuit, as to 176 Judgment, 175 Order, and 75 Order by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (Selden, David) Modified on 2/12/2008, DOCKET TEXT MODIFIED TO CORRECT DOCUEMNT LINKAGE. INCORRECT EVENT TYPE SELECTED, THIS ENTRY REDOCKETED AT 186 , (LSP). (Entered: 02/08/2008)
179 NOTICE OF APPEAL to 9th Circuit, as to 75 Order, 175 Order and 176 Judgment by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. Filing fee received: $ 455.00, receipt number 09700000000001720891. (Weissglass, Jonathan) Modified on 2/12/2008, DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE, (LSP). (Entered: 02/08/2008)
180 NOTICE OF APPEAL to 9th Circuit, as to 176 Clerk's Judgment, 75 Order, 175 Order on Motion for TRO,, by Wake Up Arizona! Inc.. Filing fee received: $ 455.00, receipt number 09700000000001720944. (Blanchard, Charles) (Entered: 02/08/2008)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 455.00 receipt number 09700000000001721291 (Selden, David) (Entered: 02/08/2008)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 33 of 34

02/08/2008
02/11/2008
02/11/2008 02/11/2008 02/11/2008 02/12/2008 02/12/2008 02/12/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/13/2008 02/14/2008

186 NOTICE OF APPEAL to 9th Circuit, as to 176 Clerk's Judgment, 175 Order, and 75 Order, by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc. (NOTE: PDF document attached to docket entry 178 using incorrect docket event; redocketed to utilize correct "Notice of Appeal" event). (LSP) (Entered: 02/12/2008)
181 MOTION for Preliminary Injunction Pending Appeal by Arizona Employers for Immigration Reform, Inc., Chamber of Commerce of the USA, Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc., Arizona Farm Bureau Federation, Arizona Restaurant and Hospitality Association, Arizona Contractors Association, Inc., Associated Minority Contractors of America, Arizona Roofing Contractors Association, National Roofing Contractors' Association, Arizona Landscape Contractors Association, Inc.. (Selden, David) (Entered: 02/11/2008)
182 MOTION for Preliminary Injunction Pending Appeal by Valle Del Sol Inc. (Weissglass, Jonathan) (Entered: 02/11/2008)
183 Joinder re 181 MOTION for Preliminary Injunction Pending Appeal by Plaintiff Wake Up Arizona! Inc.. (Nomkin, Joel) (Entered: 02/11/2008)
CADS Sent re 179 Notice of Appeal : Civil Appeals Docketing Statement sent to 9th Circuit on this date. (ESL) (Entered: 02/11/2008)
184 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 179 Notice of Appeal. (LSP) (Entered: 02/12/2008)
185 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 180 Notice of Appeal. (LSP) (Entered: 02/12/2008)
187 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 186 Notice of Appeal. (LSP) (Entered: 02/12/2008)
188 RESPONSE in Opposition re 182 MOTION for Preliminary Injunction Pending Appeal, 181 MOTION for Preliminary Injunction Pending Appeal and Response to Request for Expedited Consideration Without Oral Argument filed by Andrew P Thomas. (GilBride, Eileen) (Entered: 02/13/2008)
189 RESPONSE to Motion re 182 MOTION for Preliminary Injunction Pending Appeal, 181 MOTION for Preliminary Injunction Pending Appeal filed by Terry Goddard, Fidelis V Garcia, Gale Garriott. (O'Grady, Mary) (Entered: 02/13/2008)
190 Joinder of Defendant James P. Walsh, Pinal County Attorney, to State Defendants' Response to Motions for Injunction Pending Appeal by Defendant James P Walsh. (Roll, Chris) (Entered: 02/13/2008)
191 Joinder in State Defendants' Response by Defendant Barbara LaWall filed by Barbara LaWall. (Jurkowitz, Daniel) (Entered: 02/13/2008)
192 Joinder in State Defendants' Response to Motions for Injunction Pending Appeal by Defendant Jon Smith. (Kerekes, William) (Entered: 02/13/2008)
193 Notice re Transcripts by Wake Up Arizona! Inc. (Blanchard, Charles) (Entered: 02/13/2008)
194 STATEMENT of of Position re State Defendants' Response to Motions for Injunction Pending Appeal re 189 Response to Motion by Defendants Criss Candelaria, Ed Rheinheimer, Daisy Flores, Kenny Angle, Derek D Rapier, Martin Brannan, Matthew J Smith, George Silva, Sheila Polk, Melvin R Bowers, Jr. (Hall, Roger) (Entered: 02/14/2008)

Case: 2:07-cv-2496 As of: 05/11/2011 10:29 AM MST 34 of 34

02/14/2008 02/15/2008
02/19/2008 02/25/2008 02/25/2008 02/25/2008 03/06/2008 04/03/2009

195 Joinder of Defendant Terence C. Hance, Coconino County Attorney, to State Defendants' Response to Motions for Injunction Pending Appeal by Defendant Terence C Haner. (Lessler, Michael) (Entered: 02/14/2008)
196 TRANSCRIPT DESIGNATION AND ORDER FORM by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America for proceedings held on 12/18/07 and 1/16/08 before Judge Neil V. Wake, re 179 Notice of Appeal, (Smullin, Rebecca) (Entered: 02/15/2008)
197 ORDER denying 181 Motion for Preliminary Injunction; denying 182 Motion for Preliminary Injunction and denying 183 Joinder. Signed by Judge Neil V Wake on 2/19/08.(LSP) (Entered: 02/19/2008)
198 Ninth Circuit Case Number 08−15357 for 178 and 186 Notice of Appeal filed by Arizona Contractors Association. (LSP) (Entered: 02/25/2008)
199 Ninth Circuit Case Number 08−15359 for 179 Notice of Appeal filed by Valle Del Sol, Inc. (LSP) (Entered: 02/25/2008)
200 Ninth Circuit Case Number 08−15360 for 180 Notice of Appeal filed by Wake Up Arizona, Inc. (LSP) (Entered: 02/25/2008)
201 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 179 Notice of Appeal, 180 Notice of Appeal, 186 Notice of Appeal. (LSP) (Entered: 03/06/2008)
203 MANDATE of 9th Circuit (Certified Copy), affirming the decision of the District Court, re: 08−15357, 08−15359, 08−15360 179 , 180 , 186 Noticea of Appeal (Attachments: # 1 Order and Amended Opinion, # 2 Opinion, # 3 NDA)(REW, ) (Entered: 04/03/2009)

 
 Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 1 of 6
CLOSED, CONSOLIDATED, STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:07−cv−02518−NVW

Valle Del Sol, Inc., et al v. Terry Goddard, et al Assigned to: Judge Neil V Wake Lead case: 2:07−cv−02496−NVW Member case: (View Member Case) Case: 2:07−cv−02496−NVW Cause: 42:1983 Civil Rights Act
Plaintiff
Valle Del Sol Incorporated

Date Filed: 12/12/2007 Date Terminated: 02/07/2008 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Kristina Michelle Campbell MALDEF 634 S Spring St 11th Floor Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: kcampbell@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Valenzuela Dixon MALDEF 634 S Spring St 11th Floor Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: cvalenzuela@maldef.org ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda ACLU 3707 N 7th St., Ste. 235 Phoenix, AZ 85014 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org ATTORNEY TO BE NOTICED

Jennifer Chang Newell ACLU Foundation Immigrants Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0774 Fax: 415−395−0950 Email: jnewell@aclu.org ATTORNEY TO BE NOTICED

Jonathan Weissglass Altshuler Berzon LLP 177 Post St Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jweissglass@altshulerberzon.com ATTORNEY TO BE NOTICED

Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 2 of 6
Karen Cassandra Tumlin National Immigration Law Ctr 3435 Wilshire Blvd Ste 2850 Los Angeles, CA 90010 213−674−2850 Fax: 213−639−3911 Email: tumlin@nilc.org ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Ctr 3435 Wilshire Blvd Ste 2850 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: joaquin@nilc.org ATTORNEY TO BE NOTICED
Lucas Guttentag ACLU Foundation Immigrants Rights Project 125 Broad St 18th Floor New York, NY 10004 212−549−2660 Fax: 212−549−2654 Email: lguttentag@aclu.org ATTORNEY TO BE NOTICED
Monica Teresa Guizar National Immigration Law Ctr 3435 Wilshire Blvd Ste 2850 Los Angeles, CA 90010 213−674−2823 Fax: 213−639−3911 Email: guizar@nilc.org ATTORNEY TO BE NOTICED
Omar C Jadwat ACLU Immigrants Rights Project 125 Broad St 18th Floor New York, NY 10011 212−549−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org ATTORNEY TO BE NOTICED
Rebecca Smullin Altshuler Berzon LLP 177 Post St Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8094 Email: rsmullin@altshulerberzon.com ATTORNEY TO BE NOTICED
Stephen Paul Berzon Altshuler Berzon LLP 177 Post St

Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 3 of 6

Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sberzon@altshulerberzon.com ATTORNEY TO BE NOTICED

Plaintiff Chicanos Por La Causa Incorporated

represented by Kristina Michelle Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Valenzuela Dixon (See above for address) ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) ATTORNEY TO BE NOTICED

Jonathan Weissglass (See above for address) ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED

Monica Teresa Guizar (See above for address) ATTORNEY TO BE NOTICED

Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED

Rebecca Smullin (See above for address) ATTORNEY TO BE NOTICED

Stephen Paul Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Somos America

represented by Kristina Michelle Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Valenzuela Dixon

Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 4 of 6
(See above for address) ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda (See above for address) ATTORNEY TO BE NOTICED
Jennifer Chang Newell (See above for address) ATTORNEY TO BE NOTICED
Jonathan Weissglass (See above for address) ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED
Monica Teresa Guizar (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED
Rebecca Smullin (See above for address) ATTORNEY TO BE NOTICED
Stephen Paul Berzon (See above for address) ATTORNEY TO BE NOTICED
V.
Defendant
Terry L Goddard in his official capacity as Attorney General of the State of Arizona TERMINATED: 02/07/2008
Defendant
Andrew Thomas in his official capacity as Maricopa County Attorney
Defendant
Gale Garriott in his official capacity as the Director of the Arizona Department of Revenue

Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 5 of 6

Date Filed 12/12/2007
12/12/2007 12/12/2007
12/12/2007 12/12/2007 12/13/2007 12/13/2007 12/13/2007 12/13/2007 12/14/2007
12/14/2007
12/17/2007
12/17/2007

# Docket Text
1 COMPLAINT. Filing fee received: $ 350.00, receipt number 09700000000001607221 (TRO Requested), filed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons.Goddard, # 3 Summons Summons.Garriott, # 4 Summons Summons.Thomas, # 5 Exhibit Exhibit.A, # 6 Exhibit Exhibit.B, # 7 Exhibit Exhibit.C, # 8 Exhibit Exhibit.D)(Campbell, Kristina) (Entered: 12/12/2007)
2 MOTION to Reassign Case and Consolidate by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. (Attachments: # 1 Order Reassigning Case)(Campbell, Kristina) (Entered: 12/12/2007)
3 MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. (Attachments: # 1 Memorandum of Points and Authorities in Support of Temporary Restraining Order and Preliminary Injunction, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Declaration of Tyler Moran, # 15 Declaration of Luz Sarmina, # 16 Declaration of Jonathan Weissglass, # 17 Weissglass Exhibit A, # 18 Weissglass Exhibit B, # 19 Weissglass Exhibit C)(Campbell, Kristina) (Entered: 12/12/2007)
This case has been assigned to the Honorable Stephen M. McNamee. All future pleadings or documents should bear the correct case number: CV 07−2518−PHX−SMM. (Entered by REK) (Entered: 12/13/2007)
4 Notice re Magistrate Consent Form (REK) (Entered: 12/13/2007)
5 Notice re Amended Summons by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America (Campbell, Kristina) (Entered: 12/13/2007)
6 Notice re Amended Summons by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America (Campbell, Kristina) (Entered: 12/13/2007)
7 Notice re Amended Summons by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America (Campbell, Kristina) (Entered: 12/13/2007)
8 Summons Issued as to Terry Goddard, Andrew Thomas, Gale Garriott. (Attachments: # 1 Thomas, # 2 Garriott)(REK). *** IMPORTANT: You must select "Document and stamps" or "Document and comments" on the print screen in order for the court seal to appear on the summons you print. (Entered: 12/13/2007)
9 ORDER that this case and the pending motions be referred to the Clerk of the Court for reassignment by random lot. That a copy of this Order be transmitted to the Honorable Neil. V. Wake. Please open attached pdf for full details. Signed by Judge Stephen M McNamee on 12/14/07. (Attachments: # 1 Reassignment Letter) (ESL) (Entered: 12/14/2007)
10 CONSOLIDATION ORDER − MEMBER CASE with Lead Case number CV 07−2496 PHX−NVW. Case reassigned to Judge Neil V Wake for all further proceedings. Judge Frederick J Martone terminated. Plaintiff's 2 Motion to Reassign and Consolidate is granted. Motion Hearing re 3 Motion for Temporary Restraining Order filed in CV 07−2496 PHX−NVW is set for 12/18/07 at 1:30. Signed by Judge Neil V Wake on 12/14/07. (Attachments: # 1 Letter)(LSP) (Entered: 12/14/2007)
11 SUMMONS Returned Executed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. Gale Garriott served on 12/14/2007. (Campbell, Kristina) Modified on 12/18/2007 DOCUMENT FILED IN ERROR. ATTORNEY NOTICED TO REFILE DOCUMENT IN CORRECT CASE (ESL). (Entered: 12/17/2007)
12 SUMMONS Returned Executed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. Terry Goddard served on 12/14/2007. (Campbell, Kristina) Modified on 12/18/2007 DOCUMENT FILED IN ERROR, ATTORNEY NOTICED TO REFILE DOCUMENT IN CORRECT CASE (ESL). (Entered: 12/17/2007)

Case: 2:07-cv-2518 As of: 05/11/2011 11:05 AM MST 6 of 6

12/17/2007 12/18/2007
01/04/2008 01/04/2008 01/04/2008 01/04/2008 02/07/2008 02/07/2008 02/07/2008

13 SUMMONS Returned Executed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. Andrew Thomas served on 12/14/2007. (Campbell, Kristina) Modified on 12/18/2007 DOCUMENT FILED IN ERROR, ATTORNEY NOTICED TO REFILE DOCUMENT IN CORRECT CASE (ESL). (Entered: 12/17/2007)
14 NOTICE TO FILER OF DEFICIENCY re 11 Summons Returned Executed − Complaint/Habeas Petition Only filed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America, 13 Summons Returned Executed − Complaint/Habeas Petition Only filed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America, 12 Summons Returned Executed − Complaint/Habeas Petition Only filed by Valle Del Sol Inc, Chicanos Por La Causa, Inc., Somos America. Description of deficiency: Document entered in wrong case. FOLLOW UP REQUIRED. (ESL, ) (Entered: 12/18/2007)
15 MOTION for Admission Pro Hac Vice as to attorney Linton Joaquin for Plaintiffs by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order Order for Admission Pro Hac Vice)(Joaquin, Linton) Modified on 1/7/2008 (LAD). DOCUMENT FILED IN ERROR. ATTORNEY NOTICED TO REFILE DOCUMENT IN LEAD CASE, CV−07−2496−PHX−NVW. (Entered: 01/04/2008)
16 MOTION for Admission Pro Hac Vice as to attorney Karen C. Tumlin for Plaintiffs by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order Order for Admission Pro Hac Vice)(Joaquin, Linton) Modified on 1/7/2008 (LAD). DOCUMENT FILED IN ERROR. ATTORNEY NOTICED TO REFILE DOCUMENT IN LEAD CASE, CV−07−2496−PHX−NVW. (Entered: 01/04/2008)
17 MOTION for Admission Pro Hac Vice as to attorney Monica T. Guizar for Plaintiffs by Valle Del Sol Inc. (Attachments: # 1 Text of Proposed Order Order for Admission Pro Hac Vice)(Joaquin, Linton) Modified on 1/7/2008 (LAD). DOCUMENT FILED IN ERROR. ATTORNEY NOTICE TO REFILE DOCUMENT IN LEAD CASE, CV−07−2496−PHX−NWV. (Entered: 01/04/2008)
18 NOTICE TO FILER OF DEFICIENCY re 17 MOTION for Admission Pro Hac Vice as to attorney Monica T. Guizar 16 MOTION for Admission Pro Hac Vice as to attorney Karen C. Tumlin, 15 MOTION for Admission Pro Hac Vice as to attorney Linton Joaquin filed by Valle Del Sol Inc. Description of deficiency: Documents entered in wrong case. FOLLOW UP REQUIRED. PLEASE OPEN ATTACHED PDF FOR FULL DETAILS. (ESL, ) (Entered: 01/04/2008)
19 JUDGMENT IN A CIVIL CASE − IT IS ORDERED AND ADJUDGED that pursuant to the Court's order filed February 7, 2008 (#175 in CV 07−2496−PHX−NVW), Defendant Terry Goddard is dismissed without prejudice for lack of subject matter jurisdiction. Judgment is entered in favor of all remaining defendants and against plaintiffs. Plaintiffs to take nothing, and complaint and action are dismissed. (SAT) (Entered: 02/07/2008)
20 MEMORANDUM − re motion for injunction pending appeal and letters received from members of the public (see pdf attached for more details). Signed by Judge Neil V Wake on 2/7/08. (SAT) Modified on 2/7/2008 (SAT). DOCUMENT FILED IN ERROR, DOCUMENT RE−FILED INCORRECT CASE BY THE CLERK. (Entered: 02/07/2008)
21 NOTICE OF CORRECTION BY THE CLERK re 20 Order. Description of deficiency: Document entered in wrong case. Follow up by Clerks Office: The deficiency indicated above has been addressed by the Clerk. Court use only: SAT. (SAT) (Entered: 02/07/2008)

 
 (Slip Opinion)

OCTOBER TERM, 2010

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–115. Argued December 8, 2010—Decided May 26, 2011
The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that violate that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees. Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this

2

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Syllabus

federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly preempted by federal immigration law, and that the mandatory use of EVerify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.
Held: The judgment is affirmed.
558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect
to Parts I and II–A, concluding that Arizona’s licensing law is not expressly preempted.
Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted. While IRCA prohibits States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” §1324a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).
The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has clear counterparts in APA and dictionary definitions of the word “license.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause. The Chamber’s argument that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic.
The Chamber contends that the savings clause should apply only to certain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, eliminated unauthorized worker prohibitions and associated adjudication procedures in another federal statute. But no such limits are even

Cite as: 563 U. S. ____ (2011)

3

Syllabus
remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster its
textual and structural arguments is unavailing given the Court’s conclusion that Arizona’s law falls within the plain text of the savings clause. Pp. 9–15.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.
And here Arizona’s law closely tracks IRCA’s provisions in all material respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3) with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent determination of the matter, §23–212(B); and requires a state court to “consider only the federal government’s determination,” §23–212(H).
The Chamber’s more general contention that the Arizona law is preempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest, see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341. Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly interfered with the operation of a federal program, see, e.g., id., at 351. There is no similar interference here.
The Chamber asserts that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an available sanction for merely hiring unauthorized workers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional violations, an employer acting in good faith need not fear the law’s sanctions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E-Verify as required by the Arizona law. The most rational path for employers is to obey both the law

4

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Syllabus

barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so. Pp. 15–22.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not impliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedly preempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing about what the States may do. The Government recently argued just that in another case and approvingly referenced Arizona’s law as an example of a permissible use of E-Verify when doing so.
Moreover, Arizona’s use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of the employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law. Pp. 23–24.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Government has consistently expanded and encouraged the use of EVerify, and Congress has directed that E-Verify be made available in all 50 States. And the Government has expressly rejected the Chamber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

ROBERTS, C. J., delivered the opinion of the Court, except as to Parts II–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and concurred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., PETITIONERS v. MICHAEL B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Parts II–B and III–B.*
Federal immigration law expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.” 8 U. S. C. §1324a(h)(2). A recently enacted Arizona statute—the Legal Arizona Workers Act—provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration law preempts those provisions of Arizona law. Because we conclude that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does
—————— *JUSTICE THOMAS joins Parts I, II–A, and III–A of this opinion and
concurs in the judgment.

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not otherwise conflict with federal law, we hold that the Arizona law is not preempted.

I A
In 1952, Congress enacted the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq. That statute established a “comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” De Canas v. Bica, 424 U. S. 351, 353, 359 (1976).
In the years following the enactment of the INA, several States took action to prohibit the employment of individuals living within state borders who were not lawful residents of the United States. For example, in 1971 California passed a law providing that “[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The California law imposed fines ranging from $200 to $500 for each violation of this prohibition. §1(b). At least 11 other States enacted provisions during that same time period proscribing the employment of unauthorized aliens.1
We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas, 424 U. S. 351. In that

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1 See Conn. Gen. Stat. §31–51k (1973) (enacted 1972); Del. Code Ann., Tit. 19, §705 (Cum. Supp. 1978) (enacted 1976); Fla. Stat. §448.09 (1981) (enacted 1977); Kan. Stat. Ann. §21–4409 (1981) (enacted 1973); 1985 La. Acts p. 1894; 1977 Me. Acts p. 171; 1976 Mass. Acts p. 641; Mont. Code Ann. §41–121 (1977 Cum. Supp.); N. H. Rev. Stat. Ann. §275–A:4–a (1986 Cum. Supp.) (enacted 1976); 1977 Vt. Laws p. 320; 1977 Va. Acts ch. 438.

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case, we recognized that the “[p]ower to regulate immigration is unquestionably . . . a federal power.” Id., at 354. At the same time, however, we noted that the “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State,” id., at 356, that “prohibit[ing] the knowing employment . . . of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State’s] police power,” ibid., and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment of illegal entrants” at that point in time, id., at 360. As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.
Ten years after De Canas, Congress enacted the Immigration Reform and Control Act (IRCA), 100 Stat. 3359. IRCA makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). IRCA defines an “unauthorized alien” as an alien who is not “lawfully admitted for permanent residence” or not otherwise authorized by the Attorney General to be employed in the United States. §1324a(h)(3).
To facilitate compliance with this prohibition, IRCA requires that employers review documents establishing an employee’s eligibility for employment. §1324a(b). An employer can confirm an employee’s authorization to work by reviewing the employee’s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver’s license and social security card. §1324a(b)(1)(B)–(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I–9 that he “has verified

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that the individual is not an unauthorized alien” by reviewing these documents. §1324a(b)(1)(A). The form I–9 itself “and any information contained in or appended to [it] . . . may not be used for purposes other than for enforcement of” IRCA and other specified provisions of federal law. §1324a(b)(5).
Employers that violate IRCA’s strictures may be subjected to both civil and criminal sanctions. Immigration and Customs Enforcement, an entity within the Department of Homeland Security, is authorized to bring charges against a noncompliant employer under §1324a(e). Depending on the circumstances of the violation, a civil fine ranging from $250 to $16,000 per unauthorized worker may be imposed. See §1324a(e)(4)(A); 73 Fed. Reg. 10136 (2008). Employers that engage in a pattern or practice of violating IRCA’s requirements can be criminally prosecuted, fined, and imprisoned for up to six months. §1324a(f)(1). The Act also imposes fines for engaging in “unfair immigration-related employment practice[s]” such as discriminating on the basis of citizenship or national origin. §1324b(a)(1); see §1324b(g)(2)(B). Good-faith compliance with IRCA’s I–9 document review requirements provides an employer with an affirmative defense if charged with a §1324a violation. §1324a(a)(3).
IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in De Canas are now expressly preempted.
In 1996, in an attempt to improve IRCA’s employment verification system, Congress created three experimental complements to the I–9 process as part of the Illegal Im-

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migration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–655, note following 8 U. S. C. §1324a. Arizona Contractors Assn., Inc. v. Candelaria, 534 F. Supp. 2d 1036, 1042 (Ariz. 2008); see 8 U. S. C. §1324a(d). Only one of those programs—E-Verify— remains in operation today. Originally known as the “Basic Pilot Program,” E-Verify “is an internet-based system that allows an employer to verify an employee’s work-authorization status.” Chicanos Por La Causa, Inc. v. Napolitano, 558 F. 3d 856, 862 (CA9 2009). An employer submits a request to the E-Verify system based on information that the employee provides similar to that used in the I–9 process. In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee’s authorization to work. An employee may challenge a nonconfirmation report. If the employee does not do so, or if his challenge is unsuccessful, his employment must be terminated or the Federal Government must be informed. See ibid.
In the absence of a prior violation of certain federal laws, IIRIRA prohibits the Secretary of Homeland Security from “requir[ing] any person or . . . entity” outside the Federal Government “to participate in” the E-Verify program, §402(a), (e), 110 Stat. 3009–656 to 3009–658. To promote use of the program, however, the statute provides that any employer that utilizes E-Verify “and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program . . . has established a rebuttable presumption” that it has not violated IRCA’s unauthorized alien employment prohibition, §402(b)(1), id., at 3009–656 to 3009–657.
B
Acting against this statutory and historical background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized

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aliens through, among other things, “licensing and similar laws,” 8 U. S. C. §1324a(h)(2).2 Arizona is one of them. The Legal Arizona Workers Act of 2007 allows Arizona courts to suspend or revoke the licenses necessary to do business in the State if an employer knowingly or intentionally employs an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01 (West Supp. 2010) (citing 8 U. S. C. §1324a).
Under the Arizona law, if an individual files a complaint alleging that an employer has hired an unauthorized alien, the attorney general or the county attorney first verifies the employee’s work authorization with the Federal Government pursuant to 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §23–212(B). Section 1373(c) provides that the Federal Government “shall respond to an inquiry by a” State “seeking to verify or ascertain the citizenship or immigration status of any individual . . . by providing the requested verification or status information.” The Arizona law expressly prohibits state, county, or local officials from attempting “to independently make a final determination on whether an alien is authorized to work in the United States.” Ariz. Rev. Stat. Ann. §23–212(B). If the §1373(c) inquiry reveals that a worker is an unauthorized alien, the attorney general or the county attorney must notify United States Immigration and Customs Enforcement officials, notify local law enforcement, and bring an action against the employer. §23–212(C)(1)–(3), (D).
When a complaint is brought against an employer under Arizona law, “the court shall consider only the federal government’s determination pursuant to” 8 U. S. C.
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2 See, e.g., Colo. Rev. Stat. Ann. §8–17.5–102 (2008); Miss. Code Ann. §71–11–3(7)(e) (Supp. 2010); Mo. Rev. Stat. §§285–525, 285–535 (2009 Cum. Supp.); Pa. Stat. Ann., Tit. 73, §820.311 (Purdon Supp. 2010); S. C. Code Ann. §41–8–50(D)(2) (Supp. 2010); Tenn. Code Ann. §50–1– 103(d) (2008); Va. Code Ann. §2.2–4311.1 (Lexis 2008); W. Va. Code Ann. §21–1B–7 (Lexis Supp. 2010).

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§1373(c) in “determining whether an employee is an unauthorized alien.” §23–212(H). Good-faith compliance with the federal I–9 process provides employers prosecuted by the State with an affirmative defense. §23–212(J).
A first instance of “knowingly employ[ing] an unauthorized alien” requires that the court order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of three years. §23–212(A), (F)(1)(a)–(b). The court may also “order the appropriate agencies to suspend all licenses . . . that are held by the employer for [a period] not to exceed ten business days.” §23–212(F)(1)(d). A second knowing violation requires that the adjudicating court “permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work.” §23–212(F)(2).
For a first intentional violation, the court must order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of five years. §23–212.01(A), (F)(1)(a)–(b). The court must also suspend all the employer’s licenses for a minimum of 10 days. §23– 212.01(F)(1)(c). A second intentional violation requires the permanent revocation of all business licenses. §23– 212.01(F)(2).
With respect to both knowing and intentional violations, a violation qualifies as a “second violation” only if it occurs at the same business location as the first violation, during the time that the employer is already on probation for a violation at that location. §23–212(F)(3)(a)–(b); §23– 212.01(F)(3)(a)–(b).
The Arizona law also requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” by using E-Verify. §23–

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214(A).3 “[P]roof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.” §23–212(I).

C
The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber of Commerce or Chamber) filed a preenforcement suit in federal court against those charged with administering the Arizona law: more than a dozen Arizona county attorneys, the Governor of Arizona, the Arizona attorney general, the Arizona registrar of contractors, and the director of the Arizona Department of Revenue (collectively Arizona).4 The Chamber argued that the Arizona law’s provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly preempted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted.
The District Court held that Arizona’s law was not preempted. 534 F. Supp. 2d 1036. It found that the plain language of IRCA’s preemption clause did not preempt the
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3 Several States have passed statutes mandating the use of E-Verify. See, e.g., Miss. Code Ann. §71–11–3(3)(d), (4)(b)(i) (Supp. 2010); S. C. Code Ann. §41–8–20(B)–(C) (Supp. 2010); Utah Code Ann. §13–47– 201(1) (Lexis Supp. 2010); Va. Code Ann. §40.1–11.2 (Lexis Supp. 2010).
4 No suits had been brought under the Arizona law when the complaint in this case was filed. As of the date that Arizona submitted its merits brief to this Court only three enforcement actions had been pursued against Arizona employers. See Arizona v. Waterworld Ltd. Partnership, No. CV2009–038848 (Maricopa Cty. Super. Ct., filed Dec. 21, 2009) (resolved by consent judgment); Arizona v. Danny’s Subway Inc., No. CV2010–005886 (Maricopa Cty. Super. Ct., filed Mar. 9, 2010) (resolved by consent decree); Arizona v. Scottsdale Art Factory, LLC, No. CV2009–036359 (Maricopa Cty. Super. Ct., filed Nov. 18, 2009) (pending).

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Arizona law because the state law does no more than impose licensing conditions on businesses operating within the State. Id., at 1045–1046. With respect to EVerify, the court concluded that although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. Id., at 1055–1057. The Court of Appeals affirmed the District Court in all respects, holding that Arizona’s law was a “ ‘licensing and similar law[]’ ” falling within IRCA’s savings clause and that none of the state law’s challenged provisions was “expressly or impliedly preempted by federal policy.” 558 F. 3d, at 860, 861, 866.
We granted certiorari. 561 U. S. ___ (2010).
II
The Chamber of Commerce argues that Arizona’s law is expressly preempted by IRCA’s text and impliedly preempted because it conflicts with federal law. We address each of the Chamber’s arguments in turn.
A
When a federal law contains an express preemption clause, we “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.” CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993).
IRCA expressly preempts States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, “other than through licensing and similar laws.” 8 U. S. C. §1324a(h)(2). The Arizona law, on its face, purports to impose sanctions through licensing laws. The state law authorizes state courts to suspend or revoke an employer’s business licenses if that employer knowingly or intentionally employs an unauthorized alien. Ariz. Rev. Stat. Ann. §23–212(A) and (F); §23–212.01(A) and (F). The Arizona law defines “license” as “any agency permit,

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certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in” the State. §23–211(9)(a). That definition largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act. See 5 U. S. C. §551(8) (“ ‘license’ includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission”).
Apart from that general definition, the Arizona law specifically includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State. Ariz. Rev. Stat. Ann. §23–211(9). These examples have clear counterparts in the APA definition just quoted. See 5 U. S. C. §551(8) (defining “license” as including a “registration” or “charter”).
A license is “a right or permission granted in accordance with law . . . to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Webster’s Third New International Dictionary 1304 (2002). Articles of incorporation and certificates of partnership allow the formation of legal entities and permit them as such to engage in business and transactions “which but for such” authorization “would be unlawful.” Ibid.; see Ariz. Rev. Stat. Ann. §§10–302, 302(11) (West 2004) (articles of incorporation allow a corporation “to carry out its business and affairs” and to “[c]onduct its business”); see also §10–202(A)(3) (West Supp. 2010). As for state-issued authorizations for foreign businesses to operate within a State, we have repeatedly referred to those as “licenses.” See, e.g., Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 417 (1984); G. D. Searle & Co. v. Cohn, 455 U. S. 404, 413, n. 8 (1982); Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516, 518 (1923). Moreover, even if a law

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regulating articles of incorporation, partnership certificates, and the like is not itself a “licensing law,” it is at the very least “similar” to a licensing law, and therefore comfortably within the savings clause. 8 U. S. C. §1324a(h)(2).5
The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them. Again, this construction of the term runs contrary to the definition that Congress itself has codified. See 5 U. S. C. §551(9) (“ ‘licensing’ includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license” (emphasis added)). It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.

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5 JUSTICE BREYER recognizes that Arizona’s definition of the word “license” comports with dictionaries’ treatment of the term, but argues that “license” must be read in a more restricted way so as not to include things such as “marriage licenses” and “dog licens[es].” Post, at 2, 12 (dissenting opinion). Luckily, we need not address such fanciful hypotheticals; Arizona limits its definition of “license” to those state permissions issued “for the purposes of operating a business” in the State. Ariz. Rev. Stat. Ann. §23–211(9)(a) (West Supp. 2010).
JUSTICE BREYER’s primary concern appears to be that state permissions such as articles of incorporation and partnership certificates are treated as “licensing and similar laws.” Because myriad other licenses are required to operate a business, that concern is largely academic. See §42–5005(A) (West 2006) (Corporations that receive “gross proceeds of sales or gross income upon which a privilege tax is imposed . . . shall make application to the department for a privilege license.” Such a corporation “shall not engage or continue in business until the [corporation] has obtained a privilege license.”). Suspending or revoking an employer’s articles of incorporation will often be entirely redundant. See §§42–5010, 5061–5076 (West 2006 and West Supp. 2010) (describing when transaction privilege tax licenses are required).

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The Chamber also submits that the manner in which Congress amended a related statute when enacting IRCA supports a narrow interpretation of the savings clause. The Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U. S. C. §1801 et seq., requires employers to secure a registration certificate from the Department of Labor before engaging in any “farm labor contracting activity.” §1811(a). Prior to IRCA, AWPA had contained its own prohibition on hiring unauthorized workers, with accompanying adjudication procedures. See §1813(a); §1816(a) (1982 ed.) (repealed by IRCA, 100 Stat. 3372); §1851(a)–(b) (1982 ed.) (amended by IRCA, 100 Stat. 3372). When Congress enacted IRCA, it repealed AWPA’s separate unauthorized worker prohibition and eliminated the associated adjudication process. Under the current state of the law, an AWPA certification may be denied based on a prior IRCA violation. §1813(a)(6) (2006 ed.). And once obtained, that certification can be revoked because of the employment of an unauthorized alien only following a finding of an IRCA violation. Ibid.
The Chamber asserts that IRCA’s amendment of AWPA shows that Congress meant to allow state licensing sanctions only after a federal IRCA adjudication, just as adverse action under AWPA can now be taken only through IRCA’s procedures. But the text of IRCA’s savings clause says nothing about state licensing sanctions being contingent on prior federal adjudication, or indeed about state licensing processes at all. The simple fact that federal law creates procedures for federal investigations and adjudications culminating in federal civil or criminal sanctions does not indicate that Congress intended to prevent States from establishing their own procedures for imposing their own sanctions through licensing. Were AWPA not amended to conform with IRCA, two different federal agencies would be responsible for administering two different unauthorized alien employment laws. The conform-

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ing amendments eliminated that potential redundancy and centralized federal adjudicatory authority. That hardly supports a conclusion that any state licensing programs must also be contingent on the central federal system.
In much the same vein, the Chamber argues that Congress’s repeal of “AWPA’s separate prohibition concerning unauthorized workers belies any suggestion that IRCA meant to authorize each of the 50 States . . . to impose its own separate prohibition,” and that Congress instead wanted uniformity in immigration law enforcement. Brief for Petitioners 36. JUSTICE BREYER also objects to the departure from “one centralized enforcement scheme” under federal law. Post, at 7 (dissenting opinion). But Congress expressly preserved the ability of the States to impose their own sanctions through licensing; that—like our federal system in general—necessarily entails the prospect of some departure from homogeneity. And as for “separate prohibition[s],” it is worth recalling that the Arizona licensing law is based exclusively on the federal prohibition—a court reviewing a complaint under the Arizona law may “consider only the federal government’s determination” with respect to “whether an employee is an unauthorized alien.” §23–212(H).
Even more boldly, the Chamber contends that IRCA’s savings clause was intended to allow States to impose licensing sanctions solely on AWPA-related farm contracting licensees. AWPA specifically recognized that federal regulation of farm contracting licensing was only “intended to supplement State law,” 29 U. S. C. §1871, and the Chamber argues that the purpose of IRCA’s savings clause was limited to preserving existing state farm contractor licensing programs. But here again no such limit is remotely discernible in the statutory text. Absent any textual basis, we are not inclined to limit so markedly the otherwise broad phrasing of the savings clause. See

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United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 83 (1932) (“extrinsic aids to construction” may be used “to solve, but not to create, an ambiguity” (emphasis and internal quotation marks omitted)).
The Chamber argues that its textual and structural arguments are bolstered by IRCA’s legislative history. We have already concluded that Arizona’s law falls within the plain text of IRCA’s savings clause. And, as we have said before, Congress’s “authoritative statement is the statutory text, not the legislative history.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 149–150, n. 4 (2002). Whatever the usefulness of relying on legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond verbatim recitation of the statutory text, all of the legislative history documents related to IRCA save one fail to discuss the savings clause at all. The Senate Judiciary Committee Report on the Senate version of the law does not comment on it. See S. Rep. No. 99–132 (1985). Only one of the four House Reports on the law touches on the licensing exception, see H. R. Rep. No. 99– 682, pt. 1, p. 58 (1986), and we have previously dismissed that very report as “a rather slender reed” from “one House of a politically divided Congress.” Hoffman, supra, at 149–150, n. 4. And the Conference Committee Report does not discuss the scope of IRCA’s preemption provision in any way. See H. Conf. Rep. No. 99–1000 (1986).6

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6 JUSTICE BREYER poses several rhetorical questions challenging our reading of IRCA and then goes on to propose two seemingly alternative views of the phrase “licensing and similar laws”—that it was meant to refer to “employment-related licensing systems,” post, at 11 (dissenting opinion) (emphasis deleted), or, even more narrowly, to “the licensing of firms in the business of recruiting or referring workers for employment, such as . . . state agricultural labor contractor licensing schemes,” post, at 13. If we are asking questions, a more telling one may be why, if

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IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.
B
As an alternative to its express preemption argument, the Chamber contends that Arizona’s law is impliedly preempted because it conflicts with federal law. At its broadest level, the Chamber’s argument is that Congress “intended the federal system to be exclusive,” and that any state system therefore necessarily conflicts with federal law. Brief for Petitioners 39. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise

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Congress had intended such limited exceptions to its prohibition on state sanctions, it did not simply say so, instead of excepting “licensing and similar laws” generally?
JUSTICE SOTOMAYOR takes a different tack. Invoking arguments that resemble those found in our implied preemption cases, she concludes that the Arizona law “falls outside” the savings clause and is expressly preempted because it allows “state courts to determine whether a person has employed an unauthorized alien.” Post, at 2 (dissenting opinion). While JUSTICE BREYER would add language to the statute narrowly limiting the phrase “licensing and similar laws” to specific types of licenses, JUSTICE SOTOMAYOR creates an entirely new statutory requirement: She would allow States to impose sanctions through “licensing and similar laws” only after a federal adjudication. Such a requirement is found nowhere in the text, and JUSTICE SOTOMAYOR does not even attempt to link it to a specific textual provision.
It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text.

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that authority. And here Arizona went the extra mile in ensuring that
its law closely tracks IRCA’s provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an “unauthorized alien.” Compare 8 U. S. C. §1324a(h)(3) (an “unauthorized alien” is an alien not “lawfully admitted for permanent residence” or not otherwise authorized by federal law to be employed) with Ariz. Rev. Stat. Ann. §23–211(11) (adopting the federal definition of “unauthorized alien”); see De Canas, 424 U. S., at 363 (finding no preemption of state law that operates “only with respect to individuals whom the Federal Government has already declared cannot work in this country”).
Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and “shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.” §23–212(B). What is more, a state court “shall consider only the federal government’s determination” when deciding “whether an employee is an unauthorized alien.” §23–212(H) (emphasis added). As a result, there can by definition be no conflict between state and federal law as to worker authorization, either at the investigatory or adjudicatory stage.7
——————
7 After specifying that a state court may consider “only” the federal determination, the Arizona law goes on to provide that the federal determination is “a rebuttable presumption of the employee’s lawful status,” Ariz. Rev. Stat. Ann. §23–212(H) (West Supp. 2010). Arizona explains that this provision does not permit the State to establish unlawful status apart from the federal determination—the provision could hardly do that, given the foregoing. It instead operates to “ensur[e] that the employer has an opportunity to rebut the evidence presented to establish a worker’s unlawful status.” Brief for Respondents 49 (emphasis added). Only in that sense is the federal determination a “rebuttable presumption.” See Tr. of Oral Arg. 46–47. Giving

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The federal determination on which the State must rely is provided under 8 U. S. C. §1373(c). See supra, at 6–7. That provision requires the Federal Government to “verify or ascertain” an individual’s “citizenship or immigration status” in response to a state request. JUSTICE BREYER is concerned that this information “says nothing about work authorization.” Post, at 9 (dissenting opinion). JUSTICE SOTOMAYOR shares that concern. Post, at 10 (dissenting opinion). But if a §1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether that individual is authorized to work. The same would be true if the response to a §1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed. In any event, if the information provided under §1373(c) does not confirm that an employee is an unauthorized alien, then the State cannot prove its case. See Brief for Respondents 50, n. 10 (“if the information from the federal authorities does not establish that a person is an unauthorized alien, it means that the county attorney cannot satisfy his burden of proof in an enforcement action”); Tr. of Oral Arg. 47.
From this basic starting point, the Arizona law continues to trace the federal law. Both the state and federal law prohibit “knowingly” employing an unauthorized alien. Compare 8 U. S. C. §1324a(a)(1)(A) with Ariz. Rev. Stat. Ann. §23–212(A).8 But the state law does not stop there in guarding against any conflict with the federal law. The Arizona law provides that “ ‘[k]nowingly employ an unauthorized alien’ means the actions described in 8
——————
an employer a chance to show that it did not break the state law certainly does not place the Arizona regime in conflict with federal law.
8 State law also prohibits “intentionally” employing an unauthorized alien, §23–212.01(A), a more severe violation of the law. The Chamber does not suggest that this prohibition is any more problematic than the prohibition on “knowingly” employing an unauthorized alien.

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United States Code §1324a,” and that the “term shall be interpreted consistently with 8 United States Code §1324a and any applicable federal rules and regulations.” §23–211(8).
The Arizona law provides employers with the same affirmative defense for good-faith compliance with the I–9 process as does the federal law. Compare 8 U. S. C. §1324a(a)(3) (“A person or entity that establishes that it has complied in good faith with the [employment verification] requirements of [§1324a(b)] with respect to hiring . . . an alien . . . has established an affirmative defense that the person or entity has not violated” the law) with Ariz. Rev. Stat. Ann. §23–212(J) (“an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien”).9 And both the federal and Arizona law accord employers a rebuttable presumption of compliance with the law when they use E-Verify to validate a finding of employment eligibility. Compare IIRIRA §402(b), 110 Stat. 3009–656 to 3009–657 with Ariz. Rev. Stat. Ann. §23–212(I).
Apart from the mechanics of the Arizona law, the Chamber argues more generally that the law is preempted because it upsets the balance that Congress sought to strike when enacting IRCA. In the Chamber’s view, IRCA
——————
9 The Chamber contends that the Arizona law conflicts with federal law because IRCA prohibits the use of the I–9 form and “any information contained in or appended to [it]” from being “used for purposes other than for enforcement of” IRCA and other specified federal laws. 8 U. S. C. §1324a(b)(5). That argument mistakenly assumes that an employer would need to use the I–9 form or its supporting documents themselves to receive the benefit of the affirmative defense in Arizona court. In fact, “[a]n employer [could] establish good faith compliance with [the] I–9 process[] . . . through testimony of employees and descriptions of office policy.” Brief for Respondents 52; see Tr. of Oral Arg. 33.

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reflects Congress’s careful balancing of several policy considerations—deterring unauthorized alien employment, avoiding burdens on employers, protecting employee privacy, and guarding against employment discrimination. According to the Chamber, the harshness of Arizona’s law “ ‘exert[s] an extraneous pull on the scheme established by Congress’ ” that impermissibly upsets that balance. Brief for Petitioners 45 (quoting Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 353 (2001)); see Brief for Petitioners 42–45; Reply Brief for Petitioners 20.
As an initial matter, the cases on which the Chamber relies in advancing this argument all involve uniquely federal areas of regulation. See American Ins. Assn. v. Garamendi, 539 U. S. 396, 401, 405–406 (2003) (presidential conduct of foreign policy); Crosby v. National Foreign Trade Council, 530 U. S. 363, 373–374 (2000) (foreign affairs power); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 352 (2001) (fraud on a federal agency); United States v. Locke, 529 U. S. 89, 97, 99 (2000) (regulation of maritime vessels); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 143–144 (1989) (patent law). Regulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern.
Furthermore, those cases all concern state actions that directly interfered with the operation of the federal program. In Buckman, for example, the Court determined that allowing a state tort action would cause applicants before a federal agency “to submit a deluge of information that the [agency] neither wants nor needs, resulting in additional burdens on the [agency’s] evaluation of an application,” and harmful delays in the agency process. 531 U. S., at 351. In Garamendi, a state law imposing sanctions on insurance companies directly “thwart[ed] the [Federal] Government’s policy of repose” for insurance companies that participated in an international program

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negotiated by the President. 539 U. S., at 425. Crosby involved a state law imposing sanctions on any entity doing business with Burma, a law that left the President with “less to offer and less economic and diplomatic leverage” in exercising his foreign affairs powers. 530 U. S., at 377. The state law in Bonito Boats extended patent-like protection “for subject matter for which patent protection has been denied or has expired,” “thus eroding the general rule of free competition upon which the attractiveness of the federal patent bargain depends.” 489 U. S., at 159, 161. And the portions of Locke on which the Chamber relies involved state efforts “to impose additional unique substantive regulation on the at-sea conduct of vessels”— “an area where the federal interest has been manifest since the beginning of our Republic.” 529 U. S., at 106, 99. There is no similar interference with the federal program in this case; that program operates unimpeded by the state law.
License suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime. Numerous Arizona laws provide for the suspension or revocation of licenses for failing to comply with specified state laws. See, e.g., Ariz. Rev. Stat. Ann. §§5–108.05(D), 32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West 2002). Federal law recognizes that the authority to license includes the authority to suspend, revoke, annul, or withdraw a license. See 5 U. S. C. §551(9). Indeed, AWPA itself—on which the Chamber so heavily relies—provides that AWPA “certificates of registration” can be suspended or revoked for employing an unauthorized alien. 29 U. S. C. §1813(a)(6). It makes little sense to preserve state authority to impose sanctions through licensing, but not allow States to revoke licenses when appropriate as one of those sanctions.
The Chamber and JUSTICE BREYER assert that employers will err on the side of discrimination rather than risk

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the “ ‘business death penalty’ ” by “hiring unauthorized workers.” Post, at 6–7 (dissenting opinion); see Brief for Petitioners 3, 35. That is not the choice. License termination is not an available sanction simply for “hiring unauthorized workers.” Only far more egregious violations of the law trigger that consequence. The Arizona law covers only knowing or intentional violations. The law’s permanent licensing sanctions do not come into play until a second knowing or intentional violation at the same business location, and only if the second violation occurs while the employer is still on probation for the first. These limits ensure that licensing sanctions are imposed only when an employer’s conduct fully justifies them. An employer acting in good faith need have no fear of the sanctions.
As the Chamber points out, IRCA has its own antidiscrimination provisions, see 8 U. S. C. §1324b(a)(1), (g)(1)(B) (imposing sanctions for discrimination “against any individual . . . with respect to the hiring . . . or the discharging of the individual from employment”); Arizona law certainly does nothing to displace those. Other federal laws, and Arizona anti-discrimination laws, provide further protection against employment discrimination—and strong incentive for employers not to discriminate. See, e.g., 42 U. S. C. §2000e–2(a) (prohibiting discrimination based on “race, color, religion, sex, or national origin”); Ariz. Rev. Stat. Ann. §41–1463(B)(1) (West Supp. 2010) (prohibiting employment discrimination based on “race, color, religion, sex, age, or national origin”).
All that is required to avoid sanctions under the Legal Arizona Workers Act is to refrain from knowingly or intentionally violating the employment law. Employers enjoy safe harbors from liability when they use the I–9 system and E-Verify—as Arizona law requires them to do. The most rational path for employers is to obey the law—both the law barring the employment of unauthorized aliens

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and the law prohibiting discrimination—and there is no reason to suppose that Arizona employers will choose not to do so.
As with any piece of legislation, Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA. Part of that balance, however, involved allocating authority between the Federal Government and the States. The principle that Congress adopted in doing so was not that the Federal Government can impose large sanctions, and the States only small ones. IRCA instead preserved state authority over a particular category of sanctions—those imposed “through licensing and similar laws.”
Of course Arizona hopes that its law will result in more effective enforcement of the prohibition on employing unauthorized aliens. But in preserving to the States the authority to impose sanctions through licensing laws, Congress did not intend to preserve only those state laws that would have no effect. The balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.
Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives”; such an endeavor “would undercut the principle that it is Congress rather than the courts that preempts state law.” Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 111 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 256 (1984). Our precedents “establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” Gade, supra, at 110. That threshold is not met here.

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Opinion of the Court
III
The Chamber also argues that Arizona’s requirement that employers use the federal E-Verify system to determine whether an employee is authorized to work is impliedly preempted. In the Chamber’s view, “Congress wanted to develop a reliable and non-burdensome system of work-authorization verification” that could serve as an alternative to the I–9 procedures, and the “mandatory use of E-Verify impedes that purpose.” 558 F. 3d, at 866.
A
We begin again with the relevant text. The provision of IIRIRA setting up the program that includes E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or other entity [outside of the Federal Government] to participate in a pilot program” such as E-Verify. IIRIRA §402(a), 110 Stat. 3009–656. That provision limits what the Secretary of Homeland Security may do—nothing more.
The Federal Government recently argued just that, and approvingly referenced Arizona’s E-Verify law when doing so. In 2008, an Executive Order mandated that executive agencies require federal contractors to use E-Verify as a condition of receiving a federal contract. See Exec. Order No. 13465, 73 Fed. Reg. 33286 (2008). When that Order and its implementing regulation were challenged, the Government pointed to Arizona’s E-Verify mandate as an example of a permissible use of that system: “[T]he State of Arizona has required all public and private employers in that State to use E-Verify . . . . This is permissible because the State of Arizona is not the Secretary of Homeland Security.” Defendants’ Reply Memorandum in Support of Their Motion for Summary Judgment in No. 8:08– cv–03444 (D Md.), p. 7 (emphasis added), appeal dism’d,

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No. 09–2006 (CA4, Dec. 14, 2009). Arizona’s use of E-Verify does not conflict with the
federal scheme. The Arizona law requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A) (West Supp. 2010). That requirement is entirely consistent with the federal law. And the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law. In both instances, the only result is that the employer forfeits the otherwise available rebuttable presumption that it complied with the law. Compare IIRIRA §402(b)(1) with Ariz. Rev. Stat. Ann. §23–212(I).10

B
Congress’s objective in authorizing the development of E-Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy. 8 U. S. C. §1324a(d)(2). Arizona’s requirement that employers operating within its borders use E-Verify in no way obstructs achieving those aims.
In fact, the Federal Government has consistently expanded and encouraged the use of E-Verify. When EVerify was created in 1996, it was meant to last just four years and it was made available in only six States. IIRIRA §401(b) and (c)(1), 110 Stat. 3009–655 to 3009– 656. Congress since has acted to extend the E-Verify program’s existence on four separate occasions, the most recent of which ensures the program’s vitality through

——————
10 Arizona has since amended its statute to include other consequences, such as the loss of state-allocated economic development incentives. See 2008 Ariz. Sess. Laws ch. 152. Because those provisions were not part of the statute when this suit was brought, they are not before us and we do not address their interaction with federal law.

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2012.11 And in 2003 Congress directed the Secretary of Homeland Security to make E-Verify available in all 50 States. 117 Stat. 1944; IIRIRA §401(c)(1), 110 Stat. 3009– 656. The Department of Homeland Security has even used “billboard and radio advertisements . . . to encourage greater participation” in the E-Verify program. 534 F. Supp. 2d, at 1056.
The Chamber contends that “if the 49 other States followed Arizona’s lead, the state-mandated drain on federal resources would overwhelm the federal system and render it completely ineffective, thereby defeating Congress’s primary objective in establishing E-Verify.” Brief for Petitioners 50–51. Whatever the legal significance of that argument, the United States does not agree with the factual premise. According to the Department of Homeland Security, “the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.” Brief for United States as Amicus Curiae 34. And the United States notes that “[t]he government continues to encourage more employers to participate” in E-Verify. Id., at 31.
The Chamber has reservations about E-Verify’s reliability, see Brief for Petitioners 49, n. 27, but again the United States disagrees. The Federal Government reports that “E-Verify’s successful track record . . . is borne out by findings documenting the system’s accuracy and participants’ satisfaction.” Brief for United States as Amicus Curiae 31. Indeed, according to the Government, the program is “the best means available to determine the employment eligibility of new hires.” U. S. Dept. of Homeland Security, U. S. Citizenship and Immigration Services,
——————
11 See Basic Pilot Extension Act of 2001, §2, 115 Stat. 2407; Basic Pilot Program Extension and Expansion Act of 2003, §2, 117 Stat. 1944; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Div. A, §143, 122 Stat. 3580; Department of Homeland Security Appropriations Act of 2010, §547, 123 Stat. 2177.

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E-Verify User Manual for Employers 4 (Sept. 2010).12

* * *
IRCA expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising that authority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Government’s own definition of “unauthorized alien,” it relies solely on the Federal Government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the Federal Government’s own system for checking employee status. If even this gives rise to impermissible conflicts with federal law, then there really is no way for the State to implement licensing sanctions, contrary to the express terms of the savings clause.
Because Arizona’s unauthorized alien employment law fits within the confines of IRCA’s savings clause and does not conflict with federal immigration law, the judgment of
——————
12 JUSTICE BREYER shares the Chamber’s concern about E-Verify’s accuracy. See post, at 8, 19. Statistics from Fiscal Year 2010, however, indicate that of the 15,640,167 E-Verify cases submitted, 98.3% were automatically confirmed as work authorized, 0.3% were confirmed as work authorized after contesting and resolving an initial nonconfirmation—an avenue available to all workers—and 1.43% were not found work authorized. E-Verify Statistics and Reports, available at http://www.uscis.gov/portal/site/uscis/menuitem/statistics (as visited May 23, 2011, and available in the Clerk of Court’s case file). As JUSTICE BREYER notes, the initial mismatches (the 0.3%) are frequently due to “ ‘incorrectly spelled [names] in government databases or on identification documents.’ ” Post, at 19. Such a hazard is of course not unique to E-Verify. Moreover, JUSTICE BREYER’s statistical analysis underlying his conclusion that E-Verify queries, at least initially, wrongly “suggest[] that an individual [i]s not lawfully employable” “18% of the time” needs to be understood for what it is. Post, at 8. If E-Verify initially indicated that two individuals were not found work authorized, and later revealed that one of those determinations was incorrect, JUSTICE BREYER would be able to exclaim that the error rate was 50%.

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the United States Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

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1

BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., PETITIONERS v. MICHAEL B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.
The federal Immigration Reform and Control Act of 1986 (Act or IRCA) pre-empts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2). The state law before us, the Legal Arizona Workers Act, imposes civil sanctions upon those who employ unauthorized aliens. See Ariz. Rev. Stat. Ann. §23–211 et seq. (West Supp. 2010). Thus the state law falls within the federal Act’s general preemption rule and is pre-empted—unless it also falls within that rule’s exception for “licensing and similar laws.” Unlike the Court, I do not believe the state law falls within this exception, and I consequently would hold it pre-empted.
Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. §23–211(9)(a); cf. §23–211(9)(c)

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BREYER, J., dissenting

(excepting professional licenses, and water and environmental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s preemption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.
Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.” See ante, at 10 (relying on a dictionary and the federal Administrative Procedure Act). But neither dictionary definitions nor the use of the word “license” in an unrelated statute can demonstrate what scope Congress intended the word “licensing” to have as it used that word in this federal statute. Instead, statutory context must ultimately determine the word’s coverage. Context tells a driver that he cannot produce a partnership certificate when a policeman stops the car and asks for a license. Context tells all of us that “licensing” as used in the Act does not include marriage licenses or the licensing of domestic animals. And context, which includes statutory purposes, language, and history, tells us that the federal statute’s “licensing” language does not embrace Arizona’s overly broad definition of that term. That is to say, ordinary corporate charters, certificates of partnership, and the like do not fall within the scope of the word “licensing” as used in this federal exception. See Dolan v. Postal Service, 546 U. S. 481, 486 (2006) (statutory interpretation requires courts to “rea[d] the whole statutory text, conside[r] the purpose and context of the statute, and consul[t] any precedents or authorities that inform the analysis”); United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849) (similar).

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BREYER, J., dissenting
I
To understand how the majority’s interpretation of the word “licensing” subverts the Act, one must understand the basic purposes of the pre-emption provision and of the Act itself. Ordinarily, an express pre-emption provision in a federal statute indicates a particular congressional interest in preventing States from enacting laws that might interfere with Congress’ statutory objectives. See International Paper Co. v. Ouellette, 479 U. S. 481, 494 (1987). The majority’s reading of the provision’s “licensing” exception, however, does the opposite. It facilitates the creation of “ ‘obstacle[s] to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Crosby v. National Foreign Trade Council, 530 U. S. 363, 373 (2000) (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941)).
A
Essentially, the federal Act requires employers to verify the work eligibility of their employees. And in doing so, the Act balances three competing goals. First, it seeks to discourage American employers from hiring aliens not authorized to work in the United States. H. R. Rep. No. 99–682, pt. 1, p. 56 (1986).
Second, Congress wished to avoid “placing an undue burden on employers,” id., at 90, and the Act seeks to prevent the “harassment” of “innocent employers,” S. Rep. No. 99–132, p. 35 (1985).
Third, the Act seeks to prevent employers from disfavoring job applicants who appear foreign. Reiterating longstanding antidiscrimination concerns, the House Committee Report explained:
“Numerous witnesses . . . have expressed their deep concern that the imposition of employer sanctions will cause extensive employment discrimination against Hispanic-Americans and other minority group mem-

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BREYER, J., dissenting

bers. These witnesses are genuinely concerned that employers, faced with the possibility of civil and criminal penalties, will be extremely reluctant to hire persons because of their linguistic or physical characteristics.” H. R. Rep. No. 99–682, at 68.

See also 42 U. S. C. §2000e–2(a)(1) (making it an “unlawful employment practice” for an employer to discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin”); U. S. Commission on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigration 74 (1980) (finding that “increased employment discrimination against United States citizens and legal residents who are racially and culturally identifiable with major immigrant groups could be the unintended result of an employer sanctions law”). The Committee concluded that “every effort must be taken to minimize the potentiality of discrimination.” H. R. Rep. No. 99–682, at 68.

B
The Act reconciles these competing objectives in several ways:
First, the Act prohibits employers from hiring an alien knowing that the alien is unauthorized to work in the United States. 8 U. S. C. §1324a(a)(1)(A).
Second, the Act provides an easy-to-use mechanism that will allow employers to determine legality: the I–9 form. In completing an I–9 form, the employer certifies that he or she has examined one or two documents (e.g., a passport, or a driver’s license along with a Social Security card) that tend to confirm the worker’s identity and employability. §1324a(b)(1). Completion of the form in good faith immunizes the employer from liability, even if the worker turns out to be unauthorized. §§1324a(a)(3), 1324a(b)(6).
A later amendment to the law also allows an employer

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BREYER, J., dissenting
to verify an employee’s work eligibility through an Internet-based federal system called E-Verify. If the employer does so, he or she will receive the benefit of a rebuttable presumption of compliance. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §402(b), 110 Stat. 3009–656 to 3009–657, note following 8 U. S. C. §1324a, p. 331 (Pilot Programs for Employment Eligibility Confirmation).
Third, the Act creates a central enforcement mechanism. The Act directs the Attorney General to establish a single set of procedures for receiving complaints, investigating those complaints that “have a substantial probability of validity,” and prosecuting violations. 8 U. S. C. §1324a(e)(1). The relevant immigration officials and administrative law judges have the power to access necessary evidence and witnesses, §1324a(e)(2), and the employer has the right to seek discovery from the Federal Government, 28 CFR §68.18 (2010). The employer also has the right to administrative and judicial review of the administrative law judge’s decision. §§68.54, 68.56.
Fourth, the Act makes it “an unfair immigration-related employment practice . . . to discriminate against any individual” in respect to employment “because of such individual’s national origin.” 8 U. S. C. §1324b(a).
Fifth, the Act sets forth a carefully calibrated sanction system. The penalties for hiring unauthorized aliens are graduated to prevent the Act from unduly burdening employers who are not serious offenders. As adjusted for inflation, civil penalties for a first violation of the employment restrictions range from $375–$3,200 per worker, and rise to $3,200–$16,000 per worker for repeat offenders. §1324a(e)(4)(A); 73 Fed. Reg. 10133 (2008); see also §1324a(f) (imposing criminal fines of not more than $3,000 per worker and imprisonment for up to six months for “pattern or practice” violators of employment restrictions).
As importantly, the Act limits or removes any incentive

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to discriminate on the basis of national origin by setting antidiscrimination fines at equivalent levels: $375–$3,200 per worker for first-time offenders, and $3,200–$16,000 per worker for repeat offenders. §1324b(g)(2)(B)(iv); 73 Fed. Reg. 10134. The Act then ties its unlawful employment and antidiscrimination provisions together by providing that, should the antihiring provisions terminate, the antidiscrimination provisions will also terminate, §1324b(k), “the justification for them having been removed,” H. R. Conf. Rep. No. 99–1000, p. 87 (1986).

C
Now, compare and contrast Arizona’s statute. As I have said, that statute applies to virtually all business-related licenses, other than professional licenses. Ariz. Rev. Stat. Ann. §23–211(9). Like the federal Act, the state law forbids the employment of unauthorized aliens. §§23–212(A), 23–212.01(A). It also provides employers with somewhat similar defenses. §§23–212(I)–(J), 23–212.01(I)–(J). But thereafter the state and federal laws part company.
First, the state statute seriously threatens the federal Act’s antidiscriminatory objectives by radically skewing the relevant penalties. For example, in the absence of the Arizona statute, an Arizona employer who intentionally hires an unauthorized alien for the second time would risk a maximum penalty of $6,500. 8 U. S. C. §1324a(e)(4) (A)(ii); 73 Fed. Reg. 10133. But the Arizona statute subjects that same employer (in respect to the same two incidents) to mandatory, permanent loss of the right to do business in Arizona–a penalty that Arizona’s Governor has called the “business death penalty.” Ariz. Rev. Stat. Ann. §23–212.01(F)(2); News Release, Governor Signs Employer Sanctions Bill (2007), App. 399. At the same time, the state law leaves the other side of the punishment balance—the antidiscrimination side—unchanged.
This is no idle concern. Despite the federal Act’s efforts

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to prevent discriminatory practices, there is evidence that four years after it had become law, discrimination was a serious problem. In 1990, the General Accounting Office identified “widespread discrimination . . . as a result of” the Act. Report to the Congress, Immigration Reform: Employer Sanctions and the Question of Discrimination 3, 37, 80. Sixteen percent of employers in Los Angeles admitted that they applied the I–9 requirement “only to foreign-looking or foreign-sounding persons,” and 22 percent of Texas employers reported that they “began a practice to (1) hire only persons born in the United States or (2) not hire persons with temporary work eligibility documents” because of the Act. Id., at 41–43. If even the federal Act (with its carefully balanced penalties) can result in some employers discriminating, how will employers behave when erring on the side of discrimination leads only to relatively small fines, while erring on the side of hiring unauthorized workers leads to the “business death penalty”?
Second, Arizona’s law subjects lawful employers to increased burdens and risks of erroneous prosecution. In addition to the Arizona law’s severely burdensome sanctions, the law’s procedures create enforcement risks not present in the federal system. The federal Act creates one centralized enforcement scheme, run by officials versed in immigration law and with access to the relevant federal documents. The upshot is an increased likelihood that federal officials (or the employer) will discover whether adverse information flows from an error-prone source and that they will proceed accordingly, thereby diminishing the likelihood that burdensome proceedings and liability reflect documentary mistakes.
Contrast the enforcement system that Arizona’s statute creates. Any citizen of the State can complain (anonymously or otherwise) to the state attorney general (or any county attorney), who then “shall investigate,” Ariz. Rev.

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Stat. Ann. §23–212(B) (emphasis added), and, upon a determination that that the “complaint is not false and frivolous . . . shall notify the appropriate county attorney to bring an action,” §23–212(C)(3). This mandatory language, the lower standard (“not frivolous” instead of “substantial”), and the removal of immigration officials from the state screening process (substituting numerous, elected county attorneys) increase the likelihood that suspicious circumstances will lead to prosecutions and liability of employers—even where more careful investigation would have revealed that there was no violation.
Again, this matter is far from trivial. Studies of one important source of Government information—the EVerify system—describe how the federal administrative process corrected that system’s tentative “unemployable” indications 18% of the time. This substantial error rate is not a function of a small sample size. See ante, at 26, n. 12. Rather, data from one fiscal year showed 46,921 workers initially rejected but later “confirmed as work authorized”—all while E-Verify was used by only a fraction of the Nation’s employers. U. S. Citizenship and Immigration Services, Statistics and Reports, http:// www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9a c89243c6a7543f6d1a/?vgnextchannel=7c579589cdb76210V gnVCM100000b92ca60aRCRD (Feb. 4, 2011) (as visited May 18, 2011, and available in Clerk of Court’s case file). That is to say nearly one-in-five times that the E-Verify system suggested that an individual was not lawfully employable (i.e., returned a tentative nonconfirmation of work authorization), the system was wrong; and subsequent review in the federal administrative process determined as much. (And those wrongly identified were likely to be persons of foreign, rather than domestic, origin, by a ratio of approximately 20 to 1.) See Westat, Findings of the E-Verify Program Evaluation xxxi, 210, 246 (Dec. 2009) (assessing data from April to June 2008). E-Verify’s

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accuracy rate is even worse “in states that require the use of E-Verify for all or some of their employees.” Id., at 122.
A related provision of the state law aggravates the risk of erroneous prosecutions. The state statute says that in “determining whether an employee is an unauthorized alien, the court shall consider only the federal government’s determination pursuant to 8 [U. S. C.] §1373(c).” Ariz. Rev. Stat. Ann. §23–212(H). But the federal provision to which the state law refers, 8 U. S. C. §1373(c), says only that the Federal Government, upon a State’s request, shall verify a person’s “citizenship or immigration status.” It says nothing about work authorization. See post, at 7– 10 (SOTOMAYOR, J., dissenting). It says nothing about the source of the Federal Government’s information. It imposes no duty upon the Federal Government or anyone else to investigate the validity of that information, which may falsely implicate an employer 18% of the time.
So what is the employer to do? What statute gives an employer whom the State proceeds against in state court the right to conduct discovery against the Federal Government? The Arizona statute, like the federal statute, says that the employer’s use of an I–9 form provides a defense. But there is a hitch. The federal Act says that neither the I–9 form, nor “any information contained in or appended to” the form, “may . . . be used for purposes other than for enforcement of this” federal Act. §1324a(b)(5). So how can the employer present a defense, say, that the Government’s information base is flawed? The majority takes the view that the forms are not neces­ sary to receive the benefit of the affirmative defense. Ante, at 18, n. 9. But the I–9 form would surely be the employer’s most effective evidence. See also post, at 11 (SOTOMAYOR, J., dissenting) (suggesting that the unavailability of I–9 forms to defend against state-court charges means that Congress “intended no such” proceedings).
Nor does the Arizona statute facilitate the presentation

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of a defense when it immediately follows (1) its statement that “the court shall consider only the federal government’s determination” when it considers “whether an employee is an unauthorized alien” with (2) its statement that “[t]he federal government’s determination creates a rebuttable presumption of the employee’s lawful status.” Ariz. Rev. Stat. Ann. §23–212(H) (emphasis added). The two statements sound as if they mean that a Federal Government determination that the worker is unlawful is conclusive against the employer, but its determination that the worker’s employment is lawful is subject to rebuttal by the State. Arizona tells us that the statute means the opposite. See ante, at 16, n. 7. But the legal briefs of Arizona’s attorney general do not bind the state courts. And until the matter is cleared up, employers, despite I–9 checks, despite efforts to use E-Verify, will hesitate to hire those they fear will turn out to lack the right to work in the United States.
And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens— without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona’s statute creates these effects statewide.
Why would Congress, after deliberately limiting ordinary penalties to the range of a few thousand dollars per illegal worker, want to permit far more drastic state penalties that would directly and mandatorily destroy entire businesses? Why would Congress, after carefully balancing sanctions to avoid encouraging discrimination, want to allow States to destroy that balance? Why would Congress, after creating detailed procedural protections for employers, want to allow States to undermine them? Why

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would Congress want to write into an express pre-emption provision—a provision designed to prevent States from undercutting federal statutory objectives—an exception that could so easily destabilize its efforts? The answer to these questions is that Congress would not have wanted to do any of these things. And that fact indicates that the majority’s reading of the licensing exception—a reading that would allow what Congress sought to forbid—is wrong.
II
The federal licensing exception cannot apply to a state statute that, like Arizona’s statute, seeks to bring virtually all articles of incorporation and partnership certificates within its scope. I would find the scope of the exception to federal pre-emption to be far more limited. Context, purpose, and history make clear that the “licensing and similar laws” at issue involve employment-related licensing systems.
The issuance of articles of incorporation and partnership certificates and the like have long had little or nothing to do with hiring or “employment.” Indeed, Arizona provides no evidence that any State, at the time the federal Act was enacted, had refused to grant or had revoked, say, partnership certificates, in light of the partners’ hiring practices of any kind, much less the hiring of unauthorized aliens. See Ariz. Rev. Stat. Ann. §29–308 (limited partnership formed upon the filing of a certificate of partnership providing names and addresses); §29–345 (providing for dissolution of a limited partnership “[o]n application by or for a partner or assignee . . . whenever it is not reasonably practicable to carry on the business in conformity with the partnership agreement”).
To read the exception as covering laws governing corporate charters and partnership certificates (which are not usually called “licensing” laws) is to permit States to turn

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virtually every permission-related state law into an employment-related “licensing” law. The State need only call the permission a “license” and revoke the license should its holder hire an unauthorized alien. If what was not previously an employment-related licensing law can become one simply by using it as a sanction for hiring unauthorized aliens or simply by state definition, indeed, if the State can call a corporate charter an employment-related licensing law, then why not an auto licensing law (amended to revoke the driver’s licenses of those who hire unauthorized aliens)? Why not a dog licensing law? Or why not “impute” a newly required license to conduct any business to every human being in the State, withdrawing that license should that individual hire an unauthorized alien? See S. C. Code Ann. §41–8–20 (Supp. 2010) (providing that “[a]ll private employers in South Carolina . . . shall be imputed a South Carolina employment license, which permits a private employer to employ a person in this State,” but conditioning the license on the company’s not hiring unauthorized aliens).
Such laws might prove more effective in stopping the hiring of unauthorized aliens. But they are unlikely to do so consistent with Congress’ other critically important goals, in particular, Congress’ efforts to protect from discrimination legal workers who look or sound foreign. That is why we should read the federal exemption’s “licensing” laws as limited to those that involve the kind of licensing that, in the absence of this general state statute, would nonetheless have some significant relation to employment or hiring practices. Otherwise we read the federal “licensing” exception as authorizing a State to undermine, if not to swallow up, the federal pre-emption rule.

III
I would therefore read the words “licensing and similar laws” as covering state licensing systems applicable pri-

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marily to the licensing of firms in the business of recruiting or referring workers for employment, such as the state agricultural labor contractor licensing schemes in existence when the federal Act was created. This reading is consistent with the provision’s history and language, and it minimizes the risk of harm of the kind just described.
The Act’s history supports this interpretation. Ever since 1964, the Federal Government has administered statutes that create a federal licensing scheme for agricultural labor contractors, firms that specialize in recruiting agricultural workers and referring them to farmers for a fee. Farm Labor Contractor Registration Act of 1963 (FLCRA), 78 Stat. 920; Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 96 Stat. 2583. The statutes require agricultural labor contractors to register with the federal Secretary of Labor, to obtain a registration certificate (in effect a license), and to require the contractor’s employees to carry that certificate with them when engaging in agricultural labor contracting activities. AWPA §101; FLCRA §4. The statutes list a host of forbidden activities, one of which (prior to 1986) was hiring unauthorized aliens. See AWPA §§103, 106; FLCRA §5(b). Prior to 1986, if the federal Labor Department believed a firm had violated these substantive provisions, it could institute administrative proceedings within the Labor Department. And if the Secretary found the labor contracting firm had violated the provisions, the Secretary could impose monetary penalties or withdraw the firm’s registration. AWPA §§103, 503; FLCRA §§5(b), 9.
Most important, and unlike the 1986 Act before us, the earlier agricultural labor contracting statutes did not pre­ empt similar state laws. To the contrary, the earlier Acts were “intended to supplement State law” and did not “excuse any person from compliance with appropriate State law and regulation.” AWPA §521; see FLCRA §12. By 1986, nearly a dozen States had developed state licens-

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ing systems for agricultural labor contractors, i.e., firms that recruited and referred farm (and sometimes forestry) workers for a fee; some of these laws provided that state licenses could be revoked if the contractors hired unauthorized aliens. See, e.g., Cal. Lab. Code §1690(f) (Deering Supp. 1991); 43 Pa. Cons. Stat. §§1301.503(4), 1301.505(3) (1965–1983 Supp. Pamphlet); Ore. Rev. Stat. §§658.405(1), 658.440(2)(d) (1987) (covering forestry workers).
In 1986, Congress (when enacting the Act now before us) focused directly upon the earlier federal agricultural labor contractor licensing system. And it changed that earlier system by including a series of conforming amendments in the Act. One amendment removes from the earlier statutes the specific prohibition against hiring unauthorized aliens. It thereby makes agricultural labor contractors subject to the Act’s similar general prohibition against such hiring. IRCA §101(b)(1)(C) (repealing AWPA §106). Another amendment takes from the Secretary of Labor most of the Secretary’s enforcement powers in respect to the hiring of unauthorized aliens. It thereby leaves agricultural labor contractors subject to the same single unified enforcement system that the immigration Act applies to all employers. See 29 U. S. C. §1853. A third amendment, however, leaves with the Secretary of Labor the power to withdraw the federal registration certificate from an agricultural labor contractor that hired unauthorized aliens. IRCA §101(b)(1)(B)(iii), 29 U. S. C. §1813(a)(6). Thus, the Act leaves this subset of employers (i.e., agricultural labor contractors but not other employers) subject to a federal licensing scheme.
So far, the conforming amendments make sense. But have they not omitted an important matter? Prior to 1986, States as well as the Federal Government could license agricultural labor contractors. Should the 1986 statute not say whether Congress intended that dual system to continue? The answer is that the 1986 Act does

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not omit this matter. It answers the coexistence question directly with the parenthetical phrase we are now considering, namely, the phrase, “other than through licensing and similar laws,” placed in the middle of the Act’s preemption provision. 8 U. S. C. §1324a(h)(2). That phrase refers to agricultural labor contractors, and it says that, in respect to those licensing schemes, dual state/federal licensing can continue.
As of 1986, there were strong reasons for permitting that dual system to continue in this specialized area. Dual enforcement had proved helpful in preventing particularly serious employment abuses. See, e.g., 128 Cong. Rec. 24090 (1982) (reflecting concerns that agricultural workers were “housed in hovels; . . . subjected to physical abuse and kept in virtual slavery”). And because the contractors’ business consists of providing labor forces, their hiring of authorized workers is closely related to their general fitness to do business. See S. Rep. No. 202, 88th Cong., 1st Sess., 1 (1963) (explaining that farm labor contractor registration laws are needed to prevent “irresponsible crew leaders” from “exploit[ing] . . . farmers”); Martin, Good Intentions Gone Awry: IRCA and U. S. Agriculture, 534 Annals Am. Acad. Pol. & Soc. Sci. 44, 49 (1994) (describing how farmers who relied on contractors risked losing their labor forces to immigration raids). Dual enforcement would not create a federal/state penalty disparity, for federal systems as well as state systems provide for license revocation. Experience had shown that dual enforcement had not created any serious conflict or other difficulty. And in light of the specialized nature and comparatively small set of businesses subject to dual enforcement, to permit licensing of that set of businesses would not seriously undermine the objectives of the Act or its pre-emption provision.
Thus, it is not surprising that the legislative history of the 1986 Act’s pre-emption provision says that the licens-

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ing exception is about the licensing of agricultural labor contractors. The House Report on the Act, referring to the licensing exception, states that the Committee did “not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H. R. Rep. No. 99–682, at 58 (emphasis added).
The Act’s language, while not requiring this interpretation, is nonetheless consistent with limiting the scope of the phrase in this way. Context can limit the application of the term “licensing” to particular types of licensing. The Act’s subject matter itself limits the term to employmentrelated licensing. And the Act’s specific reference to those who “recruit or refer for a fee for employment, unauthorized aliens,” is consistent with employment-related licensing that focuses primarily upon labor contracting businesses.
Thus, reading the phrase as limited in scope to laws licensing businesses that recruit or refer workers for employment is consistent with the statute’s language, with the relevant history, and with other statutory provisions in the Act. That reading prevents state law from undermining the Act and from turning the pre-emption clause on its head. That is why I consider it the better reading of the statute.

IV
Another section of the Arizona statute requires “every employer, after hiring an employee,” to “verify the employment eligibility of the employee” through the Federal Government’s E-Verify program. Ariz. Rev. Stat. Ann. §23–214. This state provision makes participation in the federal E-Verify system mandatory for virtually all Arizona employers. The federal law governing the E-Verify program, however, creates a program that is voluntary.

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By making mandatory that which federal law seeks to make voluntary, the state provision stands as a significant “ ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ” Crosby, 530 U. S., at 373 (quoting Hines, 312 U. S., at 67). And it is consequently pre-empted.
The federal statute itself makes clear that participation in the E-Verify program is voluntary. The statute’s relevant section bears the title “Voluntary Election to Participate in a Pilot Program.” IIRIRA §402, note following 8 U. S. C. §1324a, p. 331. A subsection bears the further title, “Voluntary Election.” §402(a). And within that subsection, the statute says that employers “may elect to participate.” (Emphasis added.) The statute elsewhere requires the Secretary of Homeland Security to “widely publicize . . . the voluntary nature” of the program. §402(d)(2); see also §402(d)(3)(A) (requiring the designation of local officials to advertise the “voluntary nature” of the program). It adds that employers may “terminate” their “election” to participate by following certain procedures. §402(c)(3). And it tells the Secretary of Homeland Security (as an earlier version told the Attorney General) that she “may not require any person or other entity to participate.” §402(a); see also §402(e) (creating exceptions, none of which is applicable here, that require federal employers and certain others to participate in E-Verify or another pilot program).
Congress had strong reasons for insisting on the voluntary nature of the program. E-Verify was conceived as, and remains, a pilot program. Its database consists of tens of millions of Social Security and immigration records kept by the Federal Government. These records are prone to error. See, e.g., Office of the Inspector General, Social Security Administration, Congressional Response Report: Accuracy of the Social Security Administration’s Numident File 12 (2006) (hereinafter Social Security Report)

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(estimating that 3.3 million naturalized citizens are misclassified in a Social Security database used by E-Verify); GAO, Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain 16 (GAO–11–146, 2010) (hereinafter GAO Report) (noting that “erroneous [nonconfirmations] related to name inconsistencies . . . remain an issue” that “can create the appearance of discrimination because of their disparate impact on certain cultural groups”). And making the program mandatory would have been hugely expensive. See post, at 16 (SOTOMAYOR, J., dissenting).
The E-Verify program is still a pilot program, as a matter of statute and practice. See IIRIRA §401; Letter from H. Couch to R. Stana (Dec. 8, 2010) (discussing aspects of E-Verify that have yet to be implemented). The effects of the program’s efforts to take account of, and correct for, potential errors remain uncertain. Congress could decide that, based on the results of the pilot, E-Verify should become a mandatory program. But it has not yet made that determination. And in making that decision, it will have to face a number of questions: Will workers receiving tentative negative verdicts understand the possibility of administrative challenge? Will they make the effort to invoke that process, say traveling from a farm to an urban Social Security office? Will employers prove willing to undergo the financial burden of supporting a worker who might lose the challenge? Will employers hesitate to train those workers during the time they bring their challenges? Will employers simply hesitate to hire workers who might receive an initial negative verdict—more likely those who look or sound foreign? Or will they find ways to dismiss those workers? These and other unanswered questions convinced Congress to make E-Verify a pilot program, to commission continuous study and evaluation, and to insist that participation be voluntary.
In co-opting a federal program and changing the key

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terms under which Congress created that program, Arizona’s mandatory state law simply ignores both the federal language and the reasoning it reflects, thereby posing an “ ‘obstacle to the accomplishment’ ” of the objectives Congress’ statute evinces. Crosby, supra, at 373 (quoting Hines, supra, at 67).
The majority reaches a contrary conclusion by pointing out (1) that Congress has renewed the E-Verify program several times, each time expanding its coverage, to the point where it now encompasses all 50 States; (2) that the E-Verify database has become more accurate; (3) that the Executive Branch has itself mandated participation for federal contractors; and (4) that the statute’s language tells the Secretary of Homeland Security, not the States, to maintain the program as voluntary.
The short, and, I believe, conclusive answers to these objections are: (1) Congress has kept the language of the statute—and the voluntary nature of the program—the same throughout its program renewals. See 115 Stat. 2407; 117 Stat. 1944; §547, 123 Stat. 2177. And it is up to Congress, not to Arizona or this Court, to decide when participation in the program should cease to be voluntary.
(2) The studies and reports have repeatedly found both (a) that the E-Verify program had achieved greater accuracy, but (b) that problems remain. See, e.g., Social Security Report 11 (estimating that Social Security records contain 4.8 million “discrepancies that could require the numberholder to visit [the Social Security Administration] . . . before employment eligibility would be confirmed”); GAO Report 19 (estimating that, if E-Verify were made mandatory nationwide, 164,000 newly hired workers each year would erroneously be adjudged ineligible to work because of name mismatches, as when the worker’s “first or last name is incorrectly spelled in government databases or on identification documents”). And it is up to Congress, not to Arizona or this Court, to determine when

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the federally designed and federally run E-Verify program is ready for expansion.
(3) Federal contractors are a special group of employers, subject to many special requirements, who enter voluntarily into a special relation with the Government. For the Federal Government to mandate that a special group participate in the E-Verify program tells us little or nothing about the effects of a State’s mandating that nearly every employer within the State participate—as Arizona has done. And insofar as we have not determined whether the Executive was authorized by Congress to mandate EVerify for federal contractors, it says nothing about Congress’ intent.
(4) There is no reason to imply negatively from language telling the Secretary not to make the program mandatory, permission for the States to do so. There is no presumption that a State may modify the operation of a uniquely federal program like E-Verify. Cf. Buckman Co. v. Plain­ tiffs’ Legal Comm., 531 U. S. 341, 347–348 (2001); Boyle v. United Technologies Corp., 487 U. S. 500, 504–505 (1988); see also post, at 15–16 (SOTOMAYOR, J., dissenting). The remaining federal statutory language makes clear the voluntary nature of the E-Verify program. Arizona’s plan would undermine that federal objective.
For these reasons I would hold that the federal Act, including its E-Verify provisions, pre-empts Arizona’s state law. With respect, I dissent from the majority’s contrary holdings.

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SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., PETITIONERS v. MICHAEL B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
JUSTICE SOTOMAYOR, dissenting.
In enacting the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, Congress created a “com­ prehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147 (2002). The Court reads IRCA’s saving clause—which preserves from pre-emption state “licensing and similar laws,” 8 U. S. C. §1324a(h)(2)—to permit States to determine for them­ selves whether someone has employed an unauthorized alien so long as they do so in conjunction with licensing sanctions. This reading of the saving clause cannot be reconciled with the rest of IRCA’s comprehensive scheme. Having constructed a federal mechanism for determining whether someone has knowingly employed an unauthor­ ized alien, and having withheld from the States the infor­ mation necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do. When viewed in context, the saving clause can only be under­ stood to preserve States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA by knowingly employing an unauthor­ ized alien. Because the Legal Arizona Workers Act in­

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stead creates a separate state mechanism for Arizona state courts to determine whether a person has employed an unauthorized alien, I would hold that it falls outside the saving clause and is pre-empted.
I would also hold that federal law pre-empts the provi­ sion of the Arizona Act making mandatory the use of E-Verify, the federal electronic verification system. By requiring Arizona employers to use E-Verify, Arizona has effectively made a decision for Congress regarding use of a federal resource, in contravention of the significant policy objectives motivating Congress’ decision to make partici­ pation in the E-Verify program voluntary.

I A
I begin with the plain text of IRCA’s pre-emption clause. IRCA expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”1 Ibid. The Arizona Act, all agree, imposes civil sanctions upon those who employ unauthorized aliens. The Act thus escapes express pre-emption only if it falls within IRCA’s paren­ thetical saving clause for “licensing and similar laws.” Ibid.
The saving clause is hardly a paragon of textual clarity. IRCA does not define “licensing,” nor does it use the word “licensing” in any other provision. Laws that impose sanctions by means of licensing exist in many forms. Some permit authorities to take action with respect to licenses upon finding that a licensee has engaged in pro­

——————
1 IRCA defines the term “unauthorized alien” to mean, “with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U. S. C. §1324a(h)(3).

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hibited conduct. See, e.g., Ariz. Rev. Stat. Ann. §4– 210(A)(1) (West 2011) (liquor licenses may be suspended or revoked if the licensing authority determines after notice and a hearing that repeated acts of violence have occurred on the licensed premises). Others, more nar­ rowly, permit authorities to take such action following a pre-existing determination by another authorized body that the licensee has violated another provision of law. See, e.g., §4–202(D) (liquor licenses may not be renewed to persons who have been convicted of felonies within the past five years). That both types of laws might be defined in some contexts as licensing laws does not necessarily mean that Congress intended the saving clause to encom­ pass both types. See Dolan v. Postal Service, 546 U. S. 481, 486 (2006) (“A word in a statute may or may not extend to the outer limits of its definitional possibilities”); see also FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 9) (“[C]onstruing statutory language is not merely an exercise in ascertaining the outer limits of [a word’s] definitional possibilities” (internal quotation marks omit­ ted; second alteration in original)). In isolation, the text of IRCA’s saving clause provides no hint as to which type or types of licensing laws Congress had in mind.
B
Because the plain text of the saving clause does not resolve the question, it is necessary to look to the text of IRCA as a whole to illuminate Congress’ intent. See Dolan, 546 U. S., at 486 (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute”); Ali v. Federal Bureau of Prisons, 552 U. S. 214, 222 (2008) (con­ struction of a statutory term “must, to the extent possible, ensure that the statutory scheme is coherent and consis­ tent”); Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“[St]tatutory language cannot be construed in

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a vacuum. It is a fundamental canon of statutory con­ struction that the words of a statute must be read in their context and with a view to their place in the overall statu­ tory scheme”).2
Before Congress enacted IRCA in 1986, a number of States had enacted legislation prohibiting employment of unauthorized aliens. See ante, at 2, and n. 1 (citing 12 such laws). California, for example, prohibited the know­ ing employment of an alien “who is not entitled to lawful residence in the United States” when “such employment would have an adverse effect on lawful resident workers,” and made violations punishable by fines of $200 to $500. 1971 Cal. Stats. ch. 1442, §1; see also De Canas v. Bica, 424 U. S. 351, 352, n. 1 (1976). Kansas went even further, making it a misdemeanor, punishable by a term of con­ finement not to exceed one month, to employ a person within Kansas knowing “such person to be illegally within the territory of the United States.” Kan. Stat. Ann. §§21– 4409, 21–4502 (1981).3
Congress enacted IRCA amidst this patchwork of state laws. IRCA “ ‘forcefully’ made combating the employment of illegal aliens central to ‘the policy of immigration law.’ ” Hoffman, 535 U. S., at 147 (quoting INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 194, and n. 8 (1991); brackets omitted); see also H. R. Rep. No. 99– 682, pt. 1, p. 46 (1986) (hereinafter H. R. Rep. No. 99–682)
——————
2 As these cases demonstrate, a contextual analysis of a statutory provision is in no way “untethered” from the statute’s text. Ante, at 15, n. 6. To the contrary, the majority’s reading of the saving clause—with its singular focus on the undefined word “licensing” to the exclusion of all contextual considerations—is “untethered” from the statute as a whole.
3 None of the pre-IRCA state laws cited by the majority provided for licensing-related sanctions. The parties have not identified any preIRCA state laws related to licensing that purported to regulate the employment of unauthorized aliens other than those governing agricul­ tural labor contractors. See ante, at 13–14 (BREYER, J., dissenting).

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5

SOTOMAYOR, J., dissenting
(“[L]egislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens”). As the major­ ity explains, IRCA makes it “unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” §1324a(a)(1)(A); ante, at 3. IRCA also requires employers to verify that they have reviewed documents establishing an employee’s eligibility for employment. See §1324a(b); ante, at 3–4. These two provisions are the foundation of IRCA’s “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman, 535 U. S., at 147.
Congress made explicit its intent that IRCA be enforced uniformly. IRCA declares that “[i]t is the sense of the Congress that . . . the immigration laws of the United States should be enforced vigorously and uniformly.” §115, 100 Stat. 3384 (emphasis added). Congress struc­ tured IRCA’s provisions in a number of ways to accom­ plish this goal of uniform enforcement.
First, and most obviously, Congress expressly displaced the myriad state laws that imposed civil and criminal sanctions on employers who hired unauthorized aliens. See §1324a(h)(2); see also H. R. Rep. No. 99–682, at 58 (“The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, re­ cruitment or referral of undocumented aliens”). Congress could not have made its intent to pre-empt state and local laws imposing civil or criminal sanctions any more “ ‘clear [or] manifest.’ ” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).
Second, Congress centralized in the Federal Govern­ ment enforcement of IRCA’s prohibition on the knowing employment of unauthorized aliens. IRCA instructs the

6

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

Attorney General to designate a specialized federal agency unit whose “primary duty” will be to prosecute violations of IRCA. §1324a(e)(1)(D). IRCA also instructs the Attor­ ney General to establish procedures for receiving com­ plaints, investigating complaints having “a substantial probability of validity,” and investigating other violations. §1324a(e)(1); see also 8 CFR §274a.9 (2010). Upon con­ cluding that a person has violated IRCA, the Attorney General must provide the person with notice and an op­ portunity for a hearing before a federal administrative law judge (ALJ). 8 U. S. C. §§1324a(e)(3)(A), (B). If the person does not request a hearing, the Attorney General may impose a final, nonappealable order requiring payment of sanctions. §1324a(e)(3)(B). If the person requests a hear­ ing, the ALJ is required to hold a hearing and, upon find­ ing that the person has violated IRCA, must order the payment of sanctions. §1324a(e)(3)(C). The ALJ’s order is the final agency order, unless the affected person requests and obtains further administrative appellate review. §1324a(e)(7); see also 28 CFR §68.54 (2010). IRCA grants immigration officers and ALJs “reasonable access to examine evidence of any person or entity being investi­ gated” and provides them with extensive subpoena powers. §1324a(e)(2). And the immigration officers investigating suspected violations obviously have access to the relevant federal information concerning the work authorization status of the employee in question.4
Third, Congress provided persons “adversely affected” by an agency order with a right of review in the federal courts of appeals. §1324a(e)(8); see also §1324a(e)(9) (directing the Attorney General in cases of noncompliance to file suit in federal district court to enforce a final order

——————
4 By regulation, the Attorney General has conferred on parties charged with violating IRCA the right to obtain discovery from the Federal Government in a hearing before an ALJ. See 28 CFR §68.18.

Cite as: 563 U. S. ____ (2011)

7

SOTOMAYOR, J., dissenting
imposing sanctions); §1324a(f) (authorizing the Attorney General to pursue injunctive relief and criminal sanctions in federal district court). In this way, Congress ensured that administrative orders finding violations of IRCA would be reviewed by federal judges with experience adjudicating immigration-related matters.
Fourth, Congress created a uniquely federal system by which employers must verify the work authorization status of new hires. Under this system, an employer must attest under penalty of perjury on a form designated by the Attorney General (the I–9 form) that it has examined enumerated identification documents to verify that a new hire is not an unauthorized alien. §1324a(b)(1)(A); see also 8 CFR §274a.2; ante, at 3–4. Good-faith compliance with this verification requirement entitles an employer to an affirmative defense if charged with violating IRCA. §1324a(a)(3); see also H. R. Rep. No. 99–682, at 57. Nota­ bly, however, IRCA prohibits use of the I–9 form for any purpose other than enforcement of IRCA and various provisions of federal criminal law. §1324a(b)(5); 8 CFR §274a.2(b)(4). Use of the I–9 form is thus limited to federal proceedings, as the majority acknowledges. See ante, at 18, n. 9.
Finally, Congress created no mechanism for States to access information regarding an alien’s work authoriza­ tion status for purposes of enforcing state prohibitions on the employment of unauthorized aliens. The relevant sections of IRCA make no provision for the sharing of work authorization information between federal and state authorities even though access to that information would be critical to a State’s ability to determine whether an employer has employed an unauthorized alien. In stark contrast, a separate provision in the same title of IRCA creates a verification system by which States can ascer­ tain the immigration status of aliens applying for benefits under programs such as Medicaid and the food stamp

8

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

program. See IRCA §121(a)(1)(C), 42 U. S. C. §1320b– 7(d)(3). The existence of a verification system in one provision of IRCA, coupled with its absence in the provi­ sion governing employment of unauthorized aliens, sug­ gests strongly that Congress did not contemplate any role for the States in adjudicating questions regarding em­ ployment of unauthorized aliens. Cf. Bates v. United States, 522 U. S. 23, 29–30 (1997) (“Where Congress in­ cludes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks and brackets omitted)).
In an attempt to show that Congress intended for the Federal Government to share immigration-related in­ formation with the States, Arizona points to a federal statute, 8 U. S. C. §1373(c), requiring the Government to respond to certain inquiries from state agencies. Section 1373(c), however, merely requires the Government to respond to inquiries from state agencies “seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency.” It does not require the provision of information regarding an alien’s work authorization status, which is not necessarily synonymous with immigration status. See 8 CFR §274a.12(c) (identifying categories of legal aliens “who must apply for employment authorization”).5 Arizona has not identified any federal statute or regulation requiring the Federal Government to provide information regarding an alien’s work authorization status to a State.6 More
——————
5 For example, spouses and minor children of persons working in the United States as exchange visitors must apply for employment authori­ zation even though they have lawful immigration status as dependents of the exchange visitor. See 8 CFR §274a.12(c)(5).
6 In its capacity as an employer, a State may be able to access in­ formation regarding the work authorization status of its employees

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9

SOTOMAYOR, J., dissenting
importantly, §1373(c) was enacted in 1996, see §642(c), 110 Stat. 3009–707, and thus says nothing about Con­ gress’ intent when it enacted IRCA’s saving clause a dec­ ade earlier. See Jones v. United States, 526 U. S. 227, 238 (1999).
Collectively, these provisions demonstrate Congress’ intent to build a centralized, exclusively federal scheme for determining whether a person has “employ[ed], or recruit[ed] or refer[red] for a fee for employment, unau­ thorized aliens.” 8 U. S. C. §1324a(h)(2).
C
IRCA’s saving clause must be construed against this backdrop. Focusing primarily on the text of the saving clause, Arizona and the majority read the clause to permit States to determine themselves whether a person has employed an unauthorized alien, so long as they do so in connection with licensing sanctions. See ante, at 12–13. This interpretation overlooks the broader statutory con­ text and renders the statutory scheme “[in]coherent and [in]consistent.” Ali, 552 U. S., at 222.
Under the majority’s reading of the saving clause, state prosecutors decide whether to commence licensing-related proceedings against a person suspected of employing an unauthorized alien. The majority’s holding also permits state courts and other tribunals to adjudicate the question whether an employer has employed an unauthorized alien. The Arizona Act illustrates the problems with reading the saving clause to permit such state action. The Act directs prosecutors to verify an employee’s work authorization with the Federal Government pursuant to §1373(c), e.g., Ariz. Rev. Stat. Ann. §23–212(B) (West Supp. 2010), and the state court “shall consider only the federal govern­ ment’s determination pursuant to [§]1373(c)” in “determin­
——————
through use of E-Verify.

10

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

ing whether an employee is an unauthorized alien,” e.g., §23–212(H).7 Putting aside the question whether §1373(c) actually provides access to work authorization informa­ tion, §1373(c) did not exist when IRCA was enacted in 1986. See supra, at 9. Arizona has not identified any avenue by which States could have accessed work authori­ zation information in the first decade of IRCA’s existence. The absence of any such avenue at the time of IRCA’s enactment speaks volumes as to how Congress would have understood the saving clause to operate: If States had no access to information regarding the work authorization status of aliens, how could state courts have accurately adjudicated the question whether an employer had em­ ployed an unauthorized alien?
The Arizona Act’s reliance on §1373(c) highlights the anomalies inherent in state schemes that purport to adju­ dicate whether an employee is an authorized alien. Even when Arizona prosecutors obtain information regarding an alien’s immigration status pursuant to §1373(c), the prosecutors and state court will have to determine the significance of that information to an alien’s work authorization status, which will often require deciding technical questions of immigration law. See, e.g., 8 CFR §§274a.12(a)–(c) (dividing 62 different classes of aliens into those authorized for employment incident to immigra­ tion status, those authorized for employment with a spe­ cific employer incident to immigration status, and those who must apply for work authorization). And, as dis­ cussed above, that information may not shed light at all on an alien’s work authorization status, which is oftentimes distinct from immigration status. See supra, at 8, and n. 5. As a result, in many cases state decisions—made by

——————
7 However, the “federal government’s determination creates [only] a rebuttable presumption of the employee’s lawful status.” E.g., §23– 212(H).

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11

SOTOMAYOR, J., dissenting
prosecutors and courts with no or little experience in federal immigration law—will rest on less-than-complete or inaccurate information, “creat[ing] enforcement risks not present in the federal system.” Ante, at 7 (BREYER, J., dissenting). I can discern no reason why Congress would have intended for state courts inexperienced in immigra­ tion matters to adjudicate, in the context of licensing sanctions, the very same question that IRCA commits to federal officers, ALJs, and the courts of appeals.
Equally problematic is the fact that employers charged under a state enforcement scheme with hiring unauthor­ ized aliens are foreclosed from using I–9 forms in their defense in the state proceedings. Like IRCA, the Arizona Act confers an affirmative defense on employers who comply in good faith with IRCA’s verification requirement. See Ariz. Rev. Stat. Ann. §§23–212(J), 23–212.01(J). As discussed above, however, IRCA prohibits an employer from using the I–9 form to establish that affirmative defense under Arizona law. See 8 U. S. C. §1324a(b)(5); 8 CFR §274a.2(b)(4). Not to worry, the majority says: The employer can establish the affirmative defense through office policies and testimony of employees. Ante, at 18, n. 9. But Congress made the I–9 verification system and accompanying good-faith defense central to IRCA. See, e.g., H. R. Rep. No. 99–682, at 60 (“[A]n effective verifica­ tion procedure, combined with an affirmative defense for those who in good faith follow the procedure, is essential”). Given the importance of this procedure, if Congress in fact intended for state courts to adjudicate whether a person had employed an unauthorized alien in connection with licensing sanctions, why would it have prohibited that person from using the I–9 form—“the employer’s most effective evidence,” ante, at 9 (BREYER, J., dissenting)—in the state-court proceeding? The question answers itself: Congress intended no such thing.
Furthermore, given Congress’ express goal of “uni­

12

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

for[m]” enforcement of “the immigration laws of the United States,” IRCA §115, 100 Stat. 3384, I cannot be­ lieve that Congress intended for the 50 States and count­ less localities to implement their own distinct enforcement and adjudication procedures for deciding whether employ­ ers have employed unauthorized aliens. Reading the sav­ ing clause as the majority does subjects employers to a patchwork of enforcement schemes similar to the one that Congress sought to displace when it enacted IRCA. Hav­ ing carefully constructed a uniform federal scheme for determining whether a person has employed an unauthor­ ized alien, Congress could not plausibly have meant to create such a gaping hole in that scheme through the undefined, parenthetical phrase “licensing and similar laws.” See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (“Congress . . . does not, one might say, hide elephants in mouseholes”).
In sum, the statutory scheme as a whole defeats Ari­ zona’s and the majority’s reading of the saving clause. Congress would not sensibly have permitted States to determine for themselves whether a person has employed an unauthorized alien, while at the same time creating a specialized federal procedure for making such a determi­ nation, withholding from the States the information nec­ essary to make such a determination, and precluding use of the I–9 forms in nonfederal proceedings. See United States v. Locke, 529 U. S. 89, 106 (2000) (“We decline to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law”).
To render IRCA’s saving clause consistent with the statutory scheme, I read the saving clause to permit States to impose licensing sanctions following a final federal determination that a person has violated §1324a(a)(1)(A) by knowingly hiring, recruiting, or refer­

Cite as: 563 U. S. ____ (2011)

13

SOTOMAYOR, J., dissenting
ring for a fee an unauthorized alien.8 This interpretation both is faithful to the saving clause’s text, see supra, at 2– 3, and best reconciles the saving clause with IRCA’s “care­ ful regulatory scheme,” Locke, 529 U. S., at 106. It also makes sense as a practical matter. In enacting IRCA’s pre-emption clause, Congress vested in the Federal Gov­ ernment the authority to impose civil and criminal sanc­ tions on persons who employ unauthorized aliens. Licens­ ing and other types of business-related permissions are typically a matter of state law, however. See, e.g., Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991) (noting that “[c]orporation law” is an area traditionally “governed by state-law standards”); Chicago Title & Trust

——————
8 This reading of the saving clause finds support in IRCA’s legislative history. The House Committee on the Judiciary reported that IRCA was “not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions pro­ visions in this legislation.” H. R. Rep. No. 99–682, at 58 (emphasis added). The Committee’s reference to “this legislation” is, of course, a reference to IRCA, and only federal officers, ALJs, and courts have authority under IRCA to find that a person has violated the statute’s sanctions provisions.
My reading is also consistent with, though not compelled by, the provisions in IRCA that amended the Migrant and Seasonal Agricul­ tural Worker Protection Act (AWPA), 96 Stat. 2583. As JUSTICE BREYER discusses in detail, see ante, at 13–15 (dissenting opinion), AWPA requires entities to secure a certificate of registration from the Department of Labor before engaging in any “farm labor contracting activity.” AWPA §101, 96 Stat. 2587, 29 U. S. C. §1811(a). Before 1986, AWPA prohibited farm labor contractors from hiring unauthorized aliens, and it permitted the Department of Labor to institute adminis­ trative proceedings to enforce this prohibition. See §§103(a)(3), 103(b), 106(a), 96 Stat. 2588–2590. In IRCA, Congress repealed this pro­ hibition, IRCA §101(b)(1)(C), but authorized the Secretary of Labor to withdraw a contractor’s federal registration certificate upon a finding of an IRCA violation, IRCA §101(b)(1)(B)(iii), 100 Stat. 3372, 29 U. S. C. §1813(a)(6). Thus, IRCA made AWPA’s licensing sanctions turn on a prior federal adjudication of a violation of IRCA.

14

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U. S. 120, 127 (1937) (“How long and upon what terms a state­ created corporation may continue to exist is a matter exclusively of state power”). As a result, if Congress wanted to “ensur[e] that a full range of sanctions [was] available to be used against businesses that employ unau­ thorized aliens,” Brief for Respondent 37, Congress had to authorize the States and localities to impose licensing sanctions following a federal adjudication of a violation of IRCA.
I do not mean to suggest that the mere existence of a comprehensive federal scheme necessarily reveals a con­ gressional intent to oust state remedies. Cf. English v. General Elec. Co., 496 U. S. 72, 87 (1990) (“[T]he mere existence of a federal regulatory or enforcement scheme . . . does not by itself imply pre-emption of state reme­ dies”); New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) (rejecting the argument that “pre-emption is to be inferred merely from the comprehen­ sive character of the federal [program]”). Here, Congress has made clear its intent to oust state civil and criminal remedies; the sole question is the scope of the saving clause’s exception for “licensing and similar laws.” The comprehensive scheme established by Congress necessar­ ily informs the scope of this clause. For all the reasons stated, the only interpretation of that clause that is consis­ tent with the rest of the statute is that it preserves the States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA’s prohibition on the knowing employment of unauthorized aliens.
Under my construction of the saving clause, the Arizona Act cannot escape pre-emption. The Act authorizes Ari­ zona county attorneys to commence actions charging an employer with having employed an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–212(D), 23–212.01(D). Arizona

Cite as: 563 U. S. ____ (2011)

15

SOTOMAYOR, J., dissenting
state courts must find that an employer has employed an unauthorized alien before imposing the sanctions enumer­ ated in the Act. §§23–212(F), 23–212.01(F). Because the Act’s sanctions are not premised on a final federal deter­ mination that an employer has violated IRCA, I would hold that the Act does not fall within IRCA’s saving clause and is therefore pre-empted.9
II
I agree with the conclusion reached by JUSTICE BREYER in Part IV of his dissenting opinion that federal law impli­ edly pre-empts the provision in the Arizona Act requiring all Arizona employers to use the federal E-Verify program. See Ariz. Rev. Stat. Ann. §23–214. I also agree with much of his reasoning. I write separately to offer a few addi­ tional observations.
As we have recently recognized, that a state law makes mandatory something that federal law makes voluntary does not mean, in and of itself, that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Crosby v. National Foreign Trade Council, 530 U. S. 363, 373 (2000) (internal quotation marks omitted). See Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___ (2011) (slip op., at 1–2) (concluding that a federal regulation permitting manufacturers to choose between two seatbelt options did not pre-empt state tort liability based on a decision to install one of those options); see also id., at ___ (slip op., at 2) (SOTOMAYOR, J., concurring) (“[T]he mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied
——————
9 Because I believe that the Arizona Act does not fall within IRCA’s saving clause for this reason, I have no reason to consider the separate question whether the Act’s definition of “license” sweeps too broadly. Compare ante, at 9–11, with ante, at 1–2, 11–12 (BREYER, J., dissenting).

16

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

pre-emption”). This case, however, is readily distinguishable from cases
like Williamson, in which state law regulates relationships between private parties. Here, the Arizona Act directly regulates the relationship between the Federal Govern­ ment and private parties by mandating use of a federally created and administered resource. This case thus impli­ cates the “uniquely federal interes[t]” in managing use of a federal resource. Boyle v. United Technologies Corp., 487 U. S. 500, 504 (1988) (internal quotation marks omitted); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347 (2001) (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law”).
Significant policy objectives motivated Congress’ deci­ sion to make use of E-Verify voluntary. In addition to those discussed by JUSTICE BREYER, see ante, at 17–19 (dissenting opinion), I note that Congress considered the cost of a mandatory program. In 2003, when Congress elected to expand E-Verify to all 50 States but declined to require its use, it cited a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary program would be $11 million, and the annual cost of a nationwide mandatory program would be $11.7 billion. H. R. Rep. No. 108–304, pt. 1, p. 6 (2003); see also Insti­ tute for Survey Research, Temple Univ., and Westat, INS Basic Pilot Evaluation: Summary Report 38 (2002) (con­ cluding that the Social Security Administration (SSA) and the Immigration and Naturalization Service were not “capable of enrolling and administering a program for the hundreds of thousands of employers in any of the large mandatory programs explored here”). A more recent re­ port prepared for the Department of Homeland Security similarly noted the costs associated with mandatory use of

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17

SOTOMAYOR, J., dissenting
E-Verify. See Westat, Findings of the E-Verify® Program Evaluation 224 (2009) (observing that the SSA estimated that it would have to hire an additional 1,500 field staff to handle a mandatory national program); id., at 251 (re­ commending that any expansion of E-Verify take place gradually “to allow the Federal government adequate time to hire and train the new staff required to run such a program”). Permitting States to make use of E-Verify mandatory improperly puts States in the position of mak­ ing decisions for the Federal Government that directly affect expenditure and depletion of federal resources.10
The majority highlights the Government’s statement in its amicus brief that “ ‘the E-Verify system can accommo­ date the increased use that the Arizona statute and exist­ ing similar laws would create.’ ” Ante, at 25 (quoting Brief for United States as Amicus Curiae 34). But “[t]he pur­ pose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, 518 U. S., at 494 (internal quotation marks omitted). It matters not whether the Executive Branch believes that the Government is now capable of handling the burdens of a mandatory system.11 Congressional intent controls, and Congress has repeat­ edly decided to keep the E-Verify program voluntary. Because state laws requiring use of E-Verify frustrate the significant policy objectives underlying this decision,
——————
10 In Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___ (2011) (slip op., at 10), we held that the Federal Government’s judg­ ment regarding the cost effectiveness of seatbelt options did not reveal an intent “to forbid common-law tort suits in which a judge or jury might reach a different conclusion.” The obvious distinction between that case and this one is that Congress’ decision to keep use of E-Verify voluntary bears directly on the costs to the Federal Government itself.
11 Notably, the Government’s brief does not state that the E-Verify system could accommodate the increased use that would result if all 50 States enacted similar laws; it limits its statement to “the Arizona statute and existing similar laws.” Brief for United States as Amicus Curiae 34 (emphasis added).

18

CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

thereby imposing explicitly unwanted burdens on the Federal Government, I would hold that federal law impli­ edly pre-empts the Arizona requirement.

* * *
For these reasons, I cannot agree with either of the Court’s holdings in this case. I respectfully dissent.

 
 1 David A. Selden (#007499)

2 Julie A. Pace (#014585)

Heidi Nunn-Gilrnan (#023971)

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of Commerce"), Arizona Chamber of Commerce, Arizona Hispanic Chamber of Commerce, Inc. ("Arizona Hispanic Chamber of Commerce"), Arizona Farm Bureau Federation ("Arizona Farm Bureau"), Arizona Restaurant and Hospitality Association, Associated Minority Contractors of America ("Associated Minority Contractors"), Arizona Roofing Contractors Association, the National Roofing Contractors' Association ("National Roofing Contractors' Association"), Wake Up Arizona! Inc. ("Wake Up Arizona!"), and the Arizona Landscape Contractors Association, Inc. ("Arizona Landscaping Contractors Association"), (hereinafter

collectively referred to as "Plaintiffs") allege as follows: 19

SUMMARY 20

1. Plaintiffs bring this case to uphold and to prevent violations of the 21

Constitution of the United States, the laws of the United States, and the Constitution 22

of the State of Arizona. 23

2. On July 2, 2007, the Honorable Janet Napolitano, the Governor of 24

Arizona, signed into law HB 2779, a bill passed by the Arizona Legislature on June 25

20, 2007 (hereinafter referred to as "HB 2779"). 26

3. HB 2779 violates the United States and Arizona Constitutions and is 27

pre-empted by federal law. 28

2
DMWEST #6548647 v2

1

4. HB 2779 deprives Plaintiffs and others of property without due process

2 of law. It deprives Plaintiffs of fundamental rights guaranteed by the United States

3 and Arizona Constitutions.

4

5. HB 2779 regulates and interferes with interstate commerce.

5

6. HB 2779 violates the Supremacy Clause because it conflicts with and is

6 preempted by federal law.

7

7. HB 2779 violates the separation of powers doctrine of the Arizona

8 Constitution.

9

8. Plaintiffs seek and are entitled to a declaratory judgment and a

10 preliminary and permanent injunction to declare HB 2779 unconstitutional and illegal

11 and to enjoin the Governor and the Attorney General from enforcing HB 2779.

12

PARTIES, JURISDICTION AND VENUE.

9. Plaintiff the Arizona Contractors Association is a non profit corporation

14 incorporated under the laws of the State of Arizona, with its principal place of

15 business located in the State of Arizona.

10. The Arizona Contractors Association is an employer that employs

17 employees in the State of Arizona. It transacts business in Arizona and holds what are

18 deemed to be licenses under HB 2779.

19

11. The Arizona Contractors Association is an association of members

20 ("Arizona Contractors Association Members"). Arizona Contractors Association

21 Members employ employees in the State of Arizona, transact business in Arizona, and

22 hold licenses and permits from the State and/or its political subdivisions.

23

12. The Arizona Contractors Association serves as a public policy advocate

24 on behalf of its members and urges the Arizona Legislature and Executive Branch

25 agencies to adopt and implement policies that promote a favorable legal and business

26 climate in Arizona for the benefit of its members.

27

28

3
DMWEST #6548647 v2

1

l3. Plaintiff AZEIR is a non profit corporation incorporated under the laws

2 of the State of Arizona, with its principal place of business located in the State of

3 Arizona.

4

14. AZEIR is an association of members ("AZEIR Members"). AZEIR

5 Members employ employees in the State of Arizona, transact business in Arizona, and

6 hold licenses and permits from the State and/or its political subdivisions.

7

15. AZEIR serves as a public policy advocate on behalf of its members and

8 urges the Arizona Legislature and Executive Branch agencies to adopt and implement

9 policies that promote a favorable legal and business climate in Arizona for the benefit

10 of its members.

11

16. Plaintiff the U.S. Chamber of Commerce is a non profit corporation

12 incorporated under the laws of the District of Columbia with its principal place of

l3 business located in Washington D.C.

17. The U.S. Chamber of Commerce is the world's largest federation of

15 businesses, professional organizations, and state and local chambers of commerce.

16 The U.S. Chamber of Commerce represents an underlying membership of more than

17 three million businesses and organizations of every size in every industrial sector and

18 geographic region of the country, including Arizona, and its members transact

19 business in Arizona and hold what are deemed to be licenses under HB 2779.

20

18. The U. S. Chamber of Commerce membership includes associations,

21 chambers of commerce and direct business members. The U. S. Chamber of

22 Commerce serves as a public policy advocate on behalf of its members. It advocates

23 the interests of the business community, including advocating the interests of its

24 members in courts across the nation in cases involving issues of national concern to

25 American businesses.

26

19. The U.S. Chamber of Commerce has also been involved heavily in

27 efforts to seek to achieve federal immigration legislation and laws that are uniform,

28 fair, and appropriate to the needs of businesses.

4
DMWEST #6548647 v2

1

20. Plaintiff the Arizona Chamber of Commerce is a non profit corporation

2 incorporated under the laws of the State of Arizona, with its principal place of

3 business located in the State of Arizona.

4

21. The Arizona Chamber of Commerce employ employees in the State of

5 Arizona, transact business in Arizona, and holds what are deemed to be licenses under

6 HB 2779.

7

22. The Arizona Chamber of Commerce is an association of members

8 ("Arizona Chamber of Commerce Members"). Arizona Chamber of Commerce

9 Members employ employees I the State of Arizona, transact business in Arizona, and

10 hold licenses and permits from the State an/or its political subdivision.

11

23. Arizona Chamber of Commerce Members employ employees in the

12 State of Arizona, transact business in Arizona, and hold licenses and permits from the

13 State andlor its political subdivisions.

24. The Arizona Chamber of Commerce serves as a public policy advocate

15 on behalf of its members and urges the Arizona Legislature and Executive Branch

16 agencies to adopt and implement policies that promote a favorable legal and business

17 climate in Arizona for the benefit of its members.

18

25. Plaintiff the Arizona Hispanic Chamber of Commerce is a non profit

19 corporation incorporated under the laws of the State of Arizona, with its principal

20 place of business located in the State of Arizona.

21

26. The Arizona Hispanic Chamber of Commerce is an employer that

22 employs employees in the State of Arizona. It transacts business in Arizona and holds

23 what are deemed to be licenses under HB 2779.

24

27. The Arizona Hispanic Chamber of Commerce is an association of

25 members ("Arizona Hispanic Chamber of Commerce Members"). Arizona Hispanic

26 Chamber of Commerce Members employ employees in the State of Arizona, transact

27 business in Arizona, and hold licenses and permits from the State andlor its political

28 subdivisions.

5
DMWEST #6548647 v2

I

28. The Arizona Hispanic Chamber of Commerce serves as a public policy

2 advocate on behalf of its members and urges the Arizona Legislature and Executive

3 Branch agencies to adopt and implement policies that promote a favorable legal and

4 business climate in Arizona for the benefit of its members.

5

29. Plaintiff the Arizona Farm Bureau is a non profit corporation

6 incorporated under the laws of the State of Arizona, with its principal place of

7 business located in the State of Arizona.

8

30. The Arizona Farm Bureau is an employer that employs employees in the

9 State of Arizona. It transacts business in Arizona and holds what are deemed to be

10 licenses under HB 2779.

1]

31. The Arizona Farm Bureau is an association of members ("Arizona Farm

12 Bureau Members"). Arizona Farm Bureau members employ employees in the State

of Arizona, transact business in Arizona, and hold licenses and permits from the State

14 and/or its political subdivisions.

32. The Arizona Farm Bureau serves as a public policy advocate on behalf

16 of its members and urges the Arizona Legislature and Executive Branch agencies to

17 adopt and implement policies that promote a favorable legal and business climate in

18 Arizona for the benefit of its members.

19

33. Plaintiff the Arizona Restaurant and Hospitality Association is a non

20 profit corporation incorporated under the laws of the State of Arizona, with its

21 principal place of business located in the State of Arizona.

22

34. The Arizona Restaurant and Hospitality Association is an employer that

23 employs employees in the State of Arizona. It transacts business in Arizona and holds

24 what are deemed to be licenses under HB 2779.

25

35. The Arizona Restaurant and Hospitality Association is an association of

26 members ("Arizona Restaurant and Hospitality Association Members"). The Arizona

27 Restaurant and Hospitality Association Members employ employees in the State of

28

6
DMWEST #6548647 v2

1 Arizona, transact business in Arizona, and hold licenses and pennits from the State

2 and/or its political subdivisions.

3

36. The Arizona Restaurant and Hospitality Association serves as a public

4 policy advocate on behalf of its members and urges the Arizona Legislature and

5 Executive Branch agencies to adopt and implement policies that promote a favorable

6 legal and business climate in Arizona for the benefit of its members.

7

37. Plaintiff the Associated Minority Contractors is a non profit corporation

8 incorporated under the laws of the State of Arizona, with its principal place of

9 business located in the State of Arizona.

10

38. Associated Minority Contractors IS an employer that employs

11 employees in the State of Arizona. It transacts business in Arizona and holds what are

12 deemed to be licenses under HB 2779.

13

39. Associated Minority Contractors is an association of members

14 ("Associated Minority Contractors Members"). Associated Minority Contractors

15 Members employ employees in the State of Arizona, transact business in Arizona, and

16 hold licenses and pennits from the State and/or its political subdivisions.

17

40. Associated Minority Contractors serves as a public policy advocate on

18 behalf of its members and urges the Arizona Legislature and Executive Branch

19 agencies to adopt and implement policies that promote a favorable legal and business

20 climate in Arizona for the benefit of its members.

21

41. Plaintiff the Arizona Roofing Contractors Association is a non profit

22 corporation incorporated under the laws of the State of Arizona, with its principal

23 place of business located in the State of Arizona.

24

42. The Arizona Roofing Contractors Association is an employer that

employs employees in the State of Arizona. It transacts business in Arizona and holds

26 what are deemed to be licenses under HB 2779.

27

43. The Arizona Roofing Contractors Association is an association of

28 members ("Arizona Roofing Contractors Association Members"). Arizona Roofing

7
DMWEST #6548647 v2

1 Contractors Association Members employ employees in the State of Arizona, transact

2 business in Arizona, and hold licenses and permits from the State and/or its political

3 subdivisions.

4

44. The Arizona Roofing Contractors Association serves as a public policy

5 advocate on behalf of its members and urges the Arizona Legislature and Executive

6 Branch agencies to adopt and implement policies that promote a favorable legal and

7 business climate in Arizona for the benefit of its members.

8

45. Plaintiff the National Roofing Contractors' Association is a not for

9 profit corporation incorporated under the laws of the State of Illinois, with its

10 principal place of business located in the State of Illinois.

11

46. The National Roofing Contractors' Association is an association of

12 roofing, roof deck, and waterproofing contactors, industry-related associate members,

13 including manufacturers, distributors, architects, engineers, and others. The National

14 Roofing Contractors' Association has more than 4,600 members from an 50 states

15 and 54 countries and is affiliated with 105 local, state, regional and international

16 roofing contractor associates. Its members transact business in Arizona and hold what

17 are deemed to be licenses under HB 2779.

18

47. The National Roofing Contractors' Association serves as a public policy

19 advocate on behalf of its members.

20

48. Plaintiff Wake Up Arizona! is a non profit corporation incorporated

21 under the laws of the State of Arizona, with its principal place of business located in

22 the State of Arizona.

23

49. Wake Up Arizona! Transacts business in Arizona and holds what are

24 deemed to be licenses under HB 2779.

25

50. Wake Up Arizona! is an association of members ("Wake Up Arizona!

26 Members"). Wake Up Arizona! Members employ employees in the State of Arizona,

27 transact business in Arizona, and hold licenses and permits from the State and/or its

28 political subdivisions.

8
DMWEST #6548647 v2

1

51. Wake Up Arizona! serves as a public policy advocate on behalf of its

2 members and urges the Arizona Legislature and Executive Branch agencies to adopt

3 and implement policies that promote a favorable legal and business climate in Arizona

4 for the benefit of its members.

5

52. Plaintiff the Arizona Landscape Contractors Association is a non profit

6 corporation incorporated under the laws of the State of Arizona, with its principal

7 place of business located in the State of Arizona.

8

53. The Arizona Landscape Contractors Association is an employer that

9 employs employees in the State of Arizona. It transacts business in Arizona and holds

10 what are deemed to be licenses under HB 2779.

11

54. The Arizona Landscape Contractors Association is an association of

12 members ("Arizona Landscape Contractors Association Members"). The Arizona

13 Landscape Contractors Association Members employ employees in the State of

14 Arizona, transact business in Arizona, and hold licenses and permits from the State

15 and/or its political subdivisions.

55. The Arizona Landscape Contractors Association serves as a public

17 policy advocate on behalf of its members and urges the Arizona Legislature and

18 Executive Branch agencies to adopt and implement policies that promote a favorable

19 legal and business climate in Arizona for the benefit of its members.

20

56. Defendant Janet Napolitano is the Governor of the State of Arizona (the

21 "Governor"). She is named herein as a Defendant in her capacity as Governor.

22

57. Defendant Terry Goddard is the Attorney General of the State of

23 Arizona (the "Attorney General"). He is named herein as a Defendant in his capacity

24 as Attorney General.

25

58. Each Plaintiff and the members of each Plaintiff are affected by the

26 actions of the State of Arizona in enacting into law HB 2779, to be codified at Title

27 23, Chapter 2, Article 2, of the Arizona Revised Statutes.

28

59. Each Plaintiff has standing to sue in this action.

9
DMWEST #6548647 v2

1

60. The Due Process, Commerce Clause, and Supremacy/Preemption claims

2 of Plaintiffs arise under the Constitution and laws of the United States. As a result,

3 Plaintiffs have a right to sue arising under 42 U.S.C. § 1983.

4

61. This Court has jurisdiction over the Due Process, Commerce Clause and

5 Supremacy Clause/Preemption claims of Plaintiffs pursuant to 28 U.S.C. §§ 1331 and

6 1343 because they arise under the Constitution and laws of the United States.

7

62. This Court has jurisdiction over the Plaintiffs' state law claims pursuant

8 to 28 U.S.C. § 1367.

9

63. Venue is proper in this Court pursuant to 28 U.S.c. § 1391(b).

10

64. Pursuant to 28 U.S.C. §§ 2201-2202, the Court may issue a declaratory

11 judgment and further necessary or proper relief.

12

ALLEGATIONS COMMON TO ALL CLAIMS

65. On July 2, 2007, the Honorable Janet Napolitano, the Governor of

14 Arizona, signed into law HB 2779, a bill passed by the Arizona Legislature on June

15 20,2007.

16

66. HB 2779 prohibits employers from "knowingly" or "intentionally"

17 employing an unauthorized alien.

18

67. HB 2779 requires the Arizona Attorney General and the County

19 Attorneys of the several counties in Arizona to investigate all complaints that an

20 employer is knowingly or intentionally employing an unauthorized alien.

21

68. HB 2779 requires County Attorneys to prosecute all complaints that are

22 considered to be "not frivolous."

23

69. When investigating complaints pursuant to HB 2779, the County

24 Attorneys or the Attorney General must verify an individual's work authorization

25 exclusively by communicating with the federal government pursuant to 8 U.S.C. §

26 1373(c).

27

70. Under HB 2779, effective January 1, 2008, employers that are deemed

28 to have "knowingly" or "intentionally" hired unauthorized aliens may have their

10
DMWEST #6548647 v2

1 business licenses suspended for a first violation of HB 2779 and peIDlanently revoked

2 for a second violation ofRB 2779.

3

71. HB 2779 requires that after December 31, 2007, every employer must

4 verifY the employment eligibility of employees through the federal government's

5 otherwise voluntary Basic Pilot Program.

6

72. Plaintiffs are entitled to injunctive relief. They have a strong likelihood

7 of success on the merits and will suffer irreparable harm if HB 2779 is not enjoined

8 and is enforced against employers in Arizona, including Plaintiffs.

9

73. Plaintiffs will suffer irreparable haIDl as a result of the potential

10 enforcement ofHB 2779, as a result of the legal uncertainty that they face due to HB

11 2779's vagueness and its provisions that conflict with other laws and the Constitution.

12

74. Plaintiffs are entitled to recover the costs and attorneys' fees of bringing

l3 this suit pursuant to 42 U.S.C.§ 1988.

FIRST CLAIM FOR RELIEF

VIOLATION OF PROCEDURAL DUE PROCESS GUARANTEES UNDER THE U.S. CONSTITUTION

17

75. Plaintiffs hereby incorporate by this reference all allegations of the

18 preceding paragraphs of this Complaint, as if fully set forth herein.

19

76. Under the 14th Amendment to the U.S. Constitution, state and local

20 governments are prohibited from depriving any person of property without due

21 process oflaw.

22

77. Corporations, including Plaintiffs and their members, are persons

23 entitled to due process.

24

78. Licenses or peIDlits from the State of Arizona and/or its political

25 subdivisions are property interests that are subject to the due process protections of

26 the 14th Amendment to the U.S. Constitution.

27

79. The Governor, the Attorney General, the State of Arizona and its

28 political subdivisions and other public officials are prohibited by the 14th Amendment

11
DMWEST #6548647 v2

1 from suspending or revoking business licenses or permits unless the State or its
2 political subdivisions provide due process of law to the holder of the license or
3 permit.

4

80. Due process of law requires, at a minimum, that before any person,

5 whether an individual, corporation or other business entity, may be deprived of a

6 license or permit, the State must provide:

7

(a) Notice and a reasonable definite statement of the charges or

8

matters at issue.

9

(b) Notice of the time and place of a hearing.

10

(c) The right to produce witnesses at a hearing.

0..

11

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(d) The right to examine witnesses at a hearing.

....l8

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....J u.J

12

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(e) The right to a full consideration and determination of the issues

t0.t::::l :V=J; _N_ :V:;); V;.;JO"(

13

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based on the evidence.

2 14 :s:~tWi"l;-.Z>."<.J -Z_ <N;X;';"s~

81. HB 2779 does not provide Plaintiffs, their members, or other employers

eo<:

;;2

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0

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15

with due process before the State may deprive them of property interests.

0:::: v w ~

Q~3x~§o.l;§e 16

82. In contrast to HB 2779, federal immigration law contains provisions to

e0<:0Z
.---<.l<l ,,00,r",,

17 provide due process rights to employers. Under federal immigration law, before an

OJ

18 employer is found to have violated the law, the employer is provided the following

19 due process rights:

20

(a) A signed, written complaint must be filed with sufficient

21

information to identify the complainant and the potential violator,

22

including names and addresses.

23

(b) The federal government investigates only those complaints

24

"which, on their face, have a substantial probability of validity."

25

8 U.S.C. § 1324a(c)(1)(B).

26

(c) After investigation the federal government Issues a warning

27

Notice of Intent to Fine.

28

12
DMWEST #6548647 v2

1

(d) The Notice of Intent to Fine must include the basis for the

2

charges, the statutory provisions alleged to have been violated,

3

and the penalty to be imposed.

4

(e) The Notice of Intent to Fine must also notify the employer of its

5

rights, including the right to counsel, that any statement may be

6

used against the employer, and the employer's right to a hearing.

7

(f) The respondent employer has a right to request a hearing before a

8

federal administrative law judge. 8 CFR § 274a.9(e) and

9

8 U.S.C. § 1324a(e)(3).

10

(g) The employer has the right to an evidentiary hearing, with

11

appellate revIew, as IS customary In other federal

12

administrative/adjudicative proceedings.

(h) At the hearing, the employer has the right to present evidence

and to cross-examine witnesses regarding the evidence presented

against it.

83. Under HB 2779, Plaintiffs, their members, and other employers will not

17 be provided any of the due process rights of federal law set forth in the preceding

18 paragraph.

19

84. Under HB 2779, Plaintiffs, their members and other employers will be

20 subject to an enforcement scheme that includes the following:

21

(a) Complaints may be initiated by any person without a signed

22

written complaint, without any standards, without any

23

requirements for the identification of the person(s) who is

24

accused of not being authorized to work in this country, without

25

any disclosure or identification of the basis for the allegation that

26

an employee is not authorized to work, and without any

27

requirement that any basis for the allegation must exist before an

28

investigation must be initiated.

13
DMWEST #6548647 v2

1

(b) Complaints may be initiated based solely on or primarily on race,

2

national ongm, language ability or characteristics, accent,

3

physical appearance, clothing characteristic of an ethnic group,

4

religious attire, racial or ethnic prejudice or other unlawful

5

factors.

6

(c) Complaints may be initiated for reasons unrelated to the

7

enforcement of immigration laws.

8

(d) The Attorney General and County Attorneys are compelled to

9

investigate all complaints regardless of the lack of any basis for

10

the complaint.

(e) The Attorney General and County Attorneys must investigate all

complaints, even if the basis for the complaint is racial or ethnic

prejudice or discrimination or any other improper unlawful

motive.

(f) There is no notice of the initiation of an investigation to the

employer or to the individual who IS the subject of the

investigation (the "Affected Employee").

(g) The investigation relating to whether an employee is authorized

19

to work in the United States consists solely of a request by the

20

Attorney General or a County Attorney to the federal government

21

to check federal computer records pursuant to 8 U.S.C.

22

§ 1373(c).

23

(h) HB 2779 excludes the ability of the Attorney General or County

24

Attorneys to consider any other evidence besides the response

25

from the federal government pursuant to 8 U.S.C. § 1373(c) in

26

determining whether an employee is authorized to work.

27
28

14
DMWEST #6548647 v2

1

(i) The County Attorneys are compelled to prosecute the employer

2

in every case in which a complaint was investigated and found

3

"not frivolous."

4

G) In any proceedings in Arizona courts to impose penalties under

5

HB 2779, including the suspension or revocation of all business

6

licenses or permits of Plaintiffs, their members, and other

7

employers, HB 2779 restricts the evidence that may be

8

considered.

9

(k) HB 2779 provides in part, "On determining whether an employee

10

is an unauthorized alien, the Court shall consider only the federal

government's determination pursuant to 8 U.S.C. § 1373(c)."

[A.R.S. § 23-212(H).] HB 2779 also states that Arizona courts

may take judicial notice of the federal government's so-called

"determination" under 8 U.S.C. § 1373(c).

(1) HB 2779 does not give employers the right to call witnesses on

their behalf to establish the work authorization of Affected

Employees.

(m) HB 2779 does not give Affected Employees the right to call

19

witnesses on their behalf to establish their work authorization.

20

(n) HB 2779 does not give employers or Affected Employees the

21

right to cross-examme witnesses for the federal or state

22

government on the issue of the Affected Employee's work

23

authorization.

24

(0) HB 2779 does not provide a procedure whereby an employer or

25

Affected Employee may challenge erroneous "determinations" of

26

immigration status.

27

(p) Due process rights are not provided to the employer or the

28

Affected Employee under HB 2779.

15
DMWEST #6548647 v2

1

(q) There is no "determination" made under 8 U.S.C. § 1373(c).

2

The federal government's informational response under 8 U.S.C.

3

§ 1373(c) is not a determination, but is merely a reflection of

4

whatever information is in the federal government's database.

5

(r) Due process rights are not provided before the federal

6

government furnishes a response under 8 U.S.C. § 1373(c).

7

(s) The absence of any "determination" pursuant to 8 U.S.C. §

8

1373(c) is reflected by the fact that federal immigration law does

9

not provide for any action to be taken by the federal government

10

against a person or employer based upon response under 8 U.S.C.

11

§ 1373(c). Determinations by the federal government of whether

12

an employer knowingly employed an unauthorized alien are

made pursuant to 8 CFR § 274a.9, and require a hearing and due

process, as set forth in paragraph 82 above. Determinations of an

alien's status are made pursuant to administrative procedures that

provide due process protections. Determinations are not made

pursuant to 8 U.S.C. § 1373(c), and the federal immigration

system does not provide a final determination of immigration

19

status at the request of a state or local government.

20

(t) To find that an Arizona employer knowingly or intentionally

21

employed an unauthorized alien, the Arizona Court will be

22

required to make a determination that the Affected Employee is

23

an unauthorized alien, but the Arizona Court has no authority to

24

determine an alien's immigration status. Such status

25

determinations may be made only by a federal immigration

26

judge. 8 U.S.c. § l229a(a)(1) and (a)(3). HB 2779 does not

27

provide due process to Employers and Affected Employees to

28

16
DMWEST #6548647 v2

1

subject them to a hearing in an Arizona Court that does not have

2

jurisdiction to determine immigration status.

3

85. The procedures established under HB 2779 do not satisfy the due

4 process requirements of the United States Constitution.

5

86. It is a violation of Plaintiffs' due process rights for the State of Arizona

6 to make mandatory the use of the federal government's otherwise voluntary electronic

7 employment verification system known as the Basic Pilot Program because HB 2779

8 conflicts with federal law and information given to employers by the federal

9 government regarding the voluntary nature of their participation in the Basic Pilot

10 Program, as alleged more fully in paragraphs 169-174 below.

11

87. It is a violation of Plaintiffs' due process rights for HB 2779 to make

12 mandatory the use of the federal government's Basic Pilot Program because the laws

13 of the State of Illinois prohibit the use the Basic Pilot Program unless and until it

14 meets performance standards that it currently does not meet, as alleged more fully in

15 paragraphs I 82-186 below.

88. HB 2779 violates the due process rights of members of Plaintiffs who

17 have employees in both Arizona and Illinois because HB 2779 places employers in

18 the position of violating the laws of either Arizona or Illinois and makes it impossible

19 for such employers to comply with the laws of both states.

20

89. Plaintiffs are entitled to a declaratory judgment that HB 2779 is

21 unconstitutional because it violates the 14th Amendment to the U.S. Constitution.

22

90. Plaintiffs are entitled to a preliminary and permanent injunction to

23 enjoin the Governor and Attorney General from taking actions to enforce or

24 implement HB 2779.

25

26

27

28

17
DMWEST #6548647 v2

1

SECOND CLAIM FOR RELIEF

2

VIOLATION OF PROCEDURAL DUE PROCESS GUARANTEES OF

3

ARIZONA CONSTITUTION

4

91. Plaintiffs hereby incorporate by this reference all allegations of the

5 preceding paragraphs of this Complaint, as if fully set forth herein.

6

92. Article II, § 4 of the Arizona Constitution prohibits state and local

7 governments from depriving any person of property without due process of law.

8

93. Corporations, including Plaintiffs and their members, are persons

9 entitled to due process.

10

94. Licenses or permits from the State of Arizona and/or its political

11 subdivisions are property interests that are subject to the due process protections of

12 Article II, § 4 of the Arizona Constitution.

13

95. The Governor, the Attorney General, the State of Arizona and its

14 political subdivisions and other public officials are prohibited by Article II, § 4 of the

15 Arizona Constitution from suspending or revoking business licenses or permits unless

16 the State or its political subdivisions provide the holder of the license or permit due

17 process of law.

18

96. The State's actions that violate the 14th Amendment to the U.S.

19 Constitution, as alleged in paragraphs 75-90 above, also violate the Arizona

20 Constitution.

21

97. The procedures established by HB 2779 do not satisfy and are in

22 conflict with provisions of existing Arizona law for the procedures that must be used

23 and due process rights that must be provided in order for the State to suspend or

24 revoke licenses or permits of the State.

25

98. The procedures established under HB 2779 do not satisfy the due

26 process requirements of the Arizona Constitution.

27

99. Plaintiffs are entitled to a declaratory judgment that HB 2779 IS

28 unconstitutional because it violates Article II § 4 of the Arizona Constitution.

18
DMWEST #6548647 v2

1

100. Plaintiffs are entitled to a preliminary and permanent injunction to

2 enjoin the Governor and Attorney General from taking actions to enforce or

3 implement HB 2779.

4

THIRD CLAIM FOR RELIEF

5

VIOLATION OF SUBSTANTIVE DUE PROCESS UNDER THE U.S.

CONSTITUTION 6

101. Plaintiffs hereby incorporate by this reference all allegations of the

7

preceding paragraphs of this Complaint, as if fully set forth herein.

8

102. Under the 14th Amendment to the U.S. Constitution, state and local

9

governments are prohibited from arbitrarily and capriciously depriving a person of a

10

fundamental right guaranteed by the U.S. Constitution.

c:..

11

-l

- l O0;::;
u;

12

103. Corporations, including Plaintiffs and their members, are persons

f-
m5 ;::: 14:9!

entitled to fundamental rights under the 14th Amendment. 13

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14 15 16

104. Plaintiffs and their members have a fundamental right to associate with whomever Plaintiffs choose.
105. HB 2779 is so broad and vague that it infringes on Plaintiffs'

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fundamental right to associate with whomever Plaintiffs choose to associate.

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17 18

106. Plaintiffs have a fundamental right to not have the State of Arizona

interfere with interstate commerce.

19

107. HB 2779 infringes on Plaintiffs' fundamental right to not have the State

20

interfere with interstate commerce, as HB 2779 regulates and interferes with interstate

21

commerce.

22

108. Plaintiffs are entitled to a declaratory judgment that HB 2779 is

23

unconstitutional because it violates the substantive due process guarantees of the 14th

24

Amendment to the U.S. Constitution.

25

109. Plaintiffs are entitled to a preliminary and permanent injunction to

26

enjoin the Governor and Attorney General from taking actions to enforce or

27

implement HB 2779.

28

19
DMWEST #6548647 v2

1

FOURTH CLAIM FOR RELIEF

2 VIOLATION OF SUBSTANTIVE DUE PROCESS GUARANTEES OF THE ARIZONA CONSTITUTION
3

4

110. Plaintiffs hereby incorporate by this reference all allegations of the

5 preceding paragraphs of this Complaint, as if fully set forth herein.

6

Ill. Under the Arizona Constitution, state and local governments are

7 prohibited from arbitrarily and capriciously depriving a person of a fundamental right

8 guaranteed by the Arizona Constitution.

9

112. Corporations, including Plaintiffs and their members, are persons

10 entitled to fundamental rights under the Arizona Constitution.

11

113. Plaintiffs and their members have a fundamental right to associate with

12 whomever Plaintiffs choose.

13

114. HB 2779 is so broad and vague that it infringes on Plaintiffs'

14 fundamental right to associate with whomever Plaintiffs choose to associate.

115. Plaintiffs have a fundamental right to not have the State of Arizona 16 interfere with interstate commerce.

17

116. HB 2779 infringes on Plaintiffs' fundamental right to not have the state

18 interfere with interstate commerce, as HB 2779 regulates interstate commerce.

19

117. Plaintiffs are entitled to a declaratory judgment that HB 2779 IS

20 unconstitutional because it violates the substantive due process guarantees of Article

2 I II, § 4 of the Arizona Constitution.

22

118. Plaintiffs are entitled to a preliminary and permanent injunction to

23 enjoin the Governor and Attorney General from taking actions to enforce or

24 implement HB 2779.

25

FIFTH CLAIM FOR RELIEF

26

VIOLATION OF COMMERCE CLAUSE

27

119. Plaintiffs hereby incorporate by this reference all allegations of the

28 preceding paragraphs of this Complaint, as if fully set forth herein.

20
DMWEST #6548647 v2

1

120. The Commerce Clause of the U.S. Constitution vests Congress with the

2 exclusive authority to "regulate Commerce... among the several states." U.S.

3 Constitution, Art. I, § 8, cl. 3. The Commerce Clause forbids states and local

4 governments, including the State of Arizona, from regulating or passing laws that

5 restrict or interfere with interstate commerce.

6

121. HB 2779 purports to and will regulate interstate commerce.

7

122. Although the definition of employer contained in HB 2779 provides that

8 the employer must have a license or permit from the State of Arizona, or one of its

9 political subdivisions, and must have at least one employee in Arizona, HB 2779 does

10 not contain a definition of employee that is limited to employees who were hired or

11 who perform services within Arizona.

12

123. The definition of employee in HB 2779 includes "any person who

13 performs employment services for an employer pursuant to an employment

14 relationship between the employee and employer." A.R.S. § 23-211(3).

124. By its terms, the above definition of employee contained in HB 2779

16 includes all employees who work for any business that has one or more employees

17 within the State of Arizona and a license or permit from the State of Arizona or one of

18 its political subdivisions.

19

125. The definition of employee subject to regulation by HB 2779 includes

20 employees who work exclusively in states other than Arizona, who were hired in

21 states other than Arizona and who have never worked in Arizona, but work for

22 businesses that have at least one employee in Arizona and hold a license or permit

23 from the Sate of Arizona or one of its political subdivisions.

24

126. The above definition of employee subject to regulation by HB 2779

25 includes employees who were hired in states other than Arizona and who later were

26 transferred or relocated to Arizona to perform employment services in Arizona.

27

28

21
DMWEST #6548647 v2

1

127. The above definition of employee subject to regulation by HB 2779

2 includes employees who were hired in states other than Arizona and who perform

3 work in Arizona on only an occasional basis.

4

128. Under HB 2779, the Attorney General or County Attorneys will be

5 required to investigate complaints relating to employees who were hired in states

6 other than the State of Arizona.

7

129. Under HB 2779, the Attorney General or County Attorneys will be

8 required to investigate complaints relating to employees who were hired in states

9 other than Arizona and who are residents of states other than Arizona and who

10 perform services in Arizona on only an occasional or temporary basis or not at all.

0..

11

130. Under HB 2779, the Attorney General or County Attorneys will be

-l

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12 required to investigate complaints relating to employees who were hired in states

ooC:

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13

other than Arizona and who perform services only in states other than Arizona, as

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14

there is nothing in HB 2779 that restricts the regulation and enforcement of its

.,. <0~f0.I:~ J:-;.-l~ <:. Z00~ 15 provisions to employees who are performing services within the State of Arizona.

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16

131. Under HB 2779, the enforcement actions of the State of Arizona will

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17 extend to employees or job sites in states other than Arizona, as there is nothing in

co

18 HB 2779 that restricts the regulation and enforcement of its provisions to employees

19 performing services in the State of Arizona or work sites in the State of Arizona.

20

132. Under HB 2779, Arizona businesses could lose their Arizona licenses

21 for conduct that occurred wholly outside the State of Arizona and that the State of

22 Arizona has no authority to regulate.

23

133. HB 2779 requires employers to use the Basic Pilot Program to verify the

24 employment eligibility of its employees after December 31, 2007.

25

134. The requirement that employers use the Basic Pilot Program to verify

26 the employment eligibility of its employees is not limited to employees in the State of

27 Arizona, but applies to all employees of businesses that have at least one employee in

28 Arizona and a license or permit issued by the State or one of its political subdivisions.

22
DMWEST #6548647 v2

1

135. By requiring that employers use the Basic Pilot Program to verify the

2 work authorization of employees who do not perform services in Arizona and by

3 extending investigations and enforcement actions to employees outside of Arizona,

4 Arizona is regulating commerce that occurs wholly outside the State of Arizona and

5 that the State of Arizona has no authority to regulate.

6

136. Plaintiffs are entitled to a declaratory judgment that HB 2779 is

7 unconstitutional because it violates the Commerce Clause of the U.S. Constitution due

8 to its extraterritorial effects and control of commerce that occurs outside the borders

9 of Arizona.

10

137. Plaintiffs are entitled to a preliminary and permanent injunction to

0..

11 enjoin the Governor and Attorney General from taking actions to enforce or

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5:.l

12 implement HB 2779.

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13

SIXTH CLAIM FOR RELIEF

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14 15

~ U W R:

VIOLATIONS OF SUPREMACY CLAUSE OF U.S. CONSTITUTION AND PRE-EMPTION BY FEDERAL IMMIGRATION LAW
138. Plaintiffs hereby incorporate by this reference all allegations of the

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16 17

preceding paragraphs of this Complaint, as if fully set forth herein.

.:;.;:,.,Jvvo;,

139. Under the Supremacy Clause of the U.S. Constitution, federal law may

CO

18

expressly or implicitly pre-empt state and local laws.

19

140. In accordance with its exclusive power over matters of immigration, the

20

U.S. Congress has adopted, pursuant to the Immigration and Nationality Act, 8 U.S.c.

21

§ 1101 et seq., and other laws, a comprehensive system of laws, regulations, and

22

procedures and has created administrative agencies that determine, subject to judicial

review, whether and under what conditions individuals may enter, stay in, and work in 24
the U.S. and a system of civil and criminal penalties for those violating the law, 25
including employers who knowingly employ unauthorized aliens. 26
141. When enacting the Immigration Reform and Control Act, Congress 27
expressly pre-empted state and local laws. The Immigration Reform and Control Act 28

23
DMWEST #6548647 v2

1 provides, in part, as follows: "[Federal law] pre-empts any state or local law

2 imposing similar criminal sanctions (other than through licensing and similar laws)

3 upon those who employ unauthorized aliens." 8 U.S.C. § 1324a(h)(2).

4

142. The licensing exception was designed and intended to allow state

5 governments to take action against the business license for employers "found to have

6 violated the sanctions provision" of 8 U.S.C. § 1324a essentially only after the

7 employer had been found by the federal government to have violated the federal law.

8

143. The licensing exception to the preemption clause in 8 U.S.C. §

9 1324a(h)(2) does not allow states to pass laws prohibiting the employment of 10 unauthorized aliens.

0...

11

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144. The federal government has enacted broad, comprehensive immigration

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12 laws that govern who is eligible to work in the United States and that govern the

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13 process by which employers must verify the eligibility ofjob applicants.

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14

145. The federal government has occupied the field of immigration

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15

regulation through the Immigration and Nationality Act, the Immigration Reform and

0-~<u5~C~5.~,.:. ~:N 16 Control Act of 1986 ("IRCA"), the Illegal Immigration Reform and Immigrant

00

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17 Responsibility Act, and other laws, including occupying the field relating to

co

18 prohibiting the employment of unauthorized workers and verifying the eligibility of

19 job applicants.

20

146. The immigration laws, procedures, and policies created by the federal

21 government regulate immigration and confer rights in a careful balance reflecting the

22 national interest.

23

147. Congress carefully balanced the requirements and penalties in the

24 federal immigration law with consideration of the tension that immigration

25 compliance and sanctions might cause relating to race, national origin, and citizenship

26 discrimination.

27

148. The Constitution bars the State from altering or obstructing the federal

28 government's carefully crafted comprehensive immigration regime.

24
DMWEST #6548647 v2

1

149. Federal law governs the documents that employers must accept to make

2 employment decisions regarding whether persons are authorized to work in this

3 country.

4

150. Federal law prohibits employers from conducting any further

5 investigation or taking any steps other than reviewing any of the 29 forms of

6 documents that employees have the right, under federal law, to present to an employer

7 to establish eligibility for employment in this country. Once an employee has

8 satisfied the verification requirements of 8 U.S.C. § 1324a, employers are barred by

9 federal1aw from seeking additional infornlation regarding their authorization to work.

10

151. Federal law prohibits employers from making additional inquiries,

11 conducting additional investigations, or taking additional steps to determine an

12 applicant's or employee's eligibility to work in this country, other than (i) having

13 examined the original documents that the employee chose to present, (ii) if the

14 employer voluntarily enters into an agreement, to utilize the Basic Pilot Program, and

(iii) taking certain steps in response to receiving a communication from the Social

16 Security Administration that an employee's name does not match an employee's

17 Social Security number.

18

152. The federal government has failed to issue tamper-proof and forgery-

19 proof forms of identification to persons that employers may rely upon to confirm with

20 accuracy and reliability the identity of a person or the person's eligibility to work in

21 the United States.

22

153. The State of Arizona has failed to issue tamper-proof and forgery-proof

23 documents establishing the identity of residents of the State of Arizona.

24

154. Federal immigration law and federal employment discrimination laws

25 prohibit employers from taking action to refuse to hire or discharge employees based

26 upon their citizenship, national origin, race, color or other classifications protected by

27 law.

28

25
DMWEST #6548647 v2

1

155. HB 2779 threatens the uniformity and primacy of the federal

2 immigration system and conflicts with federal immigration law.

3

156. HB 2779 stands as an obstacle to the uniform enforcement and

4 application of federal immigration laws and the comprehensive regime created by

5 Congress.

6

157. HB 2779 imposes penalties on employers for Arizona's state-regulated

7 immigration enforcement measures beyond and different than what the federal 8 government requires.

9

158. HB 2779 makes unlawful an additional immigration-related

10 employment practice that is not prohibited under federal law, that of "intentionally"

11 employing an unauthorized alien.

12

159. The prohibition in HB 2779 against "intentionally" employing an

13 unauthorized alien is preempted by IRCA. It is inconsistent with the uniform

14 enforcement of federal immigration law and Congress has already acted, through

15 IRCA, to occupy the field regarding controlling the employment of aliens.

160. The definition of "license" in HB 2779 subject to being suspended or

17 revoked includes items that are not licenses within any traditional sense of the word or

18 as the term is used in 8 U.S.C. § 1324a(h)(2).

19

161. Articles of Incorporation, a grant of authority, a Certificate of

20 Partnership, a Partnership Registration and Articles of Organization are not

21 "licenses."

22

162. The Arizona Legislature exceeded the savings clause in 8 U.S.C. §

23 1324a(h)(2) when it defined "license" to include Articles of Incorporation, a grant of

24 authority, a Certificate of Partnership, a Partnership Registration, and Articles of

25 Organization.

26

163. Under HB 2779, Arizona courts could order the Arizona Corporation

27 Commission to "suspend" corporations' Articles of Incorporation.

28

26
DMWEST #6548647 v2

1

164. There is no legal meaning to "suspending" a corporation's Article of

2 Incorporation. Either the corporation's charter exists or it does not. There is no in-

3 between concept of a "suspended" Articles of Incorporation.

4

165. The federal government does not require employers to use the

5 Employment Eligibility Verification System (Basic Pilot Program). It is a strictly

6 voluntary program, except in the few cases where the federal government requires

7 employers that violated the employment verification laws to use the Basic Pilot

8 Program as part of a settlement with the federal government.

9

166. The fact that the federal government does not require employers to use

10 the Basic Pilot Program evidences the intent of the federal government that the Basic

11 Pilot Program remain voluntary and that employers are not to be required to use the

12 Basic Pilot Program.

13

167. In order to use the Basic Pilot Program, employers must enter into a

14 contract with the federal government that is contained in a Memorandum of

15 Understanding issued by the federal government.

168. The terms of the contract with the federal government for use of the

17 Basic Pilot Program obligate employers to use the Basic Pilot Program in accordance

18 with the federal government's requirements and procedures, including but not limited

19 to the matters set forth in the federal government's Memorandum of Understanding

20 and a 95-page User's Manual for the Basic Pilot Program.

21

169. In order to enroll in the federal government's Basic Pilot Program,

22 Arizona employers must access the Basic Pilot Program through a computer and the

23 use of the Internet.

24

170. The federal government provides information to potential and actual

25 users of the Basic Pilot Program, via a computer internet connection, to inform

26 potential and actual users of the Basic Pilot Program about the terms and conditions

27 for operation and use of the Basic Pilot Program.

28

27
DMWEST #6548647 v2

1

171. The information provided by the federal government to potential and

2 actual users of the Basic Pilot Program specifically informs them that the use of the

3 Basic Pilot Program by employers is voluntary.

4

172. HB 2779 is preempted by federal law and is unconstitutional under the

5 Supremacy Clause, and is a denial of due process because of the conflicting and

6 inconsistent provisions of the state and federal law and the conflicting and

7 inconsistent information that employers receive from the State of Arizona and the

8 federal government. The State of Arizona, by enacting HB 2779, mandates that

9 Arizona employers must log onto a federal website that provides Arizona employers

10 with information from the federal government that is the opposite of and contradictory

11 to the provisions ofHB 2779.

12

173. HB 2779 places Arizona employers, including plaintiffs and their

13 members, at risk of being found to be in violation of Arizona law because Arizona

14 employers followed and complied with the information from the federal government

15 that their use of the Basic Pilot Program is voluntary, as communicated to them by the

16 federal government on the computer system maintained by the federal government

17 and that is made mandatory by HB 2779.

18

174. It is preempted by the federal law, unconstitutional, and a denial of due

19 process for the State of Arizona to place Arizona employers in the position of

20 disregarding, ignoring, or not following the information and directions given to them

21 by the federal government on the very computer system that the State of Arizona

22 requires Arizona employers to use in order to participate in the Basic Pilot Program.

23

175. The federal government's Memorandum of Understanding provides that

24 the federal government may revoke the right of any employer to use the Basic Pilot

25 Program if they do not comply with all of the federal government's requirements for

26 use of the program.

27

28

28
DMWEST #6548647 v2

1

176. Studies by the federal government document that at least half of the

2 current users of the Basic Pilot Program violate the federal government's

3 requirements in the manner in which they use the program.

4

177. The Memorandum of Understanding that IS a contract between

5 employers and the federal government for use of the Basic Pilot Program obligates the

6 federal government to furnish to the employer the name, address and telephone

7 number of a federal government employee who will available to answer the

8 employer's questions and provide support for the employer's use of the Basic Pilot 9 Program.

10

178. The State of Arizona does not have the authority to require employers to

11 use the Basic Pilot Program, and its attempt to do so in HB 2779 is preempted by

12 federal law.

13

179. HB 2779 will place burdens on the Executive Branch of the federal

14 government including the Department of Justice, Department of Homeland Security,

15 and Social Security Administration, that will impede the functions of those agencies. 180. By requiring that every complaint be investigated and that every

17 investigation must involve querying the federal government under 8 U.S.C. § 1373(c),

18 HB 2779 places an impermissible burden on the federal government.

19

181. By requiring that every Arizona employer use the Basic Pilot Program,

20 HB 2779 places an impermissible burden on the Executive Branch of the federal

21 government, including the Social Security Administration and the Department of

22 Homeland Security, who currently do not have the resources to successfully absorb,

23 support, monitor and enforce the compliance of 139,500 new Arizona users of the

24 Basic Pilot Program, which currently has approximately 17,000 companies enrolled

25 and only half that many that actively use the program.

26

182. HB 2779 is preempted by the Constitution and federal law because it

27 places some Arizona employers, including some of the Plaintiffs and some of their

28 members in the position of being compelled to violate the laws of the State of Illinois.

29
DMWEST #6548647 v2

1

183. The State of Illinois has enacted Public Act 095-0138, that states, in

2 part, "employers are prohibited from enrolling in any employment eligibility

3 verification system, including the Basic Pilot Program, as authorized by 8 U.S.C.

4 § 1324(a) ... until the Social Security Administration (SSA) and Department of

5 Homeland Security (DHS) databases are able to make a determination on 99% of the

6 tentative non-confirmation notices issued to employers within three days, unless

7 otherwise required by federal law."

8

184. The Social Security Administration and Department of Homeland

9 Security databases do not meet the performance standards mandated by the State of

10 Illinois, as set forth above.

11

185. Arizona employers who also have employees in Illinois are therefore

12 prohibited by the State of Illinois from using the Basic Pilot Program, but are

~ ~ ~ 13 compelled by the State of Arizona to use the Basic Pilot Program under HB 2779

~:V~1SG:;;:j>;l<<C~2N;;';~£- 14 effective on January 1,2008.

~~G~j~"": 15

186. HB 2779 violates the Supremacy Clause of the Constitution, is

O::VUJ
t~3:I:~2~;~:; 16 preempted by federal law, and violates due process rights. It places some Arizona

Cl 0

:5 :

17 employers, including some of the Plaintiffs and their members, in the position of

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18 mandating under Arizona law that they violate the laws of the State of Illinois.

19

187. The federal government's Basic Pilot Program is intended to be and has

20 been adopted and implemented by the federal government as a program for which

21 enrollment by participating employers is voluntary.

22

188. In order to enroll and participate in the Basic Pilot Program, employers

23 must agree to a Memorandum of Understanding that imposes obligations upon

24 employers.

25

189. The obligations imposed upon employers pursuant to the terms of the

26 Basic Pilot Program Memorandum of Understanding include the employer's consent

27 to certain rights of the federal government to inspect the employer's property and

28 documents.

30
DMWEST #6548647 v2

1

190. As set forth in the Eighth Claim for Relief, under the Fourth

2 Amendment to the U.S. Constitution, the federal government would not possess the

3 right to conduct searches without a warrant of the property and documents of

4 employers who participate in the Basic Pilot Program without the consent of

5 employers to allow such searches without a warrant.

6

191. The Basic Pilot Program's requirement that participating employers

7 consent to the right of the federal government to conduct searches of the property and

8 documents of employers who participate in the Basic Pilot Program requires that the

9 participation of employers in the Basic Pilot Program must be voluntary on the part of

10 the employers.

c...

11

192. If employers are compelled to participate in the Basic Pilot Program,

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ac:-'l0_0

12 they will not have consented to the rights of the federal government to conduct

~:s
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3V~:u;;i °;

13 searches of the employers' property and documents.

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14

193. HB 2779 compels Arizona employers, including Plaintiffs and their

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15

members, to participate in the otherwise voluntary Basic Pilot Program.

16 ~v?5~
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194. By compelling participation in the Basic Pilot Program, HB 2779 is

5:<lJ00z~

17 inconsistent with and negates the voluntariness of the Basic Pilot Program that is

c<o

18 essential for there to be consent to the federal government's right to inspect the

19 participating employers' property and documents without a warrant.

20

195. HB 2779 is preempted by federal law and violates the Supremacy

21 Clause of the U.S. Constitution by interfering with, contradicting, and negating the

22 voluntariness of the participating in the Basic Pilot Program that is essential for the

23 participants in the program having given consent to the federal government's rights

24 under the Memorandum of Understanding to conduct searches of the employers'

25 property and documents without a warrant.

26

196. Plaintiffs are entitled to a declaratory judgment that HB 2779 IS

27 unconstitutional because it is preempted by federal law.

28

31
DMWEST #6548647 v2

1

197. Plaintiffs are entitled to a preliminary and permanent injunction to

2 enjoin the Governor and Attorney General from taking actions to enforce or

3 implement HB 2779.

4

SEVENTH CLAIM FOR RELIEF

5 VIOLATION OF THE SEPARATION OF POWERS DOCTRINE OF THE ARIZONA CONSTITUTION.
6
198. Plaintiffs hereby incorporate by this reference all allegations of the
7
preceding paragraphs of this Complaint, as if fully set forth herein. 8
199. The Constitution of Arizona divides the State Government of Arizona
9
into three branches, the executive, legislative and judicial. Article III of the 10
Constitution states as follows:

The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial, and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.
200. The Arizona Constitution prohibits each branch of government from
exercising the powers that are given by the Constitution to a separate branch of
government.
201. The Constitution of Arizona prohibits the Legislative Branch of
government from exercising executive powers that properly belong to the Executive 19
Branch of government. 20
202. The Legislative Branch has the power to write and pass laws. The 21
Executive Branch has the sole power to carry out the provisions of the law.
203. HB 2779 contains a legislative mandate that the Executive Branch of 23
government investigate every complaint that it receives alleging that an employer is 24
knowingly or intentionally employing an unauthorized alien. 25
204. HB 2779 dictates the method by which the Executive Branch of
26
government shall investigate each complaint. HB 2779 mandates that the

28
32
DMWEST #6548647 v2

1 investigation regarding an employee's status shall consist solely of an inquiry to the

2 federal government pursuant to 8 U.S.C. § 1373(c).

3

205. HB 2779 prohibits the Executive Branch of government from

4 considering information other than a response from the federal government pursuant

5 to 8 U.S.C. § 1373(c) in acting upon each complaint received by the Executive

6 Branch and determining whether an alien is authorized to work in the United States.

7

206. HB 2779 mandates that the Executive Branch of government prosecute

8 each complaint that is "not frivolous."

9

207. HB 2779 does not allow the exercise of discretion by the Executive

10 Branch in enforcing HB 2779. Prosecutors will be required to bring lawsuits that on

11 balance lack merit but do not fall to the level of being "frivolous."

12

208. HB 2779 mandates that the Executive Branch take each of the above

13 actions regardless of the resources, other duties, professional judgment and other

14 priorities or factors that the Executive Branch would otherwise consider in

15 discharging its duties under HB 2779 and under all other laws for which it has the

16 responsibility to take action.

17

209. Because of the mandate of HB 2779 that all complaints under HB 2779

18 must be investigated and all non-frivolous complaints under HB 2779 must be

19 prosecuted, it is possible that the Executive Branch of the Arizona Government may

20 be unable to discharge other important duties that are the responsibility of the

21 Executive Branch, including but not limited to prosecuting suspects for murder, rape,

22 child molestation, hate crimes, financial fraud, driving while intoxicated, and other

23 crimes.

24

210. The above provisions of HB 2779 violate the separation of powers

25 clause of the Arizona Constitution. Each of the provisions set forth above constitutes

26 the exercise by the Legislative Branch of powers that are reserved to the Executive

27 Branch.

28

33
DMWEST #6548647 v2

1

211. Plaintiffs are entitled to a declaratory judgment that HB 2779 is

2 unconstitutional because it violates the separation of powers of the Arizona

3 Constitution.

4

212. Plaintiffs are entitled to a preliminary and permanent injunction to

5 enjoin the Governor and Attorney General from taking actions to enforce or

6 implement HB 2779.

7

EIGHTH CLAIM FOR RELIEF

8 VIOLATION OF PROTECTION AGAINST UNREASONABLE SEARCHES

9

AND SEIZURES UNDER THE U.S. CONSTITUTION

10 213. Plaintiffs hereby incorporate by reference all allegations of the
11
preceding paragraphs of this Complaint, as fully set forth herein. 12
214. Pursuant to the Fourth and Fourteenth Amendments of the U.S 13
Constitution, state and local governments are prohibited from conducting 14
unreasonable searches and seizures. The Fourth Amendment provides:

The right of people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

17

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

18

to be search, and the person or things to be seized.

19

215. HB 2779 mandates that after December 31,2007, every employer must

20 verify the employment eligibility of employees through the federal government's

21 otherwise voluntary Basic Pilot Program.

22

216. Every employer that participates in the Basic Pilot Program must sign a

23 Memorandum of Understanding that states responsibilities and obligations of the

24 employer. Article II, Section C(14) of the Memorandum of Understanding requires

25 employers to allow the Department of Homeland Security, or authorized agents to

26 make periodic visits to the employers, to review Basic Pilot-related records, to

27 interview employees of the employer, and to inspect other employment records.

28

34
DMWEST #6548647 v2

1

217. An employer's enrollment in the Basic Pilot Program subjects the

2 employer to greater rights by the federal government to inspect records and obtain

3 access to an employer's property than would otherwise exist without a warrant.

4

218. HB 2779, by compelling Plaintiffs and their members to enroll and

5 participate in the Basic Pilot Program, constitutes a forced waiver of Fourth

6 Amendment rights to be free from unreasonable searches and seizures. Mandating

7 participation in the Basic Pilot Program and mandating signing the Memorandum of

8 Understanding is not a proper consent to search or waiver of employers' Fourth

9 Amendment protections. Rather, it effectively forces employers to waive their

10 constitutionally guaranteed protections against warrantless searches.

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declaring that HB 2779 is unconstitutional because it violates the

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procedural due process guarantees of the 14th Amendment to the U.S.

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Constitution.

23

B. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

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declaring that HB 2779 is unconstitutional because it violates the

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procedural due process guarantee of Article II § 4 of the Arizona

26

Constitution.

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C. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202

28

declaring the HB 2779 is unconstitutional because it violates the

35
DMWEST #6548647 v2

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substantive due process guarantees of the 14th Amendment to the U.S. Constitution. D. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that HB 2779 is unconstitutional because it violates the substantive due process guarantees of Article II § 4 of the Arizona Constitution. E. A declaratory judgment pursuant to 28 U.S.c. §§ 2201 and 2202 declaring that HB 2779 is unconstitutional because it is preempted by federal law. F. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that HB 2779 is unconstitutional because it violates the commerce clause of the U.S. Constitution. G. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that HB 2779 is unconstitutional because it violates the separation of powers of the Arizona Constitution. H. A declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that HB 2779 is unconstitutional because it violates the Fourth Amendment to the U.S. Constitution. I. A preliminary and permanent injunction to enjoin the Governor and Attorney General from taking actions to enforce or implement HB 2779. J. An award of attorneys' fees and costs, plus interest, pursuant to 42 U.S.C. § 1988. K. Such other relief as the Court deems just and proper.

36
DMWEST #6548647 v2

1

RESPECTFULLY SUBMITTED this 29th day of August, 2007.

2

BALLARD SPAHR ANDREWS &

3

INGERSOLL, LLP

4 By: /s/ David A. Selden

5

David A. Selden

6

Julie A. Pace

Heidi Nunn-Gilman

7

3300 N. Central Avenue, Suite 1800

Phoenix, Arizona 85012

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Attorneys for Plaintiffs

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To be filed electronically with the Clerk of Court through ECF; and that ECF will send an e-notice of the electronic filing to the following ECF participants;

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Mary 0 'Grady Christopher Munns Arizona Attorney General's Office

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 558 F.3d 856 (2009)

CHICANOS POR LA CAUSA, INC.; Somos America, Plaintiffs-Appellants, and Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Wake Up Arizona! Inc.; Arizona Landscape Contractors'
Association; Arizona Contractors Association, Plaintiffs, v.
Janet NAPOLITANO; Terry Goddard; Gale Garriott, Defendants-Appellees. Chicanos Por La Causa, Inc.; Somos America, Plaintiffs, and
Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce; Arizona
Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Wake Up Arizona! Inc.; Arizona Landscape Contractors'
Association; Arizona Contractors Association, Plaintiffs-Appellants, v.
Janet Napolitano; Terry Goddard; Gale Garriott, Defendants-Appellees. Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona
Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; 857 Arizona Roofing Contractors *857 Association; National Roofing Contractors Association;
Arizona Landscape Contractors' Association, Plaintiffs-Appellants, and Wake Up Arizona! Inc.; Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America,
Plaintiffs, v.
Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V.
Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendants-Appellees. Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona
Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association;
Arizona Landscape Contractors' Association, Plaintiffs, and Wake Up Arizona! Inc.; Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America,
Plaintiffs-Appellants, v.
Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V.
Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendants-Appellees. Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.;

Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona
Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association;
Arizona Landscape Contractors' Association, Plaintiffs, Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America, Plaintiffs, and
Wake Up Arizona! Inc., Plaintiff-Appellant, v.
Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V.
Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendant-Appellant.
Nos. 07-17272, 07-17274, 08-15357, 08-15359, 08-15360.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 12, 2008. Filed September 17, 2008. Amended March 9, 2009.
859 *859 Jonathan Weissglass, San Francisco, CA, attorney for plaintiffs/appellants.
Mary O'Grady, Phoenix, AZ, for the State defendants/appellees.
Roger W. Hall, Phoenix, AZ, for defendant/appellees, Apache, Cochise, Gila, Graham, Greenlee, La Paz, Navajo, Santa Cruz, and Yavapai Counties.
Daniel Jurkowitz, Tucson, AZ, for defendant/appellee, Pima County.
Before: MARY M. SCHROEDER, JOHN M. WALKER, JR.,[*] and N. RANDY SMITH, Circuit Judges.
ORDER AND AMENDED OPINION

ORDER

The Opinion filed on September 17, 2008, and appearing at 544 F.3d 976, is amended as follows: on slip Opinion page 13076, lines 21-22, change heading "B." to read:
B. The Act's provisions mandating the use of E-Verify and creating potentially harsh sanctions are not impliedly preempted by federal law.

The Opinion filed on September 17, 2008, and appearing at 544 F.3d 976, is further amended as follows: on slip Opinion page 13078, line 14, insert the following text:

Plaintiffs also argue that the Act's potential sanctions of suspension or revocation of an employer's

860

business license impliedly conflict with IRCA because *860 the Act's sanctions are harsher than

IRCA's monetary sanctions. Plaintiffs urge that the harsh sanctions, even though expressly saved

from express preemption, have the effect of encouraging employers to discriminate, and that such

an effect would conflict with IRCA's purposes. Their argument is essentially speculative, as no

complaint has yet been filed under the Act and we have before us no record reflecting the Act's

effect on employers. There is thus no adequate basis in this record for holding that the sanctions provisions create an implied conflict rendering the Act facially invalid. See Crawford, 128 S.Ct. at 1621-22.
With these amendments, the panel judges have voted to deny the petition for panel rehearing. Judges Schroeder and N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Walker so recommends.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc will be accepted.
OPINION
SCHROEDER, Circuit Judge:
This case is a facial challenge to an Arizona state law, enacted in 2007 and aimed at illegal immigration, that reflects rising frustration with the United States Congress's failure to enact comprehensive immigration reform. The Arizona law, called the Legal Arizona Workers Act, targets employers who hire illegal aliens, and its principal sanction is the revocation of state licenses to do business in Arizona. It has yet to be enforced against any employer.
Various business and civil-rights organizations (collectively, "plaintiffs") brought these actions against the fifteen county attorneys of the state of Arizona, the Governor of Arizona, the Arizona Attorney General, the Arizona Registrar of Contractors, and the Director of the Department of Revenue of Arizona (collectively, "defendants"). Plaintiffs allege that the Legal Arizona Workers Act ("the Act"), Ariz.Rev. Stat. §§ 23-211 to 23-216, is expressly and impliedly preempted by the federal Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. §§ 1324a-1324b, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), codified in various sections of 8 U.S.C. and 18 U.S.C. They also allege that the Act violates employers' rights to due process by denying them an opportunity to challenge the federal determination of the work-authorization status of their employees before sanctions are imposed.
The district court held that the law was not preempted. The main argument on appeal is that the law is expressly preempted by the federal immigration law provision preempting state regulation "other than through licensing and similar laws." 8 U.S.C. § 1324a(h)(2). The district court correctly determined that the Act was a "licensing" law within the meaning of the federal provision and therefore was not expressly preempted.
There is also a secondary, implied preemption issue that principally relates to the provision requiring employers to use the electronic verification system now being refined by the federal government as a tool to check the workauthorization status of employees through federal records. It is known as E-Verify. Under current federal immigration law, use of the system is voluntary, and the Arizona law makes it mandatory. We hold that such a 861 requirement *861 to use the federal verification tool, for which there is no substitute under development in either the state, federal, or private sectors, is not expressly or impliedly preempted by federal policy.
Plaintiffs also contend that the statute does not guarantee employers an opportunity to be heard before their business licenses may be revoked. The statute can and should be reasonably interpreted to allow employers, before any license can be adversely affected, to present evidence to rebut the presumption that an employee is unauthorized.
We uphold the statute in all respects against this facial challenge, but we must observe that it is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision. See Crawford v. Marion County Election Bd., ___ U.S. ___, 128 S.Ct. 1610, 1621, 170 L.Ed.2d 574 (2008) (describing heavy burden of persuasion to sustain a broad attack on the facial validity of a statute in all its applications).

Background
Sanctions for hiring unauthorized aliens were first created at the federal level when Congress passed IRCA in 1986. See Pub.L. No. 99-603, 100 Stat. 3359 (1986). IRCA prohibits knowingly or intentionally hiring or continuing to employ an unauthorized alien, 8 U.S.C. § 1324a(a), which it defines as an alien either not lawfully admitted for permanent residence or not authorized to be employed by IRCA or the U.S. Attorney General, 8 U.S.C. § 1324a(h)(3).
IRCA also sets out the method of demonstrating an employer's compliance with the law through a paper-based method of verifying an employee's eligibility, known as the I-9 system. Id. § 1324a(b). It requires employees to attest to their eligibility to work and to present one of the specified identity documents. Id. § 1324a(b)(1), (2). IRCA then requires employers to examine the identity document the employee presents and attest that it appears to be genuine. Id. § 1324a(b)(1)(A). The employer is entitled to a defense to sanctions if the employer shows good-faith compliance with the I-9 system, unless the employer has engaged in a pattern or practice of violations. Id. § 1324a(b)(6).
The Attorney General is charged with enforcing violations of IRCA. Id. § 1324a(e). Hearings are held before selected administrative law judges ("ALJs"), and the ALJs' decisions are reviewable by the federal courts. Id. § 1324a(e)(3).
IRCA contains an express preemption provision, which states: "The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." Id. § 1324a(h)(2). The scope of the savings clause, which permits state "licensing and similar laws," is a critical issue in this appeal.
IIRIRA directed the Attorney General to establish three pilot programs to ensure efficient and accurate verification of any new employee's eligibility for employment. Pub.L. No. 104-208, §§ 401-405, 110 Stat. 3009, 3009-655 to 3009-666. One of these programs, the Basic Pilot Program, was to be made available in at least five of the seven states with the highest estimated populations of aliens not lawfully present in the United States. Id. § 401(c), 110 Stat. at 3009-656. Congress amended IIRIRA in 2002 by extending the four-year period for the pilot programs to 862 a six-year period, see Basic Pilot Extension Act of *862 2001, Pub.L. No. 107-128, § 2, 115 Stat. 2407, 2407 (2002), and again in 2003 by extending the six-year period to an eleven-year period, see Basic Pilot Program Extension and Expansion Act of 2003 ("Expansion Act"), Pub.L. No. 108-156, § 2, 117 Stat. 1944, 1944 (2003).
The Basic Pilot Program has thus been extended until November 2008. The Expansion Act also expanded the availability of the Basic Pilot Program to all fifty states. See id. § 3. The Basic Pilot Program, now known as EVerify, is an internet-based system that allows an employer to verify an employee's work-authorization status. It is an alternative to the I-9 system. After an employer submits a verification request for an employee, E-Verify either issues a confirmation or a tentative nonconfirmation of work-authorization status. If a tentative nonconfirmation is issued, the employer must notify the employee, who has eight days to challenge the finding. The employer cannot take any adverse action against the employee during that time. If an employee does challenge the tentative nonconfirmation, the employer will be informed of the employee's final work-authorization status. Any employee who either does not challenge a tentative nonconfirmation or is unsuccessful in challenging a tentative nonconfirmation must be terminated, or the employer must notify the Department of Homeland Security ("DHS") that it will continue to employ that person. An employer who fails to notify DHS of the continued employment of a person who received a final nonconfirmation is subject to a civil money penalty. An employer who continues to employ a person after receiving a final nonconfirmation is subject to a rebuttable presumption that it knowingly employed an unauthorized alien.
Against this federal backdrop, we turn to the state law at issue here. Arizona enacted the Legal Arizona Workers Act on July 2, 2007, with an effective date of January 1, 2008. 2007 Ariz. Sess. Laws Ch. 279. The Act allows the superior courts of Arizona to suspend or revoke the business licenses of employers who knowingly or intentionally hire unauthorized aliens. Ariz.Rev.Stat. § 23-212. Any person may submit a complaint to the Arizona Attorney General or a county attorney. Id. § 23-212(B). After determining a complaint is not false or frivolous, the

appropriate county attorney is charged with bringing an action against the employer in superior court. Id. § 23-212(C), (D). The Act uses IRCA's definition of "unauthorized alien." See id. § 23-211(11). Additionally, the Act requires that the court use the federal government's determination of the employee's lawful status. Id. § 23-212 (H).
The Act makes participation in E-Verify mandatory for all employers, although it provides no penalty for violation of the requirement. See id. § 23-214(A). The Act also includes an affirmative defense for good-faith compliance, explicitly incorporating IRCA. See id. § 23-212(J).
The Act mandates a graduated series of sanctions for violations. A first violation requires the employer to terminate the employment of all unauthorized aliens, file quarterly reports of all new hires for a probationary period, and file an affidavit stating that it terminated all unauthorized aliens and will not intentionally or knowingly hire any others. Id. §§ 23-212(F)-212.01(F). A second violation during the probationary period results in the permanent revocation of the employer's business license. Id. §§ 23-212(F)(2), (3), 23-212.01(F)(2), (3).
Plaintiffs originally filed an action challenging the Act on July 13, 2007, less than one month after the Act's 863 enactment. The district court dismissed the first action for lack of subject matter jurisdiction because *863 it did
not name as defendants any of Arizona's county attorneys, who have the responsibility of enforcing the Act.
In December 2007, plaintiffs filed a second complaint, this time including the Arizona county attorneys as defendants. The principal contentions were that the Act was expressly preempted by federal law because the Act was not a "licensing" or "similar" law within the meaning of the savings clause of IRCA's preemption provision; that, even if the Act was not expressly preempted, it was impliedly preempted because its sanctions provisions and E-Verify requirement conflict with federal law; and that the Act violated employers' due process rights because it did not allow them an adequate opportunity to dispute the federal government's response that an employee was not authorized to work.
The matter proceeded to hearing, and the district court dismissed the Arizona Attorney General for lack of subject matter jurisdiction, because he lacks the authority to bring enforcement actions. The court ruled in favor of the remaining defendants on the merits. It held that the Act is not expressly preempted by IRCA because the Act is a licensing law within the meaning of the savings clause. It held that neither the Act's sanctions provisions, nor the provision mandating use of E-Verify, was inconsistent with federal policy, and thus they were not impliedly preempted. Finally, the court held that the Act did not, on its face, violate due process because employers' due process rights were adequately protected. Plaintiffs now appeal.
Discussion
I. Preemption
Federal preemption can be either express or implied. See Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). When a federal statute contains an explicit preemption provision, we are to "`identify the domain expressly pre-empted' by that language." Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). IRCA contains an express preemption clause in its provision creating sanctions for hiring unauthorized aliens. It preempts all state sanctions "other than through licensing and similar laws." 8 U.S.C. § 1324a(h)(2). Plaintiffs contend that the Act is expressly preempted.
Implied preemption has two subcategories. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). The first is field preemption, where "the depth and breadth of a congressional scheme ... occupies the legislative field." Id. (citing Fid. Fed. Sav., 458 U.S. at 153, 102 S.Ct. 3014). The second is conflict preemption, which occurs when either "`compliance with both federal and state regulations is a physical impossibility,'" Fid. Fed. Sav., 458 U.S. at 152, 102 S.Ct. 3014 (quoting Fla. Lime & Avocado Growers, Inc., 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)), or where "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," id. (internal quotation marks omitted) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). For conflict

preemption to apply, the conflict must be an actual conflict, not merely a hypothetical or potential conflict. See English v. Gen. Elec. Co., 496 U.S. 72, 89, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Plaintiffs contend that even if the entire Act is not expressly preempted, the mandatory requirement to use E-Verify is impliedly preempted because it conflicts with the voluntary program in IIRIRA.
864 *864 A. The Act is not expressly preempted because it falls within IRCA's savings clause.
The explicit preemption provision in IRCA states: "The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). The parties agree that the Act is expressly preempted by IRCA unless it falls within the savings clause of IRCA's express preemption provision. Plaintiffs argue that the Act does not fall within the savings clause because they contend the Act is not a "licensing law" within the ordinary meaning of the phrase, and that the savings clause was not intended to permit a state to create an adjudication and enforcement system independent of federal enforcement of IRCA violations.
The district court held that the plain language of section 1324a(h)(2) does not facially preempt the Act because it does no more than impose conditions on state licenses to do business and thus falls within the savings clause. Ariz. Contractors Ass'n v. Candelaria, 534 F.Supp.2d 1036, 1046-47 (D.Ariz.2008). The court rejected plaintiffs' argument that section 1324a(h)(2) permits only licensing sanctions that are preceded by a federal adjudication of employer liability, reasoning that neither the plain language of section 1324a(h)(2) nor the legislative history supports plaintiffs' position. Id. at 1046-48.
The district court also rejected plaintiffs' argument that the savings clause should be interpreted narrowly, holding that because regulation in the employment field is traditionally an area of state concern, there is a presumption against preemption. Id. at 1050-52. An issue central to our preemption analysis is thus whether the subject matter of the state law is in an area of traditionally state or federal presence. When Congress legislates "in a field which the States have traditionally occupied.... we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (internal quotation marks omitted) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Conversely, we do not assume non-preemption "when the State regulates in an area where there has been a history of significant federal presence." Id.
A leading case involving the employment of illegal aliens is De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). The Supreme Court there upheld a state law prohibiting the employment of unauthorized aliens against a preemption challenge because it concluded that the authority to regulate the employment of unauthorized workers is "within the mainstream" of the state's police powers. Id. at 356, 365, 96 S.Ct. 933. The Court reasoned that "the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355, 96 S.Ct. 933.
Plaintiffs argue that reliance on De Canas is now misplaced because IRCA, passed after De Canas, brought the regulation of unauthorized employees within the scope of federal immigration law. They rely on language in a later case where the Court said that IRCA made the employment of unauthorized workers "central to `[t]he policy 865 of immigration law.'" Hoffman Plastic Compounds, Inc. v. *865 NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (quoting INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 & n. 8, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991)) (alteration in original). That case, however, did not involve preemption, or indeed any state regulation. It considered whether the National Labor Relations Board ("NLRB") could award backpay to an unauthorized worker, and the Court held it could not. The Court said that the NLRB had impermissibly "trench[ed] upon federal statutes and policies unrelated to the [National Labor Relations Act]" by awarding backpay to an unauthorized alien worker who was improperly terminated from his employment for participating in union-related activities. Id. at 140, 141, 144, 122 S.Ct. 1275. Because it did not concern state law or the issue of preemption,

Hoffman did not affect the continuing vitality of De Canas. We conclude that, because the power to regulate the employment of unauthorized aliens remains within the states' historic police powers, an assumption of nonpreemption applies here.
Plaintiffs contend that the term "license" was intended to encompass only licenses to engage in specific professions, such as medicine or law, and not licenses to conduct business. There is no support for such an interpretation. "Licensing" generally refers to "[a] governmental body's process of issuing a license," Black's Law Dictionary 940 (8th ed.2004), and a "license" is "a permission, usually revocable, to commit some act that would otherwise be unlawful," id. at 938. The Act provides for the suspension of employers' licenses to do business in the state. See Ariz.Rev.Stat. § 23-212(F). Such licenses are defined as "any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this state." Id. § 23-211(9)(a). The statute's broad definition of "license" is in line with the terms traditionally used and falls within the savings clause. The language of the savings clause therefore exempts such state licensing regulation from express preemption. A recent district court case that considered the same issue reached the same conclusion. See Gray v. City of Valley Park, No. 4:07CV00881 ERW, 2008 WL 294294, at **8, 10, 12 (E.D.Mo. Jan. 31, 2008) (holding that city ordinance governing issuance and denial of business permits fell within meaning of savings clause). But see Lozano v. City of Hazleton, 496 F.Supp.2d 477, 519-21 (M.D.Pa.2007) (concluding that state law prohibiting employment of illegal aliens was expressly preempted by IRCA).
Plaintiffs nevertheless contend that the legislative history demonstrates that Congress intended the savings clause to permit states to impose a state sanction only after there had been a federal determination of an alien's unauthorized status. Plaintiffs rely on the second sentence in a paragraph from Part I of House Report 99-682, which as a whole states:
The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or "fitness to do business laws," such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.
866 *866 H.R.Rep. No. 99-682(i), at 58 (1986) as reprinted in 1986 U.S.C.C.A.N. 5649, 5662. As the district court found, however, this paragraph as a whole does not support plaintiffs' argument. The paragraph describes the federal law as preempting "civil fines and/or criminal sanctions," neither of which the Act imposes. The paragraph does not suggest that the federal law would preempt local laws that suspend or revoke licenses on the basis of IRCA violations, or state licensing laws that require employers not to hire unauthorized workers. As the district court concluded, plaintiffs' reading of the second sentence, as permitting enforcement only of state licensing regulations conditioned on federally adjudicated violations, is contradicted by the third sentence, which recognizes states can condition an employer's "fitness to do business" on hiring documented workers. That is what the Arizona Act does.
In sum, the Act does not attempt to define who is eligible or ineligible to work under our immigration laws. It is premised on enforcement of federal standards as embodied in federal immigration law. The district court therefore correctly held that the Act is a "licensing" measure that falls within the savings clause of IRCA's preemption provision.
Plaintiffs finally contend that this kind of state regulation must be preempted because there is a potential for conflict in the practical operation of the state and federal law. They point to a hypothetical situation in which an employer may be subject to conflicting rulings from state and federal tribunals on the basis of the same hiring situation. Whether principles of comity or issue preclusion would allow such a result are questions not addressed by the parties. In any event, a speculative, hypothetical possibility does not provide an adequate basis to sustain a facial challenge. See Crawford, 128 S.Ct. at 1621.

B. The Act's provisions mandating the use of E-Verify and creating potentially harsh sanctions are not impliedly preempted by federal law.
Plaintiffs argue that the Arizona provision mandating the use of E-Verify is impliedly preempted because it conflicts with Congressional intent to keep the use voluntary. They contend that Congress wanted to develop a reliable and non-burdensome system of work-authorization verification, and that mandatory use of E-Verify impedes that purpose. They rely on the Supreme Court's decision in Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). Geier recognized that state laws that fall within a savings clause and are therefore not expressly preempted are still subject to the "ordinary working of conflict pre-emption principles." Id. at 869, 120 S.Ct. 1913. A state law is preempted through conflict preemption when it "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. at 873, 120 S.Ct. 1913 (quoting Hines, 312 U.S. at 67, 61 S.Ct. 399). Geier involved a Department of Transportation regulation that was designed to encourage competition among automobile manufacturers to design effective and convenient passive-restraint systems. The regulation required only 10% of a car manufacturer's production to include airbags. The Court in Geier held that state tort law, permitting liability to be imposed for failure to provide airbags, conflicted with the federal policy to encourage development of different restraint systems. Id. at 886, 120 S.Ct. 1913.
The district court here held that Arizona's requirement that employers use E-Verify was not preempted because, while Congress made participation in E-Verify voluntary at the national level, that did not in and of itself indicate 867 that Congress *867 intended to prevent states from making participation mandatory. Ariz. Contractors, 534 F.Supp.2d at 1055-56. We agree with that holding. Congress could have, but did not, expressly forbid state laws from requiring E-Verify participation. It certainly knew how to do so because, at the same time, it did expressly forbid "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
Furthermore, this case is unlike Geier, where the Supreme Court found strong evidence of Congress's intent to promote competition and balance federal goals in a competitive environment encouraging alternative systems. Here, E-Verify is a federal government service that Congress has implicitly strongly encouraged by expanding its duration and its availability (to all fifty states). See Basic Pilot Program Extension and Expansion Act of 2003, Pub.L. No. 108-156, 117 Stat.1944, 1944; Basic Pilot Extension Act of 2001, Pub.L. No. 107-128, sec. 2, 115 Stat. 2407, 2407. Though Congress did not mandate E-Verify, Congress plainly envisioned and endorsed an increase in its usage. The Act's requirement that employers participate in E-Verify is consistent with and furthers this purpose, and thus does not raise conflict preemption concerns.
Appellants contend that conflict preemption is a concern here also because of the Act's potentially discriminatory effects. Their argument is that E-Verify increases discrimination against workers who look or sound "foreign," and that mandatory E-Verify usage thus upsets the enforcement/discrimination balance that Congress has maintained by keeping E-Verify optional. This argument fails because Congress requires employers to use either E-Verify or I-9, and appellants have not shown that E-Verify results in any greater discrimination than I-9.
Plaintiffs also argue that the Act's potential sanctions of suspension or revocation of an employer's business license impliedly conflict with IRCA because the Act's sanctions are harsher than IRCA's monetary sanctions. Plaintiffs urge that the harsh sanctions, even though expressly saved from express preemption, have the effect of encouraging employers to discriminate, and that such an effect would conflict with IRCA's purposes. Their argument is essentially speculative, as no complaint has yet been filed under the Act and we have before us no record reflecting the Act's effect on employers. There is thus no adequate basis in this record for holding that the sanctions provisions create an implied conflict rendering the Act facially invalid. See Crawford, 128 S.Ct. at 1621-22.

II. Due Process
The deprivation of a property interest must "`be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). An Arizona business license is a property interest. See, e.g., Comeau v. Ariz. State Bd. of Dental Exam'rs, 196 Ariz. 102, 993 P.2d 1066, 1070 (1999). An opportunity to be heard must be "`at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Employers thus should be given an opportunity to be heard before their business licenses are suspended or revoked under the Act.
868 *868 The Act sets forth the procedures to be followed in bringing an enforcement action. Any person may submit a complaint about a suspected violation to either the Arizona Attorney General or a county attorney. Ariz.Rev.Stat. § 23-212(B). The Attorney General or county attorney investigating a complaint must verify the alleged unauthorized alien's work-authorization status with the federal government pursuant to 8 U.S.C. § 1373; the state official is prohibited from attempting to make an independent determination of the alien's status. Id. After a complaint is investigated and found not to be false or frivolous, a county attorney must bring an enforcement action against the employer in state court in the county in which the alien was employed. Id. § 23-212(C), (D). The court is to expedite the action, which includes scheduling the hearing as quickly as is practicable. Id. § 23-212(E).
Subsection (H) of section 212 describes the state court's procedures to obtain information from the federal government on whether an alien was unauthorized to work:
On [sic] determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States Code § 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code § 1373(c). Id. § 23-212(H). Section 1373(c) of title 8 of the U.S.Code provides that the Immigration and Naturalization Service "shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." 8 U.S.C. § 1373(c).
Plaintiffs contend, in this facial challenge, that the Act violates due process because it deprives employers of their business licenses without providing them an adequate opportunity to dispute whether an employee was authorized to work. Plaintiffs rely on the first sentence of subsection (H) to argue that the Act prohibits employers at the state-court hearing from presenting any evidence to rebut the federal government's § 1373 response on the issue of the employee's work status. Defendants, however, point to the second sentence of subsection (H), which provides that the federal response creates only a rebuttable presumption. They contend that the employer can rebut the federal response with other evidence during a hearing.
Plaintiffs' interpretation of subsection (H) is flawed because it gives no meaning to the second sentence of the provision. That sentence at least implicitly contemplates a hearing to rebut the presumption created by the federal determination of an employee's unauthorized status. See Ariz.Rev.Stat. § 23-212(H). Arizona law, consistent with ordinary principles of statutory interpretation, requires that "`[e]ach word, phrase, clause, and sentence [of a statute] must be given meaning so that no part will be void, inert, redundant, or trivial.'" Williams v. Thude, 188 Ariz. 257, 934 P.2d 1349, 1351 (1997) (second alteration in original) (emphasis omitted) (quoting City of Phoenix v. Yates, 69 Ariz. 68, 208 P.2d 1147, 1149 (1949)). We conclude that the statute provides an employer the opportunity, during the state court proceeding, to present rebuttal evidence.
869

*869 Furthermore, defendants explain any apparent incongruity between the first two sentences of subsection (H) by pointing to parallel language found in an earlier subsection, subsection (B), which relates to the initial investigation of a complaint:
When investigating a complaint, the attorney general or county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 United States Code § 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.
Ariz.Rev.Stat. § 23-212(B). Defendants explain that this section, like the first sentence of subsection (H), provides, somewhat inartfully, that the initial investigation and the basis for bringing an enforcement action must be limited to the federal response, thereby precluding independent state investigation. The employer would then have the opportunity to present evidence. The district court agreed. The district court persuasively reasoned that requiring the state or county to obtain a federal determination of an employee's work status before bringing proceedings may be intended to protect employees from direct investigation by the state.
We therefore conclude that the district court correctly determined that the Act provides sufficient process to survive this facial challenge. More importantly, the district court also found that the statute does not preclude the presentation of counterevidence when an employer's liability is at issue, Ariz. Contractors, 534 F.Supp.2d at 1058, and we agree with this interpretation. An employer's opportunity to present evidence at a hearing in superior court, in order to rebut the presumption of the employee's unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed. We conclude that subsection (H) is facially constitutional.
The district court's judgment is AFFIRMED.
[*] The Honorable John M. Walker, Jr., Senior United States Circuit Judge for the Second Circuit, sitting by designation.
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 526 F.Supp.2d 968 (2007)
ARIZONA CONTRACTORS ASSOCIATION, INC., an Arizona nonprofit corporation; Arizona Employers for Immigration Reform, Inc., an Arizona non-profit corporation; Chamber of Commerce of the United. States of America, a Washington D.C. non-profit corporation; Arizona Chamber of Commerce, an Arizona non-profit corporation; Arizona Hispanic Chamber of Commerce, Inc., an Arizona nonprofit corporation; Arizona Farm Bureau Federation, an Arizona non-profit corporation; Arizona Restaurant and Hospitality Association, an Arizona non-profit corporation; Associated Minority Contractors of America, an Arizona non-profit limited liability company; Arizona Roofing Contractors Association, an Arizona non-profit corporation; National Roofing Contractors'
969 Association, an Illinois not-for-profit *969 corporation; Wake Up Arizona! Inc., an Arizona non-profit corporation; and Arizona Landscape Contractors Association, Inc., an Arizona non-profit corporation, Plaintiffs, v. Janet NAPOLITANO, Governor of the State of Arizona; Terry Goddard, Attorney General of the State of Arizona, Defendants. Chicanos Por La Causa, Inc.; and Somos America, Plaintiffs, v. Janet Napolitano, in her official capacity as Governor of the State of Arizona; Terry Goddard, in his official capacity as Attorney General of the State of Arizona; and Gale Garriott, in his official capacity as the Director of the Arizona Department of Revenue, Defendants.
Nos. CV07-1355-PHX-NVW, CV07-1684-PHX-NVW.
United States District Court, D. Arizona.
December 7, 2007. As Amended December 10, 2007.
970 *970 David A. Selden, Heidi Nunn-Gilman, Julie A. Pace, Ballard Spahr Andrews & Ingersoll LLP, Daniel Joseph Pochoda, ACLU, Phoenix, AZ, Louis R. Moffa, Jr., Ballard Spahr Andrews & Ingersoll LLC, Voorhees, NJ, Cynthia
971 Ann Valenzuela, *971 Kristina Michelle Campbell, MALDEF, Karen Cassandra Tumlin, Linton Joaquin, Monica Teresa Guizar, National Immigration. Law Center, Los Angeles, CA, Jennifer C. Chang, Lucas Guttentag, ACLU Foundation Immigrants Rights Project, Jonathan Weissglass, Stephen Paul Berzon, Altshuler Berzon LLP, Omar. C. Jadwat, ACLU, Immigrants Rights Project, New York, NY, for Plaintiffs.
Christopher Arthur Munns, Mary Ruth O'Grady, Office of the Attorney General, Gregg Jay Tucek, Sherman & Howard LLC, Phoenix, AZ, Christina B. LaBrie, Fragomen Del Rey Bernsen & Loewy LLP, New York, NY, Patrick P. Shen, Fragomen Del Rey Bernsen & Loewy LLP, Washington, DC, for Defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
NEIL V. WAKE, District Judge.
Plaintiffs challenge the Legal Arizona Workers Act, A.R.S. §§ 23-211 through 214, enacted July 2, 2007, and effective January 1, 2008. 2007 Ariz. Sess. Laws, Ch. 279. The Act provides the superior courts of Arizona with the power to suspend or revoke the business licenses of employers who intentionally or knowingly employ an unauthorized alien. By agreement of the parties, the two cases were consolidated and accelerated for trial on

November 14, 2007, on stipulated facts and written evidence. Defendants' motions to dismiss were deferred to the trial. This order states findings of fact and conclusions of law pursuant to. Rule 52(a), Fed. R.Civ.P.
There is no justiciable case or controversy against these Defendants. Plaintiffs do not intentionally or knowingly employ any unauthorized aliens, and they have no plans to. They bear no imminent threat of enforcement. Only county attorneys are authorized to enforce the Act. These Defendants 0907 the Governor, the Attorney General, and the Director of the Department of Revenue0907have only investigatory or informational authority under the Act, and they have not made even empty threats to prosecute anyone.
Verifying the employment eligibility of new hires through the federal E-Verify program has some costs for employers. The federal government makes. E-Verify available, but the State mandates its use. Although the State's mandate to use Verify has no direct enforcement or enforcer, the Act indirectly forces employers to obtain powerful evidence of workers' authorization from the federal government. The plausible consequence for refusing to use E-Verify may be that employers also cannot prove their good faith compliance with the 1-9 process because the E-Verify system would have exposed the employee's lack of authorization. An employer who foregoes the mandated E-Verify evidence may be left with little or no evidence that matters. For this reason, participation in E-Verify is not a free choice even though there is only a general threat of enforcement proceedings, and even though Plaintiffs' failure to participate in E-Verify does not increase appreciably the likelihood of enforcement proceedings against them. The Act forces them to enroll in E-Verify because if they do not enroll now they face near certain and intolerable harm in the event of a future enforcement proceeding.
Yet the court cannot redress that internal coercion with a judgment against these Defendants. The State officers do not cause the intolerable risk that Plaintiffs may have no defense if they forego the Verify evidence. That risk finds its sting only at the hands of a county attorney, the only official empowered to bring a future enforcement proceeding.
972 This action must be dismissed without prejudice for lack of subject matter jurisdiction, *972 there being no justiciable case or controversy against the Defendants.
I. Employer Sanctions in the Federal Government's Immigration Reform and Control Act and E-Verify
A. Summary of the IRCA
Federal law first created sanctions for employers of unauthorized aliens in the Immigration Reform and Control Act (IRCA), enacted in 1986. Before then, federal law did not displace State authority to enact and enforce sanctions against employers of unauthorized aliens except to the extent the State law conflicted with federal enactments. De Canal v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). The central provisions of IRCA are codified at 8 U.S.C. §§ 1324a through 1324c. With certain exclusions, it is unlawful to hire or continue to employ a person known to be an unauthorized alien. 8 U.S.C. § 1324a(a)(1)(A) and (a)(2). An unauthorized alien is one who is not "either (a) an alien, lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act [IRCA] or by the Attorney General." § 1324a(h)(3).
The IRCA also requires employees and employers to comply with a paper-based employment eligibility verification system set out in 8 U.S.C. § 1324a(b), known as the 19 system. Employees must swear to their authority to work, and employers must examine certain wide classes of identification documents recorded on Form I-9. An identification document is sufficient if it "reasonably appears on its face to be genuine." § 1324a(b) (1)(A). Employers must keep records of compliance with the 1-9 system. § 1324a(b)(1)(3). An employer's good faith attempt to comply suffices notwithstanding a technical or procedural failure unless the employer has engaged in a pattern or practice of violations or fails to correct an error after the government points it out. § 1324a(b)(6).
The IRCA entrusts its enforcement to the Attorney General with hearings before specially selected administrative law judges, subject to federal judicial review. § 1324a(e). The government must prove by a preponderance of the evidence that the employer knowingly hired or retained an unauthorized alien, but it is "an affirmative defense" that the employer "complied in good faith" with the 1-9 system mandated by § 1324a(b), § 1324a(a)(3) and 1324a (e)(3)(C). Remedies include cease and desist orders and civil fines from $250 to $2,000 for a first order, $2,000 to $5,000 for a second order, and $3,000 to $10,000 for a further order. Other remedial action may be ordered. §

1324a(e)(4). The Attorney General may seek enforcement of orders in a federal district court. § 1324a(e)(9). For a pattern or practice of violations a criminal fine up to $3,000 and imprisonment up to six months can be imposed. The Attorney General may also seek civil injunctive relief. § 1324a(f).
Central to Plaintiffs' challenges in this case is the preemption clause of 8 U.S.C. § 1324a(h)(2), which provides, "The provisions of this section [8 U.S.C. § 1324a] preempt any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."
Other sections prohibit document fraud and employment discrimination based on national origin or legal immigration status, with enforcement procedures, tribunals, and remedies. 8 U.S.C. § 1324b and 1324c. There are other provisions that need not be reviewed to understand the justiciability issues in this case.
B. Failure of the 1-9 System
973 As the Congressional Research Service Report to Congress dated April 20, 2007, *973 concludes, "There is general agreement that the I-9 process has been undermined by fraud0907both document fraud, in which employees present counterfeit or invalid documents, and identity fraud, in which employees present valid documents issued to other individuals." (Joint Statement of Facts, Doc. # 72 (Facts), Ex. 15 at 3.) The result of the failure of the 1-9 system and other causes is that "an estimated 7.2 million unauthorized workers were in the U.S. civilian labor force in March 2005, representing about 5% of the labor force." (Id. at 1.) The unauthorized resident alien population "has grown at an average annual rate of more than 500,000 per year." (Id.) As the director of immigration policy for Plaintiff U.S. Chamber of Commerce testified before Congress last June, "Current immigration laws are severely flawed and have failed to curb the flow of undocumented workers into the U.S." (Facts, Ex 22J at 3.)
C. E-Verify
Building on the 1-9 system, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § § 401-404, 110 Stat. 3009, 3009-655 to 3009-666, directed the Attorney General to conduct three pilot programs for employment eligibility confirmation, one of which is still in operation, formerly known as the Basic Pilot and now known as Verify. (Facts, Ex. 8 at 1.) Originally limited to five states, it was expanded nationwide in 2004. Federal law does not mandate E-Verify participation except for some government contractors and violators of immigration laws. (Facts, Ex. 9 at 1.) E-Verify is an Internet-based system that electronically compares information submitted by the employee on Form I-9 with the records maintained by the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
Employers participating in E-Verify sign a Memorandum of Understanding (MOU) with SSA and DHS that sets out terms of use. (Facts, Ex. 7.) After hiring a new employee the employer queries E-Verify, which then compares the information to SSA's primary database. If the information matches, the employer is immediately notified that the employee is verified. If the submitted information is inconsistent with SSA data, the employer is notified of a tentative nonconfirmation within three federal work days, but usually immediately. (Facts, Ex. 7, Art. II § A ¶ 4; Ex. 11 at 2.)
If the submitted information and SSA data are consistent for noncitizens but the SSA database does not permit confirmation of work-authorization, the submitted information is next compared to the DHS's data, usually at the U.S. Citizenship and Immigration Services (CIS). If the CIS automated match is adequate to establish workauthorization, the employee is verified immediately. If not, a CIS field office records expert checks other DHS information. If the field worker is able to verify work-authorization, the employer is typically notified within one day of case submission. (Facts, Ex. 11 at 2.)
When neither the automated SSA and DHS checks nor the check by the immigration status verifier can confirm an employee's work status, the system issues the employer a tentative nonconfirmation. The employer must notify the employee, who has eight days to contest the finding by contacting SSA or CIS to resolve any inaccuracies in their records. (Facts, Ex. 13, App. C at C-2.) The MOU gives detailed steps to assist the employee in contesting a tentative nonconfirmation. (Facts, Ex. 7, Art. III § B.) The contesting process is normally limited to ten federal work days, but may be extended. No adverse action may be taken against the employee in

974 the meantime. Employees who do not contest the tentative nonconfirmation *974 receive a final nonconfirmation finding. If contested, CIS informs the employer of the employee's final work-authorization status. After ten days, employers must either immediately terminate employment or notify DHS of the continued employment of workers who have not successfully contested the tentative nonconfirmation and who E-Verify has found not to be workauthorized. (Facts Ex. 7, Art. II § C ¶ 6; Ex. 10 at 7; Ex. 11 at 2-3.)
About 92% of queries confirm work authorization within seconds. About 7% cannot be confirmed immediately by SSA, and about 1% cannot be confirmed immediately by DHS. Resolving the nonconfirmations can take several days, or in a few cases even weeks. (Facts, Ex. 22B at 3.)
Other provisions are aimed at protecting privacy and preventing misuse of the Verify system. Participating employers must verify all new hires, but only new hires. The employer agrees in the MOU to grant SSA and DHS access to the employer's E-Verify and employment related documents and to its employees for interviews. "Failure to comply with the terms of this paragraph may lead DHS to terminate the Employer's access to EVerify." (Facts, Ex. 7, Art. II § C ¶ 15.)
Employers are still subject to the Form 1-9 obligations, but some are modified by the E-Verify MOU. The acceptable employee identifying documents are narrowed. The employer is subject to a civil money penalty for failure to notify DHS if it continues to employ an individual after receiving a final nonconfirmation. Of particular importance to this case, "a rebuttable presumption is established that the Employer has not violated [8 U.S.C.. § 1324a(a)(1)(A), the prohibition of hiring an unauthorized alien] . . . if it obtains confirmation of the identity and employment eligibility of the individual in compliance with the terms and conditions of E-Verify." Conversely, "the Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of [8 U.S.C. § 1324a(a)(1)(A)] if the Employer continues to employ any employee after receiving a final nonconfirmation." No one "participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system." (Id. at Art. II § C ¶ 6.)
According to the U.S. Citizenship and Immigration Services, "E-Verify is currently the best means available for employers to verify electronically the employment eligibility of their newly hired employees: E-Verify virtually eliminates Social Security mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S. employers maintain a legal workforce." (Facts, Ex. 9 at 1.) A 2002 survey and evaluation observed that "an overwhelming majority of employers participating found [E-Verify] to be an effective and reliable tool for employment verification." (Facts, Ex. 10 at v.) After the program was implemented, 60% of employers found it "not at all burdensome." Ninety-three percent reported that it was easier than the I-9 process, and 92% reported that it did not overburden their staff. (Id. at 33.) In a 2006 SSA survey of fifty users with a large volume of verification requests, 100% rated the program "Excellent," "Very Good," or "Good." (Facts, Ex. 13 at 4.) A majority of employers in the 2002 survey spent under $500 for E-Verify start-up costs and under $500 annually for operating costs. Annual operating costs averaged $1,800, with about 85% spending less than $3,500. (Facts, Ex. 10 at vi., 34.)
975 The same study found that less than one-tenth of 1% of employment verification *975 attempts resulted in a finding of "unauthorized." It estimated that 10% of all cases submitted were unauthorized workers, but very few of them contested the tentative nonconfirmation. (Id. at vi.) E-Verify is not fraud proof and was not designed to detect identity fraud. (Facts, Ex. 15 at 6.) However, a piloting photograph screening tool, whereby an employer can more easily identify identity fraud, has been extended to all users. (Facts, Ex. 22B at 3-4.)
II. The Legal Arizona. Workers Act
The Legal Arizona. Workers Act ("the Act"), A.R.S. § 23-211 through 23-214 (Supp.2007), is a conscious State attempt to impose sanctions by "licensing and similar laws" upon those who employ unauthorized aliens, as expressly permitted in 8 U.S.C. § 1324a(h)(2). A principal issue in this case is whether the Act comes within that safe harbor or spills over to the other "civil or criminal sanctions" forbidden to States.
The Act builds on the federal statutory prohibitions and the 1-9 system, but avoids making determinations of alien status or work authorization separate from those made by the federal government. It provides, "An employer shall not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien," incorporating the

federal definitions of "knowingly employ" and "unauthorized alien." A.R.S. §§ 23-212(A), 23-211(6) and (8). The federal government provides its determination of "the work authorization of the alleged unauthorized alien" to State officials and the State court pursuant to 8 U.S.C. § 1373(c). That determination is binding, though the State court may request verification. A.R.S. § 23-212(B) and (H). The Act replicates the federal "affirmative defense" that the employer "complied in good faith" with the 1-9 system. A.R.S. § 23-212(J). However, as noted above, participation in E-Verify very much affects the federal "affirmative defense" that the employer "complied in good faith" with the 1-9 system.
The Act also replicates the federal rebuttable presumption of compliance for employers who have verified the employment authorization of their employees through E-Verify. A.R.S. § 23-212(I). The Act goes further than federal law, however, and requires employers to verify the eligibility of new hires through the Verify program after December 31, 2007. A.R.S. § 23-214.
The sanctions for violating A.R.S. § 23-212(A) vary. For a first adjudicated knowing violation during a three-year period, the employer is ordered to terminate the employment of 411 unauthorized aliens, must file quarterly reports of new hires for a three-year probation period, and is ordered to file an affidavit within three days that it has terminated all unauthorized aliens and will not intentionally or knowingly employ an unauthorized alien. If the employer does not file the affidavit on time, its business licenses are suspended until it does. Even if the affidavit is filed on time, the court may suspend the business licenses up to ten days after considering various factors. A.R.S. § 23-212(F)(1).
For a first adjudicated intentional violation during a five-year period, the sanctions are the same except that the probation and reporting period is five years and suspension of business licenses is mandatory for a minimum of ten days. A.R.S. § 23-212(F)(2).
For a second knowing or intentional violation during the period of probation, business licenses are permanently revoked. A.R.S. § 23-212(F)(3).
"License" means any state or local "authorization that is required by law and that is issued . . . for the purposes of 976 operating a business in this state." A.R.S. § 23-211(7)(a). It includes articles of incorporation, *976 a certificate of
partnership, a foreign corporation registration, and a transaction privilege (sales tax) license, but not a professional license. A.R.S. §§ 23-211(7)(b) and (c). Obviously, both the punishment and the deterrence are meant to be stiff.
The Act authorizes only county attorneys to bring proceedings under the Act. A.R.S. §§ 23-212(C)(3), 23-212(D). Both county' attorneys and the Attorney General may receive and shall investigate complaints of violation. Upon concluding that a complaint is not frivolous, the investigating officer shall notify federal immigration authorities and the local law enforcement agency of the unauthorized alien, and the Attorney General "shall notify the appropriate county attorney to bring an action" if the complaint was filed with the Attorney General. A.R.S. § 23-212(C). The Attorney General shall also maintain copies of court orders of enforcement. A.R.S. § 23-212(G). The Act required and the Director of the Department of Revenue did send a notice by October 1,2007, to all employers required to withhold income taxes informing them of the terms of the Act. 2007 Ariz. Sess. Laws, Ch. 279, § 3. (Facts, Ex. 6.)
III. The Litigation and the Parties
The Plaintiffs in No. CV 07-1355 are twelve non-profit corporations that are associations of members and serve as public policy advocates for their members. They are referred to as the "Business-Group Plaintiffs." Three are chambers of commerce reflecting wide business interests, two are business associations interested in immigration policy, and seven are trade associations in specific industries. Ten are incorporated in Arizona and have their principal place of business in Arizona. Nine have employees in Arizona. Wake Up Arizona!, the U.S. Chamber of Commerce, and the National Roofing Contractors Association have no Arizona employees, but they allege that some of their members have employees in. Arizona. The latter two are not incorporated in Arizona, and there is no evidence they have any business license that could be sanctioned under the Legal Arizona Workers Act, but they allege that some of their members do have Arizona business licenses. (Facts, ¶ ¶ 1-6.)

Plaintiff. Chicanos Por La Causa, Inc., in No. CV 07-1684 (now consolidated with No. CV 07-1355) is an Arizona non-profit corporation with 600 Arizona employees. It is Arizona's largest community development corporation. Plaintiff Somos America, a coalition of diverse groups for comprehensive immigration reform, presents no allegation or evidence that it or any of its members have Arizona employees or are subject to the Act. It will be dismissed for lack of standing and will be omitted from the balance of the discussion in this order. (Facts, Ex. 23. ¶ ¶ 1-8.)
The Act will govern the remaining Plaintiffs and/or some of their members and will require them to use E-Verify to ascertain the employment eligibility of new employees. They will need to allocate employee time to install and learn software, complete a tutorial, sign the MOU, and submit information regarding their new employees. The cost will be at least several hundred to several thousand dollars per year.
All Plaintiffs contend that the Act violates the IRCA's preemption of "any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). They further assert that the differences between the Act and the IRCA conflict with federal law. They also argue that the voluntariness of E-Verify under 977 federal law prohibits the State from requiring Arizona employers to participate *977 as a part of the Arizona license sanction regulation.
The Business-Group Plaintiffs contend that the Act also violates procedural and substantive due process of law, the federal Commerce Clause, Arizona separation of powers, and the Fourth Amendment guarantee against unreasonable search and seizure.
The Defendants are the Governor and the Attorney General of the State of Arizona, and in the case of Chicanos Por La Causa, also the Director of the Department of Revenue.
All Plaintiffs claim injury and standing based on the expense of participating in E-Verify and seek declaratory relief and an injunction against enforcement of the Act. The Business-Group Plaintiffs also claim' injury and standing from threat of enforcement of the Act and from forced waiver of their Fourth Amendment rights by signing the E-Verify MOU.
IV. The Business-Group Plaintiffs Have No Standing to Challenge the Act Based on a Threat of Prosecution or Loss of Fourth Amendment Rights
Article III of the Constitution limits the judicial power of federal' courts to "cases" and "controversies." Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Federal courts must maintain their proper role as arbiters of adversarial disputes and not stray into areas committed to other branches of government. Id. "No principle is more fundamental to the judiciary's proper role, in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (citing Flast, 392 U.S. at 95, 88 S.Ct. 1942). For a case or controversy to exist under Article III, a plaintiff must have standing to assert his legal claims, those claims must be ripe for review, and the harm must be redressable against the defendants. Renne v. Geary, 501 U.S. 312, 320, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991).
"[T]he standing question in its Art. III aspect `is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.'" Simon, 426 U.S. at 38, 96 S.Ct. 1917 (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). To have standing a plaintiff must have suffered an "injury in fact." Such an injury is one that is Concrete, particularized, actual, and imminent, not conjectural or hypothetical. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The plaintiff must also establish "a causal connection between the injury and the conduct complained of," and it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Id.
To the extent that the Business-Group Plaintiffs assert, standing on behalf of their members, they must show that 1) "their members would otherwise have standing to sue in their own right;" 2), "the interests that they seek to

protect are germane to the purposes, of their organizations;" and 3) "neither the claims asserted nor, the relief requested requires the participation of individual members in the lawsuit." San Diego County Gun Rights Comm., 98 F.3d at 1130-31 (citing Hunt v. Wash, State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Defendants do not challenge the Business-Group Plaintiffs' associational standing.
978 *978 A. There Is No Imminent Threat of License Proceedings Against the Business-Group Plaintiffs
The Business-Group Plaintiffs have standing if they can prove a "genuine threat of imminent prosecution" by the Defendants. San Diego County Gun Rights Comm., 98 F.3d at 1126 (emphasis omitted). The credibility of a threat of prosecution turns on: 1) "whether the plaintiffs have articulated a `concrete plan' to violate the law in question," 2) "whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings," and 3) "the history of past prosecution or enforcement under the statute." Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc) (citation omitted).
There is no threat of enforcement proceedings against the Business-Group Plaintiffs by the Defendants or anyone else. The Business-Group Plaintiffs do not knowingly employ or plan to employ any unauthorized alien. They rely solely on a press release by the Maricopa County Attorney that announces his intent to enforce the Act through a partnership with the Sheriff's Office. (Facts, Ex. 19.) That is a message to the entire county, not to these Plaintiffs. "[A] general threat of prosecution is not enough to confer standing." San Diego County Gun Rights Comm., 98 F.3d at 1127. Plaintiffs have presented no evidence of a specific threat directed at them or any of their members. Thomas, 220 F.3d at 1140. They therefore lack standing on this basis.
B. Signing the E-Verify Memorandum of Understanding Gives No Standing Because It Does Not Waive Fourth Amendment Rights
The Business-Group Plaintiffs also claim injury from forced waiver of their Fourth Amendment right to be free of warrantless federal searches of their employment records. When they sign the MOU to participate in E-Verify, they must agree to give the federal government access to employment records and employees for interviews. If they later refuse access, DHS may terminate their use of E-Verify, leaving the employer not in compliance with State law. Several threads run through this argument, but none ties to a real injury.
Assuming for now that employers have privacy interests in the specified documents and interviews sufficient to invoke the protections of the Fourth Amendment, the MOU does not authorize warrantless searches. See Midwest Growers Coop. Corp. v. Kirkemo, 533 F.2d 455, 463 (9th Cir.1976) (holding that a statute that allowed an agency "access to and authority . . . to inspect, examine, and copy" business records did not create a right of entry). Signing the MOU therefore does not effect an immediate waiver of Fourth Amendment rights. Moreover; the employer may withdraw the consent to access at any time. See United States v. McWeeney, 454 F.3d 1030, 1034 (9th Cir.2006) (recognizing that a crime suspect "is free . . . after initially giving consent, to delimit or withdraw his or her consent at anytime"). Finally, the MOU itself states the only consequence that can result from failure to comply, and it is not a forcible search. Rather, DHS "may terminate the Employer's access to E-Verify." (Facts, Ex. 7, Art.II § C ¶ 15.) In no event could the federal government enter and search over the employer's objection.
If the MOU did pose some arguable threat to Fourth Amendment rights, or to continued participation in E-Verify, it is far too speculative to occasion federal court relief now. A threatened injury must be "certainly impending" to 979 constitute *979 injury in fact, not hypothetically occurring at some future time contingent upon the acts, of others. Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). It is unknown whether DHS would terminate the Business-Group Plaintiffs' participation in E-Verify for refusing to grant them warrantless access to their records. The Business-Group Plaintiffs provide no evidence that DHS has done so in the past or intends to do so in the future.
It is helpful to recast the analysis in terms of ripeness. By agreeing to the MOU, the Business-Group Plaintiffs would currently lose nothing, for they later may refuse warrantless searches and have the benefit of E-Verify participation in the. meantime. If at some future time the federal government expelled them from E-Verify for refusing a search, only then would they suffer a detriment. But the detriment would not be loss of a Fourth

Amendment right. It would be the inability to use E-Verify from that point forward. None of that is the business of the courts today.
V. Plaintiffs Would Have Standing to Challenge the Act Based on the Economic Cost of E-Verify if They Had Sued a Proper Defendant
A. The Act Imposes' Economic Injury on Plaintiffs if it Forces Them to Participate in E-Verify
Plaintiffs contend that the Act imposes economic injury upon them by forcing them to use E-Verify. Even in' the absence of a specific threat of enforcement proceedings, a plaintiff may have standing based upon the economic cost of complying with a law. National Audubon Soc'y Inc. v. Davis, 307 F.3d 835, 856 (9th Cir.2002); San Diego County Gun Rights Comm., 98 F.3d at 1130; Cent. Ariz. Water Conservation Dist. v. U.S. EPA, 990 F.2d 1531, 1537 (9th Cir.1993). Cf. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 507-08, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) (holding that a case or controversy meets the constitutional test for ripeness when a plaintiff must incur expense to prepare to comply with a soon-to-become-effective statute). Plaintiffs must incur some labor and outof-pocket costs to check the employment eligibility of new hires through E-Verify. (Facts, Ex. 10 at 34.) They have thus demonstrated that they will sustain economic injury if the law forces them to use E-Verify.
B. The Act Causes Plaintiffs Economic Injury Only if its Operation or Enforcement Coerces Compliance With the E-Verify Requirement
"The mere existence of a proscriptive statute . . . [does not] satisf[y] the `case or controversy' requirement." Thomas, 220 F.3d at 1139 (citing San Diego County Gun Rights Comm., 98 F.3d at 1126-27). Economic injury from a statute sufficient for standing must be "fairly traceable" to the challenged statute and to the challenged actions of the defendants. San Diego County Gun Rights Comm., 98 F.3d at 1130 (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130). "A justiciable controversy does not exist where `compliance with [challenged] statutes is uncoerced by the risk of their enforcement.'" Lake Carriers' Ass'n, 406 U.S. at 507, 92 S.Ct. 1749 (alteration in original) (quoting Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961)). "A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (citing O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).
980 *980 As a threshold matter, Chicanos Por La Causa contends that A.R.S. § 23-214 forces them to enroll simply because "it is important in our country for all people to follow the law" and because "we are called upon to certify in various documents that we are not in violation of any laws." (Facts, Ex. 21 ¶ 4.) Such honorable intentions are not enough for standing. Plaintiffs must show that the operation or enforcement of the statute, causes them to incur an economic injury. Chicanos Por La Causa points to no specific, imminent need to certify compliance with State law. Nor has it shown a specific consequence for not certifying, or identified the officer who would visit that consequence upon it. The Business-Group Plaintiffs' belated argument on this point at trial went beyond its pleadings and the evidence, and they failed to show that a proper defendant is before the court. These grounds do not prove that the Act forces Plaintiffs to participate in E-Verify.
Plaintiffs can show that their economic injury is fairly traceable to the Act if they have a reasonable expectation that the defendants might bring an enforcement action against them if they do not comply. For example, professional trappers who endured economic injury when they ceased trapping to comply with a new law had standing to sue the law's enforcement officer. National Audubon Soc'y Inc. v. Davis, 307 F.3d 835, 856 (9th Cir.2002). Even though they had received no specific threat of enforcement, they reasonably expected that the law might be enforced against them "if they continued to trap because of "(1) the newness of the statute; (2) the explicit prohibition against trapping contained in the text of [the statute]; (3) the state's unambiguous press release mandating the removal of all traps banned. under [the statute]; (4) the amendment of state regulations to incorporate the provisions of [the statute]; and (5) the prosecution of one private trapper under [the statute]." Id.
This case presents almost all of the National Audubon Society factors. The Arizona Act is new, it explicitly requires employers to use E-Verify, the State has mailed notice, to every employer in the State that they must comply with the terms of the Act, and at least one county attorney has issued a press release expressing his intent to enforce the Act's prohibition on employing unauthorized aliens. No person has been prosecuted under

the Act because it has not yet taken effect, but there is no doubt that enforcement proceedings will occur. Plaintiffs have a reasonable expectation that the county attorney might enforce the Act against them if he obtains evidence that they employ unauthorized aliens after December 31, 2007.
The difference between National Audubon Society and this case is that the Act contains no explicit penalty solely for failing to use E-Verify. Although section 23-214 of the Arizona Act requires all business employers to participate in E-Verify, it authorizes no officer of the State to bring any form of enforcement action and provides no express civil or criminal penalty for noncompliance with that requirement. However, the Act may still cause Plaintiffs' economic injury if it coerces them to use E-Verify through the operation of section 23-212, which authorizes enforcement of the prohibition on employing unauthorized aliens.
C. The Operation of the Act Coerces Employers to Participate in E-Verify
Plaintiffs contend that the State coerces them to enroll in E-Verify by denying them the "rebuttable presumption 981 that [the] employer did not intentionally employ an unauthorized alien or knowingly *981 employ an unauthorized
alien" in the event of an enforcement action. A.R.S. § 23-212(I). This replicates the rebuttable presumption that the E-Verify MOU gives to employers in federal enforcement proceedings.
The "rebuttable presumption" proves little more than what is already true: an employer who confirms a new hire's employment eligibility through E-Verify has strong evidence that it did not knowingly or intentionally employ an unauthorized alien. Even if section 23-212(I) and the MOU did not call it a "rebuttable presumption," exonerating evidence from the federal government's own records and investigation would be dispositive in the employer's favor unless it can be proved that the federal data are wrong and the employer knew it. That is a tall task in most situations. Standing alone, it is not coercion when the law recognizes the persuasive or even compelling force of evidence for those who ferret it out. Seeking good evidence is usually a choice, and a plaintiff cannot rely upon its own choice to establish injury and standing. DMJ Assocs., L.L.C. v. Capasso, 288 F.Supp.2d 262, 267 (E.D.N.Y.2003) (citing Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1095 (2d Cir. 1997)).
However, the rebuttable presumption of section 23-212(I) does not stand alone. Ordinarily an employer who complies in good-faith with the federal I-9 verification system obtains an affirmative defense that it did not knowingly employ an unauthorized alien. 8 U.S.C. § 1324a(a)(3). An employer presumptively is not in violation of federal law if it examines documentation listed on the I-9 in good faith and the documentation "reasonably appears on its face to be genuine." 8 U.S.C. § 1324a(b). But where an employer has been through the E-Verify system, the defense of good faith I-9 compliance may recede into insignificance. For determining good faith, facially genuine but fraud-friendly I-9 identifying documents will not matter much if the employer also knows that the government's data and investigation, after dialog with the employee, show the employee is unauthorized. EVerify does not repeal the I-9 defense, but rather swamps it with far better evidence.
The same may be true under the Arizona law. The Act replicates the federal law affirmative defense for good faith I-9 compliance, A.R.S. § 23-212(J), but in any enforcement proceeding the State will obtain the federal government's data on the employee's immigration status under 8 U.S.C. § 1373(c). The State court may consider only that evidence "[o]n determining whether the employee is an unauthorized alien." A.R.S. § 23-212(H). The employer's liability for license sanctions will likely turn only on whether the State proves the employer's knowledge or intent to employ an unauthorized alien.
Because the Arizona Act requires employers to use E-Verify, the Act may be read to charge employers with knowledge of the E-Verify data that they wrongfully refuse to obtain, just as the MOU charges E-Verify users with knowledge of the data for federal enforcement purposes. To read the Act differently risks reducing it to state-level duplication of the same failed federal system of enforcement that the Legislature meant to strengthen. The State plainly made E-Verify mandatory. A.R.S. § 23-214. It did so in the hopes of taking "the most aggressive action in the country against employers who knowingly or intentionally hire undocumented workers" because "Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs." (Signing statement of Gov. Napolitano, July 2, 2007, Facts, Ex. 2.)
982 The court need not discern now the exact meaning and effect of A.R.S. §§ 23-212(I), *982 23-212(J), and 23-214. The Arizona courts may do that in the course of administering the Act. It is enough at the threshold of this case

that Plaintiffs reasonably fear that if they do not use Verify and a new employee turns out to be unauthorized, they may have no good faith defense to the Act's harsh sanctions. State courts may read the Act to hold them accountable for the knowledge from which they unlawfully averted their eyes.
This case is different from National Audubon Society and other cases where cost of compliance was forced and therefore provided standing. Unlike those cases, Plaintiffs' failure to use E-Verify does not violate the primary prohibition of the statute, which here is against hiring known unauthorized aliens. Failure to comply with E-Verify may increase the number of unauthorized aliens that an employer employs, especially in some industries; but unlike National Audubon Society, it will not directly bring greater attention from prosecutors. Therefore, the refusal to comply with E-Verify will not increase an employer's apprehension of being prosecuted to the same extent as in other cases.
On balance, the court concludes in the circumstances of this case that Plaintiffs' participation in E-Verify is not voluntary and is "fairly traceable" to the Act. The design of the Act is to coerce compliance with E-Verify less by the nearness of prosecution than by the intolerable punishment resulting from prosecutions, which usually will be undefendable without Verify compliance. In terrorem laws force low-cost compliance even with thin enforcement.
Yet the Act does not rely on that alone. Widespread enforcement is promised, funded with appropriations. The likelihood of general prosecution is proven. The prospect of actual enforcement against any employer forgoing EVerify is not so remote as to unlink prosecution from the felt compulsion to use E-Verify. The operation of the Act therefore coerces Plaintiffs to endure economic injury, and if they have sued a proper defendant, they have standing to challenge the provisions of the Act that require them to use E-Verify.
Plaintiffs must demonstrate that they meet Article III's case or controversy requirement independently for each provision of the Act they seek to challenge. Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.2001) ("[A] plaintiff may have standing to challenge some provisions of a law, but not others.") (citing 4805 Convoy, Inc. v. San Diego, 183 F.3d 1108, 1112-13 (9th Cir.1999)); CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1273 (11th Cir.2006) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 233, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), modified in part on other grounds in. City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 782, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)). Therefore, even if Plaintiffs have sued a proper defendant, their economic injury allows them to challenge only those aspects of the Act that logically compel them to use E-Verify.
VI. Suit Against the Governor, Attorney General, and Director Does Not Satisfy Constitutional Causation and Redressability Requirements
A. In General a Proper Defendant Must Have Authority to Enforce the Challenged Law or Have Threatened to Do So
The Governor, the Attorney General, and the Director contend that they are not proper defendants to this action. Before addressing the precise question of whether Plaintiffs may properly sue them for coerced participation in E983 Verify, it is helpful to understand how the principles of causation and redressability apply in suits *983 against state, officers. "It is well-established that when a plaintiff brings a preenforcement challenge to the, constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision." Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir.2007) (citations omitted). There must be "the requisite causal connection between their responsibilities and any injury that the plaintiffs might suffer, such that relief against the defendants Would provide redress." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir.2004) (citations omitted).
The Act allows, only county attorneys to bring enforcement actions against employers for noncompliance. A.R.S. § 23-212(C). The Director has carried out his duty to send notice to Arizona employers explaining the Act's requirements and providing instructions on how to register for E-Verify. 2007 Ariz. Sess. Laws, ch. 279 § 3. (Facts, Ex. 6.) An injunction to send a curative notice would be empty, for Plaintiffs have advice from their counsel in this litigation and need no further notice about the Act from the Director. The Act does not charge the Governor with any specific duty, and her general duty to ensure that the laws are faithfully executed is not sufficient to make her a party to this challenge. Shell Oil Co. v. Noel, 608 F.2d 208, 212-13 (1st Cir.1979). Cf. L.A. County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) ("[A] generalized duty to enforce state law . . . will not subject an

official to suit.") (citations omitted). An injunction against either of these, officials would not prevent enforcement actions under the Act or otherwise diminish its coercive effect.
The Attorney General has the authority to investigate and refer complaints to county attorneys for enforcement. A.R.S. § 23-212(B), (C). No language in the Act deprives a county attorney of the normal discretion to decide whether to proceed with an enforcement action, even where the Attorney General, has referred a complaint to the county attorney. Therefore, even if a county attorney directly threatened enforcement proceedings against Plaintiffs, this case would fall under the rule that "[w]here an attorney general cannot direct, `in a binding fashion, the prosecutorial activities of the officers who actually enforce the law or bring his own prosecution, he may not be a proper defendant." Wasden, 376 F.3d at 919 (citations omitted).
Plaintiffs would have standing to sue the Attorney General if he specifically threatened to refer a complaint against Plaintiffs to a county attorney for enforcement, or if he specifically threatened to bring enforcement proceedings himself, even though he lacks the power to do so. Culinary Workers Union v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.1999) (distinguishing Southern Pacific Transportation Co. v. Brown, 651 F.2d 613 (9th Cir.1980), and Snoeck v. Brussa, 153 F.3d 984 (9th Cir.1998), where the attorneys general could not be sued because they had no authority and made no threats). The Attorney General has not, however, made any `specific threat against the Plaintiffs. The court must therefore determine whether the Attorney General's powers are the source of Plaintiffs' economic injury.
B. The Attorney General Does Not Cause Plaintiffs' Economic Injury
A plaintiff enduring an economic injury fairly traceable to a challenged statute must also sue a defendant whose acts cause his economic injury and against whom redress will be effective. San Diego County Gun Rights 984 Comm., 98 F.3d at 1130; Bronson v. Swensen, 500 F.3d 1099, 1110, 1112 (10th Cir.2007). Since the E-Verify *984 requirement has no explicit enforcement provision, the consequence for failing to use it arises only in license sanction proceedings. In the special case of injury from cost of compliance, it is, settled that a judgment against an officer who can bring enforcement proceedings is proper redress, even if the officer has made no specific threat of enforcement. National Audubon Soc'y, 307 F.3d at 856. It is also settled that the court can" provide no redress against a state officer without power to enforce the statute. Nova Health Systems v. Gandy, 416 F.3d 1149, 1158 (10th Cir.2005). To say otherwise would "confuse[] the statute's immediate coercive effect on the plaintiffs with any coercive effect that might be applied by the defendants." Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir.2001) (en banc).
The causation element of standing requires that the Attorney General have enough connection to Plaintiffs' injury that a judgment against him will protect them from having to participate in E-Verify. The parties cite no authority, and the court has found none, where a plaintiff sought relief for cost-of-compliance injury against an officer who had a facilitative role in enforcement, such as investigation or referral, but who had no direct enforcement power. Therefore, the general principle governing this issue is that redress is speculative if it turns on the independent acts of third parties, here the county attorneys. San Diego County Gun Rights Comm., 98 F.3d at 1130 (plaintiffs did not have standing to sue because it was "third-party weapon dealers and manufacturers 0907not the government defendants0907who [had] raised the prices of assault weapons").
Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir.2004), does not lead to a different conclusion. There, the Idaho Attorney General was held amenable to suit by a physician to enjoin a parental consent statute for minors' abortions. Id. at 920. Though not threatened explicitly with enforcement, he stated "a clear intention to continue to perform abortions" for his minor patients and therefore had "a reasonable fear [the] statute would be enforced against [him]." Id. at 917 (citing California Pro-Life Council Inc. v. Getman, 328 F.3d 1088, 1094-95 (9th Cir.2003)). The attorney general was a proper defendant, because, by law, he could "assist" a prosecuting attorney, and state courts had ruled that "unless the county prosecutor objects, the attorney general may, in his assistance, do every act that the county attorney can perform.'" Id. 919-20 (quoting Newman v. Lance, 129 Idaho 98, 922 P.2d 395, 399-401 (1996)) (emphasis omitted). Because the attorney general was able to "deputize himself' to enforce the statute in the place of the county attorney, the, court concluded that an injunction against him would redress the plaintiffs injury. Id.

The Arizona Attorney General has general supervisory authority over the county attorneys, A.R.S. § 41-193(4), and the authority to "assist" the county attorneys in their duties "at the direction of the Governor, or when deemed necessary." A.R.S. § 41-193(A)(5). The Attorney General may prosecute crimes when requested by a county attorney. State v. Duran, 118 Ariz. 239, 242-43, 575 P.2d 1265, 1268-69 (Ct. App.1978). On the other hand, no Arizona court has held that the Attorney General "may, in his assistance, do every act" that a county attorney can perform, even without objection of the county attorney. Wasden, 376 F.3d at 920.
Unlike the physician in Modem, Plaintiffs disavow any intention of violating the law. Further, Wasden was a challenge to an abortion law, and several courts of appeals have held that the Supreme Court relaxed standing 985 requirements for abortion cases in Doe v. Bolton, 410 U.S. 179, 93 *985 S.Ct. 739, 35 L.Ed.2d 201 (1973). Margaret S. v. Edwards, 794 F.2d 994, 997 (5th Cir.1986); Planned Parenthood Ass'n Cincinnati, 822 F.2d 1390, 1396 n. 4 (6th Cir.1987); Reprod. Health Serv. v. Webster, 851 F.2d 1071, 1075 (8th Cir.1988) rev'd on other grounds, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). See also Wasden, 376 F.3d at 917 (citing Doe, 410 U.S. at 188, 93 S.Ct. 739).
The Attorney General does not contend that his general power to "assist" county attorneys grants him power to enforce the Act in place of the county attorneys. In a challenge to a statute that vests enforcement in the county attorneys, an attorney general who has non-binding supervisory power is not a proper defendant unless there is "a real likelihood that the state official will employ his supervisory powers against plaintiffs' interests." Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir.1992). See also Reprod. Health Servs. of Planned Parenthood of the St. Louis Region v. Nixon, 428 F.3d 1139, 1145 (8th Cir.2005) (holding that the attorney general was not a proper party despite his authority to aid prosecutors because his use of that power was not imminent); Falwell v. City of Lynchburg, 198 F.Supp.2d 765, 776 (W.D.Va.2002) ("In this case, the Plaintiffs have alleged only that the Attorney General may, at some future time, via some hypothetical mechanism, enforce [the law] against them.")
The true source of Plaintiffs' forced use of E-Verify is the county attorneys' power to instigate an enforcement, action. As against the Attorney General, Plaintiffs have not shown a "substantial likelihood that the relief requested will redress its injury" of forced E-Verify compliance. Gandy, 416 F.3d at 1158 (citations omitted).
IT IS THEREFORE ORDERED that the Clerk enter judgment dismissing this action without prejudice for lack of subject matter jurisdiction, there being no justiciable case or controversy against the Defendants.
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