Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 1 of 25

1 Tony West Assistant Attorney General
2 Dennis K. Burke United States Attorney
3 Arthur R. Goldberg Assistant Director, Federal Programs Branch
4 Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681)
5 U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W.
6 Washington, DC 20530 Tel. (202) 616-8489/Fax (202) 616-8470
7 varudhini.chilakamarri@usdoj.gov Attorneys for the United States
8

9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF ARIZONA

12 The United States of America,

13

Plaintiff,

No. ________________

14

v.

COMPLAINT

15 The State of Arizona; and Janice K. Brewer,

16

Governor of the State of Arizona, in her Official Capacity,

17

18

Defendants.

19

Plaintiff, the United States of America, by its undersigned attorneys, brings this civil

20 action for declaratory and injunctive relief, and alleges as follows:

21

INTRODUCTION

22

1. In this action, the United States seek s to declare invalid and prelim inarily and

23 permanently enjoin the enforcement of S.B. 1070, as amended and enacted by the State of

24 Arizona, because S.B. 1070 is preempted by federal law and therefore violates the

25 Supremacy Clause of the United States Constitution.

26

2. In our constitutional system, the federal government has preeminent authority to

27 regulate immigration matters. This authority derives fromthe United States Constitution and

28 numerous acts of Congress. The nation’s immigration laws reflect a careful and considered

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 2 of 25

1 balance of national law enforcement, foreign relations, and humanitarian interests. Congress

2 has assigned to the United States Department of Homeland Security, Department of Justice,

3 and Department of Sta te, along with other federal agencies, the task of enforcing and

4 administering these im migration-related laws. In adm inistering these laws, the federal

5 agencies balance the com plex – and often com peting – objectives that anim ate federal

6 immigration law and policy. Although states may exercise their police power in a manner

7 that has an incidental or indirect effect on aliens, a state m ay not establish its own

8 immigration policy or enforce state laws in a m anner that interferes with the federal

9 immigration laws. The Constitution and the federal im migration laws do not pe rmit the

10 development of a patchwork of state and local immigration policies throughout the country.

11

3. Despite the preeminent federal authority and responsibility over immigration, the

12 State of Arizona recently enacted S.B. 1070, a sweeping set of provisions that are designed

13 to “work together to discourage and deter the unlawful entry and presence of aliens” by

14 making “attrition through enforcement the public policy of all state and local governm ent

15 agencies in Arizona.” See S.B. 1070 (as amended by H.B. 2162). S.B. 1070’s provisions,

16 working in concert and separately, seek todeter and punish unlawful entry and presence by

17 requiring, whenever practicable, the determination of immigration status during any lawful

18 stop by the police where there is “reasonable suspicion” that an individual is unlawfully

19 present, and by establishing new state criminal sanctions against unlawfully present aliens.

20 The mandate to enforce S.B. 1070 to the fullest extent possible is reinforced by a provision

21 allowing for any legal resident of Arizona to collect money damages by showing that “any

22 official or agency . . . [has]adopt[ed] or implement[ed] a policy” that “limits or restricts the

23 enforcement of federal immigration laws . . . to less than the full extent permitted by federal

24 law.”

25

4. S.B. 1070 pursues only one goal – “attrition” – a nd ignores the m any other

26 objectives that Congress has established for the federal im migration system. And even in

27 pursuing attrition, S.B. 1070 disrupts federal enforcement priorities and resources that focus

28 on aliens who pose a threat to national security or public safety. If allowed to go into effect,

2

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1 S.B. 1070’s mandatory enforcement scheme will conflict with and underm ine the federal

2 government’s careful balance of im migration enforcement priorities and objectives. For

3 example, it will impose significant and counterproductive burdens on the federal agencies

4 charged with enforcing the national immigration scheme, diverting resources and attention

5 from the dangerous aliens who the federal government targets as its top enforcement priority.

6 It will cause the detention and harassm ent of authorized visitors, immigrants, and citizens

7 who do not have or carry identification documents specified by the statute, or who otherwise

8 will be swept into the ambit of S.B. 1070’s “attrition through enforcement” approach. It will

9 conflict with longstanding fede ral law governing the registration, sm uggling, and

10 employment of alie ns. It will altogether ignore hum anitarian concerns, such as the

11 protections available under federal law for an alien who has a well-founded fe ar of

12 persecution or who has been the victimof a natural disaster. And it will interfere with vital

13 foreign policy and national security interests by disrupting the United States’ relationship

14 with Mexico and other countries.

15

5. The United States understands the Stat e of Arizona’s legitimate concerns about

16 illegal immigration, and has undertaken significant efforts to secure our nation’s borders.

17 The federal government, moreover, welcomes cooperative efforts by states and localities to

18 aid in the enforcement of the nation’s immigration laws. But the United States Constitution

19 forbids Arizona fromsupplanting the federal government’s immigration regime with its own

20 state-specific immigration policy – a policy that, in purpose and effect, interferes with the

21 numerous interests the federal government must balance when enforcing and administering

22 the immigration laws and disrupts the balance actually established by the fede

ral

23 government. Accordingly, S.B. 1070 is invalid under the Supremacy Clause of the United

24 States Constitution and must be struck down.

25

JURISDICTION AND VENUE

26

6. This action arises under the Constitution of the United States, Article VI, Clause

27 2 and Article I, Section 8, and the Immigration and Nationality Act (“INA”), 8 U.S.C.

28 § 1101, et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331

3

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1 and 1345, and the United States seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202.

2

7. Venue lies in the District of Arizonapursuant to 28 U.S.C. § 1391(b). Defendants

3 are the Governor of Arizona, who resides in Arizona, and the State of Arizona. A substantial

4 part of the events or omissions giving rise to this claim occurred in Arizona.

5

PARTIES

6

8. The United States of America is the plaintiff in this action, suing on its own behalf,

7 as well as on behalf of the United S tates Department of Homeland Security (“DHS”), the

8 Department of Justice (“DOJ”), and the Department of State.

9

9. DHS is an executive department of the United States. See Homeland Security Act,

10 Pub. L. No. 107-296, 116 Stat. 2135 (2002). DHS is responsible for the administration and

11 enforcement of laws relating to im migration, as well as the investigation of im migration

12 crimes and protection of the United States border against the illegal entry of aliens. See 8

13 U.S.C. § 1103. DHS is also responsible for providing citizenship and immigration services

14 through U.S. Citizenship and Immigration Services.

15

10. DOJ is an executive departm ent of the United States. See Act to Establish the

16 Department of Justice, ch. 150, 16 Stat. 162 (1870). The Attorney General, as the head of

17 DOJ, shares certain im migration-related responsibilities with the Secretary of Hom eland

18 Security, and he may, among his various immigration functions, order aliens removed from

19 the United States and order the cancellation of removal. See, e.g., 8 U.S.C. §§ 1103, 1158,

20 1182, 1227, 1229a, 1229b.

21

11. The Department of State is an executive departm ent of the United States. See

22 State Department Basic Authorities Act of 1956, Pub. L. No. 84-885, as amended; 22 U.S.C.

23 § 2651 et seq. The Department of State is partially responsible for administering aspects of

24 the federal immigration laws, including but not limited to the administration of visas.

25

12. Defendant, the State of Arizona , is a state of the United States that entered the

26 Union as the 48th State in 1912.

27

13. Defendant, Janice K. Brewer, is the Governor of Arizona, and is being sued in her

28 official capacity.

4

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1

STATEMENT OF THE CLAIM

2

Federal Authority and Law Governing Immigration and Status of Aliens

3

14. The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and

4 the Laws of the United States which shall be made in Pursuance thereof . . . shall be the

5 supreme Law of the Land . . . any Thing in th e Constitution or Laws of any State to the

6 Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.

7

15. The Constitution a ffords the federal governm ent the power to “establish an

8 uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Com merce

9 with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, the federal governemnt has broad

10 authority to establish the terms and conditions for entry and continued presence in the United

11 States, and to regulate the status of aliens within the boundaries of the United States.

12

16. The Constitution affords the President of the United States the authority to “take

13 Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. Further, the President

14 has broad authority over foreign affairs. Immigration law, policy, and enforcement priorities

15 are affected by and have impacts on U.S. foreign policy, and are themselves the subject of

16 diplomatic arrangements.

17 17. Congress has exercised its authority to make laws governing immigration and the
18 status of aliens within the United States by enacting the various provisions of the INA and
19 other laws regulating immigration. Through the INA, Congress set forth the framework by
20 which the federal government determines which aliens may be eligible to enter and reside
21 in the United States, which aliens may be removed from the United States, the consequences
22 for unlawful presence, the penalties on persons who violate the procedures established for
23 entry, conditions of residence, and employment of aliens, as well as the process by which
24 certain aliens may ultimately become naturalized citizens of the United States. See 8 U.S.C.
25 § 1101, et seq. The INA also vests the executive branch with considerable discretion in
26 enforcing the provisions of the federal immigration laws, generally allowing federal agencies
27 to ultimately decide whether particular immigration remedies are appropriate in individual
28

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1 cases.

2

18. In exercising its significant enforcem ent discretion, the federal governm ent

3 prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to

4 national security or a risk to public safety. Consistent with these enforcement priorities, the

5 federal government principally targets aliens engaged in or suspected of terrorism or

6 espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons,

7 and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants;

8 and fugitive aliens, especially those with criminal records.

9 19. In crafting federal immigration law and policy, Congress has necessarily taken

10 into account multiple and often competing national interests. Assuring effective enforcement

11 of the provisions against illegal m igration and unlawful presence is a highly important

12 interest, but it is not the singular goal of the federal immigration laws. The laws also take

13 into account other uniquely national interests, including facilitating trade and com merce;

14 welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair

15 and equitable treatment wherever they may reside; responding to humanitarian concerns at

16 the global and individual levels; and otherwise ensuring that the treatment of aliens present

17 in our nation does not harm our foreign relations with the countries from which they come

18 or jeopardize the treatm ent of U.S. citizens abroad. Because im migration control and

19 management is “a field where flexibility and the adaptation of the congre ssional policy to

20 infinitely variable conditions constitute the essence of the program,” U.S. ex rel. Knauff v.

21 Shaughnessy, 338 U.S. 537, 543 (1950) (internal citations om itted), Congress vested

22 substantial discretion in the President and the adm inistering federal agencies to adjust the

23 balance of these multiple interests as appropriate – both globally and in individual cases.

24

25

20. Congress has tasked DHS and DOJ with overseeing significant portions of the

26 United States’ immigration interests, and has provided each with specific powers to promote

27 the various goals of the federal immigration scheme and to enforce the federal immigration

28 authority under the INA. See 8 U.S.C. § 1103. The Department of State is also empowered

6

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1 by the INA to administer aspects of the federal immigration laws, including visa programs.

2 See, e.g., 8 U.S.C. § 1104. DHS may generally order an alien immediately removed where

3 the alien either fails to present the appropriate documentation or commits fraud at the time

4 of the alien’s inspection. DHS may also place an alien into removal proceedings, and may

5 ultimately remove an alien who entered the United States unla wfully or violated the

6 conditions of his admission. See 8 U.S.C. §§ 1182, 1225, 1227, 1228(b), 1229, 1229a, 1231.

7 DOJ may order an alien removed for many reasons, including if the alien has stayed in the

8 United States longer than permitted or has engaged in certain unlawful conductS. ee 8 U.S.C.

9 §§ 1227, 1229a. In addition to removal, the statute authorizes DHS and DOJ to employ civil

10 and criminal sanctions against an alien for immigration violations, such as unlawful entry,

11 failing to appropriately register with the federal government, and document fraud. See, e.g.,

12 8 U.S.C. §§ 1325, 1306, 1324c. However, in the exe rcise of discretion, the administering

13 agencies may decide not to apply a specific sanction and may, among other steps, permit the

14 alien to depart the country voluntarily at hisor her own expense and may even decide not to

15 pursue removal of the alien if deferred federal enforcement will help pursue some other goal

16 of the immigration system. See 8 U.S.C. § 1229c.

17

21. Under federal law, both DHS and DOJ may, for humanitarian or other reasons,

18 decline to exercise certain immigration sanctions or grant an otherwise unlawfully present

19 or removable alien an immigration benefit – and potentially adjust that alien’s immigration

20 status – if the alien meets certain conditions. See, e.g., 8 U.S.C. § 1158 (providing asylum

21 eligibility for aliens who have a well-foundedefar of persecution on account of race, religion,

22 nationality, membership in a particular social group, or political opinion, if rem oved); 8

23 U.S.C. § 1254a (providing temporary protected status for otherwise eligible nationals of a

24 foreign state that the Secretary of Homeland Security has specially designated as undergoing

25 ongoing armed conflict, a natural disaster, or another extraordinary circumstance); 8 U.S.C.

26 § 1227(a)(1)(E)(iii) (providing discretion to waive ground of deportability “for huamnitarian

27 purposes, to assure family unity, or when it is otherwise in the public interest” for aliens who

28

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1 are otherwise deportable for encouraging unlawful entry of an immediate family member);

2 8 U.S.C. § 1229b (granting the Attorney General discretion to cancel rem oval for certain

3 aliens). DHS also has the authority to perm it aliens, including those who would be

4 inadmissible, to temporarily enter the United States for “urgent hum anitarian reasons” or

5 “significant public benefit.” 8 U.S.C. § 1182(d)(5). DHS amy also refrain fromenforcement

6 actions, in appropriate circum stances, against persons unlawfully present in the United

7 States. See 8 C.F.R. § 274a.12(c)(14) (discussing deferred action).

8

22. In light of these statutory provisions, DHS and DOJ exercise discretion with

9 respect to, among other things, whether to allow an unlawfully present alien to voluntarily

10 depart, whether to place an alien into rem oval proceedings, whether to exact crim inal

11 sanctions on an alien who has com mitted an immigration violation, whether to allow an

12 unlawfully present alien to remain in the country without physical detention, and whether to

13 grant an alien humanitarian or some other form of relief. Decisions to forego removal or

14 criminal penalties result not only fromresource constraints, but also fromaffirmative policy

15 considerations – including hum anitarian and foreign policy interests – established by

16 Congress and balanced by the executive branch.

17 23. Congress, which holds exclusive authority for establishing alien status categories
18 and setting the conditions of aliens’ entry and continued presence, has affirmatively decided
19 that unlawful presence – standing alone – should not subject an alien to criminal penalties
20 and incarceration although unlawful presence may subject the alien to the civil rem edy of
21 removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)&(C). However, unlawful
22 presence becomes an element of a crim inal offense when an alien is found in the United
23 States after having been previously removed or after voluntarily departing from the United
24 States while a removal order was pending. See 8 U.S.C. § 1326. Further, unlawful entry into
25 the United States is a criminal offense, see 8 U.S.C. § 1325. Congress specifically
26 authorized federal immigration officers to patrol the United States border, as well as search
27 vehicles and lands near the border, to prevent aliens from unlawfully entering the United
28

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1 States, and it empowered these officers to arrest an alien who is seen attem pting unlawful

2 entry at the border or who the officer has reason to believe has unlawfully entered the county

3 and is likely to escape before a warrant can be obtained. See 8 U.S.C. § 1357.

4

24. Congress has created a comprehensive alien registration system for monitoring

5 the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201, 1301-

6 1306; see also 8 C.F.R. Part 264 (regulations regarding “Registration and Fingerprinting of

7 Aliens in the United States”). Under this federal alien registration system, aliens seeking to

8 enter the United States, either permanently or temporarily (other than diplomatic and official

9 visitors), must be registered by the Department of State at the time of visa application. See

10 8 U.S.C. §§ 1201(b), 1301, 1302. Any alien who is 14 or over, who has not otherwise been

11 registered and fingerprinted under the INA, and who remains in the United States for 30 days

12 or longer, must apply to be registered and fingerprinted by DHS. See 8 U.S.C. § 1302(a).

13 The INA provides that any alien who is required to apply for registration and willfully fails

14 to do so may be fined and imprisoned not more than six months. See 8 U.S.C. § 1306(a); 18

15 U.S.C. § 3571. Aliens are required to report their change of address to DHS within ten days

16 of such change. See 8 U.S.C. § 1305.

17 25. As part of this federal alien registration system , Congress further specified the

18 content of the registration form s, see 8 U.S.C. § 1303, what special circum stances may

19 require deviation, id., and the confidential nature of registration information, see 8 U.S.C.

20 § 1304. Aliens who are 18 years and older are required to carry in their possession their

21 certificate of alien registration or alien registration receipt card.See 8 U.S.C. § 1304(e). The

22 INA provides that any alien who fails to com ply with this requirem ent may be fined and

23 imprisoned not more than 30 days. See id.; 18 U.S.C. § 3571.

24

25

26. However, there are several circumstances in which an alien would not be

26 provided with evidence of registration notwithstanding the federal government’s knowledge

27 of the alien’s presence. Federal law provides a variety of humanitarian options for aliens –

28 including unlawfully present aliens – who have been victim ized or fear persecution or

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1 violence, including but not limited to asylum, special visas for victims of trafficking, and

2 special visas for victims of violent crime. In order to qualify for such program s an alien

3 needs to apply and satisfy the criteria that the pr ogram at issue requires. During the

4 pendency of the application process, an alien m ay not have evidence of registration even

5 though the federal government is aware of the alien’s presence, has decided against removing

6 the alien, and certainly has no interest in prosecuting the alien for a crim e. The se

7 humanitarian programs demonstrate that one aspect of federal immigration policy is to assist

8 and welcome such victims in the United States, notwithstanding possible temporary unlawful

9 presence. It would therefore violate federal policy to prosecute or detain these types of aliens

10 on the basis of their immigration status – which is often known to the federal governm ent

11 and, for affirmative policy reasons, not used as the basis for a reomval proceeding or criminal

12 prosecution.

13

27. Congress has further exercised its authoitry over the entry and movement of aliens

14 by criminalizing the smuggling of unlawful aliens into the country, as well as the facilitation

15 of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. Specifically,

16 federal law prohibits the knowing attempt to bring an alien into the United States “at a place

17 other than a designated port of entry or place other than as designated by the [Secretary of

18 Homeland Security],” 8 U.S.C. § 1324(a)(1)(A)(i), and imposes crim inal penalties on a

19 person who, “knowing or in reckless disregard” of the fact that an alien has unlawfully

20 entered or remained in the United States, attempts to “transport or move” the alien within the

21 United States “in furtherance of such violatoi n of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). These

22 criminal sanctions are directed at the sm uggler and are not m eant to serve as a crim inal

23 sanction for the unlawfully present alien or for incidental transportation. Congress chose not

24 to penalize an unlawfully present alien’s mere movement within the country or across state

25 lines unless other factors are present, nor do the federal im migration laws penalize the

26 provision of transportation services in such situations.

27

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1

28. Federal law also imposes criminal penalties on a person who, “conceals, harbors,

2 or shields from detection,” an alien in “knowing or in reckless disregard” of the fact that the

3 alien has unlawfully entered or remained in the United States. 8 U.S.C. § 1324(a)(1)(A)(iii).

4 Similarly, it is unlawful to “encourage[] or induce[] an alien to come to, enter, or reside in

5 the United States, knowing or in reckless disregard of the fact that” such entry or residence

6 will be in violation of the la w. 8 U.S.C. § 1324(a)(1)(A)(iv). Federal law does not, as a

7 general matter, restrict the movement of aliens – whether lawfully or unlawfully present –

8 between different states. Federal law additionally exempts from certain of these prohibitions

9 religious organizations which “encourage, invite, call, allow, or enable” an alien to volunteer

10 as a minister or missionary, and which provide the alien with basic living expenses8. U.S.C.

11 § 1324(a)(1)(C).

12

29. Congress has further exercised its authority over im migration and the status of

13 aliens by prohibiting the hiring of aliens not authorized to work in the United Sta tes. 8

14 U.S.C. § 1324a(a)(1). Specifically, federal law makes it unlawful “to hire, or to recruit or

15 refer for a fee” an alien, knowing that the alien insot authorized to work in the United States.

16 Id. Federal law also makes it “unlawful for a person or other entity, after hiring an alien for

17 employment,” to “continue to employ the alien in the United States knowing the alien is (or

18 has become) an unauthorized alien with respect to such employment.” 8 U.S.C.

19 § 1324a(a)(2). In addition, Congress established civil penalties for im migration-related
20 document fraud, such as the presentation of fraudulent doc uments to dem onstrate work
21 eligibility. 8 U.S.C. § 1324c. In enacting penalties on employers of unlawful aliens, as well
22 as on unlawful aliens who engage in document fraud, Congress chose not to impose criminal
23 penalties on aliens for solely seeking or obtaining employment in the United States without
24 authorization and in fact decided that criminal sanctions for seeking or obtaining employment
25 would run counter to the purposes of the immigration system. Although unlawfully present
26 aliens may be subject to removal, no criminal penalty attaches simply because an alien has
27 solicited or performed work without proper authorization.
28

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1

30. DHS is primarily charged with administering and enforcing the INA and other

2 laws relating to immigration, which it accomplishes mainly through its components, U.S.

3 Immigration and Custom s Enforcement (“ICE”), U.S. Customs a nd Border Protection

4 (“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”). See 8 U.S.C. § 1103.

5 DHS also receives state and local cooperation in its enforcement efforts. See 8 U.S.C.

6 § 1357(g). In addition, Congress prescribed by statute a number of ways in which states may
7 assist the federal government in its enforcement of the immigration laws. See, e.g., 8 U.S.C.
8 § 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration
9 enforcement authority when an “actual or imminent mass influx of aliens . . . presents urgent
10 circumstances requiring an im mediate Federal response”); 8 U.S.C. § 1357(g)(1)–(9)
11 (authorizing DHS to enter into agreements to provide appropriately trained and supervised
12 state and local officers with the authority to perform functions related to the investigation,
13 apprehension, and detention of aliens); 8 U.S.C. § 1373(a)-(b) (preem pting state and local
14 laws that prohibit inform ation-sharing between local law enf orcement and federal
15 immigration authorities and proscribing such a prohibition); 8 U.S.C. § 1252c (authorizing
16 state and local law enforcem ent to arrest aliens who are unlawfully present in the United
17 States and were previously removed after being convicted of a felony in the United States).
18 31. Through a variety of program s, DHS works cooperatively with states and
19 localities to accomplish its mission to enforce the federal immigration laws. Among these
20 efforts is the Law Enforcement Agency Response program (“LEAR”), an Arizona-specific
21 program that is operational 24 hours a day, 7 days a week, for responding to calls fromstate
22 and local law enforcem ent officers seeking assistance from ICE regarding suspected
23 unlawfully present aliens. ICE also adm inisters the Law Enforcem ent Support Center
24 (“LESC”), also operational 24 hours a day, 7 days a week, which serves as a national
25 enforcement operations center and – am ong other responsibilities – prom ptly provides
26 immigration status and identity inform ation to local, state, and federal law enforcem ent
27 agencies regarding aliens suspected of, arrested for, or convicted of crim inal activity.
28

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1 Further, ICE and CBP officers respond to requests from state and local law enforcem ent

2 officers on a variety of immigration matters, including assisting with translation, determining

3 alienage, and evaluating immigration documentation.

4

32. But the opportunity that federal law provides for participation by state and local

5 officials does not m ean that states can enact their own im migration policies to r ival the

6 national immigration policy; the form ulation of im migration policy and balancing of

7 immigration enforcement priorities is a matter reserved for the federal government. Such

8 regulations do not fall within the state’s traditional police powers and remain the exclusive

9 province of the federal government.

10 Arizona’s S.B. 1070

11

12

33. On April 23, 2010, Governor Brewer signed into law S.B. 1070, which contains

13 several provisions designed to “work together to discourage and deter the unlawful entry and

14 presence of aliens” in Arizona by making “attrition through enforcement the public policy

15 of all state and local government agencies in Arizona.” S.B. 1070 includes a provision that

16 requires, in the context of a lawful stop, detention, or arrest, the verification of an

17 individual’s immigration status when practicable where there is “reasonable suspicion” that

18 the individual is unlawfully present in the United States (Section 2). This m andatory

19 provision is reinforced through the creation of a private right of action, which allows any

20 legal resident of Arizona to collect m oney damages if he can show that “any official or

21 agency . . . [has] adopt[ed] or implent[ed] a policy” that “limits or restricts the enforcement

22 of federal immigration laws . . . to less thanthe full extent permitted by federal law” (Section

23 2). S.B. 1070 also creates or amends several state law criminal provisions, which impose

24 criminal penalties for an alien’s failure to federally register or carry his federal registration

25 documents (Section 3), for the so-called sm uggling, transporting, or harboring of an

26 unlawfully present alien (Sections 4 and 5), for encouraging an unlawfully present alien to

27 move to Arizona (Section 5), and for an unauthorized alien’s attempt to seek work (Section

28 5). Further, S.B. 1070 provides law enforcement officers with authority to make warrantless

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1 arrests of any person whom they have probable cause to believe has com mitted a public

2 offense that would m ake the person “rem ovable,” regardless of where the offense was

3 committed (Section 6).

4

34. On the same day that she signed S.B. 1070 into law, Governor Brewer issued an

5 executive order requiring law enforcem ent training to “provide clear guidance to law

6 enforcement officials regarding what constitutes reasonable suspicion,” and to “make clear

7 that an individual’s race, color or national origin alone cannot be grounds for reasonable

8 suspicion to believe any la w has been violated.” Arizona State Executive Order 2010-09

9 (Apr. 23, 2010).

10 35. One week after S.B. 1070 was signed into law, the Arizona Legislature passed,

11 and Governor Brewer signe d, H.B. 2162, which am ended S.B. 1070. H.B. 2162 m ade

12 modifications to S.B. 1070 for the purpose of responding to those who “expressed fears that

13 the original law would somehow allow or lead to racial profiling.” Statement by Governor

14 Jan Brewer (Apr. 30, 2010), available at http://azgovernor.gov/dms/upload/PR_043010_

15 StatementGovBrewer.pdf.

16

17

36. S.B. 1070 (as amended) attempts to second guess federal policies and re-order

18 federal priorities in the area of immigration enforcement and to directly regulate immigration

19 and the conditions of an alien’s entry and presence in the United States despite the fact that

20 those subjects are federal domains and do not involve any legitimate state interest. Arizona’s

21 adoption of a m aximal “attrition through enforcem ent” policy disrupts the national

22 enforcement regime set forth in the INA and reflected in federal immigration enforcement

23 policy and practice, including the federal government’s prioritization of enforcement against

24 dangerous aliens. S.B. 1070 also interferes with U.S. foreign affairs priorities and rejects any

25 concern for humanitarian interests or broader security objectives, and will thus harma range

26 of U.S. interests. Thus, because S.B. 1070 attempts to set state-specific immigration policy,

27 it legislates in an area constitutionally reserved to the federal government, conflicts with the

28 federal immigration laws and federal immigration policy, conflicts with foreign policy, and

14

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 15 of 25

1 impedes the accomplishment and execution of the full purposes and objectives of Congress,

2 and is therefore preempted.

3

37. S.B. 1070 implements Arizona’s stated immigration policy through a novel and

4 comprehensive immigration regime that, among other things, creates a series of state

5 immigration crimes (Sections 3-5) relating to the presence, employment, and transportation

6 of aliens, expands the opportunities for Arizona police to push aliens toward incarceration

7 for those crimes by enforcing a mandatory immigration status verification system (Section

8 2), and allows for arrests based on crimes with no nexus to Arizona (Section 6). By pursuing

9 attrition and ignoring every other objective em bodied in the federal im migration system

10 (including the federal government’s prioritization of the removal of dangerous aliens), S.B.

11 1070 conflicts with and otherwise stands as an obstacle to Congress’s demand that federal

12 immigration policy accommodate the competing interests of immigration control, national

13 security and public safety, hum anitarian concerns, and foreign relations – a balance

14 implemented through the policies of the President and various executive officers with the

15 discretion to enforce the federal im migration laws. See 8 U.S.C. § 1101, et seq.

16 Enforcement of S.B. 1070 would also effectively create state crimes and sanctions for

17 unlawful presence despite Congress’s considered judgment to not criminalize such status.

18 S.B. 1070 would thus interfere with federal policy and prerogatives in the enforcement of the

19 U.S. immigration laws.

20 38. Because S.B. 1070, in both its singularly stated purpose and necessary operation,
21 conflicts with the federal government’s balance of competing objectives in the enforcement
22 of the federal immigration laws, its passage already has had foreign policy implications for
23 U.S. diplomatic relations with other countries, including Mexico and many others. S.B. 1070
24 has also had foreign policy im plications concerning specific national interests regarding
25 national security, drug enforcem ent, tourism, trade, and a variety of other issues. See,
26 e.g.,Travel Alert, Secretaría de Relaciones Exteriores, Mexico, Apr. 27, 2010, available at
27 http://www.sre.gob.mx/csocial/contenido/comunicados/2010/abr/ /cp_121eng.html; Mexican
28

15

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 16 of 25

1 President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at

2 http://www.c-spanvideo.org/program/293616-2. S.B. 1070 has subjected the United States

3 to direct criticism by other countries and inte rnational organizations and has resulted in a

4 breakdown in certain planned bilateral and multilateral arrangements on issues such as border

5 security and disaster management. S.B. 1070 has in these ways undermined several aspects

6 of U.S. foreign policy re lated to immigration issues and other national concerns that are

7 unrelated to immigration.

8

39. Numerous other states are contemplating passing legislation similar to S.B. 1070.

9 The development of various conflicting state immigration enforcement policies would result

10 in further and significant damage to (1) U.S. foreign relations, (2) the United States’ ability

11 to fairly and consistently enforce the federal im migration laws and provide im migration-

12 related humanitarian relief, and (3) the United States’ ability to exercise the discretion vested

13 in the executive branch under the INA, and would result in the non-uniform treatment of 14 aliens across the United States.

15 Section 2 of S.B. 1070

16

17

40. Section 2 of S.B. 1070 (adding Ariz. Rev. Stat. 11-1051) mandates that for any

18 lawful “stop, detention or arrest m ade by a la w enforcement official” (or agency) in the

19 enforcement of any state or local law, including civil ordinances, where reasonable suspicion

20 exists that an individual is an alien and is “unlawfully present” in the United S tates, the

21 officer must make a reasonable attem pt to determine the individual’s im migration status

22 when practicable, and to verify it with the federal government pursuant to 8 U.S.C. § 1373(c)

23 or through a federally qualified law enforcement officer. Section 2 also requires that “[a]ny

24 person who is arrested shall have the person’s im migration status determined before the

25 person is released.”

26

41. Section 2 provides that any legal resident of Arizona may bring a civil action in

27 an Arizona court to challenge any official or agency that “adopts or implements a policy that

28 limits or restricts the enforcement of federal immigration laws . . . to less than the full extent

16

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 17 of 25

1 permitted by federal law.” Whereas Arizona police (like federal officers and police in other

2 states) formerly had the discretion to decide whether to verify immigration status during the

3 course of a lawful stop, the com bination of the verification requirement and the threat of

4 private lawsuits now removes such discretion and mandates verification. This provision also

5 mandates the enforcement of the remaining provisions of S.B. 1070.

6

42. The mandatory nature of Section 2, in tandemwith S.B. 1070’s new or amended

7 state immigration crimes, directs officer s to seek m aximum scrutiny of a person’s

8 immigration status, and m andates the im position of state crim inal penalties for what is

9 effectively unlawful presence, even in circum stances where the federal governm ent has

10 decided not to impose such penalties because of federal enforcem ent priorities or

11 humanitarian, foreign policy, or other federal interests.

12 43. In addition, the mandatory nature of this alien inspection scheme will necessarily

13 result in countless inspections and detentions of individuals who are lawfully present in the

14 United States. Verification is mandated for all cases where an Arizona police officer has a

15 “reasonable suspicion” that a person in a lawful stop is unlawfully present and it is

16 practicable to do so. But a “reasonable suspicion” is not definitive proof, and will often

17 result in the verification requirem ent being applied – wholly unnecessarily – to lawfully

18 present aliens and United States citizens. Further, because the federal authorities m ay not

19 be able to immediately verify lawful presence – and may rarely have information related to

20 stopped U.S. citizens – Section 2 will result in the prolonged detention of lawfully present

21 aliens and United States citizens. Section 2 of S.B. 1070 will therefore impose burdens on

22 lawful immigrants and U.S. citizens alike who are stopped, questioned, or detained and

23 cannot readily prove their immigration or citizenship status, including those individuals who

24 may not have an accepted formof identification because, for example, they are legal minors

25 without a driver’s license. Arizona’s alien inspection scheme therefore will subject lawful

26 aliens to the “possibility of inquisitorial practices and police surveillance,”

Hines v.

27

28

17

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 18 of 25

1 Davidowitz, 312 U.S. 52, 74 (1941) – a form of treatm ent which Congress has plainly

2 guarded against in crafting a balanced, federally-directed immigration enforcement scheme.

3

44. Mandatory state alien inspection schemes and attendant federal verification

4 requirements will impermissibly impair and burden the federal resources and activities of

5 DHS. S.B. 1070’s m andate for verification of alien status will necessarily result in a

6 dramatic increase in the num ber of verification requests being issued to DHS, and will

7 thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS

8 resources away from its policy priorities. As such, the federal government will be required

9 to divert resources from its own, carefully considered enforcement priorities – dangerous

10 aliens who pose a threat to national security and public safety – to address the work that

11 Arizona will now create for it. Such interference with federa l priorities, driven by state-

12 imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.

13 45. Section 2 conflicts with and otherwise stands as an obstacle to the full purposes

14 and objectives of Congress, and its enforcement would further conflict with the enforcement

15 prerogatives and priorities of the federal government. Moreover, Section 2 does not promote

16 any legitimate state interest.

17

18

Section 3 of S.B. 1070

19

46. Section 3 of S.B. 1070 (adding Ariz. Re v. Stat. 13-1509) makes it a new state

20 criminal offense for an alien in Arizona to violate 8 U.S.C. § 1304(e), which requires every

21 alien to “at all times carry with him and have in his personal possession any certificate of

22 alien registration or alien registration receipt card issued to him ,” or 8 U.S.C. § 1306(a),

23 which penalizes the willful failure to apply for registration when required. Section 3 of S.B.

24 1070 provides a state penalty of up to $100 and up to twenty days imprisonment for a first

25 offense and thirty days imprisonment for any subsequent violation.

26

47. Section 3 of S.B. 1070 is preem pted by the com prehensive federal alien

27 registration scheme – including 8 U.S.C. §§ 1201, 1301-1306, and 8 C.F.R. Part 264 – which

28 provides a “standard for alien registration in a single integrated and all-embracing system.”

18

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 19 of 25

1 Hines, 312 U.S. at 73. Section 3 of S.B. 1070 conflicts with and otherwise stands as an

2 obstacle to the full purposes and objectives of Congress in creating a uniform and singular

3 federal alien registration scheme.

4

48. Section 3 – the enforce ment of which S.B. 1070 effectively m andates through

5 operation of Section 2’s alien inspection and verification regime – demands the arrest and

6 prosecution of all aliens who do not have certain enum erated registration documents. But

7 several classes of aliens who are eligible frohumanitarian relief are simply not provided with

8 registration documents while their status is being adjudicated by the federal governm ent,

9 notwithstanding the federal governm ent’s knowledge that these aliens are present in the

10 United States. S.B. 1070 thus se eks to criminalize aliens whose presence is known and

11 accepted by the federal government (at least during the pendency of their status review) and

12 thereby conflicts with and otherwise stands asan obstacle to the full purposes and objectives

13 of Congress in providing certain forms of humanitarian relief.

14 49. Additionally, Section 3 of S.B. 1070 is a key part of Arizona’s new immigration

15 policy as it is tantam ount to a regulation of im migration, in that it seeks to control the

16 conditions of an alien’s entry and presence in the United States without serving any

17 traditional state police interest. Accordingly, Section 3 of S.B. 1070 is preem pted by the

18 federal government’s recognized exclusive authority over the regulation of immigration.

19

20

Section 4 of S.B. 1070/Ariz. Rev. Stat. 13-2319

21

50. Section 4 of S.B. 1070 am ended Ariz. Rev. Stat. 13-2319 (collectively,

22 “Arizona’s alien smuggling prohibition”). Arizona’s alien smuggling prohibition makes it

23 a felony for “a person to intentionally engage in the sm uggling of human beings for profit

24 or commercial purpose.” Ariz. Rev. Stat. 13-2319. The statute defines “sumggling of human

25 beings” as the “transportation, procurem ent of transportation or use of property . . . by a

26 person or an entity that knows or has reason to know that the person or persons transported

27 . . . are not United States citizens, permanent resident aliens or persons otherwise lawfully

28

19

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 20 of 25

1 in this state or have attempted to enter, entered or remained in the United States in violation

2 of law.” Id. § 13-2319(E).

3

51. Arizona’s alien smuggling prohibition is preempted by federal law, including 8

4 U.S.C. § 1324. There are several key differences be tween the federal and Arizona alien

5 smuggling provisions that demonstrate that Arizona’s alien smuggling prohibition actually

6 regulates conditions of unlawful presence and not sm uggling at all. First, Arizona’s alien

7 smuggling law, unlike the federal criminal provisions, is not limited to transportation that is

8 provided “in furtherance” of unlawful im migration, but instead prohibits the knowing

9 provision of any commercial transportation services to an alien unlawfully present in the

10 United States. Ariz. Rev. Stat. 13-2319(A). Second, unlike fede ral law, Arizona’s alien

11 smuggling law not only criminalizes the conduct of the transportation provider but has been

12 used, in conjunction with Arizona’s conspiracy statute, to prosecute the unlawfully present

13 alien. Third, Arizona’s smuggling provision is not targeted at smuggling across the United

14 States’ international borders. As a result of these differences, taken both separately and in

15 tandem, Arizona’s smuggling prohibition regulates the conditions of a n alien’s entry and

16 continued presence in the United States, by essentially banning an unlawfully present alien

17 from using com mercial transportation. Although a state is free, in certain instances, to

18 regulate conduct that is not regulated by the federal governm ent, the differences between

19 Section 4 and federal anti-smuggling law convertArizona’s alien smuggling prohibitions into

20 a preempted regulation of immigration. Additionally, Arizona’s smuggling prohibition will

21 result in special, impermissible burdens for lawfully present aliens, who will predictably be

22 impeded from using commercial transportation services due to the strictures of Section 4.

23 Arizona’s smuggling prohibition thus conflicts with and otherwise stands as an obstacle to

24 the full purposes and objectives of Congress in creating a comprehensive system of penalties

25 for aliens who are unlawfully present in the United States.

26 Section 5 of S.B. 1070

27

28

52. Section 5 of S.B. 1070 adds two new provisions to Arizona’s revised code:

20

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 21 of 25

1 Ariz. Rev. Stat. 13-2928 and Ariz. Rev. Stat. 13-2929.

2

53. Ariz. Rev. Stat. 13-2928 m akes it a new state crim e for any person who is

3 “unauthorized” and “unlawfully present” in the United States to solicit, apply for, or perform

4 work. S.B. 1070, Section 5(C)-(E).

5 54. Arizona’s new prohibition on unauthorized aliens seeking or performing work is

6 preempted by the comprehensive federal scheme of sanctions related to the employment of

7 unauthorized aliens – including 8 U.S.C. §§ 1324a–1324c. The text, structure, history, and

8 purpose of this schem e reflect an affirm ative decision by Congress to regulate the

9 employment of unlawful aliens by im posing sanctions on the em ployer without imposing

10 sanctions on the unlawful alien em ployee. Arizona’s crim inal sanction on unauthorized

11 aliens stands as an obstacle to the full purposes and objectives of Congress’s considered

12 approach to regulating employment practices concerning unauthorized aliens, and it conflicts

13 with Congress’s decision not to criminalize such conduct for humanitarian and other reasons.

14 Enforcement of this new state crime additionally interferes with the comprehensive system

15 of civil consequences for aliens unlawfully present in the United States by attaching crimnal

16 sanctions on the conditions of unlawful presence, despite an affirmative choice by Congress

17 not to criminalize unlawful presence.

18

19

55. Ariz. Rev. Stat. 13-2929 makes it a new state crime for a person committing any

20 criminal offense to (1) “transport . . . an alien . . . , in furtherance of the illegal presence of

21 the alien in the United States, . . . if the person knows or recklessly disregards” that the alien

22 is here illegally; (2) “conceal, harbor or shield . . . an alien from detection . . . if the person

23 knows or recklessly disrega rds the fact that the alien” is unlawfully present; or (3)

24 “encourage or induce an alien to com e to or reside in this state if the person knows or

25 recklessly disregards the fact that such . . . entering or residing in this state is or will be in

26 violation of law.” This provision exempts child protective service workers, first responders,

27 and emergency medical technicians. S.B. 1070 § 5. This provision contains no further

28 exceptions, including for organizations exempted by federal law fromcriminal liability, such

21

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 22 of 25

1 as religious organizations which “encourage, invite, call, allow, or enable” an alien to

2 volunteer as a minister or missionary. See 8 U.S.C. § 1324(a)(C).

3

56. Arizona’s new state law prohibition of certain transporting, concealing, and

4 encouraging of unlawfully present aliens is preempted by federal law, including 8 U.S.C. 5 § 1324(a)(1)(C). This new provision is an attempt to regulate unlawful entry into the United 6 States (through the Arizona border). The regulation of unlawful entry is an area fromwhich

7 states are definitively barred by the U.S. Constitution. Additionally, because the purpose of

8 this law is to deter and prevent the movement of certain aliens into Arizona, the law restricts

9 interstate commerce. Enforcement and operation of this state law provision would therefore

10 conflict and interfere with the federal government’s management of interstate commerce, and

11 would thereby violate Article I, Section 8 of the United States Constitution.

12 Section 6 of S.B. 1070

13

14

57. Section 6 of S.B. 1070 amends a preexisting Arizona criminal statute (Ariz. Rev.

15 Stat. 13-3883) governing the circumstances under which law enforcement officers can make

16 a warrantless arrest. Section 6 allows the arrest of anyone whom the officer has probable

17 cause to believe “has committed any public offense that makes the person removable from

18 the United States,” and does not require coordination with DHS to confirm removability.

19 The warrantless arrest authority provided by Section 6 applies to persons who have

20 committed an offense in another state when an Arizona law enforceemnt official believes that

21 offense makes the person removable. See Ariz. Rev. Stat. 13-3883.

22

58. Arizona law previously allowed for the warrantless arrest of anyone who was

23 suspected of having committed a misdemeanor or felony in Arizona. Although Section 6

24 authorizes warrantless arrests based on crimes committed out of state, it does so only if the

25 officer believes the crime makes the individual removable. Thus, Section 6 is not intended

26 to serve any new law enforcement interest. Rather, the purpose of Section 6, especially when

27 read in light of S.B. 1070’s overall purpose, is plain: Section 6 provides additional means

28 to arrest aliens in the state on the basis of immigration status.

22

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 23 of 25

1

59. Section 6 m akes no exception for aliens whose removability has already been

2 resolved by federal authorities, despite the fact that only the federal government can actually

3 issue removal decisions. Section 6 will therefore necessarily result in the arrest of aliens

4 based on out-of-state crimes, even if the criminal and immigration consequences of the out-

5 of-state crime have already been definitively resolved. For that reason, as with Section 2,

6 Section 6 of S.B. 1070 interferes with the federal government’s enforcement prerogatives and

7 will necessarily impose burdens on lawful aliens in a manner that conflicts with the purposes

8 and practices of the federal immigration laws. Additionally, Section 6 will result in the arrest

9 of aliens whose out-of-state crimes would not give rise to removal proceedings at all.

10

60. By reason of the foregoing, defendants’ actions have caused and will continue

11 to cause substantial and irreparable harm to the United States for which plaintiff has no

12 adequate remedy except by this action.

13 FIRST CAUSE OF ACTION – VIOLATION OF THE SUPREMACY CLAUSE

14

15

61. Plaintiff incorporates paragraphs 1 through60 of the Complaint as if fully stated

16 herein.

17

62. Sections 1-6 of S.B. 1070, taken in whoel and in part, represent an impermissible

18 effort by Arizona to establish its own im migration policy and to directly regulate the

19 immigration status of aliens. In particular, Sections 1-6 conflict with federal law and foreign

20 policy, disregard federal policies, interfere with federal enforcem ent priorities in areas

21 committed to the discretion of plaintiff United States, and otherwise im

pede the

22 accomplishment and execution of the full purposes and objectives of federal law and foreign

23 policy.

24

63. Sections 1-6 of S.B. 1070 violate the Supremacy Clause, and are invalid.

25

SECOND CAUSE OF ACTION – PREEMPTION UNDER FEDERAL LAW

26 64. Plaintiff incorporates paragraphs 1 through63 of the Complaint as if fully stated
27 herein.
28

23

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 24 of 25

1

65. Sections 1-6 of S.B. 1070 are preempted by federal law, including 8 U.S.C.

2 § 1101, et seq., and by U.S. foreign policy.

3

THIRD CAUSE OF ACTION – VIOLATION OF THE COMMERCE CLAUSE

4 66. Plaintiff incorporates paragraphs 1 through 65 of the Complaint as if fully stated

5 herein.

6

7

67. Section 5 of S.B. 1070 (adding Ariz. Rev. Stat. 13-2929) restricts the interstate

8 movement of aliens in a m anner that is pr ohibited by Article One, Section Eight of the

9 Constitution.

10

68. Section 5 of S.B. 1070 (adding Ariz. Rev. Stat. 13-2929) violates the Comerce

11 Clause, and is therefore invalid.

12

PRAYER FOR RELIEF

13

WHEREFORE, the United S tates respectfully requests the following relief:

14

1. A declaratory judgment stating that Sections 1-6 of S.B. 1070 are invalid, null, and

15 void;

16 2. A prelim inary and a perm anent injunction against the State of Arizona, and its
17 officers, agents, and employees, prohibiting the enforcement of Sections 1-6 of S.B. 1070;
18

19

3. That this Court award the United States its costs in this action; and

20

4. That this Court award any other relief it deems just and proper.

21 22 DATED: July 6, 2010 23 24 25 26 27 28

Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch /s/ Varu Chilakamarri Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681)

24

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 25 of 25

1

U.S. Department of Justice, Civil Division

20 Massachusetts Avenue, N.W.

2

Washington, DC 20530 Tel. (202) 616-8489/Fax (202) 616-8470

3

varudhini.chilakamarri@usdoj.gov Attorneys for the United States

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 Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 1 of 58

1 Tony West Assistant Attorney General
2 Dennis K. Burke United States Attorney
3 Arthur R. Goldberg Assistant Director, Federal Programs Branch
4 Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681)
5 U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W.
6 Washington, DC 20530 Tel. (202) 616-8489/Fax (202) 616-8470
7 varudhini.chilakamarri@usdoj.gov Attorneys for the United States
8

9

10

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

11

12 The United States of America,

13

Plaintiff,

No. 2:10-cv-1413-NVW

14

v.

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

15

The State of Arizona; and Janice K. Brewer,

AND MEMORANDUM OF LAW IN SUPPORT THEREOF

16

Governor of the State of Arizona, in her Official Capacity,

ORAL ARGUMENT REQUESTED

17

18

Defendants.

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Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 2 of 58

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5 I. 6 7

FEDERAL STATUTORY & REGULATORY FRAMEWORK GOVERNING IMMIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Federal Laws and Discretion Regarding the Entry, Removal,
and Treatment of Aliens Within the United States . . . . . . . . . . . . . . . . . . . 4

8

B. Federal Immigration Enforcement and the Cooperation of

States and Localities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

9

10 II. ARIZONA’S S.B. 1070 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

A. Section 2 – Arizona’s Mandatory Alien Inspection Scheme . . . . . . . . . . . 7

12

B. Section 3 – Arizona’s Alien Registration Crime . . . . . . . . . . . . . . . . . . . 8

13

C. Section 4/Ariz. Rev. Stat. 13-2319 – Arizona’s

Alien Smuggling Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

14

D. Section 5 – Arizona’s Alien Work Crime . . . . . . . . . . . . . . . . . . . . . . . . . . 9

15

E. Section 5 – Arizona’s Alien Transporting and Harboring Crime . . . . . . . . 9

16

F. Section 6 – Arizona’s Warrantless Arrest of “Removable” Aliens . . . . . 10

17

LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

18

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

19

20 I. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS . . . . . 11

21

A. Relevant Principles of Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

22

B. The Overall Statutory Scheme of S.B. 1070 is Preempted Because

23

it Sets a State-Level Immigration Policy That Interferes with Federal

Administration and Enforcement of the Immigration Laws . . . . . . . . . . . 12

24

1. S.B. 1070 Represents an Unlawful Attempt to Set Immigration

25

Policy at the State Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

26

2. S.B. 1070’s Policy of “Attrition Through Enforcement”

Conflicts with the Federal Immigration Framework . . . . . . . . . . . 15

27

28

ii

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 3 of 58

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 II. 25 26 27 28

3. S.B. 1070 Interferes with U.S. Foreign Policy Objectives That Inform Federal Administration and Enforcement of the Immigration Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. The Individual Sections of S.B. 1070 Are Preempted By Federal Law . . 25 1. Sections 2 and 6 Are Preempted Because Their Mandatory Requirements for Determining Immigration Status Conflict with Federal Law and Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 a. Section 2 of S.B. 1070 Will Result in the Harassment of Lawfully Present Aliens and is Therefore at Odds with Congressional Objectives . . . . . . . . . . . . . . . . . . 26 b. Section 2 of S.B. 1070 Will Burden Federal Resources and Impede Federal Enforcement and Policy Priorities . . . 30 c. Section 6 of S.B. 1070 Extends Arizona’s Warrantless Arrest Authority to Out-of-State “Removable” Offenses and is Preempted Because it Will Lead to the Harassment of Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 2. Section 3 of S.B. 1070 – Arizona’s “Complete or Carry an Alien Registration Document” Provision – Is Preempted by Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 a. Section 3 Interferes with Comprehensive Federal Alien Registration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 b. Section 3 is Preempted Because it Seeks to Criminalize Unlawful Presence and Will Result in the Harassment of Aliens . . . . . . . . . . . . . . . . . . . . . . . . 37 3. Section 4 of S.B. 1070 Amends Arizona’s Alien Smuggling Statute, Which is Preempted Because it Conflicts with Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 4. Section 5 of S.B. 1070 – Arizona’s New Criminal Sanction Against Unauthorized Aliens Who Solicit or Perform Work – is Preempted by the Federal Employer Sanctions Scheme . . . . . . . 42 5. Section 5 of S.B. 1070 – Arizona’s Transporting, Harboring, or Concealing Provision – Violates Preemption and Dormant Commerce Clause Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
iii

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1 III. A BALANCING OF EQUITIES FAVORS THE UNITED STATES

AND DEMONSTRATES THAT THE PUBLIC INTEREST WOULD

2

BE SERVED BY GRANTING INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . 52

3

4 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

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1

Pursuant to Federal Rule of Civil Procedure 65, the United States hereby moves this

2 Court to preliminarily enjoin enforcement of Arizona’s S.B. 1070 (Laws 2010, Chapter 113),

3 as amended by H.B. 2162, to preserve the status quo until this matter can be adjudicated.

4

INTRODUCTION

5

In our constitutional system, the power to regulate immigration is exclusively vested

6 in the federal governm ent. The im migration framework set forth by Congress and

7 administered by federal agencies reflects a careful and considered balance of national law

8 enforcement, foreign relations, and hum anitarian concerns – concerns that belong to the

9 nation as a whole, not a single state. Th e Constitution and federal law do not perm it the

10 development of a patchwork of state and local immigration policies throughout the country.

11 Although a state may adopt regulations that have an indirect or incidental effect on aliens,

12 a state may not establish its own immigration policy or enforce state laws in a manner that

13 interferes with federal immigration law.

14

The State of Arizona has crossed th is constitutional line . In acknowledged

15 disagreement with the manner in which the federal government has regulated immigration

16 and in contravention of these constitutional principles, Arizona recently enacted S.B. 10701

17 – a comprehensive set of immigration provisions explicitly designed to “work together” to

18 “discourage and deter the unlawful entry and presence of aliens” by m aking “attrition

19 through enforcement the public policy” of Arizona. To carry out Arizona’s “public policy,”

20 S.B. 1070 creates new state crimes that penalize an alien’s failure to meet federal registration

21 requirements, an alien’s unauthorized attem pt to solicit work, and the com mercial

22 transportation of unlawfully present aliens. And to achieve m aximum enforcement of its

23 new immigration policy, S.B. 1070 establishes a new state-wide m andatory immigration

24 status-verification system to be employed whenever practicable by every law enforcement

25 officer who, during the course of a stop, has reasonable suspicion of a person’s “unlawful

26 presence.” Further, any private citizen ofArizona may sue a local law enforcement agency

27 1 Throughout this m emorandum, the term “S.B. 1070” refers to the statute as
28 amended by H.B. 2162.

1

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1 for money damages if that agency fails to enforce immigration laws to the fullest extent

2 possible.

3

Both separately and in concert, S.B. 1070’s provisions would subvert and interfere

4 with federal immigration laws and objectives; the law is therefore preempted. First, Arizona

5 impermissibly seeks to create a state-specific “attrition through enforcement” policy that is

6 expressly designed to supplant the federal governm ent’s immigration policy. As suc h,

7 Arizona’s immigration policy does not simply provide legitimate assistance to the federal

8 government but instead exceeds a state’s role with respect to aliens, interferes with the

9 federal government’s balanced adm inistration of the immigration laws, and critically

10 undermines U.S. foreign policy objectives. S.B. 1070 therefore exceeds constitutional

11 boundaries. The states are not permitted to set their own independent immigration policies,

12 with varying and potentially conflicting enforcement systems and priorities. Were a number

13 of states to act as Arizona has and strike out on their own, federal im migration policy and

14 enforcement efforts would be crippled. Second, individual provisions of S.B. 1070

15 separately conflict with federal law and are therefore preempted. S.B. 1070’s new state-wide

16 mandatory immigration status verification scheme and warrantless arrest provision will result

17 in the harassment and incarceration of foreign nationals and lawful resident aliens – and even

18 U.S. citizens who will not have readily available docum entation to dem onstrate their

19 citizenship. In addition, this scheme will divert and burden federal immigration resources

20 that are needed to target high-priority aliens. The federal governm ent has prioritized

21 enforcement against dange rous aliens who pose a threat to national security and public

22 safety, but Arizona’s indiscrim inate approach will stand in the way of the federal

23 government’s focused efforts to ge t the most dangerous aliens off the streets. And S.B.

24 1070’s criminal provisions are preem pted because they each conflict with congressional

25 objectives underlying specific federal immigration laws.

26

A preliminary injunction against S.B. 1070 is necessary to preserve the status quo,

27 because the United States is likely to prevail onthe merits of this case, and absent injunctive

28 relief, the United States will continue to suffer irreparable harm. Enforcement of S.B. 1070

2

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 7 of 58

1 will disrupt the constitutional order by undermining the federal government’s control over

2 the regulation of immigration and immigration policy and by interfering with its ability to

3 balance the purposes and objectives of federal law and to pursue its chosen enforcem ent

4 priorities. Moreover, S.B. 1070 will result in the harassment of lawfully present aliens and

5 even U.S. citizens. Implementation of the law will damage the United States’ ability to speak

6 with a single and authoritative voice to foreign governments on immigration matters and is

7 already having negative effects on long-standing and vital international relationships. S.B.

8 1070 will also impede the federal government’s ability to provide measured enforcement of

9 criminal sanctions so as to accommodate the many other objectives that Congress enacted

10 into the immigration laws. As a matter of law and in the public interest, this Court should

11 enter a preliminary injunction to prevent S.B. 1070 from going into effect.

12

BACKGROUND

13 I. FEDERAL STATUTORY & REGULATORY FRAMEWORK GOVERNING IMMIGRATION
14 The Constitution vests the political branches with exclusive and plenary authority to
15 establish the nation’s immigration policy. See U.S. Const., art. I § 8, cl. 4 (Congress has the
16 authority to “establish an uniform Rule of Naturalization”); U.S. Const., art. I § 8, cl. 3
17 (Congress has the authority to “regulate Com merce with foreign Nations”); see also U.S.
18 Const., art. II § 3 (vesting the Pre sident with the authority to “take Care that the Laws be
19 faithfully executed”). Pursuant to this authority, over several decades, Congress has enacted
20 and refined a detailed statutory framework governing immigration – a task that has involved
21 reconciling the complex and often competing interests of national security and public safety,
22 foreign relations, and humanitarian concerns. See, e.g., Declaration of James B. Steinberg,
23 Deputy Secretary of State (attached as Exhibit 1), ¶¶ 5-6. The federal immigration scheme,
24 largely enacted as part of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101,et
25 seq., empowers the Department of Homeland Security (“DHS”), the Department of Justice
26 (“DOJ”), and the Departm ent of State, am ong other federal agencies, to adm inister and
27 enforce the immigration laws, and it provides for the considerable exercise of discretion to
28

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1 direct enforcement in a manner consistent with federal policy objectives.

2

A. Federal Laws and Discretion Regarding the Entry, Removal, and

3

Treatment of Aliens Within the United States

4

The INA sets forth the conditions under which a foreign national may be admitted to

5 and remain in the United States. As part of these conditions, Congress created a

6 comprehensive alien registration system for monitoring the entry and movement of aliens

7 within the United States. See 8 U.S.C. §§ 1201(b), 1301-1306; see also 8 C.F.R. Part 264.

8 If an alien enters the United States without inspection, presents fraudulent docum ents at

9 entry, violates the conditions of his admission, or engages in certain proscribed conduct, the

10 federal government (through DHS) may place him in removal proceedings. See 8 U.S.C.

11 §§ 1225, 1227, 1228, 1229, 1229c, 1231. In addition troemoval, DHS and DOJ may employ

12 civil and crim inal sanctions against the a lien for particular violations of the federal

13 immigration laws.2 See, e.g., 8 U.S.C. §§ 1325, 1306, 1324c.

14

To prevent the unlawful entry of aliens into the United Sta tes, Congress further

15 criminalized certain activities of third parties, such as the smuggling of unlawfully present

16 aliens into the country, and the facilitation of unlawful im migration within the nation’s

17 borders. See 8 U.S.C. § 1324. Critically, Congress provided for the civil rem oval of

18 unlawfully present aliens, but did not criminally penalize their mere presence or movement

19 within the country absent other factors. Nor did Congress im pose criminal penalties on

20 aliens for solely seeking or obtaining employment in the country without authorization, see

21 H.R. Rep. No. 99-682(I) at 46, electing instead to prohibit em

ployers from hiring

22 unauthorized aliens. See 8 U.S.C. § 1324a(a)(1).

23

Under this fram ework, administering agencies are em powered to exercise their

24

25

2 Under federal law, an alien’s mere unlawful presence in the United States is not a

crime, although it may subject the alien to removal from the United States. See 8 U.S.C.

26 §§ 1182(a)(6)(A)(i), 1227(a)(1) (B)&(C). Unlawful presence becomes an element of a

criminal offense, however, when an alien is found in the United States after having been

27 formally removed or after voluntarily departing from the United States pending execution

of a final removal order. See 8 U.S.C. § 1326. Unlawful entry into the United States is a

28 crime. See 8 U.S.C. § 1325.

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1 discretion not to apply a specific sanction to analien who has unlawfully entered or remained 2 in the United States. For example, DHS has authority to permit aliens, including those who 3 would otherwise be inadmissible, to temporarily enter and rem ain the United States ( i.e., 4 “parole”) for “urgent humanitarian reasons” or “significant public benefit.” 8 U.S.C. 5 § 1182(d)(5)(A). In addition, DHS and DOJ may withhold or cancel the removal of an alien 6 under a variety of spec ial circumstances, including those relating to fam ily unity and 7 domestic abuse. See 8 U.S.C. § 1227(a)(1)(E)(iii); 8 U.S.C. §§ 1229b (providing DOJ 8 discretion to cancel the rem oval of an otherwise inadm issible or rem ovable alien under 9 certain circumstances); see also 8 U.S.C. § 1182(a)(6)(A) (excluding from inadmissibility 10 certain aliens who have been subjected to battrey or extreme cruelty). Further, both DHS and 11 DOJ may grant an otherwise unlawfully present or removable alien relief fromremoval – and 12 potentially adjust that alien’s immigration status – if the alien meets certain conditions. If 13 an alien has a well-founded fear of persecution on account of race, religion, nationality, 14 membership in a particular social group, or political opinion, he may be eligible for asylum 15 in the United States, “irrespective of [his]status.” See 8 U.S.C. § 1158.3 Similarly, an alien 16 may be afforded tem porary protected status a nd remain in the United States if he is an 17 eligible national of a country that DHS has designated as experiencing ongoing arm ed 18 conflict, natural disaster, or another extraordinary circ umstance. See 8 U.S.C. § 1254a. 19 Under certain circumstances, moreover, an alien may be provided employment authorization 20 while the federal government evaluates his immigration status. See, e.g., 8 C.F.R. 21 § 274a.12(c)(14); Declaration of Michael Aytes, Senior Advisor to the Director of U.S. 22 23 24
3 The United States is likewise bound by international treaty obligations not to 25 remove, with limited exceptions, a refugee to any country where his life or freedom would
be threatened on account of his race, religion, nationality, membership of a particular social 26 group or political opinion (see 1967 Protocol relating to the Status of Refugees, incorporating
by reference Art. 33(1) of the 1951 Convention relating to the Status of Refugees), and not 27 to remove or extradite any individual to a country where it is more likely than not that he
would be tortured (see Art. 3 of the Convention Against Torture and Other Cruel, Inhuman 28 or Degrading Treatment or Punishment).
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1 Citizenship & Immigration Services (attached as Exhibit 2), ¶¶ 6, 12, 14, 15, 18.4

2

Although not an exhaustive description of the com plex and de tailed federal

3 immigration framework, these provisions reflect that the federal immigration laws do not

4 focus on one, singular interest but instead seek to further multiple competing objectives.

5

B. Federal Immigration Enforcement and the Cooperation of States and

6

Localities

7

DHS is the federal agency prim arily tasked with enforcing the im migration laws,

8 mainly through its components, U.S. Immigration and Customs Enforcement (“ICE”), U.S.

9 Customs and Border Protection (“CBP”), and U.S. Citiz enship and Immigration Services

10 (“USCIS”). See 6 U.S.C. §§ 251–52, 271; 8 U.S.C. § 1103. DHS receives state and local

11 cooperation. See, e.g., 8 U.S.C. § 1103(a)(10) (authorizing DHS to empower state or local

12 law enforcement with immigration enforcement authority when an “actual or imminent mass

13 influx of aliens . . . presents urgent circum stances”). In addition, Congress prescribed by

14 statute a num ber of ways in which sta tes may assist the federal governm ent in its

15 enforcement of the immigration laws. 8 U.S.C. § 1357(g) (1)–(9) (enabling DHS to e nter

16 into agreements to authorize appropriately trained and supervised state and local officers to

17 perform enumerated immigration related functions); 8 U.S.C. § 1373(a)-(b); 8 U.S.C.

18 § 1252c (authorizing state and local law enforcem ent to arrest aliens who are unlawfully

19 present in the United States because they were previously removed after being convicted of

20 a felony in the United States). DHS works cooperatively with states and localities through

21 a variety of programs. For example, ICE administers the Law Enforcement Support Center

22 (“LESC”), which serves as a national enforcement operations center that promptly provides

23 4 In addition to form al policies that provide exceptions from removal, federal
24 authorities have discretion not to remove certain unlawfully present aliens where the exercise of discretion would further one of the INA’s policy objectives. For example, in the wake of
25 the recent earthquake in Haiti – and before the institution of a formal Temporary Protected Status program for Haiti – the federal governm ent exercised discretion to suspend the
26 removal of Haitian nationals. Similarly, the President’s foreign affairs authority allows for “deferred enforced departure,” pursuant to which the executive branch may use its discretion
27 to suspend removal proceedings where doing so would further humanitarian, foreign policy, or other law enforcement goals. See, e.g., http://www.whitehouse.gov/the_press_office/
28 Presidential-Memorandum-Regarding-Deferred-Enforced-Departure-for-Liberians.

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1 immigration status and identity inform ation to local, state, and federal law enf orcement

2 agencies regarding aliens suspected of, arre sted for, or convicted of crim inal activity.

3 Declaration of David C. P almatier, Unit Chief for LESC (attached as Exhibit 3), ¶¶ 3-6.

4 Further, ICE and CBP respond to requests fromstate and local law enforcement officers on

5 a variety of immigration matters.5 Palmatier Decl. ¶ 3; Declaration of David V. Aguilar,

6 Deputy Commissioner, CBP (attached as Exhibit 5), ¶ 22.

7 II.

ARIZONA’S S.B. 1070

8

On April 23, 2010, Governor Janice Brewer signed into la w S.B. 1070, a

9 comprehensive and unprecedented state effort to regulate immigration. Expressly intended

10 to make “attrition through enforcement the public policy of all state and local government

11 agencies in Arizona,” S.B. 1070 is a set of m ostly criminal provisions governing police

12 procedures, immigration enforcement, alien registration, transportation, and employment –

13 all of which are intended to “work together to discourage and deter the unlawful entry and

14 presence of aliens.” S.B. 1070 § 1. One week later, Governor Brewer signed H.B. 2162,

15 which amended S.B. 1070 for the purpose of responding to those who “expressed fears that

16 the original law would somehow allow or lead to racial profiling.” Statement by Governor

17 Jan Brewer (Apr. 30, 2010), at http://azgovernor.gov/dms/upload/PR_043010_

18 StatementGovBrewer.pdf. The law will go into effect on July 29, 2010.

19

A. Section 2 – Arizona’s Mandatory Alien Inspection Scheme

20

The first pillar of Arizona’s new immigration policy is a mandatory alien inspection

21 scheme. As amended by H.B. 2162, Section 2 of S.B. 1070 (adding Ariz. Rev. Sta t. 11-

22 1051) mandates that for any lawful “stop, detention or arrest m ade by a law enforcem ent

23 official or . . . agency” in the enforcem ent of any state or local law (including civil

24 ordinances) where reasonable suspicion exists that an individual is an “unlawfully present”

25

26

5 Another one of these programs is the Law Enforcement Agency Response program

(“LEAR”), an Arizona-specific program that is operational 24 hours a day, 7 days a week,

27 for responding to requests for assistance from ICE regarding suspected unlawfully present

aliens. Declaration of Daniel H. Ragsdale, Executive Associate Director for Management

28 & Administration, ICE (attached as Exhibit 4), ¶ 45.

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1 alien in the United States, the officer m ust make a reasonable attem pt to determ ine the

2 individual’s immigration status when practicable. 6 The officer is required to verify the

3 person’s status, either through the federal governm ent pursuant to 8 U.S.C. § 1373(c) or

4 through a federally qualified law enforcem ent officer.7 S.B. 1070 § 2. Section 2 also

5 requires that “[ a]ny person who is arrested shall have the person’s im migration status

6 determined before the person is released.” Id. § 2. Because this clause does not depend on

7 “reasonable suspicion” of unlawful presence, it requires Arizona law enforcement to verify

8 the immigration status of every person who is arrested in the state.

9

Section 2 further provides that any legal resident of Arizona may bring a civil action

10 in a state court to challenge any official or agency that “adopts or implements a policy that

11 limits or restricts the enforcement of federal immigration laws . . . to less than the full extent

12 permitted by federal law.” S.B. 1070 § 2.

13

B. Section 3 – Arizona’s Alien Registration Crime

14

Going beyond the mandatory inspection scheme in Section 2, Section 3 of S.B. 1070

15 (adding Ariz. Rev. Stat. 13-1509), m akes it a new state crim inal offense for an alie n in

16 Arizona to violate 8 U.S.C. § 1304(e), which requires every alien to “at all times carry with

17 him and have in his persona l possession any certificate of alien registration or alien

18 registration receipt card issued to him,” or 8 U.S.C. § 1306(a), which penalizes the willful

19 failure to apply for registration when required. S.B. 1070 § 3. Section 3 provides a state

20 penalty of up to $100 and twenty days im prisonment for a first offense and thirty days

21

22

6 On the same day that she signed S.B. 1070 into law, Governor Brewer issued an

executive order requiring law enforcem ent training to “provide clear guidance to law

23 enforcement officials regarding what constitutes reasonable suspicion,” and to “make clear

that an individual’s race, color or national origin alone cannot be grounds for reasonable

24 suspicion to believe any law has been violated.” Arizona State Executive Order 2010-09

(Apr. 23, 2010).

25

7 Section 2(B) e xcuses law enforcement from determining a person’s immigration

26 status where the determination may hinder or obstruct an investigation. S.B. 1070 § 2(B).

Under Section 2, a person is presumed not to be “unlawfully present” upon showing a valid

27 Arizona driver’s license, non-operating identification license, tribal identification, or any

other state, federal, or local identification that is only issued upon proof of legal presence in

28 the United States. Id.

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1 imprisonment for a ny subsequent violation. Id. Section 3 may be enforced through an

2 immigration status determination that is triggered by Section 2. See id., §§ 1-3. Section 3’s

3 focus on criminalizing unlawful presence is revealed by an exception which renders the

4 section’s criminal penalties inapplicable “to a person who maintains authorization from the

5 federal government to remain in the United States.” S.B. 1070 § 3(F).

6

C. Section 4/Ariz. Rev. Stat. 13-2319 – Arizona’s Alien Smuggling Crime

7

Section 4 of S.B. 1070 amends Ariz. Rev.Stat. 13-2319 (collectively, Arizona’s “alien

8 smuggling prohibition”). S.B. 1070 § 4. Arizona’s alien smuggling prohibition makes it a

9 felony for “a person to intentionally engage in the smuggling of human beings for profit or

10 commercial purpose.” Ariz. Rev. Stat. 13-2319. The statute defines “smuggling of human

11 beings” as the “transportation, procurem ent of transportation or use of property . . . by a

12 person or an entity that knows or has reason to know that the person or persons transported

13 . . . are not United States citizens, permanent resident aliens or persons otherwise lawfully

14 in this state or have attempted to enter, entered or remained in the United States in violation

15 of law.” Id. § 13-2319(F)(3). A violation of Ariz ona’s alien sm uggling prohibition

16 constitutes at least a class 4 felony, with a presumptive sentence of 2.5 years imprisonment.

17 See Ariz. Rev. Stat. 13-2319(B); Ariz. Rev. Sta.t 13-702(D). This provision, in conjunction

18 with Arizona’s conspiracy statute, allows fo r an alien to be prosecuted for “sm uggl[ing]

19 oneself.” State v. Barragan Sierra, 196 P.3d 879, 888 (Ariz. App. Div. 2008).

20

D. Section 5 – Arizona’s Alien Work Crime

21

Arizona’s new im migration policy also regulates the em ployment of unlawfully

22 present aliens. Section 5 of S.B. 1070 addsAriz. Rev. Stat. 13-2928, which makes it a new

23 state crime for any person who is “unauthorized” and “unlawfully present” in the United

24 States to solicit, apply for, or perform work. S.B. 1070 § 5(C)-(E). A violation of this

25 provision is a class 1 misdemeanor, with a sentence of up to six months imprisonment. S.B.

26 1070 (Ariz. Rev. Stat. 13-2928), § 5(F); Ariz. Rev. Stat. 13-707(A).

27

E. Section 5 – Arizona’s Alien Transporting and Harboring Crime

28

Section 5 of S.B. 1070 also adds Ariz. Rev. Stat. 13-2929, which makes it a new state

9

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1 crime for a person com mitting any criminal offense to (1) “transport . . . a n alien . . . , in

2 furtherance of the illegal presence of the alien in the United States, . . . if the person knows

3 or recklessly disregards” that the alien is here unlawfully; (2) “conceal, harbor or shield

4 an alien from detection . . . if the person knows or recklessly disregards the fact that the

5 alien” is here unlawfully; or (3 ) “encourage or induce an alien to com e to or reside in

6 [Arizona] if the person knows or recklessly disregards the fact that such . . . entering or

7 residing in [Arizona] is or will be in violation of law.” S.B. 1070 § 5.

8

F. Section 6 – Arizona’s Warrantless Arrest of “Removable” Aliens

9

Section 6 of S.B. 1070, in ke eping with S.B. 1070’s focus on “attrition through

10 enforcement,” further augments the authority of law enforcement officials to enforce

11 immigration law. Section 6 amends a preexisting Arizona criminal statute (Ariz. Rev. Stat.

12 13-3883) governing the circumstances under which law enforcement officers can make a

13 warrantless arrest, by allowing the arrest of anyone whom the officer has probable cause to

14 believe “has committed any public offense that makes the person removable from the United

15 States.” S.B. 1070 § 6. This new warrantless arrest authority applies to persons who have

16 committed an offense in another state when an Arizona law enforcement official believes that

17 offense would make the person removable from the United States. See Ariz. Rev. Stat. 13-

18 105(26).

19

LEGAL STANDARD

20

A preliminary injunction is warranted where, as here, the movant has established that:

21 (1) it is likely to succeed on the m erits; (2) it is likely to suffer irreparable harm in the

22 absence of prelim inary relief; (3) the ba lance of equities tips in its favor; and (4) a

23 preliminary injunction is in the public interest.Winter v. Natural Res. Def. Council, In.c, 129

24 S. Ct. 365, 374 (2008);Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)S; ierra

25 Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009); see Fed. R. Civ. P. 65.

26

27

28

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1

ARGUMENT

2 I. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS

3

A. Relevant Principles of Preemption

4

The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties

5 are “the supre me Law of the Land.” U.S. Const., art. VI, cl. 2. In som e cases, the

6 Constitution – through its own force – can preempt state action in a field exclusively reserved

7 for the federal governm ent. See De Canas v. Bica , 424 U.S. 351, 356 (1976). Sta tutes

8 enacted by Congress m ay also preem pt – eithe r expressly or im pliedly – otherwise

9 permissible state action. See Gade v. Nat’l Solid Waste Mgmt. Ass’,n505 U.S. 88, 98 (1992).

10 The Supreme Court has recognized two bases by which state or local laws may be impliedly

11 preempted. “Field preemption” exists when a “scheme of federal regulation [is]so pervasive

12 as to make reasonable the inference that Congress left no room to supplem ent it” because

13 “the federal interest is so dom inant that the federal system will be assum ed to preclude

14 enforcement of state laws on the same subject,” or because “the object sought to be obtained

15 by the federal law and the character of obligations im posed by it m ay reveal the sam e

16 purpose.” Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm,’4n61

17 U.S. 190, 204 (1983) (internal quotations m arks omitted). “Conflict preem ption” occurs

18 when a party cannot comply with both state and federal law,Fla. Lime & Avocado Growers,

19 Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when the staet law “stands as an obstacle to the

20 accomplishment and execution of the full purposes and objectives of Congress.” Hines v.

21 Davidowitz, 312 U.S. 52, 67 (1941);Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995);

22 see also Kobar v. Novartis Corp., 378 F. Supp. 2d 1166, 1169 (D. Ariz. 2005) (Bolton, J.).

23 These bases for preemption are not “rigidly distinct,” however, and “field pre-emption may

24 be understood as a species of conflict pre-emption.” Crosby v. Nat’l Foreign Trade Council,

25 530 U.S. 363, 373 (2000) (internal citations omitted).

26

Moreover, “that the supremacy of the national power in the general field of foreign

27 affairs, including power over immigration, naturalization and deportation, is made clear by

28 the Constitution, was pointed out by authors of The Federalist in 1787, and has since been

11

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1 given continuous recognition by [the Supreme] Court.” Hines, 312 U.S. at 62. Although this

2 federal power does not preclude “every state enactment which in any way deals with aliens,”

3 De Canas v. Bica, 424 U.S. at 355, or bona fide state cooperation in the enforcement of the

4 federal immigration laws, see, e.g., 8 U.S.C. § 1357(g)(10); Gonzales v. Peoria, 722 F.2d

5 468, 474 (9th Cir. 1983), it has long been recognized that the “[p]ower to regulate

6 immigration is unquestionably exclusively a federal power.”De Canas, 424 U.S. at 354;see

7 also Toll v. Moreno, 458 U.S. 1, 11 (1982) (“determining what aliens shall be admitted to the

8 United States, the period they may remain, regulation of their conduct before naturalization,

9 and the terms and conditions of their naturalization” are matters exclusively reserved to the

10 federal government); Mathews v. Diaz, 426 U.S. 67, 84 (1976) (“[I]t is the business of the

11 political branches of the Federal Governm ent, rather than that of either the States or the

12 Federal Judiciary, to regulate the conditions of entry and residence of aliens.”). Further, a

13 state exceeds its power to enact regulations touching on aliens generally if the regulation is

14 not passed pursuant to state “police powers” that are “focuse[d]directly upon” and “tailored

15 to combat” what are “essentially local problems.” De Canas, 424 U.S. at 356–57.

16

B. The Overall Statutory Scheme of S.B. 10708 is Preempted Because it Sets a State-Level Immigration Policy That Interferes w ith Federal

17

Administration and Enforcement of the Immigration Laws

18

As explained in deta il in the next section, individual provisions of S.B. 1070 are

19 invalid under the Suprem acy Clause because each separately conflicts with federal

20 immigration law and polic y. But the statute, taken as a whole, also suffers from

a

21 fundamental, overarching defect: It impermissibly attempts to set immigration policy at the

22

23

8 Sections 7-9 of S.B. 1070 amend preexisting provisions of Arizona law at issue

in Chamber of Commerce of the United States of America v. Candelaria, 130 S. Ct. 534,

24 cert. granted, 78 U.S.L.W. 3065 (U.S. June 28, 2010) (No. 09-115). The instant motion

does not seek to enjoin those provisions of S.B. 1070; the views of the United States

25 regarding those provisions are reflected in the Government’s brief to the Supreme Court.

See Brief for the United States as Amicus Curiae, 2010 WL 2190418 (May 28,

26 2010). Section 10 is preempted insofar as it is based on the state law violations identified

in Sections 4 and 5, which are preempted for the reasons discussed herein. Sections 11-14

27 are administrative provisions which are not the subject of this dispute.

28

12

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1 state level and is therefore preempted.

2

Dissatisfied with the federal government’s response to illegal immigration,9 Arizona

3 has sought, through S.B. 1070, to override the considered judgment of Congress regarding

4 the formulation of immigration policy, and the judgment of the executive branch regarding

5 how to balance com peting objectives in imple menting the federal im migration laws.

6 Arizona’s monolithic “attrition through enforcement” policy pursues only one goal of the

7 federal immigration system – maximum reduction of the number of unlawfully present aliens

8 – to the exclusion of all other objectives. Tomake matters worse, even in pursuing that goal,

9 Arizona’s policy will disrupt federal enforcem ent priorities and divert federal resources

10 needed to target dangerous a liens. S.B. 1070 is therefore preem pted, because (1) it is an

11 unlawful attempt to set im migration policy at the state level, (2) the policy it advances

12 conflicts with federal objectives anim ating federal administration and enforcement of the

13 INA, and (3) it interferes with U.S. forei gn policy objectives and foreign relations m ore

14 broadly. Standing alone, Arizona’s state-level immigration policy is intolerable under the

15 Constitution and federal law. But the court should also consider the consequences that would

16 follow were Arizona’s approach to be allowed. The Supremacy Clause protects the federal

17 system against the chaos that would result were states and localities ac ross the country

18 allowed to fashion their own im migration schemes according to their own (potentially

19 conflicting) policy choices and subject the federal government to the demands of multiple

20 enforcement priorities.

21

1. S.B. 1070 Re presents an Unlawful Attempt to Set Immigration Policy at the State Level

22

Only the federal government may establish immigration policy – namely, the process

23 of “determin[ing] who should or should not be admitted into the country, ” De Canas, 424

24 U.S. at 355, and the “conditions lawfully imposed by Congress upon . . . residence of aliens,”

25 Takahashi v. Fish and Game Comm’n , 334 U.S. 410, 419 (1948). See also Ferreira v.

26 9 See Signing Statement by Governor Jan Brewer, April 23, 2010, available at
27 http://www.azgovernor.gov/dms/upload/PR_042310_StatementByGovernorOnSB1070.pdf (stating that S.B. 1070 was m otivated by what Arizona referred to as the fe deral
28 government’s “misguided policy” and its “refus[al] to fix” immigration problems).

13

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 18 of 58

1 Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) (“In the immigration context . . . the need for

2 national uniformity is paramount.”); Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 815

3 (7th Cir. 2003) (“Federal im migration power is not just superior to that of the states; it is

4 exclusive of any state power over the subject. Illinois is not entitled to have a policy on the

5 question [of] what precautions should be taken to evaluate the credentials of aliens.”).

6

This prohibition on state formulations of immigration policy does not preclude a state

7 from cooperating with the federal government on immigration matters, nor does it restrict a

8 state from adopting state laws that have incidental effects on aliens.See De Canas, 424 U.S.

9 at 355-56 (“local regulation” with only a “purely speculative and indirect im pact on

10 immigration” is not “a constitutionally proscribed regulation of immigration”). Indeed, state

11 participation in cooperative immigration enforcement is specifically contemplated by federal

12 law. See, e.g., 8 U.S.C. § 1357(g). No mechanical test defines the limit of state power to

13 promulgate, under their police powers, regulations incidentally affecting immigration. But

14 at a minimum, a state is generally barred from enacting a “com prehensive scheme” for

15 immigration, i.e., a system of state laws that aff ects “a direct and substantial im pact on

16 immigration.” League of United Latin Am. Citizens v. Wilson , 908 F. Supp. 755, 769–70

17 (C.D. Cal 1995).10 S.B. 1070 falls on the prohibited side of this line because, as discussed

18 below, the statute (i) explicitly refers to itself as creating “public policy” for the State of

19 Arizona on immigration issues and was intended to rival or supplant federal im migration

20 policy, (ii) establishes interlocking regulations to further the S tate’s policy, and (iii)

21 effectuates the “policy” through the criminal and procedural sections of the statute, which

22 include a private right of action to ensure the m aximum state enforcement of immigration

23 laws. S.B. 1070 § 2(H); see also Part I.C, infra.

24

According to the statute’s statement of “intent,” S.B. 1070 is not m eant to exercise

25 10 See also De Canas, 424 U.S. at 356-59; Hines, 312 U.S. at 66; League of United
26 Latin Am. Citizens , 908 F. Supp. at 769-71; Pennsylvania v. Nelson , 350 U.S. 497, 507 (1956) (“Congress having thus treated se ditious conduct as a matter of vital national
27 concern, it is in no sense a local enforcem ent problem. . . . [T]he [state] Statute presents a peculiar danger of interference with the federal program.”); cf. Am. Ins. Ass’n v. Garamendi,
28 539 U.S. 396, 419& n.11 (2003).

14

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 19 of 58

1 traditional state police powers but rather seeks to establish an Arizona-specific immigration

2 “public policy.” S.B. 1070 § 11.1 The substantive provisions of S.B. 1070 effectuate Section

3 1’s statement of intent, establishing various bases for detaining and incarcerating aliens in

4 Arizona in order to achieve the overarching goal of regulating imigration through “attrition

5 through enforcement.” Sections 2 and 6 expand the set of suspected alie

ns whose

6 immigration status will be verified by Arizonaofficials. Sections 3, 4, and 5 provide several

7 means of criminally sanctioning any alien who is unlawfully present in the state – a status

8 which is not a federal crime but which is the focus of Sections 2 and 6. And the private right

9 of action embodied in Section 2 ensures, on pain of a private lawsuit for m oney damages,

10 that state and local officials in Arizona m aximally enforce the provisions of S.B. 1070,

11 thereby establishing an Arizona immigration policy that promotes sanctions to the exclusion

12 of other interests that anim ate the federa l immigration laws and that disrupts federal

13 enforcement priorities, including the focus on dangerous aliens. In stated purpose and

14 necessary operation, therefore, the provisions of S.B. 1070 demand that Arizona pursue at

15 all costs a policy designed to deter unlawfully present aliens frommoving into the state and

16 to inspect, investigate, detain, and in som e cases criminally sanction those already in the

17 state. For these reasons, S.B. 1070 is a com prehensive and aggressive effort to set state-

18 specific immigration policy that will have a “direct and substantial impact” on immigration,

19 and it is therefore preempted as a matter of law. See League of United Latin Am. Citizens,

20 908 F. Supp. at 769–70.

21

2. S.B. 1070's Policy of “Attrition Through Enforcement” Conflicts with the Federal Immigration Framework

22

The Supreme Court has made clear that state laws may be preempted where they fail

23 to account for, or seek to countermand, the considered balance between competing interests

24

25

26

11 Legislative history confirm s that S.B. 1070 wa s animated by the belief that

“citizens have a constitutional right to expect the im migration laws to be enforced” –

27 resulting in a statute in which maximal “enforcement” is the solitary concern. See Minutes

of Meeting of Committee on Military Affairs and Public Safety, Consideration of S.B. 1070,

28 March 31, 2010, at 3.

15

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 20 of 58

1 struck by Congress in enacting a statute, 12 or by the executive branch in enforcing that

2 statute. S.B. 1070 falls squarely within this prohibited category.

3

In Crosby v. National Foreign Trade Council , for example, the Court held that a

4 Massachusetts law restricting purchases from companies doing business with Burm a

5 interfered with the executive branch’s authority over econom ic sanctions against that

6 country. 530 U.S. at 376. The Court determ ined that Congress had not only given the

7 executive branch the authority to impose certain sanctions against Burma, but that in doing

8 so, it provided the discretion and flexibility to levy and relieve those sanctions in a manner

9 that would advance hum an rights and de mocracy in Burm a and be consistent with the

10 national security interests of the United States. Id. at 374-75. Massachusetts’s “sanction”

11 on Burma was preempted because it would have permitted the state to effectively second-

12 guess the specific balance of sanctions (whether levied or withheld) that was available to and

13 employed by the United States. Id. at 376. Notably, even though m any aspects of the

14 Massachusetts sanction regime nominally could have been pursued by the executive branch

15 under existing law, the state law was still deemed invalid because the state’s imposition of

16 sanctions necessarily impeded executive discretion as to the appropriate balance of interests

17 to be reflected in U.S. policy towards Burma.13

18

Buckman Co. v. Plaintiffs’ Legal Committee supports the sam e conclusions. In

19 Buckman, the Court determined that the Food, Drug, and Cosmetic Act (FDCA) empowered

20 the FDA with a “variety of enforcement options that allow it to make a measured response

21

12 See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc, .489 U.S. 141, 152 (1989)

(“[S]tate regulation of intellectual property must yield to the extent that it clashes with the

22 balance struck by Congre ss in our patent laws. . . . Where it is clear how the patent laws

strike that balance in a particular circumstance, that is not a judgment the States may second-

23 guess.”); Felder v. Casey, 487 U.S. 131, 143 (1988) (“[Ho]wever understandable or laudable

the State’s interest in contr olling liability expenses m ight otherwise be, it is patently

24 incompatible with the compensatory goals of the federal legislation, as are the m eans the

State has chosen to effectuate it.”).

25

13 In fact, the S upreme Court treated the very grant of disc retion as evidence that

26 Congress impliedly preempted state actions that would interfere with the executive branch’s

exercise of enforcement discretion. Id. at 376 (“It is simply implausible that Congress would

27 have gone to such lengths to empower the President if it had been willing to compromise his

effectiveness by deference to every provision of state statute or local ordinance that might,

28 if enforced, blunt the consequences of discretionary Presidential action.”).

16

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 21 of 58

1 to suspected fraud,” and that under the statutory schem e, the “FDA pursues difficult (and

2 often competing) objectives,” such as ensuring that m edical devices are reasonably safe,

3 while allowing devices on the m arket as soon as possible, and regulating m edical devices

4 without interfering with the practice of medicine. 531 U.S. 341, 349 (2001). TheBuckman

5 Court held that the FDCA’s enforcement scheme preempted state law tort claims premised

6 on fraud com mitted against the FDA, noting that the relationship be tween the federal

7 government and those it regulates is a matter for the federal government and not part of the

8 states’ traditional police powers. The Courtfurther reasoned that because the FDA pursues

9 a particular balance of com peting objectives, states are precluded from taking action that

10 could skew the “balance sought by the Administration” through its calibrated enforcement

11 policies. Id. at 348. This Court has likewise interpretedBuckman as cautioning against the

12 “inherent difficulty” that arises when states try to “substitute their judgment for that of the”

13 federal government. Kobar, 378 F. Supp. 2d at 1173–74 (Bolton, J.).

14

Those principles are dispositive here. To begin with, it is beyond question that the

15 federal immigration regime established by Congress, no less than the regulatory regimes at

16 issue in Crosby and Buckman, is com plex, and requires a balance am ong multiple and

17 sometimes competing objectives. See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543

18 (1950) (immigration control and management is “a field where flexibility and the adaptation

19 of the congressional policy to infinitely variable conditions constitute the essence of the

20 program”).14 It is certainly a prim ary objective of federal law to prevent aliens from

21

14 See also New Jersey v. United States, 91 F.3d 463, 470 (3d Cir. 1996) (“Decisions

about how best to enforce the nation’s immigration laws in order to minimize the number of

22

illegal aliens crossing our borders patently involve policy judgm ents about resource allocation and enforcement methods. Such issues fall squarely within a substantive area

23

committed by the Constitution to the political branches.”)S;ale v. Haitian Ctrs. Council, Inc,. 509 U.S. 155, 187-88 (1993); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ; Rogers v.

24 Larson, 563 F.2d 617, 626 (3d Cir. 1977) (finding state restrictions on em ployment of nonresident alien workers preempted by federal law, because although the state and federal

25 laws “share some common purposes” of “assur[ing]an adequate labor force on the one hand and [ ] protect[ing] the jobs of citizens on the other,” the “conflict arises because the Virgin

26 Islands and the United States strike the balance between these two goals differently”); Lozano v. City of Hazleton , 496 F. Supp. 2d 477, 527 (M.D. Pa. 2007) (several laws that

27

(continued...)

28

17

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 22 of 58

1 unlawfully entering and residing in the United tSates, and Congress has empowered DHS and

2 DOJ with a range of enforcem ent options to this end. See, e.g., 8 U.S.C. §§ 1182, 1225,

3 1227, 1229, 1306, 1324, 1324c, 1325. But the federal im migration laws also take into

4 account other unique ly national interests and priorities, such as facilitating trade and

5 commerce; welcoming foreign nationals who visit or immigrate lawfully and ensuring their

6 fair and e quitable treatment wherever they reside; and responding to hum anitarian and

7 foreign affairs concerns at the global and individual levels. Consequently, there are

8 situations in which other congressional policy objectives weigh against rem

oval or

9 incarceration of certain unlawfully present aliens. 15 Sim ilarly, the federal governm ent

10 prioritizes its enforcement efforts by targeting highly threatening aliens who pose a danger

11 to national security and public safety.

12

As a result of the complexities inherent in the enforcement of the federal immigration

13 scheme, DHS and DOJ necessarily must (i) establish global policy objectives that attem pt

14 to strike a balance between employing criminal sanctions and other immigration values, and

15 (ii) exercise their authority and discretion on a case-by-case basis consistent with those

16 global objectives. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002);

17 8 U.S.C. § 1103; 8 U.S.C. § 1252(g); see also Reno v. American-Arab Anti-Discrimination

18 Comm., 525 U.S. 471, 484 (1999) (describing deferred action as a “commendable exercise

19

14 (...continued)

turned on immigration status held to be preempted because they “strike a different balance”

20 than that reflected in federal immigration policy).

21

15 For exam ple, Congress has clearly anticipated circ umstances in which an alien

may have unlawfully entered the United States or violated the conditions of his admission,

22 but for whom the United States nonetheless has an interest in providing humanitarian relief.

See, e.g., 8 U.S.C. § 1158 (asylum ); § 1254a (tem porary protected status); §

23 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure fam ily unity); § 1229b

(cancellation of removal); § 1182 (d)(5) (parole); see also Ragsdale Decl. ¶¶ 18, 26, 47–50

24 (describing humanitarian aspect to immigration enforcement policy). These humanitarian

programs demonstrate that one of m any objectives of federal im migration policy is to

25 welcome such individuals to the United States, notwithstanding possible tepmorary unlawful

presence. It would therefore violate federal policy to prosecute or detain these types of aliens

26 for unlawful presence – a situation often known to the federal governm ent and, for

affirmative policy reasons, not used as the basis for a rem oval proceeding or crim inal

27 prosecution.

28

18

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 23 of 58

1 in administrative discretion, developed without express statutory authorization”); Ragsdale

2 Decl. ¶¶ 7, 16.

3

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070

4 ignores every objective of the federal im migration system, save one: the im mediate

5 apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1.

6 Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the

7 federal government’s ability to balance the variety of objectives inhere nt in the federal

8 immigration system, including the federal government’s focus on the most dangerous aliens.

9 By requiring local police officers to engage in maximum inquiry and verification (on pain

10 of civil suit) and by providing for the conviction and inc arceration of certain foreign

11 nationals in Arizona for their failure to register, for entering or traveling throughout the state

12 using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070

13 is not only different fromthat of the federal government, but it willinterfere with the federal

14 government’s ability to administer and enforce the immigration laws in a manner consistent

15 with the aforementioned concerns that are reflected in the INA. Despite the statute’s self-

16 serving claim that it “ shall be im plemented in a m anner consistent with federal laws

17 regulating immigration,” S.B. 1070 § 12, the act m andates a conflicting, Arizona-specific

18 immigration policy – “attrition through enforcement” – and prescribes various provisions that

19 implement that policy in conflict with federal priorities. To perm it a hodgepodge of state

20 immigration policies, such as the one Arizona has atte mpted in S.B. 1070, would

21 impermissibly interfere with the federal government’s balance of uniquely national interests

22 and priorities in a number of ways.

23

First, Arizona’s across-the-board “attrition through enforcement” policy will interfere

24 with federal enforcement priorities. The federal governm ent, which exercises significant

25 enforcement discretion, has prioritized for arrest and detention those “aliens who pose a

26 danger to national security or a risk to public safety” (Rag sdale Decl. ¶ 17), principally

27 targeting “aliens engaged in or suspected of terrorism or espionage; aliens convicted of

28

19

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 24 of 58

1 crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain

2 gang members; and aliens subject to outstandingcriminal warrants . . . [and]fugitive aliens,

3 especially those with criminal records.” Id. ¶¶ 17-18 (discussing need for prioritization);Id.

4 ¶ 27 (discussing memorandum from Assistant Secretary John Morton outlining enforcement

5 priorities) . But S.B. 1070, which requires Arizona law enforcement officials to target any

6 and all suspected aliens without regar d to dangerousness, will “divert existing [federal]

7 resources from other duties, resulting in fewer resources being available to dedicate to cases

8 and aliens” that the federal governm ent has identified as posing the greatest im mediate

9 threats to the United States. Id. ¶ 44. “Diverting resources to cover the influx of referrals

10 from Arizona (and other states, to the extent similar laws are adopted) could, therefore, mean

11 decreasing [the federal government’s] ability tofocus on priorities such as protecting national

12 security or public safety in order to pursue aliens who are in the United States illegally but

13 pose no immediate or known danger or threat to the safety and security of the public.” Id.;

14 see also Part I.C.1. infra. S.B. 1070 is therefore preempted because it will force a diversion

15 of federal resources away from federal priorities. See Kobar, 378 F. Supp. 2d at 1170,

16 1173–74 (Bolton, J.) (finding Arizona statute preempted, in part, because it would result in

17 “deluge” of information to the FDA, thereby interfering with other FDA priorities);see also

18 Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (acknowledging

19 serious concerns regarding the city’s use of federal authorities to determine the immigration

20 status of tenants because the process would “likely place burdens on the Departm ents of

21 Justice and Homeland Security that will impede the functions of those federal agencies”).

22

Second, Arizona’s new immigration policy will substantially interfere with the federal

23 government’s ability to administer and enforce the immigration laws in a manner consistent

24 with congressional objectives. Congress has clearly anticipated circumstances in which an

25 alien may have unlawfully entered the United States or violated the conditions of his

26 admission, but for whom the United States nonetheless has an interest in providing what it

27 calls humanitarian relief. See, e.g., 8 U.S.C. § 1158 (asylum); § 1254a (temporary protected

28

20

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 25 of 58

1 status); § 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure family unity);

2 § 1229b (cancellation of removal); § 1182 (d)(5) (parole);see also Ragsdale Decl. ¶¶ 18, 26,

3 47–50 (describing humanitarian aspect to immigration enforcement policy). For example,

4 were DHS to come into contact with a foreign national froma specially designated country

5 (such as Nicaragua, Honduras, or El Salvador), or one who has survived the earthquake in

6 Haiti, or is a victimof trafficking or persecution, DHS might choose not to detain or penalize

7 the alien for immigration violations incidental to his entry into the United States and instead

8 permit that alien to stay in the United States under a variety of prograsm. See Ragsdale Decl.

9 ¶¶ 26, 28, 47-50. These programs demonstrate that one aspect of federal immigration policy

10 is to assist and welcome such victims in the United States, notwithstanding their possible

11 temporary unlawful presence. By contrast, under S.B. 1070, any other potential imigration

12 concern falls away in favor of Arizona’s decision to pursue “attrition through enforcement,”

13 which, as implemented through the remainder of the statute, promotes the incarceration and

14 arrest of all unlawfully present aliens, no m atter what othe r congressionally m andated

15 concern might be im plicated or whether the person’s status is known to the federal

16 government. In that way, S.B. 1070 will interfe re with established federal im migration

17 priorities concerning the treatment of aliens who may be eligible for humanitarian relief. See

18 Declaration of Mariko Silver, Acting Assistant Secretary for International Affairs and Deputy

19 Assistant Secretary for International Policy, DHS (attached as Exhibit 6), ¶ 10.

20

Third, Arizona’s focus on crim inal sanctions is at odds with the federal policy of

21 channeling certain unlawfully present aliens into civil rem oval proceedings or permitting

22 them to leave the country without criminal penalty or incarceration. See 8 U.S.C. § 1229c

23 (voluntary departure); § 1225(a)(4) (withdrawal of application for adm ission); Ragsdale

24 Decl. ¶ 19. There are numerous reasons why it is in the national interest not to exact criimnal

25 penalties on every alien who attempts to enter or enters the country without a visa or other

26 necessary documentation. See Ragsdale Decl. ¶¶ 7, 16, 19 (describing DHS discretion to opt

27 for civil enforcem ent rather than crim inal penalties whe re doing so would prom ote fair

28

21

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 26 of 58

1 consideration of appropriate treatment of aliens). For example, the application of criminal

2 sanctions to a particular alien who was a vic tim of trafficking or labor abuse m ay prevent

3 federal authorities from obtaining evidence against other aliens who pose a greater threat to

4 public safety or national security. See Ragsdale Decl. ¶ 33-34 (discussing reliance on

5 unlawfully present aliens in prosecutions). Similarly, the United States may deem it unduly

6 harsh or counterproductive to its hum anitarian efforts or foreign relations to incarcerate a

7 woman with young children who has attem pted to cross the border for the first tim e. See

8 generally Ragsdale Decl. ¶ 47. 16 In addition, there may be times when civil removal is a

9 more appropriate enforcem ent tool because crim inal sanctions would have im migration

10 consequences that would interfere with the United States’ ability to provide a particular

11 immigration benefit in the future.See, e.g., 8 U.S.C. § 1254a(c)(2)(B). S.B. 1070 recognizes

12 no such nuance. As such, the law undoubtedly strikes “a different balance” than the policy

13 advanced by federal law and thereby “stands as an ‘obstacle’ to the accomplishment of . . .

14 federal law.” See Lozano, 496 F. Supp. 2d at 527–28; see also Crosby, 530 U.S. at 378.

15 And even if S.B. 1070 could be said to promote federal immigration policy in some abstract

16 sense, the m ethodology chosen by Arizona conflicts with that chose n by the federal

17 government, and is there fore preempted. See Gade, 505 U.S. at 103; Int’l Paper Co. v.

18 Ouellette, 479 U.S. 481, 494 (1987).17

19

3. S.B. 1070 Interferes with U.S. Foreign Relations and U.S. Foreign Policy Objectives That Inform Federal Administration and

20

Enforcement of the Immigration Laws

21

S.B. 1070 is independently preempted because it impermissibly conflicts with U.S.

22 foreign policy. Im migration policy is intim ately connected with U.S. foreign affairs and

23

16 On the other hand, it ma y be appropriate to exact the full panoply of federal

sanctions against a repeat offender, or the leader of a sm uggling ring. See DHS Model

24 287(g) MOA, available at

http://www.ice.gov/doclib/foia/media-requests/09foia4646moutemplate.pdf.

25

17 Indeed, although S.B. 1070’s conflict with federal im migration policies and

26 objectives is palpable and sharp, the Supremacy Clause would nullify S.B. 1070 even for less

substantial conflict with federal law in lightof the strong interest of the federal government

27 in the immigration context. See Boyle v. United Technologies Corp., 487 U.S. 500, 507-08

(1988) (“[In] an area of uniquely federal interes,t” “[t]he conflict with federal policy need not

28 be as sharp as that which must exist for ordinary pre-emption”).

22

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 27 of 58

1 diplomacy. See Chy Lung v. Freeman , 92 U.S. 275, 279-80 (1875); California v. United

2 States, 104 F.3d 1086, 1091 (9th Cir. 1997); see also Steinberg Decl. ¶¶ 5–6 (“U.S. federal

3 immigration law incorporates foreign relations concerns . . . . [and]

is designed to

4 accommodate a range of com plex and important U.S. foreign relations priorities that are

5 implicated by immigration policy.”); Silver Decl. ¶ 4. The Supreme Court has recognized

6 the “Nation’s need to ‘speak with one voice’ in immigration matters.” Zadvydas v. Davis,

7 533 U.S. 678, 700 (2001); Garamendi, 539 U.S. at 424. Because the immigration laws are

8 deeply imbued with foreign policy significance, a state immigration law can, in certain

9 situations, be preempted if it interferes with U.S. foreign policy. As the Ninth Circuit has

10 explained, “‘foreign policy’ . . . may carry . . . preemptive force . . . . ‘where . . . there is

11 evidence of clear conflict between the policies adopted by’” a state and the federal

12 government.” Movsesian v. Victoria Versicherung AG, 578 F.3d 1052, 1056 (9th Cir. 2009)

13 (quoting Garamendi, 539 U.S. at 421).

14

In addition, individual im migration enforcement decisions can have profound

15 implications for U.S. foreign policy interests.See, e.g., Quinchia v. U.S. Att’y Gen,. 552 F.3d

16 1255, 1259 (11th Cir. 2008) (“[I]mmigration cases often involve complex public and foreign

17 policy concerns with which the executive branch is better equipped to deal.”); Francis v.

18 Immigration & Naturalization Service, 532 F.2d 268, 272 (2d Cir. 1976) (“Enforcement of

19 the immigration laws is often related to considerations . . . of foreign policy.”); Steinberg

20 Decl. ¶¶ 6, 12, 17-20. These decisions directly im plicate foreign relations and dem and

21 federal control because, as the Supreme Court has explained, where a state inserts itself into

22 immigration enforcement, “a single State can, at her pleasure, em broil us in disastrous

23 quarrels with other nations.” Chy Lung, 92 U.S. at 280; Hines, 312 U.S. at 64 (“Experience

24 has shown that international controversies of the gravest moment, sometimes even leading

25 to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted,

26 by a government.”). Foreign governments properly understand the federal government to

27 have a range of civil and criminal enforcement authorities available to it in the administration

28 of the immigration laws, and, indeed, they often raise concerns about the administration and

23

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1 enforcement of immigration laws in bilateral and multilateral diplomatic discussions. See

2 Steinberg Decl. ¶¶ 22, 32.

3

S.B. 1070 is preempted under these principles because it undermines the ability of the

4 United States to speak with one voice in the immigration context and wrests primacy over

5 immigration enforcement away from the federal government.18 By imposing a mandatory

6 criminal sanctions regime against certain aliens – necessarily without any m echanism for

7 accounting for the foreign policy consequences of such criminal enforcement – S.B. 1070

8 interferes with the federal government’s ability to exercise prosecutorial discretion based on

9 diplomatic and foreign policy concerns. See Clayco Petroleum Corp. v. Occidental

10 Petroleum Corp., 712 F.2d 404, 408-09 (9th Cir. 1983) (recognizing necessity of executive

11 control of prosecutions under the Foreign Corrupt Practices Act, because “any prosecution

12 under the Act entails risks to our relations with the foreign governments involved” such that

13 “any governmental enforcement” should only result from “a judgment on the wisdom of

14 bringing a proceeding, in light of the exigencies of foreign affairs”); see also United States

15 v. Delgado-Garcia, 374 F.3d 1337, 1351 (D.C. Cir. 2004) (“The executive’s expert exercise

16 of prosecutorial discretion and foreign diplom acy” will serve as crucial safeguards for

17 “avoid[ing the] conflicts” with other nations that m ight arise out of the extraterritorial

18 enforcement of the federal alien smuggling laws).

19

Here, the S tate Department has concluded that S .B. 1070’s interference with the

20 federal government’s exclusive control over the foreign policy implications of an area of law

21 unquestionably imbued with foreign policy significance “runs counter to American foreign

22 policy interests” and, if uninterrupted, “would further undermine American foreign policy.”

23 Steinberg Decl. ¶ 58. S.B. 1070 represents an impediment to U.S. foreign policy and U.S.

24 diplomatic interests – both with Mexico and with other countries.Id. ¶¶ 36-51. And the law

25 “poses a risk of provoking retaliatory treatment against U.S. nationals by other states.” Id.

26

18 Although not all state laws that touch upon aliens or immigration implicate these

principles, S.B. 1070 – especially when taken as a whole – represents an unparalleled and

27 explicit effort to establish a state policy that intensifies the enforcement of particular federal

immigration laws, while ignoring key goals of others, thereby contravening federal foreign

28 policy prerogatives.

24

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1 ¶ 57. This a ssessment of the effect of S.B. 1070 on U.S. foreign policy is worthy of

2 deference. See Holder v. Humanitarian Law Projec,t 2010 U.S. LEXIS 5252, at *58 (2010);

3 see also Movesian, 578 F.3d at 1061; In re Assicurazioni Generali, 592 F.3d 113, 119 (2d

4 Cir. 2010).

5

Indeed, the im pact of S.B. 1070 on U.S. foreign policy has been im mediate and

6 negative. As discussed in greater detail in Part II, infra, the mere passage of S.B. 1070 has

7 resulted in numerous, specific, and serious diplomatic reactions that threaten multiple United

8 States interests – both in the immigration field and elsewhere. See Steinberg Decl. ¶¶ 34–58.

9 This substantial effect on U.S. foreign policy interests is not surprising. In enacting (out of

10 disagreement with existing federal policy) a com prehensive, novel, and a ggressive set of

11 immigration provisions, Arizona has predictably provoked the ire of those foreign nations

12 whose citizens are being targeted for detention and c riminalization – and has thereby

13 damaged the United States’ broader set of diplomatic relations with those same nations. See

14 Steinberg Decl. ¶ 57 (“S.B. 1070 . . . threatens ongoing adverse consequences for important

15 and sensitive bilateral relationships with U.S. allies.”). S.B. 1070 is therefore preempted.

16

C. The Individual Sections of S.B. 1070 Are Preempted By Federal Law

17

1. Sections 2 and 6 Are Preempted Because Their Mandatory Requirements for Determining Immigration Status Conflict with

18

Federal Law and Priorities

19

S.B. 1070 effectively creates an im migration status ve rification scheme that is

20 unprecedented in breadth, mandatory in nature, and necessarily works toward the singular

21 goal of criminally prosecuting aliens suspected of being unlawfully present. Before passage

22 of S.B. 1070, Arizona police had the same discretion to decide whether to verify immigration

23 status during the course of a lawful stop as any other state or federal law enforcenmt officer.

24 Sections 2 and 6, however, do not m erely authorize state officers to assist in the federal

25 enforcement of the immigration laws. Instead, these new provisionsmandate that state and

26 local law enforcement officers effectuate an immigration status verification scheme as the

27 first step toward arrest, detention, incarceration (utilizing Sections 3, 4, and 5), or removal,

28 in a manner that is indifferent to the fede ral government’s enforcement priorities (such as

25

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1 prioritizing dangerous aliens). And these provisions are likewise indifferent to the risk of

2 harassment of lawful aliens (and even citizens) and the burdens placed o n the federal

3 government that inevitably follow from S.B. 1070’s regime of unrestrained enforcement of

4 particular criminal provisions.19

5

a. Section 2 of S.B. 1070 Will Result in the Harassment of Lawfully Present Aliens and is Therefore at Odds w ith

6

Congressional Objectives

7

Section 2 effectively removes the existing discretion of law enforcement officers by

8 requiring that they verify immigration status whenever “reasonable suspicion” that a person

9 is unlawfully present arises during a stop and it ispracticable to do so; they must also verify

10 status during any arrest. This unprecedented mandatory verification scheme conflicts with

11 federal law because it necessarily imposes substantial burdens on lawful immigrants in a way

12 that frustrates the concern of Congress for nationally-uniformrules governing the treatment

13 of aliens throughout the country – rules designed to ensure “our traditional policy of not

14 treating aliens as a thing apart.” Hines, 312 U.S. at 73-74. As the Court held in Hines,

15 Congress has “plainly m anifested a purpose to . . . protect the personal liberties of law-

16 abiding aliens . . . and to leave them free from the possibility of inquisitorial practices and

17 police surveillance that might not only affect our interna tional relations but m ight also

18 generate the very disloyalty which the law has intended guarding against.” Id. at 74

19 (emphasis added). It is for the federal government, not the individual states, to determine the

20 relationship between the Nation and aliens, and the federal government has long rejected a

21 system by which aliens’ papers are routinely demanded and checked. Section 2 is at odds

22 with this longstanding federal policy and practice.

23

Although the intent of Arizona’s new statute may be to deter unauthorized aliens from

24 entering or remaining in Arizona, Section 2 necessarily places lawfully present aliens (and

25 even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-

26 federal officials, and having their liberty restricted while their status is verified. There are

27

19 The discussion herein is not meant to foreclose state authority to verify immigration

status in a manner that is consistent with federal priorities and that will not unduly burden

28 either federal resources or the interests of lawfully present aliens.

26

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1 numerous categories of individuals who will be lawfully present but who will not have

2 readily available documentation to demonstrate that fact. For example, some lawful foreign

3 travelers visiting from countries participating in the Visa Waiver Progr am will not have a

4 form of identification sufficient to demonstrate lawful presence under Section 2. See Aytes

5 Decl. ¶¶ 2, 20-21. Several categories of individuals who have applied for asylu,mtemporary

6 protected status, U or T non-im migrant visas for victim s of crim es who a re providing

7 assistance to law enforcement,20 or abused women petitioning for immigration relief under

8 the Violence Against Woman Act, will also not have a form of identification sufficient to

9 demonstrate lawful presence under Section 2. Id. ¶¶ 2, 5, 9, 13, 17, 19; see also S.B. 1070

10 § 2(B). Moreover, United States citizens are of course not required to carry proof of

11 citizenship and some will not have easy access to documents that readily satisfy Arizona.

12 Many U.S. citizens do not have or carry a government-issued photo identification, such as

13 minor children and others who do not have a driver’s license. 21 And if Arizona officers

14 contact DHS about a citizen’s im migration status, DHS m ay not be able to confir m the

15 person’s citizenship, as many citizens have no entries in DHS databases.See Palmatier Decl.

16 ¶ 19.

17

Lawfully present individuals will inevitably be swept within Section 2’s broad

18 “reasonable suspicion” provision and subject to the state’s inquisitorial burdens. While

19 Section 2 is triggered by an officer’s “reasonable suspicion” of unlawful presence, “the

20 requirement of reasonable suspicion is not a requirem ent of absolute certainty,” N.J. v.

21 T.L.O., 469 U.S. 325, 346 (1985), meaning that many lawful aliens will be directly subjected

22

23 20 U and T visas are available for victim s of certain enum erated crimes – such as
24 trafficking and other violent crimes – and their families. See Aytes Dec. ¶¶ 14-17.

25

21 Arizona does not necessarily accept out-of-state drivers licenses as proof of lawful

residency. For exam ple, New Mexico does not require proof of citizenship to obtain a

26 driver’s license. See N.M. STAT. ANN. § 66-5-9(B). So if a U.S. citizen fromNew Mexico

is stopped while driving in Arizona, that citizen might be subject to lengthy detention while

27 Arizona seeks to verify the citizen’s “immigration status.” Estrada Decl. ¶¶ 7, 14 (discussing

categories of aliens and citizens who likely will not be able to produce docum entation

28 necessary to avoid detention, including minors and visitors from other states).

27

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1 to Section 2.22 What is more, many factors used to support a “reasonable suspicion” that an

2 alien is unlawfully present could also apply to lawfully pre sent aliens. See Declaration of

3 Tony Estrada, Sheriff of Santa Cruz County (attached as Exhibit 8), ¶ 7.23

4

The breadth of Arizona’s mandatory immigration verification scheme is unparalleled

5 and serves to exacerbate the conflict with federal law. The constant threat of police

6 inquisition is not limited to persons who are suspected of serious criminal offenses because

7 S.B. 1070 mandates immigration status inquiries, when practicable, for every lawful stop

8 where there is “reasonable suspicion” of unlawful presence – regardless of the seriousness

9 of the underlying alleged state offense. Im migration status verifications accordingly are

10 mandated even for suspected minor, non-criminal infractions of state or local law – such as

11 a minor traffic offense, jaywalking, see Ariz. Rev. Stat. 28-793, failing to have a dog on a

12 leash, see Ariz. Rev. Stat. 11-1012, or riding a bicycle on a sidewalk, see City of Flagstaff

13 Ord. 9-05-001-0013 – or suspected violations of Sections 3-5 of S.B. 1070. A lawfully

14 present alien may also be subjected to an imm igration status inquiry where he is lawfully

15 stopped, but the underlying justification for the initial stop has ceased, or when the alien is

16 merely a passenger in a car whose driver is stopped for a traffic offense.See S.B. 1070 § 2.

17

The substantial impact on lawfully present aliens is compounded by the fact that S.B.

18 1070 provides no assurance that the duration for which a lawfully prese nt alien may be

19 detained during the pendency of an imm igration status verification will be lim ited. S.B.

20 1070, standing alone, does not suggest that the alien will be released, or that any detention

21 would be of only m inimal duration; indeed, th e only assurance that is provided is that a

22 22 See also Safford Unified School Dist. No. 1 v. Redding , 129 S.Ct. 2633, 2647
23 (2009) (“[R]easonable suspicion does not deal with hard certainties, but with probabilities. To satisfy this standard, more than a mere hunch of wrongdoing is required, but considerably
24 less suspicion is needed than would be required to satisf[y]a preponderance of the evidence standard.” (internal citations omitted)).
25 23 Even under Arizona ’s own training standards, factors that apply equally to
26 lawfully- and unlawfully-present aliens would bring them within the ambit of Section 2's “reasonable suspicion” standard. See, e.g., Arizona Peace Officers Standards & Training
27 B o a r d , A r i z o n a S . B . 1 0 7 0 T r a i n i n g V i d e o , a v a i l a b l e a t http://www.azpost.state.az.us/SB1070infocenter.htm (stating that inability to speak English
28 and dress can be factors in determining reasonable suspicion).

28

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1 private citizen of Arizona can sue a local lawenforcement agency for money damages if that

2 agency fails to enforce the immigration laws to the fullest extent possible.24 Thus, if forced

3 to decide between holding and releasing a lawfully present alien during the pendency of a

4 status verification, the statute is clearly designed to encourage Arizona police authorities to

5 opt for continued detention. See, e.g., Estrada Decl. ¶¶ 4, 6. There is also no assurance that

6 if a lawfully present alien is subjected to animmigration status verification under Section 2,

7 he will not be subjected to another inspection the very next time he is stopped by the police

8 for any reason – raising the specter that the same lawfully present residents will be subject

9 to repeated police intrusion.25 Moreover, if a lawfully present alien is arrested for any reason,

10 S.B. 1070 forbids his re lease – irrespective of whether he has been cleared of any

11 wrongdoing – until state and local authorities are satisfied as to his im migration status.

12

Section 2 will therefore necessarily increase police intrusion into the lives of lawfully

13 present aliens and compel them to prove their lawful status to the satisfaction of state or local

14 authorities, which is exactly the type of inquisition and special burden cautioned against by

15 Hines.26 See also De Canas , 424 U.S. at 358 n.6 (“Of course, state regulation not

16 congressionally sanctioned that discriminates against aliens lawfully admitted to the country

17 is impermissible if it imposes additional burdens not contemplated by Congress”).

18

19

20 24 Indeed, DHS advises that there will be times where it will be una ble to verify
21 whether an individual is unlawfully present in the United States without taking significant time to consult a variety of databases and even paper files. See Palmatier Decl. ¶¶ 11, 19;
22 Declaration of Dominick Gentile, Division Chief, USCIS (attached as Exhibit 7), ¶¶ 6–7.

23

25 Som e of the criteria that would support a “reasona ble suspicion” would not

fluctuate over time. See Estrada Decl. ¶ 7 (“[F]actors that we might consider in a ‘reasonable

24 suspicion’ determination with respect to immigration status. . . . are likely to apply both to

lawfully present aliens and unlawfully present aliens.”).

25

26 See Hines, 312 U.S. 65-66 (“Legal im position[s] . . . upon aliens – such as

26 subjecting them alone, though perfectly law-abiding, to indiscrimina te and repeated

interception and interrogation by public officials – thus bears an inseparable relationship to

27 the welfare and tranquillity of all the states, and not merely to the welfare and tranquillity of

one.”); see also Mathews v. Diaz, 426 U.S. 67, 81-82 (1976); League of United Latin Am.

28 Citizens, 908 F. Supp. at 769.

29

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1

b. Section 2 of S.B. 1070 Will Burden Federal Resources and Impede Federal Enforcement and Policy Priorities

2

3

A state law is preempted where it imposes a burden on a federal agency’s resources

4 that impedes the agency’s functions. See, e.g., Buckman, 531 U.S. at 349-51 (preempting

5 state law cause of action in part because it would encourage third parties to submit a deluge

6 of unnecessary information to the FDA, thereby burdening the agency’s ability to evaluate

7 drug applications in a timely fashion); Garrett, 465 F. Supp. at 1057 (acknowledging serious

8 concerns regarding the city’s use of federal authorities in determining immigration status);

9 Kobar, 378 F. Supp. 2d at 1170, 1173–74. S.B. 1070 is preempted under this standard

10 because it will create an unprecedented quantity of verification dem ands directed to the

11 federal government (or federally qualified officials) and will imperm issibly shift the

12 allocation of federal resources away from federal priorities.

13

Section 2 requires local law enforcem ent officers to obtain im migration status

14 information from the federal government, which will primarily be accomplished by making

15 a request to LESC under 8 U.S.C. § 1373(c). 27 See Palmatier Decl. ¶¶ 3, 6, 15. Because

16 Arizona has imposed an across-the-board requirement that its law enforcement officers verify

17 the immigration status ofevery person stopped who is reasonably suspected to be unlawfully

18 present and every person arrested in the state, the num ber of requests m ade to DHS will

19 undoubtedly be significant. See Estrada Decl. ¶ 6; Declaration of Jack Harris, Phoenix Police

20 Chief (attached as Exhibit 10), at 6. But LESC resources are currently dedicated in part to

21 critical national security and law enforcem ent functions. Palm atier Decl. ¶ 4. LESC’s

22 mission is broad. It includes processing FBI requests for immigration-related background

23 information on individuals seeking to purchase firearms, U.S. Secret Service requests for

24 individuals seeking access to a protected area e(.g., the White House Complex), and requests

25 related to employment issues at sensitive locations that could be vulnerable to sabotage,

26 27 8 U.S.C. § 1373(c) provides that DHS “shall respond to an inquiry by a Federal,
27 State, or local governm ent agency, seeking to ve rify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested
28 verification or status information.”

30

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1 attack, or exploitation. Id. LESC also analyzes information received from the public about

2 suspicious or criminal activity and then disseminates that information to ICE field offices for

3 investigation. Id. ¶ 14. With respect to inquiries fromlaw enforcement agencies, “the LESC

4 prioritizes its efforts in order to focus on criminal aliens and those most likely to pose a threat

5 to their communities.” Id. ¶ 7. DHS has advised that “SB 1070 will inevitably result in a

6 significant increase in the num ber of” immigration verification queries, and that such an

7 increase will “reduc[e] [LESC’s] ability to provide timely responses to law enforcement on

8 serious criminal aliens.” Palmatier Decl. ¶¶ 15–16, 7. This increase in requests therefore

9 creates a significant risk that the federal government will be forced to shift resources away

10 from its chosen priorities. See id. ¶¶ 15–18; Ragsdale Decl. ¶ 44. DHS’s resources will

11 further be strained by increased dem ands for testim ony by DHS officials at crim inal

12 proceedings implicating immigration status. See Gentile Decl. ¶ 9. In light of DHS’s fixed

13 resources, this dramatic surge in verification requests as a result of Section 2 (as well as soem

14 of the other provisions of S.B. 1070) will necessitate a shift away froomther federal priorities

15 so as to accommodate the workload generated by Section 2. See Palmatier Decl. ¶¶ 15-16;

16 Ragsdale Decl. ¶ 44.28

17

In assessing the scope of the conflict between Section 2 and federal priorities,

18 moreover, the Court must consider the impact that would result if other sta tes follow suit

19 with similar laws. See, e.g., North Dakota v. United States , 495 U.S. 423, 458 (1990)

20 (Brennan, J., concurring in the judgment in part and dissenting in part) (considering that the

21 difficulties presented by state requirement would “increase exponentially if additional States

22 adopt[ed] equivalent rules,” and noting that such a nation-wide consideration was

23 “dispositive” in Public Utility Commission of the State of California v. United States , 355

24 U.S. 534, 546 (1958)). In this case, this aggregation of effects is not purely speculative:

25

26

28 Additionally, under the terms of the statute, Arizona will not release those arrested

while the immigration status check is ongoing. Accordingly, Arizona’s new law places DHS

27 in the impossible dilemma of choosing between prioritizing Arizona’s § 1373(c) requests

over the various law enforcement requests of other states and federal entities or risking that

28 aliens (and even U.S. citizens) in Arizona will be subjected to prolonged detentions.

31

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1 several states have already begun considering similar measures.29 Enactments by additional

2 states of Section 2-like mandates will only further burden DHS’s ability to pursue its

3 immigration policy objectives and other law enforcement objectives. Palmatier Decl. ¶ 20;

4 Ragsdale Decl. ¶ 44;see also Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 863 (2000)

5 (granting deference to expert agency’s views on conflict between state law and statutory

6 objectives); Chae v. SLM Corp., 593 F.3d 936, 948-49 (9th Cir. 2010) (similar).

7

Accordingly, as inform ed by DHS’s dete rmination that S.B. 1070’s m andatory

8 verification requirement will “reduc[e DHS’s] ability to provide tim ely responses to law

9 enforcement on serious criminal aliens,” thereby potentially allowing “very serious violators

10 [to] escape scrutiny and be released before the LESC can respond to police and informthem

11 of the serious nature of the [unlawfully pre sent] alien they have encountered,” (Palm atier

12 Decl. ¶ 17), this Court should hold that Section 2 of S.B. 1070 represents an impermissible

13 burden on federal resources.

14

c. Section 6 of S.B. 1070 Extends Ariozna’s Warrantless Arrest Authority to Out-of-State “Removable” Offenses and is

15

Preempted Because it Will Lead to the Harassment of Aliens

16

Section 6 is sim ilarly preempted under the principles articulated in Hines, because

17 Section 6 will also lead to further harassment of lawfully present aliens. Section 6 expands

18 the circumstances under which law enforcem ent officers can make warrantless arrests by

19 allowing Arizona peace officers to arrest anyone whomthey have probable cause to believe

20 “has committed any public offense that makes the person removable from the United States.”

21 Arizona law defines “public offense” to m ean “conduct for which a sentence to a term of

22 imprisonment or of a fine is provided by any la w of the state in which it occurred.” Ariz.

23 Rev. Stat. § 13-105(26). Because, prior to theenactment of Section 6, Arizona law already

24 allowed for warrantless arrests for misde meanors and felonies committed in Arizona, the

25 29 See, e.g., Kirk Adams, The Truth Behind the Arizona Law, Wash. Post, May 28,
26 2010 (Bus. Sec.) (“[A]t least 18 other states are considering adopting sim ilar immigration laws.”); Ginger Rough, Arizona Immigration Law: Other States Mull Over Versions of
27 Migrant Law, May 13, 2010, available at http://www.azcentral.com/arizonarepublic/news/articles/2010/05/13/
28 20100513arizona-immigration-law-followers.html.

32

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1 effect of Section 6 is to allow warrantless arrests based on (i) out-of-state crimes which (ii)

2 the police officer determines would subject the alien to removal. Notably, warrantless arrest

3 authority under Section 6 does not depend on coordination with DHS to verify reomvability.

4

This provision is preem pted because it will result in the arrest and harassm ent of

5 lawfully present aliens. Section 6 depends ona threshold determination of whether a “public

6 offense makes [a] person removable,” S.B. 1070 § 6, a determination that requires expertise

7 regarding a com plex corpus of im migration law. As Justice Alito has explained, the

8 removability consequences “for a particular offense . . . [are] often quite complex” in that

9 “determining whether a particular crime” will potentially render an alien removable “is not

10 an easy task.” See Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., concurring).

11 For this reason, the federal government has exclusive authority to determ ine whether the

12 commitment of a crime by a lawfully present alien – state or federal – would render the alien

13 removable from the United States. See 8 U.S.C. § 1182(a)(2) (setting forth certain criminal

14 convictions as grounds for inadmissibility); 8 U.S.C. § 1227(a)(2) (same for deportation).

15

Nonetheless, Arizona now demands that local law enforcement officers engage in this

16 complicated analysis of rem ovability by folding such warrantless arrest authority into its

17 scheme of “attrition through enforcement.” But this is an analysis which Arizona’s peace

18 officers are ill prepared to make. Almost by definition, Section 6 is triggered only by non-

19 Arizona crimes (with which Arizona police are unlikely to be familiar), and will demand an

20 instantaneous judgment on the highly contextual and fact specific removability calculus – a

21 matter which is the subject of intense training for federal officers and which lies squarely

22 outside of Arizona peace officers’ general expertise. 30 Adding to the com plexity of this

23 determination, various federal officers are empowered to order reprieves from the

24

30 See Estrada Decl. ¶¶ 8-9 (“[M]y officers are not experts in immigration matters.

. . . I am concerned that the state training will not equip m y officers with the necessary

25 knowledge and expertise that would allow them to reasonably suspect when someone is in

the country unlawfully or has committed a public offense that m akes them removable.”);

26 Declaration of Roberto Villaseñor, Chief of Police, Tucson Police Department (attached as

Exhibit 9), ¶ 6 (“While my officers are com fortable establishing the existence or

27 non-existence of reasonable suspicion as to criminal conduct, they are not at all familiar with

reasonable suspicion as to immigra tion status, not being trained in Federal im migration

28 law.”); Harris Decl. at 7.

33

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1 immigration consequences of state crimes. See, e.g., 8 U.S.C. §§ 1229b(a), 1253(a)(3). For

2 that reason alone, not every alien who has committed a “public offense” that might make him

3 removable will actually be removed from the United States. Arizona police officers will

4 undoubtedly erroneously arrest many aliens who could not legitimately be subject to removal

5 – whether because the Arizona police mistakenly identify an out-of-state crime as a removal

6 predicate, the Arizona police wrongfully assess whether an out-of-state crime will result in

7 a conviction, the Arizona police wrongly assess the removability calculus, or the particular

8 immigration consequence of the alien’s conduct has already be en resolved by the federal

9 government.31 That outcome cannot be squared with the Supreme Court’s concern for the

10 imposition of distinct and extraordinary state burdens on aliens. See Hines, 312 U.S. at

11 65–66. The impropriety of Arizona’s action is underscored by the fact that Section 6 is not

12 “focuse[d] directly upon” a legitimate state criminal law function. De Canas, 424 U.S. at

13 357. The statute’s exclusive concern for crimes that give rise to removability consequences

14 belies a focus on the conduct of aliens, and not an effort “tailored to cobmat” local problems.

15 Id.

16

2. Section 3 of S.B. 1070 – Ariz ona’s “Complete or Car ry an Alien Registration Document” Provision – Is Preempted by Federal Law

17

Arizona’s new alien registration requirement, codified in Section 3 of S.B. 1070, is

18 preempted because it legislates in an area fully occupied by Congress and conflicts with

19 federal law and enforcement priorities in that field.

20

a. Section 3 Interferes w ith Comprehensive Federal Alien

21

Registration Law

22

Through the federal alien registration scheme, Congress has created a comprehensive

23 system for monitoring the entry and location of aliens within the United States. Congress has

24 provided very specific measures ranging from which aliens must register, see 8 U.S.C.

25 §§ 1201, 1301, when they must register, see 8 U.S.C. § 1302, the content of the registration

26 forms and what special circum stances may require deviation, 8 U.S.C. § 1303, the

27 31 The risk of harassm ent is not limited to aliens who have com mitted out-of-state
28 crimes. Section 6 also allows for arrest for Arizona crimes.

34

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1 confidential nature of registration inform ation, 8 U.S.C. § 1304, the circum stances under

2 which an already-registered alien must report his change of address to the governm ent, 8

3 U.S.C. § 1305, and the penalties for failing to register or failing to notify the government of

4 a change in address, 8 U.S.C. § 1306. Registered aliens are required to carry their

5 “certificate[s] of alien registration” or “alien registration receipt card[s] ,” subject to

6 punishment of up to thirty days of imprisonment and a monetary fine. 8 U.S.C. § 1304(e);

7 18 U.S.C. § 3571. Willful failure to apply for registration is a federal m isdemeanor,

8 punishable under the registration statute by up to six months of imprisonment and a monetary

9 fine. 8 U.S.C. § 1306(a); 18 U.S.C. § 3571; see also 8 C.F.R. Part 264.

10

This registration systemis a quintessential example of a pervasive and comprehensive

11 scheme of federal regulation that leaves no roomfor state legislation. Indeed, inHines, the

12 Supreme Court recognized that federal alien registration law manifests Congress’s intent to

13 monitor aliens through a system that would be “uniform,” “single,” “integrated,” and “all-

14 embracing.” Id. at 74. The Court considered the precursor to the current federal alien

15 registration system,32 and held that it precluded Pennsylvania from enforcing its own alien

16 registration requirements, because:

17

[T]he federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the

18

registration of aliens, [and]states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional

19

or auxiliary regulations.

20 Hines, 312 U.S. at 66-67. Put sim ply, Hines held that Congress inte nded the federal

21 government to exercise exclusive control over all issues related to alien registration.

22

Arizona’s new alien registration provision conflicts with the federal goal, recognized

23 in Hines, of uniformity and singularity in registration (a field which so closely touches on

24 foreign relations). S ection 3 rem oves federal control of prosecution for registration

25 violations by creating state-specific crimes based on federal alien registration requirements.

26

32 Hines considered the alien registration requirem ents imposed by the Alien

Registration Act of 1940, 54 Stat. 670. Sectoins 1304 and 1306 were adopted in 1953 as part

27 of the INA, which “incorporate[d]in substance the provisions of the Alien Registration Act,

1940, relating to the registration of aliens,” and added additional registration requirements.

28 H.R. Rep. 82-1365, 2d Session, 1952, 1952 U.S.C.C.A.N. 1653, 1723.

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1 Arizona’s criminal sanctions apply to aliens who violate either 8 U.S.C. § 1304(e), because

2 they failed to carry their registration cards, or § 1306(a), because they failed to register with

3 the federal government. S.B. 1070 § 3. But Hines held that states were precluded from

4 supplementing the federal im migration scheme, even if such regulations appear to

5 complement that scheme. See, e.g., Hines, 312 U.S. at 66-67; Garamendi, 539 U.S. at 420

6 n.11. Having piggybacked on the requirem ents of federal law, Arizona im poses its own

7 corresponding set of state imprisonment terms and fines for federal registration violations.

8 S.B. 1070 § 3(H). These state penalties can beimposed on an alien regardless of whether the

9 alien has already been punished by the federaglovernment under the federal alien registration

10 scheme, and they therefore allow for inc reased and varied punishm ent for registration

11 violations that happen to occur in Arizona. Id.33 Arizona’s creation of a state-specific

12 criminal scheme for individuals who violate the federal alie n registration laws directly

13 contravenes the choices made by Congress in providing uniform standards under federal

14 control. See Hines, 312 U.S. at 74. Arizona’s auxiliary penalties for violations of the federal

15 alien registration laws are therefore preempted.

16

What Arizona has done is no different from what the Supreme Court prohibited in

17 Wisconsin Department of Industry, Labor and Human Relations v. Gould, Inc ., 475 U.S.

18 282 (1986), where the Supreme Court struck down a Wisconsin law that prohibited certain

19 violators of the National Labor Relations Act (“NLRA”) fromdoing business with the State.

20 Id. at 283-84. The Court held that where states had no independent authority to “regulate

21 activity that the NLRA protects, prohibits, or arguably protects or prohibits,” so, too, are

22 states prohibited from “providing their own regulatory or judicial remedies for conduct

23 prohibited or arguably prohibited by the Act.” Id. at 286 (“The rule is designed to prevent

24 ‘conflict in its broadest sense’ with the ‘com plex and interrelated fede ral scheme of law,

25 remedy, and administration,’ . . . and this Court has recognized that ‘[c]onflict in technique

26 33 Unlike S.B. 1070, Congress carefully calibrated and imposed different penalties
27 for each specific alien registration violation. Compare 8 U.S.C. § 1304, with § 1306, and with S.B. 1070 § 3(H).
28

36

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1 can be fully as disruptive to the system Congress erected as conflict in overt policy.’”

2 (emphasis added)). Undoubtedly, under Hines, Arizona is barred from establishing its own

3 registration standards. So, just as in Gould, Section 3 “functions una mbiguously as a

4 supplemental sanction for [federal] violations” over which the state is powerless to control.

5 Id. at 288; see also Kobar, 378 F. Supp. 2d at 1174-75 (Bolton, J.) (finding state fraud claims

6 preempted where proving a violation of federal law was an essential element of the claim).

7

Here, if Arizona’s supplemental sanctions were deemed valid, aliens in Arizona and

8 any other state that imposed similar sanctions would be penalized in a different manner than

9 aliens who were subjected solely to the federal penal system – causing the inconsistent

10 treatment of aliens across the United States. Such a result, Hines held, would violate the

11 congressional demand for uniformtreatment of alien registration. See Hines, 312 U.S. at 72;

12 see also Nelson, 350 U.S. at 505-06. Moreover, the enforcement of obligations arising from

13 the relationship between the federal governm ent and persons it regulates – here, aliens

14 required to register under the INA – is for the federal government itself, and not an area of

15 traditional state regulation. See Buckman, 531 U.S. at 347; Nelson, 350 U.S. at 515 (“Alien

16 registration is not directly related to control of undesirable conduct; consequently there is no

17 imperative problem of local law enforcement.”).

18

b. Section 3 is Preempted Because it Seeks to Criminaliz e Unlawful Presence and Will Result in the Harassment of

19

Aliens

20

Finally, Section 3 of S.B. 1070 is preem pted because it is a thinly veiled and

21 impermissible attempt to criminalize unlawful presence. Section 3 is termed a “registration”

22 law, but on its face seeks to crim inalize only those aliens who are unlawfully present, by

23 providing an exception for any “ person who m aintains authorization from the federal

24 government to rem ain in the United States.” S.B. 1070 § 3(F). The existence of this

25 exception makes clear that, although Section 3 superficially tracks federal registration

26 provisions (which is itself im permissible, as described above), its aim is to crim inalize

27 unlawful presence, thus affording a basis for stopping and inspecting aliens (Section 2) and

28 criminally prosecuting them . The legisl ators who enacted S. B. 1070 have routinely

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1 confirmed that the goal of the statute was to “mak[e] it a state crim e to be in this country

2 illegally.”34

3

Whatever powers a state may have to enact laws that incidentally or indirectly touch

4 on aliens, a state may not criminalize unlawful presence – an immigration status created by

5 the federal scheme and of purely federal concern. See De Canas, 424 U.S. at 356–57.

6 Further, this focus on criminalizing unlawful presence is at odds with the policy objectives

7 underlying the federal scheme, in which Congress has repeatedly considered and rejected

8 attempts to criminalize unlawful presence. See S. 2454, 109th Cong. §§ 206, 275 (2006);

9 H.R. 4437, 109th Cong. § 203 (2005); see also Steinberg Decl. ¶ 34 (“United S tates

10 immigration law – and our uniform foreign policy regarding treatment of foreign nationals

11 – has been that the mere unlawful presence of a foreign national, without more, ordinarily

12 will not lead to that foreign national’s criminal arrest or incarceration. . . . This is a policy

13 that is understood internationally and one which is both im portant to and supported by

14 foreign governments.”).

15

Moreover, in pursuing this im proper goal, the schem e imposed by Arizona is

16 inconsistent with federal immigration laws and would result in the harassment of aliens who

17 are lawfully present or whose presence is known and accepted by the federal government.

18 As noted above, in many cases, aliens who are lawfully in the United States or seeking lawful

19 status will not be provided doc umentation that satisfies federal regulations governing

20

34 Kirk Adams, The Truth Behind the Arizona Law, Wash. Post, May 28, 2010 (Bus.

Sec.) (editorial from speaker of the Arizona House of Representatives). Section 3’s

21 legislative history also confirms that the statute was crafted specifically out of concern for

unlawfully present aliens. The section crimina lizing violations of federal registration law

22 was originally referred to as a “Trespassing”provision. Although Arizona has since changed

the title for this statutory section, the labeling was not accom panied by any change to the

23 substance of the provision that m ight suggest a changed intent for the statute. In fact, the

sponsors of S.B. 1070 continue d to refer to Section 3 as the “trespassing” provision even

24 after amending the section’s heading. See Minutes of Meeting of Com mittee on Military

Affairs and Public Safety, Considerationof S.B. 1070, March 31, 2010, at 2 (referring to the

25 registration requirements as constituting a “trespassing” provision). And one sponsor of S.B.

1070, Arizona Senator Russell Pearce, made clear that the changed label simply represented

26 a “change [to] the title to reflect a federal issue” and that, notwithstanding the changed label,

the purpose of this section was to “say[] that if you’re in Arizona . . . in violation of federal

27 law, that you can be arrested under sta te law.” See Recording of Meeting of House

Committee on Military Affairs and Public Safety, March 31, 2010, 18:15–18:39, available

28 at http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=7286.

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1 registration, and the federal governm ent properly takes that fact into account in its

2 enforcement of the registration statute. See Aytes Decl. ¶ ¶ 2, 5, 13, 17, 193.5 Section 3 thus

3 conflicts with and otherwise stands as an obstacle to the provisions of federal law and policy

4 allowing for certain types of hum anitarian relief. For these reasons, Arizona’s attem pt to

5 utilize the federal registration scheme to incarcerate those who are unlawfully present will

6 necessarily result in the broad harassment and detention of m any aliens who have a

7 legitimate immigration claim and whomthe United States would not punish,see Aytes Decl.

8 ¶¶ 2, 7, 12; Ragsdale Decl. ¶¶ 46, 47, 49. Section 3 is therefore independently preempted.

9

3. Section 4 of S.B. 1070 Amends Arizona’s Alien Smuggling Statute, Which is Preempted Because it Conflicts with Federal Law

10

Although ostensibly crafted to resemble the federal smuggling statute, Section 4 of

11 S.B. 1070 and the provisions of Arizona law it am ends conflict with Congress’s schem e

12 concerning smuggling and regul ation of the unlawful presence of aliens. Arizona’s

13 smuggling laws will also result in the harassm ent of lawfully present aliens. 36 They are

14 therefore preempted.

15

The INA embodies Congress’s considered judgment as to the appropriate punishments

16 for the commercial facilitation of unlawful im migration. In particular, the federal alien

17 smuggling provisions of the INA crim inalize knowing attempts to bring an alien into the

18 United States “at a place othe r than a designated port of entry or place other than as

19 designated by [DHS]” and also penalizes a person who, in k“nowing or in reckless disregard

20 of the fact that an alien has come to, entered, or remains in the United States in violation of

21

22

35 For exam ple, those aliens who are lawfully visiting the United States from

countries participating in the Visa Waiver Program will not have evidence of registration.

23 Aytes Decl. ¶ 21. Sim ilarly, aliens who ar e seeking hum anitarian relief by subm itting

applications for asylum, temporary protected status, or other forms of relief based on victim

24 status, will not have com pleted or received a docum ent evidencing “registration,” despite

having a legitimate claim and application in process.

25

36 Although several Arizona decisions have analyzed preemption challenges to the

26 smuggling provision, none have addressed the specific issues addressed herein. See We

Are America/Somos America, Coalition of Arizona v. Maricopa County Board of

27 Supervisors, 594 F. Supp. 2d 1104 (D. Ariz. 2009) (appeal pending); Arizona v. Flores,

188 P.3d 706 (Ariz. App. Div. 1 2008); State v. Barragan Sierra, 196 P.3d 879 (Ariz.

28 App. Div. 1 2008).

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1 law,” attempts to “transport or move such alien within” the United States “in furtherance of

2 such violation of law .” 8 U.S.C. § 1324(a) (em phasis added). Thus, in enacting this

3 provision, Congress decided that “smuggling” occurs only when transportation furthers an

4 alien’s illegal entry or unlawful presence in the country.See United States v. Rodriguez, 587

5 F.3d 573, 584 (2d Cir. 2009); United States v. Angwin, 271 F.3d 786, 805 (9th Cir. 2001);

6 see also United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999). In addition,

7 the federal smuggling scheme allows for prosecution of the transportation provider, andnot

8 of the unlawfully present alien. See United States v. Hernandez-Rodriguez, 975 F.2d 622,

9 626 (9th Cir. 1992).

10

Arizona’s smuggling provision differs from and conflicts with the federal smuggling

11 statute in several critical respects. First, Arizona’s smuggling provision is not related to

12 transportation that is provided “in furtheran ce” of unlawful immigration, as in the federal

13 alien smuggling statute. Indeed, a state prosecution under this provision would not require

14 that the state even prove, as an element of the crime, that the travel was “in furtherance” of

15 an immigration violation. Instead, Arizona law criminalizes the provision ofany commercial

16 transportation services – including taxis and buses – to an unlawfully present alien so long

17 as some objective basis should trigger the driver’s suspicion that the passenger is unlawfully

18 present. See Az. Rev. Stat. § 13-2319(A); see Flores, 218 Ariz. at 412. Second, Arizona’s

19 smuggling laws, coupled with Arizona’s conspiarcy statute, diverges fromfederal smuggling

20 law by imposing criminal sanctions on the alien “smugglee” himself. See Barragan Sierra,

21 196 P.3d at 888. Third, Arizona’s smuggling provision is not targeted at smuggling across

22 the United States’ international borders or at facilitation of an im migration crime, thus

23 widening the reach of the state law smuggling crime.

24

In addition to significantly expanding the scope of criminality far beyond the careful

25 balance that Congress struck in the INA, these va riances from federal law operate both

26 separately and in tandemto establish an anti-smuggling scheme that allows Arizona to punish

27 mere unlawful presence in the country by crim inalizing the use of paid transportation

28 services. This conflicts with federal law. As evidenced by the fact that the Arizona laws

40

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1 allow for the punishment of “self sm uggling” and broadly target the use of com mercial

2 transportation, the real purpose and effect of Arizona law is to criminally punish unlawful

3 presence. See De Canas, 424 U.S. at 356–57;see Oxygenated Fuels Ass’n v. Davis3, 31 F.3d

4 665, 672 (9th Cir. 2003) (“In analyzing conflict preemption, however, we examine not only

5 the purpose of [a state law]; we also examine its effects. Whatever the purpose . . . of the

6 state law, preemption analysis cannot ignore the effect of the challenged state action on the

7 pre-empted field.”); see also Anderson v. Mullaney , 191 F.2d 123, 127 (9th Cir. 1951)

8 (preemption concerns judged by effect of state law in addition to claiemd intent of state law).

9 But Congress, which controls the sanctions available for unlawful presence, chose not to

10 subject an unlawfully present alien to incarceration for m

erely using com mercial

11 transportation where such use has no bearing on the alien’s unlawful presence. See De

12 Canas, 424 U.S. at 355-56. Arizona’s criminalization of unlawful presence coupled with

13 the natural byproducts of unlawful presence – e.g., use of com mercial transportation and

14 “self-smuggling” – is directly at odds with Congress’s calibrated scheme of sanctions.

15

The Supreme Court has repeatedly held that state action is preem pted if it seeks to

16 impose additional burdens on aliens beyond those authorized by Congress. See, e.g., Chy

17 Lung, 92 U.S. at 281 (statute regulating arrival of passengers fromforeign port); Henderson

18 v. Mayor of the City of N.Y. , 92 U.S. 259 (1875) (sam e); cf. De Canas, 424 U.S. at 357

19 (distinguishing state law as non-preempted where it is “focus[ed]” and “tailored” on local

20 problem). Arizona’s smuggling laws conflict with Congress’s manifest intent to deter and

21 penalize unlawful immigration through a very specific set of mechanisms. See Crosby, 530

22 U.S. at 380 (internal citations omitted); cf. Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949,

23 966 (9th Cir. 2005) (“Where such a decision not to regulate represents . . . a considered

24 determination that no regulation is appropriate, that choice preempts contrary state law

25 imposing governing standards.” (internal quotation marks omitted)).

26

If that were not enough, Arizona’s smuggling statute will also result in the harassment

27 of lawful alien residents, conflicting with the federal immigration laws’ careful balance of

28 enforcement and civil liberties articulated by the Court in Hines. By crim inalizing the

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1 provision of transportation services based on immigration status (as opposed to conduct), and

2 by subjecting transportation providers to the statute’s criminal penalties upon a showing of 3 simple negligence,37 Arizona’s smuggling provisions will necessarily result in special and

4 unique burdens on and discrimination against lawful aliens. Because, under Arizona law, a

5 transportation provider can be charged with a felony for the merely negligent transportation

6 of unlawfully present aliens ( i.e., for providing transportation to an a lien who one might

7 objectively believe to be unlawfully present), risk-averse transportation providers will

8 inevitably (i) reject business fromlawfully present aliens so as to protect themselves against

9 a charge that they “should have known” that a passenger was an unlawfully present alien, or

10 (ii) demand that lawfully present aliens provide documentation to prove their immigration

11 status prior to using paid transportation se rvices. The sm uggling provision thus subjects

12 lawfully present aliens to specialized burdens of the type rejected in Hines. 312 U.S. at

13 73–74.

14

4. Section 5 of S.B. 1070 – Arizona’s New Criminal Sanction Against Unauthorized Aliens Who Solicit or Perform Work– is Preempted

15

by the Federal Employer Sanctions Scheme

16

Section 5 of S.B. 1070, which establishes crim inal penalties for unlawfully present

17 aliens who solicit or perform work in Arizona, is preempted by Congress’s comprehensive

18 scheme, set forth in the Im migration Reform and Control Act of 1986 (“IRCA”), for

19 regulating the employment of aliens.

20

IRCA reflects Congress’s deliberate choice not to criminally penalize unlawfully

21 present aliens for perform ing work, m uch less for attem pting to perform it.38 IRCA’s

22

37 Whereas Congress has opted to only criminalize intentional smuggling, Arizona’s

statute is triggered by the tra nsportation provider’s sim ple negligence in evaluating

23 immigration status. Compare 8 U.S.C. § 1324(a)(1)(A) (federal alien smuggling statute is only implicated where transportation provider “know[s] or . . . reckless[ly] disregard[s] the

24 fact that an alien” has unlawfu lly entered the Un ited States), with Az. Rev. Stat. § 132319(E)(3) (state smuggling statute is triggered wherever a transportation provider “knows

25 or has reason to know” that the persons transported have unlawfully entered or remained in the United States (emphasis added)); see also generally United States v. Townsend, 924 F.2d

26 1385, 1391 n.2 (7th Cir. 1991) (“[ U]sually in the law to say that som eone has ‘reason to know’ something means that he would be negligent in not knowing it.” (emphasis added)).

27

38 See Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Cor.p, 485 U.S. 495,

28

(continued...)

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1 “comprehensive scheme” places a primary emphasis on employer sanctions. See Hoffman

2 Plastic Compounds v. NLRB, 535 U.S. 137, 147 (2002); Lozano, 496 F. Supp. 2d at 477,

3 524-25. IRCA provides robust penalties for employers of unlawfully present aliens, and no

4 criminal penalties for unlawfully present aliens who simply perform or solicit employment.

5 See 8 U.S.C. § 1324a, et seq. Am ong its ma ny provisions targeting em ployers, IRCA

6 punishes employers for knowingly hiring unauthorized workers, 8 U.S.C. § 1324a(a)(1)(A);

7 prohibits employers from recruiting or referring for a fee such workers, id.; prohibits

8 continuing employment by employers of unauthorized workers,id. § 1324a(a)(2); sanctions

9 employers who use contracts or subcontracts to hire unauthorized workersid, . § 1324a(a)(4);

10 and requires employers to comply with a new “employment verification system,” id.

11 § 1324a(b). IRCA also created a detailed com pliance scheme to enforce an em ployer’s

12 obligations under the new law, with various monetary penalties for initial violations, larger

13 monetary penalties for subsequent violations, as well as the prospect of injunctive sanctions.

14 See id. § 1324a(e)(4); 8 C.F.R. § 274a.10. While IRCA’s prim ary focus is on em ployer

15 sanctions, Congress has demonstrated what sanctions would be appropriate for employees,

16 by providing very targeted sanctions against certain conduct of unauthorized aliens, such as

17 the presentation of fraudulent documents to demonstrate work eligibility. See 8 U.S.C.

18 § 1324c.

19

But beyond these penalties linked to specific acts, IRCA does not crimnalize the mere

20 performance or solicitation of work by an unlawfully present alien. Congress’s focus on

21 employers was intentional, and refle cted its belief that sanctions on em ployees were

22

38 (...continued)

503 (1988) (“Where a comprehensive federal scheme intentionally leaves a portion of the

23 regulated field without controls, then the pre-em ptive inference can be drawn – not from

federal inaction alone, but from inaction joined with action.”); Adkins v. Mireles, 526 F.3d

24 531, 539 (9th Cir. 2008) (“State law m ay constitute a n impermissible obstacle to the

accomplishment of purposes of Congress by regulating conduct that federal law has chosen

25 to leave unregulated.” (internal quotation marks omitted)); accord Transcontinental Gas Pipe

Line Corp. v. State Oil & Gas Bd. of Miss ., 474 U.S. 409, 422 (1986) (“To the extent that

26 Congress denied FERC the power to regulate affirmatively particular aspects of the first sale

of gas, it did so because it wanted to leave determination of supply and first-sale price to the

27 market. A federal decision to forgo regulation in a given area m ay imply an authoritative

federal determination that the area is best left unregulated, and in that event would have as

28 much preemptive force as a decision to regulate.” (internal quotation marks omitted)).

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1 inappropriate. As the Ninth Circuit has explained, although Congress “discussed the merits

2 of fining, detaining or adoptingcriminal sanctions against the employee, it ultimately rejected

3 all such proposals. . . . Instead, it deliberately adopted sanctions with respect to theemployer

4 only.” See Nat’l Ctr. for Immigrants’ Rights v. INS , 913 F.2d 1350, 1368 (9th Cir. 1990)

5 (rev’d on other grounds , 502 U.S. 183 (1991)) (e mphasis in original). IRCA therefore

6 embodied a “congressional policy choice [that was]clearly elaborated” in favor of sanctions

7 only for the employer. Id. at 1370. IRCA’s legislative history further confirms that Congress

8 affirmatively rejected criminal penalties for the unlawfully present employee for important

9 policy reasons. Congress’s concern about the hum anitarian consequences of c riminally

10 punishing employees prompted it to exc lusively enact punishments for the em ployer and

11 reject such punishments for the employee.39

12

By attempting to override Congress’s conscious choice not to crim inally punish

13 unlawful aliens for soliciting or performing work, Arizona has created a clear conflict with

14 federal law. See Crosby, 530 U.S. at 380; Puerto Rico Dept. of Consumer Affairs, 485 U.S.

15 at 503. But the Suprem acy Clause does not permit Arizona to second-guess Congress’s

16 decision not to impose sanctions on employees. See, e.g., Thunder Craft Boats, Inc., 489

17 U.S. at 152; Felder, 487 U.S. at 143.

18

5. Section 5 of S.B. 1070 – Ariz ona’s Transporting, Harboring, or Concealing Provision – Violates Preemption and Dormant

19

Commerce Clause Principles

20

The second provision of Section 5 of S.B. 1070 makes it illegal for a person, who is

21 in violation of a criminal offense, to (1) transport an alien in Arizona in furtherance of the

22 unlawful presence of the alien in the United St ates; (2) conceal, harbor, or shield an alien

23 from detection in any place in the state; and (3) encourage or induce an alien to come to or

24

39 See H.R. Rep. No. 99-682(I) at 46 (“Now, as in the past, the Committee remains

convinced that legislation containing employer sanctions is the most humane, credible and

25 effective way to respond to the large-scale influx of undocumented aliens.”); see also Nat’l

Ctr. for Immigrants’ Rights, 913 F.2d at 1366, 1369 (“The emphasis on employer sanctions

26 in IRCA militates against reading in the authority to detain individuals to prevent themfrom

working.”); Ragsdale Decl. ¶ 21. And Congress’s intent not to punish unauthorized aliens

27 for seeking employment was further evidenced through the simultaneous passage of other

sections of IRCA, which coupled new employer sanctions with the adjustment of status for

28 certain alien workers present in the United States. See 8 U.S.C. §§ 1160, 1255a.

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1 reside in this state if the person knows that such coming to, entering or residing in this state

2 is or will be in violation of law. S.B. 1070 § 5(A) (§ 13-2929). This provision represents

3 an invalid incursion on federal authority for two reasons.

4

First, to the extent that Section 5 is not a restriction of interstate m ovement, it is

5 necessarily a restric tion on unlawful entry into the United States. As a border state,

6 Arizona’s boundaries are in part the boundaries of the United States. Section 5 represents

7 an attempt to regulate entry into the nation – a definitively federal area of concern in which

8 state regulations are barred by the U.S. Constitution.See De Canas, 424 U.S. at 355 (a state

9 may not attempt to regulate “who should or should not be admitted into the country, and the

10 conditions under which a legal entrant may remain”). The degree of Arizona’s intrusion into

11 the uniquely federal area of unlawful entry is further underscored by the fact that Arizona

12 construes such prohibitions on immigration conduct to apply to the alien himself. See, e.g.,

13 Barragan-Sierra, 196 P.3d at 888.

14

Second, this provision offends the Dorm ant Commerce Clause by restricting the

15 interstate movement of aliens. Article I, Section 8 of the Constitution grants Congress the

16 right to regulate commerce between the states – a positive grant of power that forbids state

17 regulations that intentionally interfere with interstate commerce. The “Dormant Commerce

18 Clause” forbids certain state regulations attempting to discourage or otherwise restrict the

19 movement of people between states. See Edwards v. California , 314 U.S. 160, 172-73

20 (1941). Edwards involved a challenge to a depression-era California statute prohibiting “the

21 ‘bringing’ or transportation of indigent persons into California.” Id. at 173. The Supreme

22 Court invalidated the statute under the Dorm ant Commerce Clause, which “prohibit[s]

23 attempts on the part of any single State to isolate itself from difficulties common to all of

24 them by restraining the transportation of persons and property across its borders.” Id.; see

25 also Camps Newfound/Owatonna v. Town of Harrison , 520 U.S. 564, 584 (1997)

26 (reaffirming that the Dormant Commerce Clause prohibits certain limitations on the interstate

27 transportation of persons);Anderson v. Mullaney, 191 F.2d 123, 127 (9th Cir. 1951) (holding

28 that Alaska violated the Dormant Commerce Clause in enacting a scheme of regulations that

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1 discouraged the movement of out-of-state fishermen into Alaska).

2

Arizona’s prohibition on encouraging movement into the state similarly violates the

3 Dormant Commerce Clause. The prohibition on “encourag[ing]an alien to come to or reside

4 in” Arizona aims to restrict the movement of unlawfully present aliens fromother states into

5 Arizona. Although the statute claims only to apply where an alien’s “entering or residing in

6 [Arizona] is or will be in violation of law”, S.B. 1070 § 5(A), unlawfully present aliens who

7 are subject to Section 3 of S.B. 1070 will usually emet this condition. Even though Arizona’s

8 statute is phrased in similar terms as the federal alien smuggling statute, the latter deals with

9 actual immigration – the movement across an international border – whereas the former also

10 regulates movements within the United States. This restriction on m ovement within the

11 states is prohibited by the Dormant Commerce Clause.40

12

II.

THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION

13

Upon demonstrating a likelihood of success on the m erits, a plaintiff m ust also

14 establish that, absent the prelim inary injunction, there is a likelihood that the defendant’s

15 conduct will cause irreparable harm. See Winter, 129 S. Ct. at 375. Preliminary injunctive

16 relief is necessary here because S.B. 1070 is causing irreparable harm to the United States,

17 and this harm will only be magnified if the law goes into effect.41 If not enjoined, S.B. 1070

18 will continue to cause irreparable harmto the United States in at least three significant ways.

19

First, S.B. 1070 irreparably unde rmines the federal government’s control over the

20 40 Additionally, Section 5 of S.B. 1070 directly conflicts with a section of the federal
21 alien smuggling statute (8 U.S.C. § 1324(a)(1)(C)), which provides a distinct carve-out for certain religious organizations which would nowbe punishable under Arizona law. Certain
22 religious organizations that meet the requirements of § 1324(a)(1)(C) and which conceal, harbor, or shield an alien whom they know to have illegally entered or rem ained in the
23 United States, would be in violation of Section 5 of the Arizona law, despite an express command from Congress that such behavior not be subject to criminal sanctions.
24 41 The Ninth Circuit has traditionally used a “sliding scale” approach to the
25 irreparable harm standard, pursuant to which the burden for demonstrating irreparable harm decreases as the likelihood of success on the merits increases. See Stormans, 526 F.3d at
26 412. The Supreme Court has re cently held that this approach m ay not allow preliminary relief upon a showing of only a “possibility” of irreparable harm . Winter, 129 S.Ct. at
27 375–76. However, regardless of whether a “sliding scale” is epmloyed here, injunctive relief is appropriate because, as discussed below, the United States will suffer irreparable harm
28 absent an injunction.

46

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 51 of 58

1 regulation of immigration and immigration policy and thereby interferes with the federal

2 government’s ability to achieve the purposes and objectives of federal law and to pursue its

3 chosen enforcement priorities. If S.B. 1070 is perm itted to become effective on July 29,

4 2010, the federal governm ent’s chosen polic y balance with respect to im migration

5 enforcement will be altered and, during the pendency of this action, the federal governemnt’s

6 ability to balance the various interests that animate the federal im migration laws will be

7 seriously damaged. Among other things, as discussed above, S.B. 1070 seeks to override,

8 and would impair the ability of DHS to execute, the federal enforcement priority to locate,

9 detain, prosecute and remove violent criminal aliens who pose significant risks to the safety

10 and security of our Nation’s citizens. This assault on federal priorities is not speculative; it

11 is the avowed pur pose of S.B. 1070. See S.B. 1070 § 1. By violating the Constitution’s

12 structural reservation of authority to the federal government to set immigration policy, S.B.

13 1070 effects ongoing irreparable harmto the constitutional order. Indeed, the Supreme Court

14 has suggested that irreparable harm inherently results from the enforcement of a preempted

15 state law. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-

16 67 (1989) (suggesting that “irreparable injury may possibly be established . . . by a showing

17 that the cha llenged state statute is flagrantly and patently violative . . . . of the express

18 constitutional prescription of the Supremacy Clause”).

19

Second, the enforcement of S.B. 1070 will inflict irreparable injury on the United

20 States’ ability to manage foreign policy. The mere existence of Arizona’s “attrition through

21 enforcement” policy – with its concom itant promise of the sweeping crim inalization of

22 immigrant populations – has already had negative effects on U.S . foreign policy interests,

23 and these consequences will intensify if S.B. 1070 is perm itted to operate. See Steinberg

24 Decl. ¶ 34-44. Harm to the federal government’s ability to address issues of concern to the

25 United States and its citizens in foreign affairs – such as immigration, national security, and

26 economic policy – cannot be undone by court order.

27

Foreign leaders from around the Western Hemisphere and elsewhere, including the

28 government of Mexico, have criticized S.B1. 070, and that has undermined the United States’

47

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 52 of 58
1 ability to pursue various diplomatic objectives. See Steinberg Decl. ¶¶ 34-40. In one 2 instance, because of the passage of S.B. 1070, Mexico postponed consideration of a bilateral 3 agreement with the United States for coordinating responses to natural disa sters and 4 accidents. See id. ¶ 43. In another case, at least five of six Me xican governors have 5 announced their refusal to participate in the U.S.-Mexico Border Governors’ conference, 6 wherein significant cross-border issues would have been discussed. See id. ¶ 42. And 7 Mexico has further limited its participation in the Merida initiative, a partnership aimed at 8 confronting violent transnational gangs. See Silver Decl. ¶ 7. Mexican President Calderón 9 has publicly stated that he views S.B1. 070 as undermining Mexican popular goodwill toward 10 the United States, and com plicating his country’s ability to rem ain focused on a positive 11 bilateral agenda of critical im portance to U.S. national interests. See, e.g., Travel Alert, 12 Secretaría de Relaciones Exteriores, Mexico, Apr. 27, 2010; Mexican President Calderón’s 13 Address to Joint Meeting of Congress, May 20, 2010.42 Such reactions are the predictable 14 result of a state immigration policy whose exclusive aim is “attrition” of foreign nationals 15 in Arizona through a policy of maximum “enforcement” of particular criminal sanctions – 16 a policy given teeth by a mandatory, discretion-less verification scheme that enforces a series 17 of interlocking and virtually autom atic criminal penalties. Steinberg Decl. ¶ 22 (“The 18 exercise of immigration functions can quickly provoke a significant bilateral or multilateral 19 problem that harms U.S. interests if handled without appropriate consideration of relevant 20 foreign policy impacts.”), ¶¶ 20, 32 (“[D]omestic processes for arrest, detention, and removal 21 . . . are of great interest to foreign governments,” and as a “matter of international law and 22 practice, the federal government is held accountable . . . for the actions of state and local 23 authorities regarding our treatm ent of foreign nationals.”). These foreign policy 24 consequences, which will only be magnified by S.B. 1070's implementation, are paradigmatic 25 examples of irreparable harm: Once opportunities for cooperation are lost, they cannot be
26 42 See also Brief of the United Mexican States as amicus curiae, Friendly House v.
27 Whiting, No. 10-CV-1061 (D. Ariz.) (describing Mexico’s objec tions to S.B. 1070 and impediments that S.B. 1070 will create to certain cooperative arrangements with the United
28 States).
48

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 53 of 58

1 recovered by a favorable judgment at the conclusion of this case.

2

More generally, the State Departm ent has advised that S.B. 1070 represents an

3 impediment to U.S. foreign policy and di plomatic interests – both with Mexico and with

4 other countries. See Steinberg Decl. ¶ 58 (“I have concluded that S.B. 1070 runs counter to

5 American foreign policy interests, and that its enforcem ent would further underm ine

6 American foreign policy.”). And suc h damage to foreign relations will have an adverse

7 effect on federal immigration enforcement. See Ragsdale Decl. ¶ 54 (“Should there be any

8 decreased cooperation from foreign governments in response to Arizona’s enforcement of

9 SB 1070, the predictable result . . . would be an a dverse impact on the effectiveness and

10 efficiency of ICE’s enforcement activities”); id. ¶¶ 29-32 (cooperation with Mexico is critical

11 to border security a nd for effectuating rem oval of dangerous or crim inal aliens from the

12 United States). The State Department carefully cu ltivates relationships with foreign

13 governments so as to enable maximum cooperation on issues of concern to the United States

14 and its citizens – such as immigration, national security, and economic policy. Damage that

15 is done to these relationships is irreparable,as it cannot be undone by court order. Nor is this

16 damage speculative; it has already manifested itself due to the passage of S.B. 1070, and it

17 will only increase significantly if S.B. 1070 is a llowed to be enforced. Indeed, with the

18 deepest understanding of these complex foreign relationships, the State Department advises

19 that S.B. 1070 “is likely to hinder our ability to secure the cooperation of other states in

20 efforts to prom ote U.S. interests internationa lly across a range of trade, security, [ and]

21 tourism,” is “likely to underm ine the United States’ ability to engage effectively with the

22 international community to promote the advancement and protection of human rights,” and

23 “risk[s] provoking retaliatory treatment against U.S. nationals by other states.” Steinberg

24 Decl. ¶ 57. This ongoing and expected irreparable harm to weighty foreign policy interests

25 alone warrants prelim inary injunctive relief. See Garamendi , 539 U.S. 396 (upholding

26 district court’s injunction due to interference with foreign policy).

27

Similarly, for the m ultiple reasons discusse d above, S.B. 1070 will result in the

28 harassment of lawfully present aliens, which frustrates the United States’ relationship with

49

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 54 of 58

1 immigrant communities and damages the United States’ reputation as a welcoming country

2 for lawfully admitted aliens. See Steinberg Decl. ¶ 20 (explaining that foreign governments

3 take great interest in domestic processes for arrest and detention of aliens, because of “the

4 impact these processes have on foreign nationals and their families.”); see generally Rent-A-

5 Center, Inc. v. Canyon Television & Appliance Rental, Inc ., 944 F.2d 597, 603 (9th Cir.

6 1991) (recognizing that injuries to reputation constitute irreparable harm); Apple Computer,

7 Inc. v. Formula Int’l, Inc., 725 F.2d 521, 526 (9th Cir. 1984) (same).

8

In addition, DHS, which “maintains the primary interest in the humane treatment of

9 aliens and the fair adm inistration of federal im migration laws,” has advised that such

10 “humanitarian interests would be underm ined” if certain aliens or categories of aliens a re

11 “detained or arrested by Arizona authorities for being illegally present in the United States,”

12 Ragsdale Decl. ¶ 47, including aliens eligible for or seeking asylum, id. ¶ 48, aliens seeking

13 protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading

14 Treatment or Punishment, id. ¶ 50, and aliens in various other circumstances which require

15 individualized discretion, id. ¶¶ 47, 49. However, because it is impossible for the state to

16 know when ICE would apply such discretion, and because S.B. 1070’s blanket and

17 mandatory “attrition through enforcement” policy makes any such knowledge irrelevant, it

18 is all but guaranteed that S.B. 1070 will work a very real and irreparable interference with

19 Congress’s humanitarian objectives and enforcement priorities, which are now carried out

20 by ICE’s measured exercise of discretion. See Ragsdale Decl. ¶¶ 18, 24, 25 (explaining uses

21 of discretion for humanitarian interests). A court cannot undo the interference with federal

22 enforcement priorities, nor can it undo the effect of a victim ized alien’s detention or

23 incarceration, or the message that such treatment would convey abroad.

24

Finally, irreparable harm will result because the enforcem ent of S.B. 1070 will, as

25 discussed above, place a significant burden on DHS resources and force DHS to react to

26 Arizona’s enforcement of S.B. 1070 at the expense of its own policy priorities – nam ely,

27 aliens presenting threats to national security and public safety. See Ragsdale Decl. ¶ 41

28 (“[T]he burdens placed by SB 1070 on the Federal Government will impair ICE’s ability to

50

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 55 of 58

1 pursue its enforcement priorities.”); Palmatier Decl. ¶ 15-17. Section 2 of S.B. 1070 will

2 result in a dram atic increase in verificati on requests to DHS. Su ch an increase is not

3 speculative; it is the exact point of the law. See Palmatier Decl. ¶ 15 (“Arizona’s new law

4 will result in an increase in the number [of queries] . . . reducing our ability to provide timely

5 responses to law enforcem ent on serious crim inal aliens.”); Ragsdale Decl. ¶ 44 (“[T] o

6 respond to the number of referrals likely to be generated by enforcement of SB 1070 would

7 require ICE to divert existing resources from other duties.”); id. ¶ 52 (noting that without

8 diverting resources from federal priorities, ICE is not staffed to provide testim ony in

9 additional hearings against aliens in Arizona). And, as explained above, the greater share of

10 DHS’s attention that Arizona receives as a result will reduce the federal ability to pursue

11 highly dangerous aliens. If S.B. 1070 is not enjoined, every day the federal government is

12 forced to focus on managing the output of S.B. 1070 rather than on these dangerous aliens

13 will constitute an irreparably lost opportunity to focus on higher priority targets. This, in

14 turn, poses significant and irreparable risks to the safety and security of our Nation’s citizens.

15

Enforcement of S.B. 1070s' mandatory attrition provisions will similarly interfere with

16 ICE’s outreach program, which ensures the assistance of unlawfully present aliens in the

17 prosecution of higher priority threats and will also endanger federal imigration authorities’

18 capacity to apprehend highly dangerous targets.See id. ¶ 33 (S.B. 1070 “would . . . interfere

19 with ICE’s ability to pursue the prosecution or rem oval of aliens who pose pa rticularly

20 significant threats to public safety or national security.”); ¶ 38 (“[V]ictims and witnesses of

21 crime may hesitate to come forward to speak to law enforcement officials”); Palmatier Decl.

22 ¶ 17 (predicting that, as a result of S.B. 1070, “serious violators amy well escape scrutiny and

23 be released before the LESC can respond to police and inform them of the serious nature of

24 the [unlawfully present] alien they have encountered.”). Once this type of damage is done

25 to ICE’s enforcement priorities during the period in which “attrition through enforcement”

26 supplants the federal government’s balanced set of values, no final judgment can undo it.

27

28

51

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 56 of 58

1 III. A BALANCING OF EQUITIES FAVORS THE UNITED STATES AND

DEMONSTRATES THAT THE PUBLIC INTEREST WOULD BE SERVED

2

BY GRANTING INJUNCTIVE RELIEF

3

Finally, injunctive relief is necessary becausea consideration of the public interest and

4 the balance of hardships between the parties favors enjoining S.B. 1070.See Stormans, 586

5 F.3d at 1127. In this action, which seeks to protect the interests of the United States as a

6 whole, the burdens that will result a bsent injunctive relief are directly tied to the public

7 benefits that will be prot ected if this Court issues the requested injunction. Cf. Nken v.

8 Holder, 129 S. Ct. 1749, 1762 (2009) (stating, in the related context of criteria governing stay

9 of removal, that the criteria of “harmto the opposing party” and “the public interest” “merge

10 when the Government is the opposing party” because harmto the Government is harm to the

11 public interest). That is particularly the case given that this lawsuit seeks to vindicate the

12 supremacy of federal law. See California Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847,

13 853 (9th Cir. 2009) (noting, in considering the balance of equities in the context of

14 preliminary injunction, that “the interest of preserving the Supremacy Clause is paramount”

15 and citing Ninth Circuit precedent “considering the public interest represented by the

16 Constitution’s declaration that fede ral law is to be suprem e” (internal quotation m arks

17 omitted)).

18

As discussed throughout this memorandum, a variety of national, public interests are

19 endangered by the operation of S.B. 1070, and will be promoted by the issuance of the

20 requested injunction. Preliminary injunctive relief will help relieve federal im migration

21 authorities of the burdens created by S.B. 1070, thereby allowing them to focus on high

22 priority issues of national security and public safety. The prospect of interference with

23 federal priorities is a clear burden on the United States, just as the a bility to pursue these

24 priorities without interruption from S.B. 1070 would benefit the public interest.

25 Additionally, absent an injunction, S.B. 1070’s dam age to foreign policy will continue

26 unabated – thereby limiting the federal government’s ability to productively cooperate with

27 other countries on issues of public importance, such as national security, trade, tourism, and

28 the environment. The operation of S.B. 1070 will also harm U.S. interests by im posing

52

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 57 of 58

1 special burdens on lawfully present aliens – thereby endangering cooperative relationships

2 with this community while directly injuring the reputation and goodwill of the United States.

3 Injunctive relief will serve the public interest by helping to prevent these burdens to aliens

4 specifically and American goodwill generally.

5

By contrast, a prelim inary injunction will not m eaningfully burden Arizona. S.B.

6 1070 has not yet gone into effect, so an injunction in this context would have the effect of

7 merely preserving the status quo. See U.S. Philips Corps. v. KBC Bank, 590 F.3d 1091, 1094

8 (9th Cir. 2010) (“[T]he very purpose of a preliminary injunction . . . is to preserve the status

9 quo and the rights of the parties until a final judgment issues in the cause.”). Were this Court

10 ultimately to conclude that S.B. 1070 does not offend the Supremacy Clause, Arizona would

11 then be able to im plement and enforce S.B. 1070 without having suffered any substantial

12 burden. What is more, given that this litigation largely concerns immigration law and policy

13 – in which, by any plausible account, the federal interest is paramount and the state interest

14 is (at most) minimal, see, e.g., De Canas, 424 U.S. at 355 – the burden on Arizona from a

15 preliminary injunction would be modest. Indeed, Arizona has no legitimate interest in the

16 enforcement of a law that likely violates the Supremacy Clause. See Chamber of Commerce

17 of U.S. v. Edmonson, 594 F.3d 742, 771 (10th Cir. 2010) (“Oklahom a does not have an

18 interest in enforcing a law that is likely constitutionally infirm.”).

19

20

CONCLUSION

21

For the foregoing reasons, the Court should grant the United States’ Motion for a

22 Preliminary Injunction.

23 DATED: July 6, 2010

24

Respectfully Submitted,

25

Tony West

Assistant Attorney General

26

Dennis K. Burke

27

United States Attorney

28

53

Case 2:10-cv-01413-SRB Document 27 Filed 07/07/10 Page 58 of 58

1

Arthur R. Goldberg

Assistant Director, Federal Programs Branch

2

/s/ Varu Chilakamarri

3

Varu Chilakamarri (NY Bar #4324299)

Joshua Wilkenfeld (NY Bar #4440681)

4

U.S. Department of Justice, Civil Division

20 Massachusetts Avenue, N.W.

5

Washington, DC 20530

Tel. (202) 616-8489/Fax (202) 616-8470

6

varudhini.chilakamarri@usdoj.gov

Attorneys for the United States

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

54

 
 Case 2:10-cv-01413-SRB Document 14 Filed 07/08/10 Page 1 of 5

1 Ricardo Solano, Jr. (NY Bar #3040433) (admitted pro hac vice)

2 Jessica A. Murzyn (NY Bar #3007119)* Ellen London (NY Bar #4605671)*
3 Friedman Kaplan Seiler & Adelman LLP

4

1633 Broadway New York, New York 10019

5 (212) 833-1100

RSolano@fklaw.com 6 JMurzyn@fklaw.com

7 ELondon@fklaw.com

8 Anthony S. Barkow (NY Bar #4745220)*

Anne Milgram (NY Bar #2841492)* 9 Center on the Administration of Criminal Law

10

At NYU School of Law

139 MacDougal Street, Room 307

11 New York, New York 10012

(212) 998-6612 12 Anthony.Barkow@nyu.edu

13 Anne.Milgram@nyu.edu

14 *Application For Admission Pro Hac Vice Pending
15 Attorneys For Amicus Curiae, The Center on the Administration of Criminal Law

16 IN THE UNITED STATES DISTRICT COURT
17 FOR THE DISTRICT OF ARIZONA
18

19 20 The United States of America,

21

Plaintiff,

No. 2:10-cv-1413-SRB

22

v.

23 The State of Arizona; and Janice K. Brewer,
24 Governor of the State of Arizona, in her 25 Official Capacity,

26

Defendants.

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE THE CENTER ON THE ADMINISTRATION OF CRIMINAL LAW

27 898991.1

28

Case 2:10-cv-01413-SRB Document 14 Filed 07/08/10 Page 2 of 5

1

Pursuant to Fed. R. Civ. P. 7 and Local Rule 7.2, the Center on the Administration

2 of Criminal Law (the “Center”) moves this Court for permission to participate in this matter for

3 the limited purpose of filing the concurrently-lodged brief as amicus curiae in support of

4 Plaintiff’s Motion for Preliminary Injunction (Docket. No. 6).

5

STATEMENT OF INTEREST

6 The Center, based at New York University School of Law, is dedicated to defining

7 and promoting good government practices in the criminal justice system through academic

8 research, litigation, and participation in the formulation of public policy. The Center’s litigation

9 practice aims to use the Center’s empirical research and experience to assist courts in important

10 criminal justice cases. As the Center’s name suggests, it is devoted to improving the quality of

11 the administration of criminal justice and advocating the adoption of best practices through its

12 scholarly, litigation, and public policy components.

13

14

The Center’s Executive Director, Anthony S. Barkow, was a federal prosecutor for

15 12 years and worked in two United States Attorney’s Offices—the United States Attorney’s

16 Office for the Southern District of New York, where he prosecuted terrorism cases, and the

17 United States Attorney’s Office for the District of Columbia—and in the United States

18 Department of Justice in Washington, D.C. The Center’s Senior Fellow, Anne Milgram, was the

19 Attorney General of the State of New Jersey from 2007 to 2010, where she spearheaded

20 investigations into gang violence, public corruption, and mortgage foreclosure and debt

21 reduction schemes. Before that, she was a prosecutor in the Manhattan District Attorney’s Office

22 and in the United States Department of Justice’s Civil Rights Division, Criminal Section, where

23 she prosecuted human trafficking crimes.

24

25

26

27 898991.1

28

Case 2:10-cv-01413-SRB Document 14 Filed 07/08/10 Page 3 of 5

1

ARGUMENT

2

The central issue in this case is whether Arizona Senate Bill 1070, as amended by

3 Arizona House Bill 2162 (the “Arizona immigration law”) is preempted by federal law. Plaintiff,

4 United States of America, has recently moved for a preliminary injunction enjoining enforcement

5 of the law on preemption grounds. In its brief in support of its motion for a preliminary

6 injunction, the plaintiff also briefly raises the concern that the Arizona immigration law will

7 “endanger[] cooperative relationships with this community” and negatively impact the goodwill

8 of lawfully present aliens towards the United States. (Docket No. 6, at 56-57.) The Center

9 agrees with the arguments of the plaintiff and files an amicus brief to elaborate and expand upon

10 that concern by demonstrating that the Arizona immigration law is counterproductive to good

11 government practices in the criminal justice system and the law enforcement community overall.

12

In particular, the Center argues that the Arizona immigration law, by placing local

13 police officers in the position of acting as immigration officials, will drive a wedge between

14 police officers and the immigrant communities they serve. The Center’s brief demonstrates that

15 the principal mission of local law enforcement officers is to enforce State, County, and local

16 criminal laws and to protect the communities they serve. To that end, a critical component of

17 achieving success in that mission is having the cooperation and trust of the members of those

18 communities. Maintaining a strong, positive relationship between police officers and the

19 community promotes public safety because individuals feel more comfortable coming forward to

20 report suspicious activity and to cooperate with law enforcement working to solve or prosecute a

21 crime. As the Center’s brief makes clear, the Arizona immigration law threatens to undermine

22 those relationships with a large segment of the community—in particular, immigrant members—

23 by making them fearful that interacting with police officers will result in deportation for

24 themselves or someone they know. Public safety and national security will suffer as police

25

26

27 898991.1

28

Case 2:10-cv-01413-SRB Document 14 Filed 07/08/10 Page 4 of 5

1 officers lose valuable information that allows them to prevent and solve crime locally and to

2 prevent terrorist acts against our nation.

3

For these reasons, the Center respectfully requests that the Court grant this

4 Motion and accept its amicus brief.1

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25 1 No party, party’s counsel, or amicus has contributed money to the preparation of the Center’s 26 amicus brief.

27 898991.1

28

Case 2:10-cv-01413-SRB Document 14 Filed 07/08/10 Page 5 of 5

1 2 Dated: New York, New York
July 8, 2010 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 898991.1 28

Respectfully submitted,
/s/ Ricardo Solano Jr.
Ricardo Solano Jr. (admitted pro hac vice) Jessica A. Murzyn* Ellen London* Friedman Kaplan Seiler & Adelman LLP 1633 Broadway New York, New York 10019 (212) 833-1100 RSolano@fklaw.com JMurzyn@fklaw.com ELondon@fklaw.com
Anthony S. Barkow* Anne Milgram* Center on the Administration of Criminal Law
At NYU School of Law 139 MacDougal Street, Room 307 New York, New York 10012 (212) 998-6612 Anthony.Barkow@nyu.edu Anne.Milgram@nyu.edu
Attorneys for The Center on the Administration of Criminal Law
4

 
 Case 2:10-cv-01413-SRB Document 30 Filed 07/14/10 Page 1 of 4

1 Timothy J. Casey (#013492)

SCHMITT, SCHNECK, SMYTH & HERROD, P.C. 2 1221 East Osborn Road, Suite 105

3

Phoenix, AZ 85014-5540 Telephone: (602) 277-7000

4 Facsimile: (602) 277-8663 timcasey@azbarristers.com

5 Attorney No. 013492

6

Special Assistant Attorney General for Michigan For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands,

7 Pennsylvania, South Carolina, South Dakota, Texas, and Virginia

8 Michael A. Cox Attorney General of the State of Michigan
9 B. Eric Restuccia (MI Bar No. 49550)
10 Solicitor General
11 Mark Sands (MI Bar No. 67801) Assistant Attorney General
12 P.O. Box 30212, Lansing, MI 48909
13 Telephone: (517) 373-1124 RestucciaE@michigan.gov
14 SandsM1@michigan.gov
15

16

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

17

18 The United States of America,

No. CV-10-1413-PHX-SRB

19

Plaintiff,

20 v.

21 The State of Arizona; and Janice K. Brewer, 22 Governor of the State of Arizona, in her
Official Capacity, 23
Defendants. 24

MOTION AND MEMORANDUM FOR REQUEST TO FILE BRIEF OF AMICI CURIAE MICHIGAN, FLORIDA, ALABAMA, NEBRASKA, NORTHERN MARIANA ISLANDS, PENNSYLVANIA, SOUTH CAROLINA, SOUTH DAKOTA, TEXAS, AND VIRGINIA

25 Pursuant to Fed. R. Civ. P. 7 and L.R. 7.2, Michigan respectfully moves for leave to file
26 the concurrently-lodged brief as amici curiae on behalf of itself and Florida, Alabama, Nebraska,
27 28 Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia in
1

Case 2:10-cv-01413-SRB Document 30 Filed 07/14/10 Page 2 of 4

1 opposition to Plaintiff's Motion for Preliminary Injunction (dkt. 6). The amici, as co-participants 2 with Arizona in the concurrent enforcement scheme envisioned by Congress, seek to offer their

3 expertise and perspective to this Court considering this important question of State authority

4 under the immigration law. Specifically, the amici wish to address the question of whether they

5 will be permitted to provide assistance to the Federal government in enforcing Federal
6 immigration law – and in particular whether the amici will continue to have the authority to
7
8 arrest a person for violating Federal immigration law.

9

This Court has full discretion in determining whether to grant amicus status to ILWU.

10 Hoptowit v. Ray, 682 F.2d 1237, 1261 (9th Cir. 1982); Silver v. Babbitt, 166 F.R.D. 418, 434 (D.

11 Ariz. 1994). Like Arizona, the amici are voluntary participants in the Congressional scheme to
12 provide for concurrent enforcement of Federal immigration law. The primary tool of the States
13 to assist the Federal government in enforcing Federal immigration law is the power of State law-
14
15 enforcement officers to arrest persons where there is probable cause that an individual is

16 unlawfully present in the United States, Gonzalez v. Peoria, 722 F.2d 468, 477 (9th Cir. 1983),

17 or to investigate an individual's immigration status where there is reasonable suspicion that the

18 person is in the country unlawfully. See United States v. Salinas-Calderon, 728 F.2d 1298, (10th

19 Cir. 1984). In fact, the Department of Justice itself in a 2002 memorandum expressed the view
20
that States have "inherent power" to arrest aliens for immigration violations. 21

22

If the United States's preemption argument were to prevail, and this Court were to

23 conclude that Arizona could not mandate that its law enforcement officers investigate potential

24 violations of Federal immigration law when there is "reasonable suspicion" that the laws have
25 been violated, the ability of the amici to assist in the enforcement of immigration law would be
26 compromised. In the place of the cooperative-enforcement scheme established by Congress, the
27

28 2

Case 2:10-cv-01413-SRB Document 30 Filed 07/14/10 Page 3 of 4

1

position of the United States would allow the executive branch on its own authority to

2

selectively enforce the laws enacted by Congress.

3

Because the amici derive their authority to concurrently enforce Federal immigration

4

laws for sources other than the Arizona law at issue, this brief will serve the important role of

5 "bring[ing] relevant matter[s]" to the attention of the Court that have not already been brought to

6 its attention by the parties. See Funbus Systems, Inc. v. Cal. Pub. Util. Comm'n, 801 F.2d 1120,
7

8

1124-25 (9th Cir. 1986); see also Neonatology Assocs. v. Commissioner, 293 F.3d 128, 132-33

9

(3d Cir. 2002) (Alito, J.) (discussing standards for acceptance of amicus briefs). Accordingly,

10

this Court should grant the motion of the amici to participate as amici curiae.

11

CONCLUSION

12

WHEREFORE, Michigan, on behalf of itself and Florida, Alabama, Nebraska, Northern

13
Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia seek leave to 14

15

provide this Court with the prospective harm that could result to their ability to assist in

16

enforcement of immigration law if Plaintiff's Motion for Preliminary Injunction were to be

17

granted.

18

Respectfully submitted,

19

SCHMITT, SCHNECK, SMYTH &

Michael A. Cox

20

HERROD, P.C. s/Timothy J. Casey

21

Timothy J. Casey #013492

1221 East Osborn Road, Suite 105

Attorney General of the State of Michigan
B. Eric Restuccia (MI Bar No. 49550) Solicitor General

22

Phoenix, AZ 85014-5540

Mark Sands (MI Bar No. 67801)

Telephone: (602) 277-7000

Assistant Attorney General

23 24 25

Facsimile: (602) 277-8663 timcasey@azbarristers.com Special Assistant Attorney General for Michigan For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands,

P.O. Box 30212, Lansing, MI 48909 Telephone: (517) 373-1124 RestucciaE@michigan.gov SandsM1@michigan.gov

26

Pennsylvania, South Carolina, South Dakota,

27

Texas, and Virginia

Dated: July 14, 2010 28

3

Case 2:10-cv-01413-SRB Document 30 Filed 07/14/10 Page 4 of 4

1

CERTIFICATE OF SERVICE

2 I hereby certify that on July 14, 2010, I electronically transmitted the attached document (Motion and Memorandum) to the Clerk's Office using the CM/ECF System for filing
3 and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

4 Plaintiff United States of America 5 represented by Joshua Wilkenfeld Email: joshua.i.wilkenfeld@usdoj.gov

6 Varu Chilakamarri Email: varudhini.chilakamarri@usdoj.gov

7 Defendant State of Arizona and Janice K Brewer Governor of the State of Arizona represented by John J Bouma Email: jbouma@swlaw.com
8
9 Joseph G Adams Email: jgadams@swlaw.com

10 Joseph Andrew Kanefield Email: jkanefield@az.gov

11 Robert Arthur Henry Email: bhenry@swlaw.com
12 Amicus Center on the Administration of Criminal Law 13 represented by Anne Milgram Email: anne.milgram@nyu.edu

14 Anthony S Barkow, Email: anthony.barkow@nyu.edu

15 Ellen London, Email: elondon@fklaw.com

16 Jessica Alexandra Murzyn, Email: jmurzyn@fklaw.com
17
Ricardo Solano, Jr, Email: rsolano@fklaw.com 18

19 By: SCHMITT, SCHNECK, SMYTH & HERROD, P.C. s/Timothy J. Casey

20 Timothy J. Casey #013492

timcasey@azbarristers.com 21 Special Assistant Attorney General for Michigan

22

For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota,

23 Texas, and Virginia

24 In addition a COURTESY COPY was mailed to:

25

HONORABLE SUSAN R. BOLTON United States District Court

26 Sandra Day O’Connor U.S. Courthouse, Suite 522 401 West Washington Street, SPC 50, Phoenix, AZ 85003-2153

27

28 a

 
 Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 1 of 36

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 United States of America,

)

)

10

Plaintiff,

)

)

11 vs.

)

)

12

)

State of Arizona; and Janice K. Brewer, )

13 Governor of the State of Arizona, in her )

Official Capacity,

)

14

)

Defendants.

)

15

)

No. CV 10-1413-PHX-SRB ORDER

16

At issue is the Motion for Preliminary Injunction filed by Plaintiff the United States

17 (“Pl.’s Mot.”) (Doc. 27).

18 I. SUMMARY

19

Against a backdrop of ram pant illegal immigration, escalating drug and hum an

20 trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set

21 of statutes and statutory amendments in the form of Senate Bill 1070, the “Support Our Law

22 Enforcement and Safe Neighborhoods Act,” 2010 Ariozna Session Laws, Chapter 113, which

23 Governor Janice K. Brewer signed into law on April 23, 2010. Seven days later, the

24 Governor signed into law a set of amendments to Senate Bill 1070 under House Bill 2162,

25 2010 Arizona Session Laws, Chapter 211.1 Among other things, S.B. 1070 requires officers

26
27 1 In this Order, unless othe rwise specified, the Court refers to S.B. 1070 and H.B. 2162 collectively as “S.B. 1070,” describing the April 23, 2010, enactm ent as modified by the
28 April 30, 2010, amendments.

Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 2 of 36

1 to check a person’s im migration status under certain circum stances (Section 2) and

2 authorizes officers to make a warrantless arrest of a person where there is probable cause to

3 believe that the person committed a public offense that makes the person removable from the

4 United States (Section 6). S.B. 1070 also creates oramends crimes for the failure of an alien

5 to apply for or carry registration papers (Section 3), the smuggling of human beings (Section

6 4), the perform ance of work by unauthoriz ed aliens, and the transport or harboring of

7 unlawfully present aliens (Section 5).

8

On July 6, 2010, the United States filed a Complaint with this Court challenging the

9 constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a

10 preliminary injunction to enjoin Arizona fromenforcing S.B. 1070 until the Court can make

11 a final determination as to its constitutionality. The United States argues principally that the

12 power to regulate immigration is vested exclusively in the federal government, and that the

13 provisions of S.B. 1070 are therefore preempted by federal law.

14

The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment

15 of the Arizona Legislature that adds som e new sections to the Arizona Revised Statutes

16 (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability

17 clause, providing that,

18

[i]f a provision of this act or its application to any person or circumstance is

held invalid, the invalidity does not affect other provisions or applications of

19

the act that can be given effect without the invalid provision or application,

and to this end the provisions of this act are severable.

20

S.B. 1070 § 12(A). Therefore, the Court cannotand will not enjoin S.B. 1070 in its entirety,

21

as certain parties to lawsuits challenging the enactm ent have requested. The Court is

22

obligated to consider S.B. 1070 on a section by section and provision by provision basis.

23

Other than seeking a preliminary injunction as to “S.B. 1070,” the United States has

24

not made any argument to preliminarily enjoin and the Court therefore does not enjoin the

25

following provisions of S.B. 1070:

26

Section 1 of S.B. 1070

27

no A.R.S. citation:

providing the intent of the legislation

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 3 of 36

1

Portions of Section 2 of S.B. 1070

A.R.S. § 11-1051(A): prohibiting Arizona officials, agencies, and political

2

subdivisions from limiting enforcement of federal

immigration laws

3

A.R.S. § 11-1051(C)-(F): requiring that state officials work with federal officials

4

with regard to unlawfully present aliens

5

A.R.S. § 11-1051(G)-(L): allowing legal residents to sue anystate official, agency,

or political subdivision for adopting a policy of

6

restricting enforcement of federal im migration laws to

less than the full extent permitted by federal law

7

Section 4 of S.B. 10702

8

A.R.S. § 13-2319:

amending the crime of human smuggling

9

Portion of Section 5 of S.B. 1070

A.R.S. § 13-2928(A)-(B): creating a crime for stopping a motor vehicle to pick up

10

day laborers and for day laborers to get in a m otor

vehicle if it impedes the normal movement of traffic

11

Section 7 of S.B. 1070

12

A.R.S. § 23-212:

amending the crime of knowing employment of

unauthorized aliens

13

Section 8 of S.B. 1070

14

A.R.S. § 23-212.01:

amending the crim e of intentional employment of

unauthorized aliens

15

Section 9 of S.B. 1070

16

A.R.S. § 23-214:

amending the requirements for checking employment

eligibility

17

Section 11 of S.B. 1070

18

A.R.S. § 41-1724:

creating the gang and immigration intelligence team

enforcement mission fund

19

Sections 12 & 13 of S.B. 1070

20

no A.R.S. citation:

administering S.B. 1070

21

Applying the proper legal standards based upon well-established precedent, the Court

22 finds that the United States is not likely to scuceed on the merits in showing that the following

23 provisions of S.B. 1070 are preempted by federal law, and the Court therefore doesnot enjoin

24 the enforcement of the following provisions of S.B. 1070:

25

26 27 2 Although the United States’ Complaint challenges Section 4 of S.B. 1070, counsel for the
United States stated at oral argum ent that the federal governme nt is not seeking to enjoin 28 A.R.S. § 13-2319 at this time. (Hr’g Tr. 5:10-20, July 22, 2010 (“Hr’g Tr.”).)

- 3 -

Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 4 of 36

1

Portion of Section 5 of S.B. 1070

A.R.S. § 13-2929:

creating a separate crime for a person in violation of a

2

criminal offense to transport or harbor an unlawfully

present alien or encourage or induce an unlawfully present

3

alien to come to or live in Arizona

4

Section 10 of S.B. 1070

A.R.S. § 28-3511:

amending the provisions for the removal or impoundment

5

of a vehicle to perm it impoundment of vehicles used in

the transporting or harboring of unlawfully present aliens

6

Applying the proper legal standards based upon well-established precedent, the Court

7

finds that the United States is likely to succeed on the merits in showing that the following

8

Sections of S.B. 1070 are preempted by federal law:

9

Portion of Section 2 of S.B. 1070

10

A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to

determine the im migration status of a person stoppe d,

11

detained or arrested if there is a reasonable suspicion that

the person is unlawfully present in the United States, and

12

requiring verification of the im migration status of any

person arrested prior to releasing that person

13

Section 3 of S.B. 1070

14

A.R.S. § 13-1509:

creating a crime for the failure to apply for or carry alien

registration papers

15

Portion of Section 5 of S.B. 1070

16

A.R.S. § 13-2928(C): creating a crime for an unauthorized alien tosolicit, apply

for, or perform work

17

Section 6 of S.B. 1070

18

A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a personwhere there

is probable cause to believe the person has com mitted a

19

public offense that makes the person removable from the

United States

20

The Court also finds that the United S tates is likely to suffer irreparable harm if the Court

21

does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance

22

of equities tips in the United States’ favor conisdering the public interest. The Court therefore

23

issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating

24

A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating

25

A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

26

27

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 5 of 36

1 II. BACKGROUND

2

A. Overview of Federal Immigration Law

3

Congress has created and refined a com plex and de tailed statutory fram ework

4 regulating immigration. The federal im migration scheme is largely enacted through the

5 Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101,et seq., which empowers various

6 federal agencies (including the Departm ent of Justice (“DOJ”), Departm ent of Homeland

7 Security (“DHS”), and Departm ent of State (“DOS”)) to adm inister and enforce the

8 immigration laws. See, e.g., id. §§ 1103-1104. Among its many provisions, the INA sets forth

9 the conditions under which a foreign national may be admitted to and remain in the United

10 States. Id. §§ 1181-1182, 1184. The INA also contains an alien registration systemintended

11 to monitor the entry and movement of aliens in the United States.Id. §§ 1201(b), 1301-1306.

12 Various actions may subject an alien to being placed in removal proceedings, such as entering

13 the United States without inspection, presenti ng fraudulent documents at a port of entry,

14 violating the conditions of admission, or engaging in certain other proscribed conduct.Id. §§

15 1225, 1227, 1228, 1229, 1229c, 1231. Violations of im migration laws may also subject an

16 alien to civil and criminal sanctions. E.g., id. §§ 1325, 1306, 1324c. Unlawful presence in the

17 United States is not a federal crim e, although it may make the alien removable. See id. §§

18 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C).3

19

Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien

20 into the country, as well as to harbor such a person or to facilitate unlawful immigration. Id.

21 § 1324. Congress also created sanctions to be implemented against employers who knowingly

22 employ aliens who are not authorized to work when it passed the Im migration Reform and

23 Control Act (“IRCA” ) in 1986. Id. § 1324a(a)(1)-(2). Federal law contains no crim inal

24 sanction for working without authorization, although document fraud is a civil violation under

25 IRCA. Id. § 1324c. In 1996, Congress passed the Illegal Immigration Reform and Immigrant

26

27 3 Unlawful presence is an element of the federal crime of reentry after deportation, 8 U.S.C. 28 § 1326, and unlawful entry into the United States is also a federal crime, 8 U.S.C. § 1325.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 6 of 36

1 Responsibility Act (“IIRIRA”), which, am ong other things, created various employment

2 eligibility verification programs. See Chicanos Por La Causa, Inc. v. Napolitano (Chicanos

3 Por La Causa II), 558 F.3d 856, 861 (9th Cir. 2009).

4

Federal immigration law also envisions certain areas of cooperation in im migration

5 enforcement among the federal government and state and local governments. See 8 U.S.C. §

6 1357(g)(1)-(9) (permitting DHS to enter into agreements whereby appropriately trained and

7 supervised state and local officials can perform certain immigration responsibilities); id. §

8 1373 (establishing parameters for information-sharing between state and local officials and

9 federal immigration officials); id. § 1252c (authorizing state and local law enforcem ent

10 officials to arrest aliens unlawfully present in the United States who have previously been

11 convicted of a felony and deported). DHS has also established the Law Enforcement Support

12 Center (“LESC”), which is administered by Immigration and Customs Enforcement (“ICE”)

13 and serves as a national enforcem ent information center, answering queries from state and

14 local officials regarding immigration status. (Pl.’s Mot., Ex. 3, Decl. of David Palmatier, Unit

15 Chief for LESC (“Palmatier Decl.”) ¶¶ 3-6.)

16

B. Overview of S.B. 1070

17

1. Section 1

18

Section 1 of S.B. 1070 states that “the intent of [S.B. 1070i]s to make attrition through

19 enforcement the public policy of all state and local government agencies in Arizona” and that

20 “[t]he provisions of this act are intended to work together to discourage and deter the unlawful

21 entry and presence of aliens and econom ic activity by persons unlawfully pre sent in the

22 United States.” Section 1 also states that “there is a com pelling interest in the coope rative

23 enforcement of federal immigration laws throughout all of Arizona.”

24

2. Section 2

25

Section 2 of S.B. 1070 adds A.R.S. § 11-1051. Section 2 contains twe lve separate

26 subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions

27 from limiting or restricting the enforcem ent of federal im migration laws. A.R.S. § 11-

28 1051(A). Subsection 2(B) requires officers to make a reasonable attempt, when practicable,

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 7 of 36

1 to determine an individual’s immigration status during any lawful stop, detention, or arrest

2 where reasonable suspicion exists that the person is unlawfully present in the United States.

3 Id. § 11-1051(B). Subsection 2(B) also requires that all persons who are arrested have their

4 immigration status verified prior to release.Id. Subsections 2(B) and 2(E) provide the process

5 for verifying im migration status and list docum ents that c reate a presumption of lawful

6 presence. Id. § 11-1051(B), (E). Mandatory stops for the purpose of im migration status

7 verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires

8 notification of ICE or Customs and Border Protection whenever an unlawfully present alien

9 is discharged or assessed a monetary obligation. Id. § 11-1051(C). Subsections 2(D) and (F)

10 permit law enforcement to securely transport unlawfully present aliens and send, receive, and

11 exchange information related to immigration status. Id. § 11-1051(D), (F).

12

In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state

13 court “to challenge any official or agency of [Arizona]that adopts or implements a policy or

14 practice that limits or restricts the enforcement of federal immigration laws to less than the

15 full extent permitted by federal law.” Id. § 11-1051(H). Subsections 2(I) and (J) address the

16 civil penalties arising from such civil su its, and Subsection 2(K) provides that law

17 enforcement officers are indemnified against reasonable costs and expenses incurred by the

18 officer in connection with any suit initiated under this Section unless the officer is found to

19 have acted in bad faith. Id. § 11-1051(I)-(K).

20

3. Section 3

21

Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that “a person is guilty

22 of willful failure to com plete or carry an alien registration docum ent if the person is in

23 violation of [8 U.S.C. §§] 1304(e) or 1306(a),” federal statutes that require aliens to carry

24 documentation of registration and penalize the willful failure to register. A.R.S. § 13-1509(A).

25 Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and

26 a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent

27 violation. Id. § 13-1509(H). Section 3 limits a violator’s eligibility for a suspended sentence,

28 probation, pardon, and commutation of a sentence and requires violators to pay jail costs.Id.

- 7 -

Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 8 of 36

1 § 13-1509(D), (E). In the enforcement of Section 3, immigration status may be determined

2 by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C.

3 § 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not

4 permitted to consider race, color, or national origin in the enforcement of Section 3. Id. § 13-

5 1509(C). Finally, Section 3 does not apply to “a person who maintains authorization from the

6 federal government to remain in the United States.” Id. § 13-1509(F).

7

4. Section 4

8

In Section 4 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-2319 by adding

9 a provision that permits officers enforcing Arizona’s human smuggling statute to stop any

10 person who is operating a motor vehicle if the officer has reasonable suspicion to believe that

11 the person is in violation of any civil traffic law. Id. § 13-2319(E). Section 4 does not make

12 any other changes or additions to Arizona’s human smuggling statute, A.R.S. § 13-2319.

13

5. Section 5

14

Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§

15 13-2928 and 13-2929. A.R.S. § 13-2928(A) provides that it is unlawful for an occupant of a

16 motor vehicle that is stopped on a street, roadway, or highway and is im peding traffic to

17 attempt to hire a person for work at another location. Id. § 13-2928(A). Similarly, A.R.S. §

18 13-2928(B) provides that it is unlawful for a person to enter a m otor vehicle in order to be

19 hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. Id. §

20 13-2928(B). Finally, A.R.S. § 13-2928(C) provides that it is unlawful “for a person who is

21 unlawfully present in the United States and who is an unauthorized alien to knowingly apply

22 for work, solicit work in a public place or perform work as an em ployee or independent

23 contractor in this state.” Id. § 13-2928(C). Violation of A.R.S. § 13-2928 is a class 1

24 misdemeanor. Id. § 13-2928(F).

25

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which provide s that it is

26 unlawful for a person who is in violation of a criminal offense to: (1) transport or move or

27 attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful

28 presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 9 of 36

1 shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or

2 live in Arizona. Id. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person

3 must also know or recklessly disregard the fact that the alien is unlawfully present in the

4 United States. Id. Violation of A.R.S. § 13-2929 is a class 1 misdemeanor. Id. § 13-2929(F).

5

6. Section 6

6

Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person

7 without a warrant if the officer has probable cause to believe that “the person to be arrested

8 has committed any public offense that makes the person removable from the United States.”

9 Id. § 13-3883(A)(5).

10

7. Sections 7-13

11

Sections 7, 8, and 9 amend Arizona’s law imposing sanctions on employers who hire

12 unlawfully present aliens. See A.R.S. §§ 23-212, 23-212.01, 23-214. Section 10 am ends

13 A.R.S. § 28-3511 to allow for the im mobilization or impoundment of vehicles used in the

14 transporting and concealing of unlawfully present aliens where the driver of the vehicle knew

15 or recklessly disregarded the fact that the alien was unlawfully present. Section 11 creates the

16 “gang and immigration intelligence team enforcement mission fund” for civil penalties paid

17 pursuant to Subsection 2(I). Finally, Section 12 provides for the severance of any

18 unconstitutional provisions, and Section 13 provides a short title for the enactment.

19

C. Procedural Posture

20

The United States filed its Complaint challenging the constitutionality of S.B. 1070 on

21 July 6, 2010, naming as Defendants the State of Arizona and Governor Brewer in her official

22 capacity (collectively, “Arizona”). On the same day, it also filed a Motion requesting that the

23 Court preliminarily enjoin Arizona fromenforcing S.B. 1070 until the Court can make a final

24 determination as to its constitutionality. (Doc. 6, Pl.’s Lodged Proposed Mot. for Preli.mInj.)

25 The United States argues principally that the power to regulate im migration is vested

26 exclusively with the federal governm ent, and the provisions of S.B. 1070 are therefore

27 preempted by federal law. The Court held a Hearing on Plaintiff’s Motion on July 22, 2010

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 10 of 36

1 (“the Hearing”). S.B. 1070 has an effective date of July 29, 2010. The Court now considers

2 the United States’ Motion for Preliminary Injunction.

3 III. LEGAL STANDARDS AND ANALYSIS

4

A. General Legal Standards

5

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

6 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

7 that the balance of equities tips in his favor, and that an injunction is in the public interest.”

8 Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted).

9

The United States primarily asserts that the statutory provisions contained in S.B. 1070

10 are preempted by federal law. The Supremacy Clause of the United States Constitution makes

11 federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has

12 consistently ruled that the federal government has broad and exclusive authority to regulate

13 immigration, supported by both enum erated and im plied constitutional powers. 4 While

14 holding that the “[ p]ower to regulate im migration is unquestionably exclusively a federal

15 power,” the Supreme Court concluded that not every state enactment “which in any way deals

16 with aliens is a regulation of im migration and thus per se preem pted by this constitutional

17 power, whether latent or exercised.” De Canas v. Bica, 424 U.S. 351, 354-355 (1976).

18

Federal preemption can be either express or im plied. Chicanos Por La Causa v.

19 Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008),cert. granted, 78

20 U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).

21 There are two types of im plied preemption: field preemption and conflict preem ption. Id.

22 Field preemption occurs “where ‘the depth a nd breadth of a congressional schem e . . .

23 occupies the legislative field.’” Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

24

25 4 A variety of enum erated powers im plicate the federal governm ent’s long-recognized
26 immigration power, including the Com merce Clause, the Naturalization Clause, and the

27

Migration and Importation Clause. See U.S. Const. art. I, § 8, cl. 3-4; art. I, § 9, cl. 1s;ee also Fong Yue Ting v. United States, 149 U.S. 698, 706 (1893);Chae Chan Ping v. United States,

28 130 U.S. 581, 603-04 (1889).

- 10 -

Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 11 of 36

1 541 (2001)). Conflict preemption describes a situation in which “compliance with both federal

2 and state regulations is a physical impossibility or where state law stands as an obstacle to the

3 accomplishment and execution of the full purposes and objectives of Congress.”Id. (internal

4 quotations and citations omitted). An actual, as opposed to hypothetical or potential, conflict

5 must exist for conflict preemption to apply. Id.

6

B. Likelihood of Success on the Merits

7

The United States must first demonstrate a likelihood of success on the merits. Winter,

8 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on

9 July 29, 2010. (Pl.’s Mot. at 7.) “A facial challenge to a legislative Act is, of course, the omst

10 difficult challenge to mount successfully, since the challenger m ust establish that no set of

11 circumstances exists under which the Act would be valid.”United States v. Salerno, 481 U.S.

12 739, 745 (1987). The Suprem e Court later observed, in conside ring a facial challenge,

13 “[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that

14 a facial challenge m ust fail where a statute has a ‘plainly legitim ate sweep.’” Wash. State

15 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v.

16 Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgm ents)). In

17 deciding a facial challenge, courts “m ust be careful not to go beyond the statute’s facial

18 requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Id. at 449-50 (quoting

19 United States v. Raines, 362 U.S. 17, 22 (1960)).

20

1. Preemption of Overall Statutory Scheme

21

As discussed above, S.B. 1070 conta ins several provisions adding to and am ending

22 Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its

23 entirety, it specifically challenges only select provisions of S.B. 1070. (See Pl.’s Mot. at 12

24 n.8 (noting that “the instant motion does not seek to enjoin” Sections 7-9 of S.B. 1070 and that

25 Sections 11-13 “are administrative provisions which are not the subject of this dispute”).) The

26 United States also argues that the overall statutory scheme of S.B. 1070 is preempted because

27 it attempts to set immigration policy at the state level and interferes and conflicts with federal

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 12 of 36

1 immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070

2 declares a unified, state-wide public policy, providing:

3

The legislature declares that the intent of this act is to m ake attrition through

enforcement the public policy of all state and local governm ent agencies in

4

Arizona. The provisions of this act are intended to work together to discourage

and deter the unlawful entry and presence of aliens a nd economic activity by

5

persons unlawfully present in the United States.

6 S.B. 1070 § 1. The United States urges the Court teonjoin S.B. 1070 as an integrated statutory

7 enactment with interlocking provisions. (Pl.’s Mot. at 12-25.) The United States asserts that

8 Section 1 animates and “infuses” the operative sections of the law. (Hr’g Tr. 13:4-14:5.)

9

“[W]hen the constitutionality of a state statute is challenged, principles of state law

10 guide the severability analysis and [courts] should strike down only those provisions which

11 are inseparable from the invalid provisions.” Costco Wholesale Corp. v. Maleng, 522 F.3d

12 874, 886 (9th Cir. 2008) (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 556-57 (9th

13 Cir. 2004)). “A court should not declare an entire statute unconstitutional if the constitutional

14 portions can be severed from those which are unconstitutional.” State v. Ramsey, 831 P.2d

15 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)).

16 Under Arizona law,

17

it is well settled . . . that where the valid parts of a statute are effective and

enforceable standing alone and independent of those portions declared

18

unconstitutional, the court will not disturb the valid law if the valid and invalid

portions are not so intim ately connected as to raise the presumption the

19

legislature would not have enacted one without the other, and the invalid

portion was not the inducement of the act.

20

Selective Life Ins. Co. v. Equitable Life Assurance Soc’y of the U.S, .422 P.2d 710, 715 (Ariz.

21

1967) (citing McCune v. City of Phx. , 317 P.2d 537, 542 (Ariz. 1957)). In determ ining

22

whether potentially unconstitutional provisions of S.B. 1070 m ay be severed from the

23

remainder of the enactment, the primary concern is legislative intent.See id. at 715-16 (citing

24

City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Where a statute contains a

25

severability provision, Arizona courts generally attempt to give effect to the severability

26

clause. Id. at 715.

27

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 13 of 36

1

Section 12(A) of S.B. 1070 provides for the severability of S.B. 1070’s provisions,

2 stating that if any provision of the Act “is held invalid, the invalidity does not affect other

3 provisions . . . that can be given effect without the invalid provision.” Arizona’s Legislature

4 intended the provisions of S.B. 1070 to be severable in order to preserve the constitutional

5 provisions of the Act. As a result, where the provisions of S.B. 1070 are “effective and

6 enforceable standing alone and independent” of any unconstitutional provisions and the valid

7 portions are not so “intimately connected” to any invalid provision as to raise the presumption

8 that the Arizona Legislature would not have enacted the valid provisions without the invalid

9 provisions, S.B. 1070’s provisions are severable. See Selective Life Ins., 422 P.2d at 715.

10

While Section 1 of S.B. 1070 provides a statement of the Act’s intent and purpose, it

11 does not c reate a single and unified statutory schem e incapable of careful provision by

12 provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to

13 express its viewpoint a nd intention as it wishes, and Section 1 has no operative function.

14 However, this is not to say that Section 1 is irrelevant. The expre ssion of the Legislature’s

15 intent provides context and backdrop for the functional enactm ents of S.B. 1070, and the

16 Court considers it in this capacity as it analyzes the other provisions of the law.

17

S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation

18 to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s

19 severability clause. The Court thus evaluates the constitutionality of the individual provisions

20 of S.B. 1070 challenged by the United States.

21

2. Section 2(B): A.R.S. § 11-1051(B)

22

Section 2(B) of S.B. 1070 provides as follows:

23

For any lawful stop, detention or arrest made by [an Arizona] law enforcement

official or . . . law enforcement agency . . . in the enforcement of any other law

24

or ordinance of a county, city or town of this state where reasonable suspicion

exists that the person is an alien and is unlawfully present in the United States,

25

a reasonable attem pt shall be m ade, when practicable, to determ ine the

immigration status of the person, except if the determ ination may hinder or

26

obstruct an investigation. Any person who is arrested shall have the person’s

immigration status determined before the person is released.

27

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 14 of 36

1 A.R.S. § 11-1051(B). Section 2(B) also states that if an officer is presented with one of the

2 following forms of identification, the officer is to presum e that the person is not an

3 unauthorized alien: (1) a valid Arizona driver license or ide ntification license; (2) a valid

4 tribal enrollment card or other formof tribal identification; or (3) a valid United States federal,

5 state, or local form of identification, provided that the issuing entity requir es proof of

6 citizenship before issuance. Id. The United State s argues that this section is preem pted

7 because it will result in the harassm ent of lawfully present aliens and will burden federal

8 resources and impede federal enforcement and policy priorities. (Pl.’s Mot. at 25-32.)

9

a. Mandatory Immigration Status Determination Upon Arrest

10

The Court first addresses the second sentence of Section 2(B): “Any person who is

11 arrested shall have the person’s immigration status determined before the person is released.”

12 Arizona advances that the proper interpretation of this sentence is “that only where a

13 reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the

14 United States must the person’s im migration status be determ ined before the person is

15 released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 105.)Arizona goes on to state, “[Th]e

16 Arizona Legislature could not have intended to compel Arizona’s law enforcement officers

17 to determine and verify th e immigration status of every single person arrested – even for

18 United States citizens and when there is a bsolutely no reason to believe the person is

19 unlawfully present in the country.” (Id.)

20

The Court cannot interpret this provision as Arizona suggests. Before the passage of

21 H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful

22 contact” rather than “For any lawful stop, detention or arrest.” C( ompare original S.B. 1070

23 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and

24 as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent

25 to state that it originally intended the first tw o sentences of S ection 2(B) to be read as

26

27 5 Arizona acknowledges that this sentence of Se ction 2(B) “might well have been m ore 28 artfully worded.” (Id.)

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 15 of 36

1 dependent on one another. As initially written, the first sentence of Section 2(B) did not

2 contain the word “arrest,” such that the second sentence could be read as m odifying or

3 explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of

4 Section 2(B) are clearly independent of one another. Therefore, it does not follow logically

5 that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first

6 sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any

7 way. If tha t had been the Legislature’s intent, it could easily have m odified the second

8 sentence accordingly.

9

As a result of this conclusion, the Court reads the second sentence of Section 2(B)

10 independently from the first sentence. The Court also concludes that the list of form s of

11 identification that could provide a presumption that a person is not an unlawfully present alien

12 applies only to the first sentence of Secti on 2(B) because the s econd sentence makes no

13 mention of unlawful presence: the second sentence states plainly that “[a]ny person who is

14 arrested” must have his or her immigration status determined before release. A presumption

15 against unlawful presence would not dispose of the requirement that immigration status be

16 checked because a legal permanent resident might have a valid Arizona driver’s license, but

17 an inquiry would still need to be m ade to satisfy the requirem ent that the person’s

18 “immigration status” be determined prior to release.

19

The United States asserts that mandatory determination of immigration status for all

20 arrestees “conflicts with federal law because it necessarily im poses substantial burdens on

21 lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform

22 rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our

23 traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quotingHines v.

24 Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be

25 preempted, the Supreme Court in Hines observed that Congress “m anifested a purpose to

26 [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens

27 through one uniform national . . . system [] and to leave them free from the possibility of

28 inquisitorial practices and police surveillance.” 312 U.S. at 74.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 16 of 36

1

Requiring Arizona law enforcem ent officials and agencies to determ ine the

2 immigration status of every person who is arrested burdens lawfully-present aliens because

3 their liberty will be restricted while their status is checked. Given the large number of people

4 who are technically “arrested” but never booked into jail or perhaps even transported to a law

5 enforcement facility, detention time for this category of arrestee will certainly be extended

6 during an immigration status verification. (See Escobar, et al. v. City of Tucson, et a,l.No. CV

7 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answe r & Cross-cl., ¶ 38 (stating that during

8 fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903

9 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all

10 arrestees will be required to prove their im migration status to the satisf action of state

11 authorities, thus increasing the intrusion of police presence into the lives of legally-present

12 aliens (and even United States citizens) , who will necessarily be swept up by this

13 requirement.6

14

The United States argues that the influx of re quests for im migration status

15 determination directed to the fede ral government or federally-qualified officials would

16 “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s

17 Mot. at 30.) State laws have been found to be preempted where they imposed a burden on a

18 federal agency’s resources that impeded the agency’s function.See Buckman Co. v. Plaintiffs’

19 Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preem pted in part because it

20 would create an incentive for individuals to “submit a deluge of information that the [federal

21 agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of

22 an application”); cf. Garrett v. City of Esc ondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal.

23 2006) (expressing concern in preemption analysis for preliminary injunction purposes that

24 burden on DOJ and DHS as a result of immigration status checks could “impede the functions

25 of those federal agencies”).

26 27 6 The Court is also cognizant of the potentially serious Fourth Aemndment problems with the
inevitable increase in length of detention while immigration status is determined, as raised 28 by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 17 of 36

1

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal,

2 State, or local governm ent agency, seeking to verify or ascertain the citizenship or

3 immigration status . . . for any purpose authorized by law, by providing the requested

4 verification or status inform ation.” DHS has, in its disc retion, set up LESC, which is

5 administered by ICE and “serves as a national enforcement operations center that promptly

6 provides immigration status and identity inform ation to local, state, and federal law

7 enforcement agencies regarding aliens suspected of, arrested for, or convicted of crim inal

8 activity.” (Pl.’s Mot. at 6-7 (citing Palm atier Decl. ¶¶ 3-6).) Mr. Palm atier states in his

9 Declaration that LESC resources are currently dedicated in part to national security objectives

10 such as requests for immigration status determination from the United States Secret Service,

11 the FBI, and employment-related requests at “national security related locations that could be

12 vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the

13 number of requests for determinations of immigration status, such as is likely to result from

14 the mandatory requirement that Arizona law enforcem ent officials and agencies check the

15 immigration status of a ny person who is arrested, will divert resources from the federal

16 government’s other responsibilities and priorities.

17

For these reasons, the United States has demonstrated that it is likely to succeed on its

18 claim that the m andatory immigration verification upon arrest requirem ent contained in

19 Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is

20 likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in

21 Hines that aliens not be subject to “the po ssibility of inquisitorial practices and police

22 surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona

23 as a result of determining the status of every arrestee is likely to impermissibly burden federal

24 resources and redirect federal agencies away from the priorities they have established.7

25

26 7 The problem s associated with burdening fede ral resources are even m ore acute when

27

considered in light of other state laws sim ilar to this provision. ( See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel

28 legislation).); see also North Dakota v. United State,s495 U.S. 423, 458-59 (1990) (Brennan,

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 18 of 36

1

b. Immigration Status Determination During Lawful Stops,

Detentions, or Arrests

2

Next, the Court turns to the first sentence of Section 2(B):

3

For any lawful stop, detention or arrest made by [an Arizona] law enforcement

4

official or . . . law enforcement agency . . . in the enforcement of any other law

or ordinance of a county, city or town of this state where reasonable suspicion

5

exists that the person is an alien and is unlawfully present in the United States,

a reasonable attem pt shall be m ade, when practicable, to determ ine the

6

immigration status of the person, except if the determ ination may hinder or

obstruct an investigation.

7

A.R.S. § 11-1051(B). The United States m akes essentially the sam e arguments about this

8

requirement. First, the United States advances that it imposes a burden on lawfully-present

9

aliens not perm itted by Hines, where the Suprem e Court sought to protect the personal

10

liberties of lawfully-present aliens to leave them free from the possibility of intrusive police

11

practices that might affect international relations and generate disloyalty. (P l.’s Mot. at 26

12

(citing Hines, 312 U.S. at 74).) Second, the United States argues that this require ment

13

impermissibly burdens and redirects federal resources away from federally-established

14

priorities. (Id.) The United States’ argum ents regarding burdening of federa l resources are

15

identical to those outlined above and will not berestated. However, the United States makes

16

several arguments with respect to the burden on lawfully-present aliens that are specific to or

17

slightly different in the context of the first sentence of Section 2(B).

18

First, the United States argues that this provision “necessarily places lawfully present

19

aliens (and even U.S. citizens) in continual jeopardy of having to dem onstrate their lawful

20

status to non-federal officials.” ( Id. at 26.) The United States further asserts that there are

21

numerous categories of lawfully-present aliens “who will not have readily available

22

documentation to demonstrate that fact,” including foreign visitors fromVisa Waiver Program

23

24

25

26

27

J., concurring in plurality opinion in part and dissenting in part) (collecting cases where burden of state regulation on federal governm ent was amplified by aggregate potential of

28 multiple states following suit).

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 19 of 36

1 countries,8 individuals who have applied for asylum but not yet received an adjudication,

2 people with temporary protected status, U a nd T non-immigrant visa applicants, or people

3 who have self-petitioned for relief under the Violence Against Wom en Act. (Id. at 26-27.)

4 Also, the United States points out that Unite d States citizens are not required to carry

5 identification, and some citizens might not have easy access to a form of identification that

6 would satisfy the requirement of Section 2(B).9

7

The United States contends that the im pact on lawfully-present alie ns of the

8 requirement that law enforcement officials, where practicable, check the immigration status

9 of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the

10 person is an alien and is unlawfully present will be exacerbated by several factors.I(d. at 28-

11 29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced

12 because this requirement applies to stops for even very minor, non-criminal violations of state

13 law, including jaywa lking, failing to ha ve a dog on a leash, or riding a bicycle on the

14 sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because

15 other provisions in S.B. 1070 put pre ssure on law enforcem ent agencies and officials to

16 enforce the immigration laws vigorously.10 (Id. at 29.)

17

Hines cautions against im posing burdens on lawfully-present aliens such as those

18 described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this

19 requirement, particularly when the im pacts of the provisions pre ssuring law enforcement

20

21 8 The Visa Waiver Programpermits visitors from certain countries to enter the United States

22 without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R.

§§ 217.1-217.7. 23

24

9 Also, upon a check with LESC or a federally-authorized state official, the status of a United States citizen might not be easily confirmable as many people born in the United States likely

25 do not have an entry in a DHS database.

26 10 These provisions include Sections 2(A) and 2(H), which, respectively, prohibit agencies

27

from restricting the enforcement of immigration laws and create a private right of action for legal residents to sue agencies if they believe the laws are not being enforced aggressively

28 enough.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 20 of 36

1 agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain

2 categories of people with transitional status and foreign visitors from countries that are part

3 of the Visa Waiver Program will not have readily available docume ntation of their

4 authorization to remain in the United States, thus potentially subjecting them to arrest or

5 detention, in addition to the burden of “the possibility of inquisitorial practices and police

6 surveillance.” Hines, 312 U.S. at 74. InHines, the Supreme Court emphasized the important

7 federal responsibility to maintain international relationships, for the protection of American

8 citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also

9 Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation’s need to ‘speak

10 with one voice’ in immigration matters.”). The United States asserts, and the Court agrees,

11 that “the federal government has long rejected a systemby which aliens’ papers are routinely

12 demanded and checked.” (Pl.’s Mot. at 26.)11 The Court finds that this requirement imposes

13 an unacceptable burden on lawfully-present aliens.

14

With respect to the United States’ arguments regarding the burden on and impediment

15 of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions

16 mirror those stated above regarding the second sentence of Section 2(B). Federal resources

17 will be taxed and diverted from federal enforcement priorities as a result of the increase in

18 requests for immigration status determination that will flow fromArizona if law enforcement

19 officials are required to verify im migration status whenever, during the course of a lawful

20 stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful

21 presence in the United States.12 In combination with the impermissible burden this provision

22 will place on lawfully-present aliens, the burdenon federal resources and priorities also leads

23

24 11 The Court notes, but does not analyz e here, the argum ents raised by the plaintiffs in 25 Friendly House, No. CV 10-1061-PHX-SRB, regarding racial profiling.

26 12 Many law enforcement officials already have the discretion to verify immigration status

27

if they have reasonable suspicion, in the absence of S.B. 1070; Section 2 of S.B. 1070 removes that discretion by m aking immigration status determ inations mandatory where

28 practicable. (See Pl.’s Mot. at 26; Defs.’ Resp. at 20.)

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 21 of 36

1 to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis,

2 the Court concludes that the United States has demonstrated a likelihood of success on its

3 challenge to the first sentence of Section 2(B).Section 2(B) in its entirety is likely preempted

4 by federal law.

5

3. Section 3: A.R.S. § 13-1509

6

Section 3 states that “a person is guilty of willful failure to complete or carry an alien

7 registration document if the person is in violation of 8 [U.S.C. §§1]304(e) or 1306(a).” A.R.S.

8 § 13-1509(A).13 The penalties for violation of Section 3, a class 1 m isdemeanor, are a

9 maximum fine of $100 and a m aximum of 20 days in jail for a first violation and up to 30

10 days in jail for any subsequent violation. A.R.S. § 13-1509(H). Section 3 also limts violators’

11 eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and

12 requires violators to pay jail costs. A.R.S. § 13-1509(D), (E). Section 3 does not apply to “a

13 person who maintains authorization from the federal governm ent to remain in the United

14 States.” A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal

15 registration laws and provides for state prosecutions and penalties for violations of the federal

16 registration law. The United States argues that Section 3 is preem pted because it interferes

17 with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and

18 will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Ar izona asserts that Section 3

19 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at

20 21-22.)

21

“[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an

22 equal and continuously existing concurrent power of state and nation[;] . . . whatever power

23

24

25 13 8 U.S.C. § 1306(a) makes it a misdemeanor, subject to a maximum fine of $1000 and a maximum of six months imprisonment, to willfully fail or refuse to apply for registration
26 when such application is required. Similarly, 8 U.S.C. § 1304(e) requires an alien to carry

27

a certificate of alien registration or alien registration receipt and makes a failure to comply with these requirem ents a m isdemeanor subject to a m aximum fine of $100 and

28 imprisonment for up to 30 days.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 22 of 36

1 a state may have is subordinate to supreme national law.” Hines, 312 U.S. at 68. InHines, the

2 Supreme Court found that,

3

where the federal government, in the exercise of its superior authority in this

field, has enacted a complete scheme of regulation and has therein provided

4

a standard for the registration of aliens, states cannot, inconsistently with the

purpose of Congress, conflict or interfere with, curtail or com plement, the

5

federal law, or enforce additional or auxiliary regulations.

6 312 U.S. at 66-67. Hines also stated that a state statute is preempted where it “stands as an

7 obstacle to the accom plishment and execution of the full purposes and objectives of

8 Congress.” Id. at 67. The Supreme Court determined in Hines that the purpose of the Federal

9 Alien Registration Act was to “make a harmonious whole” and that the Alien Registration Act

10 “provided a standard for alien registration in a single integrated and all-embracing system.”

11 Id. at 72, 74. As a result, theHines court held that the state registration scheme at issue could

12 not be enforced. Id. at 74.

13

The current federal alien registration requirem ents create an integrated and

14 comprehensive system of registration. See id. (finding that the Alien Registration Act, the

15 precursor to the current alien registration schem e, created a “single integrated and all-

16 embracing system” of registration);8 U.S.C. §§ 1201, 1301-06 (providing federal registration

17 requirements and penalties). While the Supreme Court rejected the possibility that the INA

18 is so comprehensive that it leaves no roomfor state action that impacts aliens, De Canas, 424

19 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal

20 alien registration scheme and determined that the complete scheme of registration precludes

21 states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67.

22

Section 3 attempts to supplement or complement the uniform, national registration

23 scheme by making it a state crime to violate the federal alien registration requirements, which

24 a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67;

25 see also A.R.S. § 13-1509(A). While Section 3 doe s not create additional registration

26 requirements, the statute does aim to create state penalties and lead to state prosecutions for

27 violation of the federal law. Although the alien registration requirem ents remain uniform,

28 Section 3 alters the penalties established by Congress under the federal registration scheme.

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 23 of 36

1 Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an

2 impermissible attempt by Arizona to regulate alien registration.See Hines, 312 U.S. at 67. As

3 a result, the Court finds that the United States is likely to succeed on its claimthat Section 3

4 is preempted by federal law.14

5

4. Section 4: Amendment to A.R.S. § 13-2319

6

Section 4 of S.B. 1070 amends Arizona’s human smuggling statute, A.R.S. § 13-2319.

7 Section 4 adds, “Notwithstanding any other law, in the enforcement of this section a peace

8 officer may lawfully stop any person who is operating a motor vehicle if the officer has

9 reasonable suspicion to believe the person is in violation of any civil traffic law.” A.R.S. § 13-

10 2319(E). The United States requests an injunction prohibiting the enforcement of Section 4

11 but does not seek an injunction as to A.R.S. § 13-2319. (Pl.’s Com pl. at 24 (requesting a

12 preliminary and permanent injunction prohibiting the enforceme nt of Sections 1-6 of S.B.

13 1070).)15 However, the argume nts asserted by the United States in support of enjoining

14 Section 4 pertain entirely to separate provisions of A.R.S. § 13-2319 and do not challenge the

15 change embodied in Section 4. (Pl.’s Mot. at 39-42.)

16

Section 4 makes a minor change to Arizona’s preexisting human smuggling statute,

17 which is not specifically challenged by the United States. Nothing about the section standing

18 alone warrants an injunction. As a result, the Court finds that the United States is not likely

19 to succeed on a claim that Section 4 of S.B. 1070 is preempted by federal law.

20

5. Section 5: A.R.S. § 13-2928(C)16

21

22 14 Subsections (B)-(H) pertain to the im plementation and enforcem ent of Section 3. No

provisions of Section 3 retain any effect absent Section 3’s operative provision. 23

24

15 At the July 22, 2010, Hearing on the United States’ Motion for a Preliminary Injunction, the United States confirmed that it does not seek to enjoin A.R.S. § 13-2319. (Hr’g Tr. 5:10-

25 20.)

26 16 Two provisions of Section 5 prohibit the act of hiring and being hired by the occupant of

27

a motor vehicle. A.R.S. § 13-2928(A), (B). The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a casceontesting a virtually identical local ordinance

28 in Redondo Beach, California forecloses a challenge to A.R.S. §§ 13-2928 (A) and (B) on

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1

Section 5 of S.B. 1070 creates A.R.S. § 13-2928(C), which provides that “it is unlawful

2 for a person who is unlawfully present in the United States and who is an unauthorized alien

3 to knowingly apply for work, solicit work in a public place or performwork as an employee

4 or independent contractor in this state.” This violation is a class 1 misdemeanor. A.R.S. § 13-

5 2928(F). The United States asserts that this provision “is preem pted by Congress’s

6 comprehensive scheme, set forth in [IRCA] for regulating the employment of aliens.” (Pl.’s

7 Mot. at 42.) The United States argues that “IRCA reflects Congress’s deliberate choice not

8 to criminally penalize unlawfully present aliens for performing work, much less for attempting

9 to perform it.” (Id.) Arizona responds that “Congress could have, but chose not to, expressly

10 preempt state and local laws that impose civil or criminal sanctions upon employees.” (Defs.’

11 Resp. at 25.) Ar izona contends that, in an area of traditional state sovereignty such as

12 employment, “[p]reemption cannot be lightly inferred.” (Id.)

13

“States possess broad authority under their police powers to regulate the employment

14 relationship to protect workers within the State.”De Canas, 424 U.S. at 356. InterpretingDe

15 Canas and considering a state law sanctioning employers who hire unauthorized workers, the

16 Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of

17 unauthorized aliens remains within the states’ historic police powers, an assumption of non-

18 preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine,

19 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly

20 in those in which Congress has legislated . . . in a field which the States have traditionally

21 occupied, . . . we start with the assumption that the historic police powers of the States were

22 not to be superseded by the Federal Act unless that was the clear and m anifest purpose of

23 Congress” (internal quotations and citation omitted)).

24

A.R.S. § 13-2928(C), as amended, regulates the employment of unauthorized aliens

25 in Arizona, and, thus, a presum ption against preem ption applies in the c ontext of this

26

27 First Amendment grounds. See Comite de Jornaleros de Redondo Beach v. City of Redondo 28 Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010).

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1 provision. However, while deliberate federal inaction does not always im ply preemption,

2 “[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field

3 without controls, then the pre-emptive inference can be drawn, not fromfederal inaction alone

4 but from inaction joined with action.”P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp, .

5 485 U.S. 495, 503 (1988). The Suprem e Court explained in Puerto Rico Department of

6 Consumer Affairs that with some “extant action” by Congress, there can arise “an inference

7 of pre-emption in an unregulated segment of an otherwise regulated field.”Id. at 504;see also

8 Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000) (concluding that neither an express

9 pre-emption provision nor a saving clause “bar[s] the ordinary working of conflict pre -

10 emption principles”).

11

IRCA provides penalties for employers who knowingly hire or continue to employ an

12 alien without work authorization. 8 U.S.C. § 1324a(a)(1)-(2), (e)(4). IRCA also prohibits

13 employers from recruiting or referring for a fee unauthorized workers. Id. § 1324a(a)(1).

14 IRCA makes it unlawful to use contractors or subcontractors to hire unauthorize d alien

15 workers. Id. § 1324a(a)(4). Under IRCA, em ployers are required to com ply with an

16 “employment verification system” set up by the statute.Id. § 1324a(b).17 IRCA also instituted

17 a compliance scheme and a series of escalating sanctions for violations, entailing increasing

18 monetary fines for each subsequent violation and the possibility of injunctive sanctions. Id.

19 § 1324a(e)(4); 8 C.F.R. § 274a.10 (outlining civil and criminal penalties for violations of 8

20 U.S.C. § 1324a(a)(1)(A) or (a)(2)).

21

While it is readily apparent that Congress’s central foc us in IRCA was em ployer

22 sanctions, there are also targeted sanctions directed at em ployees. See 8 U.S.C. § 1324c

23 (making it a civil violation to make or use a false document or to use a document belonging

24 to another person, in the context of unlawful employment of an unauthorized alien). As the

25 Ninth Circuit Court of Appeals observed, “While Congress initially discussed the merits of

26 27 17 IIRIRA created three pilot program s for employee verification; of those three, only the
program commonly known as E-Verify is still in existence. See Chamber of Commerce of 28 the United States v. Edmondson, 594 F.3d 742, 752 (10th Cir. 2010).

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1 fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected

2 all such proposals.” Nat’l Ctr. for Immigrants’ Rights, Inc. v. INS, 913 F.2d 1350, 1368 (9th

3 Cir. 1990) (examining IRCA’s legislative history), rev’d on other grounds , 502 U.S. 183

4 (1991). The court in National Center for Immigrants’ Rights found that the determination to

5 reduce or deter employment of unauthorized workers by sanctioning employers, rather than

6 employees, was “a congressional policy choice clearly elaborated in IRCA.” Id. at 1370.

7

IRCA also requires that an individual seeking em ployment “attest, under penalty of

8 perjury . . . that the individual is a citizen or national of the United States, an alien lawfully

9 admitted for permanent residence, or an alien who is authorized . . . to be hired, recruited, or

10 referred for such employment.” 8 U.S.C. § 1324a(b)(2). This attestation is to be made on a

11 form “designated or established by the Attorney General,” and IRCA states that the for“mand

12 any information contained in or appended to such form[] may not be used for purposes other

13 than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18” of

14 the federal crim inal code. Id. § 1324a(b)(5). The provisions of Title 18 referenced in §

15 1324a(b)(5) of Title 8 make it a federal crime to, in any matter within the jurisdiction of the

16 federal government:

17

18 U.S.C. § 1001(a):

(1) falsify, conceal, or cover up any material fact;

(2) knowingly m ake or use a m aterially false,

18

fictitious, or fraudulent statement; or (3) make or

use any false writing or document.

19

18 U.S.C. § 1028(a):

knowingly make, use, or transfer a false or stolen

20

identification document or identification document

belonging to another person or any im plement or

21

feature for use in creating a false identification

document.

22

18 U.S.C. § 1546:

(a) forge or fal sify an immigration document; or

23

(b) use a false identification document, a document

not properly issued to the user, or a false

24

attestation.

25

18 U.S.C. § 1621:

26

27

commit perjury by knowingly making a false statement after taking an oath to te ll the truth during a proceeding or on any docum ent signed under penalty of perjury.

28

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Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 27 of 36

1 Accordingly, the attestation forms described in 8 U.S.C. § 1324a(b)(2) may only be used for

2 these limited purposes.

3

The provision limiting the use of attestation forms and the civil penalties outlined for

4 document fraud in Title 8 and the robust sanc tions for em ployers who hire, continue to

5 employ, or refer unauthorized workers convincethe Court that Congress has comprehensively

6 regulated in the fie ld of em ployment of unauthorized aliens. These “extant actions,” in

7 combination with an absence of regulation for the particular violation of working without

8 authorization, lead to the conclusion that Congress intended not to penalize this action, other

9 than the specific sanctions outlined above. See P.R. Dep’t of Consumer Affairs, 485 U.S. at

10 503-04. Thus, the Court finds that Plaintiff is liekly to succeed on its claimthat Arizona’s new

11 crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with

12 a comprehensive federal scheme and is preempted.

13

6. Section 5: A.R.S. § 13-2929

14

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which m akes it illegal for a

15 person who is in violation of a crim inal offense to: (1) transport or m ove or attem pt to

16 transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the

17 United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien

18 from detection in Arizona; and (3) encourage orniduce an alien to come to or live in Arizona.

19 A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a personumst also know

20 or recklessly disregard the fact that the aline is unlawfully present in the United StatesI.d. The

21 United States asserts that this provision is preem pted as an im permissible regulation of

22 immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44-

23 46.)18

24

25 18 The United States also asserts in a footnote that A.R.S. § 13-2929 directly conflicts with 8 U.S.C. § 1324(a)(1)(C), a section of the federal alien smuggling statute, which provides an
26 exception for certain religious groups for contact with volunteer ministers and missionaries.

27

(Id. at 46 n.40.) While the federal statute includes a narrow exception for religious organizations engaged in certain conduct not specifically exempted under A.R.S. § 13-2929,

28 the new Arizona statute is narrower than its federal counterpart because it requires that the

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1

a. Regulation of Immigration

2

The “[p]ower to regulate immigration is unquestionably exclusively a federal power.”

3 De Canas, 424 U.S. at 354. The regulation of immigration is “essentially a determination of

4 who should or should not be admitted into the country, and the conditions under which a legal

5 entrant may remain.” Id. at 355. “[T]he fact that aliens are the subject of a state statute does

6 not render it a regulation of immigration.” Id. The United States argues that “to the extent

7 Section 5 is not a restriction on interstate movement, it is necessarily a restriction on unlawful

8 entry into the United States.” (Pl.’s Mot. at 45.)

9

A.R.S. § 13-2929 does not attempt to regulate who should or should not be admitted

10 into the United States, and it does not regulate the conditions under which legal entrants may

11 remain in the United States. See De Canas, 424 U.S. at 355. Therefore, the Court concludes

12 that the United States is not likely to succeed on its claim that A.R.S. § 13-2929 is an

13 impermissible regulation of immigration.

14

b. The Dormant Commerce Clause

15

The Commerce Clause provides Congress with the power to “regulate Commerce . .

16 . among the several States.” U.S. Const. art. I, § 8, cl. 1, 3. The SupreemCourt has interpreted

17 the Commerce Clause “to have a ‘negative’ aspect that denies the States the power

18 unjustifiably to discriminate against or burden the interstate flow of articles of commerce.”

19 Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 98 (1994). This doctrine is often

20 referred to as the “dormant Commerce Clause.” United Haulers Ass’n v. Oneida-Herkimer

21

22

person already be in violation of a criminal offense. In light of the intentional narrowing of the Arizona enactment, the Court would have to im agine a set of remote circumstances in

23 order to find a potential conflict between the federal and the state law. In addition, Arizona asserts that A.R.S. § 13-2929 targets criminals who engage unlawfully present aliens to be
24 involved in a criminal enterprise. On a facial challenge, “the challenger must establish that

25 no set of circumstances exists under which the Act would be valid.S”alerno, 481 U.S. at 745. In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial
26 requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange,

27

552 U.S. at 449-50 (quoting Raines, 362 U.S. at 22). A.R.S. § 13-2929 is narrower than the federal law, and the Court will not speculate about hypothetical cases in order to find a

28 conflict between the two.

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1 Solid Waste Mgmt. Auth. , 550 U.S. 330, 338 (2007). “The dorm ant Commerce Clause is

2 implicated if sta te laws regulate an activity that ‘has a substantial effect’ on interstate

3 commerce such that Congress could regulate the activity.’” Nat’l Ass’n of Optometrists &

4 Opticians Lenscrafters, Inc. v. Brown , 567 F.3d 521, 525 (9th Cir. 2009) (quoting

5 Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002)).

6

If a state statute im plicates the dorm ant Commerce Clause, the Court m ust then

7 determine “whether [the statute] discriminates on its face against interstate com merce.”

8 United Haulers, 550 U.S. at 338. “In this context, discrimination simply means differential

9 treatment of in-state and out-of-state economic interests that benefits the former and burdens

10 the latter.” Id. (internal quotation and citation omitted). Nondiscriminatory statutes directed

11 at legitimate local concerns do not violate the dormant Commerce Clause “‘unless the burden

12 imposed on [interstate] commerce is clearly excessive in relation to the putative local

13 benefits.’” Id. at 346 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

14

The United States argues that A.R.S. § 13-2929 “offends the [d] ormant Commerce

15 Clause by restricting the interstate movement of aliens.” (Pl.’s Mot. at 45.) A.R.S. § 13-2929

16 does not restrict or limit which aliens can enter Arizona. While the regulation of immigration

17 does have an impact on interstate commerce, the United States has not provided a satisfactory

18 explanation of how A.R.S. § 13-2929, which creates parallel state statutory provisions for

19 conduct already prohibited by federal law, has a substantial effect on interstate commerce.19

20

21

22 19 The United States argues that the dorm ant Commerce Clause “forbids certain state

23 regulations attempting to discourage or otherwise restrict the movement of people between

states.” (Pl.’s Mot. at 45 (citing Edwards v. California , 314 U.S. 160, 172-73 (1941)).) 24 However, the United States fails to cite any authority supporting the proposition that

25 unlawfully present aliens m ust be permitted to travel from state to state. In Edwards, the Supreme Court struck down a California statute prohibiting the transportation of indigent
26 people into California. Edwards, 314 U.S. at 173. Unlike the California statute at issue in

27

Edwards, A.R.S. § 13-2929 prohibits the transportation of people who are unlawfully present in the United States. Moreover, A.R.S. § 13-2929 does not attem pt to prohibit entry into

28 Arizona, but rather criminalizes specific conduct already prohibited by federal law.

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1

Even assuming that A.R.S. § 13-2929 implicates the Commerce Clause, the statutory

2 provision does not discrim inate between in-state and out-of-state econom ic interests. See

3 United Haulers, 550 U.S. at 338. A.R.S. § 13-2929 governs conduct occurring in Arizona and

4 does not differentiate between in-state and out-of-state economic interests or burden out-of-

5 state interests in a way that benefits in-state interests. Further, Arizona’s nondiscriminatory

6 statute is directed at legitimate local concerns related to public safety. Therefore, A.R.S. § 13-

7 2929 does not violate the dormant Commerce Clause “‘unless the burden im posed on

8 [interstate] commerce is clearly excessive in relation to the putative local benefits.’I”d. at 346

9 (quoting Pike, 397 U.S. at 142). Here, any incidental burden on interstate com merce is

10 minimal in comparison with the putative local benefits. The Court finds that the United States

11 is not likely to succeed on its claimthat Section 5’s addition of A.R.S. § 13-2929 violates the

12 dormant Commerce Clause or is an impermissible attempt to regulate immigration.20

13

7. Section 6: Amendment to A.R.S. § 13-3883(A)

14

In Section 6 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-3883 to provide

15 that an officer m ay arrest a person without a warrant if the officer has probable cause to

16 believe that “the person to be arrested has committed any public offense that makes the person

17 removable from the United States.” A.R.S. § 13-3883(A)(5). In Arizona, a “public offense”

18 is

19

conduct for which a sentence to a termof imprisonment or of a fine is provided

by any law of the state in which it occurred or by any law, regulation or

20

ordinance of a political subdivision of that state and, if the act occurred in a

state other than this state, it would be so punishable under the laws, regulations

21

or ordinances of this state or of a politcial subdivision of this state if the act had

occurred in this state.

22

A.R.S. § 13-105(26). Because A.R.S. § 13-3883 already provides for the warrantless arrest

23

of a person who com mits a felony, misdemeanor, petty offense, or one of certain criminal

24

25 20 The United States asserts that Section 10 of S.B. 1070 “is preempted insofar as it is based
26 on the state law violations identified in Sectoins 4 and 5, which are preempted for the reasons

27

discussed herein.” (Pl.’s Mot. at 12 n.8.) As discussed above, the Court finds that Sections 4 and 5 are not likely to be preempted by federal law. Therefore, the United States is also not

28 likely to succeed on its claim that Section 10 is preempted.

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1 violations in connection with a traffic accident, the effect of Section 6 on warrantless arrest

2 authority is not entirely clear. Indeed, the Arizona officer training m aterials state that the

3 revision to A.R.S. § 13-3883 “does not appear to change Arizona law.I”mplementation of the

4 2010 Ariz. Immigration Laws - Statutory Provisions for Peace Officers 11 (June 2010),

5 http://agency.azpost.gov/supporting_docs/ArizonaImmigrationStatutesOutline.pdf. Both the

6 United States, in its Motion, and Arizona, at the Hearing, suggested that the revision provides

7 for the warrantless arrest of a person where there is probable c ause to believe the person

8 committed a crime in another statethat would be considered a crime if it had been committed

9 in Arizona and that would subject the person to removal from the United States. (Pl’s Mot.

10 at 32-33; Hr’g Tr. 46-48.) What is clear is thathe statutory revision targets only aliens–legal

11 and illegal–because only aliens are removable. See Hughes v. Ashcroft, 255 F.3d 752, 756 (9th

12 Cir. 2001) (citing 8 U.S.C. § 1227).

13

In its brief, Arizona originally asserted that the new provision in A.R.S. § 13-3883 was

14 “based upon a m emorandum the DOJ’s Offic e of Legal Counsel prepared in which it

15 concluded that federal law does not ‘preclude[]state police from arresting aliens on the basis

16 of civil deportability.’” (D efs.’ Resp. at 14 (quoting id., Ex. 4, Mem . from Jay S. Bybee,

17 Assistant Att’y Gen., Re: Non-preemption of the authority of state and local law enforcement

18 officials to arrest aliens for immigration violations, at 13).) Although neither party asserted

19 it at the Hearing, the Arizona Legislature’s intent m ay have been to provide for the

20 warrantless arrest of an alien who was previously convicted of a crime in Arizona but never

21 referred to DHS for potential removal proceedings . This alternate interpre tation of the

22 revision to A.R.S. § 13-3883 would be in keeping with a goal of conferring on state officers

23 the authority to arrest aliens on the basis of civil deportability.

24

Under the interpretation suggested by both parties that the revision to A.R.S. § 13-3883

25 is directed at the arrest of aliens who com mitted a crime in another sta te, the statute first

26 requires an officer to determine whether an alien’s out-of-state crime would have been a crime

27 if it had been committed in Arizona, a determination that requires knowledge of out-of-state

28 statutes and their relationship with Arizona’s statutes.See State v. Roque, 141 P.3d 368, 391

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1 (Ariz. 2006) (concluding that the California and Arizona robbery statutes are not coterimnous

2 and, under certain facts, a person may be convicted of attempted robbery in California but not

3 Arizona). Under any interpretation of the revision to A.R.S. § 13-3883, it requires an officer

4 to determine whether an alien’s public offense makes the alien removable from the United

5 States, a task of considerable complexity that falls under the exclusive authority of the federal

6 government. Justice Alito has commented that

7

providing advice on whether a conviction for a particular offense will make an

alien removable is often quite complex. “Most crimes affecting immigration

8

status are not specifically mentioned by the [Immigration and Nationality Act

(INA)], but instead fall under a broad category of crim es such as crimes

9

involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS

Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20,

10

2006) (summary) (emphasis in original). As has been widely acknowledged,

determining whether a particular crime is an “aggravated felony” or a “crime

11

involving moral turpitude [(CIMT)]” is not an easy task.

12 Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., conc urring) (some citations

13 omitted). Within the complicated scheme of determining removability, some federal officials

14 are, under certain circumstances, authorized to change the immigration consequences of the

15 commission of a public offense and cancel or suspend the rem oval of an alien. See, e.g., 8

16 U.S.C. §§ 1229b(a), 1253(a)(3). Ultim ately, immigration court judges a nd federal appeals

17 court judges determ ine whether an alien’s offense m akes an alien rem ovable. See id. §

18 1182(a)(2) (describing crimes that qualify as grounds for inadm issibility); id. § 1227(a)(2)

19 (describing crimes that qualify as grounds for deportation).

20

In its Motion, the United States provided evidence that Arizona police officers have

21 no familiarity with assessing whether a public offense would make an alien removable from

22 the United States. (Pl.’s Mot., Ex. 8, Decl. of Tony Estrada, Sheriff of Santa Cruz Cnty. ¶¶

23 8-9; Ex. 9, Decl. of Roberto Villaseñor, Chie f of Police, Tucson Police Dep’t ¶ 6.) In its

24 Response, Arizona asserted that, under the new A.R.S. § 11-1051, Arizona officers can

25 contact DHS to determ ine the immigration status of aliens. (Defs.’ Resp. at 19.) But the

26 revision to A.R.S. § 13-3883 does not sta te that an officer m ust contact DHS to assess

27

28

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1 removability; the revision simply extends the authority for an officer to make a warrantless

2 arrest.21

3

Considering the substantial com plexity in determining whether a pa rticular public

4 offense makes an alien removable from the United States and the fact that this determination

5 is ultimately made by federal judges, there is a substantial likelihood that of ficers will

6 wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing

7 this statute, Arizona would impose a “distinct, unusual and extra ordinary” burden on legal

8 resident aliens that only the federal government has the authority to impose. Hines, 312 U.S.

9 at 65-66. The Court thus finds that the United States is likely to succ eed on the m erits in

10 showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preem pted by

11 federal law.

12

C. Likelihood of Irreparable Harm

13

The Supreme Court has repeatedly recognized the “basic doc trine of equity

14 jurisprudence that courts of equity should not act . . . when the moving party has an adequate

15 remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v.

16 Harris, 401 U.S. 37, 43-44 (1971). Thus the United States also has the burden to establish

17 that, absent a preliminary injunction, there is a likelihood–not just a possibility–that it will

18 suffer irreparable harm. Winter, 129 S. Ct. at 374-75.

19

The Ninth Circuit Court of Appeals has stated “‘that an alleged constitutional

20 infringement will often alone constitute irreparable harm.’” Monterey Mech. Co. v. Wilson,

21 125 F.3d 702, 715 (9th Cir. 1997) (quotingAssoc. Gen. Contractors of Cal., Inc. v. Coal. for

22

23 21 Even if an officer does contact LESC for the immigration status of an alien, it is not clear

that LESC will have any information regarding whether a particular public offense that an 24 alien may have committed will make the alien removable from the United States. “Congress

25 established the LESC to provide alien status determination support to federal, state, and local law enforcement on a 24-hour-a-day, seven-days-a-week basis. The enabling legislation is
26 codified in 8 U.S.C. §§ 1226(d)(1)(A) & 1252 Note.” (Palmatier Decl. ¶ 5.) The statute only

27

directs LESC to determ ine the im migration status of an arrested individual. 8 U.S .C. § 1226(d)(1)(A). For its part, Arizona did not provide any evidence that LESC would be able

28 to advise an officer whether a particular public offense makes an alien removable.

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1 Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces

2 the imminent threat of enforcement of a preempted state law and the resulting injury may not

3 be remedied by monetary damages, the individual or entity is likely to suffer irreparable har.m

4 See Morales v. Trans World Airlines, Inc ., 504 U.S. 374, 381 (1992) (stating that a federal

5 court may properly enjoin “state officers ‘who thre aten and are about to com mence

6 proceedings, either of a civil or crim inal nature, to enforce against parties affected an

7 unconstitutional act, violating the Federal Constitution’” (quotingEx parte Young, 209 U.S.

8 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans , 491 U.S. 350,

9 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of

10 a state law that is preem pted on its face); Edmondson, 594 F.3d at 771 (concluding that

11 plaintiff is likely to suffer irreparable injury if enforcem ent of state law that is likely

12 preempted by IRCA and IIRIRA is not enjoined); Villas at Park side Partners v. City of

13 Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a

14 likelihood of irreparable injury if enforcement of a city ordinance that is preem pted by the

15 INA is not enjoined).

16

If enforcement of the portions of S.B. 1070 for which the Court finds a likelihood of

17 preemption is not enjoined, the United States is likely to suffer irreparable harm. This is so

18 because the federal government’s ability to enforce its policies and achieve its objectives will

19 be undermined by the state’s enforcement of statutes that interfere with federal law, even if

20 the Court were to conclude that the state statutes have substantially the same goals as federal

21 law. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-80 & n.14 (2000). For

22 this injury, the United States will have no remedy at law. The Court thus finds a likelihood

23 of irreparable harm to the interests of the United States that warrants preliminary injunctive

24 relief. See Am. Ins. Ass’n v. Garamendi , 539 U.S. 396, 413, 427 (2003) (enjoining

25 permanently the enforcement of a state statute that is preem pted by federal law because it

26 interferes with the federal government’s ability to enforce its policies); Crosby, 530 U.S. at

27 372, 379-80 (same).

28

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1

D. The Balance of Equities and the Public Interest

2

The United States also has the burden to show that the balance of equities tips in its

3 favor and that a preliminary injunction is in the public interest.Winter, 129 S. Ct. at 374. “A

4 preliminary injunction is an extraordinary re medy never awarded as of right.” Id. at 376

5 (citing Munaf v. Green, 128 S. Ct. 2207, 2218-19 (2008)). “In each case, courts ‘must balance

6 the competing claims of injury and must consider the effect on each party of the granting or

7 withholding of the requested relief,’” paying particular attention to the public consequences.

8 Id. at 376-77 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska , 480 U.S. 531, 542

9 (1987)).

10

The Ninth Circuit Court of Appeals has concluded that allowing a state to enforce a

11 state law in violation of the Supremacy Clause is neither equitable nor in the public interest.

12 Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009)A; m. Trucking

13 Ass’ns, Inc. v. City of L.A. , 559 F.3d 1046, 1059-60 (9th Cir. 2009). If Arizona were to

14 enforce the portions of S.B. 1070 for which the Court has found a likelihood of preemption,

15 such enforcement would likely burden legal resident aliens and interfere with federal policy.

16 A preliminary injunction would allow the federal government to continue to pursue federal

17 priorities, which is inherently in the public interest, until a final judgment is reached in this

18 case. See Am. Trucking, 559 F.3d at 1059-60.

19

The Court by no m eans disregards Arizona’s interests in controlling illegal

20 immigration and addressing the concurrent problems with crime including the trafficking of

21 humans, drugs, guns, and m oney. Even though Arizona’s interests m ay be consistent with

22 those of the federal governm ent, it is not in the public interest for Arizona to enforce

23 preempted laws. See Edmondson, 594 F.3d at 771. The Court therefore finds that preserving

24 the status quo through a preliminary injunction is less harmful than allowing state laws that

25 are likely preempted by federal law to be enforced.See Cal. Pharmacists, 563 F.3d at 852-53;

26 Am. Trucking, 559 F.3d at 1059-60.

27

IT IS THEREFORE ORDERED granting in pa rt and denying in part the United

28 States’ Motion for Preliminary Injunction (Doc. 27).

- 35 -

Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10 Page 36 of 36

1

IT IS FURTHER ORDERED denying the United States’ Motion for Prelim inary

2 Injunction as to the following Sections of Senate Bill 1070 (as amended by House Bill 2162):

3 Section 1, Section 2(A) and (C)-(L), Section 4,the portion of Section 5 creating A.R.S. § 13-

4 2929, the portion of Section 5 creating A.R.S. § 13-2928(A) and (B), and Sections 7-13.

5

IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and

6 Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by

7 House Bill 2162): Section 2(B) creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. §

8 13-1509, the portion of Section 5 creating A.R.S§. 13-2928(C), and Section 6 creating A.R.S.

9 § 13-3883(A)(5).

10

11

DATED this 28th day of July, 2010.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 36 -

 
 Case 2:10-cv-01413-SRB Document 118 Filed 09/03/10 Page 1 of 2

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 United States of America,

)

)

9

Plaintiff,

)

)

10 vs.

)

)

11

)

State of Arizona; Janice K. Brewer, )

12 Governor of the State of Arizona, in her )

official capacity,

)

13

)

Defendants.

)

14

)

)

15

No. CV 10-1413-PHX-SRB ORDER

16 The Court now resolves several pending Motions for Leave to File Amicus Curiae
17 Briefs. (Docs. 14, 30, 37, 46, 49, 52, 57, 66.) The following Motions were filed in thisatmter:
18 • Doc. 14, Motion for Leave to File Brief of Amicus Curiae The Center on the
19 Administration of Criminal Law (filed July 8, 2010);
20 • Doc 30, Motion and Mem orandum for Request to File Brief of Amici Curiae
21 Michigan, Florida, Alabam a, Nebraska, Northern Maria na Islands, Pennsylvania,
22 South Carolina, South Dakota, Texas, and Virginia (filed July 14, 2010);
23 • Doc. 37, Revised Motion by American Bar Association to File Amicus Curiae Brief
24 in Support of Plaintiffs’ [sic]Motion for Preliminary Injunction (filed July 15, 2010);
25 • Doc. 46, Amicus Curiae Motion in Support of the S tate of Arizona and Janice K.
26 Brewer by Ray Elbert Parker (filed July 16, 2010);
27 • Doc. 49, Motion for Leave to File BriefAmicus Curiae on Behalf of American Unity
28

Case 2:10-cv-01413-SRB Document 118 Filed 09/03/10 Page 2 of 2

1

Legal Defense Fund (filed July 19, 2010);

2 • Doc. 52, Motion for Leave to File Amicus Curiae Memorandum by Arizona

3

Municipal Risk Retention Pool (filed July 19, 2010);

4 • Doc. 57, Motion for Leave to File Brief of Amici Curiae Washington Legal

5

Foundation, et al. (filed July 20, 2010);

6 • Doc. 66, Motion for Leave to File Proposed Brief Amici Curiae of Members of the

7

United States Congress Trent Franks, et al. (filed July 20, 2010).

8

These Motions were received by the Court amid many other filings in the days leading

9 up to the July 29, 2010, effective date of Senate Bill 1070 and House Bill 2162 (collectively,

10 “S.B. 1070”), a set of statutes and statutory revisions. On July 22, 2010, the Court heard oral

11 argument on Plaintiff’s Motion for Preliminary Injunction, and on July 28, 2010, the Court

12 granted the Motion in part and denied it in part and preliminarily enjoined the enforcement

13 of certain sections of S.B. 1070. (See Doc. 78, Minute Entry; Doc. 27, Pl.’s Mot. for Prelim.

14 Inj.; Doc. 87, Order.) In light of the time constraints and the numerous Motions and many

15 other amicus briefs filed and reviewed in this case and the other lawsuits cha llenging S.B.

16 1070, the Court did not review or consider the above-listed Motions and their accopmanying

17 proposed briefs, all of which m ake arguments related to the issuance of prelim inary

18 injunctive relief, before issuing the July 28, 2010, Order on the Motion for Prelim inary

19 Injunction.

20

IT IS THEREFORE ORDERED denying the following Motions to file Amicus

21 Curiae briefs as moot: Docs. 14, 30, 37, 46, 49, 52, 57, 66.

22

23

DATED this 3rd day of September, 2010.

24

25

26

27

28

- 2 -

 
 Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 1 of 56

1 Thomas C. Horne (#002951)

Attorney General

2 Michael Tryon (#003109)

Senior Litigation Counsel

3 1275 West Washington Street

Phoenix, Arizona 85007-2926

John J. Bouma (#001358)

4 Telephone: (602) 542-5025

Robert A. Henry (#015104)

tom.horne@azag.gov

Joseph G. Adams (#018210)

5 michael.tryon@azag.gov

Kelly A. Kszywienski (#025578)

Attorneys for Defendant/

SNELL & WILMER L.L.P.

6 Counterclaimant the State of Arizona

One Arizona Center

400 E. Van Buren

7 Joseph A. Kanefield (#015838)

Phoenix, AZ 85004-2202

Office of Governor Janice K. Brewer

Telephone: (602) 382-6000

8 1700 W. Washington, 9th Floor

jbouma@swlaw.com

Phoenix, AZ 85007

bhenry@swlaw.com

9 Telephone: (602) 542-1586

jgadams@swlaw.com

jkanefield@az.gov

kkszywienski@swlaw.com

10 Attorney for Defendants/Counterclaimants Attorneys for Defendants/Counterclaimants

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 The United States of America,

14 v.

Plaintiff,

15 The State of Arizona; and Janice K. Brewer,

16

Governor of the State of Arizona, in her Official Capacity,

17

Defendants.

No. 2:10-cv-01413-SRB THE STATE OF ARIZONA AND GOVERNOR JANICE K. BREWER’S ANSWER AND COUNTERCLAIMS

18 The State of Arizona; and Janice K. Brewer,

19

Governor of the State of Arizona, in her Official Capacity,

20

Counterclaimants,

v.

21

The United States of America; the United

22 States Department of Homeland Security;

Janet Napolitano, Secretary of the United

23 States Department of Homeland Security, in

her official capacity; the United States

24 Department of Justice; and Eric H. Holder,

Jr., Attorney General for the United States

25 Department of Justice, in his official capacity,

26

Counterdefenda nts.

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 2 of 56

1

Defendants, the State of Arizona (“Ariz ona”) and G overnor Janice K. Br ewer

2 (“Brewer”), collectively referred to in the Answer as Defenda nts respond and ans wer

3 Plaintiff’s Complaint as follows:

4

INTRODUCTION

5

1. Defendants admit that the United States of America has sought to enjoin the

6 enforcement of SB 1070, but defendants deny that SB 1070 is preempted by federal law or

7 violates the Supremacy Clause of the United States Constitution (“Constitution”).

8

2. The allegations contained in para graph 2 are legal conclus ions and

9 conjecture about the interpreta tion of the Constitution and nu merous immigration laws.

10 The documents speak for them selves and the characterizations of the Constitution and

11 immigration laws are specifically denied.

12

3. Defendants admit that the State of Arizona enacted SB 1070. The

13 remaining allegations contained in paragraph 3 contain conclusions about the intent of SB

14 1070. Answering further, SB 1070 is a

document that speaks for itself and any

15 characterizations of SB 1070 are denied.

16

4. Defendants deny the allegations cont ained in paragraph 4. Answeri ng

17 further, plaintiff’s statements in paragraph 4 are conclusions and conjecture about the

18 goals and implications of SB 1070. SB 1070 speaks for itself and any characterizations of

19 SB 1070 are denied.

20

5. Defendants deny that SB 1070 violat es the Supremacy Clause of the

21 Constitution. The remaining portions of paragraph 5 cont ain characterizations and

22 interpretations of the Constitution, numerous immigration laws, and the purported view of

23 the United States, all of which are denied.

24

JURISDICTION AND VENUE

25

6. Defendants admit that this actio n arises under the Constitution and the

26 Immigration and Nationality Act, (“INA”), 8 U.S.C. § 1101, et. seq., but deny that it is

- 2 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 3 of 56

1 limited to the specified Articles of the Cons titution. Defendants admit that this Court has

2 jurisdiction over this matter pur suant to 28 U.S.C. §§ 1331 and 1345 and the plaintiff

3 seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202.

4

7. Defendants admit that venue is proper.

5

PARTIES

6

8. Defendants admit that the United States of America is the plaintiff, and

7 admits that it has brought this claim on be half of the U nited States D epartment of

8 Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the D epartment of

9 State.

10

9. Defendants admit that DHS is an executiv e department of the United States.

11 To the extent that paragraph 9 attempts to summarize portions of the INA, the INA speaks

12 for itself and any characterizations of such laws are denied.

13

10. Defendants admit that the DOJ is an executive departm ent of the Unite d

14 States and that the At torney General shares certain immigration-related responsi bilities

15 with the Secretary of Homeland Security. To the extent that paragraph 10 attempts to

16 summarize portions of the INA, the INA s peaks for itself and any characterizations of

17 such laws are denied.

18

11. Defendants admit that the Department of State is an executive department of

19 the United States and that the Department of State has responsibility for administering

20 some aspects of immigration laws.

21

12. Defendants admit the allegations contained in paragraph 12.

22

13. Defendants admit the allegations contained in paragraph 13.

23

STATEMENT OF THE CLAIM

24

Federal Authority And Law Governing Immigration And Status of Aliens

25

14. Defendants admit that the allegations contained in para graph 14 contain a

26 quote from a small portion of Article VI, Clause 2 of the Constitution. The Constitution is

- 3 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 4 of 56

1 a document that speaks for itself and any characterizations of the Constitution are denied.

2

15. Defendants admit that the allegations co ntained in paragraph 15 contain two

3 quotes from a small portion of Article I, Section 8 of the Constitution. The Constitution

4 speaks for itself and any characterizations of the Constitution are de nied. The remaining

5 allegations are characterizations of the fede ral government’s “broad” discretion and suc h

6 characterizations are denied.

7

16. Defendants admit that the allegations contained in para graph 16 contain a

8 quote from a small portion of Article II, Section 3 of the Cons titution. Defendants further

9 admit that foreign affairs are a part of the President’s duties. To the extent paragraph 16

10 attempts to characterize the President’s duties, such characterizations are denied.

11

17. Defendants admit the allegation contained in paragraph 17 that Congress has

12 exercised its authority to make laws governing immigration and the status of aliens within

13 the United States by enacting various pr ovisions of the INA a nd other laws regulating

14 immigration. To the extent that paragraph 17 attempts to summarize portions of the INA,

15 the INA speaks for itself and any characterizations of the INA are denied.

16

18. Defendants admit the allegations containe d in paragraph 18 that the INA at

17 times vests discretion with respect to speci fic provisions of im migration laws. Upon

18 information and belief, the federal governm ent has from time to time set enforcement

19 priorities for the arrest, detention, prosecuti on, and removal of a liens. Defendants are

20 without sufficient informati on and knowledge t o either adm it or de ny the specific

21 enforcement priorities of the federal government.

22

19. Defendants admit the allegations contai ned in paragraph 19 that Congress

23 has taken into account competing interests an d agree that “effective enforcement of the

24 provisions against illegal migration and unlawf ul presence is a highly important interest”

25 and it is not the singular goal of the federal immigration laws. To the extent that

26 paragraph 19 attem pts to sum marize portions of t he nation’s im migration laws, the

- 4 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 5 of 56

1 immigration laws and the cases interpreti ng the laws speak for themselves and any

2 characterizations of such laws and cases are denied.

3

20. Defendants admit the allegations co ntained in par agraph 20 of the

4 Complaint that DHS, DOJ and th e Department of State all have powers and obligati ons

5 with respect to aspects of the immigration laws. To the extent that paragraph 20 attempts

6 to summarize portions of the nation’s im migration laws, the immigration laws speak for

7 themselves and any characterizations of such laws are denied.

8

21. Defendants admit the nation’s im migration laws at times vest d iscretion

9 with respect to specific provisions of immi gration laws. Paragraph 21 attempts to

10 summarize portions of the nation’s im migration laws. The im migration laws speak f or

11 themselves and the defendants deny any characterizations of such laws.

12

22. Defendants admit the immigration laws at times vest discretion with respect

13 to specific provisions of imm igration laws and that DOJ and DHS exercise discretio n

14 from time to time in enforcing the laws. Para graph 22 attempts to summarize portions of

15 the nation’s immigration laws. The immigr ation laws speak for themselves and the

16 defendants deny any characterizations of such laws.

17

23. Defendants admit that “unlawful entry in to the United States is a criminal

18 offense” under 8 U.S.C. § 1 325. Defendants further adm it that Congress authorized,

19 without a warrant, “federal immigration officers to patrol the United States border, as well

20 as search vehicles and lands near the border, to prevent aliens from unlawfully entering

21 the United States.” The remaining allegations contained in paragraph 23 of the Complaint

22 are incomplete summaries of portions of the nation’s immigration laws. The immigration

23 laws speak for themselves and the defendants deny that such summaries are complete, and

24 further deny the characterizations of such laws.

25

24. Paragraph 24 of the Complaint atte mpts to summarize portions of the

26 nation’s immigration laws related to an alie n registration system. The im migration laws

- 5 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 6 of 56

1 speak for t hemselves and t he defendants deny that such summaries are co mplete, and

2 further deny any characterizations of such laws.

3

25. Paragraph 25 of the Complaint atte mpts to summarize portions of the

4 nation’s immigration laws related to an alie n registration system. The im migration laws

5 speak for t hemselves and t he defendants deny that such summaries are co mplete, and

6 further deny any characterizations of such laws.

7

26. Paragraph 26 of the Complaint atte mpts to summarize portions of the

8 nation’s immigration laws related to an alie n registration system. The im migration laws

9 speak for t hemselves and t he defendants deny that such summaries are co mplete, and

10 further deny any characterizations of such laws.

11

27. Defendants admit that paragraph 27 of t he Complaint quotes small portions

12 of 8 U. S.C. § 1324. 8 U. S.C. § 1324 speaks for itself and any characterizations of the

13 statute are denied.

14

28. Defendants admit that paragraph 28 of t he Complaint quotes small portions

15 of 8 U. S.C. § 1324. 8 U. S.C. § 1324 speaks for itself and any characterizations of the

16 statute are denied.

17

29. Defendants admit that paragraph 29 of t he Complaint quotes small portions

18 of 8 U. S.C. § 1324. 8 U. S.C. § 1324 speaks for itself and any characterizations of the

19 statute are denied.

20

30. Defendants admit that under specif ic portions of t he INA and ot her

21 immigration laws, DHS is charged with admi nistering and e nforcing the l aws and t hat

22 DHS includes, among others, U.S. Im migration and Customs Enforcement (“ICE”), U.S.

23 Customs and Border Protection (“CBP”), and U.S. Cit izenship and Immigration Services

24 (“USCIS”). Defendants affirm atively allege that DHS and its com ponents have failed to

25 enforce the nation’s immigratio n laws. De fendants further admit that C ongress has

26 acknowledged numerous ways that the st ates may assist in the enforcement of the

- 6 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 7 of 56

1 immigration laws. Paragraph 30 of the C omplaint attempts to summarize portions of the

2 nation’s immigration laws. The im migration laws speak for themselves and the

3 defendants deny that such summaries are complete, and further deny any characterizations

4 of such laws.

5

31. Defendants admit the allegations co ntained in par agraph 31 of the

6 Complaint that DHS has some programs where DHS works cooperatively with states and

7 localities. Defendants admit th at LEAR and LESC are two such programs. Defendants

8 admit that state and local authorities freque ntly work with DHS for determinations

9 regarding immigration status and other immigration matters. The remaining allegations in

10 paragraph 31 attempt to summarize portions of DHS programs that involve state and local

11 agencies and officers, but defendants deny that such summaries are complete.

12

32. Plaintiff’s statements in paragraph 32 of the Complaint are legal conclusions

13 and, therefore, denied.

14

Arizona’s SB 1070

15

33. Defendants admit Governor Brewer signed SB 1070 into law on April 23,

16 2010. Defendants admit that paragraph 33 of the Complaint includes quotes of portions of

17 SB 1070 and paragraph 33 attempts to summarize portions of SB 1070. SB 1070 s peaks

18 for itself. Defendants further deny any characterizations of SB 1070 containe d in

19 paragraph 33.

20

34. Defendants admit that Governor Brewer issued Arizona State Executive

21 Order 2010-09 (April 23, 2010) an d that paragraph 34 of the Complaint includes quotes

22 from a small portion of Executive Order 2010-0 9. Executive Order 2010-09 speaks for

23 itself.

24

35. Defendants admit that Arizona passe d HB 2162, which amended SB 1070

25 and that Governor Brewer made a statement after HB 2162 was signe d. The remaining

26 portions of paragraph 35 of the Complaint include a quote from a small portion of

- 7 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 8 of 56

1 Governor Brewer’s statement. Defendants affi rmatively assert that HB 2162, SB 1070 as

2 amended, and Governor Brewer’s statement speak for themselves.

3

36. Defendants deny t he allegations c ontained in para graph 36 of the

4 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

5 allegations are intended to challenge Sec tion 1 of S B 1070 be cause the Court granted

6 defendants’ Motion to Dismiss with respect to Section 1.

7

37. Defendants deny t he allegations c ontained in para graph 37 of the

8 Complaint. To t he extent t hat paragraph 37 attempts to summarize SB 1070, SB 1070

9 speaks for itself. Defenda nts deny that the summaries contained in paragra ph 37 are

10 accurate and complete. Defendants further deny any characterizations of SB 1070.

11 Defendants affirmatively allege that no response is necessary to the extent the allegations

12 are intended to challenge Section 1 of S B 1070 because the Court granted defenda nts’

13 Motion to Dismiss with respect to Section 1.

14

38. Defendants deny t he allegations c ontained in para graph 38 of the

15 Complaint. To the extent that paragraph 38 attem pts to summarize SB 1070 and its

16 influence on foreign relations, trade, national security, etc., SB 1070 speaks for itself as

17 does the article cited in paragra ph 38. Defe ndants deny that the sum maries contained in

18 paragraph 38 are accurate and complete, and f urther deny an y characterizations of SB

19 1070. Defenda nts affirmatively allege that no response is necessary to the extent the

20 allegations are intended to challenge Sec tion 1 of S B 1070 be cause the Court granted

21 defendants’ Motion to Dismiss with respect to Section 1.

22

39. Defendants are without sufficient inform ation and knowledge to admit or

23 deny whether other s tates are “contem plating” similar legislation. Defenda nts deny al l

24 remaining allegations contained in paragraph 39 of the Complaint.

25

Section 2 of SB 1070

26

40. Defendants admit that paragraph 40 of the Complaint includes quotes of

- 8 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 9 of 56

1 small portions of Section 2 of SB 1070 and paragraph 40 attempts to summarize portions

2 of Section 2 of S B 1070. SB 1070 spea ks for itself and the de fendants deny that the

3 summaries contained in paragr aph 40 ar e complete. Defendants further deny any

4 characterizations of SB 1070.

5

41. Defendants admit that paragraph 41 of the Complaint includes quotes of

6 small portions of Sec tion 2 of SB 1070 a nd paragraph 41 attempts to summarize and

7 characterize Section 2 of SB 1070. SB 1070 speaks for itself and the defendants deny that

8 the summaries contained i n paragraph 41 ar e complete. Defendants further deny any

9 characterizations of SB 1070 and the tr uth of any such characterizations. All remaining

10 allegations contained in paragraph 41 are denied.

11

42. Defendants deny t he allegations c ontained in para graph 42 of the

12 Complaint.

13

43. Defendants deny t he allegations c ontained in para graph 43 of the

14 Complaint. To the extent that paragraph 43 attem pts to characterize, summarize, and

15 quote from small portions of SB 1070, SB 1070 speaks for itself. Defendants deny that

16 the summaries in paragraph 43 are accurate and complete. Defendants furt her deny any

17 characterizations of SB 1070.

18

44. Defendants deny t he allegations c ontained in para graph 44 of the

19 Complaint. Defendants affirm atively allege that inquiries of imm igration status under

20 section 2 of SB 1070 are specifically permi tted by 8 U.S.C. § 1373 (a) and 8 U.S.C. §

21 1644.

22

45. Defendants deny t he allegations c ontained in para graph 45 of the

23 Complaint.

24

Section 3 of SB 1070

25

46. Defendants admit that paragraph 46 of the Complaint includes quotes of

26 small portions of Section 3 of SB 1070 and paragraph 46 attempts to summarize portions

- 9 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 10 of 56

1 of Section 3 of SB 1070. SB 1070 speaks for itself. Defendants deny t hat the summaries

2 in paragraph 46 are com plete. Defendants further deny any characterizations of SB 1070

3 contained in paragraph 46.

4

47. Defendants deny t he allegations c ontained in para graph 47 of the

5 Complaint.

6

48. Defendants deny t he allegations c ontained in para graph 48 of the

7 Complaint. To the extent that paragraph 48 attempts to characterize or summarize

8 portions of SB 1070, SB 1070 s peaks for its elf. Defenda nts deny that the summaries

9 contained in paragraph 48 are accurate a nd complete. Defendants further deny any

10 characterizations of SB 1070.

11

49. Defendants deny the allegations contained in paragraph 49 of the Complaint

12 to the extent that such para graph attempts to characterize SB 1070. SB 1070 s peaks for

13 itself. The defendants deny the characterizations of SB 1070.

14

Section 4 of SB 1070/A.R.S. § 13-2319

15

50. Defendants admit that paragraph 50 of the Complaint includes quotes of

16 small portions of A.R .S. § 13 -2319. Paragraph 50 attem pts to summarize portions of

17 Section 3 of SB 1070. SB 1070 speaks fo r itself. Defenda nts deny that the summaries

18 contained in paragraph 50 are com plete, and further deny any c haracterizations of SB

19 1070.

20

51. Defendants deny t he allegations c ontained in para graph 51 of the

21 Complaint. To the extent that paragraph 51 attem pts to summarize and characterize

22 A.R.S. § 13-2319 a nd 8 U. S.C. § 1324 and im migration law, these statutes and laws

23 speaks for themselves and the defendants deny the characterizations of these laws.

24

Section 5 of SB 1070

25

52. Defendants admit the allegations co ntained in par agraph 52 of the

26 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

- 10 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 11 of 56

1 allegations are intended to challenge Secti on 5 of S B 1070 t hat creates A.R.S. §§ 13-

2 2928(A) and (B) bec ause the Court gra nted defendants’ Motion to Dismiss based on

3 plaintiff’s failure to state a claim with respect to portions of Section 5.

4

53. Defendants admit that paragraph 53 of the Complaint includes quotes of

5 small portions of A.R .S. § 13 -2319. Paragraph 53 attem pts to summarize portions of

6 A.R.S. § 13-2319, but A.R.S. § 13- 2319 speaks for i tself. Defenda nts deny that the

7 summaries contained in paragr aph 53 ar e complete. Defendants further deny any

8 characterizations of A.R.S. § 13-2319.

9

54. Defendants deny t he allegations c ontained in para graph 54 of the

10 Complaint.

11

55. Defendants deny t he allegations c ontained in para graph 55 of the

12 Complaint. To the extent that Paragraph 55 attem pts to summarize and characterize

13 A.R.S. § 13-2929 and 8 U.S.C. § 1324 and immigration law, these statutes and law speaks

14 for themselves. Defendants deny the charact erizations of the se laws. Defenda nts

15 affirmatively allege that no response is necessary to the extent the allegations are intended

16 to challenge Section 5 of SB 1070 based on preemption by federal immigration law for

17 purposes of a facial challenge or based on the dormant Commerce Clause because the

18 Court granted defendants’ Motion to Dismiss on these grounds.

19

56. Defendants deny t he allegations c ontained in para graph 56 of the

20 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

21 allegations are intended to challenge Secti on 5 of S B 1070 t hat creates A.R.S. §§ 13-

22 2928(A) and (B) bec ause the Court gra nted defendants’ Motion to Dismiss based on

23 plaintiff’s failure to state a claim with respect to portions of Section 5.

24

Section 6 of SB 1070

25

57. Defendants admit that paragraph 57 of the Complaint includes quotes of

26 small portions of A.R .S. § 13 -3883. Paragraph 57 attem pts to summarize portions of

- 11 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 12 of 56

1 Section 6 of S B 1070, but A. R.S. § 13- 3883 and SB 10 70 speak for themselves.

2 Defendants deny that such sum maries are complete, and further deny any

3 characterizations of A.R.S. § 13-3883 and SB 1070.

4

58. Defendants deny t he allegations c ontained in para graph 58 of the

5 Complaint. To the extent that paragraph 58 attem pts to summarize and characterize

6 A.R.S. § 13-3883 and SB 1070, these statutes and laws speak for themselves. Defendants

7 deny the characterizations of these laws.

8

59. Defendants deny t he allegations c ontained in para graph 59 of the

9 Complaint. To the extent that paragraph 59 attem pts to summarize and characterize

10 A.R.S. § 13-3883 and SB 1070, these statutes and laws speak for themselves. Defendants

11 deny the characterizations of these laws and the truth of any such characterizations.

12

60. Defendants deny t he allegations c ontained in para graph 60 of the

13 Complaint.

14

First Cause of Action – Violation Of The Supremacy Clause

15

61. Defendants incorporate the responses from paragraphs 1 through 60.

16

62. Defendants deny t he allegations c ontained in para graph 62 of the

17 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

18 allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I),

19 (J), (K), and (L) of SB 1070 be cause the Court gra nted defendants’ Motion to Dism iss

20 finding the Complaint failed to state a claim and the absenc e of facts sufficient to find

21 Section 2(H) is preempted on its face.

22

63. Defendants deny t he allegations c ontained in para graph 63 of the

23 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

24 allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I),

25 (J), (K), and (L) of SB 1070 be cause the Court gra nted defendants’ Motion to Dism iss

26 finding the Complaint failed to state a claim and the absenc e of facts sufficient to find

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 13 of 56

1 Section 2(H) is preempted on its face.

2

Second Cause of Action – Violation Of The Supremacy Clause

3

64. Defendants incorporate the responses from paragraphs 1 through 63.

4

65. Defendants deny t he allegations c ontained in para graph 65 of the

5 Complaint. Defendants affirmatively allege that no response is necessary to the extent the

6 allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I),

7 (J), (K), and (L) of SB 1070 be cause the Court gra nted defendants’ Motion to Dism iss

8 finding the Complaint failed to state a claim and the absenc e of facts sufficient to find

9 Section 2(H) is preempted on its face.

10

Third Cause of Action – Violation Of The Commerce Clause

11

66. Defendants incorporate the responses from paragraphs 1 through 65.

12

67. Defendants deny t he allegations c ontained in para graph 67 of the

13 Complaint. Defendants affirmat ively allege that no response is necessary to the extent

14 that the allegations are intended to challenge Section 5 of SB 1070 based on the restriction

15 of interstate m ovement of aliens or th e Commerce Clause because the Court gra nted

16 defendants’ Motion to Dismiss on those grounds.

17

68. Defendants deny t he allegations c ontained in para graph 68 of the

18 Complaint. Defendants affirmat ively allege that no response is necessary to the extent

19 that the allegations are intended to challenge Section 5 of SB 1070 based on the restriction

20 of interstate m ovement of aliens or th e Commerce Clause because the Court granted

21 defendants’ Motion to Dismiss on those grounds.

22

GENERAL DENIAL

23

69. Defendants deny all allegations not specifically admitted.

24

70. Defendants deny all legal conclusions and any allegations based on hearsay.

25

AFFIRMATIVE DEFENSES

26

1. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 14 of 56

1 The Court dismissed the following claims or those portions of the Complaint based on the

2 following: Section 1, Subsections 2(A), (C) through (G), (H), (I), (J), (K), and (L) ,

3 portions of Section 5 of SB 1 070 that created A.R.S. § 13- 2928(A) and (B), and portions

4 of Section 5 of SB 1070 that created A.R.S. § 13-2929.

5

2. Defendants complied with all relevant federal, state and local laws,

6 including the Arizona Constitution and the Constitution.

7

3. Defendants have a right to protect their citizens.

8

4. Arizona has a right to self defense un der the Constitution, particularly when

9 the federal government fails to protect it.

10

5. Plaintiff lacks both Article III and prudential standing to bring this Action.

11

6. Plaintiff has failed to name DHS, DOJ, and the State Department as the real

12 parties-in-interest.

13

7. Any alleged foreign policy im plications were caused by indivi duals other

14 than defendants, including the plaintiff and its agencies and officials.

15

8. Pursuant to the Constitution, the plain tiff should have brought this matter in

16 the United States Supreme Court as it has original jurisdic tion of lawsuits between the

17 United States and an individual state under the Constitution.

18

9. Plaintiff has unclean hands to the extent it has failed to enforce the

19 immigration laws and otherwise fulfill its du ties as required by law and the Constitution

20 and the executive branch of the federal gover nment has failed to enforce the decisions

21 Congress made when it enacted the immigration laws.

22

10. Defendants acted within their discre tion under t he State’s broad police

23 power under the 10th Amendment of the Constitution.

24

11. Defendants will be irreparably harmed if plaintiff obtains the relief sought in

25 this matter.

26

12. Plaintiff’s facial challe nge to the constitutionality of SB 1070 is barred to

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 15 of 56

1 the extent that it relies on hypothetical or speculative circumstances.

2

13. SB 1070 is not preempted by federal law or the Constitution. SB 1070 does

3 not conflict with federal law, does not consti tute an improper regulation of im migration,

4 and Congress has not fully occupied the field.

5

14. SB 1070 does not violate the Comme rce Clause of the Constitution or

6 discriminate or burden interstate commerce.

7

15. The allocation of power contained in the Commerce Clause does not

8 authorize Congress to regulate state governments’ regulation of interstate commerce.

9

16. Defendants do not know if additional affirmative defenses m ay prove to

10 have some application and, therefore, incor porate by reference the additi onal defenses

11 contained within Rule 8(c) of the Fed. R. Civ. P.

12

WHEREFORE, having fully answered, defendants request that the Court:

13

A. Dismiss plaintiff’s comp laint with prejudice and th at plaintiff take nothing

14 thereby;

15

B. Award defendants their costs and r easonable attorney fees, an d other

16 expenses pursuant to any applicable statutes;

17

C. Award any such other and further relief as the Court deems appropriate.

18

19

20

21

22

23

24

25

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 16 of 56

1

COUNTERCLAIMS

2

For their Counterclaims, Defendants/Count erclaimants the State of Arizona and

3 Governor Janice K. B rewer (collectively the “S tate of Arizona” or “Arizona”) allege as

4 follows:

5

SUMMARY

6

1. The federal government is not co mplying with its constitutional and

7 statutory duty to protect Arizona and its citizens from the over whelming problems

8 associated with the invasion of illegal aliens into Ariz ona. Arizona brings these

9 counterclaims to address the “rampant illega l immigration, escala ting drug and human

10 trafficking crimes, and serious public safety concerns” noted by m any, including t his

11 Court. See Order at 1, July 28, 2010, ECF No. 87.

12

2. The federal gover nment has fai led to achieve and maintain “operational

13 control” of the United States-Mexico border and the Arizona-Mexico border in particular.

14 The impact to Arizona is acute and unique. Based on current estimates from the federal

15 government, over 40% of all illegal border crossings nationwide are through Arizona.

16

3. The federal government is not enforcin g the imm igration laws w ithin the

17 United States. The current policy of t he Executive Branch of the U nited States

18 government is to take no action regarding the vast majority of aliens w ho are unlawfully

19 present in the country.

20

4. Upon information and belief, the Execu tive Branch is curre ntly working to

21 pursue its ow n agenda, irrespective of Cong ress’ intent, and attempting to achieve

22 “meaningful immigration reform absent legislative action.”

23

5. The federal gover nment’s practice of non-enforcement of t he immigration

24 laws has caused the union representing 7,000 employees of the Immigration and Customs

25 Enforcement (“ICE”) to issue a una nimous vote of “no confidence” in the leadership of

26 ICE because ICE leadership has “abandoned the Agency’s co re mission of enforcing

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 17 of 56

1 United States Immigration Laws and providing for public safety.”

2

6. The federal government refuses to re imburse Arizona for the staggerin g

3 economic, social, and instituti onal costs and damages associated with illegal immigration

4 in Arizona. To cite a single example, ille gal aliens now occupy mo re than 14% of the

5 State’s prison population. These costs a dversely affect the already e xtreme budget

6 problems for Arizona , and t he public heal th, safety, and welfare of Arizona and its

7 citizens.

8

7. The federal government has effectivel y conceded its inability to pr otect

9 Arizona and its citizens from criminal activ ities associated with illegal aliens. For

10 example, within the last year, the federal gove rnment placed warning signs in the desert

11 80 miles north of the bor der and only 30 miles south of Phoe nix warning people to stay

12 away from the area and to call 911 ( i.e., Arizona’s state and local law enforcement) if

13 there were encounters with illegal aliens engaged in criminal activity in the area.

14

8. Arizona has taken all reasonable steps to obtain assistance from the federal

15 government in addressing the harm that ille gal immigration is ca using to the health,

16 safety, and welfare of Arizona’s citizens. Former Arizona Governor Napolitano (now the

17 Secretary of the Department of Homeland Security) previously declared a state o f

18 emergency, both for mer Governor Napolitano and Governor Brewer have repeatedly

19 requested the federal government’s assist ance, and Arizona has specific ally sought

20 reimbursement from the federal government for over one billion dollars in unreimbursed

21 costs of incarcerating illegal criminal aliens in Arizona prisons.

22

9. Arizona’s efforts to persuade the federal government to take effective action

23 to protect Arizona have be en unsuccessful. The problems associated with illegal

24 immigration persist in Arizona, and they continue to gr ow at an exponential and

25 disproportionate pace in comparison to other states.

26

10. The federal government has taken the position that if the current

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 18 of 56

1 administration decides that nothi ng shall ha ppen with respect to en forcement of certain

2 statutes that Congress has enacted pertaining to illegal aliens or illegal immigration, state

3 or local law enforcement offi cials are essentially powerle ss to do anyt hing other tha n

4 accept the consequences.

5

11. The Executive Branch is improperly attempting to assume control over the

6 power that Article I, Section 8 grants exclus ively to the Legislative Branch to set a

7 uniform rule of natura lization. The current Executive Branch is a ttempting to establish

8 unilaterally what the immigration laws are or what they should be.

9

12. The Executive Branch’s practices are contrary to the Constitution and the

10 laws that the Legislative Branch has establishe d. The Executive Bran ch’s position is that

11 compliance with its own recently announced priorities takes precedence over compliance

12 with congressional mandates. Judicial review must be available to safeguard citizens

13 from this abuse of unconstrained government power.

14

13. Via these Counterclaims, the State of Arizona seeks relief from the Judicial

15 Branch to clarify the significant constitutional and statutory issues involved. In particular,

16 Arizona seeks declaratory judgments that clarify the cons titutional and statutory

17 obligations of the Executive and Le gislative Branches of the federal governm ent with

18 respect to immigration and illegal aliens, and the rights of the vari ous parties (including

19 Arizona) with significant issues at stake.

20

14. Arizona further seeks mandamus and injunctive relief to compel the federal

21 government and its responsible officers to ta ke the necessary and appr opriate actions to

22 satisfy their constitutional and statutory obligations.

23

15. Arizona and ot her states have previously asserted ot her claims

24 addressing immigration-related issues in prior lawsuits, including Arizona v. United

25 States, 104 F.3d 1095 (9th Cir. 19 97). However, Arizona finds itself in a very different

26 procedural posture and substantive position. For example, in the last twenty years, the

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 19 of 56

1 disproportionate impact of illegal immigratio n to Arizona has increased substantially.

2 Further, unlike the prior claimants, the federal government is suing Arizona for attempting

3 to take action to protect its citizens from the p ublic safety concerns arising out of rampant

4 illegal immigration and has acted to enjoin Ar izona from providing the type of assistance

5 in the enforcement of federal immigration la ws that the Legislative Branch expressly

6 invited and encouraged states to provide.

7

16. President Obama summarized the state of affairs regardi ng immigration:

8 “the system is broken . . . [and] everyone knows it.” Rather than working with Arizona to

9 address these issues, however, the federal go vernment initiated this lawsuit to prevent

10 Arizona from taking action to protect the State from significant and dis proportionate

11 public health, safety, and welfare problem s caused by the “broken system.” With the

12 Executive Branch refusing to enforce the law, the Judici al Branch must st ep in to resolve

13 the rights, roles, and obligations in this “system.”

14

JURISDICTION AND VENUE

15

17. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because the matters

16 in controversy in these Coun terclaims arise under the Cons titution of the United States

17 and laws of the United States. This C ourt also has jurisdiction of this matter under 2 8

18 U.S.C. § 1345 because the United States is the plaintiff, and pursuant to 28 U.S.C. § 1346

19 because the United States and its agencies and officers are Counterdefendants.

20

18. This Court also has jurisdiction purs uant to the Administrative Procedures

21 Act (“APA”), 5 U.S. C. §§ 701- 706, because Counterclaimants are seeking to compel

22 agency action unlawfully withheld or unr easonably delayed, and to challenge age ncy

23 actions and inactions as being ar bitrary, capricious, an abuse of disc retion, contrary to

24 federal law, contrary to a constitutional oblig ation, in excess of statutory authority,

25 without observance of procedures required by law, and unwarranted by the facts.

26

19. Finally, this Court has jurisdiction because Counterclaimants are seeking a

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 20 of 56

1 remedy in the nature of m andamus to compel officers to complete a duty pursuant to 28

2 U.S.C. §§ 1361, 1651.

3

20. Venue lies in the Dis trict of Arizona pursuant to 28 U. S.C. §§ 1391 and

4 1402 because the underlying lawsuit is already in the District of Arizona and a substantial

5 portion of the eve nts or om issions giving rise to the claims alle ged arose within the

6 jurisdiction of United States District Court for the District of Arizona.

7

PARTIES

8

21. Counterclaimant State of Arizona is a sovereign state of the United States.

9

22. Counterclaimant Janice K. Brewer is the Governor of the State of Arizona

10 (“Governor Brewer”). In that capacity, Gove rnor Brewer is ve sted with t he supreme

11 executive power of Ar izona and is responsible for the faithful exe cution of all laws, for

12 the protection of the health a nd safety of Arizona’s citizens, and for developing a unified

13 and comprehensive s tate budget generally reflecting spending priorities and policy

14 preferences for Arizona. Governor Brewer sues in her official capacity.

15

23. Counterdefendant United States of America is a sovereign governm ent of

16 those limited enumerated powers specified in the Constitution of the United States. All

17 references in these Counterclaims to the “United States” refer to Counterdefendant United

18 States in its sovereign capacity.

19

24. Counterdefendant Department of Homeland Security (“DHS”) is an

20 executive department of the Un ited States. DHS is responsible for the administration and

21 enforcement of the federal immigration laws , as well as obtai ning operational control of

22 the United States border. Relevant component s of DHS include, but are not limited to,

23 ICE and the United States Custom and Bord er Protection (“CBP”). ICE is the DHS

24 agency responsible fo r interior enforcement of the federal immigration laws. IC E’s

25 mandate includes, am ong other things, “identifying criminal aliens for removal” and

26 “detaining illegal immigrants and ensuring their departure (or removal) from the United

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 21 of 56

1 States.” D HS also assists in the administra tion of the States Criminal Alien Assistance

2 Program (“SCAAP”).

3

25. Counterdefendant Janet Napolitano (the “Secretary” ) is the Secretary of

4 DHS. Napolitano also serv ed as governor of Arizon a from 2003 un til 2009. The

5 Secretary is responsi ble for t he administration and enforcem ent of laws relating to

6 immigration and, pursuant t o 8 U.S.C. § 1103(a), has the “duty to control and guard t he

7 boundaries and borders of th e United States against the ille gal entry of aliens.” The

8 Secretary also has specific statutory obliga tions under the nation’s immigration laws,

9 including mandates under t he Secure Fence Act of 2006 a nd the Appr opriations Act of

10 2008. The Secretary is being jo ined as an additional party pu rsuant to Fed. R. Civ. P.

11 13(h).

12

26. Counterdefendant United States Depa rtment of Justice (“DOJ”) is an

13 executive department of the United States government. The DOJ is responsible for certain

14 immigration-related responsibilities that it shares with DHS. In addition, the Bureau of

15 Justice Assistance (“BJA”), a com ponent of the Office of Justice Program s for the DOJ ,

16 administers SCAAP in conjunction with DHS.

17

27. Counterdefendant Eric J. Holder, Jr. is the Attorney Ge neral of the United

18 States (the “Attorney General”) and, as the head of the DOJ, shares certain immigration-

19 related responsibilities with th e Secretary, including numer ous enforcement obligations.

20 The Attorney General is tasked with administering SCAAP in accordance with 8 U.S.C. §

21 1231(i). The Attorney General is being joined as an additional party under Fed. R. Civ. P.

22 13(h).

23

28. The individual Counterdefendants are sued in their official capacities.

24

25

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 22 of 56

1

FACTUAL BACKGROUND

2 A. The Federal Government Has a Constitutional Obligation to Protect States from Invasion and Domestic Violence.

3

29. Article IV, Section 4 of the U.S. Constitution impose s an obligation on the

4 United States to “protect each [state] against Invasion and . . . Domestic Violence.”

5

30. Article I, Section 8 of th e U.S. Constitution grants Congress th e exclusive

6 authority “[t]o establish an uniform Rule of Naturalization.”

7

31. Congress has exercised its power unde r Article I by enacting vari ous laws

8 designed to secure the nation’s borders.

9

32. In 1952, Congress enacted the Immigration and Nationality Act (“INA”),

10 Pub. L. 414, 182 Stat. 66 (June 27, 1952), to regulate immigration. The INA is codified at

11 8 U.S.C. §§ 1101-1778.

12

33. DHS,1 the Attorney General, and the DOJ have primary responsibility for

13 enforcing the INA.

14

34. DHS, the Attorney General, and the DOJ have refused to enforce the INA,

15 which has led to rampant illegal immigration, escalating crimes, and serious public safety

16 concerns.

17

35. Federal law enforcement has estimated th at only 10 percent to 30 percent of

18 illegal aliens are actually apprehended.

19

36. Illegal immigration causes substantial harm to public sa fety, the economy,

20 the environment, and national security.

21

37. For example, several terrorists who attacked the World Trade Center and the

22 Pentagon in 2001 were illegal aliens.

23

38. The harms associated with illegal immi gration are particularly acute along

24 the nation’s Sout hwest border—including the Ari zona-Mexico border—where the

25 1 Congress initially empowered the Immigrati on and Naturalization Se rvice (the “INS”)
26 with enforcement of the federal immigration laws, but DHS absorbed the INS in 2003.

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 23 of 56

1 overwhelming majority of illegal border crossings occur.

2

39. The House Committee on Homeland Security, Subcom

mittee of

3 Investigations has rec ognized the significant threat illegal immigration poses to the

4 Southwest border, finding that: “[i]t is imperative that im mediate action be taken to 5 enhance security along our nation’s Southwest border.”2

6

40. In its report, the Subcommittee found that illegal aliens are often “dangerous

7 criminals [who] are fleeing the law in othe r countries and s eeking refuge in the Unite d

8 States.” Id. at 3. The Subcommittee further found that:

9

Mexican drug cartels operating along the Southwest border are

more sophisticated and da ngerous than any other organized

10

criminal enterprise. . . . Murd ers and kidnappings on the both

sides of the border have significantly increased in recent years.

11

The violence along the U.S.-Mex ican border has increased [ ]

dramatically. . . . [T]h ere is an ever-present threat of terrorist

12

infiltration over the Southwest border.

13 Id. at 4.

14

41. Based on these and other findings, th e Subcommittee concluded that “much

15 more is needed to combat an increasingly powerful, sophis ticated, and violent criminal

16 network which has been succe ssful in smuggling illegal contra band, human or otherwise,

17 into our c ountry” and that “[t] he growth of these criminal groups, along the Southwest

18 border, and the potential for te rrorists to exploit the vulne rabilities which they create,

19 represents a real threat to America’s national security.” Id. at 38.

20

42. The Subcommittee’s findings and conditions remain true today.

21

43. In fact, on or about Ja nuary 5, 2011, the Arizona Senate issued concurrent

22 resolution SCR1006 acknowledgi ng that “organized crim inals have extended their

23 operations into southe rn Arizona, the resulting inci dents of burgl ary, home invasions,

24 drug smuggling, human smuggling, murder, extortion and ki dnapping have created

25 2 Majority Staff of H. Comm. on Homeland Sec., A Line in the Sand, Confronting the Threat at the Sout hwest Border 38 (2006), availa ble at http:/www.house.gov/sites/
26 members/tx10_mccaul/pdf/Investigaions-Border-Report.pdf.

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 24 of 56

1 intolerable levels of fear and frustration am ong southern Arizona's residents and ranching

2 families.”

3 B. Congress Has Mandated that DHS, the Secretary, and the Attorney General

Take Various Steps to Reduce Illegal Immigration.

4

44. Congress has recognized the serious problems that illegal immigration

5

causes and the federal governm ent’s obligation to address those problems. Congress has

6

sought to do so by, am ong other things: (a) mandating th at DHS secure the nation’s

7

border; (b) enha ncing interior enforcement by requiring increased communications

8

between ICE and federal, state, and local authorities; and (c) alleviating the economic

9 burden on states by requiring the Attorney General either to in carcerate criminal aliens or

10 to compensate states for doing so.

11

Congress’ Mandate that DHS Secure and Maintain “Operational

12

Control” of the United States Border

13

45. In the last 15 years, Congress has enact ed various laws designed to compel

14 DHS to secure the nation’s border.

15

46. In 1996, Congress enacted the Illegal Immigration Reform and Immigration

16 Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (“IIRIRA”).

17

47. Section 102(a) of IIRIRA requires the Attorney General to improve barriers

18 at the border and specifically requires him or her t o “take s uch actions as m ay be

19 necessary to install additional physical barr iers and roads (including the removal of

20 obstacles to detection of illegal entrants) in the vicinity of the Un ited States border to

21 deter illegal crossings in areas of high illegal entry into the United States.”

22

48. Section 102(c) of IIRIRA provides that certain environmental laws “are

23 waived to the extent the Atto rney General determines nece ssary to ensure expe ditious

24 construction of the barriers and roads under this section.”

25

49. In 2003, Congress established DHS and transferred the Attorney General’s

26 powers and duties to “control and guard the boundaries and borders of the United States

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 25 of 56

1 against the illegal entry of alie ns” to the Secretary of DHS. 8 U.S.C. §§ 1103(a)(1) and

2 (5); see also 6 U.S.C. §§ 251 and 291.

3

50. On October 26, 2006, Congress passed th e Secure Fence Ac t of 2006, Pub.

4 L. No. 109-367, 120 Stat. 2638, “[t ]o establish operational control over the international

5 land and maritime borders of the United States.”

6

51. Among other things, Section 2(a) of the Secure Fence A ct provides that the

7 Secretary “shall take all actions the Secretar y determines necessary and a ppropriate to

8 achieve and maintain operational control over the entire international land and maritime

9 borders of the United States” through

both border surveilla nce and “physical

10 infrastructure enhancements.”

11

52. Section 2(b) of the Se cure Fence Act defines “operational control” as “the

12 prevention of all unlawful entr ies into the United States, including entries by terrorists,

13 other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”

14

53. Section 3 of the Secure Fence Act expanded the number of places where the

15 Secretary “shall provide for [at] least 2 layers of reinforced fenci ng, the installation of

16 additional physical barriers, roads, lighting, cameras, and sensors” to include the entire

17 Arizona-Mexico border.

18

54. Section 2(c) of the Secure Fence Act al so requires that “[n]ot later than one

19 year after the date of the enactment of this Act and annually thereafter, the Secretary shall

20 submit to Congress a report on the progr ess made toward achieving and maintaining

21 operational control over the entire internationa l land and m aritime borders of the United

22 States in accordance with this section.”

23

55. In 2007, Congress enacted the Appropriations Act of 2008, Pub. L. No. 110-

24 261, 121 Stat. 2090-91 (Dec. 26, 2007), which struck and replaced a portion of the Secure

25 Fence Act related to the construction of the physical fence along the Southw est border.

26 Specifically, the Appropriations Act of 2008 re quires the Secretary to construct at least

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 26 of 56

1 700 miles of rei nforced fencing along t he Southwest border and provides for t he

2 installation of additional physic al barriers, roads, lighting, cameras, and sensors to gain

3 operational control of the Southwest border.

4

56. The Appropriations Act of 2008 also established a deadline for constructing

5 certain priority miles of the border fence, authorized the appropriation of all sums

6 necessary to carry out this re quirement, and provide d that such funds were to rema in

7 available until expended.

8

57. In the DHS Appropriations Act, 2010, Pub. L. No. 111-83 (Oct. 28, 2009),

9 Congress required t hat DHS create a plan “f or a program to establish and maintain a

10 security barrier along the bo rders of t he United States, of fenci ng and ve hicle barriers

11 where practicable, and of other forms of t actical infrastructure and technology, that

12 includes - . . . (6) a report on budget, obl

igations and expenditures, the activities

13 completed, and t he progress m ade by the program in term s of obtaini ng operational

14 control of the entire border of the United States.”

15

Congress Seeks to Enhance Interior Enforcement Through Increased

Cooperation Between Federal, State, and Local Authorities 16
58. In 1996, C ongress found t hat the “ac quisition, maintenance, and excha nge

17 of immigration-related informa tion by State and local agenci es is consistent with, and

18 potentially of considerable assistance to, th e Federal regulation of immigration and the

19 achieving of the purposes and objectives of the [INA].”

20 59. Congress was also concerned about the prevalence of policies that various

21 jurisdictions and law enfor cement agencies had adopted to restrict or limit law

22 enforcement officials from communicating with the federal gover nment regarding aliens’

23 immigration status (“Sanctuary Policies”) and the detrimental e ffect such policies had on

24 the federal government’s ability to enforce the federal immigration laws effectively.

25 60. To increase the cooperation between fede ral, state, an d local authorities in

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 27 of 56

1 the interior enforcement of the federal immi gration laws, therefore, Congress enacted 8

2 U.S.C. §§ 1373 and 1644, which forbid any federal, state, or local government entity or

3 official from prohibiting or i n any way restricting inquiries about t he immigration status,

4 lawful or unlawful, of any individual.

5

61. 8 U.S.C. § 1373 further requires ICE to respond to any lawful inquiry from

6 any state or local government entity or offici al regarding the citizenship or immigration

7 status, lawful or unlawful, of any individual.

8

62. Congress also sought to enhance DH S’ resources by authorizing the

9 Attorney General to “enter into a written agreement with a State, or any political

10 subdivision of a State, pursuant to which an officer or em ployee of the State or

11 subdivision” could act, in effect, as federal immigration officers. 8 U.S.C. § 1357(g).

12

63. In doing so, however, Congress expressly reserved the right “for any officer

13 or employee of a State or po litical subdivision of a State” to communicate or “otherwise

14 to cooperate with the Attorney General in th e identification, appreh ension, detention, or

15 removal of aliens not lawfully present in the United States ,” without entering into an

16 agreement under 8 U.S.C. § 1357(g). See 8 U.S.C. § 1357(g)(10).

17

Congress’ Mandate that the Attorney General Either Incarcerate Criminal

Aliens or Compensate States for Doing So 18
64. In addition to its attempts to stre ngthen the enforcement of the federal

19 immigration laws, C ongress established t he SCAAP, which is curren tly codified at 8

20 U.S.C. § 1231(i), to com pensate states for the substant ial economic burdens they ha ve

21 suffered as a result of the federal government’s failure to incarcerate or deport criminal

22 aliens.

23 65. SCAAP provides that upon writ ten request by a governor, the Attorne y

24 General shall either (a) enter into a contr actual arrangement to provide compensation to

25 the state for the incarceration of the undocumented criminal aliens in the state or (b)

26

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1 federally incarcerate the undocumented criminal alien.

2

66. SCAAP also provides that “compensation” to the state “shall be the average

3 cost of incarceration of a prisoner in the re levant state as determ ined by t he Attorney

4 General.”

5

67. SCAAP mandates that the Attorney Gene ral “shall give priority to Federal

6 incarceration of undocumented criminal aliens who have committed aggravated felonies.”

7

68. SCAAP was due to expire in Janua ry 2006, but was extended by an

8 amendment to the Violence Against Women a nd Department of Justice Reauthorization

9 Act of 2005 (Pub. L. No. 109- 162) sponsored by Congressman Kolbe of Arizona (the

10 “Kolbe Amendment”).

11

69. The Kolbe Amendment reauthorized SCAAP through FY2011, authorizing

12 appropriations of $750 million for FY 2006, $850 million for FY 2007, and $950 million

13 for FY 2008, FY 2009, FY 2010, and FY 2011.

14

70. Congress unanimously approved the Kolbe Amendment.

15

71. Congress’ intent in enacting the Ko lbe Amendment was to “ensure[] the

16 Federal Government assumes mo re of its re sponsibility for incarc erating undocumented

17 criminal aliens.” 151 Cong. Rec. H8433-01 (2005).

18

72. As Congressman Kolbe stated, this am endment was particularly important

19 to Arizona because “Arizona has been the doormat of the co untry for illegal immigration.

20 The Federal Government has failed to s ecure our bor ders and reform our broken

21 immigration system . . . Arizona has been at th e forefront of this problem for so long and

22 had more than 50 percent of all the apprehensions . . .” Id.

23

73. Congressman Conyers further explai ned that the purpose of t he Kolbe

24 Amendment was to meet federal responsibilities and described the program as follows:

25

26

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1

The SCAAP fund is not a grant program . We are reim bursing

2

State and local gove rnments for money they have already

spent to arrest, process and inca rcerate criminal aliens. These

3

aliens should not be here, crea ting a burde n on our s ociety.

We all agree that if the federa l government was protecting our

4

borders effectively, this would not be the problem it is.

5 Id.

74. SCAAP reimburses state and local gover nments for the costs incurred m ore 6

than one year before the fiscal year at issue. Thus, SCAAP funding for fiscal year 2010 7

reimbursed expenses incurred from July 1, 2008 to June 30, 2009. 8

75. SCAAP fiscal year 2011 funds are therefore anticipated to cover the next 9

one year timeframe - July 1, 2009 to June 30, 2010. 10

76. Therefore, Arizona is now and has been incarcerating illegal criminal aliens 11

since July 1, 2010 in Arizona jails without any existing law for r eimbursement of those 12

expenses. 13

14 C.

Counterdefendants Have Failed to Enforce the Federal Immigration Laws In Accordance With the Intent and Mandates of Congress.

15

DHS Has Not Secured the Nation’s Border

16

77. Despite clear m andates from Congress, DH S has not achi eved and

17 maintained operational control of the borders of the United St ates and has not installed at

18 least 700 miles of fence an d other physical barriers alon g the border to deter illegal

19 crossings.

20

78. From 2006 through 2009 , DHS made some effo rts to comply with

21 Congress’ mandate and achieve operational control of the borders of the United States.

22

79. In 2006, DHS initiated the Secure Border Initiative Network (“SBI net”) for

23 the development, installation, and i ntegration of technology solu tions to secure the

24 Southwest border of the United States.

25

80. In 2007, pursuant to his authority under 8 U.S.C. § 1103, t he Secretary of

26

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1 DHS waived several laws to ensure expeditious construction of the border fence.

2

81. In a lawsuit challenging the waiver, the United Stat es recognized both the

3 congressional mandate to achieve operational control and t he necessity of doing so.

4 Specifically, the United States argued that “Congress enacted the Border Fence Act to

5 abate both undispute d border security thr eats and undis puted harm to public lands

6 occasioned by an influx of un documented aliens” and that “an injunction of the [Arizona]

7 border fence construction w ould contravene the public interest by delaying federa l

8 defendants’ urgent responses to: docum ented border security ri sks; related nati onal

9 security risks; and serious environmental risks occasioned by illegal road construction and

10 widespread encroachment by [ undocumented aliens] on both pr otected wildlife habitat

11 and other federal lands.”

12

82. The United States further pr ovided a declaration from the Deputy

13 Commissioner of the CBP, in whic h he described t he significant threats of i nvasion and

14 domestic violence that exist at the Arizona border and the need to obtain operational

15 control, stating that:

16

• Illegal cross bor der traffic ha s created thousands of new

trails and roads on Federal lands in southern Arizona.

17

• Past experience has show n that bor der fencing leads to

18

more effective border secur ity, reduction i n cross-border

traffic, is a force multiplier for the Border Patrol, and has

19

positive environmental effects.

20

• Due to the increasing number of illegal en trants in this

area, construction of fencing is also vital to protecting the

21

Nation from threats.

22

• The urgent need t o gain and maintain operational control

of the border in this area is clearly evident.

23

• [A]gency records indicate that approximately 11% of these

24

illegal entrants, on average more than 5 i ndividuals each

day in this area alone, have a criminal background. These

25

individuals present an unaccep table risk of harm to the

United States and its citizen s. Aside from the obvious

26

national Security concerns, the environmental impacts of

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1

illegal entrants and activities in the area are pervasive and

can be significantly mitigated by operational control of the

2

border in that area.

3

83. On April 8, 2008, the former Secretary of DHS again declared large portions

4 of Arizona to be areas of high illegal entr y and noted his “mandate to achieve and

5 maintain operational control of the borders of the United States.”

6

84. Shortly after taking office in 2009, Secretary Napolitano stated that SBI net

7 was an “integral part” of the plan to obtain “operational control” of the border.

8

85. Despite substantial funding and the importance of SBI net to border security,

9 DHS mismanaged the program. Both the DHS’ Office of th e Inspector General and the

10 U.S. Government Accountability Office (“GAO”) having repeatedly identified numerous

11 and various problems with SBInet caused by DHS mismanagement.

12

86. In 2010, the Secretary unilaterally froze all f unding of the $800 million

13 dollar SBInet project and replaced it with $50 m illion in stimulus funds without any

14 indication of how D HS planned to achieve and maintain “operational control” along the

15 Arizona-Mexico border.

16

87. In January 2011, DHS cancelled SBInet.

17

88. DHS is not even attempting to construct the 700-mile minimum of “Tactical

18 Infrastructure” (a/k/a fencing) that the Appropriations Act of 2008 requires. Instead, DHS

19 has unilaterally reduced the requirement to a “target” of 661 miles.

20

89. Not only has DHS re duced the l ength of the fence, but DHS has tracked

21 only its subjective det ermination of “effective control,” not the “operational control” the

22 Secure Fence Act requires, and has inappr opriately based its speculative determination of

23 that metric solely on mileage.

24

90. The Arizona-Mexico border is 387 m iles, which includes the 262-mile

25 Tucson Sector and the 125-mile Yuma Sector.

26

91. Upon information and belief, DHS has less than 40% of the mileage alon g

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1 the Tucson Sector under its own definition of “effective control.”

2

92. Upon information and belief, DHS also has not complied with the

3 requirement in the Se cure Fence Act of 20 06 that DHS “submit to Congress a report on

4 the progress made toward achie ving and m aintaining operational control over the entire

5 international land and maritime borders of the United States.”

6

93. In 2009, Congress reinfo rced the requirement th at DHS report on its

7 progress in achie ving and maintaining operational cont rol of the border in the

8 Consolidated Security, Disast er Assistance, and Continuing Appropriations Act, 2009

9 (Pub. L. No. 110-329).

10

94. DHS has not satisfied its reporting requirements.

11

95. DHS has failed to report on “ operational control” as the DHS

12 Appropriations Act of 2010 requir es. Instead, DHS “focused on describing the progress

13 made by t he program in terms of securing the U.S. border without defining this term,

14 linking it to the operational co ntrol of the border, or provi ding performance measures on

15 the progress made in obtaining operational control of the border.”

16

96. DHS refuses to track and report whet her it has achieved or m aintained

17 “operational control,” and also refuses to provi de a plan to m eet its obligation under thi s

18 express congressional mandate.

19

The Executive Branch Has Failed to Enforce the Federal Immigration

Laws In the Manner Congress Intended

20 97. ICE has failed to achieve its mandate of identifying criminal aliens for

21 removal and detaining illegal immigrants and ensuring their departure (or removal) from

22 the United States.

23 98. The Executive Branch has caus ed or substantially contributed to ICE’s

24 failure to achieve its mandate by frustrating Congress’ objectives in enacting 8 U.S.C. §§

25 1373 and 1644. Specifically, the Executive Branch has:

26

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1

a. taken the position that Arizona is precluded from making inquiries to

2

ICE regarding individuals’ immigration status under 8 U.S.C. §§ 1373 and 1644;

3

and

4

b. failed to take any action t o prevent or ot herwise address the m any

5

Sanctuary Policies that exist in violation of 8 U.S.C. §§ 1373 and 1644.

6

99. Upon information and belief, the fede ral government has treated Arizona

7 differently than ot her states by accom modating other state or local law enforcement

8 agencies that have adopted practices or procedures that led to an increase in such inquiries

9 to ICE.

10

100. ICE’s refusal to enforce the fed eral immigration laws in accordance with

11 congressional mandates has led over 7,000 ICE o fficers and employees to iss ue a vote of

12 “no confidence” in ICE Director John Morton and Assistant Director Phyllis Coven.

13

101. The National Council 118 – Im migration and Custom s Enforcement,

14 American Federation of Government Employees (AFL-CIO) issued the unanimous vote of

15 “no confidence,” which explains:

16

This action reflects the growing dissatisfaction and concern

among ICE employees and Union Leaders that Director John

17

Morton and Assistant Director Phyllis Coven have abandoned

the Agency’s core m ission of enforcing the United States

18

Immigration Laws and providing for public safety . . .

19

It is the desire of our union w ithin ICE and our employees to .

. . publicl y state tha t ICE offi cers and e mployees do not

20

support Morton or C oven, or their misguided and reckless

initiatives, which could ultimatel y put many in America at

21

risk. . . .

22

• . . . ICE is currently overwh elmed by the massive criminal alien problem in the United Stat es resulting in the large-scale

23

release of criminals back into local communities.

24

• Criminal aliens incarcerated in local jails seek out ICE officers and vol unteer for de portation to a void prosecution,

25

conviction and serving prison se ntences. Criminal aliens openly brag to ICE officers that they are taking advantage of

26

the broken immigration system and will be back in the United

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1

States within days to comm it crimes, while United States

citizens arrested for the same o ffenses serve prison sentences.

2

State and local law enforcemen t, prosecutors and jails are

equally overwhelmed by the criminal alien problem and lack

3

the resources to prosecute and house these prisoners resulting

in the release of criminal alie ns back into local communities

4

before making contact with ICE. Thousands of other criminal

aliens are released to ICE without being tried for their criminal

5

charges. I CE senior leadership is aware that the sys tem is

broken, yet refuses to alert Co ngress to the severity of the

6

situation and request additiona l resources to pr ovide better

enforcement and support of local agencies.

7

• ICE is misleading the American public with regard to the

8

effectiveness of criminal enfo rcement programs like the ICE “Secure Communities Program” us ing it as a selling point to

9

move forward with amnesty related legislation . . .

10

• While ICE reports internally th at more than 90 percent of ICE detainees are first encountered by ICE in ja ils after they

11

are arrested by local police for criminal charges, ICE senior leadership misrepresents this information publicly . . .3

12

102. In August 2010, the U.S. Citizenship and Immigration Services (“USCIS”),

13 a DHS’ executive agency, circulated a memorandum proposing administrative alternatives

14 to comprehensive immigration reform, in which USCIS stated its intent to circumvent

15 Congress and achieve “meaningful immigration reform absent legislative action.”4

16

103. The USCIS memorandum set forth various ways in which the agency could

17 enable aliens to remain in the United States even though they had entered or remained in

18 the United States without complying with the INA.

19

The Executive Branch Has Thwarted Congress’ Attempt to

20

Compensate States for the Costs of Incarcerating Criminal Aliens

21

104. Although Congress authorized $950 million in annual appropriations for the

22 SCAAP program for FY 2008 t hrough FY 2011, the Executiv e Branch has consistently

23

3 AFL-CIO, Vote of No Co nfidence In IC E Director John M orton and I CE ODPP Assistant Director Phyllis Cove n (June 25, 2010), available at http://www.i ceunion.org/

24 download/259-259-vote-no-confidence.pdf.

4 The m emorandum was addressed to the Dire ctor of USCIS, Alej andro Mayorkas, and

25 prepared by Denise V anison, Chief of the O ffice of Policy and Str ategy; Roxana Bacon,

Chief Counsel; Debra Rogers, Field O perations; and Donald Neufeld, Associate Director

26 of Service Center Operations.

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1 sought to reduce or eliminate appropriations for the program.

2

105. For example, the DOJ failed to include official requests for SCAAP funding

3 in its past seven budget requests.

4

106. In 2009, the DOJ limited SCAAP reimbur sement to 35.15% of the eligible

5 jurisdiction’s “correctional salary officer co sts.” The am ount the DOJ has provide d to

6 states for reimbursement under SCAAP does not include many categories of costs, such as

7 the cost to feed, clothe, house, or provide medical care to the u ndocumented criminal

8 aliens.

9

107. President Obama also proposed to eliminate the program in his first budget.

10

108. Despite the President’s attempt to elim inate the pr ogram, Congress still

11 provided funding for the SCAAP program in 2010.

12

109. The Office of Manage ment and Budget has continued the Adm inistration’s

13 discouragement of the SCAAP program by pr oposing only $330 million for SCAAP in

14 the budget for 2011.

15 D. 16

The Federal Government’s Failure to Se cure the Border an d to Enforce the Federal Immigration Laws As Con gress Intended Has Uniquely Harmed Arizona.

17

110. The crippling impact of illegal immigra tion in Arizona exceeds that of any

18 other state in the nation.

19

111. The federal government’s decision to focus its effort s on sec uring the

20 California and Texas borders has caused a staggering increa se in the percentage of illegal

21 crossings into Arizona. For example, in 199 2, only about 7.6% of the illegal aliens the

22 federal government located nationwide were in the Arizona border sectors. Currently, that

23 number is appr oximately 40%. In other w ords, Arizona has becom e the path of least

24 resistance to cross the border.

25

112. There continues to be a fa r higher percentage of illegal aliens crossing into

26 Arizona than in any other state. In 2009 , the CBP apprehended almost as many illegal

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1 aliens in Arizona as it apprehended in California and Texas combined.

2

113. Rampant illegal immigration in Ariz ona led former Arizona Governor

3 Napolitano to declare a state of emergency in four Southern Arizona counties in Augus t

4 2005.

5

114. Since August 2005, illegal crossings into Arizona ha ve continued at an

6 alarming rate. As an example, during a 60-day period between February and March 2010,

7 a hidden camera filmed 850 illega l aliens traveling a path from Mexico into Arizona,

8 some of whom brought drugs and guns across the border.

9

115. Another hidden camera near Tucson f ilmed over 735 aliens walking on a

10 trail from Mexico into Arizon a over a 39- day period. During that sam e period, not a

11 single Border Patrol officer was identified on film.

12

116. In FY 2009, the CBP repo rted the apprehension of over 550, 000 illegal

13 aliens between t he ports of e ntry in the United States, and ove r 240,000 of those

14 apprehensions occurred in the Tucson sector alone.

15

117. These statistics are only a fraction of the aliens who enter Arizona illegally

16 and are not apprehended.

17

118. According to one federal law enforcem ent officer, his agenc y has nine la w

18 enforcement officers to patrol three million acres.

19

119. Recent federal gover nment reports confirm that illegal activity on federal

20 lands along the Arizona bor der are escalating and DHS’ arrests are not keeping pace with

21 the increase.

22

120. These illegal crossings cause serious harm to Arizona, including a

23 substantial presence of criminal aliens.

24

121. The Arizona Department of C orrections has estimated that crimin al aliens

25 make up more than 14% of Arizona’s prison population.

26

122. As of Dec ember 31, 2010, Ariz ona was incarcerating over 5,700 crim inal

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 37 of 56

1 aliens in its state prisons, including:

2

a. 349 aliens convicted of murder;

3

b. 148 aliens convicted of manslaughter or negligent homicide;

4

c. 564 aliens convicted of kidnapping;

5

d. 403 aliens convicted of robbery;

6

e. 593 aliens convicted of assault;

7

f. 90 aliens convicted of rape or sexual assault;

8

g. 243 aliens convicted of child molestation;

9

h. 225 aliens convicted of other sex crimes; and

10

i. 1,921 aliens convicted of drug crimes.

11

123. Commission of an “ aggravated felony,” such as m urder, manslaughter,

12 kidnapping, molestation, rape and sexual assault, robbery, assault, and drug offenses, are

13 mandatory deportable offenses under the INA.

14

124. ICE has stated that its highest im migration enforcement priority is the

15 removal of aliens convicted of aggravated felonies or two or more felonies. Yet Arizona

16 has thousands of criminal aliens on ICE’s list of “highest pr iorities” for which the federal

17 government is providing no assistance and insufficient funding.

18

125. The figures above do not include the thousands of criminal aliens in county

19 jails or the num erous other jails throughout Arizona. Nor do they include the criminal

20 aliens who have come to Arizona to escape conviction for cr imes in their home countries

21 or the criminal aliens who commit crimes in Arizona, but are not caught or incarcerated in

22 the State.

23

126. For example, in FY 2009, Arizona pr osecutors declined to pr osecute over

24 1,300 drug offense suspects who are illegal aliens. More than 40% of the time, the reason

25 given for not pr osecuting the drug offense was the lack of pr osecutorial or investigative

26 resources available for handling the matter. This is a drastically different story than the

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1 rest of the Southwest border.

2

127. In 2010, recommendations for the pr osecution of drug cases from the

3 investigative agencies (what the DOJ calls “ref errals”) increased fast er than the actual

4 prosecutions.

5

128. The federal government’s failure to ap prehend and/or convict these criminal

6 aliens only increases the harm to Arizona.

7

129. For example, Mexican drug cartels have threatened Nogales Police Officers

8 and illegal aliens have shot several Arizona police officers and bo rder bandits have

9 murdered a CBP agent in the Tucson sector.

10

130. In 2009, the DOJ issued an analysis of the d rug and illegal alien smuggling,

11 armed cartels, and drug traffick ing organizations (“DTOs”) in Mexico and Arizona. The

12 report highlights the drugs, vi olence, and security threats caused by Arizona’s porous and

13 “largely underprotected” border with Mexico, and its impact on the drug trade throughout

14 the United States.

15

131. Because of these problems, the federa l government put up prominent signs

16 warning citizens to stay off public lands in Arizona within 80 miles of the border.

17

132. Illegal immigration in Arizona has also had significant detrimental impact

18 on Arizona’s environment. For example, the Bureau of Land Management collected over

19 468,000 pounds of trash from the Arizona border area in FY 2008.

20

133. The impact of illegal immigration also threatens wildlife, Arizona Game and

21 Fish Officers, and citizens trying to us e land along the Arizon a border for outdoor

22 pursuits.

23

134. Arizona has repeatedly asked the federal government for help in addressing

24 the harmful effects of illegal immigration on Arizona and its citizens.

25

135. In December 2005, Governor Napolitano wrote to th e Secretary of Defense,

26 stating that “the federal gover nment has lost operational control of the Unit ed States-

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 39 of 56

1 Mexico Border” and im ploring the federal gove rnment to “redouble its efforts to return

2 safety and security to this region.”

3

136. In March 2006, Governor Napolitano wrote to the Se cretary of Defense and

4 the Secretary of DHS requestin g to have the Arizona National Guard “assist the Federal

5 Government in its mission in Arizona to secu re our border” at the expe nse of the federal

6 government.

7

137. In 2010, G overnor Brewer and Ariz ona Attorney General Terry Goddard

8 wrote separately to Presiden t Obama to explain the devastating im pacts of illega l

9 immigration in Arizona and to request immediate federal assistance.

10

138. The New Mexico-Arizona Enabling Act, the Arizona Constitution, and the

11 Arizona Revised Statutes create a significant trust obl igation in the State. Arizona, as

12 trustee of s tate trust lands, is charged with a fiduciary duty to maintain and protect the

13 lands for the benefit of, inter alia, the Arizona education system. Illegal immigration—as

14 evidenced by violence, sign posts and environmental degradation—has reduced the value

15 of these lands, many of which are near the border. Arizona has a fiduciary trust

16 obligation, and a constitutional and statutory duty to protect those lands from damage and

17 harm.

18 E. The Attorney General and the DOJ Have Not Compensated Arizona for the Substantial Costs Arizona Has Incurred Incarcerating Criminal Aliens.
19 139. Of the jurisdictions that receive SCAAP funds, Arizona receives one of t he
20 lowest percentages of reimbursement for the cost to incarcerate.
21 140. On January 4, 2010, t he Treasurer of Arizona sent a letter to the Secretary
22 requesting payment of over one billion dollars in “uncompensated costs for incarcerating
23 criminal aliens under [SCAAP] from FY1994 to FY2008.”
24 141. On or around October 1, 2010, th e DOJ posted on its website the 2010
25 SCAAP awards for all jurisdictions. For FY 2010, with a reporting date of July 1, 2008 to
26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 40 of 56

1 June 30, 2009, the amount DOJ allocated to the State of Arizona is $9,775,269.00.

2

142. Arizona’s actual cost to incarcerate qualifying illegal criminal aliens was

3 over $135 million—almost 14 times the amount the DOJ allocated to Arizona.

4

143. At the same time, the DOJ allocated over $62 million in SCAAP funds to

5 jurisdictions with Sanctuary Po licies—policies that violate th e express terms of 8 U.S. C.

6 §§ 1373 and 1644.

7

144. For example, the DOJ allocated over $14 million to Los Angeles County

8 (approximately 50% more than the allo cation to Arizona), over $6.6 million to

9 Massachusetts, and over $5.9 million to Oregon—all of wh ich have Sanctuary City

10 Policies.

11

145. The federal government has not fully compensated Arizona for its costs to

12 incarcerate criminal aliens, nor has the Attorn ey General attempted to incarcerate these

13 criminal aliens in federal facilities or to deport the criminal aliens Arizona is incarcerating

14 for commission of an aggravated felony.

15

146. Inadequate enforcement of im migration laws and the Exec utive Branch’s

16 interpretation of the SCAAP pr ogram present Arizona with an unacceptable choice: pay

17 the cost of incarcerating undocu mented criminal aliens for on ly pennies on the dollar or

18 place the health, safety, and welfare of Arizona and its citizens even further at risk.

19

COUNT I

Failure and Refusal to Achieve and Maintain

20

“Operational Control” of the Arizona-Mexico Border

21

(United States, DHS, and the Secretary)

22

147. Counterclaimants incorporate all the pa ragraphs above in this Counterclaim

23 as if fully stated herein.

24

148. Congress has mandated that the Secretar y “shall have the power and duty to

25 control and guard the boundaries and borders of the United States against the illegal entry

26 of aliens.” 8 U.S.C. § 1103(a)(5).

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 41 of 56

1

149. Through the Secure Fence A ct and the Appropriations Act of 2008,

2 Congress has established meaningful standards as to the manner in which the Secretary is

3 to carry out the du ty to control and guard the boundaries and borders of the United States

4 against the illegal entry of aliens. Specifica lly, these Acts require DHS and the Secretary

5 to: (a) achieve and maintain “operational c ontrol” of the Arizona -Mexico border; (b)

6 report to Congress on the prog ress made toward achieving and maintaining “operational

7 control” of the borde r; (c) build at least 700 m iles of fence along t he United States-

8 Mexico border; and (d) “provide for the installation of additional physical barriers, roads,

9 lighting, cameras, and sensors to gain operational control of the southwest border.”

10

150. The Secretary has a duty to comply with the foregoing mandates.

11

151. The Secretary has not complied with this duty.

12

152. The Secretary has not taken all necessary and appropriate actions to achieve

13 and maintain “operational c ontrol” of the S outhwest border, to r eport on t he progress

14 toward achieving and maintaining “operational control” of the border, or to buil d at least

15 700 miles of fence along the United States-Mexico border. In fact, DHS and the Secretary

16 have expressly set goals that are less than what C ongress has require d by a ttempting to

17 achieve and reporting on onl y “effective control” and setting a “targe t” for building only

18 661 miles of fence along the U nited States-Mexico border and they ha ve now cancelled

19 SBInet.

20

153. Arizona is within the zone of intere st intended to be protec ted by the

21 provisions of the Secure Fence Act and the Appropriations Act of 2008 mandating that the

22 Secretary achieve and m aintain “operational control” of the border, build a t least 700

23 miles of fence along the United States-Mexico border, and provide fo r the installation of

24 additional infrastructure.

25

154. The Secretary’s and DHS’ delays ar e unreasonable because they ha ve

26 caused significant harm to th e safety, security, human hea lth, and welfare of Arizona’s

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 42 of 56

1 citizens, federal lands in Arizona, and Arizona State Trust Lands.

2

155. DHS and the Secretary have acted:

3

a. arbitrarily, capriciously and abused their discretion, and not acted

4

otherwise in accordance with law;

5

b. contrary to constitutional rights , powers, and duties to control the

6

border and protect Arizona from invasion and domestic violence; and

7

c. in excess of statutory jurisdiction, authority, or limitations, or short of

8

statutory obligations as set forth in IIRIR A, as amended by the Secure Fence Act

9

of 2006 and the Appr opriations Act of 2 008, with respect to securing the United

10

States border,

11

156. DHS and the Secretary have als o failed and refused to foll ow DHS’ own

12 procedures for acquis ition, failed to do pr oper studies in accordance with DHS’ own

13 regulations, failed to address num erous reports by the GAO and the ot her supervisory

14 boards with respect to SBI net, and failed to report to Congre ss or even track “operational

15 control” as federal law requires.

16

157. Counterclaimants accordingly reque st injunctive, declaratory, and

17 mandamus relief requiring that the United States, DHS, and the Secretary comply with the

18 Secure Fence Act of 2006 and the Appropriations Act of 2008 by:

19

a. achieving and maintaining “opera tional control” of the Arizona-

20

Mexico border as defined in the Secure Fence Act of 2006; and

21

b. completing at least 700 m iles of fencing along the Southwest border

22

plus the additional infrastructure listed in the Appropriations Act of 2008.

23

158. Counterclaimants further request:

24

a. injunctive, declaratory, and mandam us relief that the United States,

25

DHS, and the Secretary immediately de ploy such temporary measures as are

26

necessary and appropriate to protect Ariz ona and its citizens from the impact of

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1

illegal immigration until the Secretary has achieved “operational control” of the

2

Arizona-Mexico border;

3

b. an Order s etting a he aring to a ddress any other ge neral or specific

4

relief that may be necessary or appropriate under the circumstances; and

5

c. that this Court retain jurisdiction of this action to ens ure compliance

6

with this Court’s orders and grant such ot her relief as this Co urt deems equitable,

7

just, and proper.

8

COUNT II

9

Failure and Refusal to Protect Arizona from Invasion and Domestic Violence

(All Counterdefendants)

10

159. Counterclaimants incorporate all the pa ragraphs above in this Counterclaim

11 as if fully stated herein.

12 160. This count raises an ac tual controversy within the meaning of Article III,

13 Section 2 of the Constitution and is a matter of federal law and importance.

14 161. Article IV, Section 4 of the Constitution requires the United States to protect

15 Arizona against invasion and domestic violence.

16 162. To protect the states against invasi on and domestic violence by illegal

17 aliens, Congress has m andated that the Secr etary “shall have the power and dut y to

18 control and guard the boundaries and borders of the United States against the illegal entry

19 of aliens.” 8 U.S.C. § 1103(a)(5).

20 163. The United States has failed and refuse d to protect Arizona from invasion

21 and domestic violence as Article IV, Sect ion 4 of the Constitution and the statutory

22 codifications of that power and duty require.

23 164. Congress has, in effect, recognized that the United States has failed to

24 protect Arizona from invasion by illegal aliens and domestic violence:

25 a. through various findings and reports , including the findi ngs of the

26

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1

House Committee on Homeland Security, Su bcommittee of Investigations that

2

“[i]t is im perative that imm ediate action be taken to enhance security along our

3

nation’s Southwest border”; “[t] he violence along the U.S.-Mexic an border has

4

increased [ ] dramatically” and “there is an ever-present threat of terrorist

5

infiltration over the Southwest border”; and

6

b. by enacting various laws, including the Secure Fence Act of 2006

7

and the A ppropriations Act of 2008, mandating that DHS and the Secretary

8

achieve operational control of the United States-Mexico border, build at least 700

9

miles of fence, and install the necessary physical barriers, roads, lighting, cameras,

10

and sensors.

11

165. The United States’ failure and refusal to protect Arizona leaves Arizona

12 without meaningful defenses from illegal crim inal aliens, terroris ts, instruments and

13 weapons of terrorism, environm ental harm, drug and hum an smugglers, and crippling

14 economic costs.

15

166. Arizona, by bringing this cause of action (or these counterclaims in general),

16 expressly is not alleging t hat any foreign country, including the sovereign nation of

17 Mexico, is invading the United States through or primarily through Arizona.

18

167. Arizona recognizes the fact that so me courts have previously concluded that

19 the term “invasion” in the Constitution s hould be limited to something equivalent to a

20 military invasion from a foreign political entity . Yet, the concept of “invasion” has

21 changed since the drafting of the Constitution and in particular, the many national security

22 threats that exist today are not the same threats that existed more than 200 years ago.

23

168. The political nature of the individuals or organizations invading the country

24 does not a lter the import a nd significance of an actual or potential invasion from the

25 perspective of a border state such as Arizona.

26

169. In this instance, the nature and character of many of the illegal aliens who

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 45 of 56

1 are entering the United States through th e Arizona/Mexico border has changed

2 significantly since prior courts have analyzed the invasion issues.

3

170. Upon information and belief, paramilit ary bands, individuals with ties to

4 criminal enterprises (including human smuggling enterprises and violent drug cartels), and

5 individuals with ties to terrorist orga nizations are and may continue to invade the United

6 States through the Arizona/M exico border unless actions are taken to stop the illegal

7 entries.

8

171. The United States’ failure and refusal to protect Arizona from invasion and

9 domestic violence has caused and is continuing to cause significant harm to Arizona as set

10 forth above.

11

172. Arizona is within the zone of interest intended to be protected by Article IV,

12 Section 4 of the Constitu tion and the statutory codifications of that power and duty. The

13 relief sought herein will redress Arizona’s injury and harm, and will otherwise address

14 Arizona’s protectable interests.

15

173. Arizona has repeatedly requested that the United States protect it from these

16 harms as set forth above.

17

174. Arizona is unable to bear the staggering costs of protecting itself, and e ven

18 if it could, the federal governm ent is asse rting that Ar izona is preem pted from taking

19 action to assist in the enforcement of federal immigration law.

20

175. Counterdefendants have acted: (a) arbitrarily, capriciously, with an abuse of

21 discretion, and not otherwise in accordance w ith law; and (b) contrary to constitutional

22 rights, powers, and duties to control the border and protect Ariz ona from invasion a nd

23 domestic violence.

24

176. Counterclaimants accordingly request:

25

a. injunctive, declaratory, and m andamus relief that Counterdefendants

26

create and implement priorities and enforc ement policies that will protect Arizona

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 46 of 56

1

from invasion and domestic violence as Article 4, Section 4 requires;

2

b. injunctive, declaratory, and m andamus relief that Counterdefendants

3

deploy such temporary meas ures, including additional personnel and technology

4

along the Arizona-M exico border, that ar e necessary and appropriate to protect

5

Arizona pursuant to these constitutional requirements; and

6

c. that this Court retain jurisdiction of this action t o ensure compliance

7

with this Court’s orders a nd grant such othe r relief as this Court deems equitable,

8

just, and proper.

9

COUNT III Abdication of Statutory Responsibilities

10

(Enforcement of the Federal Immigration Laws)

(All Counterdefendants)

11

12

177. Counterclaimants incorporate all the pa ragraphs above in this Counterclaim

13 as if fully stated herein.

14

178. This count raises an ac tual controversy within the meaning of Article III,

15 Section 2 of the Constitution and is a matter of federal law and importance.

16

179. Arizona is within the zone of interest intended to be protected by the federal

17 immigration laws.

18

180. Counterclaimants have adopted policies with respect to en forcement of the

19 federal immigration laws that are so extreme that they amount to an abdication of DHS’

20 and the DOJ’s statutory responsibilities.

21

181. Specifically, Counterdefendants have:

22

a. adopted policies and practices with respect to enfo rcement of the

23

federal immigration laws that have provided greater protection t o other states than

24

to Arizona and have caused Arizona to suffer a sharply disproportionate share of the

25

nation’s illegal entries;

26

b. filed this lawsuit to enjoin Ariz ona from adopting state policies in

- 46 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 47 of 56

1

furtherance of 8 U.S.C. §§ 1373 and 1644 that would increase communications and

2

cooperation between Arizona’s law en forcement officers and the federal

3

government regarding individuals’ immigration status;

4

c. publicly stated that, if A.R.S. § 11-1051(B) is not enjoined, ICE may

5

choose not to respond to inquiries from Arizona regarding individuals’ immigration

6

status despite ICE’s statutory obligation to do so under 8 U.S.C. § 1373(c);

7

d. failed and refused to take a ny action against the num erous

8

jurisdictions that have adop ted Sanctuary Policies in viol ation of 8 U.S.C. §§ 1373

9

and 1644;

10

e. taken the position that enforcement of certain provisions of the

11

federal immigration laws are not among its priorities and that they will not e nforce

12

them;

13

f. acted so contrary to their statutory responsibilities as to cause over

14

7,000 ICE officers and em ployees to i ssue a vote of “no c onfidence” in ICE

15

Director John Morton and Assistant Director Phyllis Coven; and

16

g. begun considering num erous significant changes to the ways in

17

which the immigrations laws are interprete d and enforced to “r esult in meaningful

18

immigration reform absent legis lative action” and to result in a “non-legis lative

19

version of ‘am nesty’” to “ hundreds of thousands” of person s who are currently

20

unlawfully present in the United States.

21

182. By refusing to enforce certain provisi ons of the federal immigration laws

22 Counterclaimants have threatened national se curity and imposed a tremendous burden on

23 Arizona that substantially exceeds the burden imposed on other states.

24

183. The Secretary and Attorney General ar e not authorized to enf orce only the

25 immigration laws of whic h they approve or to ignore statutory standar ds in carrying ou t

26 their regulatory functions and obligations.

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1

184. Accordingly, Counterclaimants request:

2

a. an order requiring D HS to respond to inquiries m ade by Arizona’s

3

law enforcement personnel or agencies seeking to verify or ascertain the citizenship

4

or immigration status of a ny individual under t he jurisdiction of t he law

5

enforcement agency;

6

b. an order requiring DHS to allocate the resources, if any, that are

7

necessary to ensure that DHS responds to such inquiries in a reasonable manner and

8

time;

9

c. declaratory and injunctive relief in the nature of mandamus, ordering

10

the United States Defendants to comply with their stated rules and highest priorities

11

on matters where C ongressional statutes have also m andated such ac tions.

12

Specifically, the Counterdefen dants should be com pelled to detain and re move

13

illegal aliens in Arizona and in Arizon a’s jails "who pose a danger to national

14

security or a risk to public safety," including those illegal aliens convicted of violent

15

crimes, who have participated in organized crime, or are repeat offenders; and

16

d. that this Court retain jurisdiction of this action t o ensure compliance

17

with this Court’s orders a nd grant such othe r relief as this Court deems equitable,

18

just, and proper.

19

COUNT IV

Declaratory Relief Regarding SCAAP Reimbursement Obligations

20

(All Counterdefendants)

21

185. Counterclaimants incorporate all the pa ragraphs above in this Counterclaim

22 as if fully stated herein.

23

186. This count raises an ac tual controversy within the meaning of Article III,

24 Section 2 of the Constitution and is a matter of federal law and importance.

25

187. 8 U.S.C. § 1231(i) requires that, upon request by a governor, the Attorney

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 49 of 56

1 General shall either incarcerate undocumented criminal aliens in a federal facility or enter

2 into a contractual agreement with the state to provide compensation to the state in an

3 amount equal to “the average cost of incarceration of a prisoner in the relevant State.”

4

188. The Attorney General’s an d Secretary’s duties under 8 U.S.C. § 1231(i) are

5 ministerial.

6

189. Governor Brewer and former Govern or Napolitano have requested relief

7 under 8 U.S.C. § 1231(i).

8

190. The Attorney General has not e ntered into a contractual arrangement with

9 Arizona as SCAAP requires and has typically offered to compensate Arizona for only 7-

10 15% of the cost of incarcer ation for the m any qualifying undocumented criminal aliens

11 that Arizona incarcerates.

12

191. Of the criminal aliens that Arizona is incarcerating, thousands are subject t o

13 mandatory deportation.

14

192. As a result of the Attorney General and Secretar y’s failure and refusal to

15 comply with their statutory obligations, Counterclaimants request:

16

a. a declaration i nterpreting 8 U.S .C. § 1231(i) and det ermining the

17

DOJ and/or the Attorney General’s reimbursement obligations, includi ng the

18

requirement that the Attorn ey General enter into a “contractual arrangement” with

19

Arizona and his obl igation to “give pri ority to the Federal incarceration of

20

undocumented criminal aliens who ha ve committed aggravated felonies” under 8

21

U.S.C. § 1231(i)(4);

22

b. a declaration interpreting 8 U.S.C. § 1231(i) and determining whether

23

Arizona has the right, without prejudice, to reject future SCAAP allocations if the

24

allocation is not reasonably calculated to compensate Arizona for the actual average

25

costs incurred in the incarceration of criminal aliens in Arizona;

26

c. a declaration that the DOJ and/or the Attorney General’s calculation

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 50 of 56

1

method of using “officer salaries” violates federal law because it does not equal the

2

“cost of incarceration”;

3

d. a declaration that “the Attorney Gene ral has failed to give priority to

4

the federal incarceration of undocumented criminal aliens who have committed

5

aggravated felonies” as required by 8 U.S.C. § 1231(i)(4);

6

e. a declaration i nterpreting 8 U .S.C. § 1231(i) and determining

7

whether:

8

(1) the cost of federal incarceration is subject to the appropriations

9

in the section;

10

(2) if so, is the cost of federal incarceration subject to the actual

11

amount funded or the “amount approved for appropriation”, and

12

(3) if so, whether the cos t of federal incarceration under 8 U.S.C.

13

§ 1231(i)(2) is subject to th e same calculation m ethod (e.g., the DOJ’s

14

proposed method of using only the cost of officer salaries) for calculating

15

“cost of incarceration” payments as in 8 U.S.C. § 1231(i)(1).

16

f. a declaration regarding the stat utory responsibilities of the DOJ

17

and/or the Attorney General under IC E’s newly stated top priorit ies for

18

undocumented illegal aliens with “aggrav ated felony” convictions and SCAAP’s

19

requirement that “the Attorney Genera l shall give priority to the Federal

20

incarceration of undocumente d criminal aliens who ha ve committed aggravated

21

felonies” under 8 U .S.C. § 1231(i)(4)( A), including whether t he DOJ a nd/or

22

Attorney General must:

23

(1) pay the actual cost of incarceration of “aggravated felons”;

24

(2) take aggravated felons into federal incarceration; and/or

25

(3) initiate expedited mandatory deportation proceedings for those

26

criminals in Arizona jails who meet ICE’s new top priority.

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1

193. Counterclaimants request that this Cour t retain jurisdiction of this action to

2 ensure compliance with this Court’s orders and grant such other relief as this Court deems

3 equitable, just, and proper.

4

COUNT V

5

Declaratory Relief under the Tenth Amendment

(All Counterdefendants)

6

194. Counterclaimants incorporate all the pa ragraphs above in this Counterclaim

7 as if fully stated herein.

8

195. The Tenth Amendment provides: “The powers not delegated to the United

9 States by the Constitution, nor prohibited by it to the States, are rese rved to the States

10 respectively, or to the people.”

11

196. The INA (including various amendments thereto) and other laws enacted by

12 Congress that address (or purport to ad dress) border or internal im migration enforcement

13 issues reflect Congress’ determination that certain regulations—such as alien registration,

14 mandatory deportation of certain criminal al iens, and t he mandate that DH S construct a

15 border fence and obtain operational control of the border—are critical to national security

16 and in the best interests of the nation and its individual states.

17

197. The federal government has taken the position in this lawsuit that the

18 existence of these immigration laws and the regulations DHS has promulgated thereunder

19 prohibit Arizona from taking any action to address illegal immigration within its borders.

20

198. The federal gover nment takes this position without any regard to whether

21 the laws or regulations at issue are bei ng enforced or im plemented by t he federal

22 government effectively, or even at all.

23

199. The federal government has sought and obtained an injunction that

24 effectively prohibits Arizona from exercisin g its police and other t raditional state powers

25 to address issues of importance to the St ate and its citizens, including actions in

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 52 of 56

1 furtherance of express congres sional objectives and m andates (such as Congres s’

2 objectives in enacting 8 U.S.C. §§ 1304, 1306, 1373, and 1644).

3

200. Upon information and belief, the fede ral government has not t aken any

4 similar types of action a gainst other states or political subdivisions or agencies that have

5 enacted or implemented laws or policies de signed to further the se same congressional

6 objectives and mandates.

7

201. Moreover, upon in formation and belief, the federal gover nment has not

8 taken any similar types of acti on against numerous state political subdivisions or agencies

9 that have implemented policie s, including Sanctuary Policie s, that expressly conflic t

10 with—are even expressly inte nded to conflict with—these sa me congressional objectives

11 and mandates.

12

202. The federal government’s actions, in combination with Arizona’s

13 preexisting constitutional duties under the Four teenth Amendment, compel Arizona to

14 accommodate and provide education, medical care, and othe r benefits to illegal alien s

15 within its borders.

16

203. While control of the border is a fede ral responsibility, wh en illegal aliens

17 cross the border and commit crimes in Arizona, they become Arizona’s responsibility.

18

204. The federal government is failing to fulfill its responsibility and attempting

19 to use “preemption” to pr event Arizona from fulfilling its responsibility, which is a

20 violation of the Tenth Amendment.

21

205. Congress, the President, Counterdefenda nts, and various other age ncies and

22 departments of the federal gove rnment have all recognized f undamental flaws in the

23 enforcement of the federal immigration laws and the need for action.

24

206. The President has acknow ledged the fundamental and significant failures

25 inherent in the c urrent federal immigration enforcement system and the political process

26 that is supposed to be in place to address and correct these failures.

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 53 of 56

1

207. Although recognizing th e fundamental fl aws in the enforcement and

2 administration of federal immigration laws, the federal government has nevertheless failed

3 and refused to take action that is reasonabl e and nece ssary to address the fundam ental

4 defects in the enforcement of the federal immigration laws.

5

208. The federal government is failing a nd refusing to enforce the federal

6 immigration laws in Arizona in the manner Cong ress deemed to be in the best interests of

7 the nation and the individual states.

8

209. The federal government’s actions and policies have caused an influx of

9 illegal aliens and criminal illeg al aliens into Arizona that is in substantial disproportion to

10 other states.

11

210. The immigration policies of the federal governm ent, have ca used and

12 continue to cause substantial and unique harm to Ar izona and its citizens as set forth in

13 this Counterclaim, in addition to numerous other problems and issues that are well

14 documented and undisputed.

15

211. Extraordinary defects in the national political process have essentially

16 created a vacuum in which the objectives and mandates of the federal immigration law s

17 are not being or cannot be achieved, at leas t with respect to their disproportionate and

18 staggering impacts within and to Arizona.

19

212. At the same time, and notwithstanding these admitted extr aordinary defects

20 in the national political proce ss that render the federal go vernment unable to address

21 illegal immigration issues of significant con cern to Arizona effectively, the federal

22 government is prohi biting Arizona from taking action to protect the health, safety, an d

23 welfare of its citizens in a manner that furthers Congress’ objectives based, in whole or in

24 part, on the mere existence of laws and regu lations that the federal gover nment concedes

25 are not being enforced or effectively enforced.

26

213. By adopting policies and taki ng actions that impede the enforcement of the

- 53 -

Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 54 of 56

1 federal immigration laws and t he achievement of express congressional objectives and

2 mandates in a way that causes substantial and unique harm to Arizona, Counterdefendants

3 have singled Arizona out in a way that leaves it politic ally isolated and powerless to

4 protect itself and its citizens from the harm associated with rampant illegal immigration as

5 contemplated by South Carolina v. Baker, 485 U.S. 505 (1985).

6

214. The Executive Branch is now cons idering taking action and, upon

7 information and belief, is proceeding in a manner designed to achieve “ meaningful

8 immigration reform absent legislative actio n” (i.e., without input and direction from the

9 Legislative Branch), whic h would deprive and is de priving Arizona of t he right to

10 participate in the national political process in the manner required by the Constitution.

11

215. The national political process regarding border security and enforcement of

12 immigration laws is operating in a defective manner, at least with respect to Arizona an d

13 its citizens who are left to su ffer the m ost direct and signi ficant brunt of the “broken

14 system.”

15

216. The federal government’s actions and refusals to take action impair

16 Arizona’s integrity as a sovereign entity and impact Arizona’s ability to function

17 effectively in the federal system.

18

217. Accordingly, Counterclaimants request a declaration tha t federal

19 immigration laws and regulations are invalid under the Tenth A mendment to the extent

20 their mere existence as laws or regulations, w ithout more (such as evidence of their actual

21 enforcement or actual implemen tation), may be used by t he federal gove rnment to

22 prohibit Arizona from taking otherwise valid ac tions to protect the State and its citizen s

23 from the harms associated with illegal immigra tion that are consistent with these same

24 laws and regulations.

25

218. Counterclaimants request that this Cour t retain jurisdiction of this action to

26 ensure compliance with this Court’s orders and grant such other relief as this Court deems

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 55 of 56

1 equitable, just, and proper.

2

DATED this 10th day of February, 2011.

3

By s/Thomas C. Horne

4

Thomas C. Horne Attorney General

5

1275 West Washington Street Phoenix, Arizona 85007-2926

6

Attorneys for the State of Arizona

7

8

By s/Joseph A. Kanefield with permission

Joseph A. Kanefield

9

Office of Governor Janice K. Brewer

1700 W. Washington, 9th Floor

10

Phoenix, AZ 85007

11

and

12

SNELL & WILMER L.L.P.

13

By s/John J. Bouma with permission

John J. Bouma

14

Robert A. Henry

Joseph G. Adams

15

Kelly A. Kszywienski

One Arizona Center

16

400 E. Van Buren

Phoenix, AZ 85004-2202 17

18

Attorneys for the State of Arizona and Janice K. Brewer, Governor of the State of Arizona

19

20

21

22

23

24

25

26

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Case 2:10-cv-01413-SRB Document 138 Filed 02/10/11 Page 56 of 56

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 10th , 2011, I electronically transmitted the

3 foregoing document to the Clerk’s Office using the CM/ECF System for filing and

4 transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record,

5 including:

6

Tony West

7

Dennis K. Burke Arthur R. Goldberg

8

Varu Chilakamarri Joshua Wilkenfeld

9

U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W.

10

Washington, D.C. 20530

11

s/Thomas C. Horne

12

13

14 1627116 15

16

17

18

19

20

21

22

23

24

25

26

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 Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 1 of 22

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 United States of America,

) No. CV 10-1413-PHX-SRB

)

9

Plaintiff,

) ORDER

)

10 vs.

)

)

11

)

State of Arizona; and Janice K. Brewer, )

12 Governor of the State of Arizona, in her )

official capacity,

)

13

)

Defendants.

)

14

)

)

15 State of Arizona; and Janice K. Brewer, )

Governor of the State of Arizona, in her )

16 official capacity,

)

)

17

Counterclaimants,

)

)

18 vs.

)

)

19 United States of Am erica; United States )

Department of Homeland Security; Janet)

20 Napolitano, Secretary of the United States)

Department of Homeland Security, in her)

21 official capacity; the United States )

Department of Justice; and Eric H. Holder)

22 Jr., Attorney General for the United States)

Department of Justice, in his official )

23 capacity,

)

)

24

Counterdefendants.

)

)

25

The Court now considers the Counterdefendants’ Motion to Dismiss Counterclaims

26

(“MTD”) (Doc. 154).

27

28

Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 2 of 22

1 I. BACKGROUND

2

In April 2010, the Arizona Legislature enacted Senate Bill 1070, later m odified by

3 House Bill 2162 (collectively, “ S.B. 1070”), a set of statutes and statutory am endments

4 intended to “discourage and deter the unlawful entry and presence of aliens and economic

5 activity by persons unlawfully present in the United States.” S.B. 1070 § 1. On July 6, 2010,

6 the United States filed a Complaint challenging the constitutionality of S.B. 1070. (Doc. 1,

7 Compl.) The United States requested that the Court enjoin Arizona from enforcing S.B. 1070,

8 arguing principally that the power to regulate immigration is vested exclusively in the federal

9 government and that provisions of S.B. 1070 are preem pted by federal law. (See Doc. 27,

10 Pl.’s Mot. for Prelim . Inj.) The Court entered an Order prelim inarily enjoining certain

11 provisions of S.B. 1070 on July 28, 2010. (Doc.87, July 28, 2010, Order at 4.) On February

12 10, 2011, Arizona and Governor Brewer (collectively, “Arizona”) answered the United

13 States’ Complaint and also asserted Counterclaims against the United States, the Department

14 of Homeland Security (“DHS”), the Secretary of the DHS (“Secretary”), the Department of

15 Justice (“DOJ”), and the Attorney General. (Doc. 138, Ariz. and Governor Janice K.

16 Brewer’s Answer & Countercls.) Arizona asserts the following five counterclaims: failure

17 and refusal to achieve and m aintain “operational control” of the Arizona-Mexico border

18 (Count One); failure and refusal to protect Arizona from invasion and dom estic violence

19 (Count Two); abdication of statutory responsibilities (enforcement of the federal immigration

20 laws) (Count Three); declaratory relief regarding State Criminal Alien Assistance Program

21 (“SCAAP”) reimbursement obligations (Count Four); and declaratory relief under the Tenth

22 Amendment (Count Five). (Id. at 16-55 (“Countercls.”) ¶¶ 147-218.)

23 II. LEGAL STANDARDS AND ANALYSIS

24

The Counterdefendants now move to dismiss Arizona’s Counterclaims pursuant to

25 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (MTD at 1.) The Federal Rules of

26 Civil Procedure require “only ‘a short and plain statem ent of the claim showing that the

27 pleader is entitled to relief,’ in order to ‘givethe defendant fair notice of what the . . . claim

28 is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555

- 2 -

Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 3 of 22

1 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));see also Fed. R. Civ. P. 8(a)(2).

2 Thus, dismissal for insufficiency of a com plaint is proper if the com plaint fails to state a

3 claim on its face. Lucas v. Bechtel Corp., 633 F.2d 757, 759 (9th Cir. 1980).

4

A. Standing

5

The Counterdefendants argue that Arizona does not have standing to pursue Counts

6 One, Two, Three, and Five of the Counterclaims. (MTD at 14-15, 18 n.9;see also Doc. 169,

7 Counterdefs.’ Reply in Supp. of MTD (“Reply”) at 8.) The plaintiff has the burde n of

8 establishing standing and m ust “‘allege[] such a personal stake in the outcom e of the

9 controversy’ as to warrant [the] invocation of federal-c ourt jurisdiction and . . . justify

10 exercise of the court’s rem edial powers.”Warth v. Seldin, 422 U.S. 490, 498-99 (1975)

11 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In order to have standing, a plaintiff umst

12 show (1) an “injury in fact” that is concrete and particularized and actual or imminent (not

13 conjectural or hypothetical); (2) that the injuryis fairly traceable to the challenged action of

14 the defendant; and (3) that it is likely, as opposedto merely speculative, that the injury will

15 be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

16 (1992); see also Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009).

17

The Counterdefendants do not dispute that Arizona has alleged an injury in fact

18 arising from illegal immigration. Indeed, Arizona alleges that it faces increased costs as a

19 direct result of illegal im migration into the state. (Countercls. ¶¶ 2, 6, 43, 110-22.) The

20 Counterdefendants do, howe ver, dispute whether Arizona m eets the two rem aining

21 requirements for standing, arguing that the injuryraised by Arizona is not fairly traceable to

22 the Counterdefendants’ challenged actions and that the injury complained of in Count One

23 of the Counterclaims cannot be redressed because there is no remedy available. (MTD at 14;

24 Hr’g Tr. 7:1-7, July 28, 2011 (“Hr’g Tr.”).)

25

In order to give rise to standing, an “injury has to be ‘fairly . . . trace[able] to the

26 challenged action of the defendant, and not . . . th[ e] result [of] the independent action of

27 some third party not before the court.’” Lujan, 504 U.S. at 560-61 (alteration in original)

28 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Where a plaintiff

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 4 of 22

1 alleges an injury arising fromthe government’s failure to regulate third parties, the plaintiff

2 must allege “facts showing that [the choices of the regulated third parties]have been or will

3 be made in such manner as to produce causation and permit redressability of injury.” Id. at

4 562.

5

Here, Arizona alleges injuries resulting fromthe costs incurred by the state as a result

6 of the Counterdefendants’ failure to a dequately enforce the federal im migration laws and

7 comply with their statutory duties. (Countercls. ¶¶ 2, 6, 43, 110-22.) According to Arizona,

8 over forty percent of all illegal border crossings occur in Arizona and Ar izona faces

9 substantial costs as a result of the high number of unlawfully present aliens in the state. (Id.

10 ¶¶ 2, 6.) Arizona alleges facts indicating thatthe conduct and choices of undocumented aliens

11 illegally crossing into Arizona are directly influenced by federal immigration enforcement;

12 as a result, the Court concludes that these alleged injuries are fairly traceable to the

13 Counterdefendants’ enforcement and immigration policies. (See id. ¶¶ 88-91, 111-12); see

14 Lujan, 504 U.S. at 562; cf. Massachusetts v. E.P.A., 549 U.S. 497, 524-25 (2007) (finding

15 that where an actual injury was caused by th ird parties as a res ult of a failure of a

16 governmental agency to regulate an identified activity, the injury was sufficiently traceable

17 to the challenged governmental failure to regulate). In addition, although “the level of illegal

18 immigration is dependent on m any factors outside the control of the [United States] ,”

19 Arizona’s alleged injuries can be redressed because “an order against the named defendants

20 would offer some relief to [Arizona].” See Chiles v. United States, 69 F.3d 1094, 1096 (11th

21 Cir. 1995); cf. Massachusetts, 549 U.S. at 525-26 (finding that while the requested regulation

22 would not eliminate the problem, it would reduce it sufficiently to meet the redressability

23 requirement).1 The Court presumes that Arizona has standing to raise the Counterclaims and

24

25

1 While Massachusetts involved standing under a statute explicitly perm itting

individuals to sue to enforce the statute, the analysis of Article III’s independent standing

26 requirements in Massachusetts evaluated causation and redressability for an injury resulting

27

from a government agency’s failure to regulate the injurious activity and provides a useful approach to causation and redressability under these circumstances. See Massachusetts, 549

28 U.S. at 520-21, 523-27.

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 5 of 22

1 considers the merits of each claim in turn.

2

B. Issue Preclusion (Counts Two, Three, and Five)

3

The Counterdefendants assert that the Court should dismiss Counts Two, Three, and

4 Five of Arizona’s Counterclaims because the claims are barred by the doctrine of collateral

5 estoppel. (MTD at 5-8.) The doctrine of collateral estoppel, also known as issue preclusion,

6 bars the relitigation “‘of an issue of fact or lwa actually litigated and resolved in a valid court

7 determination essential to the prior judgm ent,’ even if the issue recurs in the context of a

8 different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v.

9 Maine, 532 U.S. 742, 748-49 (2001)). Issue preclusion serves to “‘relieve parties of the cost

10 and vexation of m ultiple lawsuits, conserve judicial resources, and, by preventing

11 inconsistent decisions, encourage reliance on adjudication.’”United States v. Mendoza, 464

12 U.S. 154, 158 (1984) (quotingAllen v. McCurry, 449 U.S. 90, 94 (1980)). The party asserting

13 issue preclusion must establish that (1) the issue previously decided is identical to the issue

14 sought to be relitigated; (2) the prior proceeding concluded with a final judgm ent on the

15 merits; and (3) the party against whomcollateral estoppel is asserted was a party in the first

16 proceeding. Hydranautics v. FilmTec Corp. , 204 F.3d 880, 885 (9th Cir. 2000). Issue

17 preclusion may not apply to bar relitigation where “controlling facts or legal principles have

18 changed significantly since the prior judgm ent,” or where “‘other special circum stances

19 warrant an exception to the normal rules of preclusion.’”Richey v. I.R.S., 9 F.3d 1407, 1410

20 (9th Cir. 1993) (quoting Montana v. United States, 440 U.S. 147, 155 (1979)).

21

In Arizona v. United States, CV 94-866-PHX-SMM (D. Ariz. 1995) (“Arizona I”),

22 Arizona asserted that the United States violated the Guarantee and Invasion Clauses of

23 Article IV, Section 4 of the United States Constitution by failing to protect Arizona froman

24 invasion of undocum ented aliens. ( Arizona I, Doc. 13, Am . Compl. (“Arizona I Am.

25 Compl.”) ¶¶ 23-35.) Arizona also asserted in Arizona I that the United States violated the

26 Tenth Amendment by failing to e ffectively enforce immigration laws, forcing Arizona to

27 spend funds to incarcerate and provide services to undocumented aliens in Arizona. (Id. ¶¶

28 62-70.) Finally, Arizona also claim ed that the United States “failed to properly enforce

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 6 of 22

1 immigration policies” and that this failure in enforcement was actionable. (Arizona I, Doc.

2 28, April 17, 1995, Order (“Arizona I Order”) at 2 (characterizing Arizona’s claims against

3 the United States in Arizona I); see also Arizona I Am. Compl. ¶¶ 3, 6, 31-32.) The district

4 court in Arizona I dismissed Arizona’s claims on the merits. (Arizona I Order at 4-13.) The

5 Ninth Circuit Court of Appeals affirmed the dismissal. Arizona v. United States, 104 F.3d

6 1095, 1096 (9th Cir. 1997) (affirming for the reasons set forth inCalifornia v. United States,

7 104 F.3d 1086 (9th Cir. 1997)); California, 104 F.3d at 1090-94.

8

Arizona does not dispute that the issues in Counts Two, Three, and Five were litigated

9 in Arizona I, that the litigation concluded with a final judgment on the merits, or that Arizona

10 was a party to the prior litigation. S(ee Doc. 162, Counterclaimants’ Resp. to MTD (“Resp.”)

11 at 8-11.) Rather, Arizona argues that changed facts and circum stances prevent collateral

12 estoppel from barring the instant litigation and taht the constitutional issues raised by Arizona

13 in the instant case should be addressed on their merits. (Id. at 9-10.) While “changes in facts

14 essential to a judgm ent will render [issue pr eclusion] inapplicable in a subsequent action

15 raising the same issues,” a change in facts or circum stances that does not alter the factual

16 predicate of the earlier action does not im pact the preclusive effect of the earlier decision.

17 Montana, 440 U.S. at 159 (em phasis added); see also Starker v. United States , 602 F.2d

18 1341, 1347-48 (9th Cir. 1979) (finding that where the legal and factual basis of the prior

19 decision remain the same, preclusion will apply even if som e facts differ). Here, Arizona

20 asserts that changes in the controlling facts and applicable legal rules, including the fact that

21 “[i]llegal immigration has exponentially increased since the mid-1990s” and “Congress has

22 passed significant legislation intended to secure the Southwestern border,” render issue

23 preclusion inapplicable. (Resp. at 9-10.) The Arizona I decision did not depend in any way

24 on an assessment of the scope of unlawful immigration or the federal immigration laws in

25 place. See Arizona I Order at 4-12; California, 104 F.3d at 1090-95. The alleged factual and

26 legal changes do not alter the factual or legal predicate of Arizona I and do not impact the

27 preclusive effect of that decision. See Montana, 440 U.S. at 159.

28

Arizona asserts that the Counterclaims should be addressed on the merits because

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 7 of 22

1 “‘other special circumstances warrant an exception to the norm al rules of preclusion.’”

2 (Resp. at 10 (quoting Montana, 440 U.S. at 155).) Arizona does not identify any special

3 circumstances that would warrant an exception to the normal rules of preclusion or provide

4 any substantive support for its assertion that an exception to preclusion is warranted. ( See

5 id.)2 Arizona also argues that issue preclusion is inappropriate in this case because, “‘where

6 . . . a court . . . has enunciated a rule of law, the parties in a subsequent action upon a

7 different demand are not estopped from insisting that the law is otherwise, merely because

8 the parties are the same in both cases.’” (Id. (quoting United States v. Moser, 266 U.S. 236,

9 242 (1924)).) Preclusion may not be appropriate when “‘unmixed questions of law’ [arise]

10 in successive actions involving substantially unrelated c laims.” Montana, 440 U.S. at 162

11 (quoting Moser, 266 U.S. at 242). However, a “question or right distinctly adjudged in the

12 original action cannot be disputed in a subsequent action, e ven [if] the determination was

13 reached upon an erroneous view or by an erroneous application of the law.M” oser, 266 U.S.

14 at 242. Here, the subject matter of the Counterclaims is closely related to the subject matter

15 of Arizona I, the issues raised by Arizona were distinctly adjudged in Arizona I, and

16 preclusion prohibits the relitigation of the legal issues that have already been resolved for the

17 parties. See Montana, 440 U.S. at 162-63 (finding that preclusion was appropriate where

18 legal issues, which were “closely aligned in tim e and subject matter,” arose in successive

19 actions); Moser, 266 U.S. at 242.

20

In Arizona I, Arizona litigated claims for violation of the Tenth Amendment and the

21 Invasion Clause of Article IV, Section 4 of the United States Constitution. A( rizona I Order

22

23

2 Arizona also asserts that the Counterclaim s should not be precluded because “the

Government initiated this litigation, which allow[s] Arizona to seek the redress set forth in 24 its Counterclaims.” (Resp. at 9.) Arizona fails tocite any law in support of this argument and

25 the argument is ultimately unavailing. The Counterclaims are independent actions against the Counterdefendants and are not immune from the rules of preclusion. See Seung Woo Lee v.
26 Imaging3, Inc., 283 F. App’x 490, 493 (2008) (finding that claims raised as counterclaims

27

were subject to the preclusion doctrines). The United States’ initiation of the instant litigation, asking the Court to de termine different legal issues, does not perm it Arizona to

28 relitigate issues already determined in prior litigation.

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 8 of 22

1 at 4-9.) Issue preclusion bars Arizona from attempting to relitigate these issues. Therefore,

2 Count Five and the portion of Count Two asserting a viola tion of the Invasion Clause are

3 barred. Arizona did not litigate a claim under the Domestic Violence Clause, nor did Arizona

4 raise an independent claim for abdication of statutory responsibilities. As a result, these

5 issues are not precluded. See Eureka Fed. Sav. & Loan Ass’n v. Am. Cas. Co. of Reading,

6 Penn., 873 F.2d 229, 233 (9th Cir. 1989) (“Collateral estoppel is inappropriate if there is any

7 doubt as to whether an issue was actually litigated in a prior proceeding.”).3

8

C. Failure to State a Cognizable Claim

9

1. Arizona’s Constitutional Counterclaims (Counts Two and Five)

10

Even if Counts Two and Five were not barred by the doctrine of issue preclusion,

11 binding precedent requires the dismissal of these claims in their entirety.

12

i. Count Two

13

Arizona asserts that the Counterdefendants have violated Article IV, Section 4 of the

14 United States Constitution by “fail[ing] and refus[ing] to protect Arizona from invasion and

15 domestic violence” resulting from illegal immigration. (Countercls. ¶¶ 163, 165-68.) A

16 political question is a “controvers[ y] which revolve[ s] around policy choices and value

17 determinations constitutionally committed to the Congress or the Executive Branch, and [is]

18 not subject to judicial review.”United States v. Mandel, 914 F.2d 1215, 1222 (9th Cir. 1990).

19 The United States Supreme Court has established the following six factors for determining

20

21

3 The Counterdefendants assert in a footnote that the related doctrine of claim

22

preclusion also prevents Arizona from raising any claim s that could have been raise d in Arizona I. (MTD at 6 n.2.) As the party asserting the defense of claim preclusion, the

23 Counterdefendants bear the burden of dem onstrating that the require ments of claim

preclusion are met. See Sturgell, 553 U.S. at 907. The Counterdefendants do not attempt to 24 demonstrate the identity of the claims or that the claims arise out of the same transactional

25 nucleus of facts. (See MTD at 6 n.2);see also ProShipLine Inc. v. Aspen Infrastructures Ltd,. 609 F.3d 960, 968 (9th Cir. 2010) (laying out the test for determining the identity of claims
26 for purposes of claimpreclusion). In addition, courts have found that continuing conduct amy

27

give rise to a new claimnot barred by claimpreclusion. See Harkins Amusement Enters., Inc. v. Harry Nace Co., 890 F.2d 181, 183 (9th Cir. 1989) (citing Lawlor v. Nat’l Screen Serv.

28 Co., 349 U.S. 322, 329 (1955)).

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 9 of 22

1 whether an issue presents a political question:

2

“[1] a textually dem onstrable constitutional c ommitment of the issue to a

coordinate political department; or [2] a lack of judicially discoverable and

3

manageable standards for resolving it; or [3] the impossibility of deciding

without an initial policy determ ination of a kind clearly for nonjudicial

4

discretion; or [4] the im possibility of a court’s unde rtaking independent

resolution without expressing lack of the respect due coordinate branches of

5

government; or [5] an unusual need for unquestioning adherence to a political

decision already m ade; or [ 6] the potentiality of em barrassment from

6

multifarious pronouncements by various departments on one question.”

7 Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004) (quotingCarr, 369 U.S. at 217). If an issue

8 implicates any one of these factors, it is a nonjusticiable political questionM. andel, 914 F.2d

9 at 1222.

10

Arizona’s claim for violation of the Invasion and Dom estic Violence Clauses of

11 Article IV, Section 4 presents a nonjusticiable political question. In California, the Ninth

12 Circuit Court of Appeals found that claims that the United States violates the Invasion Clause

13 by failing to prevent illegal im migration present nonjusticiable political questions.

14 California, 104 F.3d at1090-91. “[P]rotection of the States from invasion implicates foreign

15 policy concerns which have been constitutionally committed to the political branches,” and

16 “there are no manageable standards to ascertain whether or when an influx of illegal

17 immigrants should be said to constitute an invasion.” Id. at 1091; see also Chiles, 69 F.3d at

18 1097 (concluding that “whether the level of illegal immigration is an ‘invasion’ of Florida

19 . . . prese nt[s] [a] nonjusticiable political question[] ”). In addition, the Invasion Clause

20 protects against “armed hostility from another political entity” and does not permit Arizona

21 to sue the federal gove rnment for its alleged failure to protect the state from unlawful

22 immigration. See California, 104 F.3d at 1091 (quotation and citation omitted); see also New

23 Jersey v. United States , 91 F.3d 463, 468 (3d Cir. 1996). 4 This Court is bound by Ninth

24

25 4 Arizona argues that the definition of “invsaion” has changed since the drafting of the
26 Constitution. (Countercls. ¶ 167.) However, in 1997, the California court conclusively

27

determined that an almost identical Invasion Clause claim presented a nonjusticiable political question and that Article IV, Section 4’s reference to “invasion” does not apply to a state’s

28 claim based on illegal immigration. See California, 104 F.3d at 1091.

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 10 of 22

1 Circuit precedent. Arizona’s Invasion Clause claimis a nonjusticiable political question and

2 is therefore dismissed.

3

Similarly, Arizona’s claim for violation of the Domestic Violence Clause also fails.

4 As an initial matter, the Domestic Violence Clause is meant to apply to “insurrection[s], riots,

5 and other forms of civil disorder.”United States v. Smith, 171 F.3d 617, 626 (8th Cir. 1999);

6 see also United States v. Cruikshank , 92 U.S. 542, 556 (1875) (finding that the Dom estic

7 Violence Clause does not apply to ordinary crimes). Arizona’s factual allegations focus on

8 crime and violence of a general, apolitical nature and do not implicate the type of disorder

9 addressed by the Dom estic Violence Clause. ( See Countercls. ¶¶ 169-70.) Furtherm ore,

10 Arizona’s claim under the Domestic Violence Clause presents a nonjusticiable political

11 question. It is well settled that the federal response to insurrection and rebellion in the states

12 is appropriately determined by the political branches.See Georgia v. Stanton, 73 U.S. 50, 60-

13 62 (1867); Luther v. Borden, 48 U.S. 1, 75-77 (1849). Arizona’s claim implicates a federal

14 response that is appropriately reserved for the political branches. There are a lso no

15 manageable standards for ascertaining whether or when the presence of unlawfully present

16 aliens results in “dom estic violence” within the m eaning of Article IV, Section 4. See

17 Stanton, 73 U.S. at 60-62;cf. California, 104 F.3d at 1091 (discussing the political question

18 doctrine and determ ining that a claim by a state under the Invasion Clause presented a

19 political question); see also Carr, 369 U.S. at 223-24 (noting that, generally, Article IV,

20 Section 4 “is not a repository of judicially m anageable standards” and that “challenges to

21 congressional action on the ground of inconsistency with that clause present no justiciable

22 question”).

23

Arizona argues that “[b] y . . . filing suit to enjoin S.B. 1070, the Governm ent has

24 waived any claimthat the issue is nonjusticiable” and is estopped fromasserting the political

25 question doctrine as a defense . (Resp. at 17-18.) However, “[t] he nonjusticiability of a

26 political question is primarily a function of the separation of powers.”Carr, 369 U.S. at 210.

27 Further, “[w]hen . . . Article III limitations are at issue, notions of consent and waiver cannot

28 be dispositive because the limitations serve institutional interests that the parties cannot be

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 11 of 22

1 expected to protect.” Commodity Futures Trading Comm’n v. Schor , 478 U.S. 833, 851

2 (1986); see also United States v. Finn, 239 F.2d 679, 682-83 (9th Cir. 1956) (holding that

3 jurisdictional defects in counterclaim s against the United States were not waived by the

4 United States’ affirm ative suit). Count Two presents a nonjusticia ble political question.

5 Accordingly, Count Two of Arizona’s Counterclaims is dismissed.

6

ii. Count Five

7

Arizona asserts tha t, as a result of the federal governm ent’s failure to enforce

8 immigration laws and the preliminary injunction obtained in this case, which Arizona asserts

9 “effectively prohibits Arizona from exercising its police and other traditional state powers”

10 to address im migration, Arizona has been for ced to expend state resources to “provide

11 education, medical care, and other benefits” tounlawfully present aliens and to protect state

12 trust lands, in violation of the Tenth Amendment. (Countercls. ¶¶ 199, 202; see also id. ¶¶

13 199-204; Resp. at 30.)

14

The Tenth Am endment prohibits Congress from “simply ‘commandee[ring] the

15 legislative processes of the [s]tates by directly compelling them to enact and enforce a federal

16 regulatory program.’” New York v. United States, 505 U.S. 144, 161 (1992) (quotingHodel

17 v. Va. Surface Mining & Reclamation Ass’n, Inc. , 452 U.S. 264, 288 (1981)). In addition,

18 courts have recognized the possibility that “extraordinary defects in the national political

19 process might render congressional regulation of state activities invalid under the Tenth

20 Amendment,” where a state is “singled out in a way that le[aves] it politically isolated and

21 powerless” or where a state is “deprived of any right to participate in the national political

22 process.” South Carolina v. Baker, 485 U.S. 505, 512-13 (1988); see also Nuclear Energy

23 Inst., Inc. v. E.P.A., 373 F.3d 1251, 1305 (D.C. Cir. 2004). The Tenth Am endment is not

24 implicated where alleged state expenditures arise from state policies and a ctivities and

25 independent constitutional obligations, rather than a federal mandate. California, 104 F.3d

26 at 1092-93; see also Padavan v. United States, 82 F.3d 23, 28-29 (2d Cir. 1996) (dismissing

27 Tenth Amendment claims based on state expenditures for social, educational, health, and

28 correctional services for persons unlawfully present in the United States);Chiles, 69 F.3d at

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 12 of 22

1 1097 (finding that “Florida’s provision of benefits to [undocumented] aliens [was] not the

2 product of federal coercion of the kind which violates the Tenth Amendment”). In Arizona

3 and California, the Ninth Circuit Court of Appeals rejected Tenth Amendment claims based

4 on the costs associated with incarcerating and providing services tonulawfully present aliens.

5 Arizona, 104 F.3d at 1096; California, 104 F.3d 1092-93.

6

Arizona does not point to any federal immigration policy that mandates or compels

7 Arizona to take any action. The com plained of expenditures arise entirely from Arizona’s

8 own policy choices and independent constitutional obligations and are not incurred as a result

9 of any federal m andate. These state costs do not give rise to a claim under the Tenth

10 Amendment. See California, 104 F.3d at 1093.5 In addition, Arizona asserts that

11 “extraordinary defects in the national political process,” deprive Arizona of the opportunity

12 to participate in the national political process and that Arizona is singled out in a way that

13 leaves it politically isolated and powerless. (See Countercls. ¶¶ 213-14). However, only the

14 “congressional regulation of state activities” may be invalid under the Tenth Amendment as

15 a result of “extraordinary defects in the national political process.” See Baker, 485 U.S. at

16 512; Nuclear Energy Inst. , 373 F.3d at 1305 (finding that “the possibility that som e

17 extraordinary defects in the national political process might render congressional regulation

18 . . . invalid under the Tenth Am endment [is] an issue only with respect to congressional

19 regulation of state activity” (quotation and citation omitted)). Arizona does not identify any

20 congressional regulation of state activity that may be invalid as a result of an extraordinary

21 defect in the political process. See Nuclear Energy Inst., 373 F.3d at 1305. Arizona fails to

22 state a claim for violation of the Tenth Am endment. See Arizona, 104 F.3d at 1096;

23 California, 104 F.3d at 1092-93. A ccordingly, Count Five of Arizona’s Counterclaims is

24

25

5 Arizona argues that its Tenth Amendment claim is distinguishable from the claim

rejected in California based on the “action” taken by the federal government in obtaining a

26 preliminary injunction of portions of S.B. 1070. (Resp. at 32.) However, as in California,

27

there is no federal m andate requiring Arizona to expend any funds. Ariz ona’s financial burden still arises entirely from the state’s own policies and independent constitutional

28 obligations. See California, 104 F.3d at 1093.

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 13 of 22

1 dismissed.

2

2. Arizona’s Statutory Counterclaims (Counts One, Three, and Four)

3

Arizona also alleges that the Counterdefendants have failed to com ply with and

4 enforce federal immigration law. (Countercls. ¶¶ 147-56, 177-83, 185-191.) Arizona requests

5 injunctive, declaratory, and mandamus relief to force the Counterdefendants to comply with

6 the immigration statutes, take certain actions to gain control of the border, and regulate

7 immigration. (Id. ¶¶ 157, 184, 192-93.) The parties agree that Arizona’s statutory claismarise

8 under the Administrative Procedures Act (“APA”). (MTD at 15; Resp. at 11.)

9

The APA authorizes suit by a plaintiff “suffering legal wrong because of agency

10 action, or adversely affected or aggrieved by agency action within the meaning of a relevant

11 statute.” 5 U.S.C. § 702. The APA permits judicial review of a “final agency action for which

12 there is no other adequate remedy in a court.” Id. § 704. Under the APA, a reviewing court

13 must “hold unlawful and set aside agency action, findings, and conclusions found to be . . .

14 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”Id. §

15 706(2)(A); see also Alvarado Cmty. Hosp. v. Shalala , 155 F.3d 1115, 1121-22 (9th Cir.

16 1998). Review under the arbitrary and capricious standard is “highly deferential [and]

17 presum[es] the agency action to be valid.”Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 830-

18 31 (9th Cir. 2002). The APA also permits review of agency inaction “where a plaintiff asserts

19 that an agency failed to take a discrete agency action that it is required to take.” Norton v.

20 S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). The APA permits a reviewing court to

21 “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In

22 order to obtain an order compelling agency action, a plaintiff must show that the agency had

23 a non-discretionary duty to act and unreasonably delayed in acting on that dutyN. orton, 542

24 U.S. at 63-65. The APA does not apply to perm it judicial review or intervention where

25 “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Agency

26 action is committed to agency discretion where there are “no judicially amnageable standards

27 . . . available for judging how and when an agency should exercise its discretion.” Heckler

28 v. Chaney, 470 U.S. 821, 830 (1985).

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 14 of 22

1

i. Count One

2

In Count One of the Counterclaims, Arizona asserts a claimagainst the United States,

3 the DHS, and the Secretary for their alleged failure and refusal to achieve and maintain

4 “operational control” of the Arizona-Mexicoborder. (Countercls. ¶¶ 148-52.) Arizonaasserts

5 that the Secure Fence Act, Pub. L. No1. 09-367, 120 Stat. 2638 (2006) (“Secure Fence Act”),

6 and the Consolida ted Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844

7 (2007) (“2008 Appropriations Act”), require the DHS and the Secretary to achie ve and

8 maintain “operational control” of the border, report to Congress on the progress m ade to

9 obtain operational control, build at least 700 miles of fencing along the United States-Mexico

10 border, and install additional physical barriers and other infrastructure along the border. (Id.

11 ¶ 149.) Arizona argues that the identified actions are “required agency action unlawfully

12 withheld or unreasonably delayed[,]which [are] reviewable under 5 U.S.C. § 706(1).” (Resp.

13 at 11 (internal quotation omitted).) Arizona seeks injunctive, declaratory, and m andamus

14 relief requiring that the United States, the DHS, and the Secretary achieve and m aintain

15 operational control of the Arizona-Mexico border, complete 700 miles of fencing, and take

16 temporary measures to protect Arizona. (Countercls. ¶¶ 157-58.)

17

In order to obtain a judicial order compelling agency action under the APA, a plaintiff

18 must show that there is a mandatory statutory obligation that the agency take the discrete

19 action requested by the plaintiff. See 5 U.S.C. § 706(1); Norton, 542 U.S. at 63-64. The

20 requirement of a discrete agency action “precludes . . .[a] broad programmatic attack” on

21 agency decisions. Norton, 542 U.S. at 64 (also noting that a plaintiff “‘cannot seek wholesale

22 improvement of [a] program by court decree, rather than in . . . the halls of Congress, where

23 programmatic improvements are normally made. Under the terms of the APA, respondent

24 must direct its attack against some particular agency action [or inaction]that causes it harm’”

25 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990))). In Norton, the United States

26 Supreme Court reviewed a statutory mandate that the Bureau of Land Management “continue

27 to manage [wilderness areas] . . . in a manner so as not to impair the suitability of such areas

28 for preservation as wilderness.” Id. at 65. The Norton Court held that while the statute was

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1 “mandatory as to the object to be achieved[,] . . . it le[ft] [the agency] a great deal of

2 discretion in deciding how to achieve it . . . [and] assuredly [did] not mandate, with the

3 clarity necessary to support judicial action,” any discrete agency action. Id. at 66.

4

Arizona asserts that the Secure Fence Act requires the DHS to achieve and maintain

5 “operational control” of the United States-Mexico border and that the 2008 Appropriations

6 Act and the DHS Appropriations Act of 2010 (“DHS Appropriations Act”) require the

7 Secretary to construct at least 700 miles of fencing and additional physical barriers, roads,

8 lighting, and other det ection technology along the southwest border in order to obtain

9 operational control over the United States’ borders. (Resp. at 13-14.) The Secure Fence Act

10 directs the Secretary to “take all actions the Secretary determines necessary and appropriate

11 to achieve and maintain operational control” over the United States border within eighteen

12 months. Secure Fence Act, Pub. L. No. 109-367, § 2, 120 Stat. 2638 (2006) (codified at 8

13 U.S.C. § 1701 note). The Secure Fence Act’s “operational control” requirem ent does not

14 mandate a discrete action that the Court could compel under the APA. See Norton, 542 U.S.

15 at 64-66. The requirement that the Secretary achieve “operational control” does not mandate

16 any discrete agency action “with the clarity necessary to support judicial action.” See id. at

17 66. Rather, the Act creates an objective and leaves the DHS and the Secretary with “a great

18 deal of discretion in deciding how to achieve it.” See id. The APA does not empower the

19 Court to enter a general order compelling compliance with the broad statutory objective of

20 “operational control.” See id. at 66-67.

21

The Illegal Im migration Reform and I mmigrant Responsibility Act of 1996

22 (“IIRIRA”), as amended by the 2008 Appropriations Act, provides for the construction of

23 700 miles of fencing and additional infrastructure along the border “where [iwt]ould be most

24 practical and effective.” 2008 Appropriations Act, Pub. L. No. 110-161, Div. E, § 564, 110

25 Stat. 1844, 2091 (am ending IIRIRA § 102(b)(1)(A)). Arizona argues that the Court can

26 compel the DHS and the Secretary to act to achieve operational control and com plete 700

27 miles of fencing without specifying the manner of completion because “‘[w]hen an agency

28 is compelled by law to act within a certain time period, but the manner of its action is left to

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1 the agency’s discretion, a court can compel the agency to act, but has no power to specify

2 what the action must be.’” (Resp. at 15 (quoting Norton, 542 U.S. at 65).)

3

Here, no deadline m andates completion of the fencing and infrastructure

4 developments or any required disc rete action by a specific time. See IIRIRA, Pub. L. No.

5 104-208, Div. C, § 102, 110 Stat. 3009-546, 3009-555; 2008 Appropriations Act, Pub. L. No.

6 110-161, Div. E, § 564, 110 Stat. 1844, 2090-91 (amending IIRIRA § 102(b)(1)).In addition,

7 the IIRIRA and the Appropriations Acts provide the DHS and the Secretary with substantial

8 discretion in determining where to build fencing, where to use alternative infrastructure

9 improvements rather than fencing, a nd how best to develop a com prehensive program to

10 prevent illegal immigration. See 2008 Appropriations Act, Pub. L. No. 110-161, Div. E, §

11 564, 121 Stat. 1844, 2091 (stating “nothing in this paragraph . . . require[s] the Secretary .

12 . . to install fencing, physical barriers, roads, lighting, cam eras, and sensors in a particular

13 location . . . if the Secretary determines that the use or placement of such resources is not the

14 most appropriate means to achieve and maintain operational control over the international

15 border”). While the construction of the fencing and infrastructure im provements may be

16 phrased in mandatory language, the IIRIRA and the Appropriations Acts leave the Secretary

17 and the DHS with a great deal of discretion in deciding how, when, and where to complete

18 the construction. See id. Moreover, the Acts do not mandate any discrete agency action with

19 the clarity to support a judicial order compelling agency action. See Norton, 542 U.S. at 66.

20

Arizona also alleges that the DHS has taken actions that are reviewable under §

21 706(2)(A) and that the government has changed its practices and policies. (Resp. at 16-17.)

22 While Arizona alleges that the DHS and the Secretary have acted arbitrarily and capriciously

23 and in excess of statutory limitations, Arizona does not identify any specific improper actions

24 in its allegations in the Counterclaims. (See Countercls. ¶ 155.) In addition, Arizona requests

25 only that the Court require the United States,the DHS, and the Secretary to comply with the

26 Secure Fence Act and the 2008 Appropriations Act by achieving and m

aintaining

27 “operational control” of the border and completing at least 700 miles of fencing along the

28 border. (Countercls. ¶ 157.) The APA permits review only of final agency actions; it does not

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1 permit review of ongoing agency action where a plaintiff asserts that an agency has failed

2 to act, but actually challenges the sufficiency of the agency’s ongoing, non-final actionS. ee

3 Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999). The allegations in

4 the Counterclaims and the briefing do not indicate that the federal governm ent has

5 completely failed or refused to act under the Secure Fence Act or the 2008 Appropriations

6 Act. Rather, Arizona appears to challenge the manner in which the government has acted to

7 complete the infrastructure and fencing goals and a chieve “operational control.” It is not

8 disputed that the federal government has taken substantial action to complete fencing along

9 the border and increase additional infrastructure designed to stemillegal immigration. (See

10 Countercls. ¶¶ 88, 152 (noting that the DHS established a target of 661 miles of fencing).)

11 Arizona cannot challenge the sufficiency of the government’s ongoing, non-final actions by

12 attempting to fram e its claim s as a challenge to a gency action wrongfully withheld or

13 unreasonably delayed. See Ecology Ctr. , 192 F.3d at 926. In addition, no judicially

14 manageable standards permit the Court to determine how or when the DHS or the Secretary

15 should complete the fencing and infrastructure construction contemplated by the IIRIRA, the

16 Secure Fence Act, and the Appropriations Acts. Arizona has failed to state a claimin Count

17 One of its Counterclaims. Accordingly, Count One is dismissed.

18

ii. Count Three

19

In Count Three of the Counterclaims, Ariozna alleges that the Counterdefendants have

20 failed to adequately enforce the federal im migration laws and have adopted policies

21 amounting to an abdication of their enfor cement responsibilities. (Countercls. ¶¶ 180-82.)

22 Arizona asserts that the Counterdefendants adopted policies and practices providing better

23 protection to other states, filed suit to enjoin S.B. 1070, publicly stated that Imigration and

24 Customs Enforcement may not respond to inquiries fromArizona regarding an individual’s

25 immigration status, failed to take action against jurisdictions with “sanctuary policies,”

26 prioritized their enforcem ent efforts, and conside red changes in the interpretation and

27 enforcement of immigration laws that would “result in meaningful immigration reform absent

28 legislative action.” (Id. ¶ 181.) Arizona also asserts thathe Counterdefendants have “adopted

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 18 of 22

1 policies . . . that are so extrem e that they amount to an abdication of the DHS’s and the

2 DOJ’s statutory responsibilities.” (Id. ¶ 180.)

3

As noted above, the APA does not apply to perm it judicial review or perm it a

4 reviewing court to com pel agency action where “agency action is com mitted to agency

5 discretion by law.” 5 U.S.C. § 701(a)(2). “[ A]gency refusals to institute investigative or

6 enforcement proceedings” are not reviewa ble because they fall under the “exception to

7 reviewability provided by § 701(a)(2) for action ‘committed to agency discretion.’”Heckler,

8 470 U.S. at 838; see also California, 104 F.3d at 1094-95. The Heckler Court found that

9 agency enforcement decisions often involve the balancing of several factors uniquely within

10 the expertise of the agency, including determinations about whether a violation occurred and

11 the best use of agency resources. 470 U.S. at 831. Discretionary decisions not to enforce a

12 law may, however, be reviewable “‘where it could justifiably be found that the agency has

13 consciously and expressly adopted a general policy that is so extrem e as to amount to an

14 abdication of its statutory responsibilities.’” Mont. Air Chapter No. 29, Ass’n of Civilian

15 Technicians v. Fed. Labor Relations Auth. , 898 F.2d 753, 756 (9th Cir. 1990) (quoting

16 Heckler, 470 U.S. at 833 n.4).

17

The Court cannot properly review the enforcement decisions challenged by Arizona

18 in Count Three. The challenged “decision[s] not to prosecute or enforce, whether through

19 civil or crim inal process, [are] decision[s] generally com mitted to an agency’s absolute

20 discretion.” See Heckler, 470 U.S. at 831; see also California, 104 F.3d at 1094. As actions

21 committed to agency discretion, these enfor cement decisions are not subject to judicial

22 intervention pursuant to § 701(a)(2) of the APA. See Heckler, 470 U.S. at 838; see also

23 California, 104 F.3d at 1094-95.In California, the Ninth Circuit Court of Appeals found that

24 a state’s claim that the United States failed to enforce im migration laws challenged

25 unreviewable discretionary agency actions. 104 F.3d at 1094-95. Here, Arizona attempts to

26 challenge the same types of enforcement decisions that the Ninth Circuit Court of Appeals

27 determined were discretionary and unreviewable in California. See id. In addition, the

28 enforcement decisions challenged by Arizona involve the balancing of factors uniquely

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1 within the expertise of the DHS and the DOJ, including determinations about enforcement

2 priorities and the best use of agency resources. See Heckler, 470 U.S. at 831-32. The

3 challenged enforcement decisions are committed to agency discretion and are not subject to

4 judicial intervention. See id. at 838; see also California , 104 F.3d at 1094. Ariz ona’s

5 allegations also do not indicate that the Counterdefendants ha ve abdicated their statutory

6 responsibilities to enforce the immigration laws. See California, 104 F.3d at 1094. According

7 to Arizona’s own allegations, the Counterdefendants continue to enforce federal immigration

8 laws in accordance with priorities established by the federal government. (See Countercls.

9 ¶¶ 181-82.) While Arizona may disagree with the established enforcem ent priorities,

10 Arizona’s allegations do not give rise to a claimthat the Counterdefendants have abdicated

11 their statutory responsibilities.6 Arizona has failed to state a claim in Count Three of its

12 Counterclaims. Therefore, Count Three is dismissed.

13

iii. Count Four

14

In Count Four of the Counterclaims, Arizona alleges that the Counterdefendants have

15 failed to adequately reimburse Arizona for the cost of incarcerating undocumented criminal

16 aliens. (Countercls. ¶¶ 187-91.) Arizona se eks a declaration that the DOJ or the Attorney

17 General’s method of calculating reimbursements under SCAAP violates federal law because

18 it does not equal the actual costs of incarceration. ( Id. ¶ 192(c).) Ariz ona also requests a

19 declaration that the Attorney General has failed to prioritize the federal incarceration of

20 undocumented criminal aliens. ( Id. ¶ 192(d).) In addition, Arizona seeks a declaratory

21 judgment interpreting 8 U.S.C. § 1231(i), de termining the DOJ and Attorney General’s

22

23 6 Arizona also argues that review is available because the federal governm ent has
24 modified long-standing agency policy. (Resp. at 23-24.) While it is true tha t courts may

25 review a change in agency policy, regulations, or rules, see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co,. 463 U.S. 29, 41-42 (1983), that does nothing to
26 change the fact that the de cisions challenged by Arizona in the Counterclaim s are

27

enforcement decisions. These enforcement decisions, including the decisions to prioritize agency resources and act on agency determined priorities, are committed to the discretion of

28 the Counterdefendants. See California, 104 F.3d at 1094; Heckler, 470 U.S. at 831.

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 20 of 22

1 reimbursement obligations and statutory responsibilities, determining whether Arizona has

2 a right to reject future SCAAP allocations, and determ ining whether the cost of federal

3 incarceration is subject to the appropriations section found in 8 U.S.C. § 1231.I(d. ¶ 192(a),

4 (b), (e), (f).)

5

SCAAP allows the federal governm ent to reim burse states for the costs of

6 incarcerating undocumented criminal aliens. 8 U.S.C. § 1231(i)(1)(A). Compensation under

7 SCAAP is based on “the average cost of incarceration of a prisoner in the relevant [st]ate as

8 determined by the Attorney General.”Id. § 1231(i)(2). Limited congressional appropriations

9 prevent states from receiving SCAAP reim bursements that equal their total incarceration

10 costs. (See Countercls. ¶¶ 68-69, 106.)

11

Arizona is not entitled to a dec laratory judgment that the DOJ or the Attorney

12 General’s calculation method violates federal law. Under SCAAP, the calculation of the

13 average cost of incarceration is explicitly com mitted to the discretion of the Attorney

14 General. 8 U.S.C. § 1231(i)(2) (“Compensation . . . shall be the average cost of incarceration

15 of a prisoner in the relevant State as determined by the Attorney General .” (emphasis

16 added)). The statute does not provide any manageable standards for the Court to review the

17 Attorney General’s method for calculating the average cost of incarceration. See id. As a

18 result, the AP A does not perm it judicial review of the Attorney General’s calculation

19 methods. See Heckler, 470 U.S. at 830.7 Arizona is not entitled to a declaratory judgment that

20 the DOJ or the Attorney General’s calculation method violates federal law.

21

22

7 To the extent Arizona is attempting to challenge other decisions resulting in less than

23 full reimbursement, courts have determined that the Attorney General has the discretion to

reimburse states on a pro rata basis and that both the federal reibmursement and incarceration 24 options are limited by the funds actually appropriated by Congress.See California v. Dep’t

25 of Justice, 114 F.3d 1222, 1225-26 (D.C. Cir. 1997) (reviewing the governemnt’s obligations under 8 U.S.C. § 1252(j), the previous codificaotin of the reimbursement obligation). Arizona
26 does not allege that the Attorney General has failed to reim burse the states to the extent

27

possible with the appropriated funds or that the Attorney General has failed to reim burse Arizona on a pro rata basis for the average costs of incarceration as determ ined by the

28 Attorney General.

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1

In addition, the Court declines to provide the additional declaratory interpretation of

2 the statutory law requested by Arizona. The Declaratory Judgment Act provides, “In a case

3 of actual controversy within its jurisdiction . . . any court of the United States, upon the filing

4 of an appropriate pleading, may declare the rights and other legal relations of any interested

5 party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C.

6 § 2201(a). The Declaratory Judgment Act’s permissive language “confers . . . discretion on

7 the courts rather tha n an absolute right upon the litigant.” Pub. Serv. Comm’n of Utah v.

8 Wycoff Co., 344 U.S. 237, 241 (1952);see also Leadsinger, Inc. v. BMG Music Publ’g, 512

9 F.3d 522, 533 (9th Cir. 2008) (“Federal courts do not ha ve a duty to grant declaratory

10 judgment; therefore, it is within a district c ourt’s discretion to dism iss an action for

11 declaratory judgment.”). “In the declaratory judgm ent context, the norm al principle that

12 federal courts should adjudicate claims within their jurisdiction yields to considerations of

13 practicality and wise judicial administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 288

14 (1995).

15

Arizona asks the Court to interpret the statutory fram

ework for SCAAP

16 reimbursements without asserting that the federal governm ent has violated any right or

17 explaining how a declaration by this Court would settle any dispute between the partiesS.e(e

18 Countercls. ¶ 192.)8 Here, Arizona does not present the Court with a concrete controversy9,

19 and the declaration requested by Arizona would not provide Arizona with any real relief.

20 Therefore, the Court declines to enter the requested declaratory judgment. See Rio Grande

21

22

8 In fact, 28 U.S.C. § 1231(h) explicitly provides, “Nothing in this section shall be

construed to create any substantive or procedural right or benefit that is legally enforceable

23 by any party against the United States or its agencies or officers or any other person.” As a

24

result, it is not clear that Ariz ona has any rights under 8 U.S.C. § 1231 that it can seek to vindicate.

25 9 While Arizona requests a declaratory judgm ent interpreting the governm ent’s
26 obligations under SCAAP, Arizona’s allegations do not establish an actual controversy.

27

“There being no controversy . . . the declaratory judgment is not only worthless to [Arizona,] it is seemingly worthless to all the world.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

28 83, 106 (1998).

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Case 2:10-cv-01413-SRB Document 171 Filed 10/21/11 Page 22 of 22

1 Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109-10 (10th Cir. 2010) (finding

2 that “what makes a declaratory judgm ent action a proper judicial resolution of a case or

3 controversy rather than an advisory opinion is the settling of some dispute which affects the

4 behavior of the defendant toward the plaintiff” (quotation and citation omitted)); DeNovellis

5 v. Shalala, 124 F.3d 298, 313-14 (1st Cir. 1997) (finding that a district court acted within its

6 discretionary power in deciding to refrain from a trial where the court could not award any

7 relief).

8 III. CONCLUSION

9

For the foregoing reasons the Court grants the Counterdefendants’ Motion to Disimss

10 and dismisses Arizona’s Counterclaims in their entirety.

11

IT IS THEREFORE ORDERED granting the Counterdefendants’ Motion to

12 Dismiss Counterclaims (Doc. 154) and dismissing Arizona’s Counterclaims.

13

14

DATED this 21st day of October, 2011.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:10-cv-01413-SRB Document 166-1 Filed 06/30/11 Page 1 of 87

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,



Plaintiff-Appellee,

No. 10-16645

v. STATE OF ARIZONA; JANICE K.

 D.C. No. 2:10-cv-01413-SRB

BREWER, Governor of the State of Arizona, in her official capacity,

OPINION

 Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 1, 2010—San Francisco, California
Filed April 11, 2011
Before: John T. Noonan, Richard A. Paez, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Paez; Concurrence by Judge Noonan; Partial Concurrence and Partial Dissent by Judge Bea

4805

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UNITED STATES v. S TATE OF ARIZONA

4809

COUNSEL
John J. Bouma, Robert A. Henry, Joseph G. Adams, Joseph A. Kanefield, Office of Governor Janice K. Brewer, for

Case 2:10-cv-01413-SRB Document 166-1 Filed 06/30/11 Page 3 of 87

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UNITED STATES v. S TATE OF ARIZONA

defendants-appellants State of Arizona, and Janice K. Brewer, Governor of the State of Arizona.

Edwin Kneedler, Deputy United States Solicitor General, Tony West, Assistant Attorney General, Dennis K. Burke, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Thomas M. Bondy, Michael P. Abate, Daniel Tenny, Attorneys, Appellate Staff Civil Division, Department of Justice, for plaintiff-appellee United States of America.

OPINION
PAEZ, Circuit Judge:
In April 2010, in response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 ( “S.B. 1070”), “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona. ” S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B. 1070 establishes a variety of immigration-related state offenses and defines the immigration-enforcement authority of Arizona’s state and local law enforcement officers.
Before Arizona’s new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act ( “INA”), and that it violated the Commerce Clause. Along with its complaint, the United States filed a motion for injunctive relief seeking to enjoin implementation of S.B. 1070 in its entirety until a final decision is made about

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UNITED STATES v. S TATE OF ARIZONA

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its constitutionality. Although the United States requested that the law be enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F. Supp. 2d 980, 992 (D. Ariz. 2010).

The district court granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Id. at 1008. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections is the central issue this appeal presents.1

We have jurisdiction to review the district court’s order under 28 U.S.C. § 1292(a)(1). We hold that the district court did not abuse its discretion by enjoining S.B. 1070 Sections 2(B), 3, 5(C), and 6. Therefore, we affirm the district court’s preliminary injunction order enjoining these certain provisions of S.B. 1070.

Standard of Review

We review the district court’s grant of a preliminary injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc). A preliminary injunction “should be reversed if the district court based ‘its decision on an erroneous legal standard or on clearly erroneous findings of fact.’ ” Stormans, Inc. v.

1A party seeking a preliminary injunction has the burden to demonstrate that (1) it is likely to succeed on the merits of the claim, (2) it will suffer irreparable harm absent injunctive relief, and (3) that the balance of the equities and the public interest favor granting the injunction. Winter v. Natural Res. Def. Council Inc., 129 S. Ct. 365, 374 (2008). Our analysis here begins and focuses on the critical issue of the United States’ likelihood of success on the merits of its preemption claim.

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Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) ( quoting FTC v. Enforma Natural Prods., Inc ., 362 F.3d 1204, 1211-12 (9th Cir. 2004)). We review de novo the district court’s conclusions on issues of law, including “the district court’s decision regarding preemption and its interpretation and construction of a federal statute.” Am. Trucking Ass’ns, Inc. v. Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

Discussion

I. General Preemption Principles

[1] The federal preemption doctrine stems from the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the “fundamental principle of the Constitution [ ] that Congress has the power to preempt state law. ” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). Our analysis of a preemption claim

[M]ust be guided by two cornerstones of [the Supreme Court’s] pre-emption jurisprudence. First, the purpose of Congress is the ultimate touchstone in every pre-emption case. . . . Second, [i]n all preemption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . [courts] 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.

Wyeth v. Levine , 129 S. Ct. 1187, 1194-95 (2009) (internal quotation marks and citations omitted) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

[2] Even if Congress has not explicitly provided for preemption in a given statute, the Supreme Court “ha[s] found that state law must yield to a congressional Act in at least two

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4813

circumstances.” Crosby, 530 U.S. at 372. First, “[w]hen Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Id. (quoting California v. ARC America Corp., 490 U.S. 93, 100 (1989)). Second, “even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute. ” Id. Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Id. at 372-373. Impossibility preemption exists “where it is impossible for a private party to comply with both state and federal law.” Id. Obstacle preemption exists “where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. at 373 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) . To determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our “judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Id.2

We recently applied the facial challenge standard from United States v. Salerno, 481 U.S. 739 (1987), to a facial preemption case. Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579-80 (9th Cir. 2008) (en banc). In Sprint, the appellant argued that a federal law “preclud[ing] state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” facially preempted a San Diego ordinance that imposed specific requirements on applications for wireless facilities. Id. at 573-74. We explained in Sprint that “[t]he Supreme Court and this court have called into question the continuing validity of the Salerno rule in the context of First Amendment challenges. . . . In cases involving federal pre-

2The Supreme Court has recognized “that the categories of preemption are not “rigidly distinct.” Crosby, 530 U.S. at 372 n.6 (quoting English v. Gen. Elec., Co., 496 U.S. 72, 79 n.5 (1990)).

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UNITED STATES v. S TATE OF ARIZONA

emption of a local statute, however, the rule applies with full force.” Id. at 579, n.3. 3

[3] Thus, under Salerno, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” Sprint, 543 F.3d at 579 (quoting Salerno, 481 U.S. at 745). We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause. 4

II. Section 2(B)5

3Although we use the Salerno standard in a preemption analysis, it is not entirely clear from relevant Supreme Court cases the extent to which the Salerno doctrine applies to a facial preemption challenge. Crosby, 530 U.S. 363, and American Insurance Association v. Garamendi, 539 U.S. 396 (2003) are both facial preemption cases decided after Salerno and— on this point—are the most analogous Supreme Court cases available to guide our review here. Neither case cites Salerno nor mentions its standard in the opinions, concurrences, or dissents. Indeed, the only Supreme Court preemption case that we have found which references the Salerno standard is Anderson v. Edwards , 514 U.S. 143 (1995), which we cited in Sprint. But Edwards does not cite Salerno in the preemption section of the opinion. Rather, the Court references Salerno in the section of the Edwards opinion holding that “the California Rule does not violate any of the three federal regulations on which the Court of Appeals relied. ” 514 U.S. at 155 (emphasis added). Edwards continues on, in another section, to hold that the California regulation at issue is also not preempted by federal law; this analysis includes no mention of the Salerno standard.
4Here, we conclude that the relevant provisions of S.B. 1070 facially conflict with Congressional intent as expressed in provisions of the INA. If that were not the case, as in Sprint, we would have next considered whether the statute could be applied in a constitutional manner.
5Section 2(B) of Arizona’s law provides:

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S.B. 1070 Section 2(B) provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they “shall” make “a reasonable attempt . . . when practicable, to determine the immigration status ” of the person. Ariz. Rev. Stat. Ann. § 11-1051(B) (2010). Section 2(B)’s second and third sentences provide that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released, ” and “[t]he person’s immigration status shall be verified with the federal government.” Id. The Section’s fifth sentence states that a “person is presumed to not be an alien who is unlawfully present in the

For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or a law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town [of] this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code section 1373(c) . . . A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.
Ariz. Rev. Stat. Ann. § 11-1051(B) (2010).

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United States if the person provides ” a form of identification included in a prescribed list. 6

A. Interpretation of Section 2(B)

To review the district court’s preliminary injunction of Section 2(B), we must first determine how the Section’s sentences relate to each other. Arizona argues that Section 2(B) does not require its officers to determine the immigration status of every person who is arrested. Arizona maintains that the language in the second sentence, “[a]ny person who is arrested shall have the person’s immigration status determined,” should be read in conjunction with the first sentence requiring officers to make “a reasonable attempt . . . when practicable, to determine the immigration status ” of a person they have stopped, detained, or arrested, if there is reasonable suspicion the person is an unauthorized immigrant. That is, Arizona argues that its officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation.

On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status determined before the person is released. ” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The allencompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”

6We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent.

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In addition, Arizona’s reading creates irreconcilable confusion as to the meaning of the third and fifth sentences. The third sentence, which follows the requirement of determining status prior to an arrestee being released, provides that “[t]he person’s immigration status shall be verified with the federal government.” The fifth sentence enumerates several forms of identification that will provide a presumption that a person is lawfully documented. These two sentences must apply to different—and unrelated—status-checking requirements since one mandates contact with the federal government and a definite verification of status, while the other permits a mere unverified presumption of status, assuming the presumption is not rebutted by other facts. Arizona’s reading would give law enforcement officers conflicting direction. That is, under Arizona’s reading, if an officer arrests a person and reasonably suspects that the arrestee is undocumented, but the arrestee provides a valid Arizona driver’s license, is the officer no longer bound by the third sentence’s requirement that he or she “shall” verify the arrestee’s status with the federal government?

[4] We agree with the district court that the reasonable suspicion requirement in the first sentence does not modify the plain meaning of the second sentence. Thus, Section 2(B) requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant. Our interpretation gives effect to “arrest” in the first sentence and “arrest” in the second sentence. The first and second sentences apply to different points in the sequential process of effecting an arrest, and at some later point, releasing the arrestee. The mandate imposed in the first sentence applies at the initial stage of an encounter or arrest, which is evident by the fact that the status-checking requirement does not override an officer’s need to attend to an ongoing and immediate situation: “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determina-

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tion may hinder or obstruct an investigation. ” (emphasis
added). The mandatory directive in the second sentence
applies at the end of the process: an arrestee’s immigration status “shall . . . [be] determined before the person is released”.7

B. Preemption of Section 2(B)

As the Supreme Court recently instructed, every preemption analysis “must be guided by two cornerstones. ” Wyeth, 129 S. Ct. at 1194. The first is that “the purpose of Congress is the ultimate touchstone.” Id. The second is that a presumption against preemption applies when “Congress has legislated . . . in a field which the States have traditionally occupied.” Id. The states have not traditionally occupied the field of identifying immigration violations so we apply no presumption against preemption for Section 2(B).

We begin with “the purpose of Congress” by examining the text of 8 U.S.C. § 1357(g). In this section of the INA, titled “Performance of immigration officer functions by State officers and employees, ” Congress has instructed under what conditions state officials are permitted to assist the Executive in the enforcement of immigration laws. Congress has provided that the Attorney General “may enter into a written agreement with a State . . . pursuant to which an officer or employee of the State . . . who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or

7The dissent claims that Section 2(B) “merely requires Arizona officers to inquire into the immigration status of suspected ” undocumented immigrants; that “simply informing federal authorities of the presence of an [undocumented immigrant]. . . represents the full extent of Section 2(B)’s limited scope.” Dissent at 4873-74. Section 2(B) requires much more than mere inquires—it requires that people be detained until those inquiries are settled, and in the event of an arrest, the person may not be released until the arresting agency obtains verification of the person’s immigration status. Detention, whether intended or not, is an unavoidable consequence of Section 2(B)’s mandate.

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detention of aliens in the United States . . . may carry out such function.” 8 U.S.C. § 1357(g)(1). Subsection (g)(3) provides that “[i]n performing a function under this subsection, an officer . . . of a State . . . shall be subject to the direction and supervision of the Attorney General. ” 8 U.S.C. § 1357(g)(3). Subsection (g)(5) requires that the written agreement must specify “the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual. ” 8 U.S.C. § 1357(g)(5).

These provisions demonstrate that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General’s close supervision. Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform, as evidenced by the disjunctive “or” in subsection (g)(1)’s list of “investigation, apprehension, or detention, ” and by subsection (g)(5). An officer might be permitted to help with investigation, apprehension and detention; or, an officer might be permitted to help only with one or two of these functions. Subsection (g)(5) also evidences Congress’ intent for the Attorney General to have the discretion to make a state officer’s help with a certain function permissive or mandatory. In subsection (g)(3), Congress explicitly required that in enforcing federal immigration law, state and local officers “shall” be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.

We note that in subsection (g)(10), Congress qualified its other § 1357(g) directives:

Nothing in this subsection shall be construed to require an agreement . . . in order for any officer or employee of a State . . . (A) to communicate with the

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Attorney General regarding the immigration status of any individual . . . or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present.

8 U.S.C. § 1357(g)(10). Although this language, read alone, is broad, we must interpret Congress’ intent in adopting subsection (g)(10) in light of the rest of § 1357(g). Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify the rest of § 1357(g), which demonstrates that Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the Attorney General’s supervision. Subsection (g)(10) does not operate as a broad alternative grant of authority for state officers to systematically enforce the INA outside of the restrictions set forth in subsections (g)(1)-(9).

The inclusion of the word “removal” in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under § 1357(g) to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government. By including “removal” in § 1357(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove immigrants. Therefore, the inclusion of “removal” in the list of ways that a state may “otherwise [ ] cooperate with the Attorney General,” indicates that subsection (g)(10) does not permit states to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated by state law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officers—or such officers are confronted with the necessity—to cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are

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required for systematic and routine cooperation.8 Similarly, we interpret subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of § 1357(g).9

[5] In sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney

8In a footnote, the dissent constructs an imaginary scenario where officers in the Pima County Sheriff’s Office are confused by our holding that they must have a § 1357(g) agreement to cooperate with federal officials in immigration enforcement on a systematic and routine basis. Dissent at 4866, n.9. We trust that law enforcement officers will make good faith efforts to comply with our interpretation of federal law and will carry out their duties accordingly.
9Our interpretation of subsection (g)(10) is also supported by 8 U.S.C. § 1103(a)(10), which states that “[i]n the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service. ” If subsection (g)(10) meant that state and local officers could routinely perform the functions of DHS officers outside the supervision of the Attorney General, there would be no need for Congress to give the Attorney General the ability, in § 1103(a)(10), to declare an “actual or imminent mass influx of aliens,” and to authorize “any State or local law enforcement officer ” to perform the functions of a DHS officer.

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General—to whom Congress granted discretion in determining the precise conditions and direction of each state officer’s assistance. We find it particularly significant for the purposes of the present case that this discretion includes the Attorney General’s ability to make an individual officer’s immigrationenforcement duties permissive or mandatory. 8 U.S.C. § 1357(g)(5). Section 2(B) sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress’ explicit requirement that in the “[p]erformance of immigration officer functions by State officers and employees, ” such officers “shall be subject to the direction and supervision of the Attorney General. ” 8 U.S.C. § 1357(g)(3). Section 2(B) therefore interferes with Congress’ scheme because Arizona has assumed a role in directing its officers how to enforce the INA. We are not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General’s role in directing state enforcement of federal immigration laws.

Arizona argues that in another INA provision, “Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers, ” citing 8 U.S.C. § 1373(c). Section 1373(c) creates an obligation, on the part of the Department of Homeland Security ( “DHS”), 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.”

We agree that § 1373(c) demonstrates that Congress con-
templated state assistance in the identification of undocumented immigrants.10 We add, however, that Congress

10We also agree with the dissent that “Congress envisioned, intended, and encouraged inter-governmental cooperation between state and federal agencies, at least as to information regarding a person’s immigration sta-

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contemplated this assistance within the boundaries established in § 1357(g), not in a manner dictated by a state law that furthers a state immigration policy. Congress passed § 1373(c) at the same time that it added subsection (g) to § 1357. See Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104208, §§ 133, 642 (1996). Thus, Congress directed the appropriate federal agency to respond to state inquiries about immigration status at the same time that it authorized the Attorney General to enter into § 1357(g) agreements with states. Arizona and the dissent urge a very broad interpretation of § 1373(c): because DHS is obligated to respond to identity inquiries from state and local officers, they argue, Arizona must be permitted to direct its officers how and when to enforce federal immigration law in furtherance of the state’s own immigration policy of attrition. This interpretation would result in one provision swallowing all ten subsections of § 1357(g), among other INA sections. Our task, however, is not to identify one INA provision and conclude that its text alone holds the answer to the question before us. Rather, we must determine how the many provisions of a vastly complex statutory scheme function together. Because our task is to interpret the meaning of many INA provisions as a whole, not § 1373(c) and § 1357(g)(10) at the expense of all others, we are not persuaded by the dissent’s argument, which considers these provisions in stark isolation from the rest of the statute.11

tus.” Dissent at 4879. We are convinced, however, that this cooperation is to occur on the federal government’s terms, not on those mandated by Arizona. In light of the dissent’s extensive discussion of the word “cooperate,” we note what would seem to be fairly obvious: given that the United States has had to sue the State of Arizona to stop it from enforcing S.B. 1070, it is quite clear that Arizona is not “cooperating” with the federal government in any sense of the word. Arizona does not seek intergovernmental cooperation—it seeks to pursue its own policy of “attrition through enforcement.” S.B. 1070 § 1.
11Arizona also cites 8 U.S.C. §§ 1373(a) and 1644 in support of its argument that “Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers. ” These sections are anti-sanctuary provisions. That the federal government prohibits States from impeding the enforcement of federal immigration laws does not constitute an invitation for states to affirmatively enforce immigration laws outside Congress’ carefully constructed § 1357(g) system.

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In addition to providing the Attorney General wide discretion in the contents of each § 1357(g) agreement with a state, Congress provided the Executive with a fair amount of discretion to determine how federal officers enforce immigration law. The majority of § 1357 grants powers to DHS officers and employees to be exercised within the confines of the Attorney General’s regulations; this section contains few mandatory directives from Congress to the Attorney General or DHS. The Executive Associate Director for Management and Administration at U.S. Immigration and Customs Enforcement within DHS has explained the purpose of this Congressionally-granted discretion: “DHS exercises a large degree of discretion in determining how best to carry out its enforcement responsibilities” which “necessitates prioritization to ensure ICE expends resources most efficiently to advance the goals of protecting national security, protecting public safety, and securing the border. ”

[6] By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress’ delegation of discretion to the Executive branch in enforcing the INA. To assess the impact of this interference in our preemption analysis, we are guided by the Supreme Court’s decisions in Crosby, 530 U.S. 363, and Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). In Crosby , where the Court found that a state law was preempted because it posed an obstacle to Congress’ intent, the Court observed that “Congress clearly intended the federal Act to provide the President with flexible and effective authority, ” and that the state law’s “unyielding application undermines the President’s intended statutory authority.” 530 U.S. at 374, 377. In Buckman, the Court found that state fraud-on-the-Food And Drug Administration claims conflicted with the relevant federal statute and were preempted, in part because “flexibility is a critical component of the statutory and regulatory framework ” of the fed-

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eral law, and the preempted state claims would have disrupted that flexibility. 531 U.S. at 349. The Court observed that “[t]his flexibility is a critical component of the statutory and regulatory framework under which the FDA pursues difficult (and often competing) objectives. ” Id.

[7] In light of this guidance, Section 2(B)’s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)’s ‘unyielding ” mandatory directives to Arizona law enforcement officers “undermine[ ] the President’s intended statutory authority ” to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, of—according to ICE —”advanc[ing] the goals of protecting national security, protecting public safety, and securing the border. ” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.

In light of the above, S.B. 1070 Section 2(B) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress ” as expressed in the aforementioned INA provisions. Hines, 312 U.S. at 67. The law subverts Congress’ intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Furthermore, the mandatory nature of Section 2(B)’s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities. 8 U.S.C. § 1357(g)(3).

[8] In addition to Section 2(B) standing as an obstacle to Congress’ statutorily expressed intent, the record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States’ foreign relations, which weighs in favor

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of preemption. See generally Garamendi, 539 U.S. 396 (finding obstacle preemption where a State law impinged on the Executive’s authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated that “even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law.” 539 U.S. at 420 (emphasis added).12

[9] The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona’s law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala ; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States ; the Inter-American Commission on Human Rights; and the Union of South American Nations.

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010

12The Court’s decision in Hines, 312 U.S. 52, demonstrates that the Court has long been wary of state statutes which may interfere with foreign relations. In Hines, the Court considered whether Pennsylvania’s 1939 Alien Registration Act survived the 1940 passage of the federal Alien Registration Act. Id. at 59-60. The Court found that the Pennsylvania Act could not stand because Congress “plainly manifested a purpose . . . to leave [law-abiding immigrants] free from the possibility of inquisitorial practices and police surveillance that might . . . affect our international relations.” Id. at 74.

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U.S.-Mexico Border Governors’ Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.

In Crosby, the Supreme Court gave weight to the fact that the Assistant Secretary of State said that the state law at issue “has complicated its dealings with foreign sovereigns. ” 530 U.S. at 383-84. Similarly, the current Deputy Secretary of State, James B. Steinberg, has attested that S.B. 1070 “threatens at least three different serious harms to U.S. foreign relations.”13 In addition, the Deputy Assistant Secretary for International Policy and Acting Assistant Secretary for International Affairs at DHS has attested that Arizona’s immigration law “is affecting DHS’s ongoing efforts to secure international cooperation in carrying out its mission to safeguard America’s people, borders, and infrastructure. ” The Supreme Court’s direction about the proper use of such evidence is unambiguous: “statements of foreign powers necessarily involved[,] . . . indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act. ” Crosby, 530 U.S. at 385.14 Here, we are presented with statements attribut-

13Arizona submitted a declaration from Otto Reich, who served in previous Administrations as, among other things, the U.S. Ambassador to Venezuela, former Assistant Administrator of USAID, and the Assistant Secretary of State for Western Hemisphere Affairs. Mr. Reich currently works in the private sector, and as a result, the district court could properly give little weight to his rebuttal of Mr. Steinberg’s assertions about the impact of S.B. 1070 on current foreign affairs.
14Thus, Arizona’s extensive criticism of this court for permitting foreign governments to file Amicus Curiae briefs is misguided. These briefs are relevant to our decision-making in this case insofar as they demonstrate the factual effects of Arizona’s law on U.S. foreign affairs, an issue that the Supreme Court has directed us to consider in preemption cases.
Similarly, the dissent asserts that our reasoning grants a “heckler’s veto” to foreign ministries and argues that a “foreign nation may not cause

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able to foreign governments necessarily involved and opinions of senior United States’ officials: together, these factors persuade us that Section 2(B) thwarts the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs.

[10] Finally, the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption. In Wis. Dep’t of Indus., Labor and Human Relations v. Gould Inc. , 475 U.S. 282, 288 (1986) , where the Court found conflict preemption, the Court explained that “[e]ach additional [state] statute incrementally diminishes the [agency’s] control over enforcement of the [federal statute] and thus further detracts from the integrated scheme of regulation created by Congress. ” (internal citations

a state law to be preempted simply by complaining about the law’s effects on foreign relations generally. ” Dissent at 4880. As a preliminary matter, we disagree with the dissent’s characterization of our opinion, as we do not conclude that a foreign government’s complaints alone require preemption. Our consideration of this evidence is consistent with the Supreme Court’s concern that we not disregard or minimize the importance of such evidence. Garamendi, 539 U.S. at 419; Crosby, 530 U.S. at 385-86. Moreover, the dissent implies that S.B. 1070 is merely an internal affair, which is contrary to the Supreme Court’s opinion in Hines. In striking down the Pennsylvania 1939 Alien Registration Act, the Court stated that:
The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. “For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. ” Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.
Hines, 312 U.S. at 62 (quoting The Chinese Exclusion Cases (Chae Chan Ping v. United States) , 130 U.S. 581, 606 (1889)).

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omitted). See also Buckman, 531 U.S. at 350 (“[a]s a practical matter, complying with the [federal law’s] detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants-burdens not contemplated by Congress in enacting the [federal laws]”).

[11] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

III. Section 3

[12] S.B. 1070 Section 3 provides: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).”15 Ariz. Rev. Stat. Ann. § 13-1509(A) (2010). The penalty for violating Section 3 is a maximum fine of one hundred dollars, a maximum of twenty days in jail for a first vio-

158 U.S.C. § 1304(e) provides: “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both. ”
8 U.S.C. § 1306(a) further provides: “Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.”

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lation, and a maximum of thirty days in jail for subsequent violations. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3 “does not apply to a person who maintains authorization from the federal government to remain in the United States. ” Ariz. Rev. Stat. Ann. § 13-1509(F) (2010). Section 3 essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.

Starting with the touchstones of preemption, punishing unauthorized immigrants for their failure to comply with federal registration laws is not a field that states have “traditionally occupied.” Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted); see generally Hines , 312 U.S. 52. Therefore, we conclude that there is no presumption against preemption of Section 3.

[13] Determining Congress’ purpose, and whether Section 3 poses an obstacle to it, first requires that we evaluate the text of the federal registration requirements in 8 U.S.C. §§ 1304 and 1306. These sections create a comprehensive scheme for immigrant registration, including penalties for failure to carry one’s registration document at all times, 8 U.S.C. § 1304(e), and penalties for willful failure to register, failure to notify change of address, fraudulent statements, and counterfeiting. 8 U.S.C. § 1306 (a)-(d). These provisions include no mention of state participation in the registration scheme. By contrast, Congress provided very specific directions for state participation in 8 U.S.C. § 1357, demonstrating that it knew how to ask for help where it wanted help; it did not do so in the registration scheme.

Arizona argues that Section 3 is not preempted because Congress has “invited states to reinforce federal alien classifications.” Attempting to support this argument, Arizona cites INA sections outside the registration scheme where Congress has expressly indicated how and under what conditions states should help the federal government in immigration regulation. See 8 U.S.C. §§ 1621-25, 1324a(h)(2). The sections Arizona

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cites authorize states to limit certain immigrants’ eligibility for benefits and to impose sanctions on employers who employ unauthorized immigrants. We are not persuaded by Arizona’s argument. An authorization from one section does not—without more—carry over to other sections. Nothing in the text of the INA’s registration provisions indicates that Congress intended for states to participate in the enforcement or punishment of federal immigration registration rules.

[14] In addition, S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court’s direction: “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. ” Hines, 312 U.S. at 66-67. In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court’s language speaks in general terms about “a complete scheme of regulation,”—as to registration, documentation, and possession of proof thereof— which the INA certainly contains. Section 3’s state punishment for federal registration violations fits within the Supreme Court’s very broad description of proscribed state action in this area—which includes “complement[ing]” and “enforc[ing] additional or auxiliary regulations.”16 Id.

16We are also unpersuaded by Arizona’s contention that our decision in Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n, 410 F.3d 492 (9th Cir. 2005), permits the State to impose a requirement that is the same as the federal standard. In Air Conditioning, we considered the effect of an express preemption provision in a federal statute that regulated activity in an area “where there is no history of significant federal presence.” Id. at 494-96. Therefore, we applied a presumption against preemption which required us to give the express preemption provision “a narrow interpretation.” Id. at 496. By contrast, there is a “history of significant federal presence ” in immigration registration, so there is no presumption against preemption of Section 3. Moreover, there is no express preemption provision in the federal registration scheme for this court to interpret—narrowly or otherwise. Therefore, our decision in Air Conditioning is not relevant here.

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The Supreme Court’s more recent preemption decisions involving comprehensive federal statutory schemes also indicate that federal law preempts S.B. 1070 Section 3. In Buckman, the Supreme Court held that the Food Drug and Cosmetics Act (“FDCA”) conflict preempted a state law fraud claim against defendants who allegedly made misrepresentations to the Food and Drug Administration (“FDA”). 531 U.S. at 343. The Court explained that private parties could not assert state-fraud on the FDA claims because, “the existence of the[ ] federal enactments is a critical element in their case. ” Id. at 353. The same principle applies here to S.B. 1070 Section 3, which makes the substantive INA registration requirements “a critical element” of the state law.

By contrast, the Supreme Court found that state law claims were not preempted in Medtronic, Inc. v. Lohr , 518 U.S. 470 (1996) (holding that an express preemption provision in the federal Medical Device Amendments to the FDCA did not preclude a state common law negligence action against the manufacturer of an allegedly defective medical device), Altria Grp., Inc. v. Good , 129 S. Ct. 538 (2008) (holding that the federal Labeling Act did not expressly preempt plaintiffs’ claims under the Maine Unfair Trade Practices Act alleging that Altria’s advertising of light cigarettes was fraudulent), or Wyeth, 129 S. Ct. at 1193 (holding that the FDA’s drug labeling judgments pursuant to the FDCA did not obstacle preempt state law products liability claims). In these cases, the state laws’ “generality le[ft] them outside the category of requirements that [the federal statute] envisioned. ” Medtronic, 518 U.S. at 502. The state law claim in Medtronic was negligence, 518 U.S. at 502, the state statute in Altria was unfair business practices, 129 S. Ct. at 541, and the state law claim in Wyeth was products liability, 129 S. Ct. at 1193. All of the state laws at issue in these cases had significantly wider applications than the federal statutes that the Court found did not preempt them. Here, however, Section 3’s “generality” has no wider application than the INA.

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In addition, as detailed with respect to Section 2(B) above, S.B. 1070’s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 3.

[15] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 3 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

IV. Section 5(C)

[16] S.B. 1070 Section 5(C) provides that it “is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state. ” Ariz. Rev. Stat. Ann. § 13-2928(C) (2010). Violation of this provision is a class 1 misdemeanor, which carries a six month maximum term of imprisonment. Ariz. Rev. Stat. Ann. §§ 13-2928(F), 13-707(A)(1) (2010). Thus, Section 5(C) criminalizes unauthorized work and attempts to secure such work.

We have previously found that “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of nonpreemption applies here. ” Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, Chamber of Commerce of the U.S. v. Candelaria , 130 S. Ct. 3498 (2010). Therefore, with respect to S.B. 1070 Section 5(C), 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.” Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted) (quoting Medtronic, 518 U.S. at 485).

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Within the INA, Congress first tackled the problem of unauthorized immigrant employment in the Immigration Reform and Control Act of 1986 ( “IRCA”). We have previously reviewed IRCA’s legislative history and Congress’ decision not to criminalize unauthorized work. See Nat’l Ctr. for Immigrants’ Rights, Inc. v. I.N.S. , 913 F.2d 1350 (9th Cir. 1990), rev’d on other grounds , 502 U.S. 183 (1991). In this case, we are bound by our holding in National Center regarding Congressional intent.

[17] In National Center, we considered whether the INA, through 8 U.S.C. § 1252(a), authorized the Immigration and Naturalization Service ( “INS”) to promulgate regulations which “imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings.” Id. at 1351. To decide this question, we carefully reviewed the history of employment-related provisions in the INA’s legislative scheme—including the legislative history of the IRCA amendments. Id. at 1364-70. We concluded that “[w]hile Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals . . . Congress quite clearly was willing to deter illegal immigration by making jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in obtaining work. ”17 Id. at 136768.

[18] At oral argument, Arizona asserted that National Center does not control our analysis of Section 5(C) because it addressed the limited issue of whether the INS could require a condition against working in appearance and delivery bonds, which—according to Arizona—has no application to

17We find it particularly relevant here that during the hearings which shaped IRCA, the Executive Assistant to the INS Commissioner stated that the INS did “not expect the individual to starve in the United States while he is exhausting both the administrative and judicial roads that the [INA] gives him.” National Center, 913 F.2d at 1368.

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whether a state statute can criminalize unauthorized work. We agree that the ultimate legal question before us in National Center was distinct from the present dispute. Nonetheless, we do not believe that we can revisit our previous conclusion about Congress’ intent simply because we are considering the effect of that intent on a different legal question. See Overstreet v. United Bhd. of Carpenters and Joiners of America, Local Union No. 1506 , 409 F.3d 1199, 1205 n.8 (9th Cir. 2005) (“Ordinarily, a three-judge panel ‘may not overrule a prior decision of the court.’ ” (quoting Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)). Therefore, our decision in National Center requires us to conclude that federal law likely preempts S.B. 1070 Section 5(C), since the state law conflicts with what we have found was Congress’ IRCA intent.

[19] The text of the relevant IRCA statutory provision—8 U.S.C. § 1324a—also supports this conclusion. Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization. 18 8 U.S.C. § 1324a(b). The veri-

18In Chicanos Por La Causa, Inc. v. Napolitano , 558 F.3d 856 (9th Cir.

2009), cert. granted sub nom., Chamber of Commerce of the U.S. v.

Candelaria, 130 S. Ct. 3498 (2010), we held that IRCA did not preempt

the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq.

IRCA contains an express preemption provision, as well as a savings

clause: “The provisions of this section preempt any State or local law

imposing civil or criminal sanctions (other than through licensing and sim-

ilar laws) upon those who employ . . . unauthorized aliens. ” 8 U.S.C.

§ 1324a(h)(2). In Chicanos, we held that the Legal Arizona Workers Act

—which targets employers who hire undocumented immigrants and

revokes their state business licenses—fits within Congress’ intended

meaning of “licensing” law in IRCA’s savings clause and is therefore not

preempted. 558 F.3d at 864-66. We also held that the INA, which makes

the use of E-Verify voluntary, does not impliedly preempt Arizona from

mandating that employers use the E-Verify system.

Id. at 866-67.

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fication process includes a requirement that potential employ-

ees officially attest that they are authorized to work. 8 U.S.C.

§ 1324a(b)(2). The statute provides that the forms potential

employees use to make this attestation “may not be used for

purposes other than for enforcement of this chapter and ” 18

U.S.C. §§ 1001, 1028, 1546 and 1621.

8 U.S.C.

§ 1324a(b)(5). These sections of Title 18 criminalize know-

ingly making a fraudulent statement or writing; knowingly

making or using a false or stolen identification document;

forging or falsifying an immigration document; and commit-

ting perjury by knowingly making a false statement after tak-

ing an oath in a document or proceeding to tell the truth. This

is the exclusive punitive provision against unauthorized work-

ers in 8 U.S.C § 1324a. All other penalties in the scheme are

exacted on employers, reflecting Congress’ choice to exert the

vast majority of pressure on the employer side.

In addition, other provisions in 8 U.S.C. § 1324a provide affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work. Subsection 1324a(d)(2)(C) provides that “[a]ny personal information utilized by the [authorization verification] system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien. ” This provision would prohibit Arizona from using personal information in the verification system for the purpose of investigating or prosecuting violations of S.B. 1070 Section 5(C). Subsection 1324a(d)(2)(F) provides in even clearer language that “[t]he [verification] system may not be used for law enforcement purposes, other than for enforcement of this chapter or” the aforementioned Title 18 fraud sections.

Although Chicanos and the present case both broadly concern the preemptive effect of IRCA, the specific issues in these cases do not overlap. The scope of “licensing” law in the savings clause of the express preemption provision in IRCA has no bearing on whether IRCA impliedly preempts Arizona from enacting sanctions against undocumented workers.

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Subsection 1324a(g)(1) demonstrates Congress’ intent to protect unauthorized immigrant workers from financial exploitation—a burden less severe than incarceration. This section provides that “[i]t is unlawful for a person or other entity, in the hiring . . . of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring . . . of the individual. ” Subsection 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). The penalty for a violation is “$1,000 for each violation ” and “an administrative order requiring the return of any amounts received . . . to the employee or, if the employee cannot be located, to the general fund of the Treasury. ” 8 U.S.C. § 1324a(g)(2). Here, Congress could have required that employers repay only authorized workers from whom they extracted a financial bond. Instead, Congress required employers to repay any employee —including undocumented employees. Where Congress did not require undocumented workers to forfeit their bonds, we do not believe Congress would sanction the criminalization of work.

We therefore conclude that the text of 8 U.S.C. § 1324a, combined with legislative history demonstrating Congress’ affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress’ clear and manifest purpose to supercede state authority in this context. We are further guided by the Supreme Court’s decision in Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp. , 485 U.S. 495 (1988). There, the Court explained:

[D]eliberate federal inaction could always imply preemption, which cannot be. There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive

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federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn—not from federal inaction alone, but from inaction joined with action.

Id. at 503. Given the facts in Isla, the Court could not draw this preemptive inference because “Congress ha[d] withdrawn from all substantial involvement in petroleum allocation and price regulation.” Id. at 504.

The present case, however, presents facts likely to support the kind of preemptive inference that the Supreme Court endorsed, but did not find, in Isla. Here, Congress’ inaction in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers, justifies a preemptive inference that Congress intended to prohibit states from criminalizing work. Far from the situation in Isla, Congress has not “withdrawn all substantial involvement ” in preventing unauthorized immigrants from working in the United States. It has simply chosen to do so in a way that purposefully leaves part of the field unregulated.

We are also guided by the Supreme Court’s recognition, even before IRCA, that a “primary purpose in restricting immigration is to preserve jobs for American workers. ” SureTan, Inc. v. NLRB , 467 U.S. 883, 893 (1984). As Arizona states, “Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States.” The Supreme Court has cautioned, however, that “conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy. ” Gould, 475 U.S. at 286 (quoting Motor Coach Emps. v. Lockridge , 403 U.S. 274, 287 (1971)). In Crosby, the Court explained that “a common end hardly neutralizes conflicting means. ” 530 U.S. at 379-80. Similarly, in Garamendi, the Court explained that a state law was preempted because “[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves.” 539 U.S. at 427. The

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problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that “[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force. ” Crosby, 530 U.S. at 380.

In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem. Therefore, Arizona’s assertion that this provision “furthers the strong federal policy ” does not advance its argument against preemption. Sharing a goal with the United States does not permit Arizona to “pull[ ] levers of influence that the federal Act does not reach. ” Crosby, 530 U.S. at 376. By pulling the lever of criminalizing work—which Congress specifically chose not to pull in the INA—Section 5(C) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67. It is therefore likely that federal law preempts Section 5(C).

In addition, as detailed with respect to Section 2(B) above, S.B. 1070’s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 5(C).

[20] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

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V. Section 6

S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (2010).

[21] We first address the meaning of this Section. S.B. 1070 Section 6 added only subsection 5 to Ariz. Rev. Stat. Ann. § 13-3883(A), which authorizes warrantless arrests. Section 13-3883(A) already allowed for warrantless arrests for felonies, misdemeanors, petty offenses, and certain trafficrelated criminal violations. Therefore, to comply with Arizona case law that “[e]ach word, phrase, clause, and sentence . . . must be given meaning so that no part will be void, inert, redundant, or trivial, ” Williams v. Thude , 934 P.2d 1349, 1351 (Ariz. 1997) (internal quotations omitted), we conclude, as the district court did, that Section 6 “provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States.” 703 F. Supp. 2d at 1005 (emphasis in original). Section 6 also allows for warrantless arrests when there is probable cause to believe that an individual committed a removable offense in Arizona, served his or her time for the criminal conduct, and was released; and when there is probable cause to believe that an individual was arrested for a removable offense but was not prosecuted.

19Arizona law defines “public offense” as “conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.” Ariz. Rev. Stat. Ann. § 13-105(26) (2009).

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Thus, the question we must decide is whether federal law likely preempts Arizona from allowing its officers to effect warrantless arrests based on probable cause of removability. Because arresting immigrants for civil immigration violations is not a “field which the States have traditionally occupied, ” we do not start with a presumption against preemption of Section 6. Wyeth, 129 S. Ct. at 1194.

[22] We first turn to whether Section 6 is consistent with Congressional intent. As authorized by 8 U.S.C. § 1252c, state and local officers may, “to the extent permitted by relevant State . . . law, ” arrest and detain an individual who:

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.

8 U.S.C. § 1252c (emphasis added). Nothing in this provision permits warrantless arrests, and the authority is conditioned on compliance with a mandatory obligation to confirm an individual’s status with the federal government prior to arrest. Moreover, this provision only confers state or local arrest authority where the immigrant has been convicted of a felony. Section 6, by contrast, permits warrantless arrests if there is probable cause that a person has “committed any public offense that makes the person removable.” Misdemeanors, not just felonies, can result in removablility. See generally Fernandez-Ruiz v. Gonzales , 466 F.3d 1121 (9th Cir. 2006) (en banc). Thus, Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted in Section 1252c. 20 Moreover, none of the circumstances

20Arizona argues that we should “construe[ ] section 6 so as to require officers to confirm with federal authorities that an alien has committed a

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in which Congress has permitted federal DHS officers to arrest immigrants without a warrant are as broad as Section 6. Absent a federal officer actually viewing an immigration violation, warrantless arrests under 8 U.S.C. § 1357(a) require a likelihood that the immigrant will escape before a warrant can be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6 contains no such requirement and we are not aware of any INA provision indicating that Congress intended state and local law enforcement officers to enjoy greater authority to effectuate a warrantless arrest than federal immigration officials.

Thus, Section 6 significantly expands the circumstances in which Congress has allowed state and local officers to arrest immigrants. Federal law does not allow these officers to conduct warrantless arrests based on probable cause of civil removability, but Section 6 does. Therefore, Section 6 interferes with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted. Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State’s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition.

public offense that makes the alien removable before making a warrantless

arrest under section 6. ” Even if we interpreted Section 6 as Arizona sug-

gests, the provision would still permit more intrusive state arrests than

Congress has sanctioned, because it permits arrests on the basis of misde-

meanor removability, which Congress has not provided for in 8 U.S.C.

§ 1252c. Further, even if a law enforcement officer confirmed with the

federal government that an individual had been convicted of murder—a

felony that would clearly result in removability,

see 8 U.S.C.

§ 1227(a)(2)(A)(iii)—Section 6 would still expand the scope of § 1252c

by permitting warrantless arrests.

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[23] We have previously suggested that states do not have the inherent authority to enforce the civil provisions of federal immigration law. In Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983), overruled on other grounds by HodgersDurgin v. de la Vina , 199 F.3d 1037 (9th Cir. 1999), we held that “federal law does not preclude local enforcement of the criminal provisions of the [INA]. ” (Emphasis added). There, we “assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.” Id. at 474-75 (emphasis added). We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law—we now hold that states do not have such inherent authority.21

The Sixth Circuit has come to the same conclusion. United States v. Urrieta , 520 F.3d 569 (6th Cir. 2008). 22 In Urrieta,

21The dissent argues that “the Supreme Court explicitly recognized—in one of our California cases—that state police officers have authority to question a suspect regarding his or her immigration status. ” Dissent at 4887 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). The dissent mischaracterizes the issue in Mena and the facts of the case in order to make it appear relevant to the case before us now. The Court explained that “[a]s the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status. ” Id. at 101. In summarizing the facts of the case, the Court explained that, “[a]ware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. ” Id. at 96. Thus, contrary to the dissent’s contention, Mena did not recognize that state officers can enforce federal civil immigration law with no federal supervision or involvement.
22The dissent’s characterization of our discussion of Urrieta is inaccurate. See Dissent at 4884-85. We do not “rely” on Urrieta to conclude that

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the court explained that “[i]n its response to Urrieta’s motion to suppress evidence, the government originally argued that Urrieta’s extended detention was justified on the grounds that . . . [county] Deputy Young had reason to suspect that Urrieta was an undocumented immigrant. The government withdrew th[is] argument, however, after conceding that [it] misstated the law.” Id. at 574. The Sixth Circuit cited 8 U.S.C. § 1357(g), which it summarized as “stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions.” Id. Therefore, the court required that “[t]o justify Urrieta’s extended detention [ ] the government must point to specific facts demonstrating that Deputy Young had a reasonable suspicion that Urrieta was engaged in some nonimmigration-related illegal activity.” Id.

states do not have the inherent authority to enforce the civil provisions of federal immigration law. We cite this case in laying out the existing legal landscape on this issue.
In addition, the dissent states that we “ignore clear Supreme Court precedent” in concluding states do not possess this inherent authority. Dissent at 4886. The dissent cites three Supreme Court cases dealing with state officers enforcing federal criminal laws. These cases are inapposite, as Section 6 concerns state enforcement of federal civil immigration laws. Although the dissent conflates federal criminal and civil immigration laws in this matter, this court has long recognized the distinction. See MartinezMedina v. Holder , ___ F.3d ___, 2011 WL 855791 *6 (9th Cir. 2011) (“Nor is there any other federal criminal statute making unlawful presence in the United States, alone, a federal crime, although an alien’s willful failure to register his presence in the United States when required to do so is a crime . . . and other criminal statutes may be applicable in a particular circumstance. Therefore, Gonzales’s observation that ‘an alien who is illegally present in the United States . . . [commits] only a civil violation,’ and its holding that an alien’s ‘admission of illegal presence . . . does not, without more, provide probable cause of the criminal violation of illegal entry,’ always were, and remain, the law of the circuit, binding on law enforcement officers.”) (quoting Gonzales, 722 F.2d at 476-77 (9th Cir. 1983).

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We recognize that our view conflicts with the Tenth Circuit’s. See United States v. Vasquez-Alvarez , 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant’s “arrest was based solely on the fact that Vasquez was an illegal alien.” Id. at 1295. The arrest did not comply with the requirements of 8 U.S.C. § 1252c, and the defendant argued that the evidence found as a result of that arrest should be suppressed. The Tenth Circuit disagreed, holding that § 1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal laws, including immigration laws.” Id. at 1295. The Tenth Circuit based its conclusion on “§ 1252c’s legislative history and [ ] subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws.” Id. at 1299. The legislative history to which the court refers consists of the comments of § 1252c’s sponsor, Representative Doolittle. As the court recounts, Doolittle stated:

With such a threat to our public safety posed by criminal aliens, one would think that we would give law enforcement all the tools it needs to remove these criminals from our streets, but unfortunately just the opposite is true. In fact, the Federal Government has tied the hands of our State and local law enforcement officials by actually prohibiting them from doing their job of protecting public safety. I was dismayed to learn that the current Federal law prohibits State and local law enforcement officials from arresting and detaining criminal aliens whom they encountered through their routine duties

. ..

My amendment would also permit State and local law enforcement officials to assist the INS by grant-

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ing them the authority in their normal course of duty to arrest and detain criminal aliens until the INS can properly take them into Federal custody.

. ..

My amendment is supported by our local law enforcement because they know that fighting illegal immigration can no longer be left solely to Federal agencies. Let us untie the hands of those we ask to protect us and include my amendment in H.R. 2703 today.

Id. at 1298 (citing 142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle)). Interpreting these comments, the Tenth Circuit stated: “As discussed at length above, § 1252c’s legislative history demonstrates that the purpose of the provision was to eliminate perceived federal limitations . . . There is simply no indication whatsoever in the legislative history to § 1252c that Congress intended to displace preexisting state or local authority to arrest individuals violating federal immigration laws.” Id. at 1299-1300.23

The Tenth Circuit’s interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit’s conclusion is nonsensical: we perceive no reason why Congress would display an intent “to displace preexisting . . . authority” when its purpose in passing the law

23The dissent alleges that we have improperly focused on a single Representative’s comment in assessing the meaning of § 1252c. Dissent at 4889-90. The dissent argues that we ought to follow the Tenth Circuit’s example in Vasquez-Alvarez and hold that § 1252c has no preemptive effect on a state’s inherent ability to enforce the civil provisions of federal immigration law. Dissent at 4889-91. We note that the Tenth Circuit went to great lengths assessing and relying on the very legislative history that the dissent now chastises us for evaluating.

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was to grant authority it believed was otherwise lacking. Id. at 1300.

Vasquez-Alvarez also cited “subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws” in support of its conclusion that § 1252c does not prevent state officers from making civil immigrationbased arrests pursuant to state law. Id. at 1299. The court noted that “in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws. ” Id. at 1300 (citing § 1357(g)). The court interpreted § 1357(g)(10) to mean that “formal agreement [pursuant to § 1357(g) (1)-(9)] is not necessary for state and local officers ‘to cooperate with the Attorney General in identification, apprehension, detention, or removal of aliens.’ ” Id. at 1300 (quoting 8 U.S.C. § 1357(g)(10)(B)). To reason that the enactment of § 1357(g) means that Congress did not intend to limit state and local officers’ alleged inherent authority to make civil immigration arrests in § 1252c, requires a broad reading of § 1357(g)(10); we explain above in II.B. the reasons why we reject such a broad reading of this provision.

Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. § 1357(g)—and § 1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws. 24

24The U.S. Department of Justice’s Office of Legal Counsel ( “OLC”) issued a memorandum in 2002—at which time OLC was headed by then Associate Attorney General Jay C. Bybee, now a United States Circuit Judge, as Arizona emphasizes—concluding that (1) the authority to arrest for violation of federal law inheres in the states, subject only to preemption by federal law; (2) a 1996 OLC memo incorrectly concluded that state

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[24] In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law. Therefore, Arizona must be federallyauthorized to conduct such enforcement. Congress has created a comprehensive and carefully calibrated scheme—and has authorized the Executive to promulgate extensive regulations —for adjudicating and enforcing civil removability. S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress.

police lack the authority to arrest immigrants on the basis of civil deportability; and (3) 8 U.S.C. § 1252c does not preempt state arrest authority. To conclude that § 1252c does not preempt inherent state arrest authority, the OLC memo relies entirely on the Tenth Circuit’s decision in VasquezAlvarez—the logic of which we have already rejected.
The dissent quotes from the 2002 OLC memo in claiming that § 1252c is not made superfluous by interpreting it to have no preemptive effect. Dissent at 4893. We are neither persuaded, nor bound by the arguments in this memo. It is an axiomatic separation of powers principle that legal opinions of Executive lawyers are not binding on federal courts. The OLC memo itself demonstrates why this is: the OLC’s conclusion about the issue in the 2002 memo was different in 1996 under the direction of President Clinton, and was different in 1989, under the direction of President George H.W. Bush.
The dissent also claims that “Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power.” Dissent at 4893. The dissent cites language from the Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance, stating, “An Act to reaffirm the reference to one Nation under God.” Pub. L. No. 107-293 (2002). The dissent’s argument is unavailing, as § 1252c contains no reference to anything remotely related to a “reaffirmation” of a state’s alleged inherent authority to enforce the civil provisions of federal immigration law.

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In addition, as detailed with respect to Section 2(B) above, S.B. 1070’s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 6.

[25] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

VI. Equitable Factors

Once a party moving for a preliminary injunction has demonstrated that it is likely to succeed on the merits, courts must consider whether the party will suffer irreparable harm absent injunctive relief, and whether the balance of the equities and the public interest favor granting an injunction. Winter v. Natural Res. Def. Council Inc., 129 S. Ct. 365, 374 (2008).

We have “stated that an alleged constitutional infringement will often alone constitute irreparable harm. ” Assoc. Gen. Contractors v. Coal. For Econ. Equity , 950 F.2d 1401, 1412 (9th Cir. 1991) (internal quotation marks omitted). We have found that “it is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available . . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount. ” Cal. Pharmacists Ass’n v. Maxwell-Jolly , 563 F.3d 847, 852-53 (9th Cir. 2009) (emphasis added); see also Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 559 F.3d 1046, 1059-60 (9th Cir. 2009) (recognizing that the balance of equities and the public interest weighed in favor of granting a preliminary injunction against a likely-preempted local ordinance).

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[26] Accordingly, we find that as to the S.B. 1070 Sections on which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest.

Conclusion

For the foregoing reasons, we AFFIRM the preliminary injunction enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6.

AFFIRMED; REMANDED.

NOONAN, Circuit Judge, concurring:
I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.
Consideration of the constitutionality of the statute begins with Section 1 of the law, which in entirety, reads as follows:
Sec. 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

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This section of the act constitutes an authoritative statement of the legislative purpose. The purpose is “attrition,” a noun which is unmodified but which can only refer to the attrition of the population of immigrants unlawfully in the state. The purpose is to be accomplished by “enforcement,” also unmodified but in context referring to enforcement of law by the agencies of Arizona. The provisions of the act are “intended to work together.” Working together, the sections of the statute are meant “to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. ”

It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States. The presence of these persons is to be discouraged and deterred. Their number is to be diminished. Without qualification, Arizona establishes its policy on immigration.

As Section 1 requires, each section of the statute must be read with its stated purpose in mind. Section 2 might, in isolation from Section 1, be read as requiring information only. Such a reading would ignore the intent established in Section 1, to secure attrition through enforcement. As the United States observes, Arizona already had the capability of obtaining information on immigrants by consulting the federal database maintained by the federal government. Section 2 of the statute provides for more — for the detention of immigrants to achieve the purpose of the statute. Section 2 is not intended as a means of acquiring information. It is intended to work with the other provisions of the act to achieve enforcement.

As the opinion of the court makes clear, Sections 3, 5 and 6 are unconstitutional. Section 2 is equally unconstitutional in its function as their support.

Section 1’s profession of “cooperative” enforcement of federal immigration laws does not alter Arizona’s enactment of

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its own immigration policy distinct from the immigration policy and the broader foreign policy of the United States.

Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.

That immigration policy is a subset of foreign policy follows from its subject: the admission, regulation and control of foreigners within the United States. By its subject, immigration policy determines the domestication of aliens as American citizens. It affects the nation’s interactions with foreign populations and foreign nations. It affects the travel of foreigners here and the trade conducted by foreigners here. It equally and reciprocally bears on the travel and trade of Americans abroad. As the declarations of several countries or governmental bodies demonstrate in this case, what is done to foreigners here has a bearing on how Americans will be regarded and treated abroad.

That the movement of the people of one nation into the boundaries of another nation is a matter of national security is scarcely a doubtful or debatable matter. Almost everyone is familiar with how the movement of the Angles and the Saxons into Roman Britain transformed that country. The situation of the United States is less precarious. Nonetheless, an estimated 10.8 million foreigners have illegally taken up residence in our country. U.S. Dept. of Homeland Sec., Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010 at 2. True, at the maximum, their number is less than 4% of our population. They are not about to outnumber our citizens. Still, in individual towns and areas those illegally present can be a substantial presence. In the state of Arizona, their esti-

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mated number is 470,000, or seven percent of the population of the state. Id. at 4.

The local impact appears to call for local response. Yet ineluctably the issue is national. The people of other nations are entering our nation and settling within its borders contrary to our nation’s stated requirements. We must deal with people of other nations and so must deal with other nations. The problems are local but our whole nation is affected. Reasonably, the nation has made enforcement of criminal sanctions against aliens criminally present in the United States the top priority of the federal government. United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2009 at 1.

Against this background, the following propositions are clear:

The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.

Federal foreign policy is determined by Congress when Congress exercises the power to declare war conferred upon it by Article I, Section 8 of the Constitution. Foreign policy is also determined by the Senate when it exercises the power to ratify a treaty, the power conferred upon it by Article II, Section 2. Congress also determines foreign policy when it lays excise taxes upon foreign imports under Article I, Section 8. Congress further determines foreign policy when it authorizes sanctions against a nation, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).

The foreign policy of the nation consists in more than a declaration of war, the making of a treaty, the imposition of

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a tax, and the imposition of sanctions. The foreign policy of the nation is also established by acts of executive power — among others, executive agreements with foreign nations; the appointment of ambassadors to foreign nations; the exchange of information with foreign governments; the encouragement of trade with foreign countries; and the facilitation of the travel abroad of Americans and of travel within the United States by foreigners. In these several ways a federal foreign policy is forged that is as palpable and durable as that expressed by a particular act of legislation or by the ratification of a particular treaty.

Less than eight years ago the Supreme Court reviewed and reaffirmed the position of the Executive Branch in forming foreign policy preemptive of legislation by a state. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). Strong humanitarian considerations supported California’s legislation to provide a remedy against insurance companies that had profited from the Nazi treatment of Jewish victims of the Holocaust. Recognizing that “the iron fist ” of California might be more effective than the gentler approach taken by the Executive Branch, the Supreme Court assembled cases showing the President’s “unique responsibility” for the conduct of foreign policy. Id. at 415. Noting that no express text in the Constitution conferred this authority, the Court quoted both Hamilton and Madison in The Federalist on the structure of the nation being designed. Structure was stronger than text. The Supreme Court demonstrated that strength in an unbroken line of decisions acknowledging presidential leadership in foreign affairs. Id. at 413-415. Presidential power to preempt states from acting in matters of foreign policy is beyond question.

To take one example from our relations to our nearest neighbor to the South, it is an expression of federal foreign policy that the State Department issues passports by whose use approximately twenty million American citizens enter Mexico annually, while the State Department annually issues approximately one million visas which enable citizens of

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Mexico to enter this country. U.S. Dep’t of Commerce, Int’l Trade Admin., 2009 United States Resident Travel Abroad 3 (2010); U.S. Dep’t of State, Report of the Visa Office 2010 at Table XVII (2011).

The foreign policy of the United States is further established by trade agreements made between this country and Mexico manifesting the desire to permit the importation of a variety of goods from Mexico and the desire to export goods from the United States into Mexico.

An objective assessment of the foreign policy of the United States toward Mexico would pronounce that policy to be one of cordiality, friendship and cooperation. The tangible expression of this policy is the export of $14.8 billion in goods in January 2011 and the importation of $19.7 billion in goods from Mexico in the same month. News Release, U.S. Census Bureau, U.S. Bureau of Economic Analysis, U.S. Int’l Trade in Goods and Services 16 (March 10, 2011).

Understandably, the United States finds such a policy preemptive of a single state’s uninvited effort to enter the field of immigration law.

The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute.

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BEA, Circuit Judge, concurring in part and dissenting in part:

I quite agree with the majority that “[t]he purpose of Congress is the ultimate touchstone ” in determining whether Arizona’s S.B. 1070 is preempted under the Supremacy Clause. Retail Clerks v. Schermerhorn , 375 U.S. 96, 103 (1963). Thus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law. It is Congress’s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country.

By its very enactment of statutes, Congress has provided important roles for state and local officials to play in the enforcement of federal immigration law. First, the states are free, even without an explicit agreement with the federal government, “to communicate with the Attorney General regarding the immigration status of any individual. ” 8 U.S.C. § 1357(g)(10)(A). Second, to emphasize the importance of a state’s involvement in determining the immigration status of an individual, Congress has commanded that federal authorities “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. ” Id. § 1373(c) (emphasis added). Third, putting to one side communications from and responses to a state regarding an individual’s immigration status, no agreement with the federal government is necessary for states “otherwise [than through communications regarding an individual’s immigration status] to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Id. § 1357(g)(10)(B). Finally, Congress has even provided that state officers are authorized to arrest and

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detain certain illegal aliens. Id. § 1252c. Recognizing the important role of states in enforcing immigration law, the record shows that the federal government has welcomed efforts by New Jersey 1 and Rhode Island, 2 efforts which Arizona attempts to mirror with S.B. 1070. The record is bereft of any evidence that New Jersey’s or Rhode Island’s efforts have in any way interfered with federal immigration enforcement. To the contrary, the federal government embraced such programs and increased the number of removal officers to handle the increased workload.

Nonetheless, the United States has here challenged Arizona S.B. 1070 before it went into effect and, thus, made a facial challenge to the legislation. “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. ” United States v. Salerno , 481 U.S. 739, 745 (1987). As the Supreme Court stated:

1In August 2007, the attorney general of New Jersey issued a directive which stated:
When a local, county, or State law enforcement officer makes an arrest for any indictable crime, or for driving while intoxicated, the arresting officer or a designated officer, as part of the booking process, shall inquire about the arrestee’s citizenship, nationality and immigration status. If the officer has reason to believe that the person may not be lawfully present in the United States, the officer shall notify [ICE] during the arrest booking process.
Anne Milgram, Attorney General Law Enforcement Directive No. 2007-3. 2Rhode Island Executive Order 08-01, “Illegal Immigration Control
Order,” issued March 27, 2008, states at paragraph 6:
It is urged that all law enforcement officials, including state and local law enforcement agencies take steps to support the enforcement of federal immigration laws by investigating and determining the immigration status of all non-citizens taken into custody, incarcerated, or under investigation for any crime and notifying federal authorities of all illegal immigrants discovered as a result of such investigations.

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In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases. . . . Exercising judicial restraint in a facial challenge frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.

Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449-50 (2008). Further:

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Id. at 450-51 (internal quotation marks and citations omitted).3

3“While some Members of the [Supreme] Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a ‘plainly legitimate sweep.’ ” Wash. State Grange , 552 U.S. at 449 (quoting Wash. v. Glucksberg , 521 U.S. 702, 739-40 & n.7 (Stevens, J., concurring in judgments)). The high facial challenge standard was reaffirmed just last term. See United States v. Stevens , 130 S. Ct. 1577, 1587 (2010).

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Our task, then, is—or should be—to examine the Arizona legislation and relevant federal statutes to determine whether, under the United States’ facial challenge, S.B. 1070 has applications that do not conflict with Congress’s intent. I respectfully dissent from the majority opinion as to Sections 2(B) (entitled “Cooperation and assistance in enforcement of immigration laws; indemnification ”) and 6 (entitled “Arrest by officer without warrant ”), finding their reasoning as to Congress’s intent without support in the relevant statutes and case law. As to Sections 3 and 5(C), I concur in the result and the majority of the reasoning, although I dissent to the portion of the majority’s reasoning which allows complaining foreign countries to preempt a state law. I address S.B. 1070’s sections in numerical order, as the majority did.

I. Section 2(B)

I dissent from the majority’s determination that Section 2(B) of Arizona S.B. 1070 4 is preempted by federal law and

4Section 2(B) of S.B. 1070 provides in relevant part:
For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or a law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code section 1373(c) . . . A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.

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therefore is unconstitutional on its face. As I see it, Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens, see 8 U.S.C. § 1373(c), and in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States, ” 8 U.S.C. § 1357(g)(10)(B). The majority comes to a different conclusion by minimizing the importance of § 1373(c) and by interpreting § 1357(g)(10) precisely to invert its plain meaning “Nothing in this subsection shall be construed to require an agreement . . . to communicate with the Attorney General regarding the immigration status of any individual” (emphasis added) to become “Everything in this subsection shall be construed to require an agreement.”5 Further, the majority mischaracterizes the limited

3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.
Ariz. Rev. Stat. Ann. § 11-1051(B) (2010). 5The majority has apparently mastered its Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t— till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument,’ ” Alice objected.
“When I use a word, ” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is, ” said Alice, “whether you can make words mean so many different things. ”
“The question is,” said Humpty Dumpty, “which is to be master —that’s all.”

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scope of Section 2(B), misinterprets the Supreme Court’s cases on foreign relations preemption to allow any complaining foreign country to preempt a state law, and holds that the prospect of all 50 states assisting the federal government in identifying illegal aliens is—to Congress—an unwanted burden. I discuss each one of these errors in turn below.

The district court found that Section 2(B) resulted in an unconstitutional invasion of the province of federal immigration law for a variety of reasons. But there seems little point to examine and rebut the district court’s findings, because the majority opinion does not adopt any of them. 6 Rather, the

Lewis Carroll, Through the Looking Glass and What Alice Found There , in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner ed., Norton Publishers) (2000).
I am disappointed the majority does not take Lewis Carroll’s humorous example of word traducing seriously to explain how the majority’s use of “nothing” in 8 U.S.C. § 1357(g)(10) could be made to mean “everything.”
‘Twas the saying of an ancient sage that humour was the only test of gravity, and gravity of humour. For a subject which would not bear raillery was suspicious; and a jest which would not bear a serious examination was certainly false wit.
Anthony Cooper, Earl of Shaftesbury, Essay on the Freedom of Wit and Humour, sec. 5 (1709).
However, it is not accurate to imply that recourse to the estimable Humpty-Dumpty is to slip the bounds of judicial argument. A quick Westlaw search shows six mentions in Supreme Court opinions of Humpty Dumpty’s views as to how the meanings of words can be changed, and another dozen in this court—including one case in which the author of the majority here concurred. See Scribner v. Worldcom, Inc. , 249 F.3d 902 (9th Cir. 2001).
6It is curious the majority opinion spends as much time as it does interpreting the language of Section 2(B) to be a mandate of immigration status checks of every arrestee, regardless whether there is reasonable suspicion he is an illegal alien—contrary to Arizona’s interpretation of its own statute. Maj. Op. at 4816-18. That interpretation was used by the district court to conclude state actions would result in invasion of the federal province

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majority opinion rests its case solely on its inverted reading of § 1357(g), which prescribes the process by which Congress intended state officers to play a role in the enforcement of federal immigration laws.

A. 8 U.S.C. § 1373(c)

As noted above, Congress has clearly stated its intention to have state and local agents assist in the enforcement of federal immigration law, at least as to the identification of illegal aliens, in two federal code sections. First is 8 U.S.C. § 1373(c), which reads:

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.

of immigration enforcement, by over-burdening federal immigration status checking resources. The majority adopts the district court’s statutory analysis of Section 2(B)—violating a slew of canons of statutory construction along the way—but fails to arrive at the district court’s findings, findings thought necessary by the district court to conclude Section 2(B) was preempted. The district court incorrectly analyzed the Arizona statute to make its incorrect point that immigration inquiries will overburden federal resources. But at least it made a point. The majority trudges the same analytical trail, but goes nowhere. It rather gives the impression that a portion of the majority opinion has been left at the printer.
Of course, it is awkward indeed to argue that immigration status inquiries by state officials can “overburden” federal officials when 8 U.S.C. § 1373(c) reads so plainly ( “The Immigration and Naturalization Service shall respond . . . . ” (emphasis added)). Had Congress wanted to give federal immigration officers discretion as to whether to answer such inquiries, it could have used “may” rather than “shall,” as it does in 8 U.S.C. § 1357(g)(1) regarding federal officials’ discretion to enter into written agreements with the states regarding enforcement of immigration laws.

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8 U.S.C. § 1373(c). The title of § 1373(c) is “Obligation to respond to inquiries. ” Thus, § 1373(c) requires that United States Immigration and Customs Enforcement ( “ICE”)7 respond to an inquiry by any federal, state, or local agency seeking the immigration status of any person. The Report of the Senate Judiciary Committee accompanying the Senate Bill explained that the “acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act.” S. Rep. No. 104-249, at 19-20 (1996) (emphasis added).

Section 1373(c) does not limit the number of inquiries that state officials can make, limit the circumstances under which a state official may inquire, nor allow federal officials to limit their responses to the state officials.8 Indeed, as established by

7The statute has not been amended to reflect that the Immigration and Naturalization Service ceased to exist in 2003. ICE, an agency within the Department of Homeland Security, now performs the immigration-related functions.
8Another example of federal authorization for state inquiries into an alien’s immigration status is 8 U.S.C. § 1644, part of the 1996 Welfare Reform Act. This section states “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States. ” 8 U.S.C. § 1644. The House Conference Report accompanying the Welfare Reform Act explained: “The conferees intend to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens . . . . The conferees believe that immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and that illegal aliens do not have the right to remain in the United States undetected and unapprehended.” H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996 U.S.C.C.A.N. 2183, 2649, 2771. The title and placement of the statute seems to have more to do with helping states administer benefits than to achieve removals of illegal aliens. But the statute does reflect Congress’s repeatedly stated intention to provide for the free flow of immigration status information between the states and the federal immigration establishment.

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the declaration of the United States’ own Unit Chief for the Law Enforcement Support Center ( “LESC”), the LESC was established “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis.” Section 1373(c) demonstrates Congress’s clear intent for state police officials to communicate with federal immigration officials in the first step of immigration enforcement—identification of illegal aliens.

The majority misstates my interpretation of § 1373(c)’s scope. Neither I, nor Arizona, claim § 1373(c) allows Arizona to pursue its “own immigration policy. ” Maj. Op. at 4823. Instead, § 1373(c) demonstrates Congress’s intent for Arizona to help enforce Congress’s immigration policy, but in a way with which the Executive cannot interfere. Congress has required that the federal government respond to state and local inquires into a person’s immigration status, 8 U.S.C. § 1373(c), which allows states to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of [illegal] aliens, ” id. § 1357(g)(10)(B).

B. 8 U.S.C. § 1357(g)

The second federal code section which states Congress’s intention to have state authorities assist in identifying illegal aliens is 8 U.S.C. § 1357(g), entitled “Performance of immigration officer functions by State officers and employees. ” Subsections (g)(1)-(9) provide the precise conditions under which the Attorney General may “deputize” state police officers (creating, in the vernacular of the immigration field, “287(g) officers”) for immigration enforcement pursuant to an explicit written agreement. For example, § 1357(g)(1) defines the scope of any such agreement, § 1357(g)(3) provides that the Attorney General shall direct and supervise the deputized officers, § 1357(g)(6) prohibits the Attorney General from deputizing state officers if a federal employee would be displaced, and § 1357(g)(7)-(8) describe the state officers’ liability and immunity. Section 1357(g)(9) clarifies that no state or

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locality shall be required to enter into such an agreement with the Attorney General. Finally, § 1357(g)(10) explains what happens if no such agreement is entered into: it recognizes the validity of certain conduct by state and local officers, and explicitly excepts such conduct from a requirement there be a written agreement between the state and federal authorities:

Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

8 U.S.C. § 1357(g)(10).

The majority’s error is to read § 1357(g)(1)-(9), which provides the precise conditions under which the Attorney General may enter into written agreements to “deputize” officers, as the exclusive authority which Congress intended state officials to have in the field of immigration enforcement. That reading is made somewhat awkward in view of § 1357(g)(10), which explicitly carves out certain immigration activities by state and local officials as not requiring a written agreement. But, the majority opinion reasons that since state officials cannot themselves remove illegal aliens, the natural reading of § 1357(g)(10) is that state officials cannot act at all in immigration enforcement matters, absent an explicit written agreement, unless:

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1. They are “called upon” by the Attorney General; OR

2. There is a “necessity”; AND

3. Such cooperation is “incidental,” rather than “systematic and routine.”

Maj. Op. at 4820-21. I concede the majority’s insertion of the quoted terms into § 1357(g)(10) is quite original, which perhaps explains why no legal basis is cited for any of it. Neither does the majority opinion give us any clue from statute, regulations, or case authority as to the genesis of the key conditioning phrases “calls upon,” “necessity,” “routine,” or “systematic,” which—in their opinion— would legitimate agreement-less state intervention. Needless to say, anyone who actually reads § 1357(g)(10) will observe that none of the quoted words appear in that statute, nor indeed in any part of the Immigration and Naturalization Act ( “INA”).9 8 U.S.C.

9We strive to read Congress’s enactments in a reasonable manner. Am. Tobacco Co. v. Patterson , 456 U.S. 63, 71 (1982) ( “Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”). Is the majority’s reading of § 1357(g)(10) reasonable? Imagine, for a moment, its implementation. Morning dawns at the Pima County (Tucson) Sheriff’s Office. The watch commander assembles the deputies: “Officers, in your patrols and arrests today, please remember the Ninth Circuit has told us that if you encounter aliens you suspect are illegally present in this country, you may check their immigration status with federal immigration officers, and cooperate with federal agents in their identification, apprehension, detention and removal, but only (1) if called upon by the federal authorities to assist, or (2) absent such request, where necessary, but (3) then only on an incidental basis, and (4) not in a routine or systematic basis. ” Officer Smith responds: “Commander, does that mean that, unless asked by the federal officers, we cannot determine immigration status of suspected illegal aliens from federal immigration officers or cooperate to help in their removal in each case in which we have reasonable suspicion, but, on the other hand, that we can do so when necessary, but then only once in a while? When will it be ‘necessary’? Second, for every ten suspicious persons we run across, in how many

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§ 1101 et seq. Alas, the majority opinion does not point us where to look. 10

To determine Congress’s intent, we must attempt to read and interpret Congress’s statutes on similar topics together. Wachovia Bank v. Schmidt , 546 U.S. 303, 316 (2006) (“[U]nder the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read as if they were one law. ” (internal quotations omitted)). In light of this, I submit that a more natural reading of § 1357(g)(10), together with § 1373(c), leads to a conclusion

cases are we allowed to request immigration checks and cooperate with the federal authorities without our immigration checks becoming ‘systematic’ and ‘routine,’ rather than merely ‘incidental’? ”
Rather than explain the content of the conditions which it invents— “called upon,” “necessity,” “systematic,” and “routine”—the majority turns up its nose at a scenario made all-too-probable by its vague limitations; limitations themselves bereft of structure for lack of citation of authority. As in the case of its refusal to refute its traducing of statutory language (see footnote 5, supra). the majority declaims the impropriety of my criticisms, rather than discuss why they are wrong. But that does not shed any light on the question likely to be asked by the Sheriff’s Deputy: “When can I detain a suspect to check his immigration status? ”
10The majority contends its interpretation of § 1357(g)(10) is supported by 8 U.S.C. § 1103(a)(10). Section 1103(a)(10) empowers the Attorney General, in the event of a mass influx of aliens, to authorize state and local officers “to perform or exercise any of the powers, privileges, or duties ” of a federal immigration officer. 8 U.S.C. § 1103(a)(10) (emphasis added). That the Attorney General may designate state officers to exercise the full scope of federal immigration authority in such emergency situations—alone and not in cooperation with federal immigration officials— does not affect or limit state officers’ otherwise inherent authority under non-emergency circumstances “to cooperate with the Attorney General in the identification, apprehension, detention, or removal of [illegal] aliens, ” 8 U.S.C. § 1357(g)(10)(B), especially by seeking immigration status information which federal authorities are obligated to provide, 8 U.S.C. § 1373(c). Nothing in the text of § 1357(g)(10), nor of § 1373(c), requires a prior “mass influx of aliens ” to allow state officers to act. No case authority is cited for this peculiar instance of statutory interpretation.

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that Congress’s intent was to provide an important role for state officers in the enforcement of immigration laws, especially as to the identification of illegal aliens.

Unless the state officers are subject to a written agreement

described in § 1357(g)(1)-(9), which would otherwise control

their actions, the state officers are independently authorized

by Congressional statute “to communicate with the Attorney

General regarding the immigration status of any individual. ”

8 U.S.C. § 1357(g)(10)(A). Moreover, state officers are

authorized “to cooperate with the Attorney General in the

identification, apprehension, detention, or removal of aliens

not lawfully present in the United States.

” Id.

§ 1357(g)(10)(B) (emphasis added).11 Of course, the majority

is correct that state officers cannot themselves remove illegal

aliens from the United States. The majority would read that

inability as evidence of congressional intent that state officers

cannot act at all with respect to other aspects of immigration

enforcement that lead to removal, save on the orders of fed-

eral officers pursuant to the provisions of written agreements

as set forth in 1357(g)(1)-(9). Maj. Op. at 4820. Were that so,

§ 1357(g)(10) would be redundant and a dead letter, save for

the vague and uncertain powers which the majority limits by

its newly-crafted terms “calls upon,” “necessity,” “systemat-

ic” and “routine.” We must interpret statutes in a manner to

give each part of the statute meaning, if at all reasonable. See,

e.g., U.S. v. Lopez, 514 U.S. 549, 589 (1995) ( “An interpreta-

tion of [the Commerce Clause] that makes the rest of [Article

I,] § 8 superfluous simply cannot be correct. ”); see also Wil-

liams v. Thude , 188 P.2d 1349, 1351 (Ariz. 1997) ( “Each

word, phrase, clause, and sentence [of a statute] must be given

11It is ironic that while construing Section 2(B) so as to make the second sentence thereof an independent mandate to run immigration checks on all arrestees, the majority does not apply the same canon to make § 1357(g)(10) independent, especially since § 1357(g)(10) begins with the classic language of a stand-alone, independent provision: “Nothing in this subsection shall be construed to require an agreement . . . . ”

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meaning so that no part will be void, inert, redundant, or trivial.” (internal quotation marks omitted, alteration and emphasis in original)).

Further, “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. ” Caminetti v. United States, 242 U.S. 470, 485 (1917). Section 1357(g)(10) need not be interpreted at all—its plain language states that “Nothing in this subsection [8 U.S.C. § 1357(g)] shall be construed to require an agreement under this subsection in order for any officer . . . to communicate with the Attorney General regarding the immigration status of any individual.” There is no need to place restrictions on this meaning, through terms such as “calls upon,” “necessity,” “systematic,” and “routine,” because the statute’s meaning is clear and includes no such limitations.

I agree with the majority that “we must determine how the many provisions of [the] vastly complex [INA] function together.” Maj. Op. at 4823. However, the majority opinion’s interpretation of § 1357(g)(10), which requires the Attorney General to “call upon” state officers in the absence of “necessity” for state officers to have any immigration authority, makes § 1373(c) a dead letter. Congress would have little need to obligate federal authorities to respond to state immigration status requests if it is those very same federal officials who must call upon state officers to identify illegal aliens. Further, there is no authority for the majority’s assertion that § 1357(g) establishes the “boundaries” within which state cooperation pursuant to § 1373(c) must occur. Maj. Op. at 4822-23. Indeed, “communicat[ions] with the Attorney General regarding the immigration status of any individual ” were explicitly excluded from § 1357(g)’s requirement of an agreement with the Attorney General. 8 U.S.C. § 1357(g)(10)(A). Congress intended the free flow of immigration status infor-

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mation to continue despite the passage of § 1357(g), and so provided in subsection (g)(10). The majority’s interpretation turns § 1357(g)(10) and § 1373(c) into: “Don’t call us, we’ll call you,” when what Congress enacted was “When the state and local officers ask, give them the information. ”

The majority’s attempt to straight-jacket local and state inquiries as to immigration status to what “terms” the “federal government” dictates reveals the fundamental divide in our views. The majority finds the intent of “the government” decisive; I look to Congress’s intent—as required by Supreme Court preemption law.

Further, to “cooperate” means, I submit, “to act or operate jointly, with another or others, to the same end; to work or labor with mutual efforts to promote the same object. ” Webster’s New Twentieth Century Dictionary of the English Language Unabridged (Jean L. McKechnie ed., 1979). It does not mean that each person cooperating need be capable of doing all portions of the common task by himself. We often speak of a prosecution’s “cooperating witness,” but it doesn’t occur to anyone that the witness himself cannot be “cooperating” unless he is able to prosecute and convict the defendant himself. Hence, the inability of a state police officer to “remove” an alien from the United States does not imply the officer is unable to cooperate with the federal authorities to achieve the alien’s removal.

The provision of authority whereby the Attorney General may “deputize” state police officers allows the Attorney General to define the scope and duration of the state officers’ authority, as well as “direct[ ] and supervis[e]” the state officers in performing immigration functions. 8 U.S.C. § 1357(g)(1)-(9). However, this is merely one of two forms of state participation in federal immigration enforcement provided for by Congress in § 1357(g). Congress provided for another form of state participation, for which no agreement is required—states are free “to communicate with the Attorney

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General regarding the immigration status of any individual, ”

id. § 1357(g)(10)(A), and are also free “otherwise [than by

communication] to cooperate with the Attorney General in the

identification, apprehension, detention, or removal of aliens

not lawfully present in the United States,

” id.

§ 1357(g)(10)(B).

This conclusion is confirmed by a close comparison of the language in each part of § 1357(g). As to the authority of the Attorney General to enter explicit written agreements, these agreements are limited to deputizing state officers to perform immigration-related functions “in relation to the investigation, apprehension, or detention of aliens in the United States. ” Id. § 1357(g)(1). Notably absent from this list of functions is the “identification” of illegal aliens. However, Congress recognized state officers’ authority even in the absence of a written agreement with federal authorities both “to communicate with the Attorney General regarding the immigration status of any individual” and “to cooperate with the Attorney General in the identification . . . of aliens not lawfully present in the United States.” Id. § 1357(g)(10) (emphasis added). “We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). The exclusion of illegal alien identification from the restraints of explicit written agreements under § 1357(g)(1)-(9), and the inclusion of this identification function in the state’s unrestrained rights under § 1357(g)(10), leads to the conclusion that Congress intended that state officers be free to inquire of the federal officers into the immigration status of any person, without any direction or supervision of such federal officers—and the federal officers “shall respond” to any such inquiry. 8 U.S.C. § 1373(c) (emphasis added).

Another limitation of authority inferred by the majority from § 1357(g)(10) seems to be that state authorities cannot order their officers to enforce immigration laws in every case

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where they have reasonable suspicion to believe the laws are being violated. The argument seems to be that while “incidental” investigation—motivated solely by the individual officer’s discretion—might be permissible and not an invasion of federal immigration turf, any systematic and mandatory order to identify illegal aliens would be an incursion into a preempted area. See Maj. Op. at 4020-21; see also Oral Argument at 46:15-46:35 ( “[T]he mandatory application [of Section 2(B)] is impermissible, because it takes away the discretion of the local law enforcement officer to decide whether to pursue a particular line of inquiry rather than mandated. ”). This reading of the statute is as original, and therefore, problematic as is utilizing the words “calls upon,” “necessity,” “systematic,” and “routine” to circumscribe an otherwise clear statute. First, by what authority can the federal government tell a state government what orders it is to give state police officers as to the intensity with which they should investigate breaches of federal immigration law? Other than pursuant to the provisions of written agreements, 8 U.S.C. § 1357(g)(1)-(9), I see no statutory basis for allowing the federal government to limit the effort the state can command of its officers. Rather, Congress intended the Attorney General to cooperate with state officers, 8 U.S.C. § 1357(g), and commanded him to answer their requests for immigration status checks, 8 U.S.C. § 1373(c). Second, how practical is it for a watch commander to instruct his deputies that it is up to their whims as to when they can enforce federal immigration law?

C. Section 2(B)’s limited scope

Next, the majority seems to believe that when a state officer (1) initiates the identification of an illegal alien by checking the alien’s immigration status with federal officials pursuant to § 1373(c), and (2) has the alien identified to him by federal authorities, the state officer has somehow usurped the federal role of immigration enforcement. Maj. Op. at 4821-22. Section 2(B)’s scope, however, is not so expansive. Section 2(B) does not purport to authorize Arizona officers to

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remove illegal aliens from the United States—Section 2(B) merely requires Arizona officers to inquire into the immigration status of suspected illegal aliens during an otherwise lawful encounter. See Section 2(B). Section 2(B) does not govern any other action taken by Arizona officers once they discover an alien is illegally present in the United States. Further, Section 2(B) does not require that ICE accept custody or initiate removal of the illegal alien from the United States. Federal authorities are merely obligated to respond to the immigration status inquiry pursuant to § 1373(c). Once this occurs, federal authorities are free to refuse additional cooperation offered by the state officers, and frankly to state their lack of interest in removing the illegal alien. The federal authorities can stop the illegal alien removal process at any point after responding to the state immigration status request. 12

Although it is true that Section 2(B) requires Arizona officers to detain an arrestee suspected of being an illegal alien before releasing the alien, this does little to broaden Section 2(B)’s scope. First, because this is a facial challenge, we must assume that Arizona police officers will comply with federal law and the Constitution in executing Section 2(B). Second, Arizona has built a safeguard into Section 2 which requires that Section 2(B)’s immigration status checking mechanisms be executed in a manner consistent with federal law. See Section 2(L) ( “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens. ”). Finally, it would be absurd to assume that Congress would permit states to

12Of course, were the federal authorities to do just that—turn away the cooperation of state officials—they might be subject to criticism for not enforcing federal immigration law by failing to remove identified illegal aliens. Worse, since police departments tend to keep pesky records of communications, the exact amount of refusals of state assistance, and the future consequences of failing to remove illegal aliens, might make it into the Press, with perhaps embarrassing or impolitic results. These considerations, of course, should not affect the preemption analysis.

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check a person’s immigration status, see 8 U.S.C. § 1373(c), but would not allow the state to hold the suspected illegal alien until a response were received.

The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE’s “priorities and strategies. ” Maj. Op. at 4824. It is only by speaking in such important-sounding abstractions—“priorities and strategies”—that such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)’s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies—unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station’s “priorities and strategies” for detecting and extinguishing fires?

The internal policies of ICE do not and cannot change this result. The power to preempt lies with Congress, not with the Executive; as such, an agency such as ICE can preempt state law only when such power has been delegated to it by Congress. See North Dakota v. United States , 495 U.S. 423, 442 (1990) (“It is Congress—not the [Department of Defense]— that has the power to pre-empt otherwise valid state laws . . . .”). Otherwise, evolving changes in federal “priorities and strategies” from year to year and from administration to administration would have the power to preempt state law, despite there being no new Congressional action. Courts would be required to analyze statutes anew to determine whether they conflict with the newest Executive policy. Although Congress did grant some discretion to the Attorney General in entering into agreements pursuant to § 1357(g), Congress explicitly withheld any discretion as to immigration status inquiries by “obligat[ing]” the federal government to respond to state and local inquiries pursuant to § 1373(c) and

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by excepting communication regarding immigration status from the scope of the explicit written agreements created pursuant to § 1357(g)(10). Congress’s statutes provide for calls and order the calls be returned.

D. Supreme Court preemption cases

The Supreme Court’s decisions in Crosby v. National Foreign Trade Council , 530 U.S. 363 (2000), and Buckman Co. v. Plaintiff’s Legal Committee , 531 U.S. 341 (2001), are in accord with the view that Section 2(B) is not preempted by federal law. As the majority points out, in each of those cases, the Supreme Court concluded that Congress intended to provide the Executive with flexibility when it enacted federal law, and that state law encroached on that flexibility. That is not the situation we face here. The majority errs by reading the flexibility Congress provided to the Attorney General in entering agreements pursuant to § 1357(g) as providing universal flexibility as to all immigration matters. Congress did just the opposite. As discussed above, Congress explicitly withheld administrative discretion and flexibility as to responses to state officers’ immigration status inquiries in both § 1373(c) and § 1357(g)(10). Federal authorities have no discretion whether they may respond to immigration status inquiries from state officials. 8 U.S.C. § 1373(c). State officials need not enter into a written agreement to communicate with the Attorney General regarding the immigration status of any individual. 8 U.S.C. § 1357(g)(10). Section 2(B) does not encroach on federal flexibility because Congress did not intend federal authorities to have any flexibility in providing states with properly requested immigration status information.

Neither does the Supreme Court’s preemption jurisprudence in the field of foreign relations change the conclusion that Section 2(B) is not preempted. In Crosby, Massachusetts passed a law which restricted state entities from buying goods or services from those doing business with Burma. 530 U.S. at 366-68. Three months later, Congress passed a statute

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imposing a set of mandatory and conditional sanctions on Burma. Id. at 368. The Court found that the Massachusetts law conflicted with several identified Congressional objectives. “First, Congress clearly intended the federal Act to provide the President with flexible and effective authority over economic sanctions against Burma. ” Id. at 374. Second, “Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range. ” Id. at 377. “Finally, . . . the President’s intended authority to speak for the United States among the world’s nations in developing a ‘comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma.’ ” Id. at 380. Thus, the Court concluded:

Because the state Act’s provisions conflict with Congress’s specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.

Id. at 388.

In American Insurance Ass’n v. Garamendi , 539 U.S. 396 (2003), President Clinton entered into an agreement with the German Chancellor in which Germany agreed to establish a foundation to compensate victims of German National Socialist companies. Id. at 405. In exchange, the U.S. government agreed to discourage Holocaust-era claims in American courts and encourage state and local governments to respect the foundation as the exclusive mechanism for resolving these claims. Id. at 405-06. Meanwhile, California passed legislation which required insurance companies doing business in the state to disclose the details of insurance policies issued to people in Europe between 1920 and 1945. Id. at 409. The Court explained that “even . . . the likelihood that state legis-

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lation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law. ” Id. at 420. The Court held California’s law was preempted: “[T]he evidence here is ‘more than sufficient to demonstrate that the state Act stands in the way of [the President’s] diplomatic objectives.’ ” Id. at 427 (quoting Crosby, 530 U.S. at 386). That is, California’s law conflicted with specific foreignrelations objectives of the Executive, as “addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century. ” Id. at 421.

Thus, as Crosby and Garamendi demonstrate, it is not simply any effect on foreign relations generally which leads to preemption, as the majority asserts. See Maj. Op. at 4825-28. Instead, a state law is preempted because it conflicts with federal law only when the state law’s effect on foreign relations conflicts with federally established foreign relations goals. In Crosby, the state law conflicted with the degree of trade Congress decided to allow with Burma, and the discretion explicitly given to the Executive to make trade decisions. In Garamendi, the state law imposed an investigatory and litigation burden inconsistent with the rules the Executive Agreement had created. Here, however, there is no established foreign relations policy goal with which Section 2(B) may be claimed to conflict. The majority contends that Section 2(B) “thwarts the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs.” Maj. Op. at 4828.

First, the majority fails to identify a federal foreign relation policy which establishes the United States must avoid “spillover effects,” if that term is meant to describe displeasure by foreign countries with the United States’ immigration policies. The majority would have us believe that Congress has provided the Executive with the power to veto any state law which happens to have some effect on foreign relations, as if Congress had not weighed that possible effect in enacting

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laws permitting state intervention in the immigration field. To

the contrary, here Congress has established—through its

enactment of statutes such as 8 U.S.C. §§

1357(g)(10),

1373(c), and 1644—a policy which encourages the free flow

of immigration status information between federal and local

governments. Arizona’s law embraces and furthers this fed-

eral policy; any negative effect on foreign relations caused by

the free flow of immigration status information between Ari-

zona and federal officials is due not to Arizona’s law, but to

the laws of Congress. Second, the Executive’s desire to

appease foreign governments’ complaints cannot override

Congressionally-mandated provisions—as to the free flow of

immigration status information between states and federal

authorities—on grounds of a claimed effect on foreign rela-

tions any more than could such a foreign relations claim over-

ride Congressional statues for (1) who qualifies to acquire

residency in the United States, 8 U.S.C. § 1154, or (2) who

qualifies to become a United States citizen, 8 U.S.C. § 1421

et seq.

Finally, the majority errs in finding that the threat of all 50 states layering their own immigration rules on top of federal law weighs in favor of preemption. In Buckman, the Supreme Court stated: “As a practical matter, complying with the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants burdens not contemplated by Congress in enacting the FDCA and the MDA.” 531 U.S. at 350 (emphasis added). I fail to see how Congress could have failed to contemplate that states would make use of the very statutory framework that Congress itself enacted. Congress created the Law Enforcement Support Center “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis. ” Congress also obligated ICE to respond to all immigration status inquiries from state and local authorities. 8 U.S.C. § 1373(c). In light of this, all 50 states enacting laws for inquiring into

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the immigration status of suspected illegal aliens is desired by Congress, and weighs against preemption.

Conclusion

As demonstrated above, Congress envisioned, intended, and encouraged inter-governmental cooperation between state and federal agencies, at least as to information regarding a person’s immigration status, for the proper and efficient enforcement of federal immigration law. While § 1357(g)(1)-(9) grants the Attorney General discretion to enter into written agreements deputizing and supervising state officers, § 1357(g)(10) explicitly recognizes an alternative to that regime, so as to encourage and facilitate the free flow of immigration status information provided for in § 1373(c). The majority’s arguments regarding how any of the state officers’ actions spelled out in Section 2(B) could interfere with federal immigration enforcement is consistent with only one premise: the complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws. With respect, regardless what may be the intent of the Executive, I cannot accept this premise as accurately expressing the intent of Congress.

II. Sections 3 and 5(C)

I concur with the majority that Section 3, which penalizes an alien’s failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government’s uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section 5(C), which penalizes an illegal alien for working or seeking work, conflicts with Congress’s intent to focus on employer penalties, an intent determined by this court in National Center for Immigrants’ Rights, Inc. v. I.N.S. , 913 F.2d 1350 (9th

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Cir. 1990), rev’d on other grounds , 502 U.S. 183 (1991). As a three-judge panel, we may not re-examine the conclusions reached in National Center. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc); see also Newdow v. Lefevre , 598 F.3d 638, 644 (9th Cir. 2010) (holding that Establishment Clause challenge to the placement of “In God We Trust ” on coins and currency was foreclosed by Aronow v. United States, 432 F.2d 242 (9th Cir. 1970)).

However, for the reasons discussed above as to Section 2, I disagree with the majority’s foreign-relations rationale. The majority fails to identify a foreign relations policy, established by Congress, with which Sections 3 and 5 conflict; a foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally. We do not grant other nations’ foreign ministries a “heckler’s veto.”

III. Section 6

The majority’s analysis of S.B. 1070 Section 6 13 will come as a surprise to all parties involved in this case. It ignores the contentions in the filings before the district court, the district court’s rationale, the briefs filed in this court, and what was said by the well-prepared counsel, questioned at our oral argument. Indeed, it is an argument and conclusion volunteered by the majority, but carefully avoided by the United States— probably because it conflicts with the present policy of the Department of Justice’s Office of Legal Counsel. First, let us examine what I thought the parties put before us for decision.

The only contention made by the United States in this liti-

13S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States. ” Ariz. Rev. Stat. Ann. § 133883(A)(5) (2010).

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gation with respect to Section 6 is that, due to the complexity inherent in determining whether a specific crime makes an alien removable, Arizona police officers will ineluctably burden legal aliens through erroneous warrantless arrests. Not a very strong contention at that, since counsel for the United States all but conceded this argument’s flaw as to this facial challenge at oral argument by admitting that Arizona police officers could very easily determine that some crimes, such as murder, would make an alien removable. Thus, the analysis of this section should have been simple—Section 6 was facially constitutional because a “set of circumstances ” existed under which no “complexity” existed: an Arizona police officer comes across an alien convicted of murder; he is removable; he can be lawfully arrested. See Salerno, 481 U.S. at 745. So, Section 6 was not preempted. End of story.

Instead, the majority misrepresents Arizona’s attempt to assist the federal government as “unilaterally transform[ing] state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition. ” Maj. Op. at 4842. Section 6 is not, and could not, be so broad. Instead, Section 6 merely authorizes Arizona police officers to make warrantless arrests when they cooperate in the enforcement of federal immigration law—as invited to do by Congress. See 8 U.S.C. § 1357(g)(10).

For its newly-minted-but-not-argued position, the majority relies extensively on 8 U.S.C. § 1252c—a code section not cited in support by the United States 14—misinterpreting its meaning and putting this circuit in direct conflict with the Tenth Circuit. The majority also ignores clear Supreme Court precedent and concludes that 8 U.S.C. § 1357(a)’s limitations as to federal warrantless arrest power implies a limitation on

14Indeed, the total treatment of § 1252c in the briefs consists of a onesentence citation in Arizona’s brief arguing against Section 6’s preemption, and the United States’ citation, without argument, in a string cite in its statement of facts.

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state officers. As I discuss below, the majority erred in concluding that state police officers have no authority to enforce the civil provisions of federal immigration law.

As noted by the majority opinion, Section 6 applies to three different scenarios: (1) when there is probable cause to believe a person committed a removable offense in a state other than Arizona; (2) when there is probable cause to believe that an individual committed a removable offense in Arizona, served his or her time for the crime, and was released; and (3) when there is probable cause to believe an individual committed a removable offense, but was not prosecuted. The question before us is whether warrantless arrests by state police officers in these three scenarios conflict with Congress’s intent.

A. Inherent authority of state officers to enforce federal immigration law

As an initial matter, it is notable that the United States never once asserted, either at oral argument or in its briefs, that Arizona officers are without the power to enforce the civil provisions of immigration law. Indeed, counsel for the United States at oral argument actually confirmed state officers’ authority to arrest aliens on the basis of civil removability. See Oral Argument at 58:40-59:40 (stating that Section 6 would be constitutional if it required Arizona officers to contact ICE regarding whether a crime renders an alien removable).15 The United States’ argument against Section 6’s

15Actual text from oral argument:
DEPUTY SOLICITOR GENERAL KNEEDLER: No, I think [Section 6] continues to present the problems that the [District] Court identified because there’s no requirement in Section 6 that the state or local officer contact ICE in order to find whether an offense is removable. The individual with, the officer would have to make a judgment as to whether the public offense in the other state was also a public offense in Arizona, and then determine whether it would in turn lead to a removal—

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constitutionality was limited to the “burden” that would be imposed on wrongfully arrested legal aliens due to the complexity of determining whether a certain crime makes an alien eligible for removal. Indeed, as the 2002 Department of Justice’s Office of Legal Counsel Opinion ( “2002 OLC Opinion”) concludes, “the authority to arrest for violation of federal law inheres in the state, subject only to preemption by federal law.” See also Marsh v. United States , 29 F.2d 172 (2d Cir. 1928) ( “[I]t would be unreasonable to suppose that [the United States’] purpose was to deny to itself any help that the states may allow. ”).16

The majority rejects the existence of this inherent state authority by citing one case from this court in which we “assumed” states lacked such authority. In Gonzales v. City of Peoria, this court held state police officers could enforce

JUDGE NOONAN: But the response is like Judge Paez suggested earlier, second-degree murder is the crime.
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, in some, in that situation, it would probably, you know, it would probably be possible to make that determination.
JUDGE NOONAN: Then why, so it doesn’t, you have a Salerno problem with respect to Section 6?
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, I don’t think so because there’s no requirement to check with ICE, first of all, and the INA, that’s that responsibility for making removability determinations in the Federal Government. There may be some situations in which something could be done otherwise .
(emphases added). 16The United States likely did not adopt the majority’s § 1252c argu-
ment because the Department of Justice is required to comply with Opinions from the Office of Legal Counsel. Congressional Research Service, Authority of State and Local Police to Enforce Federal Immigration Law, Sept. 17, 2010, available at http://www.ilw.com/immigrationdaily/news/ 2010,1104-crs.pdf (“[Office of Legal Counsel] opinions are generally viewed as providing binding interpretive guidance for executive agencies and reflecting the legal position of the executive branch . . . . ”).

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criminal provisions of the INA. 722 F.2d 468, 475 (9th Cir. 1983), rev’d on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). During its analysis, this court stated in dicta:

We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration. However, this case does not concern that broad scheme , but only a narrow and distinct element of it—the regulation of criminal immigration activity by aliens.

Id. at 474-75 (emphasis added). The majority erred in simply
accepting Gonzales’s assumption, in dicta, without performing any additional inquiry into whether it was indeed correct.17

The majority also missteps in relying on an abbreviated analysis in United States v. Urrieta , 520 F.3d 569 (6th Cir. 2008). There, Urrieta moved to suppress items found in his car during an extended search by local police. Id. 572-73. Urrieta had been detained by a local police officer following

17Gonzales‘ dicta is not binding on this panel. In United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc), this court stated:
Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel’s full attention, it may be appropriate to re-visit the issue in a later case.
Id. at 915. Here, the Gonzales panel’s statement regarding the civil provisions was “made casually and without analysis ”; indeed, the panel even admitted they “assume[d]” the conclusion. It takes no analysis to assume. Further, the statement on INA’s civil provisions was “merely a prelude to another legal issue. ” Immediately after making the statement, the panel noted that the “case d[id] not concern” the civil provisions. Therefore, this panel is not bound by the Gonzales court’s assumption, in dicta, regarding the INA’s civil provisions.

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the issuance of a traffic citation. Id. at 571-72. During the detention related to the traffic violation, the police officer attempted to determine whether Urrieta was an illegal alien. Id. The court concluded that suspicion of Urrieta’s illegal presence was insufficient to extend Urrieta’s detention. Id. at 574. In doing so, the court characterized 8 U.S.C. § 1357(g) as “stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions that are not applicable in the present case. ” Id.

This conclusion, however, completely ignored the existence and effect of § 1357(g)(10). As discussed fully throughout this dissent, subsection (g)(10) envisions state cooperation in the enforcement of federal immigration law outside the context of a specific agreement with the Attorney General by “identification, apprehension, detention, or removal ” in cooperation with federal immigration authorities. Further, § 1357(g)(10) makes no distinction between criminal and civil provisions—indeed, it refers to “aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(B). The Sixth Circuit’s truncated conclusion may be based on the fact that the government withdrew the argument that Urrieta’s extended detention was justified on suspicion that he was an “undocumented immigrant” as “misstat[ing] the law. ” Id. Thus, the majority should not have relied on the Sixth Circuit’s language in concluding that state officers lack inherent authority to enforce the civil provisions of immigration law any more than it should have relied on the language in Gonzales, and for the same reason: the issue whether a state officer had inherent authority to arrest a person for violation of a federal civil violation was simply not before either court.

Moreover, the majority ignores clear Supreme Court precedent in concluding that state officers cannot make warrantless arrests because federal immigration officers cannot make warrantless arrests under the same circumstances pursuant to 8

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U.S.C. § 1357(a). Maj. Op. at 4842. In United States v. Di Re, 332 U.S. 581 (1948), state officers arrested Di Re for knowingly possessing counterfeit gasoline ration coupons in violation of § 301 of the Second War Powers Act of 1942, a federal law. Id. at 582. Di Re challenged the search incident to the arrest. Id. The Supreme Court upheld the arrest, stating “that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” Id. at 589; accord Miller v. United States , 357 U.S. 301, 305 (1958) (holding that when state peace officers arrest a person for violation of federal narcotics law, “the lawfulness of the arrest without warrant is to be determined by reference to state law ”); Johnson v. United States , 333 U.S. 10, 15 n.5 (1948) (holding that when state peace officers arrest a person for violation of federal narcotics law, “[s]tate law determines the validity of arrests without warrant”). Thus, the authority of states to authorize warrantless arrests for violations of federal law is well established. 18

The conclusion that state police officers have the inherent authority to enforce the civil provisions of federal immigration law is supported by Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003). There, a police officer questioned a woman about her immigration status. Id. at 1262. This court stated that “it [was] doubtful that the police officer had any authority to question Mena regarding her citizenship. ” Id. at 1165 n.15. The Supreme Court overruled this court and stated:

18Although it is true that the federal laws in these cases were criminal, rather than civil, the Supreme Court was careful to couch its holdings in terms of “federal laws” generally, without reference to whether such laws were criminal in nature. This court’s holding in Gonzales that illegal presence, alone, is not a crime —recently reaffirmed by this court in MartinezMedina v. Holder, ___ F.3d ___, 2011 WL 855791, at *6 (9th Cir. 2011) —is inapposite. As discussed above, the question whether state and local officers could enforce civil immigration laws was not before the court in Gonzales, and therefore its “distinction” between criminal and civil immigration laws is inexistent. See Maj. Op. at 4843-44 n.22.

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As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

Muehler v. Mena, 544 U.S. 93, 101 (2005) (emphasis added). Thus, the Supreme Court explicitly recognized—in one of our California cases—that state police officers have authority to question a suspect regarding his or her immigration status, directly contradicting the majority’s conclusion that state officers possess no inherent authority to enforce the civil provisions of immigration law. 19

B. Non-preemption of states’ inherent enforcement authority

Next, the majority errs in finding that 8 U.S.C. § 1252c preempts this inherent state arrest authority. Despite § 1252c’s lack of any language which indicates an intent to limit state powers, the majority holds that § 1252c represents the full extent of the arrest power Congress intended—a contention the Tenth Circuit previously rejected. See United States v.

19The majority contends “Mena did not recognize that state officers can enforce federal civil immigration law with no federal supervision or involvement.” Maj. Op. at 4843 n.21. It is true that an INS officer was present when the state and local officers questioned Mena regarding her immigration status. However, the actions of the INS officer were not before the Court; it was the conduct of the state and local officers which the Court scrutinized. See Mena, 544 U.S. at 100-01. Moreover, the Supreme Court did not state that the presence of an INS officer was required for the state and local officers to question Mena regarding her immigration status. Indeed, the Court in Mena did not even mention the presence of the INS officer in the portion of the opinion recognizing the state and local officers’ questioning was permissible. See id. So, the officer conduct the Court approved was the state and local officer conduct. For aught that appears, the federal officer was a bystander, not one who “called upon” the state officers for help. See supra pages 4865-69.

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Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999),

cert.

denied, 528 U.S. 913 (1999); see also United States v.

Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001). 8

U.S.C. § 1252c provides, in relevant part:

Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,

but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

8 U.S.C. § 1252c(a). The majority concludes that because Section 6 would allow warrantless arrests in a broader set of circumstances than described in § 1252c, it therefore conflicts with Congress’s intent.

The Tenth Circuit persuasively rejected this contention over a decade ago. In United States v. Vasquez-Alvarez , “Vasquez claimed that 8 U.S.C. § 1252c limit[ed] the authority of state and local police officers, allowing such an officer to arrest an illegal alien only when the INS has confirmed, before the arrest, that the alien has previously been convicted

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of a felony and has, since that conviction, been deported or left the United States. ” 176 F.3d at 1295. 20

Unable to cite any text in § 1252c which would expressly or impliedly state an intention that § 1252c was meant to be the only authority for state police to arrest an alien for his unlawful presence in this country, nor any canon of statutory interpretation that would come to its aid—and ignoring a later statute’s recognition of the authority to detain (1357(g)(10)) —the majority appeals to legislative history. As noted by the majority, the only legislative history as to § 1252c is the floor debate that accompanied Representative Doolittle’s introduction of § 1252c. The Tenth Circuit analyzed the plain language of § 1252c as well as this legislative history, and rejected Vasquez’s claim:

This legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers. Accordingly, neither the text of the statute nor its legislative history support Vasquez’s claim that § 1252c expressly preempts state law.

Id. at 1299.

The majority takes a single Representative’s comment— that states lacked the authority to arrest illegal aliens and that § 1252c was needed to authorize such arrests—to conclude that Congress as a whole intended § 1252c to represent the limit of state arrest authority. Like the Tenth Circuit, however, I cannot conclude that Congress intended § 1252c to represent the outer bounds of state officers’ authority to arrest illegal aliens based solely on the comments of one Representative. As stated by the Tenth Circuit:

20Again, Vasquez claimed that in his case. The United States has made no such claim here. See supra footnote 14.

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Representative Doolittle did not identify which “current Federal law ” prohibited “State and local law enforcement officials from arresting and detaining criminal aliens.” Neither the United States nor Vasquez has identified any such preexisting law. Furthermore, this court has not been able to identify any pre-§ 1252c limitations on the powers of state and local officers to enforce federal law.

Id. at 1299 n.4; see also United States v. Anderson , 895 F.2d 641, 647 (9th Cir. 1990) (Kozinski, J., dissenting) (“[Legislative] history . . . is seldom, if ever, even seen by most of the legislators at the time they cast their votes. ”).21 Further supporting this conclusion is the text of § 1252c, which does not provide even the slightest indication that Congress intended to preempt otherwise inherent state arrest powers.

The Tenth Circuit went on to note that Congress subsequently “passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws. ” VasquezAlvarez, 176 F.3d at 1300. Notably, Congress passed 8 U.S.C. § 1357(g), discussed at length above, just five months later. 22

21The majority contends it is hypocritical that I criticize the majority’s reliance on a single representative’s comments while supporting the Tenth Circuit’s approach in Vasquez-Alvarez—which also relied on this representative’s comments. To the extent the Tenth Circuit relied affirmatively on Rep. Doolittle’s comments, I agree with the majority that such reliance was misguided. Nonetheless, the Tenth Circuit also noted what the legislative history failed to demonstrate: an intent to displace preexisting state arrest authority. See Vasquez-Alvarez, 176 F.3d at 1299 & n.4. Conflict preemption requires a determination that Congress’s intent conflicts with the state law in question. This requires, first, determining Congress’s intent. Was it Congress’s intent not to remove aliens illegally present in this country? The inability to discern an incompatible intent is fatal to the United States’ preemption claim.
228 U.S.C. § 1644 was passed four months after § 1252c, and one month before § 1357(g). Section 1373(c) was passed at the same time as § 1357(g).

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The Tenth Circuit found this code section “evince[d] a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws. ” Id. The majority states that the Tenth Circuit erred in “interpret[ing] § 1357(g)(10) to mean that [a] ‘formal agreement [pursuant to § 1357(g)(1)-(9)] is not necessary for state and local officers “to cooperate with the Attorney General in identification, apprehension, detention, or removal of aliens. ” ’ ” Maj. Op. at 4847 (emphasis added). It is no wonder that the Tenth Circuit so “interpreted” § 1357(g)(10), when that is what the statute explicitly says:

Nothing in this subsection [1357(g)] shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State . . . otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

8 U.S.C. § 1357(g)(10)(B) (emphasis added). I cannot join the
majority in criticizing the Tenth Circuit for merely reading the statute’s words.23

The majority contends that § 1357(g)(10) “neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision.” Maj. Op. at 4847. What, then, does § 1357(g)(10) do? We must read 1357(g)(10) in context of § 1357(g) as a whole. Section 1357(g) created, for the first time, the authority of the Attorney General to enter into agree-

23But I can criticize the majority for initiating a needless circuit split between our court and the Tenth Circuit, contrary to our own declared preference to avoid such circuit splits. See, e.g., United States v. Alexander, 287 F.3d 811 (9th Cir. 2002) ( “[A]bsent a strong reason to do so, we will not create a direct conflict with other circuits. ” (quoting United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987))).

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ments with states and localities to deputize their officers as 287(g) immigration officers. Subsections (g)(1)-(9) set out the specifics of the explicit written agreements—state officers are paid by the state, trained by the federal government, supervised by the Attorney General, and should be treated as federal employees for purposes of liability and immunity. However, § 1357(g)(10) states clearly that this new method of state involvement—287(g) deputized officers—is not the only way state officers may cooperate in the enforcement of federal immigration law. Subsection (g)(10) preserves the preexisting authority of state officers to participate in enforcing immigration law, without the requirement of any formal, written agreement as envisioned by § 1357(g)(1)-(9).

Absent subsection (g)(10), one might argue that the author-

ity created by § 1357(g)(1)-(9) to deputize state officers repre-

sents the full extent of state officer immigration enforcement.24

Instead, (g)(10) makes clear that state officers’ authority “oth-

erwise to cooperate ” in enforcing federal immigration law

remained intact after the creation of the new “deputy track”

of enforcement. This reading does not make § 1357(g) super-

fluous, as the majority contends. See Maj. Op. at 4847.

Indeed, this interpretation makes each part of §

1357(g)

necessary—subsections (g)(1)-(9) are necessary to authorize

the Attorney General to deputize 287(g) officers, and subsec-

tion (g)(10) is necessary to preserve state officers’ preexisting

communication and arrest authority. The majority cannot

explain how state officers may “otherwise cooperate” pursu-

ant to § 1357(g)(10)—in such concrete areas as the “identifi-

cation, apprehension, detention, [and] removal ” of suspects—

if they possess no inherent authority to enforce civil immigra-

tion law. The reason for this inconsistency is the majority’s

antecedent error—finding state officers lack such inherent

authority.

24Indeed, this is what the majority does even § 1357(g)(10).

with the presence of

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Neither does this interpretation render § 1252c superfluous, as the majority contends. See Maj. Op. at 4847. Section 1252c’s “notwithstanding” language acts as a safeguard against other provisions of federal law, preventing any other provision from being construed to preempt state arrest authority to arrest certain illegal aliens. As stated by the 2002 OLC Opinion:

If, for example, a court were otherwise inclined (per the Ninth Circuit’s dicta in Gonzales[ v. City of Peoria, 722 F.2d 468 (9th Cir. 1983)]) to misconstrue the provisions of the INA as preempting state authority to arrest for civil deportability, section 1252c would operate to ensure that state police at least retained the authority to make such arrests of aliens who had previously been convicted of a felony and had been deported or had left the United States after such conviction.

2002 OLC Opinion at 11. Moreover, Congress has authority

to enact legislation which is designed merely to clarify, with-

out affecting the distribution of power.

See, e.g.,

Reaffirmation—Reference to One Nation Under God in the

Pledge of Allegiance, Pub L. No. 107-293 (2002) ( “An Act

To reaffirm the reference to one Nation under God in the

Pledge of Allegiance.” (emphasis added)). Thus, § 1252c does

not become “superfluous” merely because it does not enlarge

or shrink the arrest power provided to state police officers. 25

25The majority criticizes my use of the 2002 OLC Opinion. Maj. Op. at 4847 n.24. I agree with the majority’s assertion that the OLC Opinion does not bind this court. I quote it, however, not for its authority, but to rebut the majority’s contention that § 1252c is superfluous.
The majority is correct that the legislative history accompanying § 1252c does not contain reaffirming language like that found in Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance, Pub L. No. 107-293 (2002). Indeed, § 1252c’s legislative history contains nothing more than the floor debate discussed previously. Again, the point of this citation is simply to demonstrate the various, nonsuperfluous motivations for Congressional action which do not explicitly alter the status quo.

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Conclusion

In conclusion, Section 6 is not preempted and is constitutional. The United States all but conceded the only argument it made in this court and the court below. On the merits of the majority’s sua sponte suggestion that state officers can act in the immigration enforcement field pursuant only to 8 U.S.C. § 1252c, familiar principles of dual sovereignty, as recognized by the Supreme Court, provide states with the inherent authority to enforce federal immigration law. In passing 8 U.S.C. § 1252c, a statement by the bill’s sponsor of what he thought was the preexisting state of the law is insufficient to establish that Congress as a whole intended to displace this preexisting authority vested in the states. Finally, 8 U.S.C. § 1357(g)(10), enacted after § 1252c, explicitly recognizes an authority reserved to the states to enforce federal immigration law outside the confines of a written agreement with the Attorney General. Section 6 does not conflict with the intent of Congress, and thus is not conflict preempted.

IV. Conclusion

The majority misreads the meaning of the relevant federal statutes to ignore what is plain in the statutes—Congress intended state and local police officers to participate in the enforcement of federal immigration law. Sections 2 and 6 do not conflict with this intent, and thus are constitutional.

 
 Case 2:10-cv-01413-SRB Document 186 Filed 03/07/13 Page 1 of 4

1 STUART F. DELERY

2

Principal Deputy Assistant Attorney General JOHN S. LEONARDO

3 United States Attorney

ARTHUR R. GOLDBERG 4 Assistant Director

5 W. SCOTT SIMPSON (Va. Bar #27487) Department of Justice, Room 7210

6 Civil Division, Federal Programs Branch

7

Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10 COUNSEL FOR PLAINTIFF UNITED STATES OF AMERICA

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE DISTRICT OF ARIZONA

14 The United States of America,

15

Plaintiff,

16

v.

No. 2:10-cv-1413-SRB STATUS REPORT

17 The State of Arizona; and Janice K.

18 Brewer, Governor of the State of Arizona, in her Official Capacity,

19

20

Defenda

nts.

21

22

The plaintiff and the defendants, by th eir undersigned counsel, hereby submit the

23 following status report pursua nt to the Cour t’s Orders of Febr uary 7 and Fe bruary 13,

24 2013 (Docs. 183, 185).

25

1. Two of the plaintiff’s claims in this action remain unresolved. First, although

26 the court has lifted the prelimin ary injunction against Secti on 2(B) of S.B. 1070 – the

27 immigration status verification provision – there has been no final resolution of plaintiff’s

28 claim regarding this provision. Second, the Court has not ha d an opportunity to address

Case 2:10-cv-01413-SRB Document 186 Filed 03/07/13 Page 2 of 4

1 plaintiff’s claim against Section 4 of S.B. 1070, which amended the Arizona statute that

2 establishes criminal penalties for “smuggling of human beings for profit or c ommercial

3 purpose.”

4

2. The U nited States proposes to dism iss voluntarily its existing claim against

5 Section 2(B), in light of the Suprem e Court’s decision in Arizona v. Unite d States, 132

6 S. Ct. 2492 (2012). Such dismissal is withou t prejudice, however, to the filing of a new

7 action against Section 2(B) in the future, if warranted based on A rizona’s interpretation

8 and application of this provision. The de fendants consent to the vol untary dismissal of

9 plaintiff’s claim against Section 2(B).

10

3. The parties jointly propo se that adjudication of plai ntiff’s claim against Section

11 4 of S.B. 1070 be stayed pe nding the Ni nth Circuit’s decision in Valle del Sol, Inc. v.

12 Whiting (No. 12-17152), and the resolution of any subsequent petitions for rehearing or

13 certiorari. That action include s a challenge by certain priv ate parties to a portion of

14 Section 5 of S.B. 1070, which imposes criminal penalties under certain circumstances for

15 transporting or harboring an unlawfully present alien and encouraging or inducing an alien

16 to enter or reside in Arizona in violation of law. Si nce the courts’ resolution of that

17 challenge is likely to have a n effect on the smuggling provision in S ection 4, the parties

18 believe plaintiff’s challenge to Section 4 in this action should be stayed pending final

19 resolution of Valle del Sol.

20

4. Depending on the outc ome of Valle del Sol, Inc., v. Whiting (9th Cir. No. 12-

21 17152) and other factors, the United States m ay, at an appr opriate time, seek reconsider-

22 ation of this Court’s Order (D oc. 133) dismissing plaintiff’s claim against a portion of

23 Section 5 of S.B. 1070 and the reinstatement of such claim.

24 25 Dated: March 7, 2013

Respectfully submitted,

26 Principal
27

STUART F. DELERY Deputy Assistant Attorney General

28

-2-

Case 2:10-cv-01413-SRB Document 186 Filed 03/07/13 Page 3 of 4

1

2

JOHN United

3

ARTHUR 4

S. LEONARDO States Attorney
R. GOLDBERG Assistant Director

5 s/ W. Scott Simpson
6

7

Senior

W. SCOTT SIMPSON (Va. Bar #27487) Trial Counsel

8

Attorneys,

9

Civil

Department of Justice Division, Room 7210

10 Post

Federal Programs Branch Office Box 883

11

Washington,

D.C. 20044

12

Telephone: Facsimile

(202) 514-3495 : (202) 616-8470

13

E-mail:

scott.simpson@usdoj.gov

14

COUNSEL

15

UNI

FOR PLAINTIFF TED STATES OF AMERICA

16

17

By s/ John J. Bouma, with permission

18

JOHN

ROBERT

19

KELLY

20

SN

One

21

400

22

Phoenix,

J. BOUMA A. HENRY
A. KSZYWIENSKI ELL & WILMER L.L.P.
Arizona Center E. Van Buren
AZ 85004-2202

23

Office

24

1700

25

Phoeni

JOSEPH SCIARROTTA, JR. of Governor Janice K. Brewer
W. Washington, 9th Floor x, AZ 85007

26

27

THE BR

28

ARI

COUNSEL FOR DEFENDANTS STATE OF ARIZONA; AND JANICE K.
EWER, GOVERNOR OF THE STATE OF ZONA, IN HER OFFICIAL CAPACITY

-3-

Case 2:10-cv-01413-SRB Document 186 Filed 03/07/13 Page 4 of 4

1

THOM

2

MICHAEL EVAN

3

Phoeni 4

5 T
6

AS C. HORNE, Attorney General TRYON, Senior Litigation Counsel
HILLER, Assistant Attorney General 1275 West Washington Street
x, Arizona 85007-2926
COUNSEL FOR DEFENDANT HE STATE OF ARIZONA

7

8

CERTIFICATE OF SERVICE

9

I hereby certify that on March 7, 2013, I electronically transmitted the attached

10 document to the Clerk’s Office using the CM /ECF System for filing and transmittal of a
11

12 Notice of Electronic Filing to the CM/ECF registrants on record in this matter.

13

s/ W. Scott Simpson

14

_______________________

15

W. SCOTT SIMPSON

16 16732584

17

18

19

20

21

22

23

24

25

26

27

28

-4-

 
 Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 1 of 58
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:10−cv−01413−SRB

CLOSED,STD

United States of America v. Arizona, State of, et al Assigned to: Judge Susan R Bolton Related Cases: 2:10−cv−01061−SRB
2:10−cv−01453−SRB Case in other court: Ninth Circuit, 10−16645
Ninth Circuit, 10−16731 Ninth Circuit, 15−15014 Cause: 28:2201 Constitutionality of State Statute(s) Plaintiff

Date Filed: 07/06/2010 Date Terminated: 12/11/2014 Jury Demand: None Nature of Suit: 950 Other Statutes: Constitutionality of State Statutes Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Arthur Goldberg US Dept of Justice Federal Programs Branch PO Box 883 Ben Franklin Station Washington, DC 20044 (202)514−2395 TERMINATED: 07/30/2014 LEAD ATTORNEY

W Scott Simpson US Dept of Justice P.O. Box 883 Washington, DC 20044 202−514−3495 Fax: 202−616−8470 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edwin Smiley Kneedler US Dept of Justice Office of the Solicitor General 950 Pennsylvania Ave., Rm. 5139 Washington, DC 20003 202−514−3261 Fax: 202−305−2452 Email: Edwin.S.Kneedler@usdoj.gov ATTORNEY TO BE NOTICED

Joshua Wilkenfeld US Dept of Justice Civil Division − Federal Programs Branch 20 Massachusetts Ave. Washington, DC 20530 202−305−7920 Fax: 202−616−8470 Email: joshua.i.wilkenfeld@usdoj.gov ATTORNEY TO BE NOTICED

Varu Chilakamarri US Dept of Justice 20 Massachusetts Ave. NW Washington, DC 20001 202−616−8489 Fax: 202−616−8460 Email: varudhini.chilakamarri@usdoj.gov

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 2 of 58 ATTORNEY TO BE NOTICED

V. Defendant Arizona, State of

represented by Kelly Ann Kszywienski Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6384 Email: kkszywienski@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Robert Cole Office of the Attorney General 1275 W Washington St. Phoenix, AZ 85007 602−542−8986 Fax: 602−542−8308 Email: Dave.Cole@azag.gov TERMINATED: 12/03/2013 ATTORNEY TO BE NOTICED
Evan Franklin Hiller Office of the Attorney General 1275 W Washington St. Phoenix, AZ 85007 602−542−7685 Email: evan.hiller@sackstierney.com TERMINATED: 10/18/2013 ATTORNEY TO BE NOTICED
G Michael Tryon Office of the Attorney General Civil Division 1275 W Washington St. Phoenix, Az 85007 602−542−8355 Fax: 602−364−2215 Email: michael.tryon@azag.gov ATTORNEY TO BE NOTICED
John J Bouma Snell & Wilmer LLP 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−0001 602−382−6000 Fax: 602−382−6070 Email: jbouma@swlaw.com ATTORNEY TO BE NOTICED
John R Lopez , IV Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−8986 Fax: 602−542−8308 Email: John.Lopez@azag.gov ATTORNEY TO BE NOTICED
Joseph G Adams

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 3 of 58

Snell & Wilmer LLP 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6207 Fax: 602−382−6070 Email: jgadams@swlaw.com ATTORNEY TO BE NOTICED

Joseph Andrew Kanefield Office of Governor Janice K Brewer 1700 W Washington St., 9th Fl. Phoenix, AZ 85007 602−542−1586 Fax: 602−542−7602 Email: jkanefield@az.gov TERMINATED: 05/25/2011 ATTORNEY TO BE NOTICED

Joseph Sciarrotta , Jr. Office of the Governor 1700 W Washignton St., 9th Fl. Phoenix, AZ 85007 602−542−1586 Email: jsciarrotta@az.gov TERMINATED: 12/22/2014

Robert Lawrence Ellman Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−8696 Fax: 602−542−8308 Email: rle@ellmanweinzweig.com TERMINATED: 02/20/2015 ATTORNEY TO BE NOTICED

Robert Arthur Henry Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6259 Fax: 602−382−6070 Email: bhenry@swlaw.com ATTORNEY TO BE NOTICED

Thomas C Horne Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−5025 Email: tom.horne@azag.gov ATTORNEY TO BE NOTICED

Defendant
Janice K Brewer Governor of the State of Arizona, in her Official Capacity

represented by Kelly Ann Kszywienski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John J Bouma (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 4 of 58

Joseph G Adams (See above for address) ATTORNEY TO BE NOTICED
Joseph Andrew Kanefield (See above for address) TERMINATED: 05/25/2011 ATTORNEY TO BE NOTICED
Joseph Sciarrotta , Jr. (See above for address) TERMINATED: 12/22/2014
Robert Arthur Henry (See above for address) ATTORNEY TO BE NOTICED
G Michael Tryon (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Russell K Pearce Senator TERMINATED: 10/28/2010

represented by Geoffrey S Kercsmar Kercsmar & Feltus PLLC 6263 N Scottsdale Rd., Ste. 320 Scottsdale, AZ 85250 480−421−1001 Fax: 480−421−1002 Email: gsk@kflawaz.com ATTORNEY TO BE NOTICED
Gregory Blain Collins Kercsmar & Feltus PLLC 7150 E Camelback Rd., Ste. 285 Scottsdale, AZ 85251 480−421−1001 Fax: 480−421−1002 Email: gbc@kflawaz.com ATTORNEY TO BE NOTICED
James F Peterson Judicial Watch Incorporated 425 3rd St. SW, Ste. 800 Washington, DC 20024 202−646−5172 Fax: 202−646−5199 Email: jpeterson@judicialwatch.org ATTORNEY TO BE NOTICED
Paul J Orfanedes Judicial Watch Incorporated 425 3rd St. SW, Ste. 800 Washington, DC 20024 202−646−5172 Fax: 202−646−5199 Email: porfanedes@judicialwatch.org ATTORNEY TO BE NOTICED
Michael Bekesha Judicial Watch Incorproated 425 3rd St. SW, Ste. 800

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 5 of 58

Washington, DC 20024 202−646−5172 Fax: 202−646−5199 Email: mbekesha@judicialwatch.org ATTORNEY TO BE NOTICED

Intervenor Defendant
Larry A Dever Cochise County Sheriff TERMINATED: 10/28/2010

represented by Brian McCormack Bergin Bergin Frakes Smalley & Oberholtzer PLLC 4343 E Camelback Rd., Ste. 210 Phoenix, AZ 85018 602−888−7857 Fax: 602−888−7856 Email: bbergin@bfsolaw.com ATTORNEY TO BE NOTICED

Kenneth Michael Frakes Rose Law Group PC 6613 N Scottsdale Rd., Ste. 200 Scottsdale, AZ 85032 480−240−5634 Fax: 480−951−6993 Email: kfrakes@bfsolaw.com ATTORNEY TO BE NOTICED

Intervenor Defendant Arizona State Legislature

represented by Gregory G Jernigan Arizona State Senate 1700 W Washington St. Phoenix, AZ 85007 602−926−4731 Fax: 602−926−3039 Email: gjernigan@azleg.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Andrew Gentala Arizona House of Representatives 1700 W Washington St., Ste. H Phoenix, AZ 85007−2844 602−926−5644 Fax: 602−417−3042 Email: pgentala@azleg.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey S Kercsmar (See above for address) TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

Gregory Blain Collins (See above for address) TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

James F Peterson (See above for address) TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

Michael Bekesha (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 6 of 58

TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

Paul J Orfanedes (See above for address) TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

Movant David Salgado

represented by Augustine B Jimenez , III Montoya Jimenez PA 3200 N Central Ave., Ste. 2550 Phoenix, AZ 85012−2490 602−263−7875 Fax: 602−256−6667 Email: Attorney@ABJLaw.com ATTORNEY TO BE NOTICED

Erica Rose Gonzalez−Melendez Law Office of Erica Gonzalez−Melendez 2030 W Baseline Rd., Ste. 182−315 Phoenix, AZ 85041 602−576−4961 Fax: 480−772−4491 Email: ergmelendez@gmail.com ATTORNEY TO BE NOTICED

Richard Moreno Martinez Law Office of Richard M Martinez P.O. Box 43250 Tucson, AZ 85733−3250 520−609−6352 Fax: 520−320−9090 Email: richard@richardmartinezlaw.com ATTORNEY TO BE NOTICED

Stephen G Montoya Montoya Lucero & Pastor PA 3200 N Central Ave., Ste. 2550 Phoenix, AZ 85012 602−256−6718 Fax: 602−256−6667 Email: stephen@montoyalawgroup.com ATTORNEY TO BE NOTICED

Movant Chicanos Por La Causa Incorporated

represented by Augustine B Jimenez , III (See above for address) ATTORNEY TO BE NOTICED

Erica Rose Gonzalez−Melendez (See above for address) ATTORNEY TO BE NOTICED

Richard Moreno Martinez (See above for address) ATTORNEY TO BE NOTICED

Stephen G Montoya (See above for address) ATTORNEY TO BE NOTICED

Movant

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 7 of 58

Mariette Do−Nguyen D.Q. TERMINATED: 08/13/2010

represented by Mariette Do−Nguyen C/O Kingdom of Heaven 9450 Mira Mesa Blvd., # C417 San Diego, CA 92126 858−689−045 PRO SE

Movant Martin H Escobar

represented by Augustine B Jimenez , III (See above for address) ATTORNEY TO BE NOTICED

Richard Moreno Martinez (See above for address) ATTORNEY TO BE NOTICED

Stephen G Montoya (See above for address) ATTORNEY TO BE NOTICED

Movant
Minuteman Civil Defence Corps TERMINATED: 07/07/2011

represented by John Joseph Jakubczyk Jakubczyk & Saverino PC 4643 E Thomas Rd Ste 5 Phoenix, AZ 85018 602−468−0030 Fax: 602−468−0053 Email: jakeslaw@qwest.net ATTORNEY TO BE NOTICED

Amicus
Center on the Administration of Criminal Law TERMINATED: 09/03/2010

represented by Anne Milgram Center for the Administration of Criminal Law 139 MacDougal St., Ste. 307 New York, NY 10012 212−998−6612 Fax: 212−995−4592 Email: anne.milgram@nyu.edu ATTORNEY TO BE NOTICED

Anthony S Barkow Center for the Administration of Criminal Law 139 MacDougal St., Ste. 307 New York, NY 10012 212−998−6612 Fax: 212−995−4592 Email: anthony.barkow@nyu.edu TERMINATED: 02/10/2014

Ellen London Friedman Kaplan Seiler & Adelman LLP 1633 Broadway, 46th Fl. New York, NY 10019 212−833−1199 Fax: 212−373−7999 Email: elondon@fklaw.com TERMINATED: 09/03/2010

Jessica Alexandra Murzyn Friedman Kaplan Seiler & Adelman LLP

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 8 of 58

1633 Broadway, 46th Fl. New York, NY 10019 212−833−1125 Fax: 212−833−1250 Email: jmurzyn@fklaw.com TERMINATED: 09/03/2010

Ricardo Solano , Jr. Friedman Kaplan Seiler & Adelman 1 Gateway Ctr., 25th Fl. Newark, NJ 07102 973−877−6421 Fax: 973−877−6422 Email: rsolano@fklaw.com TERMINATED: 09/03/2010

Amicus
American Bar Association TERMINATED: 09/03/2010

represented by Andrew Silverman University of Arizona College of Law P.O. Box 210176 Tucson, AZ 85721−0176 520−621−1975 Email: silverman@law.arizona.edu ATTORNEY TO BE NOTICED

Carolyn B Lamm White & Case LLP 701 13th St. NW, Ste. 600 Washington, DC 20005 202−626−3605 Fax: 202−639−9355 Email: clamm@whitecase.com ATTORNEY TO BE NOTICED

Sara Elizabeth Dill Perry Krumsiek & Jack LLP P.O. Box 578924 Chicago, IL 60657 866−527−4142 Fax: 617−720−4310 Email: saraedill@gmail.com ATTORNEY TO BE NOTICED

Stephen N Zack Boies Schiller & Flexner LLP 100 SE 2nd St., Ste. 2800 Miami, FL 33131 305−539−8400 Fax: 305−539−1307 Email: szack@bsfllp.com ATTORNEY TO BE NOTICED

Amicus
American Unity Legal Defense Fund Incorporated TERMINATED: 09/03/2010

represented by Barnaby W Zall Weinberg & Jacobs LLP 11300 Rockville Pike, Ste. 1200 Rockville, MD 20852 301−231−6943 Fax: 301−954−1200 Email: bzall@aol.com ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 9 of 58

Amicus
Michigan, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia Office of the Attorney General P.O. Box 30212 Lansing, MI 48909 517−373−1124 TERMINATED: 09/03/2010

Mark Sands Office of the Attorney General P.O. Box 30212 Lansing, MI 48909 517−373−1124 TERMINATED: 09/03/2010

Timothy James Casey Schmitt Schneck Casey Even & Williams PC 1221 E Osborn Rd., Ste. 105 Phoenix, AZ 85014−5540 602−277−7000 Fax: 602−277−8663 Email: timcasey@azbarristers.com ATTORNEY TO BE NOTICED

Amicus
Florida, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
Alabama, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
Nebraska, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 10 of 58

ATTORNEY TO BE NOTICED

Amicus
Pennsylvania, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
South Carolina, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
South Dakota, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
Texas, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED

Amicus
Virginia, State of TERMINATED: 09/03/2010

represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010

Mark Sands (See above for address) TERMINATED: 09/03/2010

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 11 of 58

Amicus Northern Mariana Islands TERMINATED: 09/03/2010
Amicus Ray Elbert Parker TERMINATED: 09/03/2010 Amicus Arizona Municipal Risk Retention Pool TERMINATED: 09/03/2010
Amicus Washington Legal Foundation TERMINATED: 09/03/2010

Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED
represented by B Eric Restuccia (See above for address) TERMINATED: 09/03/2010
Mark Sands (See above for address) TERMINATED: 09/03/2010
Timothy James Casey (See above for address) ATTORNEY TO BE NOTICED
represented by Ray Elbert Parker P.O. Box 320636 Alexandria, VA 22320 703−328−2366 PRO SE
represented by Donald M Peters Miller LaSota & Peters PLC 722 E Osborn Rd., Ste. 100 Phoenix, AZ 85014 602−248−2900 Fax: 602−248−2999 Email: dpeters@lasotapeters.com ATTORNEY TO BE NOTICED
Jeffrey Thomas Murray Sims Murray Limited 2020 N Central Ave., Ste. 670 Phoenix, AZ 85004 602−772−5500 Fax: 602−772−5009 Email: jtmurray@simsmurray.com ATTORNEY TO BE NOTICED
Kristin Marie Mackin Lasota & Peters PLC 722 E Osborn Rd., Ste. 100 Phoenix, AZ 85014 60−2248−2900 Fax: 602−248−2999 Email: kmackin@lasotapeters.com ATTORNEY TO BE NOTICED
represented by David T Hardy David T Hardy PC 8987 E Tanque Verde PMB 265 Tucson, AZ 85749 520−749−0241 Email: dthardy@mindspring.com ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 12 of 58

Amicus John Kavanagh Arizona State Representative Amicus Lynn Jenkins U.S. Representative (KS) TERMINATED: 09/03/2010
Amicus Tom McClintock U.S. Representative (CA) TERMINATED: 09/03/2010

represented by David T Hardy (See above for address) ATTORNEY TO BE NOTICED
represented by Colby M May American Center for Law & Justice − Washington, DC 201 Maryland Ave. NE Washington, DC 20002 202−546−8890 Fax: 202−546−9309 TERMINATED: 09/03/2010
David T Hardy (See above for address) ATTORNEY TO BE NOTICED
Garrett Roe Immigration Reform Law Institute 25 Massachusetts Ave. NW, Ste. 335 Washington, DC 20001 202−232−5590 Fax: 202−464−3590 Email: groe@irli.org ATTORNEY TO BE NOTICED
Jay Allen Sekulow American Center for Law & Justice − Virginia Beach, VA 1000 Regent University Dr. Virginia Beach, VA 23464 (804)569−2489 TERMINATED: 09/03/2010
Michael M Hethmon Immigration Reform Law Institute 25 Massachusetts Ave. NW, Ste. 330B Washington, DC 20001 202−232−5590 Fax: 202−464−3590 Email: mhethmon@irli.org ATTORNEY TO BE NOTICED
Michael J Meehan Law Office of Michael Meehan 3938 E Grant Rd., Ste. 423 Tucson, AZ 85712 520−529−1969 Fax: 520−747−1550 Email: mmeehan.az@msn.com ATTORNEY TO BE NOTICED
represented by Colby M May (See above for address) TERMINATED: 09/03/2010
David T Hardy (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 13 of 58

Amicus Gary Miller U.S. Representative (CA) TERMINATED: 09/03/2010
Amicus Lamar Smith U.S. Representative (TX) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED
Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010
Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED
Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED
represented by Colby M May (See above for address) TERMINATED: 09/03/2010
David T Hardy (See above for address) ATTORNEY TO BE NOTICED
Garrett Roe (See above for address) ATTORNEY TO BE NOTICED
Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010
Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED
Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED
represented by Colby M May (See above for address) TERMINATED: 09/03/2010
David T Hardy (See above for address) ATTORNEY TO BE NOTICED
Garrett Roe (See above for address) ATTORNEY TO BE NOTICED
Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010
Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED
Michael J Meehan

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 14 of 58

(See above for address) ATTORNEY TO BE NOTICED

Amicus Allied Educational Foundation

represented by David T Hardy (See above for address) ATTORNEY TO BE NOTICED

Amicus National Border Patrol Council

represented by David T Hardy (See above for address) ATTORNEY TO BE NOTICED

Amicus
Rodney Alexander TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Michele Bachmann TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Spencer Bachus TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 15 of 58

ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Barrasso TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Gresham Barrett TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Brian Bilbray TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 16 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Gus Bilirakis TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Rob Bishop TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Marsha Blackburn TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 17 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Boozman TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Kevin Brady TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Paul Broun TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 18 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ginny Brown−Waite TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Michael Burgess TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ken Calvert TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 19 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Campbell TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Carter TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jason Chaffetz TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 20 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Howard Coble TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Mike Coffman TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Culberson TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 21 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Geoff Davis TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jim Demint TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
David Dreier TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 22 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Duncan TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Fleming TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Randy Forbes TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 23 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Virginia Foxx TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Trent Franks TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Elton Gallegly TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 24 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Scott Garrett TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Phil Gingrey TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Louie Gohmert TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 25 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Bob Goodlatte TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Tom Graves TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Wally Herger TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 26 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Pete Hoekstra TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Duncan Hunter TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
James Inhofe TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 27 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Walter Jones TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jim Jordan TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Steve King TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 28 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jack Kingston TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Kline TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Doug Lamborn TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 29 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Robert Latta TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jerry Lewis TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Cynthia Lummis TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 30 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Michael McCaul TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Thaddeus McCotter TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Patrick McHenry TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 31 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jeff Miller TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jerry Moran TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Tim Murphy TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 32 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Sue Myrick TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Randy Neugebauer TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Joe Pitts TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 33 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Todd Platts TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ted Poe TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Bill Posey TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 34 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Tom Price TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Phil Roe TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Mike Rogers TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 35 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Dana Rohrabacher TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ed Royce TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jean Schmidt TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 36 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Shadegg TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Mike Simpson TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Cliff Stearns TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 37 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
John Sullivan TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Gene Taylor TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Todd Tiahrt TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 38 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
David Vitter TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ed Whitfield TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Roger Wicker TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 39 of 58

TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Rob Wittman TERMINATED: 09/03/2010

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address) ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Jesse Hernandez TERMINATED: 12/07/2010

represented by Larry Klayman Freedom Watch Inc 2020 Pennsylvania Ave. NW, Ste. 345 Washington, DC 20006 310−595−0800 TERMINATED: 12/07/2010

Rachel R Alexander 2917 W Potter Dr. Phoenix, AZ 85027 623−261−4239 Email: wfb@cox.net ATTORNEY TO BE NOTICED

Amicus
Arizona Latino Republican Association TERMINATED: 12/07/2010

represented by Larry Klayman (See above for address) TERMINATED: 12/07/2010

Rachel R Alexander (See above for address) ATTORNEY TO BE NOTICED

Amicus Robert Aderholt

represented by Colby M May (See above for address) TERMINATED: 09/03/2010

Garrett Roe (See above for address)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 40 of 58

ATTORNEY TO BE NOTICED

Jay Allen Sekulow (See above for address) TERMINATED: 09/03/2010

Michael M Hethmon (See above for address) ATTORNEY TO BE NOTICED

Michael J Meehan (See above for address) ATTORNEY TO BE NOTICED

Amicus
Matthew D Pinnavaia TERMINATED: 11/18/2010

represented by Matthew D Pinnavaia 201 Country Club Ln., # 90 Oceanside, CA 92054−3435 760−754−8072 PRO SE

Amicus
Mike Bishop Michigan Senate Majority Leader TERMINATED: 11/18/2010

represented by Alfred H Hall Assistants Senate Majority Counsel P.O. Box 30036 Lansing, MI 48909 517−373−3330 TERMINATED: 11/18/2010

Colleen Curtis Assistants Senate Majority Counsel P.O. Box 30036 Lansing, MI 48909 517−373−3330 TERMINATED: 11/18/2010

Michael G O'Brien Assistants Senate Majority Counsel P.O. Box 30036 Lansing, MI 48909 517−373−3330 TERMINATED: 11/18/2010

Phillip A Hendges Assistants Senate Majority Counsel P.O. Box 30036 Lansing, MI 30036 517−373−3330 TERMINATED: 11/18/2010

Amicus William G Montgomery

represented by Ann Thompson Uglietta Maricopa County Attorneys Office − Civil Services Division 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−506−8581 Email: uglietta@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 41 of 58

Intervenor
Richard Mack TERMINATED: 10/28/2010

represented by Van Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 223 Knoxville, TN 37923 865−809−1505 Fax: 865−531−9149 Email: van@libertylegalfoundation.com ATTORNEY TO BE NOTICED

Counter Claimant
Janice K Brewer Governor of the State of Arizona, in her Official Capacity TERMINATED: 10/21/2011

represented by John J Bouma (See above for address) ATTORNEY TO BE NOTICED
Joseph Sciarrotta , Jr. (See above for address) TERMINATED: 12/22/2014

G Michael Tryon (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Arizona, State of TERMINATED: 10/21/2011

represented by David Robert Cole (See above for address) TERMINATED: 12/03/2013 ATTORNEY TO BE NOTICED

Evan Franklin Hiller (See above for address) TERMINATED: 10/18/2013 ATTORNEY TO BE NOTICED

G Michael Tryon (See above for address) ATTORNEY TO BE NOTICED

John J Bouma (See above for address) ATTORNEY TO BE NOTICED

Joseph G Adams (See above for address) ATTORNEY TO BE NOTICED

Joseph Andrew Kanefield (See above for address) TERMINATED: 05/25/2011 ATTORNEY TO BE NOTICED

Joseph Sciarrotta , Jr. (See above for address) TERMINATED: 12/22/2014

Robert Arthur Henry (See above for address) ATTORNEY TO BE NOTICED

Thomas C Horne (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 42 of 58

V.
Counter Defendant
United States Department of Homeland Security TERMINATED: 10/21/2011
Counter Defendant
Janet A Napolitano Secretary of the United States Department of Homeland Security, in her official capacity TERMINATED: 10/21/2011
Counter Defendant
United States Department of Justice TERMINATED: 10/21/2011
Counter Defendant
Eric Himpton Holder, Jr. Attorney General for the United States Department of Justice, in his official capacity TERMINATED: 10/21/2011
Counter Defendant
United States of America TERMINATED: 10/21/2011

represented by Varu Chilakamarri (See above for address) ATTORNEY TO BE NOTICED
represented by Varu Chilakamarri (See above for address) ATTORNEY TO BE NOTICED
represented by Varu Chilakamarri (See above for address) ATTORNEY TO BE NOTICED
represented by Varu Chilakamarri (See above for address) ATTORNEY TO BE NOTICED
represented by Edwin Smiley Kneedler (See above for address) ATTORNEY TO BE NOTICED Joshua Wilkenfeld (See above for address) ATTORNEY TO BE NOTICED Varu Chilakamarri (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/06/2010 07/06/2010
07/06/2010 07/06/2010
07/06/2010

# Docket Text
1 COMPLAINT., filed by United States of America. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons)(Chilakamarri, Varu) (Entered: 07/06/2010)
2 This case has been assigned to the Honorable Neil V. Wake. All future pleadings or documents should bear the correct case number: CV 10−1413−PHX−NVW. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2010)
3 Notice of availability of Magistrate Judge (BAS) (Entered: 07/06/2010)
4 Summons Issued as to Arizona, State of, Janice K Brewer. (Attachments: # 1 Janice K Brewer)(BAS). *** 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: 07/06/2010)
5 MOTION for Leave to File Excess Pages Motion for Leave to File Motion for a Preliminary Injunction in Excess of the Page Limit by United States of America. (Attachments: # 1 Text of Proposed Order)(Chilakamarri, Varu) (Entered: 07/06/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 43 of 58

07/06/2010
07/06/2010 07/06/2010 07/07/2010 07/07/2010 07/07/2010 07/07/2010
07/07/2010 07/07/2010
07/07/2010 07/08/2010 07/08/2010 07/08/2010

6 LODGED Proposed Plaintiff's Motion for a Preliminary Injunction and Memorandum of Law in Support Thereof re: 5 MOTION for Leave to File Excess Pages Motion for Leave to File Motion for a Preliminary Injunction in Excess of the Page Limit. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Text of Proposed Order)(Chilakamarri, Varu) (Entered: 07/06/2010)
7 Notice re Notice of Filing of Motion to Transfer Case by United States of America (Attachments: # 1 Filed Motion to Transfer Case, # 2 Filed Proposed Order for Motion to Transfer Case)(Chilakamarri, Varu) (Entered: 07/06/2010)
8 MOTION for Motion for Issuance of an Expedited Briefing Schedule Regarding Plaintiff's Motion for a Preliminary Injunction by United States of America. (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 07/06/2010)
9 Minute Order: On the Court's Own Motion, Telephonic Conference set for 7/7/2010 at 02:00 PM before Judge Susan R Bolton. The Court will initiate the conference call. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 07/07/2010)
10 ORDER granting Plaintiff's Motion to Transfer [doc. 44 in CV 10−926 PHX SRB]. IT IS FURTHER ORDERED transferring CV 10−1413 PHX NVW to Judge Susan R. Bolton for all further proceedings. All future pleadings shall bear the following case caption: CV 10−1413 PHX SRB. Signed by Judge Susan R Bolton on 07/07/10. (ESL) (Entered: 07/07/2010)
11 MOTION for Admission Pro Hac Vice as to attorney Ricardo Solano Jr on behalf of Center on the Administration of Criminal Law. (BAS) (Entered: 07/07/2010)
12 Minute Entry. Proceedings held before Judge Susan R Bolton: Telephonic Conference held on 7/7/2010. Granting Pla's Motion to Transfer. Transferring CV 10−1413 PHX NVW to this Court. All future pleadings shall bear the following case caption: CV 10−1413 PHX SRB; granting Pla's 5 Motion to Exceed Page Limit. Pla's lodged Motion for Preliminary Injunction shall be filed as of this date. FURTHER ORDERED setting Preliminary Injunction Hearing on 07/22/10, at 1:30 p.m.. FURTHER ORDERED granting Pla's 8 Motion for Issuance of an Expedited Briefing Schedule. (Court Reporter Elizabeth Lemke.) (NOTE: See attached pdf for complete details and deadlines) (ESL) (Entered: 07/07/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX098655 as to Ricardo Solano, Jr. (BAS) (Entered: 07/07/2010)
13 ORDER pursuant to General Order 05−25 granting 11 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: 07/07/2010)
27 MOTION for Preliminary Injunction by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Text of Proposed Order)(ESL) (Entered: 07/12/2010)
14 MOTION for Leave to File Brief of Amicus Curiae by Center on the Administration of Criminal Law. (Solano, Ricardo) (Entered: 07/08/2010)
15 LODGED Proposed Brief of Amicus Curiae the Center on the Administration of Criminal Law in Support of Plaintiff's Motion for a Preliminary Injunction re: 14 MOTION for Leave to File Brief of Amicus Curiae. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Center on the Administration of Criminal Law. (Solano, Ricardo) (Entered: 07/08/2010)
16 ORDER: On June 8, 2010, Amicus Curiae Center on the Administration of Criminal Law filed a Motion for Leave to File Brief of Amicus Curiae 14 . IT IS ORDERED that the motion will be denied within 3 days of the date of this order if counsel does

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07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010 07/08/2010
07/08/2010 07/12/2010 07/14/2010
07/14/2010
07/14/2010

not comply with the ECF Administrative Policies and Procedures Manual, Page 12, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 7/8/10. (MAW) (Entered: 07/08/2010)
17 Additional Attachments to Main Document re 14 MOTION for Leave to File Brief of Amicus Curiae Text of Proposed Order by Amicus Center on the Administration of Criminal Law. (Solano, Ricardo) (Entered: 07/08/2010)
18 ORDER, the Court advises counsel that the hearing scheduled for July 22, 2010, at 1:30 p.m. will be held in Special Proceedings Courtroom #200. Signed by Judge Susan R Bolton on 7/8/10. (REW) (Entered: 07/08/2010)
19 SUMMONS Returned Executed; Arizona, State of served on 7/6/2010. (REW) (Entered: 07/08/2010)
20 SUMMONS Returned Executed; Janice K Brewer served on 7/6/2010. (REW) (Entered: 07/08/2010)
21 MOTION for Admission Pro Hac Vice as to attorney Anthony S Barkow on behalf of Center on the Administration of Criminal Law. (BAS) (Entered: 07/08/2010)
22 MOTION for Admission Pro Hac Vice as to attorney Ellen London on behalf of Center on the Administration of Criminal Law. (BAS) (Entered: 07/08/2010)
23 MOTION for Admission Pro Hac Vice as to attorney Jessica A Murzyn on behalf of Center on the Administration of Criminal Law. (BAS) (Entered: 07/08/2010)
24 MOTION for Admission Pro Hac Vice as to attorney Anne Milgram on behalf of Center on the Administration of Criminal Law. (BAS) (Entered: 07/08/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX098759 as to Anne Milgram. (BAS) (Entered: 07/08/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX098758 as to Jessica A Murzyn. (BAS) (Entered: 07/08/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX098756 as to Ellen London. (BAS) (Entered: 07/08/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX098760 as to Anthony S Barkow. (BAS) (Entered: 07/08/2010)
25 ORDER pursuant to General Order 05−25 granting 21 Motion for Admission Pro Hac Vice; granting 22 Motion for Admission Pro Hac Vice; granting 23 Motion for Admission Pro Hac Vice; granting 24 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: 07/08/2010)
26 NOTICE of Appearance by John J Bouma on behalf of Arizona, State of, Janice K Brewer (Bouma, John) (Entered: 07/08/2010)
Notice of request for e−notices by Michael M. Walker. (Walker, Michael) (Entered: 07/12/2010)
28 NOTICE of Appearance by Timothy James Casey on behalf of Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia (Casey, Timothy) Modified on 7/16/2010 CORRECTED: filers (REW). (Entered: 07/14/2010)
29 NOTICE of Appearance by Timothy James Casey on behalf of Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia (Casey, Timothy) Modified on 7/16/2010 CORRECTED: filers (REW). (Entered: 07/14/2010)
30 MOTION and Memorandum for Request to File Brief of Amici Curiae by Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina,

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 45 of 58

07/14/2010
07/14/2010
07/14/2010 07/14/2010 07/14/2010 07/15/2010 07/15/2010 07/15/2010 07/15/2010 07/15/2010 07/15/2010
07/15/2010 07/15/2010 07/15/2010
07/16/2010

South Dakota, Texas, and Virginia. (Casey, Timothy) Modified on 7/16/2010 CORRECTED: filers (REW). (Entered: 07/14/2010)
31 Additional Attachments to Main Document [Proposed] Order re 30 MOTION and Memorandum for Request to File Brief of Amici Curiae by Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia . (Casey, Timothy) Modified on 7/16/2010 CORRECTED: filers (REW). (Entered: 07/14/2010)
32 LODGED Proposed Document: Proposed Brief of Amici Curiae re 30 MOTION Memorandum for Request to File Brief of Amici Curiae. Document to be filed by Clerk if Motion to Leave to File is granted. Filed by Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia. (Casey, Timothy) Modified on 7/16/2010 CORRECTIONS: document event and filers (REW). (Entered: 07/14/2010)
33 MOTION to Intervene as Defendant and Request for Expedited Ruling by Russell K Pearce. (Attachments: # 1 Text of Proposed Order Proposed Order)(Kercsmar, Geoffrey) (Entered: 07/14/2010)
34 MOTION to File Amicus Curiae by American Bar Association. (Dill, Sara) Modified on 7/16/2010 CORRECTION: filer (REW). (Entered: 07/14/2010)
35 LODGED Proposed re: 34 MOTION to File Amicus Curiae. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by American Bar Association. (Dill, Sara) Modified on 7/16/2010 CORRECTION: filer (REW). (Entered: 07/14/2010)
36 MOTION for Admission Pro Hac Vice as to attorney Sara Elizabeth Dill by American Bar Association. (Dill, Sara) (Entered: 07/15/2010)
37 AMENDED MOTION to File Amicus Curiae by American Bar Association. (Dill, Sara) (Entered: 07/15/2010)
38 NOTICE TO FILER OF DEFICIENCY re 36 MOTION for Admission Pro Hac Vice as to attorney Sara Elizabeth Dill filed by American Bar Association. Description of deficiency: certificate of good standing is missing. Follow up is required. Please see attached pdf for complete details. (ESL) (Entered: 07/15/2010)
39 MOTION for Admission Pro Hac Vice as to attorney Stephen N. Zack by American Bar Association. (Zack, Stephen) (Entered: 07/15/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099033 as to Stephen N Zack. (BAS) (Entered: 07/15/2010)
40 ORDER pursuant to General Order 05−25 granting 39 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: 07/15/2010)
41 MOTION for Admission Pro Hac Vice as to attorney Barnaby W. Zall by American Unity Legal Defense Fund, Inc.. (Attachments: # 1 Certificate of Good Standing)(Zall, Barnaby) (Entered: 07/15/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099044 as to Barnaby W Zall. (BAS) (Entered: 07/15/2010)
42 ORDER pursuant to General Order 05−25 granting 41 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: 07/15/2010)
43 NOTICE of Appearance by Andrew Silverman on behalf of American Bar Association (Silverman, Andrew) (Entered: 07/16/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 46 of 58

07/16/2010 07/16/2010 07/16/2010 07/19/2010 07/19/2010 07/19/2010
07/19/2010
07/19/2010 07/19/2010 07/19/2010
07/19/2010 07/19/2010 07/20/2010
07/20/2010 07/20/2010 07/20/2010 07/20/2010
07/20/2010

44 MOTION to Consolidate Cases by David Salgado, Chicanos Por La Causa, Inc.. (Montoya, Stephen) (Entered: 07/16/2010)
46 MOTION for Leave to Appear Amicus (in Support of Dfts in this cause) by Ray Elbert Parker. (REW) (Entered: 07/19/2010)
47 LODGED Proposed Amicus Curiae Brief re: 46 MOTION for Leave to Appear: Amicus. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Ray Elbert Parker. (REW) (Entered: 07/19/2010)
45 RESPONSE in Opposition re 33 MOTION to Intervene as Defendant and Request for Expedited Ruling filed by United States of America. (Chilakamarri, Varu) (Entered: 07/19/2010)
48 NOTICE of Appearance by Edwin Smiley Kneedler on behalf of United States of America (Kneedler, Edwin) (Entered: 07/19/2010)
49 MOTION to File Amicus Curiae Opposing Motion for Preliminary Injunction by American Unity Legal Defense Fund, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Leave to File Amicus Brief)(Zall, Barnaby) (Entered: 07/19/2010)
50 LODGED Proposed Amicus Brief re: 49 MOTION to File Amicus Curiae Opposing Motion for Preliminary Injunction. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by American Unity Legal Defense Fund, Inc.. (Zall, Barnaby) (Entered: 07/19/2010)
51 Corporate Disclosure Statement by American Unity Legal Defense Fund, Inc.. (Zall, Barnaby) (Entered: 07/19/2010)
52 MOTION for Leave to File Amicus Curiae Memorandum by Arizona Municipal Risk Retention Pool. (Attachments: # 1 Exhibit)(Peters, Donald) (Entered: 07/19/2010)
53 LODGED Proposed Amicus Curiae Memorandum re: 52 MOTION for Leave to File Amicus Curiae Memorandum. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Municipal Risk Retention Pool. (Peters, Donald) (Entered: 07/19/2010)
54 MOTION to Join the Parties, in Support of State of Arizona's SB 1070 Immigration Law by Mariette Do−Nguyen. (Attachments: # 1 Exhibits) (NOTE: Exhibit F is a book)(REW) (Entered: 07/19/2010)
Notice of request for e−notices by Michael J. Meehan. (Meehan, Michael) (Entered: 07/19/2010)
55 LODGED Proposed PROPOSED MEMORANDUM IN RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION re: 33 MOTION to Intervene. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Russell K Pearce. (Kercsmar, Geoffrey) CORRECTION: document linked incorrectly. Modified on 7/20/2010 (ESL). (Entered: 07/20/2010)
56 REPLY to Response to Motion re 33 MOTION to Intervene as Defendant and Request for Expedited Ruling filed by Russell K Pearce. (Kercsmar, Geoffrey) (Entered: 07/20/2010)
57 MOTION to File Amicus Curiae supporting Defendants by Washington Legal Foundation. (Hardy, David) (Entered: 07/20/2010)
58 MOTION for Admission Pro Hac Vice as to attorney Sara Elizabeth Dill by American Bar Association. (Attachments: # 1 Certificate of Good Standing)(Dill, Sara) (Entered: 07/20/2010)
59 LODGED Proposed Amicus supporting Defendant re: 57 MOTION to File Amicus Curiae supporting Defendants. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Washington Legal Foundation. (Attachments: # 1 Text of Proposed Order)(Hardy, David) (Entered: 07/20/2010)
60 Corporate Disclosure Statement by Washington Legal Foundation, Allied Educational Foundation, National Border Patrol Council. (Attachments: # 1 Exhibit, # 2 Exhibit)(Hardy, David) Modified on 7/20/2010 to add additional filers. (ESL).

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 47 of 58

07/20/2010 07/20/2010 07/20/2010 07/20/2010 07/20/2010
07/20/2010
07/20/2010

(Entered: 07/20/2010)
61 LODGED Proposed Amended Proposed Memorandum in Response to Plaintiff's Motion for Preliminary Injunction re: 27 MOTION for Preliminary Injunction. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Russell K Pearce. (Kercsmar, Geoffrey) (Entered: 07/20/2010)
62 MOTION for Leave to File Excess Pages for Response to Motion for Preliminary Injunction by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bouma, John) (Entered: 07/20/2010)
63 LODGED Proposed Response to Motion for Preliminary Injunction. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 07/20/2010)
64 Additional Attachments to Main Document re 63 Lodged Proposed Document Index − Exhibit P by Defendants Arizona, State of, Janice K Brewer. (Attachments: # 1 Exhibit Q−Y, # 2 Exhibit Z, 1, 2, # 3 Exhibit 3−8, # 4 Exhibit 9−33, # 5 Exhibit 34−41)(Bouma, John) (Entered: 07/20/2010)
65 MOTION to File Amicus Curiae by Rodney Alexander, Michele Bachmann, Spencer Bachus, John Barrasso, Gresham Barrett, Brian Bilbray, Gus Bilirakis, Rob Bishop, Marsha Blackburn, John Boozman, Kevin Brady, Paul Broun, Ginny Brown−Waite, Michael Burgess, Ken Calvert, John Campbell, John Carter, Jason Chaffetz, Howard Coble, Mike Coffman, John Culberson, Geoff Davis, Jim Demint, David Dreier, John Duncan, John Fleming, Randy Forbes, Virginia Foxx, Trent Franks, Elton Gallegly, Scott Garrett, Phil Gingrey, Louie Gohmert, Bob Goodlatte, Tom Graves, Wally Herger, Pete Hoekstra, Duncan Hunter, James Inhofe, Lynn Jenkins, Walter Jones, Jim Jordan, Steve King, Jack Kingston, John Kline, Doug Lamborn, Robert Latta, Jerry Lewis, Cynthia Lummis, Michael McCaul, Tom McClintock, Thaddeus McCotter, Patrick McHenry, Gary Miller, Jeff Miller, Jerry Moran, Tim Murphy, Sue Myrick, Randy Neugebauer, Joe Pitts, Todd Platts, Ted Poe, Bill Posey, Tom Price, Phil Roe, Mike Rogers, Dana Rohrabacher, Ed Royce, Jean Schmidt, John Shadegg, Mike Simpson, Lamar Smith, Cliff Stearns, John Sullivan, Gene Taylor, Todd Tiahrt, David Vitter, Ed Whitfield, Roger Wicker, Rob Wittman. (Meehan, Michael) (Entered: 07/20/2010)
66 MOTION to File Amicus Curiae by Rodney Alexander, Michele Bachmann, Spencer Bachus, John Barrasso, Gresham Barrett, Brian Bilbray, Gus Bilirakis, Rob Bishop, Marsha Blackburn, John Boozman, Kevin Brady, Paul Broun, Ginny Brown−Waite, Michael Burgess, Ken Calvert, John Campbell, John Carter, Jason Chaffetz, Howard Coble, Mike Coffman, John Culberson, Geoff Davis, Jim Demint, David Dreier, John Duncan, John Fleming, Randy Forbes, Virginia Foxx, Trent Franks, Elton Gallegly, Scott Garrett, Phil Gingrey, Louie Gohmert, Bob Goodlatte, Tom Graves, Wally Herger, Pete Hoekstra, Duncan Hunter, James Inhofe, Lynn Jenkins(U.S. Representative (KS)), Walter Jones, Jim Jordan, Steve King, Jack Kingston, John Kline, Doug Lamborn, Robert Latta, Jerry Lewis, Cynthia Lummis, Michael McCaul, Tom McClintock(U.S. Representative (CA)), Thaddeus McCotter, Patrick McHenry, Gary Miller(U.S. Representative (CA) ), Jeff Miller, Jerry Moran, Tim Murphy, Sue Myrick, Randy Neugebauer, Joe Pitts, Todd Platts, Ted Poe, Bill Posey, Tom Price, Phil Roe, Mike Rogers, Dana Rohrabacher, Ed Royce, Jean Schmidt, John Shadegg, Mike Simpson, Lamar Smith(U.S. Representative (TX)), Cliff Stearns, John Sullivan, Gene Taylor, Todd Tiahrt, David Vitter, Ed Whitfield, Roger Wicker, Rob Wittman. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Amici Leave to File Brief in Support of Defendants)(Meehan, Michael) (Entered: 07/20/2010)
67 LODGED PROPOSED DOCUMENT: Amicus Curiae re 66 MOTION to File Amicus Curiae Brief of Amici Curiae by Amicus Parties Rodney Alexander, Michele Bachmann, Spencer Bachus, John Barrasso, Gresham Barrett, Brian Bilbray, Gus Bilirakis, Rob Bishop, Marsha Blackburn, John Boozman, Kevin Brady, Paul Broun, Ginny Brown−Waite, Michael Burgess, Ken Calvert, John Campbell, John Carter, Jason Chaffetz, Howard Coble, Mike Coffman, John Culberson, Geoff Davis, Jim Demint, David Dreier, John Duncan, John Fleming, Randy Forbes, Virginia Foxx, Trent Franks, Elton Gallegly, Scott Garrett, Phil Gingrey, Louie Gohmert, Bob Goodlatte, Tom Graves, Wally Herger, Pete Hoekstra, Duncan Hunter, James Inhofe, Lynn Jenkins, Walter Jones, Jim Jordan, Steve King, Jack Kingston, John Kline, Doug

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 48 of 58

07/21/2010 07/21/2010 07/21/2010 07/21/2010 07/21/2010
07/21/2010 07/21/2010
07/22/2010 07/22/2010
07/22/2010 07/22/2010 07/22/2010 07/22/2010 07/22/2010
07/22/2010

Lamborn, Robert Latta, Jerry Lewis, Cynthia Lummis, Michael McCaul, Tom McClintock, Thaddeus McCotter, Patrick McHenry, Gary Miller, Jeff Miller, Jerry Moran, Tim Murphy, Sue Myrick, Randy Neugebauer, Joe Pitts, Todd Platts, Ted Poe, Bill Posey, Tom Price, Phil Roe, Mike Rogers, Dana Rohrabacher, Ed Royce, Jean Schmidt, John Shadegg, Mike Simpson, Lamar Smith, Cliff Stearns, John Sullivan, Gene Taylor, Todd Tiahrt, David Vitter, Ed Whitfield, Roger Wicker, Rob Wittman. to be filed by the Clerk if Motion for Leave to File is granted. (Meehan, Michael) CORRECTION: incorrect event. Modified on 7/21/2010 (ESL). (Entered: 07/20/2010)
68 First MOTION for Leave to file Amicus Brief by Jesse Hernandez. (Alexander, Rachel) CORRECTION: incorrect event selected. Modified on 7/21/2010 (ESL). (Entered: 07/21/2010)
69 First MOTION to Consolidate Cases by Martin H. Escobar. (Attachments: # 1 Text of Proposed Order)(Martinez, Richard) (Entered: 07/21/2010)
Notice of request for e−notices by Kenneth D. Nyman. (Nyman, Kenneth) (Entered: 07/21/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099268 as to Sara Elizabeth Dill. (BAS) (Entered: 07/21/2010)
70 ORDER pursuant to General Order 05−25 terminating 36 Motion for Admission Pro Hac Vice; granting 58 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: 07/21/2010)
71 MOTION for Leave to File Amicus Curiae Brief by Matthew D Pinnavaia. (ESL) (Entered: 07/22/2010)
72 LODGED Proposed Brief for Amicus Curiae in Support of Defendants State of Arizona and Governor Janice K Brewer re: 71 MOTION for Leave to File Amicus Curiae Brief. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Matthew D Pinnavaia. (ESL) (Entered: 07/22/2010)
Notice of request for e−notices by Louis R. Moffa, Jr., Esquire. (Moffa, Louis) (Entered: 07/22/2010)
73 ORDER granting Dft's 62 Motion for Leave to Exceed the Page Limit. That the proposed response to pla's motion for preliminary injunction, which dfts lodged with this court on 07/20/10, shall be filed with the Clerk of the Court. Signed by Judge Susan R Bolton on 07/22/10.(ESL) (Entered: 07/22/2010)
74 RESPONSE to Motion re 27 MOTION for Preliminary Injunction filed by Arizona, State of, Janice K Brewer. (ESL) (Entered: 07/22/2010)
75 Notice re Certificate of Good Standing by Jesse Hernandez re 68 MOTION for Leave to File Amicus Brief for Larry Klayman (Alexander, Rachel) (Entered: 07/22/2010)
76 MOTION for Admission Pro Hac Vice as to attorney Carolyn Beth Lamm on behalf of American Bar Association. (BAS) (Entered: 07/22/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099283 as to Carolyn B Lamm. (BAS) (Entered: 07/22/2010)
77 ORDER pursuant to General Order 05−25 granting 76 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: 07/22/2010)
78 Minute Entry. Proceedings held before Judge Susan R Bolton: Hearing re Motion for Preliminary Injunction held on 07/22/10. IT IS ORDERED taking under advisement Plaintiff's 27 Motion for Preliminary Injunction. (Court Reporter Elizabeth Lemke.)(ESL) (Entered: 07/22/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 49 of 58

07/23/2010 07/25/2010 07/26/2010 07/26/2010 07/26/2010 07/26/2010 07/27/2010
07/27/2010 07/27/2010 07/28/2010
07/28/2010 07/29/2010
07/29/2010 08/02/2010

79 TRANSCRIPT DESIGNATION AND ORDER FORM by American Civil Liberties Union of Arizona for proceedings held on 7/22/2010 before Judge Susan R. Bolton. (Lai, Anne) (Entered: 07/23/2010)
Notice of request for e−notices by Donald Peder Johnsen. (Johnsen, Donald) (Entered: 07/25/2010)
80 TRANSCRIPT DESIGNATION AND ORDER FORM by United States of America for proceedings held on 07/22/2010 before Judge Susan R. Bolton. (Wilkenfeld, Joshua) (Entered: 07/26/2010)
81 MOTION to Dismiss Case by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 07/26/2010)
82 TRANSCRIPT DESIGNATION AND ORDER FORM by Abigail Woodbury of NBC Nightly News − Washington − for proceedings held on 7/22/2010 before Judge Susan R Bolton. (BAS) (Entered: 07/26/2010)
83 TRANSCRIPT DESIGNATION AND ORDER FORM by Arizona, State of, Janice K Brewer for proceedings held on July 22, 2010 @ 1:30 pm before Judge Susan Bolton. (Bouma, John) (Entered: 07/26/2010)
84 TRANSCRIPT of Proceedings re: Preliminary Injunction Hearing held on 07/22/2010 before Judge Susan R Bolton. Court Reporter: Elizabeth A Lemke. 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 8/17/2010. Redacted Transcript Deadline set for 8/27/2010. Release of Transcript Restriction set for 10/25/2010. (BAS) (Entered: 07/27/2010)
85 RESPONSE in Opposition re 44 MOTION to Consolidate Cases filed by United States of America. (Wilkenfeld, Joshua) (Entered: 07/27/2010)
86 LODGED Proposed Motion to Dismiss re: 33 MOTION to Intervene as Defendant and Request for Expedited Ruling. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Russell K Pearce. (Kercsmar, Geoffrey) (Entered: 07/27/2010)
87 DISSOVLED by doc.#180 ...ORDER granting in part and denying in part the United States' 27 Motion for Preliminary Injunction. IT IS FURTHER ORDERED denying the United States' Motion for Preliminary Injunction as to the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 1, Section 2(A) and (C)−(L), Section 4, the portion of Section 5 creating A.R.S. § 13−2929, the portion of Section 5 creating A.R.S. § 13−2928(A) and (B), and Sections 7−13. IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 2(B) creating A.R.S. § 11−1051(B), Section 3 creating A.R.S. § 13−1509, the portion of Section 5 creating A.R.S. § 13−2928 (C), and Section 6 creating A.R.S. § 13−3883(A)(5). Signed by Judge Susan R Bolton on 07/28/10. (NOTE: See attached pdf for complete details) (ESL) Modified on 9/18/2012 (KMG). (Entered: 07/28/2010)
88 MOTION to Intervene by Larry A. Dever. (Attachments: # 1 Exhibit Exhibit In Support of Sheriff Dever's Motion to Intervene)(Bergin, Brian) (Entered: 07/28/2010)
89 NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit, as to 87 Order on Motion for Preliminary Injunction, by Arizona, State of, Janice K Brewer. Filing fee received: $ 455.00, receipt number 0970−4173069. (Attachments: # 1 Appeal Information Representation Statement)(Bouma, John) Modified on 7/29/2010 CORRECTED to correct appeal event (REW). (Entered: 07/29/2010)
90 Ninth Circuit Case Number 10−16645 for 89 Notice of Appeal. (REW) (Entered: 07/29/2010)
91 RESPONSE in Opposition re 69 First MOTION to Consolidate Cases filed by United States of America. (Wilkenfeld, Joshua) (Entered: 08/02/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 50 of 58

08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/03/2010
08/03/2010 08/04/2010 08/05/2010 08/05/2010 08/09/2010 08/09/2010 08/09/2010 08/09/2010 08/12/2010 08/13/2010

92 RESPONSE to Motion re 44 MOTION to Consolidate Cases filed by Janice K Brewer. (Bouma, John) (Entered: 08/02/2010)
93 MOTION for Admission Pro Hac Vice as to attorney Paul J Orfanedes on behalf of Russell K Pearce. (BAS) (Entered: 08/03/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099665 as to Paul J Orfanedes. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/03/2010)
94 MOTION for Admission Pro Hac Vice as to attorney Michael Bekesha on behalf of Russell K Pearce. (BAS) (Entered: 08/03/2010)
95 MOTION for Admission Pro Hac Vice as to attorney James F Peterson on behalf of Russell K Pearce. (BAS) (Entered: 08/03/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099664 as to James F Peterson. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/03/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX099663 as to Michael Bekesha. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/03/2010)
96 ORDER pursuant to General Order 05−25 granting 93 Motion for Admission Pro Hac Vice; granting 94 Motion for Admission Pro Hac Vice; granting 95 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: 08/03/2010)
97 TRANSCRIPT REQUEST by Arizona, State of, Janice K Brewer for proceedings held on 7/22/10 before Judge Susan R. Bolton, (Bouma, John) (Entered: 08/03/2010)
98 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 89 Notice of Interlocutory Appeal. (ESL) (Entered: 08/04/2010)
99 STIPULATION and Request for Extension of Time to Respond to Motion to Dismiss by United States of America. (Attachments: # 1 Text of Proposed Order)(Chilakamarri, Varu) (Entered: 08/05/2010)
100 NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit as to 87 Order on Motion for Preliminary Injunction, by Mariette Do−Nguyen. (Attachments: # 1 Exhibits A−H, # 2 Exhibits I−O)(REW) (Entered: 08/06/2010)
101 Ninth Circuit Case Number 10−16731 for 100 Notice of Interlocutory Appeal. (REW) (Entered: 08/09/2010)
102 RESPONSE to Motion re 69 First MOTION to Consolidate Cases GOVERNOR BREWER'S RESPONSE TO PLAINTIFF'S MOTION TO CONSOLIDATE filed by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 08/09/2010)
103 ORDER that the 99 Stipulation for an Extension of Time is granted, and Plaintiff may file its Response to Defendants' Motion to Dismiss on or before 08/26/10. Signed by Judge Susan R Bolton on 08/09/10. (ESL) (Entered: 08/09/2010)
104 TRANSCRIPT REQUEST by Larry A Dever for proceedings held on 07−22−10 before Judge bolton.. (Bergin, Brian) (Entered: 08/09/2010)
105 RESPONSE in Opposition re 88 MOTION to Intervene filed by United States of America. (Chilakamarri, Varu) (Entered: 08/12/2010)
106 ORDER denying 54 Motion for Join the Parties in Support State of Arizona's SB1070 Immigration Law filed by D.Q. Mariette Do−Nguyen; denying the Motion to Appeal the Court Ruling that did not Include Badly Effected Areas in Joinder Complain and Seek the Court Enforcement Order of the U.S. Constitution and Federal Laws filed on 08/05/10. D.Q. Mariette Do−Nguyen is not a party to this case and cannot appeal. Signed by Judge Susan R Bolton on 08/13/10. (ESL) (Entered: 08/13/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 51 of 58

08/17/2010 08/18/2010
08/23/2010 08/23/2010 08/26/2010 08/27/2010 08/27/2010
09/01/2010 09/02/2010
09/02/2010 09/03/2010
09/03/2010 09/10/2010 09/13/2010 09/13/2010 09/13/2010
09/16/2010

107 USCA Appeal Fees received $ 455 receipt number PHX100245 re 100 Notice of Interlocutory Appeal filed by Mariette Do−Nguyen (ESL) (Entered: 08/18/2010)
108 MOTION for Reconsideration re 106 Order on 54 MOTION to Join the Parties, in Support of State of Arizona's SB 1070 Immigration Law, for Miscellaneous Relief, by Mariette Do−Nguyen. (Titled: "Appealing Court Ruling and Motion for Join the Parties..."). (ESL) (Entered: 08/19/2010)
109 REPLY to Response to Motion re 88 MOTION to Intervene filed by Larry A Dever. (Bergin, Brian) (Entered: 08/23/2010)
110 MOTION for Leave to File Amici Curiae Brief by Mike Bishop. (note: Amici Curiae Brief not submitted) (ESL) (Entered: 08/24/2010)
111 RESPONSE in Opposition re 81 MOTION to Dismiss Case filed by United States of America. (Wilkenfeld, Joshua) (Entered: 08/26/2010)
112 MOTION for Leave to File Amicus Curiae Memorandum in Support of Defendants Opposition to Motion To Dismiss by Ray Elbert Parker. (ESL) (Entered: 08/30/2010)
113 LODGED Proposed Amicus Curiae Memorandum in Support of the State of Arizona's Opposition to Motion to Dismiss re: 112 MOTION for Leave to File Amicus Curiae Memorandum in Support of Defendant's Opposition to Motion To Dismiss. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Ray Elbert Parker. (ESL) (Entered: 08/30/2010)
114 STIPULATION by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bouma, John) (Entered: 09/01/2010)
115 ORDER denying the document entitled 108 " Appealing Court Ruling and Motion for Join (sic) the Parties..." filed by D.Q. Mariette Do−Nguyen. D.Q. Mariette Do−Nguyen is not a party to this case, cannot appeal and will not be permitted to "join the parties". Signed by Judge Susan R Bolton on 09/02/10.(ESL) (Entered: 09/02/2010)
116 ORDER pursuant to the 114 Stipulation between the parties, the reply brief in support of defendants' motion to dismiss (doc. 81) is due by 09/10/10. Signed by Judge Susan R Bolton on 09/02/10. (ESL) (Entered: 09/02/2010)
117 ORDER that any response in opposition to Jesse Hernandez and the Arizona Latino Republican Association's Motion for Leave to Intervene as Defendants or, in the Alternative, for Leave to File Briefs as Amicus Curiae (Doc. 68) shall be filed no later than September 30, 2010. Signed by Judge Susan R Bolton on 09/03/10. (ESL) (Entered: 09/03/2010)
118 ORDER denying the following Motions to file Amicus Curiae briefs as moot: Docs. 14 , 30 , 37 , 46 , 49 , 52 , 57 , 66 . Signed by Judge Susan R Bolton on 09/03/10. (ESL) (Entered: 09/03/2010)
119 REPLY to Response to Motion re 81 MOTION to Dismiss Case filed by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 09/10/2010)
120 MOTION for Admission Pro Hac Vice as to attorney Van Irion on behalf of Intervenor Richard Mack. (BAS) (Entered: 09/13/2010)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX101125 as to Van Irion. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/13/2010)
121 ORDER pursuant to General Order 05−25 granting 120 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: 09/13/2010)
122 MOTION to Intervene by Richard Mack. (Attachments: # 1 Exhibit)(Irion, Van) (Entered: 09/16/2010)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 52 of 58

09/16/2010 09/28/2010 09/28/2010 10/06/2010 10/19/2010
10/28/2010
11/18/2010 11/18/2010 11/18/2010
12/07/2010 12/10/2010
12/20/2010 12/21/2010 01/13/2011 01/20/2011 02/10/2011
02/10/2011

123 NOTICE re Notice of Lodging by Larry A Dever re 88 MOTION to Intervene. (Attachments: # 1 Text of Proposed Order)(Bergin, Brian) (Entered: 09/16/2010)
124 RESPONSE in Opposition re 68 MOTION for Leave to File Amicus Brief (Opposition to Motion to Intervene) filed by United States of America. (Chilakamarri, Varu) (Entered: 09/28/2010)
125 RESPONSE in Opposition re 122 MOTION to Intervene filed by United States of America. (Chilakamarri, Varu) (Entered: 09/28/2010)
126 REPLY to Response to Motion re 122 MOTION to Intervene filed by Richard Mack. (Irion, Van) (Entered: 10/06/2010)
127 MANDATE of USCA − The jgm of this Court, entered 8/26/10, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule41(a) of the Federal Rules of Appellate Procedure. This appeal is DISMISSED for lack of jurisdiction re 10−16731 as to 100 Notice of Interlocutory Appeal filed by Mariette Do−Nguyen. (Attachments: # 1 Order, # 2 nda)(SAT) (Entered: 10/20/2010)
128 ORDER denying State Senator Russell Pearce's 33 Motion to Intervene; denying Cochise County Sheriff Larry A. Dever's 88 Motion to Intervene; denying Richard Mack's 122 Motion to Intervene. Signed by Judge Susan R Bolton on 10/28/10. (note: see attached pdf for complete details)(ESL) (Entered: 10/28/2010)
129 ORDER denying the 110 Motion for Leave to File Amici Curiae Brief of Michigan Senate Majority Leader Mike Bishop. Signed by Judge Susan R Bolton on 11/18/10. (ESL) (Entered: 11/18/2010)
130 ORDER denying 71 Motion for Permission to File an Amicus Curiae Brief in the U.S. District Court for the District of Arizona by Matthew D. Pinnavaia, an American Citizen. Signed by Judge Susan R Bolton on 11/18/10. (ESL) (Entered: 11/18/2010)
131 ORDER denying Ray Elbert Parker's 112 Motion for Leave to File Amicus Curiae Memorandum in Support of Defendants Opposition to Motion to Dismiss filed by Appellant After Docketing the Notice of Appeal. Signed by Judge Susan R Bolton on 11/18/10. (ESL) (Entered: 11/18/2010)
132 ORDER denying Jesse Hernandez and the Arizona Latino Republican Association's 68 Motion to Intervene. Signed by Judge Susan R Bolton on 12/07/10.(ESL) (Entered: 12/07/2010)
133 ORDER granting in part and denying in part Defendants State of Arizona and Janice K. Brewer's 81 Motion to Dismiss and granting Plaintiff 30 days including the date of entry of this Order to file any amended Complaint. Signed by Judge Susan R Bolton on 12/10/10. (ESL) (Entered: 12/10/2010)
134 STIPULATION Regarding Time for Defendants to Respond to Complaint by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bouma, John) (Entered: 12/20/2010)
135 ORDER Pursuant to the 134 stipulation between the parties, and for good cause shown, the defendants' response to the operative complaint in this action is due by 02/11/11. Signed by Judge Susan R Bolton on 12/21/10. (ESL) (Entered: 12/21/2010)
136 ORDER denying as moot Plaintiffs' Motion to Consolidate (Doc. 84 in CV10−0951 and Doc. 44 in CV10−1413). Signed by Judge Susan R Bolton on 01/12/11.(ESL) (Entered: 01/13/2011)
137 NOTICE re Association of Counsel by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 01/20/2011)
138 ANSWER to 1 Complaint, COUNTERCLAIM against United States of America, United States Department of Homeland Security, Janet A Napolitano, United States Department of Justice, Eric Himpton Holder, Jr by Janice K Brewer, Arizona, State of.(Tryon, G) (Entered: 02/10/2011)
139 SUMMONS Submitted by Arizona, State of, Janice K Brewer. (Tryon, G) (Entered: 02/10/2011)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 53 of 58

02/10/2011 02/10/2011 02/11/2011 02/11/2011 02/25/2011 03/07/2011 03/10/2011
04/01/2011
04/05/2011 04/05/2011 04/06/2011
04/06/2011
04/11/2011
04/12/2011

140 SUMMONS Submitted by Arizona, State of, Janice K Brewer. (Tryon, G) (Entered: 02/10/2011)
141 Summons Issued as to Eric Himpton Holder, Jr, Janet A Napolitano on 2/10/11. (Attachments: # 1 Summons)(MHU). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 02/10/2011)
142 MOTION to Intervene as Defendant by Arizona State Legislature. (Attachments: # 1 Exhibit 1 − Senate Bill 1117)(Kercsmar, Geoffrey) (Entered: 02/11/2011)
143 LODGED Proposed Answer in Intervention re: 142 MOTION to Intervene as Defendant. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona State Legislature. (Kercsmar, Geoffrey) (Entered: 02/11/2011)
144 RESPONSE in Opposition re 142 MOTION to Intervene as Defendant filed by United States of America. (Chilakamarri, Varu) (Entered: 02/25/2011)
145 REPLY to Response to Motion re 142 MOTION to Intervene as Defendant filed by Arizona State Legislature. (Kercsmar, Geoffrey) (Entered: 03/07/2011)
146 ORDER setting oral argument on the 142 Motion of the Arizona State Legislature for Intervention as Defendant on Friday, 04/1/11 at 10:00 a.m. in Courtroom 502. It is further ordered that counsel for Plaintiff and Defendants also be prepared to discuss a scheduling plan for this case through trial. Signed by Judge Susan R Bolton on 03/10/11. (ESL) (Entered: 03/10/2011)
147 Minute Entry. Proceedings held before Judge Susan R Bolton: Motion Hearing held on 4/1/2011 re 142 Motion of the Arizona State Legistlature for Intervention as Defendant. The 142 Motion is taken under advisement. Regarding the counterclaim, Plaintiff's counsel Chilakamarri advises the Court a Motion to Dismiss will be filed no later than 04/14/11. IT IS ORDERED the parties shall jointly advise the Court in writing within 30 days of receiving the 9th Circuit Court of Appeals' decision whether or not the parties intend to pursue further appeals. The Court may set a scheduling conference depending upon the parties' filing (Court Reporter Elizabeth Lemke.) (ESL) (Entered: 04/01/2011)
148 ORDER granting the 142 Motion of the Arizona State Legislature for Intervention as Defendant. Signed by Judge Susan R Bolton on 04/05/11.(ESL) (Entered: 04/05/2011)
149 ANSWER to 1 Complaint by Intervenor Defendant Arizona State Legislature.(ESL) (Entered: 04/05/2011)
150 Consent MOTION for Leave to File Excess Pages for Motion to Dismiss Counterclaims by Eric Himpton Holder, Jr, Janet A Napolitano, United States Department of Homeland Security, United States Department of Justice, United States of America. (Attachments: # 1 Text of Proposed Order)(Chilakamarri, Varu) (Entered: 04/06/2011)
151 NOTICE TO FILER OF DEFICIENCY re 150 Consent MOTION for Leave to File Excess Pages for Motion to Dismiss Counterclaims filed by Janet A Napolitano, United States Department of Justice, Eric Himpton Holder, Jr., United States of America, United States Department of Homeland Security. Description of deficiency: Original proposed pleading not electronically filed using the Lodged Proposed Document Event. Follow up is required. Please see attached pdf for complete details. (ESL) (Entered: 04/06/2011)
152 LODGED Proposed Lodged Motion to Dismiss Counterclaims re: 150 Consent MOTION for Leave to File Excess Pages for Motion to Dismiss Counterclaims. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Eric Himpton Holder, Jr, Janet A Napolitano, United States Department of Homeland Security, United States Department of Justice, United States of America. (Chilakamarri, Varu) (Entered: 04/11/2011)
153 ORDER that Counterdefendants' 150 Motion for Leave is granted, and they may file a motion to dismiss and supporting memorandum of law that does not exceed 32 pages. Signed by Judge Susan R Bolton on 04/12/11.(ESL) (Entered: 04/12/2011)

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04/12/2011 04/15/2011 04/18/2011
05/05/2011 05/09/2011 05/10/2011 05/11/2011 05/25/2011 06/13/2011 06/21/2011 06/23/2011 06/24/2011 06/30/2011 07/06/2011 07/07/2011

154 MOTION to Dismiss Counterclaims by Eric Himpton Holder, Jr, Janet A Napolitano, United States Department of Homeland Security, United States Department of Justice, United States of America. (ESL) (Entered: 04/12/2011)
155 Consent MOTION for Extension of Time to File Response/Reply to Counterdefendants' Motion to Dismiss Counterclaims and Exceed Page Limits by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Hiller, Evan) (Entered: 04/15/2011)
156 ORDER that the 155 Consent Motion to Exceed Page Limits is GRANTED, and Counterclaimants may file a Response to Counterdefendants' Motion to Dismiss that does not exceed 32 pages, after which Counterdefendants may file a Reply that does not exceed 11 pages. The Consent Motion to Extend Deadlines is GRANTED. Counterclaimants shall file their Response on or before 05/31/11 and Counterdefendants shall file their Reply thereto on or before 06/22/11. Signed by Judge Susan R Bolton on 04/18/11. (ESL) (Entered: 04/18/2011)
157 NOTICE of Appearance by G Michael Tryon on behalf of Arizona, State of (Tryon, G) (Entered: 05/05/2011)
158 STIPULATION re 154 MOTION to Dismiss Counts/Claims to Extend Time for Defendants/Counterclaimants to File Response and for Plaintiff/Counterdefendants to File a Reply by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Tryon, G) (Entered: 05/09/2011)
159 ORDER Pursuant to the stipulation between parties, and for good cause shown, it is ordered that Defendants/Counterclaimants' response brief in opposition to the 154 Motion to Dismiss is due 06/13/11 and Counterdefendants' reply brief is due by 07/12/11. Signed by Judge Susan R Bolton on 05/10/11. (ESL) (Entered: 05/10/2011)
160 NOTICE re Re Defendants' Intent to File a Petition for Writ of Certiorari by Arizona State Legislature, Arizona, State of, Janice K Brewer, United States of America re 147 Order on Motion to Intervene, Motion Hearing,,,,. (Bouma, John) (Entered: 05/11/2011)
161 NOTICE of Attorney Substitution by John J Bouma (Bouma, John) (Entered: 05/25/2011)
162 RESPONSE to Motion re 154 MOTION to Dismiss Counts/Claims filed by Arizona, State of, Janice K Brewer. (Hiller, Evan) (Entered: 06/13/2011)
163 Minute Order: Motion Hearing set for 7/28/2011 at 10:00AM before Judge Susan R Bolton re: 154 MOTION to Dismiss Counterclaims. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 06/21/2011)
164 *Proposed Brief STRICKEN per (Doc 165)*MOTION for Amicus Curiae APPEARANCE entered by John Joseph Jakubczyk on behalf of Minuteman Civil Defence Corps. (Jakubczyk, John) *Entry modified to correct event on 6/24/2011 (ESL). (Entered: 06/23/2011)
165 ORDER denying the Minuteman Civil Defence [sic] Corps's 164 Motion for leave to file an amicus curiae brief and striking the proposed brief from the docket. Signed by Judge Susan R Bolton on 06/24/11. (ESL) (Entered: 06/24/2011)
166 MANDATE of USCA as to 89 Notice of Appeal, appeal case number 10−16645 filed by Janice K Brewer, Arizona, State of. We AFFIRM the preliminary injunction enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6. (Attachments: # 1 Opinion, # 2 NDA)(ESL) (Entered: 06/30/2011)
167 *MOTION to File Amicus Curiae by John Joseph Jakubczyk on behalf of Minuteman Civil Defence Corps. (Jakubczyk, John) *Modified to Motion event on 7/7/2011* (REW). (Entered: 07/06/2011)
168 ORDER denying the Renewed 167 Motion by Minuteman Civil Defense Corps, a Project of Declaration Alliance for Leave to File Amicus Brief of Minuteman Civil Defense Corps, a Project of Declaration Alliance, in Support of Counterclaimants' Opposition to Counterdefendants' Motion to Dismiss. Signed by Judge Susan R Bolton on 07/07/11. (ESL) (Entered: 07/07/2011)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 55 of 58

07/12/2011 07/28/2011 08/01/2011 10/21/2011 01/12/2012 01/27/2012 01/27/2012 01/30/2012
08/08/2012 09/05/2012
09/17/2012 09/18/2012
09/24/2012 12/17/2012 02/07/2013

169 REPLY to Response to Motion re 154 MOTION to Dismiss Counts/Claims filed by Eric Himpton Holder, Jr, Janet A Napolitano, United States Department of Homeland Security, United States Department of Justice, United States of America. (Chilakamarri, Varu) (Entered: 07/12/2011)
170 Minute Entry. Proceedings held before Judge Susan R Bolton: This is the time set for Hearing re: Counterdefendants' 154 Motion to Dismiss Counterclaims. Argument held. IT IS ORDERED taking under advisement Counterdefendants' 154 Motion to Dismiss Counterclaims. (Court Reporter Liz Lemke.) (ESL) (Entered: 07/29/2011)
Notice of request for e−notices by Diana L. Varela. (Varela, Diana) (Entered: 08/01/2011)
171 ORDER granting the Counterdefendants' 154 Motion to Dismiss Counerclaims and dismissing Arizona's Counterclaims. Signed by Judge Susan R Bolton on 10/21/11.(ESL) (Entered: 10/21/2011)
172 NOTICE of Appearance by Peter Andrew Gentala on behalf of Arizona State Legislature (Gentala, Peter) (Entered: 01/12/2012)
173 MOTION to Withdraw as Attorney by Arizona State Legislature. (Attachments: # 1 Text of Proposed Order)(Kercsmar, Geoffrey) (Entered: 01/27/2012)
174 *ERRATA re 173 Motion to Withdraw and Substitute Counsel of Record for The Arizona State Legislature by Arizona State Legislature.(Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kercsmar, Geoffrey) *Modified entry to correct event type on 1/30/2012 (ESL). (Entered: 01/27/2012)
175 ORDER pursuant to the 173 Motion to Withdraw as Counsel, it is ordered that Kercsmar & Feltus PLLC, Judicial Watch, Inc., Geoffrey S. Kercsmar, Gregory B. Collins, Paul J. Orfanedes, James F. Peterson and Michael Bekesha are permitted to withdraw as counsel of record for the Arizona State Legislature. Signed by Judge Susan R Bolton on 01/30/12. (ESL) (Entered: 01/30/2012)
177 MANDATE of USCA affirming in part and reversing in part District Court's preliminary injunction; re 10−16645 as to 89 Notice of Appeal, filed by Janice K Brewer, Arizona, State of. (Attachments: # 1 Opinion, # 2 Writ of Certiorari, # 3 NDA). (LSP) (Entered: 08/08/2012)
178 ORDER directing the parties to file a stipulated proposed form of order to comply with the mandate of the Ninth Circuit Court of Appeals within 10 days of the date of entry of this Order. If the parties cannot stipulate, Defendants are directed to lodge a proposed form of order, to which Plaintiff may object. Signed by Judge Susan R Bolton on 9/5/2012. (KMG) (Entered: 09/05/2012)
179 STIPULATION Regarding The Preliminary Injunction of Sections 2(B), 3, 5(C), and 6 of S.B. 1070 by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bouma, John) (Entered: 09/17/2012)
180 ORDER pursuant to the parties 179 Stipulation: that the preliminary injunction of Section 2(B) of S.B. 1070 (as amended by House Bill 2162), codified at A.R.S. 11−1051(B), which this Court entered on July 28, 2010, ECF No. 87 , is hereby dissolved. IT IS FURTHER ORDERED that Sections 3 (A.R.S. § 13−1509), 5(C) (A.R.S. § 13−2928), and 6 (A.R.S. § 13−3883) of S.B. 1070 are hereby permanently enjoined. Signed by Judge Susan R Bolton on 9/18/2012. (KMG) (Entered: 09/18/2012)
181 NOTICE re Association of Counsel by Arizona, State of, Janice K Brewer . (Kszywienski, Kelly) (Entered: 09/24/2012)
182 NOTICE of Appearance by W Scott Simpson on behalf of United States of America. (Simpson, W) (Entered: 12/17/2012)
183 ORDER: IT IS ORDERED that the parties file a status report with this Court within 10 days of the date of this Order advising the Court of what claims remain and a proposed schedule for further proceedings in this case. Signed by Judge Susan R Bolton on 2/7/13. (MAW) (Entered: 02/07/2013)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 56 of 58

02/13/2013 02/13/2013
03/07/2013 10/18/2013 10/18/2013 12/03/2013 12/03/2013 01/28/2014
02/01/2014 02/03/2014
04/28/2014 04/29/2014
05/29/2014 06/02/2014
06/02/2014 06/05/2014 06/09/2014

184 Consent MOTION for Extension of Time to File Status Report by United States of America. (Attachments: # 1 Text of Proposed Order)(Simpson, W) (Entered: 02/13/2013)
185 ORDER granting 184 Motion for Extension of Time to File Status Report. IT IS FURTHER ORDERED that the parties shall file a status report no later than March 12, 2013, advising the Court of what claims remain and a proposed schedule for further proceedings in this case. Signed by Judge Susan R Bolton on 2/13/13.(MAW) (Entered: 02/13/2013)
186 STATUS REPORT by United States of America. (Simpson, W) (Entered: 03/07/2013)
187 NOTICE re Supplemental Authority by United States of America . (Attachments: # 1 Valle del Sol v. Whiting (9th Cir. Oct. 8, 2013))(Simpson, W) (Entered: 10/18/2013)
188 NOTICE of Attorney Substitution by G Michael Tryon. (Tryon, G) (Entered: 10/18/2013)
189 STATUS REPORT by United States of America. (Simpson, W) (Entered: 12/03/2013)
190 NOTICE of Attorney Substitution by Robert Lawrence Ellman. (Ellman, Robert) (Entered: 12/03/2013)
191 ORDER: On December 3, 2013 Plaintiff filed a Status Report advising the Court that "The parties propose to file a further status report no later than January 13, 2014 regarding the resolution of plaintiff's remaining claims." As of the date of this Order no further status report has been filed. IT IS ORDERED that Plaintiff file a Status Report regarding the resolution of Plaintiff's remaining claims within seven (7) days of the date of this Order. Signed by Judge Susan R Bolton on 1/28/14. (MAW) (Entered: 01/28/2014)
192 STATUS REPORT by United States of America. (Simpson, W) (Entered: 02/01/2014)
193 ORDER: The Court has received and reviewed the Status Report filed on February 1, 2014. IT IS ORDERED that the parties file a status report regarding the resolution of plaintiff's remaining claims no later than seven days after the Supreme Court announces its decision regarding the pending certiorari petition in Valle del Sol., Inc. v. Whiting, U.S. No. 13−806. Signed by Judge Susan R Bolton on 2/3/14. (MAW) (Entered: 02/03/2014)
194 STATUS REPORT by United States of America. (Attachments: # 1 Text of Proposed Order)(Simpson, W) (Entered: 04/28/2014)
195 ORDER: Upon consideration of the parties' Status Report 194 and of all materials submitted in relation thereto, IT IS ORDERED that the parties shall file a further status report herein with a proposal for resolving the remaining claims no later than May 29, 2014. Signed by Judge Susan R Bolton on 4/29/14. (MAW) (Entered: 04/29/2014)
196 STATUS REPORT by United States of America. (Attachments: # 1 Text of Proposed Order)(Simpson, W) (Entered: 05/29/2014)
197 ORDER Upon consideration of the parties' Status Report (Doc. 196 ) and of all materials submitted in relation thereto, it is hereby ORDERED that the parties shall file a further status report herein with a proposal for resolving the remaining claims, no later than June 5, 2014. Signed by Judge Susan R Bolton on 6/2/2014. (KMG) (Entered: 06/02/2014)
198 RESPONSE re: 196 Report − Status by Interested Party American Civil Liberties Union of Arizona. (Sun, Christine) (Entered: 06/02/2014)
199 STATUS REPORT by United States of America. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Simpson, W) (Entered: 06/05/2014)
200 ORDER that all claims in the United States' Complaint challenging on its face Section 2(B) of S.B. 1070 (as amended by H.B. 2162), codified at A.R.S. 11−1051(B), are hereby dismissed, without prejudice to any future as−applied challenge that the United States may assert in a separate proceeding; the portion of Section 5 of S.B. 1070 that is codified at A.R.S. § 13−2929 (as amended by H.B. 2162), is hereby permanently enjoined. Signed by Judge Susan R Bolton on 6/9/2014. (ALS) (Entered: 06/09/2014)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 57 of 58

06/09/2014
07/18/2014 07/21/2014 07/23/2014 07/30/2014 09/02/2014 09/05/2014 09/26/2014 09/26/2014
09/26/2014 09/30/2014 10/16/2014 10/17/2014
11/03/2014

201 ORDER that the plaintiff shall file a memorandum regarding Section 4 of S.B.1070 and A.R.S. § 13−2319 no later than July 18, 2014; that the defendants shall file a responsive memorandum no later than September 5, 2014; and that the plaintiffs shall file a reply memorandum, if any, no later than September 30, 2014. Signed by Judge Susan R Bolton on 6/9/2014. (ALS) (Entered: 06/09/2014)
202 MOTION for Judgment on the Pleadings (Partial) by United States of America. (Attachments: # 1 Email Exchange, # 2 Text of Proposed Order)(Simpson, W) (Entered: 07/18/2014)
203 MINUTE ORDER: Motion Hearing set for 9/8/2014 at 09:00AM before Judge Susan R Bolton as to 202 MOTION for Partial Judgment on the Pleadings. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 07/21/2014)
204 ORDER: IT IS ORDERED resetting Oral Argument on Plaintiff's Motion for Partial Summary Judgment on the Pleadings 202 from September 8, 2014, to November 3, 2014, at 10:00 a.m. Signed by Judge Susan R Bolton on 7/23/14. (MAW) (Entered: 07/23/2014)
205 *NOTICE of Waiver of Electronic Service by Arthur R. Goldberg by United States of America . (Simpson, W) *Modified event on 7/31/2014 (LFIG). (Entered: 07/30/2014)
206 NOTICE re: Unavailability of Counsel for Plaintiff by United States of America . (Simpson, W) (Entered: 09/02/2014)
207 RESPONSE to Motion re: 202 MOTION for Judgment on the Pleadings (Partial) filed by Arizona, State of, Janice K Brewer. (Bouma, John) (Entered: 09/05/2014)
208 MOTION for Leave to File Amicus Brief in Opposition to Plaintiff's Motion for Partial Judgment on the Pleadings [Doc. #202, 207] by William G. Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) (Entered: 09/26/2014)
209 (Filed at doc.# 213 ) LODGED Proposed Maricopa County Attorney William G. Montgomery's [Proposed] Amicus Brief in Opposition to Plaintiff's Motion for Judgment on the Pleadings [Doc. #202, 207). Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by William G. Montgomery. (Uglietta, Ann) Modified on 10/17/2014 (KMG). (Entered: 09/26/2014)
210 Additional Attachments to Main Document re: 209 Lodged Proposed Document in Opposition to Plaintiff's Motion for Judgment on the Pleadings [Doc. #202, 207] by Amicus William G. Montgomery. (Attachments: # 1 Exhibit)(Uglietta, Ann) (Entered: 09/26/2014)
211 REPLY to Response to Motion re: 202 MOTION for Judgment on the Pleadings (Partial) filed by United States of America. (Simpson, W) (Entered: 09/30/2014)
213 AMICUS BRIEF in Opposition to re: 202 MOTION for Judgment on the Pleadings (Partial) by Amicus William G. Montgomery. (Attachments: # 1 Index)(KMG) (Entered: 10/17/2014)
212 ORDER granting 208 Maricopa County Attorney William G. Montgomery's Motion for Leave to File Amicus Brief in Opposition to Plaintiff's Motion for Partial Judgment on the Pleadings; and ORDERING that the Clerk shall accept for filing Maricopa County Attorney William G. Montgomery's Amicus Brief in Opposition to Plaintiff's Motion for Partial Judgment on the Pleadings lodged on September 26, 2014, on the Court's docket. Signed by Judge Susan R Bolton on 10/16/14.(MAW) (Entered: 10/17/2014)
214 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing held on 11/3/2014. Argument held. IT IS ORDERED taking under advisement 202 Plaintiff's Motion for Partial Judgment on the Pleadings.

APPEARANCES: W. Scott Simpson for Plaintiff. Robert Henry, John Bouma, Kelly Kszywienski, Stacy Guillen and Stephanie Elliott for Defendants. (Court Reporter Liz Lemke) Hearing held 10:00 AM to 10:32 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 11/03/2014)

Case: 2:10-cv-1413 As of: 04/08/2017 08:59 AM MST 58 of 58

11/07/2014
12/22/2014 12/22/2014 01/06/2015 01/06/2015 01/07/2015 01/08/2015 02/05/2015 02/11/2015
02/20/2015 04/08/2015

215 ORDER granting 202 United States' Motion for Partial Judgment on the Pleadings. IT IS FURTHER ORDERED that A.R.S. § 13−2319, as amended by Section 4 of S.B. 1070, is declared preempted by federal law and is permanently enjoined [see attached Order for details]. Signed by Judge Susan R Bolton on 11/7/14.(MAW) (Entered: 11/07/2014)
216 MOTION to Withdraw as Attorney by Arizona, State of, Janice K Brewer. (Attachments: # 1 Text of Proposed Order)(Bouma, John) (Entered: 12/22/2014)
217 ORDER granting 216 Motion to Withdraw as Attorney − that attorney Joseph Sciarrotta, Jr. shall be withdrawn as counsel for Defendants in this action. Mr. Sciarrotta's name shall be removed from the Court's docket as counsel for Defendants. Signed by Judge Susan R Bolton on 12/22/2014.(KMG) (Entered: 12/22/2014)
218 NOTICE re: Notice of Appeal by Arizona, State of re: 215 Order on Motion for Judgment on the Pleadings . (Tryon, G) (Entered: 01/06/2015)
219 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 215 Order on Motion for Judgment on the Pleadings by Arizona, State of. (Filed by Micheal Tyron) (Note: Incorrectly filed as a simple Notice at doc.# 218 .) (KMG) (Entered: 01/07/2015)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 505.00 receipt number 0970−11225019. (Tryon, G) (Entered: 01/07/2015)
220 USCA Case Number re: 219 Notice of Appeal. Ninth Circuit Case Number 15−15014. (Copies issued by Ninth Circuit) (LFIG) Modified on 1/8/2015 (LFIG). (Entered: 01/08/2015)
221 TRANSCRIPT REQUEST by Arizona, State of for proceedings held on 11/3/14, Judge Susan R Bolton hearing judge(s). (Tryon, G) (Entered: 02/05/2015)
222 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings for date of 11/03/2014 before Judge Susan R. Bolton re: 219 Notice of Appeal. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/4/2015. Redacted Transcript Deadline set for 3/16/2015. Release of Transcript Restriction set for 5/12/2015. (RAP) (Entered: 02/13/2015)
223 NOTICE of Attorney Substitution by John R Lopez, IV. (Lopez, John) (Entered: 02/20/2015)
224 MANDATE of USCA, Appellant's motion to dismiss this appeal is granted. A copy of this order shall serve as and for the mandate of this court, as to 9CCA #15−15014 re: 219 Notice of Appeal. (Attachments: # 1 NDA)(Copies sent by the Ninth Circuit.)(KMG) (Entered: 04/08/2015)

 
 No. 11-182

IN THE
Supreme Court of the United States

___________

STATE OF ARIZONA and JANICE K. BREWER, Governor of the State of Arizona, in her official capacity,

Petitioners, v. UNITED STATES OF AMERICA,

_________

Respondent.

On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit
___________
BRIEF FOR PETITIONERS
___________

Joseph Sciarrotta, Jr.

Paul D. Clement

General Counsel

Counsel of Record

OFFICE OF GOVERNOR

Viet D. Dinh

JANICE K. BREWER

H. Christopher Bartolomucci

1700 W. Washington St.

Nicholas J. Nelson

9th Floor

BANCROFT PLLC

Phoenix, AZ 85007

1919 M St., N.W., Suite 470

(602) 542-1586

Washington, D.C. 20036

John J. Bouma Robert A. Henry

(202) 234-0090 pclement@bancroftpllc.com

Kelly Kszywienski

SNELL & WILMER LLP

One Arizona Center

400 East Van Buren

Phoenix, AZ 85004

(602) 382-6000

Counsel for Petitioners

QUESTION PRESENTED
Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state lawenforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.
The question presented is whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

ii
PARTIES TO THE PROCEEDING Petitioners, the State of Arizona and Governor Janice K. Brewer, were the appellants in the court below. Respondent, the United States, was the appellee in the court below.

iii
TABLE OF CONTENTS QUESTION PRESENTED ......................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ...................................... v BRIEF FOR PETITIONERS ..................................... 1 OPINIONS BELOW................................................... 1 JURISDICTION ......................................................... 1 STATUTORY PROVISIONS INVOLVED ................ 1 STATEMENT ............................................................. 1
A. Illegal Immigration’s Disproportionate Impact on Arizona...................................... 1
B. Federal Immigration Law ......................... 8 C. Arizona’s S.B. 1070 .................................. 14 D. Proceedings Below ................................... 18 SUMMARY OF ARGUMENT.................................. 23 ARGUMENT ............................................................ 27 I. STATES HAVE AUTHORITY TO REGULATE UNLAWFULLY PRESENT ALIENS IN A MANNER CONSISTENT WITH FEDERAL IMMIGRATION LAW. ........ 27 A. General Preemption Principles ............... 27 B. State Authority to Regulate
Unlawfully Present Aliens....................... 29 II. THE LAW ENFORCEMENT PROVISIONS
OF S.B. 1070—SECTIONS 2(B) AND 6— ARE CONSTITUTIONAL. ................................ 31

iv

A. Federal Law Expressly Authorizes

States and the Federal Government to

Communicate and Cooperate With

Each Other

on Immigration

Enforcement ............................................. 31

B. The Ninth Circuit Erred in Holding Section 2(B) Facially Invalid ................... 38

C. The Ninth Circuit Misconstrued Section 2(B) .............................................. 39

D. The Authority Conferred by Section 6 to Make Arrests for Removable Crimes Is Constitutional ...................................... 41

1. State Officers Have Inherent Authority to Enforce the Immigration Laws, Both Criminal and Civil............................................. 42

2. Section 1357(g)(10) Recognizes States’ Ability to Make the Arrests Authorized By Section 6.................... 46

3. Respondent’s Facial Attack on Section 6 Cannot Succeed ................. 48

III. SECTION 3 IS CONSTITUTIONAL............... 49

IV. SECTION 5(C) IS CONSTITUTIONAL.......... 53

V. FOREIGN CRITICISM OF S.B. 1070 HAS NO PREEMPTIVE EFFECT ........................... 57

VI. S.B. 1070 POSES NO DISUNIFORMITY CONCERNS. .................................................... 60

CONCLUSION ......................................................... 62

STATUTORY APPENDIX

v
TABLE OF AUTHORITIES
Cases American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) ............................................ 58 Asbell v. Kansas, 209 U.S. 251 (1908) ............................................ 50 Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298 (1994).......................... 28, 59 Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) ...................................... 29, 50 Buckman v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) ...................................... 52, 53 California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987)............................... 28 California v. FERC, 495 U.S. 490 (1990) ............................................ 27 Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968 (2011) .................................passim Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ............................................ 58 DeCanas v. Bica, 424 U.S. 351 (1976) .....................................passim Estrada v. Rhode Island, 594 F.3d 56 (1st Cir. 2010) ................................. 44 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)................................... 27 Fox v. Ohio, 46 U.S. 410 (1847)............................. 50 Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88 (1992) .................................... 31

vi
Gilbert v. Minnesota, 254 U.S. 325 (1920) ............................................ 51
Hines v. Davidowitz, 312 U.S. 52 (1941) .................................. 52, 55, 56
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ................................ 57
In re Quarles, 158 U.S. 532 (1895) ............................................ 43
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ............................................ 8
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) ............................ 44
Malone v. White Motor Corp., 435 U.S. 497 (1978) ............................................ 27
Marsh v. United States, 29 F.2d 172 (2d Cir. 1928) .................................. 43
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...................................... 29, 50
Muehler v. Mena, 544 U.S. 93 (2005) ........................................ 22, 44
National Ctr. for Immigrants’ Rights, Inc. v. INS, 913 F.2d 1350 (9th Cir. 1990), rev’d, 502 U.S. 183 (1991)............................. 21, 56
North Dakota v. United States, 495 U.S. 423 (1990) ............................................ 28
Pennsylvania v. Nelson, 350 U.S. 497 (1956) ............................................ 50
People of State of Cal. v. Zook, 336 U.S. 725 (1949) ................................ 47, 49, 50
Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003) ............................................ 29

vii
Plyler v. Doe, 457 U.S. 202 (1982) .............................9, 30, 50, 53
Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963) .............................................. 27
Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ...................................... 29, 50
Shivani v. Gonzales, 167 F. App’x 362 (4th Cir. 2006) ........................ 57
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) .................................................................. 55
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ....................................9, 13, 43, 56
United States v. Di Re, 332 U.S. 581 (1948) ...................................... 43, 46
United States v. Rodriguez-Arreola, 270 F.3d 611 (8th Cir. 2001) .............................. 44
United States v. Salerno, 481 U.S. 739 (1987) ............................................ 38
United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) .......................... 45
United States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007) .............................. 44
United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) .................... 45, 47
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) ............................................................ 38, 41
Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282 (1986) .................................................................. 50

viii
Wyeth v. Levine, 555 U.S. 555 (2009) ............................................ 29
Constitutional Provisions U.S. Const. art. I, § 8, cl. 6 .................................... 50
Statutes Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. .......................................... 8 8 U.S.C. § 1226 ........................................................ 9 8 U.S.C. § 1227(a)(1)(C)(i) ..................................... 57 8 U.S.C. § 1251 ........................................................ 9 8 U.S.C. § 1252c......................................... 19, 25, 46 8 U.S.C. § 1302 ........................................................ 9 8 U.S.C. § 1304(e) ........................................ 9, 17, 45 8 U.S.C. § 1306 ............................................ 9, 17, 45 8 U.S.C. § 1324a ...................................13, 14, 53, 54 8 U.S.C. § 1325 ........................................................ 9 8 U.S.C. § 1357 ........................................................ 9 8 U.S.C. § 1357(g) ...........................................passim 8 U.S.C. § 1373 ...............................................passim 8 U.S.C. § 1644 .....................................12, 25, 33, 37 28 U.S.C. § 1254(1) .................................................. 1 28 U.S.C. § 1292(a)(1) ............................................. 1 S.B. 1070, § 2, Ariz. Rev. Stat. § 11-1051............................passim S.B. 1070, § 3, Ariz. Rev. Stat. § 13-1509............................. 17, 49 S.B. 1070, § 5, Ariz. Rev. Stat. § 13-2928....................... 17, 18, 53

ix
S.B. 1070, § 6, Ariz. Rev. Stat. § 13-3883(A)(5) ................... 16, 41
Mo. Rev. Stat. § 577.680(1) ................................... 12
Illegal Immigration Reform & Immigrant Responsibility Act of 1986, 110 Pub. L. No. 104-208 div. C, 110 Stat. 3009-546 ........... 8, 9
Immigration Reform & Control Act of 1986, Pub. L. No. 99-603, § 115, 100 Stat. 3359, 3384 ......................................... 2, 8
Other Authorities
142 Cong. Rec. H2191 (daily ed. Mar. 13, 1996) (Rep. Doolittle) .......... 47
Ariz. Dep’t of Pub. Safety, Drop House Awareness Program, http://www.azdps.gov/information/Drop_ Houses................................................................... 4
City of Phoenix Kidnapping Statistics Review Panel Report (2011), http://phoenix.gov/webcms/groups/interne t/@inter/@newsrel/documents/web_conten t/059403.pdf .......................................................... 4
Congressional Budget Office, The Role of Immigrants in the US Labor Market (2005), http://www.cbo.gov/doc.cfm?index=6853 ............. 7
Dan Nowicki, Arizona Immigration Law Ripples Through History, U.S. Politics, Ariz. Republic (July 20, 2010), http://www.azcentral.com/arizonarepubli c/news/articles/2010/07/25/20100725immi gration-law-history-politics.html ......................... 2

x
David W. Chen & Kareem Fahim, Immigration Checks Ordered in New Jersey, N.Y. Times (Aug. 23, 2007), http://www.nytimes.com/2007/08/23/nyre gion/23immig.html ............................................. 12
Examining 287(g): The Role of State and Local Law Enforcement in Immigration Law: Hearing Before the H.R. Comm. on Homeland Sec., 111th Cong. 64 (Mar. 4, 2009)................................................ 11, 13
Hearing Before Ariz. H.R. Comm. on Military Affairs and Public Safety (Mar. 31, 2010), video available at http://azleg.granicus.com/MediaPlayer.ph p?view_id=13&clip_id=7286......................... 15, 17
Holder Admits to not Reading Arizona’s Immigration Law Despite Criticizing It, FOXNews.com (May 14, 2010), http://www.foxnews.com/politics/2010/05/ 13/holder-admits-reading-arizonasimmigration-law-despite-slamming/.................. 18
Jeffrey Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, Pew Hispanic Center (2011), http://www.pewhispanic.org/files/reports/ 133.pdf........................................................... 2, 7, 8

xi
Joshua Rhett Miller, Five Federal Lands in Arizona Have Travel Warnings in Place, FOXNews.com (June 18, 2010), http://www.foxnews.com/us/2010/06/18/fe deral-lands-arizona-travel-warningsplace/ ..................................................................... 5
Lourdes Medrano, Drug War’s Hidden Front: Nogales’s Tunnels, The Christian Sci. Monitor (Aug. 20, 2009), http://www.csmonitor.com/USA/ForeignPolicy/2009/0820/p22s01-usfp.html ..................... 4
Majority Staff of House Comm. on Homeland Sec. Subcomm. on Investigations, A Line in the Sand: Confronting the Threat at the Southwest Border (2006), http://www.house.gov/sites/members/tx10 _mccaul/pdf/Investigations-BorderReport.pdf. ............................................................ 4
Marc Lacey, Smugglers of Drugs Burrow on Border, N.Y. Times (Oct. 2, 2010), http://www.nytimes.com/2010/10/03/us/03 tunnels.html ......................................................... 4
Monica Yancy, Budget Woes Reduce Patrols, Assistance in Parks, Our Nat’l Parks (May 10, 2007), http://ournationalparks.us/index.php/site/ story_issues/budgetwoes_reduce_patrols_ assistance_in_parks/............................................. 5
Nat’l Park Serv., http://www.nps.gov/orpi/planyourvisit/bor der-concerns.htm .................................................. 5

xii
Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57 (2007) ........................... 3
Press Release, U.S. Immigration & Customs Enforcement, ICE Arrests 108 at Phoenix Human Smuggling Drop House (May 25, 2011) (http://www.ice.gov/news/releases/1105/1 10525phoenix.htm ................................................ 5
Prince William Cnty., Va. Police Dep’t Gen. Order 45.01, Local Enforcement Response to Illegal Immigration (2008), http://www.pwcgov.org/government/dept/ police/Documents/008511.pdf............................. 13
Ralph Blumenthal, Citing Border Violence, 2 Border States Declare a Crisis, N.Y. Times (Aug. 17, 2005), http://query.nytimes.com/gst/fullpage.ht ml?res=9C0CE2DF133EF934A2575BC0 A9639C8B63&pagewanted=all ............................ 7
Ralph Vartabedian, The Law Loses Out at U.S. Parks, L.A. Times (Jan. 23, 2003), http://articles.latimes.com/2003/jan/23/na tion/na-ranger23 ................................................... 5
Raquel Rubio-Goldsmith et al., Binat’l Migration Inst., The “Funnel Effect” & Recovered Bodies of Unauthorized Migrants Processed By the Pima County Office of the Medical Examiner, 19902005 (2006), http://www.ushrnetwork.org/sites/default /files/bmi%20report.pdf ........................................ 2

xiii
Remarks by the President at the American University School of International Service on Comprehensive Immigration Reform (July 1, 2010), http://www.whitehouse.gov/the-pressoffice/remarks-president-comprehensiveimmigration-reform .............................................. 2
U.S. Dep’t of Homeland Sec., 2010 Yearbook of Immigration Statistics (2011), http://www.dhs.gov/files/statistics/immigr ation.shtm ............................................................. 3
U.S. Dep’t of Justice Nat’l Drug Intelligence Ctr., National Drug Threat Assessment 2010, http://www.justice.gov/ndic/pubs38/38661 /swb.htm................................................................ 4
U.S. Gov’t Accountability Office, GAO-09109, Immigration Enforcement: Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration Laws (2009), http://www.gao.gov/new.items/d09109.pdf ........ 11
U.S. Immigration & Customs Enforcement, Law Enforcement Support Center, http://www.ice.gov/lesc/ ................................ 12, 37

xiv
U.S. Immigration & Naturalization Serv., U.S. Dep’t of Interior, U.S. Forest Serv., and U.S. Envtl. Prot. Agency, Report to the House of Representatives Committee on Appropriations on Impacts Caused by Undocumented Aliens Crossing Federal Lands in Southeast Arizona, http://www.blm.gov/pgdata/etc/medialib/b lm/az/pdfs/undoc_aliens/02_report.Par.82 778.File.dat/SEAZ_REPORT2.pdf ................... 6, 7

BRIEF FOR PETITIONERS
OPINIONS BELOW
The opinion of the Ninth Circuit is reported at 641 F.3d 339 and reproduced in the appendix to the Petition for Certiorari (“App.”) at 1a. The opinion of the District Court for the District of Arizona is reported at 703 F. Supp. 2d 980 and reproduced at App. 116a.
JURISDICTION
The judgment of the Ninth Circuit was entered on April 11, 2011. App. 1a. On June 30, 2011, Justice Kennedy extended the time to petition for certiorari to and including August 10, 2011. App. 205a. The jurisdiction of the Ninth Circuit was based on 28 U.S.C. § 1292(a)(1). App. 3a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent provisions of S.B. 1070 (as amended by H.B. 2162) and Title 8 of the United States Code are reproduced at the Statutory Appendix to this brief, App. 1a and 12a.
STATEMENT
A. Illegal Immigration’s Disproportionate Impact on Arizona.
Arizona shoulders a disproportionate burden of the national problem of illegal immigration. Arizona and its 370-mile border are a conduit for rampant illegal entries and cross-border smuggling to a degree unparalleled in any other State. The publicsafety and economic strains that this places on Arizona and its residents have created an emergency situation, which demanded a response.

2
The President fairly describes our Nation’s system of immigration regulation and enforcement as “broken.”1 Lack of effective enforcement of the existing immigration rules has permitted an estimated 11 million aliens to reside in the United States unlawfully.2 Compounding this problem for Arizona is the fact that, despite Congress’ manifest resolution that “the immigration laws of the United States should be enforced vigorously and uniformly,” Immigration Reform & Control Act of 1986, Pub. L. No. 99-603, § 115, 100 Stat. 3359, 3384, in the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect.3 The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s
1 Remarks by the President at the American University School of International Service on Comprehensive Immigration Reform (July 1, 2010), http://www.whitehouse.gov/the-pressoffice/remarks-president-comprehensive-immigration-reform.
2 Jeffrey Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, Pew Hispanic Center 1 (2011), http://www.pewhispanic.org/files/reports/133. pdf.
3 Joint Appendix (“JA”) 244-246, 264-265; see generally Raquel Rubio-Goldsmith et al., Binat’l Migration Inst., The “Funnel Effect” & Recovered Bodies of Unauthorized Migrants Processed By the Pima County Office of the Medical Examiner, 1990-2005 (2006), http://www.ushrnetwork.org/sites/default/ files/bmi%20report.pdf; Dan Nowicki, Arizona Immigration Law Ripples Through History, U.S. Politics, Ariz. Republic (July 20, 2010), http://www.azcentral.com/arizonarepublic/ news/articles/2010/07/25/20100725immigration-law-historypolitics.html

3
illegal border crossings occurred in Arizona.4 These illegal entries are not quick dashes across the border: They instead often involve multi-day hikes by large groups through rural areas, typically escorted by heavily armed smugglers. This flood of unlawful cross-border traffic, and the accompanying influx of illegal drugs, dangerous criminals and highly vulnerable persons, have resulted in massive problems for Arizona’s citizens and government, leaving them to bear a seriously disproportionate share of the burden of an already urgent national problem.5
Illegal drug and human smuggling pose severe crime problems in Arizona. “Coyotes” smuggling persons across the border often are more heavily armed than the border patrol agents who pursue them. JA 242. Unlawfully entering aliens include criminals evading prosecution in their home countries and members of Mexican drug cartels— organizations the federal government has called “more sophisticated and dangerous than any other
4 As there is no precise method for measuring the number of illegal crossings, immigration-related arrests are widely used as a proxy. In every year between 2001 and 2010, more than one-third of all such arrests nationwide occurred in Arizona. U.S. Dep’t of Homeland Sec., 2010 Yearbook of Immigration Statistics 93 tbl. 35 (2011), http://www.dhs.gov/files/statistics/ immigration.shtm. To the extent enforcement resources have been focused in Texas and California, the number of arrests may actually understate the problem Arizona faces.
5 See Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57, 80 (2007) (costs of illegal immigration are mostly local, while benefits are mostly national).

4
organized criminal enterprise.”6 Such cartels have repeatedly threatened the lives of American police officers working near the border. JA 201-202. The City of Phoenix has experienced numerous “home invasions” and hundreds of reported kidnappings, most of which were “closely linked to the drug trade and human smuggling.”7 Fifty-one drug smuggling tunnels have been discovered in the border town of Nogales, Arizona, alone between 2006 and 2010— compared with only five such tunnels discovered in California.8 Drop houses—waystations in the illegal smuggling networks that are often rented properties in unsuspecting neighborhoods—also pose serious problems. They can house dozens of illegal immigrants in dangerous conditions while smugglers await payment.9 Some local law enforcement
6 Majority Staff of House Comm. on Homeland Sec. Subcomm. on Investigations, A Line in the Sand: Confronting the Threat at the Southwest Border (2006), http://www.house.gov/sites/members/tx10_mccaul/pdf/Investiga tions-Border-Report.pdf.
7 City of Phoenix Kidnapping Statistics Review Panel Report 5 (2011), http://phoenix.gov/webcms/groups/internet/@inter/ @newsrel/documents/web_content/059403.pdf.
8 U.S. Dep’t of Justice Nat’l Drug Intelligence Ctr., National Drug Threat Assessment 2010, http://www.justice.gov/ ndic/pubs38/38661/swb.htm; Marc Lacey, Smugglers of Drugs Burrow on Border, N.Y. Times (Oct. 2, 2010), http://www. nytimes.com/2010/10/03/us/03tunnels.html; Lourdes Medrano, Drug War’s Hidden Front: Nogales’s Tunnels, The Christian Sci. Monitor (Aug. 20, 2009), http://www.csmonitor.com/ USA/Foreign-Policy/2009/0820/p22s01-usfp.html.
9 Ariz. Dep’t of Pub. Safety, Drop House Awareness Program, http://www.azdps.gov/information/Drop_Houses. In May 2011, 108 illegal aliens were found in a house on the west side of Phoenix. Press Release, U.S. Immigration & Customs

5
agencies near the border have had to devote more than a third of their assets to human-smuggling issues. JA 310.
As a result of unlawful cross-border activity, large portions of public and private lands have become extremely dangerous and environmentally degraded. National Park rangers in Arizona have been forced to patrol with M-16 carbines10 and prohibit or discourage public access to parklands.11 National Park websites that should warn about encounters with wild animals instead counsel visitors how to emerge safely from encounters with smugglers.12 Incredibly, the federal government has placed sternly-worded road signs warning the public to stay away from smuggling areas. These signs have been posted on Arizona land as far as 80 miles from the border and within 30 miles of Phoenix and they read:
Enforcement, ICE Arrests 108 at Phoenix Human Smuggling Drop House (May 25, 2011), http://www.ice.gov/news/releases/ 1105/110525phoenix.htm.
10 Ralph Vartabedian, The Law Loses Out at U.S. Parks, L.A. Times (Jan. 23, 2003), http://articles.latimes.com/2003/jan/23/ nation/na-ranger23; see also Monica Yancy, Budget Woes Reduce Patrols, Assistance in Parks, Our Nat’l Parks (May 10, 2007), http://ournationalparks.us/index.php/site/story_issues/ budgetwoes_reduce_patrols_assistance_in_parks/ (park rangers voted Organ Pipe Cactus National Monument the nation’s most dangerous national parkland, seizing 14,000 pounds of marijuana and engaging in more than 30 car chases there in 2001 alone).
11 Joshua Rhett Miller, Five Federal Lands in Arizona Have Travel Warnings in Place, FOXNews.com (June 18, 2010), http://www.foxnews.com/us/2010/06/18/federal-lands-arizonatravel-warnings-place/.
12 http://www.nps.gov/orpi/planyourvisit/border-concerns.htm.

6
“Danger – Public Warning – Travel Not Recommended” – “Active Drug and Human Smuggling Area” – “Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.”13
Private ranchers living near the border constantly face the epidemic of crime, safety risks, serious property damage, and environmental problems (including large deposits of trash and human waste, and cut water lines and fences) associated with a steady flow of illegal crossings on their land. JA 174-178, 187-192, 311-313. The illegal traffic and the hundreds of informal trails and roads associated with it also take their toll on the fragile desert habitat and the irreplaceable cultural artifacts therein. 14
The fiscal and economic effects of illegal immigration and unauthorized work by aliens in Arizona also are severe. Arizona spends several hundred million dollars each year incarcerating criminal aliens and providing education and healthcare to aliens unlawfully present in the State, with local governments spending many millions
13 See JA 167-170 (photo of warning sign). 14 ER 141, 246-249; U.S. Immigration & Naturalization Serv., U.S. Dep’t of Interior, U.S. Forest Serv., and U.S. Envtl. Prot. Agency, Report to the House of Representatives Committee on Appropriations on Impacts Caused by Undocumented Aliens Crossing Federal Lands in Southeast Arizona, http://www.blm.gov/pgdata/etc/medialib/blm/az/pdfs/undoc_alie ns/02_report.Par.82778.File.dat/SEAZ_REPORT2.pdf (hereinafter “House Impacts Report”).

7
more.15 The Arizona Department of Corrections estimates that criminal aliens now make up more than 17% of Arizona’s prison population, and the Maricopa County Attorney’s Office, which serves the City of Phoenix, estimates that 21.8% of the felony defendants in the County’s Superior Court are unlawfully present aliens. ER 264-274; JA 303-304. Of Arizona’s total inhabitants, approximately 6%— an estimated 400,000 individuals—are aliens who are unlawfully present and not authorized to work.16 Nonetheless, more than half—230,000—work anyway. They compose 7.4% of all Arizona workers17 and drive down wages for citizens and legal residents in numerous job markets.18
By 2005, the problems posed by aliens unlawfully present in Arizona had become so severe that thenGovernor Janet Napolitano (currently the Secretary of Homeland Security) declared a state of emergency.19 The sheer numbers illustrate why: between 2000 and 2007, the number of aliens
15 Ninth Circuit Excerpts of Record (“ER”) 429; see also House Impacts Report at 24 (in 1999, Cochise County spent $42 for every resident on illegal-immigration-related expenses).
16 Passel & Cohn, n.2 supra, 15 tbl.5.
17 Id. at 21 tbl. A1.
18 JA 36-37; Congressional Budget Office, The Role of Immigrants in the US Labor Market 23-24 (2005), http://www.cbo.gov/doc.cfm?index=6853 (wages of Americans without a high-school education drop by 9% as a result of illegal immigration).
19 Ralph Blumenthal, Citing Border Violence, 2 Border States Declare a Crisis, N.Y. Times (Aug. 17, 2005), http://query. nytimes.com/gst/fullpage.html?res=9C0CE2DF133EF934A2575 BC0A9639C8B63&pagewanted=all.

8

unlawfully present in Arizona increased by nearly 30,000 per year,20 with the influx set to increase with Arizona’s economic recovery. Arizona has repeatedly asked the federal government for more vigorous federal enforcement, JA 320-327, but to no avail.

B. Federal Immigration Law

Federal immigration law reflects an “express

public policy against an alien’s unregistered

presence in this country.” INS v. Lopez-Mendoza,

468 U.S. 1032, 1047 (1984). In furtherance of this

policy, the federal immigration laws expressly

contemplate

and

authorize

cooperative

communication and enforcement efforts between

federal and state officials. Indeed, they go further

and affirmatively require federal officials to

cooperate with state and local efforts to ascertain

individuals’ immigration status.

The principal federal immigration statute is the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“the INA”), which has been amended on numerous occasions, including by the Illegal Immigration Reform and Immigrant Responsibility Act, 110 Pub. L. No. 104-208 div. C, 110 Stat. 3009546 (“IIRIRA”), and the Immigration Reform and Control Act, 100 Pub. L. No. 99-603, 100 Stat. 3359 (“IRCA”). The INA “set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’ ” Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas v. Bica, 424 U.S. 351, 359 (1976)). IIRIRA, as is relevant here,

20 Passel & Cohn, n.2 supra, 23 tbl. A3.

9
established formal structures for state involvement in immigration enforcement and clarified that States retain their inherent authority to cooperate in such enforcement outside the statutory structures. Pub. L. No. 104-208 div. C, § 287(g). IRCA imposed regulations on employers to prevent and punish the hiring of aliens not authorized to work, a field the original INA had largely left to the States. See Whiting, 131 S. Ct. at 1974-75.
“Unsanctioned entry into the United States is a crime, and those who have entered unlawfully are subject to deportation.” Plyler v. Doe, 457 U.S. 202, 205 (1982) (citing 8 U.S.C. §§ 1325, 1251, and 1252). Accordingly, one of the paramount policies “embodied in the INA” is “the objective of deterring unauthorized immigration.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 903 (1984). To that end, the INA requires almost all aliens present in the United States for longer than 30 days to apply for registration documents verifying their lawful status, and to carry those documents at all times. 8 U.S.C. § 1302. Failure to register is a federal misdemeanor punishable by up to six months’ imprisonment and a $1,000 fine, § 1306(a), and failure to carry the registration documents is a misdemeanor punishable by up to 30 days’ imprisonment and a $100 fine. § 1304(e).
The INA authorizes federal officials to investigate, apprehend, and detain aliens who are unlawfully present in the country and thus removable. 8 U.S.C. §§ 1226, 1357. But Congress has expressed, time and again, its intent that States enforce the immigration laws as well. For instance, while IIRIRA created express provisions allowing federal

10
officers to deputize state officials to enforce the immigration laws, 8 U.S.C. § 1357(g)(1)-(9), it also includes a savings clause recognizing state and local authority to assist in immigration enforcement even without any deputization or other affirmative executive-branch action. Subsection 1357(g)(10) provides:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State (A) to communicate with the Attorney General regarding the immigration status of any individual …; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
Congress’ intent in IIRIRA was to enhance the resources and tools available to enforce the immigration laws. Even the deputization authority IIRIRA provided was later described by its House author as intended to permit States “to enforce the immigration laws in whatever way they thought best.”21 Accordingly,“[f]rom its initiation [the deputization authority] was viewed by members of Congress as an opportunity to provide ICE [U.S. Immigration and Customs Enforcement] with more resources,”22 rather than an attempt to limit or
21 Examining 287(g): The Role of State and Local Law Enforcement in Immigration Law: Hearing Before the H.R. Comm. on Homeland Sec., 111th Cong. 64 (Mar. 4, 2009) (Rep. Smith); cf. id. at 76 (Rep. Souder).
22 U.S. Gov’t Accountability Office, GAO-09-109, Immigration Enforcement: Better Controls Needed Over Program

11
preempt other state enforcement measures. And in § 1357(g)(10), Congress went out of its way to explicitly preserve State immigration enforcement authority even in the absence of such agreements.
State and local authorities understood the law in this way, as none of them accepted deputization from the federal government for more than six years. Id. at 2, 4 (Rep. Souder) (“[T]he law was enacted in 1996, the first agreement signed in 2002”). If the law had been understood to limit the States’ preexisting inherent authority—rather than provide a specific mechanism for augmenting that authority— States surely would have acted with greater dispatch.
Congress contemplated that States would use this reserved enforcement authority to investigate individuals’ immigration status, for IIRIRA amended the INA to require federal officials to respond to all immigration status inquiries generated by state and local law enforcement. 8 U.S.C. § 1373(c). That section provides that federal authorities “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.” IIRIRA further prohibits any restrictions on the authority of state and local governments to send to or receive from federal officials “information
Authorizing State and Local Enforcement of Federal Immigration Laws 9 (2009), http://www.gao.gov/new.items/ d09109.pdf.

12
regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a); see also § 1373(b) (protecting state authority to maintain such information and communicate it with non-federal government agencies), § 1644 (protecting communications).
To fulfill these statutory mandates, for more than a decade the federal government has maintained the Law Enforcement Support Center (LESC), a 24hour-a-day, 365-day-per-year centralized database and response service, which “provides timely customs information and immigration status and identity information and real-time assistance to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity.”23 The LESC offers state and local law enforcement officers remote access via computer to “immigration information from every alien file maintained by DHS [Department of Homeland Security]—approximately 100 million records”—and also operates numerous “dedicated law enforcement phone lines.”24 Many state and local authorities have made it their policy regularly to contact the LESC to determine the immigration status of persons they encountered.25 In 2010 the LESC
23 U.S. Immigration & Customs Enforcement, Law Enforcement Support Center, http://www.ice.gov/lesc/.
24 Id.
25 See, e.g., Mo. Rev. Stat. § 577.680(1); JA 218-222 (R.I. Exec. Order 08-01); David W. Chen & Kareem Fahim, Immigration Checks Ordered in New Jersey, N.Y. Times (Aug. 23, 2007), http://www.nytimes.com/2007/08/23/nyregion/23immig.html; JA 172-173; 294-296 (59 surveyed State and local jurisdictions “generally” inquire into arrestees’ immigration status, while only 34 do not—and many others ask for serious criminals or

13
received more than one million requests for information, “primar[ily]” from “State and local law enforcement officers seeking information about aliens.”26 Requesting and receiving information from the LESC is quick and can be done during an investigatory stop. JA 171-173.
“A primary purpose in restricting immigration is to preserve jobs for American workers[.]” Sure-Tan, 467 U.S. at 893. IRCA addresses the problem of the unlawful employment of aliens from the demand side, by prohibiting employers from hiring or employing those not authorized to work. 8 U.S.C. §§ 1324a(a) & 1324a(e)(4). IRCA also requires employers to follow certain procedures to verify that prospective employees are authorized to work. § 1324a(b). IRCA permits the use of these verification documents for the enforcement of federal work-authorization law, or federal perjury and similar laws, but prohibits their use for other purposes. § 1324a(b)(5) & (d)(2)(F). This prohibition, however, does not preclude States from making unauthorized employment an element of a state-law offense—indeed, it does not even prohibit States from making compliance with IRCA’s requirements relevant to State-law proceedings, as compliance can be proved by means other than producing the documents themselves. See Whiting, 131 S. Ct. at 1983 n.9.
later in the booking process); Prince William Cnty., Va. Police Dep’t Gen. Order 45.01, Local Enforcement Response to Illegal Immigration (2008), http://www.pwcgov.org/government/dept/ police/Documents/008511.pdf.
26 Supra at 12 n.23.

14
IRCA also contains an express and limited preemption provision, § 1324a(h)(2), which addresses only state regulations of the demand side of the unauthorized employment problem:
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. IRCA does not address unlawful employment on the supply side, i.e., by imposing sanctions on illegal immigrants who seek and obtain work in violation of federal law, and its express preemption provision does not reach state laws that do so. C. Arizona’s S.B. 1070 S.B. 1070 encourages “the cooperative enforcement of federal immigration laws throughout all of Arizona.” Id. § 1. The bill was signed by Governor Brewer on April 23, 2010, and clarified and amended a week later by Arizona H.B. 2162, 2010 Ariz. Sess. Laws ch. 211.27 In attempting to supplement the federal government’s inadequate immigration enforcement, Arizona was acutely aware of the need to respect federal authority to set the substantive rules governing immigration, and carefully crafted a bill to respect Congress’ policy determinations and definitions while enhancing the State’s contribution to the enforcement efforts. Throughout the legislative process and in its post-enactment
27 All references to “S.B. 1070” herein are to the bill as amended.

15
amendment, S.B. 1070 was revised to clarify and reinforce its express adoption of federal immigration standards, and the necessity that it be enforced in conformity with those standards. For instance, when some legislators questioned the wisdom of the details of federal registration requirements, S.B. 1070’s Senate sponsor replied that “[w]e can enforce the law, and we can write provisions on how to enforce … immigration law, but I can’t change policy; that is an exclusive area of Congress.”28 As a result, S.B. 1070 is fully consistent with Congress’ policies and it is simply an attempt by the State, pursuant to its inherent authority under Our Federalism, to add its own resources to federal ones in enforcing the precise legal rules, and using many of the procedures, prescribed by Congress.
Four provisions of S.B. 1070 are at issue here: two directly addressed to inquiries and arrests by law enforcement—sections 2(B) and 6—as well as two others, 3 (federal registration requirements) and 5(C) (employment).
Section 2, Ariz. Rev. Stat. § 11-1051—captioned “Cooperation and assistance in enforcement of immigration laws”—is designed to facilitate communications between federal, state and local officials regarding potential violations of the federal immigration laws—communications specifically
28 Hearing Before Ariz. H.R. Comm. on Military Affairs and Public Safety (Mar. 31, 2010) (hereinafter “Ariz. House Hrg.”), video available at http://azleg.granicus.com/MediaPlayer.php? view_id=13&clip_id=7286, at 2:44:04-15 (Sen. Pearce); id. at 26:16-27:47 (Sen. Pearce) (This simply mirrors federal law…. [O]nly the feds can change the requirements of immigration status. States can enforce it; we can’t alter federal law.”).

16
authorized by Congress in 8 U.S.C. §§ 1373 and 1644. Section 2(B) provides that “[f]or any lawful stop, detention or arrest made” by Arizona law enforcement, “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” Incorporating federal law, Section 2(B) states that “[t]he person’s immigration status shall be verified with the federal government pursuant to 8 United States Code section 1373(c).” For a person who is arrested and whose status cannot be determined or presumed, the status verification must be performed “before the person is released.” § 2(B). The subject is presumed to be lawfully present if he presents a valid Arizona driver’s license, tribal identification, or identification from any unit of government in the United States that requires proof of lawful presence. Id. Section 2(E) provides that immigration status may be verified only by a federally-authorized officer or pursuant to the procedures provided by Congress in 8 U.S.C. § 1373(c). Section 2(L) requires that the law be implemented “in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens”—meaning that Section 2 does not require any immigration status verification prohibited by federal law.
Section 6, Ariz. Rev. Stat. § 13-3883(A)(5), adds to Arizona peace officers’ warrantless arrest authority by authorizing such arrests when “the officer has probable cause to believe … [t]he person to be

17
arrested has committed any public offense that makes the person removable from the United States.”
Section 3, Ariz. Rev. Stat. § 13-1509, incorporates and enforces the requirements of the federal alien registration laws. It provides that “[i]n addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a).” § 3(A). Immigration status may be determined only pursuant to 8 U.S.C. § 1373(c) or by an officer otherwise qualified by the federal government. § 3(B). Section 3(H) imposes the same maximum penalties for violations of subsection (A) that Congress has imposed for failure to carry an alien registration in violation of 8 U.S.C. § 1304(e), which in turn are less than the penalties for failure to register in violation of § 1306(a). The only substantive difference between Section 3 and the federal statutes is that Section 3 has no application at all to persons authorized to be in the United States. § 3(F). S.B. 1070’s legislative history reveals that this exception was intended in part to avoid punishing lawfully present aliens who have validly registered, but have not yet received their registration documents.29
Section 5(C), Ariz. Rev. Stat. § 13-2928(C), reinforces the federal work-authorization rules, which focus only on the demand side, by addressing the supply side—i.e., would-be employees. Section 5(C) makes it a misdemeanor for “a person who is
29 Ariz. House Hrg. at 26:00-39:31.

18
unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Section 5(G)(2) defines “unauthorized alien” 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),” and Section 5(E) again requires that immigration status be determined only by a federally-qualified officer or pursuant to 8 U.S.C. § 1373(c), id. § 13-2928(E).
D. Proceedings Below
Respondent filed suit against the State of Arizona and Governor Brewer, claiming that S.B. 1070 was unconstitutional on its face, and seeking to enjoin Arizona’s law before it could even take effect.30 Although the district court recognized that Arizona faces “rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,” App. 117a, it preliminarily enjoined enforcement of Sections 2(B), 3, 5(C), and 6, finding that Respondent was likely to succeed in establishing that these sections are facially preempted. App. 122a-123a.
On appeal, the Ninth Circuit also recognized that Arizona faces “a serious problem of unauthorized immigration.” App. 2a. The court affirmed the
30 The Attorney General repeatedly voiced concerns about S.B. 1070 and threatened to file a lawsuit before he had even read the law. Holder Admits to not Reading Arizona’s Immigration Law Despite Criticizing It, FOXNews.com (May 14, 2010), http://www.foxnews.com/politics/2010/05/13/holderadmits-reading-arizonas-immigration-law-despite-slamming/.

19
preliminary injunction, albeit by a divided vote as to Sections 2(B) and 6.
With respect to Section 2(B), the majority interpreted § 1357(g)(1)-(9)’s deputization provisions as precluding other state immigration enforcement efforts, despite § 1357(g)(10)’s express savings clause. The court held that this grant “demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General.” App. 17a. The majority acknowledged § 1357(g)(10), and that 8 U.S.C. §§ 1373 and 1644 expressly permit communications between state and federal authorities regarding possible immigration violations, but nonetheless viewed them as limited to circumstances where “the Attorney General calls upon state and local law enforcement officers—or such officers are confronted with the necessity—to cooperate with federal immigration enforcement on an incidental and as needed basis.” App. 15a. Because Section 2(B) reflected a systematic policy, rather than anything ad hoc or “incidental,” the Ninth Circuit found it likely preempted.
As to Section 6, the majority held that “states do not have the inherent authority to enforce the civil provisions of federal immigration law.” App. at 45a. The majority therefore found S.B. 1070 likely preempted on its face because it “significantly expands the circumstances in which Congress has allowed state and local officers to arrest immigrants” under 8 U.S.C. § 1252c. App. 44a-45a.
Although the majority recognized that the federal government had brought a facial challenge, it declined to determine whether there were

20
constitutional applications of S.B. 1070’s contested provisions and instead concluded that “there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent.” App. 7a. The majority also rejected Arizona’s construction of its own statute, holding that Section 2(B) requires Arizona officers to confirm with LESC the immigration status of every arrestee. App. 10a-11a.
The Ninth Circuit found Section 3, regarding alien registration, likely preempted by viewing 8 U.S.C. §§ 1304 and 1306 as “a comprehensive scheme for immigrant registration.” App. 28a. Because Congress did not expressly authorize it, the court concluded that Congress did not “intend[] for states to participate in the enforcement or punishment of federal immigration registration rules.” App. 29a. Examining this Court’s precedents, the court concluded that while state laws creating remedies that parallel those of federal law often are not preempted even if they have “significantly wider applications than the federal statutes,” Section 3 was preempted, despite it having the identical application as federal law, because “the substantive INA registration requirements [are] ‘a critical element’” of the state-law violation. App. 31a-32a.
As to Section 5(C), the panel began by acknowledging that this employment provision addresses an area of traditional state authority and so a presumption against preemption applies. App. 41a. Nevertheless, it concluded that “Congress’ inaction” in IRCA “in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers,” implies that Congress necessarily “intended to prohibit states from

21
criminalizing work.” App. 39a. The Ninth Circuit stated that this conclusion was compelled by its previous decision in National Center for Immigrants’ Rights, Inc. v. INS, 913 F.2d 1350 (9th Cir. 1990), rev’d, 502 U.S. 183 (1991) (“NCIR”), that Congress’ imposition of sanctions only on employers meant that the Immigration and Naturalization Service (INS) could not prohibit work by aliens pending their deportation proceedings. App. 33a-35a. The panel did not acknowledge this Court’s holding, in reversing NCIR, that the no-work bond conditions at issue there were consistent with Congress’ intent “to preserve jobs for American workers,” which “was forcefully recognized … in the IRCA.” 502 U.S. at 194 & n.8. Nor did the panel explain why a limitation on the INS, which like all federal agencies depends on statutory authorization, would apply to States who enjoy both plenary power and the presumption against preemption in areas of traditional state authority. App. 35a. The panel also did not discuss the reach and implications of IRCA’s limited express preemption provision in 8 U.S.C. § 1324a(h)—perhaps because the provision explicitly does not preempt the provision at issue.
With respect to all four provisions of S.B. 1070, the panel majority buttressed its preemption analysis by referring to criticisms of the law “attributable to foreign governments,” and statements by “senior United States’ officials” that some foreign countries dislike S.B. 1070. App. 26a. The majority viewed this as demonstrating that S.B. 1070 “thwarts the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs,” which it regarded as establishing “the

22
frustration of congressional objectives by the state Act.” App. 25a-26a. The majority also stated that “the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption.” App. 26a.
3. Judge Bea dissented as to Sections 2(B) and 6. As to Section 2(B), Judge Bea emphasized that both the savings clause in § 1357(g)(10) and § 1373(c)’s mandatory duty on federal officials to respond to requests by state law enforcement foreclosed the majority’s effort to read the express authorization for deputization in § 1357(g)(1)-(9) as implicitly precluding other cooperative efforts. App. 93a.
Judge Bea also took issue with the majority’s view that States lack inherent authority to enforce federal civil immigration laws. He found that view inconsistent with, inter alia, this Court’s decision in Muehler v. Mena, 544 U.S. 93, 101 (2005), upholding the authority of state officers to ask individuals about their immigration status even absent any reasonable suspicion of unlawful conduct. App. 104a. Judge Bea regarded 8 U.S.C. § 1252c as simply codifying a portion of the states’ pre-existing inherent authority without impliedly negating the balance. He also noted that Section 6 should survive a facial challenge even under the majority’s understanding of state authority, because some of the arrests it authorizes are also expressly permitted by § 1252c. App. 114a.
Finally, Judge Bea disagreed with the majority’s view that complaints from foreign officials about S.B. 1070 inform the preemption analysis. He noted that S.B. 1070 does not conflict with any “established foreign relations policy goal,” and that

23
the majority’s finding of preemption in this case gave a “heckler’s veto” to “other nations’ foreign ministries.” App. 91a, 95a (emphasis omitted). Rebutting the majority’s fears that non-preemption would lead to an unworkable patchwork of state enforcement regimes, Judge Bea stated that Congress surely must have “contemplate[d] that states would make use of the very statutory framework that Congress itself enacted” by requiring federal responsiveness to state inquiries in 8 U.S.C. § 1373(c). App. 93a. “In light of this, all 50 states enacting laws for inquiring into the immigration status of suspected illegal aliens is desired by Congress, and weighs against preemption.” App. 93a.
SUMMARY OF ARGUMENT
This is an implied preemption case. As such, there must be some clear conflict between a federal statute and S.B. 1070. The failure of federal law to authorize Arizona’s efforts in express terms is beside the point. Arizona officials have inherent authority to enforce federal law and such cooperative law enforcement is the norm, not something that requires affirmative congressional authorization. S.B. 1070 does not impose its own substantive immigration standards, but simply uses state resources to enforce federal rules. This is no different from “parallel” tort claims—where both state and federal law enforce the same federal standard. They are the easy cases under this Court’s preemption cases. With no conflict between the state and federal standards, there is simply no scope for implied conflict preemption.

24
Despite all this, the Ninth Circuit and the federal government have concluded that Arizona’s effort to enforce federal law immigration standards is preempted. They suggest that immigration is so different from every other area of law that even parallel efforts at cooperative law enforcement are forbidden. Both this Court’s cases and the text of the federal immigration statutes are to the contrary.
The Ninth Circuit found the law enforcement provisions of S.B. 1070 preempted by ignoring these bedrock principles and committing fundamental errors of law. Those provisions—Sections 2(B) and 6—simply require inquiries into immigration status during certain arrests and supplement officers’ authority to make warrantless arrests. In finding those provisions facially preempted, the Ninth Circuit lost sight of the reality that States have inherent authority to enforce federal law. State law enforcement officers need state-law authority— precisely what S.B. 1070 supplies—but they do not require some express federal authorization akin to that needed by a federal agency. By ignoring the State’s inherent authority, the court of appeals mistakenly read the authorization for a specific deputization program in § 1357(g)(1)-(9), accompanied by a savings clause in § 1357(g)(10), as precluding state efforts not authorized in (1)-(9). That analysis reads the savings clause out of the statute, a result irreconcilable with the most basic principles of statutory interpretation.
But the savings clause of § 1357(g)(10) was not the only obstacle to the Ninth Circuit’s conclusion. The federal immigration laws not only decline to preempt state law enforcement efforts, they affirmatively

25
require federal cooperation. See §§ 1373(a), (c), and 1644. To avoid the clear intent of those provisions, the court of appeals invented a distinction between permissible ad hoc inquiries to which federal authorities must respond and systematic efforts to verify immigration status, which are preempted. That distinction has no mooring in the statutory text, and produced the remarkable conclusion that a statute requiring state law enforcement to seek the assistance that federal authorities must (and do) provide is preempted. To complete its remarkable inversion of text and precedent, the court of appeals found Section 2(B) facially invalid despite acknowledging constitutional applications, a result forbidden by this Court’s precedents addressing facial challenges.
Similar and additional errors were committed in invalidating Section 6. That section simply authorizes warrantless arrests where there is probable cause of removability. Here, the court of appeals read a federal authorization for such arrests in narrow circumstances, 8 U.S.C. § 1252c, as foreclosing all other arrests. But that ignores both the State’s inherent authority to make arrests for violations of federal law and this Court’s facial challenge rules.
The court of appeals then invalidated provisions that impose parallel state penalties for the violation of federal rules requiring federal registration documents and prohibiting the employment of aliens ineligible for employment. There is absolutely no conflict between these provisions and federal law because S.B. 1070 adopts the federal rule as its own. In virtually any other context, such state laws would

26
be viewed as obviously permissible efforts to enforce the federal standard without possibility of conflict. The result is no different here. There is no immigration exception to the general rules of preemption. The bottom line is that there is no preemption unless state law conflicts with some identifiable federal statute. Since Sections 3 and 5 adopt the federal rule, there is nothing in federal law with preemptive effect. Certainly, neither foreign criticism nor the speculative concerns of the federal government have preemptive effect. Nor does the federal executive’s preference, contrary to Congressional intent, for a relaxed and indeterminate enforcement posture.
No one doubts that unlawful immigration has a disproportionate impact on Arizona. That reality does not empower Arizona to adopt its own substantive immigration law. But neither is Arizona impliedly stripped of its plenary authority and at the mercy of the federal executive’s lax enforcement policy. Unless and until Congress expressly forecloses such efforts, Arizona has the inherent authority to add its own resources to the enforcement of federal law. The resulting parallel efforts are a perfectly valid example of cooperative law enforcement and raise no serious question under this Court’s preemption precedents.

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ARGUMENT
I. STATES HAVE AUTHORITY TO REGULATE UNLAWFULLY PRESENT ALIENS IN A MANNER CONSISTENT WITH FEDERAL IMMIGRATION LAW.
A. General Preemption Principles
Of the various varieties of preemption—express preemption, field preemption, and implied preemption—only the last is at issue here. Respondent does not contend, and the courts below did not hold, that federal law expressly preempts any of the four enjoined provisions of S.B. 1070 or that federal law “occupies the field” to the exclusion of those provisions. Thus, the four S.B. 1070 provisions are valid unless they have been impliedly preempted by Congress.
Whether a state statute “is invalid under the Supremacy Clause depends on the intent of Congress. ‘The purpose of Congress is the ultimate touchstone.’ ” Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). And “courts may not find state measures pre-empted in the absence of clear evidence that Congress so intended.” California v. FERC, 495 U.S. 490, 497 (1990) (emphasis added). “Only a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was ‘the clear and manifest purpose of Congress’ would justify th[e] conclusion” that states could not act in areas where federal laws exist. DeCanas, 424 U.S. at 357 (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146 (1963)).

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Because Congress is the branch of government whose intent controls the preemption inquiry, a state law is not preempted merely because the Executive Branch claims the law is out of step with its enforcement priorities. See North Dakota v. United States, 495 U.S. 423, 442 (1990) (“It is Congress—not the DoD—that has the power to pre-empt otherwise valid state laws.”); Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 330 (1994) (“Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide combined reporting.”). The federal executive’s preference for a relatively lax enforcement regime does not drive the preemption analysis.
Since this case involves at most implied conflict preemption, the burden is on the federal government to point to some specific Act of Congress that does the preempting. The requisite congressional intent to preempt state law may be inferred only “to the extent it [the state law] actually conflicts with federal law.” California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987). Thus, in a context where Congress has affirmatively authorized and even required cooperative efforts, the need to identify a specific provision that creates the conflict is particularly acute.
One of the “cornerstones” of this Court’s preemption jurisprudence is the rule that
in all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police

29
powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation marks and ellipses omitted). In every preemption case, this Court starts “with a presumption that the state statute is valid” and asks whether the party supporting preemption “has shouldered the burden of overcoming that presumption.” Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 661-662 (2003). That burden is only heightened when there is an effort to enjoin a statute on its face before the law even takes effect.
This Court’s preemption cases also establish that the States may authorize “parallel” enforcement of federal standards. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996) (recognizing that “Florida [has] the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements”); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 447 (2005). Such parallel claims are the easy preemption cases, since they survive even when efforts to impose a different state-law standard are preempted. See, e.g., Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008).
B. State Authority to Regulate Unlawfully Present Aliens
Although the federal government has exclusive authority to regulate “immigration”—meaning the “determination of who should or should not be admitted into th[is] country, and the conditions under which a legal entrant may remain”—this Court “has never held that every state enactment

30
which in any way deals with aliens is a regulation of immigration and thus per se pre-empted.” DeCanas, 424 U.S. at 355. See id. (“[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration.”). In DeCanas, this Court put to rest any notion that the INA occupies the field with respect to the regulation of unlawfully present aliens. This Court upheld a California statute by which the State “sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment.” Id. The DeCanas Court held that the INA does not preempt a State’s regulation of illegal aliens that is “harmonious with federal regulation.” Id. at 356.
This Court in Plyler v. Doe, 457 U.S. 202 (1982), again recognized that the States possess “authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal.” Id. at 225. The Plyler Court squarely rejected the notion that the States are powerless to deal with the problems caused by illegal aliens: “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.
Last Term, this Court sustained an Arizona statute regulating unauthorized work by aliens—the Legal Arizona Workers Act—against the contention that it was preempted by the INA as amended by IRCA. See Whiting, 131 S. Ct. 1968. Whiting reiterated

31
that this Court’s “precedents ‘establish that a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act’ ”—including the INA and IRCA. Id. at 1985 (quoting Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 110 (1992) (Kennedy, J., concurring)). “Implied preemption analysis,” this Court said, “does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’ ” Id. (quoting Gade, supra, at 111).
II. THE LAW ENFORCEMENT PROVISIONS OF S.B. 1070—SECTIONS 2(B) AND 6—ARE CONSTITUTIONAL.
A. Federal Law Expressly Authorizes States and the Federal Government to Communicate and Cooperate With Each Other on Immigration Enforcement.
Section 2(B) provides that “[f]or any lawful stop, detention or arrest made” by Arizona law enforcement, “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” by having it “verified with the federal government pursuant to 8 [U.S.C. §] 1373(c).” Ariz. Rev. Stat. § 11-1051(B). Section 2(L) further provides that “[t]his section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” Id. § 11-1051(L).

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Far from affirmatively preempting such state laws, Congress expressly authorized such communications and cooperation between States and the federal government in connection with immigration enforcement in multiple provisions. In 8 U.S.C. § 1357(g)(1)-(9), Congress authorized one particularly formalized mode of cooperation in which the Attorney General enters written agreements with States and their political subdivisions to deputize state officers to perform immigration officer functions. But that program was not intended to be an exclusive route to cooperation. Congress removed any doubt on that score by including a savings clause, § 1357(g)(10). In that provision, Congress provided that “[n]othing in this subsection shall be construed to require an agreement” in order for state officers “(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States” or “(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Section 1357(g)(10) reinforces the fact that state officers have inherent authority to enforce federal law and makes crystal clear that no agreement is necessary for state officers to communicate with the Attorney General regarding an individual’s immigration status or to cooperate with the Attorney General in enforcing the law with respect to unlawfully present aliens. See also id. § 1357(g)(9) (States not required to enter into agreements with the Attorney General).

33
While § 1357(g)(10) affirmatively acknowledges the appropriateness of communications and cooperation by States outside the specific deputization mechanism of (g)(1)-(9), 8 U.S.C. § 1373(c)—the statute incorporated in Section 2(B)—goes much further and imposes an affirmative duty on the federal government to respond to a State’s inquiry. Section 1373(c) provides that federal immigration authorities “shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of an individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” And 8 U.S.C. § 1644 provides: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [DHS] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” Accord 8 U.S.C. § 1373(a).
These provisions place an affirmative obligation on federal authorities to respond to state law enforcement officers. While such an affirmative obligation is by no means necessary to avoid preemption, it should doom any serious effort to conclude that federal law preempts Section 2(B). Section 2(B) authorizes and directs Arizona officers to make verification inquiries to which federal authorities must respond and to do so when practicable and subject to federal and state constitutional requirements.
In Whiting, this Court rejected the contention that IRCA preempted the Legal Arizona Workers Act,

34

explaining that “IRCA expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws.” 131 S. Ct. at 1987. “In exercising that authority,” this Court said, “Arizona has taken the route least likely to cause tension with federal law.” Id. So too here, §§ 1357(g)(10), 1373(c), and 1644 expressly reserve to the States the authority exercised by Arizona in Section 2(B) and Section 2(B) avoids tension with federal law by incorporating the status verification procedure of § 1373(c).

In light of the clear import of §§ 1357(g)(10),

1373(c), and 1644, the Ninth Circuit’s path to a

finding of preemption was tortuous. While

recognizing that the language of § 1357(g)(10) “is

broad,” the panel majority proceeded to give it a

“narrow interpretation.”

App. 14a, 15a.

Remarkably, the panel majority interpreted

§ 1357(g)(10) to mean that “Congress intended for

state officers to systematically aid in immigration

enforcement only under the close supervision of the

Attorney General” pursuant to a written agreement

under § 1357(g)(1). App. 17a (emphasis in original).

That is, of course, the opposite of what the savings

clause explicitly provides. The panel majority then

took a further leap by pronouncing that § 1357(g)(10)

“does not permit states to adopt laws dictating how

and when state and local officials must

communicate” with the federal government. App.

16a (emphasis in original). Acknowledging that it

had to give the savings clause some meaning, the

panel majority suggested that while state officers

may “cooperate with federal immigration

35
enforcement on an incidental and as needed basis,” an agreement is “required for systematic and routine cooperation.” App. 15a-16a (first two emphases added). That is a strange conclusion indeed. The supposed distinction between systematic policies and “incidental and as needed” inquiries has no grounding in the statutory text. And the law generally frowns on ad hoc government action, and favors generally applicable rules and consistent policies. The law also frowns on courts adding limiting language to statutes that Congress omitted. Moreover, just last Term, this Court rejected the notion that a state law making resort to a voluntary federal system for verifying employment status (which presumably produced “incidental and as needed” inquiries) mandatory (i.e., “systematic”) was preempted. Whiting, 131 S. Ct. at 1985-87.
The panel majority believed, quite wrongly, that giving effect to the plain language of § 1357(g)(10) would “completely nullify the rest of § 1357(g).” App. 14a-15a. But that belief rests on its erroneous view that § 1357(g)’s other provisions constitute “restrictions” on state authority. App. 15a. In fact, those subsections did not restrict state authority at all, but rather enhanced federal authority by granting authority to the Attorney General to enter into agreements with States; activity the Attorney General, a federal official with statutory, not inherent, authority, otherwise could not conduct. Those subsections do not, expressly or by implication, restrict state authority, as § 1357(g)(10) expressly confirms. Entering into an agreement under § 1357(g)(1) is one way that a State can cooperate with the Attorney General, but it is by no

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means the only way. See § 1357(g)(9) (“Nothing in this subsection shall be construed to require any State … to enter into an agreement with the Attorney General….”). With § 1357(g)(10), Congress made crystal clear that, even without a formal deputization agreement, state officers remain free to communicate with the Attorney General regarding a person’s immigration status and cooperate with the Attorney General in enforcing the law as to unlawfully present aliens.
Petitioners’ construction of § 1357(g)(10) does not “nullify” the remainder of § 1357(g) any more than any saving clause nullifies the associated text. Section 1357(g)(1)-(9) creates a much more formal relationship between federal and state authorities than in normal cooperative law enforcement in general or in the kind of verification inquiries envisioned by Section 2(B) in particular. Most dramatically, a state official deputized under § 1357(g)(1)-(9) is considered to be acting under color of federal law for purposes of civil liability and immunity. § 1357(g)(8). It hardly undermines that very formal arrangement for § 1357(g)(10) to make clear that the possibility of entering into that unusual and formal relationship in no way forecloses more typical and informal cooperative law enforcement efforts.
The panel majority compounded its erroneous construction of § 1357(g) by subordinating three other statutes—§§ 1373(a), (c) and § 1644—to that erroneous construction. App. 18a-20a & n.11. While conceding that “§ 1373(c) demonstrates that Congress contemplated state assistance in the identification of undocumented immigrants,” the

37
panel concluded that “Congress contemplated this assistance within the boundaries established in § 1357(g).” App. 18a. Yet absolutely nothing in § 1373(c) suggests that DHS’s obligation to respond to state inquiries is subject to whether the inquiring State has entered into an agreement with the Attorney General under § 1357(g)(1).
The panel majority also dismissed (in a footnote, no less) § 1373(a) and § 1644 as “anti-sanctuary provisions” that prohibit States from impeding immigration enforcement. App. 19a n.11. But these provisions expressly confirm that nothing in federal law stands in the way of state statutes such as Section 2(B). See § 1644 (“Notwithstanding any other provision of Federal … law, no State or local government entity may be prohibited, or in any way restricted” from communicating with DHS regarding an alien’s immigration status).
Section 1357(g)(10)’s reservation of broad state enforcement authority is confirmed by the actual practice of both state and federal officers. There is no indication that any of the million-plus verification requests that state and local law enforcement make to the LESC every year are initiated pursuant to “the Attorney General’s close supervision,” as the panel majority would have required. Indeed, far from conducting immigration status verifications only on an “incidental or as needed basis,” many state and local law enforcement agencies, as well as individual officers, make immigration status verification a standard part of their reasonablesuspicion stops or jail booking processes. See supra at 12 n.23. It cannot be that codifying those already systematic and routine practices crosses the line.

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And the consistent practice from the time of the establishment of the LESC until now confirms that § 1357(g) places no restrictions on the sovereign States’ authority to enforce the immigration laws laid down by Congress.

B. The Ninth Circuit Erred in Holding Section 2(B) Facially Invalid.

Even if the panel majority were correct that § 1357(g) preempts some immigration enforcement activities by States outside of the context of an agreement with the Attorney General, it surely erred in enjoining Section 2(B) on a facial challenge.

To succeed on a facial challenge to a state law, the

challenger must show “that the law is

unconstitutional in all of its applications.”

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449 (2008) (citing

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

the panel majority conceded, as it had to, that

Section 2(B) has at least some non-preempted

applications.

The majority interpreted

§ 1357(g)(10)(B) to mean that state officers may

“cooperate with federal immigration enforcement on

an incidental and as needed basis” even “without the

written agreements that are required for systematic

and routine cooperation.” App. 15a-16a (emphases

in original). And it interpreted § 1357(g)(10)(A) to

mean that “state officers can communicate with the

Attorney General about immigration status

information that they obtain or need in the

performance of their regular state duties.” App. 16a.

Given those interpretations, Section 2(B) easily

passes the Salerno test. The Ninth Circuit reached a

contrary decision only by erroneously deeming a

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state statute unconstitutional in all its applications when “on its face, [it] conflicts with Congressional intent.” App. 7a. But “bad intent” cannot convert a statute with valid applications into one that is facially invalid without simply ignoring Salerno.
In all events, there is no basis for attributing such an intent to Section 2(B), which requires Arizona officers to perform immigration status checks only to the extent consistent with federal law. Section 2(B) provides that “a reasonable attempt shall be made, when practicable,” Ariz. Rev. Stat. § 11-1051 (emphases added), to verify a person’s immigration status when reasonable suspicion exists that the person is an unlawfully present alien. And Section 2(L) expressly provides that Section 2(B) “shall be implemented in a manner consistent with federal laws regulating immigration.” Id. In other words, by its very terms S.B. 1070 does not require or permit Arizona officers to perform immigration status checks if doing so would conflict with federal law.
C. The Ninth Circuit Misconstrued Section 2(B).
The supposed conflict that the panel majority perceived between Section 2(B) and federal law was exacerbated by its improper rejection, in the context of a facial challenge, of Arizona’s construction of its own statute. The majority opined that “Section 2(B) requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” App. 11a (emphasis

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in original). In so doing, the majority rejected Arizona’s interpretation of Section 2(B).
In the court below, Arizona explained that it does not interpret Section 2(B) to require state officers to perform an immigration status check on every person who is arrested. App. 10a-11a. Rather, the first sentence of Section 2(B) indicates that when “reasonable suspicion exists that the person” is an unlawfully present alien, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” (emphases added). Furthermore, 2(B) also provides that a person is “presumed to not be an alien who is unlawfully present” if the person has certain common forms of identification.31 Ariz. Rev. Stat. § 11-1051. In Arizona’s view, the second sentence of Section 2(B)— “Any person who is arrested shall have the person’s immigration status determined before the person is released”—must be read in light of the qualifying language contained in the first sentence and the presumptions specified in the statute. Id. This reading does not render the second sentence superfluous, because that sentence adds a timing element that the first sentence lacks. That is, the second sentence indicates that a status determination on an arrestee shall be performed “before the person is released.”
In the context of a facial challenge to a new statute that has not been construed by the Arizona courts, the panel majority should not have dismissed
31 This includes an Arizona driver license or nonoperating identification license, a tribal enrollment card or identification from any unit of government in the United States that requires proof of lawful presence.

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Arizona’s interpretation of its own statute. Indeed, this Court has cautioned against finding a state statute facially invalid where “[t]he State has had no opportunity to implement [its statute], and its courts have had no occasion to construe the law in the context of actual disputes … or to accord the law a limiting construction to avoid constitutional questions.” Washington State Grange, 552 U.S. at 450.
Finally, the panel majority’s (mis)construction of Section 2(B) was wholly unnecessary because its preemption decision would have been the same even if it had accepted Arizona’s construction. As Judge Bea noted in dissent, the majority’s construction of 2(B)—as requiring immigration status checks for all arrestees, regardless of reasonable suspicion—made no difference to its analysis. App. 70a n.6. And if the competing constructions of Section 2(B) did make a difference, the majority should have given effect to Section 2(L)’s direction that “this section shall be implemented in a manner consistent with federal laws regulating immigration.”
D. The Authority Conferred by Section 6 to Make Arrests for Removable Crimes Is Constitutional.
Section 6 of S.B. 1070 authorizes, but does not require, Arizona law enforcement officers to make warrantless arrests of persons they have probable cause to believe are removable from the United States by reason of having committed a crime. Ariz. Rev. Stat. § 13-3883(A)(5). As the court below noted, even without Section 6, Arizona officers have statutory authority to make warrantless arrests for most crimes; Section 6 adds to that authority by

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permitting arrests if the crime creating removability was committed outside the State, or if the alien was previously convicted and imprisoned for the crime but for some reason was released without being deported—or was previously deported from the country for the crime but subsequently re-entered illegally. App. 42a.
States have concurrent authority to make arrests in enforcement of federal law. The Ninth Circuit, however, adopted an artificial distinction between criminal and civil immigration offenses and held that Section 6 is preempted because only federal officers, not state officers, may arrest aliens based on their removability. This holding was erroneous for numerous reasons. First, States have inherent authority to make arrests for immigration-law violations, both civil and criminal. Second, 8 U.S.C. § 1357(g)(10) expressly recognizes the States’ authority to participate in the “apprehension” of unlawfully present aliens, without regard to whether they have committed another crime. Third, even under the Ninth Circuit’s contrived view of the law, Section 6 does not require any arrests, but only authorizes them. Its application can be limited to arrests authorized by federal law, and the statute thus is not facially preempted.
1. State Officers Have Inherent Authority to Enforce the Immigration Laws, Both Criminal and Civil.
It is well established that state law enforcement officers have inherent authority, subject to any statelaw limitations, to investigate and arrest for violations of federal law. This Court recognized long ago that “[i]t is the duty and the right, not only of

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every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States.” In re Quarles, 158 U.S. 532, 535 (1895); see Sure-Tan, 467 U.S. at 895 (citing Quarles with approval). That this rule extends specifically to state law enforcement is confirmed by United States v. Di Re, 332 U.S. 581 (1948), in which this Court held that even “in absence of an applicable federal statute,” States remain free to authorize their officers to make warrantless arrests for violations of federal law—“the law of the state where an arrest without warrant takes place determines its validity.” Id. at 589. As Judge Learned Hand explained in holding that States were authorized to enforce Prohibition, when Congress forbids certain conduct, “[t]he purpose of such a system [is] to secure obedience as far as possible,” and in Congress’ pursuit of that goal, “it cannot be supposed that … such co-operation as [the States] extend must be rejected.” Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).
The panel majority did not deny that state officers may enforce those provisions of the immigration laws that Congress has designated as criminal, such as the prohibitions on an alien’s unlawful entry to the country, failure to register as an alien, failure to notify the Attorney General of a change of address, or failure to carry registration papers once issued. Instead, it held that States may not make arrests based solely on the civil status of removability, unaccompanied by suspicion of any crime. App. 45a46a. This was error.

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In our system of cooperative federalism, the laws of the United States can be enforced by either federal or state officers unless Congress specifically states otherwise. The panel below identified no such pronouncement of Congress, and gave no reason why civil immigration offenses should be an exception to this rule. This Court has upheld state immigration enforcement or investigatory activities without any inquiry into the “civil” or “criminal” nature of the potential violation at issue. In Muehler v. Mena, 544 U.S. 93 (2005), this Court held that under the Fourth Amendment, local police do not require reasonable suspicion to request an individual’s “name, date and place of birth, or immigration status.” Id. at 101.
The Courts of Appeals have upheld the authority of state and local police to investigate immigrationrelated offenses without any discussion of whether the police could have determined the civil or criminal nature of the offense. See, e.g., Estrada v. Rhode Island, 594 F.3d 56, 65 (1st Cir. 2010) (passengers’ admission “that they were in the country illegally” permitted extension of traffic stop by Rhode Island officer based on reasonable suspicion that they “had committed immigration violations”); United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (statement by one occupant of a stopped vehicle that another “was not legally present in the United States” provided reasonable suspicion for South Dakota officer “to inquire into [the other’s] alienage”); United States v. Soriano-Jarquin, 492 F.3d 495, 501 (4th Cir. 2007) (Virginia State Police officer could contact ICE and extend traffic stop on being told that “passengers were illegal aliens”);

45
Lynch v. Cannatella, 810 F.2d 1363, 1367, 1371 (5th Cir. 1987) (Port of New Orleans Harbor Police had authority to detain alien stowaways in incoming vessel). And the Tenth Circuit has held that “state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws,” including civil removability. United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (10th Cir. 1999); see also United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (“A state trooper has general investigatory authority to inquire into possible immigration violations.”).
This view is the correct one. While the distinction between criminal and civil offenses may be important for many purposes, it makes very little sense as the boundary for the States’ inherent powers to enforce federal law. Civil offenses warranting arrest typically are closely intertwined with, or even indistinguishable from, complementary criminal offenses. This is especially true in immigration law, where the category of aliens who have managed to render themselves removable without committing any technically criminal act likely is quite small. Aliens commit federal crimes by entering the country unlawfully, by making false statements on their registration forms, 8 U.S.C. § 1306(c), by failing to notify the Attorney General of any change of address, id. § 1306(b), and by failing to carry their registration documents at all times, id. § 1304(e). These things are crimes primarily because they facilitate unlawful presence in this country. It would make little sense to hold that state officers may arrest persons committing one of these

46
crimes—who surely will comprise the vast majority of unlawfully present aliens—but must look the other way when they have probable cause to believe an individual is unlawfully present despite carrying a registration card.
2. Section 1357(g)(10) Recognizes States’ Ability to Make the Arrests Authorized By Section 6.
If there were any doubt regarding States’ ability to arrest based on civil removability, it would be eliminated by § 1357(g)(10)(B)’s express recognition of state authority to cooperate in the “identification, apprehension, detention, or removal of aliens not lawfully present” (emphasis added). Section 6 recognizes the authority of Arizona officers to apprehend and detain unlawfully present aliens pending their transfer to federal custody for removal proceedings (or, possibly, their prosecution for statelaw crimes). The court below erred by failing to acknowledge even the existence, let alone the controlling nature, of this federal statute.
Instead, the panel majority inappropriately ascribed preemptive force to 8 U.S.C. § 1252c, which authorizes state officers, “[n]otwithstanding any other provision of law” and “to the extent permitted by relevant State and local law,” to “arrest and detain” unlawfully present aliens in a very narrow set of circumstances—specifically, when the officers receive confirmation from federal officials that the alien is unlawfully present, and has previously left the country or been deported following a felony

47
conviction.32 From this specific authorization of arrests in somewhat unusual circumstances, the panel inferred a congressional intent to preempt any other removability-based arrests by state officers.
This is highly implausible. Section 1252c plainly was intended to authorize a specific category of state enforcement activity, not to prohibit activity that it does not address. As this Court has recognized, “[t]hat Congress has specifically saved state laws in some instances indicates no general policy save clarity.” People of State of California v. Zook, 336 U.S. 725, 732 (1949) (internal citation omitted).
Indeed, § 1252c’s legislative history indicates that it was introduced under the mistaken impression that the arrests it authorizes previously had been positively prohibited by federal law—a state of affairs which explains the “[n]otwithstanding any other provision of law” formulation and that the provision’s sponsor found “dismay[ing]”—and that it was intended to help “give law enforcement all the tools it needs to remove … criminal [aliens] from our streets.” 142 Cong. Rec. H2191 (daily ed. Mar. 13, 1996) (Rep. Doolittle); cf. United States v. VasquezAlvarez, 176 F.3d 1294, 1298-99 & n.4 (10th Cir. 1999) (“[T]his court has not been able to identify any pre-§ 1252c limitations on the powers of state and local officers to enforce federal law.”). Neither the
32 The panel majority asserted that “[n]othing in [§ 1252c] permits warrantless arrests.” App. 43a. This is incorrect: by authorizing arrests “to the extent permitted by relevant State and local law,” § 1252c invokes the rule of Di Re that “in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” 332 U.S. at 589.

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text nor the legislative history of § 1252c mentions preemption, and “th[e] legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers.” Vasquez-Alvarez, 176 F.3d at 1299.
Section 1252c does not address other state enforcement efforts, and there is no indication that Congress intended § 1252c itself somehow to perpetuate any prohibition on them. Indeed, nearly contemporaneously with the 1996 enactment of § 1252c, Congress passed IIRIRA, including §1357(g)(10)(B)’s express authorization of state cooperation in the “apprehension” and “detention” of unlawfully present aliens. It would make no sense to conclude that in enacting § 1252c Congress intended to preempt by the most oblique implication the very same arrests that it nearly contemporaneously expressly preserved in § 1357(g)(10)(B).
3. Respondent’s Facial Attack on Section 6 Cannot Succeed.
Even if § 1252c has some implied preemptive effect, it undisputedly permits some arrests covered by Section 6, and therefore the Ninth Circuit’s holding contravenes this Court’s precedents regarding facial challenges.33 Section 6 does not
33 Not only does § 1252c authorize some Section 6 arrests on the basis of removability, but many of them will be justified based solely on the alien’s commission of the predicate crime. As the Ninth Circuit noted, Section 6 authorizes Arizona officials to arrest without a warrant persons who committed crimes in another State. App. 42a. These crimes are wrongful, and a constitutional basis for an arrest, quite independently of

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require even a single arrest—it merely permits certain warrantless arrests as a matter of state law. If, therefore, federal law permits only a subset of the arrests covered by Section 6, the proper approach is not to invalidate Section 6 on its face but to presume that state officers will exercise their discretion under it consistent with federal law and permit the law to be clarified in the context of concrete as-applied challenges.
III. SECTION 3 IS CONSTITUTIONAL.
Section 3 makes “[w]illful failure to complete or carry an alien registration document” a misdemeanor under Arizona law. Ariz. Rev. Stat. § 13-1509. The statute is violated only by unlawfully-present aliens who are “in violation of [8 U.S.C. §§] 1304(e) or 1306(a),” which respectively require registration and the carrying of registration papers. The maximum penalties for repeat violations of Section 3 are identical to those under federal law for violation of § 1306(a), and less than those for violating § 1304(e).
Section 3 thus fits squarely within a long line of cases in which this Court has found that, absent field preemption by Congress, the States are well within their authority to prohibit the same conduct that is forbidden by federal law. In Zook, for instance, this Court held that a California statute criminalizing the sale or arrangement of
their ramifications for the suspect’s immigration status. And if many arrests authorized by Section 6 thus are justified on this basis, the fact that Section 6 makes removability a further condition of its warrantless arrest authority surely does not invalidate them. In this way too, Section 6 plainly has constitutional applications.

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transportation by a carrier lacking a federal permit was not preempted by the federal Motor Carrier Act, which had “substantially the same provision.” 336 U.S. at 727. This Court said that “[t]he case would be different if there were conflict in the provisions of the federal and California statutes. But there is no conflict in terms, and no possibility of such conflict, for the state statute makes federal law its own in this particular.” Id. at 735 (emphasis added). See also Asbell v. Kansas, 209 U.S. 251, 258 (1908) (upholding Kansas law punishing the transportation of cattle not federally inspected since the law “recognizes the supremacy of the national law and conforms to it”); Fox v. Ohio, 46 U.S. 410 (1847) (Congress’ power to punish the counterfeiting of U.S. currency, U.S. Const. art. I, § 8, cl. 6, does not prevent a State from punishing the passing of counterfeit money). Section 3 is also supported by the line of recent cases recognizing the validity of “parallel” enforcement of federal requirements by States. See Medtronic, 518 U.S. at 495; Bates, 544 U.S. at 447; Riegel, 552 U.S. at 330.34
These cases illustrate the rule that, unless Congress has occupied the field, the States are not prevented “from prosecuting where the same act constitutes both a federal offense and a state offense under the police power.” Pennsylvania v. Nelson, 350 U.S. 497, 500 (1956). Thus, “if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the
34 The lone exception to this rule, inapplicable here, occurs in the field of labor relations, where congressionally provided remedies are exclusive. See Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 286 (1986).

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treatment of an alien subclass, the States may, of course, follow the federal direction.” Plyler, 457 U.S. at 219 n.19. Section 3 diligently follows this recommendation, overlapping precisely with federal direction in both its substantive elements and its penalty.
In our system of cooperative federalism, the States may assist the federal government in tackling national problems. In Gilbert v. Minnesota, 254 U.S. 325 (1920), this Court upheld a Minnesota statute that made it a crime “to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota.” Id. at 326. Rejecting the argument that the statute trenched upon areas of exclusive federal power, this Court recognized that the Constitution creates a system of cooperative federalism (id. at 329):
Cold and technical reasoning in its minute consideration may indeed insist on a separation of the sovereignties and resistance in each to any co-operation from the other, but there is opposing demonstration in the fact that this country is one composed of many and must on occasions be animated as one, and that the constituted and constituting sovereigns must have power of cooperation against the enemies of all.
In Whiting this Court upheld against a preemption challenge another Arizona statute that sought to add Arizona’s enforcement tools to the cause of enforcing federal immigration law. Whiting held that Arizona’s licensing law was not preempted by IRCA. The Whiting Court explained that IRCA imposed “a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.” 131 S. Ct. at

52
1985. The Court also noted that “Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects.” Id. at 1981. So too here. Section 3 simply seeks to enforce the federal registration requirements and tracks federal law in all material respects.
The Ninth Circuit’s reliance (App. 29a-30a) on Hines v. Davidowitz was misplaced. In Hines, this Court held that the federal Alien Registration Act of 1940 preempted Pennsylvania’s Alien Registration Act. This Court stated that where the federal government has “provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. 52, 66-67 (1941). But Section 3 does not violate that rule. Section 3 simply adopts as Arizona law the federal prohibitions and penalties on aliens in regard to registration. See App. 28a (“Section 3 essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.”).
Unlike Section 3, which adopts federal law without modification as Arizona law, and simply adds a parallel enforcement track, the Pennsylvania law in Hines “created conflicts with various federal laws.” DeCanas, 424 U.S. at 363 (distinguishing Hines on that basis). Unlike the federal Act, which required only a “single registration,” the Pennsylvania Act required an alien to register “once each year.” Furthermore, the Pennsylvania Act required aliens to “show the card whenever it may be demanded by any police officer” and punished the failure to register, without more. In contrast, the federal Act

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had “[n]o requirement that aliens carry a registration card to be exhibited to police,” and “only the wilful failure to register [was] made a criminal offense.” Hines, 312 U.S. at 59-61.
The court below also cited (App. 30a-31a) Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), which held that a state common-law claim of “fraud on the FDA” was preempted. But as this Court explained in Whiting, the claim in Buckman was preempted because it “directly interfered with the operation of the federal program” by causing “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.” Whiting, 131 S. Ct. at 1983 (quoting Buckman, supra, at 351) (brackets in Whiting). Section 3 raises no such concerns and conflicts in no way with federal law.
IV. SECTION 5(C) IS CONSTITUTIONAL.
Section 5(C) makes it a misdemeanor for any “unlawfully present” and “unauthorized” alien “to knowingly apply for work, solicit work in a public place or perform work” in Arizona. Ariz. Rev. Stat. § 13-2928(C). Section 5(C) is a presumptively valid exercise of the traditional state authority to regulate the employment relationship. In combating the problem of work by unauthorized aliens, IRCA addresses the demand side by forbidding employers from hiring unauthorized workers. Section 5(C) “mirrors federal objectives and furthers a legitimate state goal,” Plyler, 457 U.S. at 225, by addressing the problem from the supply side. Because IRCA is silent with respect to penalties on unauthorized

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workers, nothing overcomes the presumption against preemption that applies to Section 5(C). IRCA’s express and limited preemption provision, 8 U.S.C. § 1324a(h)(2), preempts only state laws imposing “sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens,” and thus does not reach Section 5(C).
Section 5(C) is an appropriate subject of state legislation. Each State retains the authority to protect its “fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens.” DeCanas, 424 U.S. at 357. As this Court recently reaffirmed, “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State,” and such regulations are “certainly within the mainstream of [the State’s] police power.” Whiting, 131 S. Ct. at 1974 (quoting DeCanas, 424 U.S. at 356) (brackets in Whiting). Accordingly, this Court in DeCanas explained that “we will not presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship … in a manner consistent with pertinent federal laws.” 424 U.S. at 357.
IRCA made it unlawful for employers to hire unauthorized aliens, 8 U.S.C. § 1324a(a), and expressly preempted state laws (other than licensing laws) imposing other sanctions on those who employ unauthorized aliens, id. § 1324a(h)(2), but IRCA conspicuously did not impose federal penalties, or preempt any state penalties, on aliens who work without authorization. The Ninth Circuit, however,

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assumed that “Congress’ inaction in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers, justifies a preemptive inference that Congress intended to prohibit states from criminalizing work.” App. 39a.
That conclusion attributes to Congress a remarkably counterintuitive intent—namely, not only to focus its resources on employers who make illegal hires, but to leave those who unlawfully seek employment entirely immune. It is also inconsistent with this Court’s preemption precedents. To begin with, nothing in federal law overcomes the strong presumption of validity that attaches to Section 5(C). The Ninth Circuit agreed that the presumption against preemption applies to Section 5(C), App. 33a, but failed to give effect to the presumption.
Furthermore, this Court has rejected as “quite wrong” the view that a federal “decision not to adopt a regulation” is “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002).
This is as true in the immigration context as anywhere else. As this Court stated in Hines:
where the Constitution does not of itself prohibit state action … and where the Congress, while regulating related matters, has purposely left untouched a distinctive part of a subject which is peculiarly adapted to local regulation, the state may legislate concerning such local matters which Congress could have covered but did not.
312 U.S. at 68 n.22. Although that principle did not control in Hines because there Pennsylvania had

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enacted an alien registration scheme that overlapped and conflicted with the federal one, it fits this case perfectly. Here, in an area of admitted traditional state authority, Congress “purposely left untouched” supply-side employment regulations of transactions that have a marked impact on local labor markets, leaving the state “free to legislate concerning such local matters.” Id. In Whiting the Court noted that if a state statute “operates ‘only with respect to individuals whom the Federal Government has already declared cannot work in this country’ ”—as does Section 5(C)—this supports a “finding [of] no preemption.” 131 S. Ct. at 1981 (quoting DeCanas, 424 U.S. at 363).
The Ninth Circuit viewed itself as “bound” (App. 33a) by its prior decision in NCIR, 913 F.2d 1350 (9th Cir. 1990), rev’d, 502 U.S. 183 (1991). In NCIR, the Ninth Circuit held that the INS lacked authority to bar aliens from working as a condition of release pending deportation proceedings. Needless to say, the Ninth Circuit’s NCIR decision has no binding effect on this Court, but how the court below could view itself bound is a mystery since the court “agree[d] that the ultimate legal question before us in [NCIR] was distinct from the present dispute,” App. 34a, and, more important, this Court reversed the Ninth Circuit in that case. INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183 (1991).
In this Court’s NCIR decision, which is binding, the Court held that the INS’ “no-work bond conditions” were within its statutory authority and “wholly consistent with th[e] established concern of immigration law” to “ ‘preserve jobs for American workers.’ ” Id. at 194 (quoting Sure-Tan, 467 U.S. at

57
893). Section 5(C), too, is wholly consistent with that objective. Indeed, even the Ninth Circuit recognized that “Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States.” App. 39a.
The court below relied upon IRCA’s legislative history as canvassed by the Ninth Circuit in its (reversed) NCIR decision. App. 34a. But, like IRCA’s text, IRCA’s legislative history shows only that Congress decided not to impose sanctions on unauthorized alien workers. IRCA’s legislative history—and, more important, its text—do not show that Congress decided that the States should not have the power to impose such sanctions. On the contrary, as this Court has recognized, “IRCA ‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law.’ ” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (quoting NCIR, 502 U.S. at 194 & n.8). IRCA certainly cannot be read to reflect a congressional policy that no consequences should follow from unauthorized work by aliens. Indeed, Congress has declared that work in violation of an alien’s nonimmigrant status is a ground for removal under the INA. See 8 U.S.C. § 1227(a)(1)(C)(i); Shivani v. Gonzales, 167 F. App’x 362, 362-363 (4th Cir. 2006).
V. FOREIGN CRITICISM OF S.B. 1070 HAS NO PREEMPTIVE EFFECT.
The panel majority pointed to foreign criticism of S.B. 1070 as support for its preemption finding. That reliance on foreign criticism was just one more way in which the Ninth Circuit strayed from this

58
Court’s precedents. As Judge Bea succinctly put it: “We do not grant other nations’ foreign ministries a ‘heckler’s veto.’ ” App. 95a.
The criticism that the Ninth Circuit marshaled to buttress its conclusion was far from overwhelming. The panel majority pointed to such facts as (1) various “foreign leaders and bodies have publicly criticized Arizona’s law,” including “six human rights experts at the United Nations,” App. 23a, (2) “at least five of the six Mexican governors invited to travel to Phoenix to participate in the September 810, 2010 U.S.-Mexico Border Governors’ Conference declined the invitation,” App. 24a; (3) “[t]he Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters,” App. 24a, (4) the Deputy Secretary of State had stated that S.B. 1070 “threatens” harm to U.S. foreign relations, App. 24a; and (5) a DHS official stated that S.B. 1070 “is affecting DHS’s ongoing efforts to secure international cooperation in carrying out its mission.” App. 24a.
None of this should have influenced the preemption analysis. The Arizona immigration law upheld in Whiting was not popular in these quarters either, but that did not deter this Court from rejecting the federal government’s arguments based on the traditional tools of preemption analysis— statutory text and legislative intent—as opposed to weighing the views of human rights experts or deferring to the executive’s preferred enforcement posture. What is more, this Court in Whiting distinguished the very cases which the Ninth Circuit invoked, Crosby v. National Foreign Trade Council,

59

530 U.S. 363 (2000), and American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003), on a ground equally applicable here—namely, that state law fully embraces, rather than conflicts with, the federal substantive immigration rules.

As Judge Bea noted in dissent, foreign nations—

and even subnational foreign officials—cannot

invalidate a State’s law simply by criticizing it. See

App. 95a. In Barclays, as here, a number of foreign

governments and officials had “deplor[ed] [a

California statute] in diplomatic notes, amicus

briefs, and even retaliatory legislation,” 512 U.S. at

320, and the Secretary of State had noted the volume

of complaints, id. at 324 n.22. This Court

nonetheless rejected the relevance of these protests

to the preemption analysis, holding that in the

absence of evidence of preemptive congressional

intent, the contention that the statute “is

unconstitutional because it is likely to provoke

retaliatory action by foreign governments is directed

to the wrong forum.” Id. at 327-328. The further

problem with relying on foreign criticism to skew the

preemption analysis is that not all congressional

legislation dealing with immigration is popular with

those who have criticized S.B. 1070. Indeed, to the

extent criticism of S.B. 1070 focuses on state

cooperation with federal authorities in enforcing the

federal immigration laws, the critics’ real complaint

is with federal statutory provisions like §§ 1373(a),

(c), (g)(10) and 1644, which expressly facilitate such

cooperation.

It is those congressional

determinations, and not the criticism of foreign

governments or the executive branch, that inform

the preemption analysis.

60
VI. S.B. 1070 POSES NO DISUNIFORMITY CONCERNS.
Finally, the panel majority erroneously found that “the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption.” App. 26a. Ironically, it is the disuniformity of federal immigration enforcement efforts that has funneled unlawful entrants to Arizona and exacerbated the crisis that led to S.B. 1070’s enactment. See supra at 2-3. Moreover, there is no dispute that Arizona is in any way regulating 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.” DeCanas, 424 U.S. at 355. While this Court has found the need for national uniformity to be a factor in the implied preemption analysis where state laws create a patchwork of different substantive standards, there is no such risk here.
This is clearest with respect to Section 2(B), which merely takes advantage of enforcement assistance expressly authorized by—indeed, compelled by— Congress in an area where States already possess inherent authority. “Arizona’s procedures simply implement the [measures] that Congress expressly allowed Arizona to pursue…. 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.” Whiting, 131 S. Ct. at 1981. And with respect to S.B. 1070 as a whole, there is certainly no more disuniformity than in Whiting.

61
When States adopt the federal substantive standard as their own and either authorize state cooperation in enforcement or add state penalties, the potential for a serious conflict is eliminated. Preemption is not a conclusion to be lightly reached. It amounts to a determination that a duly-enacted state law affirmatively conflicts with a particular federal law in violation of the Supremacy Clause. It is thus not enough for the federal executive to show that, all things being equal, it would be easier for federal law enforcement if the state law did not exist. Something in federal statutory law has to do the preempting. In cases like this, where the State goes “the extra mile in ensuring that its law closely tracks [federal law] in all material respects,” id. at 1981, there is simply no threat of disuniformity or any basis in federal law to invalidate the State’s efforts under the Supremacy Clause.

62

CONCLUSION

For the foregoing reasons, the judgment of the Ninth Circuit should be reversed.

Respectfully submitted,

Joseph Sciarrotta, Jr. General Counsel OFFICE OF GOVERNOR
JANICE K. BREWER 1700 W. Washington St. 9th Floor Phoenix, AZ 85007 (602) 542-1586
John J. Bouma Robert A. Henry Kelly Kszywienski SNELL & WILMER LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004 (602) 382-6000

Paul D. Clement
Counsel of Record Viet D. Dinh H. Christopher Bartolomucci Nicholas J. Nelson
BANCROFT PLLC 1919 M St., N.W., Suite 470 Washington, D.C. 20036
(202) 234-0090 pclement@bancroftpllc.com

Counsel for Petitioners

February 6, 2012

Statutory Appendix

i
TABLE OF CONTENTS
S.B. 1070, § 2, Ariz. Rev. Stat. § 11-1051................ 1a S.B. 1070, § 3, Ariz. Rev. Stat. § 13-1509................ 6a S.B. 1070, § 5, Ariz. Rev. Stat. § 13-2928................ 8a S.B. 1070, § 6, Ariz. Rev. Stat. § 13-3883.............. 10a 8 U.S.C. § 1252c ..................................................... 12a 8 U.S.C. § 1302 ....................................................... 13a 8 U.S.C. § 1304 ....................................................... 14a 8 U.S.C. § 1306 ....................................................... 16a 8 U.S.C. § 1324a ..................................................... 18a 8 U.S.C. § 1357 ....................................................... 42a 8 U.S.C. § 1373 ....................................................... 50a 8 U.S.C. § 1644 ....................................................... 52a

1a

S.B. 1070, § 2, Ariz. Rev. Stat. § 11-1051

§ 11-1051. Cooperation and assistance in

enforcement

of

immigration

laws;

indemnification

A. No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

B. For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully

2a
present in the United States if the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.
C. If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States immigration and customs enforcement or the United States customs and border protection shall be immediately notified.
D. Notwithstanding any other law, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this state.

3a
E. In the implementation of this section, an alien's immigration status may be determined by:
1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status.
2. The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code § 1373(c).
F. Except as provided in federal law, officials or agencies of this state and counties, cities, towns and other political subdivisions of this state may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes:
1. Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state.
2. Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state.
3. If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, chapter 7 of the federal immigration and nationality act.
4. Pursuant to 8 United States Code § 1373 and 8 United States Code § 1644.

4a
G. This section does not implement, authorize or establish and shall not be construed to implement, authorize or establish the REAL ID act of 2005 (P.L. 109-13, division B; 119 Stat. 302), including the use of a radio frequency identification chip.
H. A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws, including 8 United States Code §§ 1373 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than five hundred dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.
I. A court shall collect the civil penalty prescribed in subsection H of this section and remit the civil penalty to the state treasurer for deposit in the gang and immigration intelligence team enforcement mission fund established by § 41-1724.
J. The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a county, city, town or other political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.
K. Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law

5a
enforcement officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.
L. This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

6a
S.B. 1070, § 3, Ariz. Rev. Stat. § 13-1509
§ 13-1509. Willful failure to complete or carry an alien registration document; exception; authenticated records; classification
A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).
B. In the enforcement of this section, an alien’s immigration status may be determined by:
1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
2. The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code section 1373(c).
C. A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.
D. A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served or the person is eligible for release pursuant to § 411604.07.

7a
E. In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs.
F. This section does not apply to a person who maintains authorization from the federal government to remain in the United States.
G. Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.
H. A violation of this section is a class 1 misdemeanor, except that the maximum fine is one hundred dollars and for a first violation of this section the court shall not sentence the person to more than twenty days in jail and for a second or subsequent violation the court shall not sentence the person to more than thirty days in jail.

8a
S.B. 1070, § 5, Ariz. Rev. Stat. § 13-2928
§ 13-2928. Unlawful stopping to hire and pick up passengers for work; unlawful application, solicitation or employment; classification; definitions
A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
C. It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.
D. A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.
E. In the enforcement of this section, an alien’s immigration status may be determined by:

9a
1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
2. The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code § 1373(c).
F. A violation of this section is a class 1 misdemeanor.
G. For the purposes of this section:
1. “Solicit” means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.
2. “Unauthorized alien” means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 United States Code § 1324a(h)(3).

10a
S.B. 1070, § 6, Ariz. Rev. Stat. § 13-3883
§ 13-3883. Arrest by officer without warrant
A. A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe:
1. A felony has been committed and probable cause to believe the person to be arrested has committed the felony.
2. A misdemeanor has been committed in the officer’s presence and probable cause to believe the person to be arrested has committed the offense.
3. The person to be arrested has been involved in a traffic accident and violated any criminal section of title 28, and that such violation occurred prior to or immediately following such traffic accident.
4. A misdemeanor or a petty offense has been committed and probable cause to believe the person to be arrested has committed the offense. A person arrested under this paragraph is eligible for release under § 13-3903.
5. The person to be arrested has committed any public offense that makes the person removable from the United States.
B. A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer’s presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation. A peace officer who serves a copy of

11a
the traffic complaint shall do so within a reasonable time of the alleged criminal or civil traffic violation.

12a
8 U.S.C. § 1252c
§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens
(a) In general
Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
(b) Cooperation
The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

13a
8 U.S.C. § 1302
§ 1302 Registration of Aliens
(a) It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under section 1201(b) of this title or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days.
(b) It shall be the duty of every parent or legal guardian of any alien now or hereafter in the United States, who (1) is less than fourteen years of age, (2) has not been registered under section 1201(b) of this title or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for the registration of such alien before the expiration of such thirty days. Whenever any alien attains his fourteenth birthday in the United States he shall, within thirty days thereafter, apply in person for registration and to be fingerprinted.
(c) The Attorney General may, in his discretion and on the basis of reciprocity pursuant to such regulations as he may prescribe, waive the requirement of fingerprinting specified in subsections (a) and (b) of this section in the case of any nonimmigrant.

14a
8 U.S.C. § 1304
§ 1304. Forms for registration and fingerprinting
(a) Preparation; contents
The Attorney General and the Secretary of State jointly are authorized and directed to prepare forms for the registration of aliens under section 1301 of this title, and the Attorney General is authorized and directed to prepare forms for the registration and fingerprinting of aliens under section 1302 of this title. Such forms shall contain inquiries with respect to (1) the date and place of entry of the alien into the United States; (2) activities in which he has been and intends to be engaged; (3) the length of time he expects to remain in the United States; (4) the police and criminal record, if any, of such alien; and (5) such additional matters as may be prescribed.
(b) Confidential nature
All registration and fingerprint records made under the provisions of this subchapter shall be confidential, and shall be made available only (1) pursuant to section 1357(f)(2) of this title, and (2) to such persons or agencies as may be designated by the Attorney General.
(c) Information under oath
Every person required to apply for the registration of himself or another under this subchapter shall submit under oath the information required for such registration. Any person authorized under regulations issued by the Attorney General to register aliens under this subchapter

15a
shall be authorized to administer oaths for such purpose.
(d) Certificate of alien registration or alien receipt card
Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.
(e) Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
(f) Alien’s social security account number
Notwithstanding any other provision of law, the Attorney General is authorized to require any alien to provide the alien’s social security account number for purposes of inclusion in any record of the alien maintained by the Attorney General or the Service.

16a
8 U.S.C. § 1306
§ 1306. Penalties
(a) Willful failure to register
Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.
(b) Failure to notify change of address
Any alien or any parent or legal guardian in the United States of any alien who fails to give written notice to the Attorney General, as required by section 1305 of this title, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $200 or be imprisoned not more than thirty days, or both. Irrespective of whether an alien is convicted and punished as herein provided, any alien who fails to give written notice to the Attorney General, as required by section 1305 of this title, shall be taken into custody and removed in the manner provided by part IV of this subchapter, unless such alien establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful.
(c) Fraudulent statements
Any alien or any parent or legal guardian of any alien, who files an application for registration

17a
containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than six months, or both; and any alien so convicted shall, upon the warrant of the Attorney General, be taken into custody and be removed in the manner provided in part IV of this subchapter.
(d) Counterfeiting
Any person who with unlawful intent photographs, prints, or in any other manner makes, or executes, any engraving, photograph, print, or impression in the likeness of any certificate of alien registration or an alien registration receipt card or any colorable imitation thereof, except when and as authorized under such rules and regulations as may be prescribed by the Attorney General, shall upon conviction be fined not to exceed $5,000 or be imprisoned not more than five years, or both.

18a
8 U.S.C. § 1324a
§ 1324a. Unlawful employment of aliens
(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity--
(A) 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 (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B) (i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of Title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

19a
(3) Defense
A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.
(4) Use of labor through contract
For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).
(5) Use of State employment agency documentation
For purposes of paragraphs (1)(B) and (3), a person or entity shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of an individual who was referred for such employment by a State employment agency (as defined by the Attorney General), if the person or entity has and retains (for the period and in the manner described in subsection (b)(3) of this section) appropriate documentation of such referral by that agency, which documentation

20a
certifies that the agency has complied with the procedures specified in subsection (b) of this section with respect to the individual’s referral.
(6) Treatment of documentation for certain employees
(A) In general
For purposes of this section, if--
(i) an individual is a member of a collectivebargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and an association of two or more employers, by an employer that is a member of such association, and
(ii) within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with respect to the employment of the individual,
the subsequent employer shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of the employee and shall not be liable for civil penalties described in subsection (e)(5) of this section.
(B) Period
The period described in this subparagraph is 3 years, or, if less, the period of time that the

21a
individual is authorized to be employed in the United States.
(C) Liability
(i) In general
If any employer that is a member of an association hires for employment in the United States an individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii), the employer shall be presumed to have known at the time of hiring or afterward that the individual was an alien not authorized to work in the United States.
(ii) Rebuttal of presumption
The presumption established by clause (i) may be rebutted by the employer only through the presentation of clear and convincing evidence that the employer did not know (and could not reasonably have known) that the individual at the time of hiring or afterward was an alien not authorized to work in the United States.
(iii) Exception
Clause (i) shall not apply in any prosecution under subsection (f)(1) of this section.
(7) Application to Federal Government
For purposes of this section, the term “entity” includes an entity in any branch of the Federal Government.

22a
(b) Employment verification system
The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) of this section are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation
(A) In general
The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining--
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or an electronic signature. A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this

23a
paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document.
(B) Documents establishing both employment authorization and identity
A document described in this subparagraph is an individual’s--
(i) United States passport;
(ii) resident alien card, alien registration card, or other document designated by the Attorney General, if the document--
(I) contains a photograph of the individual and such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this subsection,
(II) is evidence of authorization of employment in the United States, and
(III) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.
(C) Documents evidencing employment authorization
A document described in this subparagraph is an individual’s--
(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does

24a
not authorize employment in the United States); or
(ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.
(D) Documents establishing identity of individual
A document described in this subparagraph is an individual’s--
(i) driver’s license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section; or
(ii) in the case of individuals under 16 years of age or in a State which does not provide for issuance of an identification document (other than a driver’s license) referred to in clause (i), documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.
(E) Authority to prohibit use of certain documents
If the Attorney General finds, by regulation, that any document described in subparagraph (B), (C), or (D) as establishing employment authorization or identity does not reliably

25a
establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Attorney General may prohibit or place conditions on its use for purposes of this subsection.
(2) Individual attestation of employment authorization
The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this chapter or by the Attorney General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature.
(3) Retention of verification form
After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending--
(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and
(B) in the case of the hiring of an individual--

26a
(i) three years after the date of such hiring, or
(ii) one year after the date the individual’s employment is terminated, whichever is later.
(4) Copying of documentation permitted
Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.
(5) Limitation on use of attestation form
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 this chapter and sections 1001, 1028, 1546, and 1621 of Title 18.
(6) Good faith compliance
(A) In general
Except as provided in subparagraphs (B) and (C), a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.

27a
(B) Exception if failure to correct after notice
Subparagraph (A) shall not apply if--
(i) the Service (or another enforcement agency) has explained to the person or entity the basis for the failure,
(ii) the person or entity has been provided a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the failure voluntarily within such period.
(C) Exception for pattern or practice violators
Subparagraph (A) shall not apply to a person or entity that has or is engaging in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section.
(c) No authorization of national identification cards
Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.

28a

(d) Evaluation and changes in employment verification system

(1) Presidential monitoring improvements in system

and

(A) Monitoring

The President shall provide for the monitoring and evaluation of the degree to which the employment verification system established under subsection (b) of this section 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.

(B) Improvements to establish secure system

To the extent that the system established under subsection (b) of this section is found not to be a secure system to determine employment eligibility in the United States, the President shall, subject to paragraph (3) and taking into account the results of any demonstration projects conducted under paragraph (4), implement such changes in (including additions to) the requirements of subsection (b) of this section as may be necessary to establish a secure system to determine employment eligibility in the United States. Such changes in the system may be implemented only if the

29a
changes conform to the requirements of paragraph (2).
(2) Restrictions on changes in system
Any change the President proposes to implement under paragraph (1) in the verification system must be designed in a manner so the verification system, as so changed, meets the following requirements:
(A) Reliable determination of identity
The system must be capable of reliably determining whether--
(i) a person with the identity claimed by an employee or prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming the identity of another individual.
(B) Using of counterfeit-resistant documents
If the system requires that a document be presented to or examined by an employer, the document must be in a form which is resistant to counterfeiting and tampering.
(C) Limited use of system
Any personal information utilized by the system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.

30a
(D) Privacy of information
The system must protect the privacy and security of personal information and identifiers utilized in the system.
(E) Limited denial of verification
A verification that an employee or prospective employee is eligible to be employed in the United States may not be withheld or revoked under the system for any reason other than that the employee or prospective employee is an unauthorized alien.
(F) Limited use for law enforcement purposes
The system may not be used for law enforcement purposes, other than for enforcement of this chapter or sections 1001, 1028, 1546, and 1621 of Title 18.
(G) Restriction on use of new documents
If the system requires individuals to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral, then such document may not be required to be presented for any purpose other than under this chapter (or enforcement of sections 1001, 1028, 1546, and 1621 of Title 18) nor to be carried on one’s person.

31a
(3) Notice to Congress before implementing changes
(A) In general
The President may not implement any change under paragraph (1) unless at least--
(i) 60 days,
(ii) one year, in the case of a major change described in subparagraph (D)(iii), or
(iii) two years, in the case of a major change described in clause (i) or (ii) of subparagraph (D), before the date of implementation of the change, the President has prepared and transmitted to the Committee on the Judiciary of the House of Representatives and to the Committee on the Judiciary of the Senate a written report setting forth the proposed change. If the President proposes to make any change regarding social security account number cards, the President shall transmit to the Committee on Ways and Means of the House of Representatives and to the Committee on Finance of the Senate a written report setting forth the proposed change. The President promptly shall cause to have printed in the Federal Register the substance of any major change (described in subparagraph (D)) proposed and reported to Congress.
(B) Contents of report
In any report under subparagraph (A) the President shall include recommendations for the

32a
establishment of civil and criminal sanctions for unauthorized use or disclosure of the information or identifiers contained in such system.
(C) Congressional review of major changes
(i) Hearings and review
The Committees on the Judiciary of the House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of any major change described in subparagraph (D), shall hold hearings respecting the feasibility and desirability of implementing such a change, and, within the two year period before implementation, shall report to their respective Houses findings on whether or not such a change should be implemented.
(ii) Congressional action
No major change may be implemented unless the Congress specifically provides, in an appropriations or other Act, for funds for implementation of the change.
(D) Major changes defined
As used in this paragraph, the term “major change” means a change which would--
(i) require an individual to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral,
(ii) provide for a telephone verification system under which an employer, recruiter,

33a

or referrer must transmit to a Federal official information concerning the immigration status of prospective employees and the official transmits to the person, and the person must record, a verification code, or

(iii) require any change in any card used for accounting purposes under the Social Security Act [42 U.S.C.A. § 301 et seq.], including any change requiring that the only social security account number cards which may be presented in order to comply with subsection (b)(1)(C)(i) of this section are such cards as are in a counterfeit-resistant form consistent with the second sentence of section 205(c)(2)(D) of the Social Security Act [42 U.S.C.A. § 405(c)(2)(D)].

(E) General revenue funding of social security card changes

Any costs incurred in developing and implementing any change described in subparagraph (D)(iii) for purposes of this subsection shall not be paid for out of any trust fund established under the Social Security Act [42 U.S.C.A. § 301 et seq.].

(4) Demonstration projects

(A) Authority

The

President

may

undertake

demonstration projects (consistent with

paragraph (2)) of different changes in the

requirements of subsection (b) of this section. No

34a
such project may extend over a period of longer than five years.
(B) Reports on projects
The President shall report to the Congress on the results of demonstration projects conducted under this paragraph.
(e) Compliance
(1) Complaints and investigations
The Attorney General shall establish procedures--
(A) for individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of this section,
(B) for the investigation of those complaints which, on their face, have a substantial probability of validity,
(C) for the investigation of such other violations of subsection (a) or (g)(1) of this section as the Attorney General determines to be appropriate, and
(D) for the designation in the Service of a unit which has, as its primary duty, the prosecution of cases of violations of subsection (a) or (g)(1) of this section under this subsection.
(2) Authority in investigations
In conducting investigations and hearings under this subsection--
(A) Immigration officers and administrative law judges shall have reasonable access to examine

35a
evidence of any person or entity being investigated,
(B) Administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and
(C) Immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, 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.
(3) Hearing
(A) In general
Before imposing an order described in paragraph (4), (5), or (6) against a person or entity under this subsection for a violation of subsection (a) or (g)(1) of this section, the Attorney General shall provide the person or entity with notice and, upon request made within a reasonable time (of not less than 30 days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.

36a
(B) Conduct of hearing
Any hearing so requested shall be conducted before an administrative law judge. The hearing shall be conducted in accordance with the requirements of section 554 of Title 5. The hearing shall be held at the nearest practicable place to the place where the person or entity resides or of the place where the alleged violation occurred. If no hearing is so requested, the Attorney General’s imposition of the order shall constitute a final and unappealable order.
(C) Issuance of orders
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity named in the complaint has violated subsection (a) or (g)(1) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served on such person or entity an order described in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money penalty for hiring, recruiting, and referral violations
With respect to a violation of subsection (a)(1)(A) or (a)(2) of this section, the order under this subsection-
(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of--
(i) not less than $250 and not more than $2,000 for each unauthorized alien with

37a
respect to whom a violation of either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and
(B) may require the person or entity--
(i) to comply with the requirements of subsection (b) of this section (or subsection (d) of this section if applicable) with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years, and
(ii) to take such other remedial action as is appropriate.
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.
(5) Order for civil money penalty for paperwork violations
With respect to a violation of subsection (a)(1)(B) of this section, the order under this subsection shall

38a
require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.
(6) Order for prohibited indemnity bonds
With respect to a violation of subsection (g)(1) of this section, the order under this subsection may provide for the remedy described in subsection (g)(2) of this section.
(7) Administrative appellate review
The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall become the final agency decision and order under this subsection. The Attorney General may not delegate the Attorney General’s authority under this paragraph to any

39a
entity which has review authority over immigrationrelated matters.
(8) Judicial review
A person or entity adversely affected by a final order respecting an assessment may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.
(9) Enforcement of orders
If a person or entity fails to comply with a final order issued under this subsection against the person or entity, the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final order shall not be subject to review.
(f) Criminal penalties and injunctions for pattern or practice violations
(1) Criminal penalty
Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.

40a
(2) Enjoining of pattern or practice violations
Whenever the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a) of this section, the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary.
(g) Prohibition of indemnity bonds
(1) Prohibition
It is unlawful for a person or other entity, in the hiring, recruiting, or referring for employment of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring, recruiting, or referring of the individual.
(2) Civil penalty
Any person or entity which is determined, after notice and opportunity for an administrative hearing under subsection (e) of this section, to have violated paragraph (1) shall be subject to a civil penalty of $1,000 for each violation and to an administrative order

41a
requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury.
(h) Miscellaneous provisions
(1) Documentation
In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.
(2) Preemption
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.
(3) Definition of unauthorized alien
As used in this section, the term “unauthorized alien” means, 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.

42a
8 U.S.C. § 1357
§ 1357. Powers of immigration officers and employees
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not

43a
dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and
(5) to make arrests—
(A) for any offense against the United States, if the offense is committed in the officer’s or employee’s presence, or
(B) for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony,
if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any

44a
order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.
(b) Administration of oath; taking of evidence
Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this chapter and the administration of the Service; and any person to whom such oath has been administered, (or who has executed an unsworn declaration, certificate, verification, or statement

45a
under penalty of perjury as permitted under section 1746 of title 28) under the provisions of this chapter, who shall knowingly or willfully give false evidence or swear (or subscribe under penalty of perjury as permitted under section 1746 of title 28) to any false statement concerning any matter referred to in this subsection shall be guilty of perjury and shall be punished as provided by section 1621 of title 18.
(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.
(d) Detainer of aliens for violation of controlled substances laws
In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—
(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and

46a
designated by the Attorney General of the arrest and of facts concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.
(e) Restriction on warrantless entry in case of outdoor agricultural operations
Notwithstanding any other provision of this section other than paragraph (3) of subsection (a) of this section, an officer or employee of the Service may not enter without the consent of the owner (or agent thereof) or a properly executed warrant onto the premises of a farm or other outdoor agricultural operation for the purpose of interrogating a person believed to be an alien as to the person’s right to be or to remain in the United States.
(f) Fingerprinting and photographing of certain aliens
(1) Under regulations of the Attorney General, the Commissioner shall provide for the fingerprinting and photographing of each alien 14 years of age or older against whom a proceeding is commenced under section 1229a of this title.
(2) Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies, upon request.

47a
(g) Performance of immigration officer functions by State officers and employees
(1) Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written

48a
agreement between the Attorney General and the State or subdivision.
(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.
(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

49a
(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State--
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
(h) Protecting abused juveniles
An alien described in section 1101(a)(27)(J) of this title who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 1101(a)(27)(J)(iii)(I) of this title.

50a
8 U.S.C. § 1373
§ 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.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or

51a
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.

52a
8 U.S.C. § 1644
§ 1644. Communication between State and local government agencies and Immigration and Naturalization Service
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.

 
 No. 11-182
In the Supreme Court of the United States

STATE OF ARIZONA, ET AL., PETITIONERS v.
UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IVAN K. FONG General Counsel Department of Homeland Security Washington, D.C. 20528
HAROLD HONGJU KOH Legal Adviser Department of State Washington, D.C. 20520

DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
BETH S. BRINKMANN Deputy Assistant Attorney General
WILLIAM M. JAY Assistant to the Solicitor General
MARK B. STERN MICHAEL P. ABATE BENJAMIN M. SHULTZ DANIEL TENNY JEFFREY E. SANDBERG
Attorneys
Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
Arizona’s state immigration-enforcement scheme, S.B. 1070, expressly makes “attrition through enforcement the public policy of all state and local government agencies in Arizona.” The district court preliminarily enjoined four provisions of S.B. 1070 as likely preempted by federal law, and the court of appeals affirmed. The questions presented are:
1. Whether Section 3 of S.B. 1070, which creates a state-law crime of being unlawfully present in the United States and failing to register with the federal government, is likely preempted by federal law, which comprehensively regulates alien registration.
2. Whether Section 5, which creates a state-law crime of seeking work or working while not authorized to do so, is likely preempted by federal law, which imposes civil and criminal penalties on employers who knowingly employ unauthorized aliens but only civil sanctions on aliens who work without authorization.
3. Whether Section 2, which requires state and local officers to verify the citizenship or alien status of people arrested, stopped, or detained without regard to federal enforcement priorities, is likely preempted by federal law, which requires state immigration enforcement efforts to be cooperative with federal officials and consistent with federal priorities.
4. Whether Section 6, which authorizes warrantless arrests of aliens believed to be removable, is likely preempted by federal law, which requires state immigration enforcement efforts to be cooperative with federal officials and consistent with federal priorities.
(I)

TABLE OF CONTENTS

Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The comprehensive federal immigration framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Arizona’s S.B. 1070 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Four provisions of S.B. 1070 are enjoined . . . . . . . . 10 Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 I. Arizona’s statute impermissibly seeks to frustrate the discretionary judgments through which the federal government sets immigration policy for the Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Under the Constitution and the INA, the federal government comprehensively regulates immigration and enforces the immigration laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
B. S.B. 1070 would supplant federal policy with a new and contrary state policy . . . . . . . . . . . . . . . . . 22
II. Arizona’s attempt to punish violations of federal law intrudes on exclusive federal authority . . . . . . . . . . . . . . 26 A. Section 3 impermissibly intrudes into a field reserved to, and occupied by, the federal government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1. Arizona has no inherent power to impose criminal punishment for violation of a

duty owed to the federal government . . . . . . . . . 27 2. Section 3 conflicts with the purposes and
objectives of the INA . . . . . . . . . . . . . . . . . . . . . . 31 B. Section 5 impermissibly imposes a punish-
ment that Congress rejected in adopting comprehensive federal regulation . . . . . . . . . . . . . . . 33

(III)

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1. Congress has specified that the INA’s employment restrictions shall be enforced through employer sanctions, criminal prohibitions on document fraud and perjury, and removal . . . . . . . . . . . . . . . . . . . 34
2. Section 5 impermissibly adds a punishment Congress rejected . . . . . . . . . . . . . . . . . . . . 38
III. Arizona’s new stop and arrest provisions are not valid measures to cooperate with the federal government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 A. In our federal system, state and local officers may cooperate in the enforcement of the immigration laws only subject to the ultimate direction of the Executive Branch . . . . . . . . . . . . . . . 43 B. Section 2 impermissibly requires Arizona officers to enforce federal immigration law without regard to federal priorities and discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 C. Section 6 impermissibly authorizes state officers to arrest aliens based on removability without regard for federal priorities . . . . . . . . . . . . . 53
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Cases:

TABLE OF AUTHORITIES

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Asbell v. Kansas, 209 U.S. 251 (1908) . . . . . . . . . . . . . . . . . 29
Bowsher v. Synar, 478 U.S. 714 (1986) . . . . . . . . . . . . . . . . 44
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 28, 33, 42

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California v. Zook, 336 U.S. 725 (1949) . . . . . . . . . . . . . . . 29 Chae Chan Ping v. United States, 130 U.S. 581 (1889) . . . 17 Chamber of Commerce v. Whiting, 131 S. Ct. 1968
(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 39, 40, 42 Chy Lung v. Freeman, 92 U.S. 275 (1875) . . . . . . . . . . 18, 25 City of New York v. United States, 179 F.3d 29
(2d Cir. 1999), cert. denied, 528 U.S. 1115 (2000) . . . . . 52 Crosby v. National Foreign Trade Council, 530 U.S.
363 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 31, 50 Dada v. Mukasey, 554 U.S. 1 (2008) . . . . . . . . . . . . . . . . . . 20 De Canas v. Bica, 424 U.S. 351 (1976) . . . . . . . . . . . 17, 34, 39 Fong Yue Ting v. United States, 149 U.S. 698 (1893) . . . . 17 Fox v. Ohio, 46 U.S. (5 How.) 410 (1847) . . . . . . . . . . . . . . . 29 Free Enter. Fund v. PCAOB, 130 S. Ct. 3138 (2010) . . . . 44 Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S.
88 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Galvan v. Press, 347 U.S. 522 (1954) . . . . . . . . . . . . . . . . . . 17 Geier v. American Honda Motor Co., 529 U.S. 861
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Gilbert v. Minnesota, 254 U.S. 325 (1920) . . . . . . . . . . 29, 30 Harisiades v. Shaugnessy, 342 U.S. 580 (1952) . . . . . . . . . 17 Heckler v. Chaney, 470 U.S. 821 (1985) . . . . . . . . . . . . . . . . 18 Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . passim Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
137 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . 19 Jama v. ICE, 543 U.S. 335 (2005) . . . . . . . . . . . . . . . . . . . . 22

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Kurns v. Railroad Friction Prods. Corp., 132 S. Ct. 1261 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Loney, In re, 134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . 28, 29
Mathews v. Diaz, 426 U.S. 67 (1976) . . . . . . . . . . . . . . . 17, 22
Muehler v. Mena, 544 U.S. 93 (2005) . . . . . . . . . . . . . . . . . 56
National Council of La Raza v. Department of Justice, 411 F.3d 350 (2d Cir. 2005) . . . . . . . . . . . . . . . . 55
Negusie v. Holder, 555 U.S. 511 (2009) . . . . . . . . . . . . . . . . 22
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . 43
Padilla v. Kentucky, 130 S. Ct. 1473 (2010) . . . . . . . . . . . . 55
Pennsylvania v. Nelson, 350 U.S. 497 (1956) . . . . . . . 27, 29
Printz v. United States, 521 U.S. 898 (1997) . . . . . . . . . . . 44
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) . . . . . . . . . . . . . . . . . . . . . . . 19
Reyes-Martinon v. Swift & Co., 9 OCAHO No. 1068, 2001 WL 909276 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) . . . . . . 42
Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . 17
Truax v. Raich, 239 U.S. 33 (1915) . . . . . . . . . . . . . . . . . . . 17
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United States v. Armstrong, 517 U.S. 456 (1996) . . . . . . . 19
United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir.), cert. denied, 528 U.S. 913 (1999) . . . . . . . . . 55

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United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30, 38, 39
Zadvydas v. Davis, 533 U.S. 678 (2001) . . . . . . . . . . . . 20, 21

Constitution, statutes and regulations:

U.S. Const.:
Art. II, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 44
Art. VI, Cl. 2 (Supremacy Clause) . . . . . . . . . . . . . . 43, 45
Department of Homeland Security Appropriations Act, 2009, Pub. L. No. 110-329, Div. D, Tit. II, 122 Stat. 3659 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Tit. II, 123 Stat. 2142 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Department of Homeland Security Appropriations Act, 2012, Pub. L. No. 112-74, Div. D, Tit. II, 125 Stat. 950 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546:
§ 403(a)(4)(B)(iii), 110 Stat. 3009-661 . . . . . . . . . . . . . 40
§ 404(d)(4)(B), 110 Stat. 3009-664 . . . . . . . . . . . . . . . 41
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8 U.S.C. 452(a) (1946) . . . . . . . . . . . . . . . . . . . . . . . . . 27
8 U.S.C. 1101(a)(15)(S)-(U) (2006 & Supp. IV 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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8 U.S.C. 1103(a)(10) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 46 8 U.S.C. 1182(a) (2006 & Supp. IV 2010) . . . . . . . . . . . 3 8 U.S.C. 1182(a)(6)(A)(i) . . . . . . . . . . . . . . . . . . . . . 3, 32 8 U.S.C. 1182(d) (2006 & Supp. IV 2010) . . . . . . . . . 21 8 U.S.C. 1184(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8 U.S.C. 1184(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8 U.S.C. 1184(p) (2006 & Supp. IV 2010) . . . . . . . . . 21 8 U.S.C. 1201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1225(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1226(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1226(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1227(a) (2006 & Supp. IV 2010) . . . . . . . . . . . 3 8 U.S.C. 1227(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 8 U.S.C. 1227(a)(1)(A)-(B) . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1227(a)(1)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1227(d) (Supp. IV 2010) . . . . . . . . . . . . . . . . 21 8 U.S.C. 1228(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1229a(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1229b (2006 & Supp. IV 2010) . . . . . . . . . . . 20 8 U.S.C. 1229b(a)-(b) (2006 & Supp. IV 2010) . . . . . . 3 8 U.S.C. 1229c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1231(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8 U.S.C. 1231(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 8 U.S.C. 1231(b)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1252(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 8 U.S.C. 1252c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 55

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8 U.S.C. 1252c(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 8 U.S.C. 1254a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1254a(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1254a(d)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8 U.S.C. 1255 (2006 & Supp. IV 2010) . . . . . . . . . . 3, 20 8 U.S.C. 1255(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1255(c)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1301-1306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1302(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 8 U.S.C. 1304(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1304(e) . . . . . . . . . . . . . . . . . . . . . . 2, 27, 31, 32 8 U.S.C. 1306(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 32 8 U.S.C. 1324(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 U.S.C. 1324a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 8 U.S.C. 1324a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1324a(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 35, 40 8 U.S.C. 1324a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 35 8 U.S.C. 1324a(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1324a(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(d)(2)(F)-(G) . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1324a(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8 U.S.C. 1324a(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1324a(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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8 U.S.C. 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . 35, 42 8 U.S.C. 1324a(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10 8 U.S.C. 1324b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 8 U.S.C. 1324b(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 8 U.S.C. 1324c(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1324c(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 U.S.C. 1325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. 1326(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 8 U.S.C. 1357(g) (§ 287(g)) . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. 1357(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 8 U.S.C. 1357(g)(1)-(9) . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. 1357(g)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. 1357(g)(10) . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. 1357(g)(10)(A) . . . . . . . . . . . . . . . . . . . . . . . . 51 8 U.S.C. 1357(g)(10)(B) . . . . . . . . . . . . . . . . . . . . . 47, 51 8 U.S.C. 1373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 51, 52 8 U.S.C. 1373(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 52 8 U.S.C. 1373(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 52 8 U.S.C. 1373(c) . . . . . . . . . . . . . . . . . . . . . . 8, 50, 51, 52 8 U.S.C. 1551 note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 U.S.C. 1644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3384 . . . . . . . . . . . . . . . . . 24 National Labor Relations Act, 29 U.S.C. 151 et seq. . . . . . 30 6 U.S.C. 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6 U.S.C. 271(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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6 U.S.C. 542 note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6 U.S.C. 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 18 U.S.C. 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18 U.S.C. 1028 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18 U.S.C. 1546(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18 U.S.C. 1546(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18 U.S.C. 1621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 18 U.S.C. 3561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 22 U.S.C. 7105(c)(3) (Supp. IV 2010) . . . . . . . . . . . . . . . . . . 21 S.B. 1070, 2010 Ariz. Sess. Laws, Ch. 113 . . . . . . . . . . . . . . 8
§ 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 23, 49 Ariz. Rev. Stat. Ann. § 11-1051 note (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23, 49
§ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ariz. Rev. Stat. Ann. § 11-1051(A) (Supp. 2011) . . . 23 Ariz. Rev. Stat. Ann. § 11-1051(B) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 47 Ariz. Rev. Stat. Ann. § 11-1051(H) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 47 Ariz. Rev. Stat. Ann. § 11-1051(H)-(J) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
§ 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ariz. Rev. Stat. Ann. § 13-1509 (Supp. 2011) . . . . . . . 9 Ariz. Rev. Stat. Ann. § 13-1509(A) (Supp. 2011) . . . 31 Ariz. Rev. Stat. Ann. § 13-1509(D) (Supp. 2011) . . . . 9 Ariz. Rev. Stat. Ann. § 13-1509(F) (Supp. 2011) . 9, 31 Ariz. Rev. Stat. Ann. § 13-1509(H) (Supp. 2011) . . . . 9

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§ 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ariz. Rev. Stat. Ann. § 13-2928(C) (Supp. 2011) . 9, 34 Ariz. Rev. Stat. Ann. § 13-2928(F) (Supp. 2011) . . . 10 Ariz. Rev. Stat. Ann. § 13-2928(G)(2) (2010 & Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
§ 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 53
Ariz. Rev. Stat. Ann.: § 13-105(27) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . 54, 55 § 13-707(A)(1) (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 § 13-802(A) (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 § 13-902(A)(5) (Supp. 2011) . . . . . . . . . . . . . . . . . . . . . . . 10 § 13-3854 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 § 13-3883(A)(1)-(4) (Supp. 2011) . . . . . . . . . . . . . . . . . . . 53
8 C.F.R.: Pt. 214: Section 214.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Sections 214.2(t)(4)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . 20 Pt. 239: Section 239.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Pt. 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 264.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Pt. 274: Sections 274a.2(b)(1)(i)-(ii) . . . . . . . . . . . . . . . . . . . . . 35 Section 274a.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

XIII

Regulation—Continued:

Page

Pt. 287: Section 287.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Miscellaneous:

118 Cong. Rec. 30,155 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 37
119 Cong. Rec. 14,184 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 37
DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters (Sept. 21, 2011), http://www. dhs.gov/xlibrary/assets/guidance-state-localassistance-immigration-enforcement.pdf . . . . . . 7, 46, 52
H.R. Rep. No. 682, 99th Cong., 2d Sess. Pt. 1 (1986) . . . . 38
Illegal Aliens: Hearings Before Subcomm. No. 1 of the House Comm. on the Judiciary, 92d Cong., 1st Sess. Pt. 1 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Immigration and Customs Enforcement, U.S. Department of Homeland Security:
Activated Jurisdictions (Mar. 6, 2012), http://www.ice.gov/doclib/securecommunities/pdf/sc-activated.pdf . . . . . . . . . . . . . . 5
Secure Communities, http://www.ice.gov/ secure_communities (last visited Mar. 18, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tool Kit for Prosecutors (Apr. 2011), http://www.ice.gov/doclib/about/offices/ osltc/pdf/tool-kit-for-prosecutors.pdf . . . . . . . . . . 21
Immigration Reform and Control Act of 1985: Hearings Before the Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . 37

XIV

Miscellaneous—Continued:

Page

Video Recording: Video Meeting of Ariz. House Comm. on Military Affairs & Pub. Safety, Mar. 31, 2010, http://azleg.granicus.com/MediaPlayer.php? view_id=13&clip_ id=7286 . . . . . . . . . . . . . . . . . . . . . . . 31
Remarks by Gov. Jan Brewer, Apr. 23, 2010, http://azgovernor.gov/dms/upload/SP_042310_ SupportOurLawEnforcementAndSafe NeighborhoodsAct.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
S. Rep. No. 132, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . 38
S. Rep. No. 249, 104th Cong., 2d Sess. (1996) . . . . . . . . . . 52
The Federalist (Jacob E. Cooke ed., 1961):
No. 3 (John Jay) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 45
No. 42 (James Madison) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In the Supreme Court of the United States
No. 11-182 STATE OF ARIZONA, ET AL., PETITIONERS
v. UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-115a) is reported at 641 F.3d 339. The opinion of the district court (Pet. App. 116a-169a) is reported at 703 F. Supp. 2d 980.
JURISDICTION
The judgment of the court of appeals was entered on April 11, 2011. On June 30, 2011, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including August 10, 2011, and the petition was filed on that date. The petition for a writ of certiorari was granted on December 12, 2011. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
(1)

2
STATEMENT
A. The Comprehensive Federal Immigration Framework
The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., established a comprehensive federal statutory regime for the regulation of immigration and naturalization. The Attorney General and the Secretary of Homeland Security (Secretary) principally administer that regime.
1. The INA includes a comprehensive scheme for the registration of aliens in the United States. Subject to certain exceptions, aliens are required to register upon (or before) entering the United States. See 8 U.S.C. 1201(b), 1301-1306; 8 C.F.R. Pt. 264. An alien is given a registration document “in such form and manner and at such times as shall be prescribed under regulations issued by the [Secretary].”1 8 U.S.C. 1304(d). Willful failure to register as required, or (for adults) failure to carry a registration document after receiving it, is a federal misdemeanor. 8 U.S.C. 1306(a), 1304(e).2
1 Various functions formerly performed by the Immigration and Naturalization Service, or otherwise vested in the Attorney General, have been transferred to officials of the Department of Homeland Security (DHS). Some residual statutory references to the Attorney General that pertain to the transferred functions are now deemed to refer to the Secretary. See 6 U.S.C. 251, 271(b), 557; 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
2 Some aliens (such as those traveling pursuant to electronic authorization under the Visa Waiver Program) never receive a written certificate of alien registration. J.A. 49. Other aliens who pursue particular immigration benefits (such as asylum) from within the United States do not formally register until that application is granted, unless they also seek and obtain employment authorization while the application is pending. See J.A. 40-48.

3 2. An alien also commits a federal misdemeanor if he unlawfully enters the United States (such as by eluding immigration inspectors). 8 U.S.C. 1325. Unlawful reentry after removal, a more serious crime, is a federal felony. 8 U.S.C. 1326. An alien who is merely present in the country without federal authorization is not subject to criminal prosecution, but only to civil removal and detention in aid of removal. See 8 U.S.C. 1182(a)(6)(A)(i), 1226, 1227(a)(1)(A)-(B). Formal removal proceedings are conducted in federal immigration court, a specialized tribunal. With limited exceptions,3 they are the “sole and exclusive procedure for determining whether an alien may be * * * removed from the United States.” 8 U.S.C. 1229a(a)(3). Only federal officials acting on behalf of the Secretary may initiate such proceedings. 8 C.F.R. 239.1(a). The INA establishes the grounds on which an alien may be ordered removed. See 8 U.S.C. 1182(a), 1227(a) (2006 & Supp. IV 2010). It also gives the Executive Branch discretion to grant various forms of relief from removal, up to and including permanent cancellation of removal and adjustment to lawful-permanent-resident status. See, e.g., 8 U.S.C. 1229b(a)-(b), 1255 (2006 & Supp. IV 2010). 3. Congress has authorized the Secretary to prescribe which classes of aliens are authorized to work in the United States. 8 U.S.C. 1324a(h)(3). To discourage illegal immigration, federal law prohibits employers from knowingly hiring or continuing to employ aliens who are not authorized to work, and requires employers to verify new employees’ work eligibility at the time of hiring. 8 U.S.C. 1324a(a) and (b). Employers who vio-
3 See, e.g., 8 U.S.C. 1225(b)(1)(A), 1228(b) (providing for expedited removal for, e.g., certain arriving aliens and criminal aliens).

4
late those prohibitions face a range of civil and criminal penalties. By contrast, federal law does not impose criminal penalties on unauthorized workers for the mere act of seeking or performing work; document fraud and similar acts carry criminal penalties, but unauthorized work triggers only civil sanctions, such as removal.
4. a. Congress has directed DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, 2012, Pub. L. No. 112-74, Div. D, Tit. II, 125 Stat. 950 (2011).4 Consistent with that directive, U.S. Immigration and Customs Enforcement (ICE) has made its highest priority an area that petitioners also emphasize (Br. 3-6): “aliens who pose a danger to national security or a risk to public safety,” including aliens engaged in or suspected of terrorism and aliens convicted of criminal activity. J.A. 108. ICE also has focused on dismantling large organizations that smuggle aliens and contraband, which “tend to create a high risk of danger for the persons being smuggled, and tend to be affiliated with the movement of drugs and weapons.” J.A. 106.5
As part of its emphasis on removing criminal aliens, ICE has adopted an initiative known as “Secure Communities” to ensure rapid identification of removable aliens who are arrested on criminal charges. Local lawenforcement agencies share arrestees’ fingerprints with
4 Accord, e.g., Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Tit. II, 123 Stat. 2142 (2009) (same); Department of Homeland Security Appropriations Act, 2009, Pub. L. No. 110-329, Div. D, Tit. II, 122 Stat. 3659 (2008) (same).
5 During an average day, ICE officers remove from the United States approximately 900 aliens. Approximately half of those aliens are persons who had committed crimes. J.A. 102.

5 the FBI for criminal record checks; under Secure Communities, that information is shared with DHS. ICE uses the information to identify arrestees who are unlawfully present or otherwise removable. ICE, Secure Communities, http://www.ice.gov/secure_communities (last visited Mar. 18, 2012). Secure Communities is already online in 75% of local jurisdictions, including every county in Arizona,6 and ICE estimates that it will have deployed Secure Communities nationwide in Fiscal Year 2013.
b. ICE additionally focuses on “maintain[ing] control at the border” by giving priority to detaining and removing recent illegal entrants. J.A. 108-109. Other priorities include locating and removing fugitives who have failed to comply with final orders of removal. Ibid. In contrast, “[a]liens who have been present in the U.S. without authorization for a prolonged period of time and who have not engaged in criminal conduct present a significantly lower enforcement priority.” J.A. 109.
In furtherance of DHS’s emphasis on border control, “ICE has devoted substantial resources to increasing border security,” particularly in the Southwest. J.A. 103. Approximately one-quarter of all ICE special agents are stationed in that region, including more than 350 in Arizona, and Arizona also has a substantial number of federal attorneys assigned to removal cases. J.A. 103-104.
Approximately 4000 Border Patrol agents were stationed along the border in Arizona between ports of entry as of May 2010. That number reflects a more than 40% increase over the number of agents stationed there
6 ICE, Activated Jurisdictions (Mar. 6, 2012), http://www.ice.gov/ doclib/secure-communities/pdf/sc-activated.pdf.

6 five years earlier. J.A. 73. Their efforts are supplemented by nearly 40 DHS aircraft based in Arizona and crewed by Arizona-based Air Interdiction Agents. J.A. 75. The federal government has also erected approximately 305.7 miles of border fence in Arizona. J.A. 74. Over the last five years, Border Patrol apprehensions in that area have substantially decreased. J.A. 77-78. Furthermore, at the six land ports of entry within Arizona, thousands of people each year are determined to be inadmissible or withdraw their applications for admission. J.A. 71.
5. a. Federal immigration laws contemplate several ways in which state and local officers may cooperate with federal officials in federal enforcement of the INA. State and local law-enforcement officers are expressly authorized to make arrests for violations of the INA’s prohibition against smuggling, transporting, or harboring aliens. See 8 U.S.C. 1324(c). Similarly, state and local officers may (if authorized by state law) arrest and detain an alien who is illegally present in the United States, was previously convicted of a felony in the United States, and then departed or was deported. 8 U.S.C. 1252c. That express authority is conditioned, however, on receiving prior confirmation from federal immigration officials of the target’s status, and detention may extend no longer than necessary for federal officers to take the alien into custody for purposes of removal proceedings. In addition, if the Secretary determines that an actual or imminent mass influx of aliens presents urgent circumstances requiring an immediate federal response, she may authorize any state or local officer (with the permission of the officer’s agency) to exercise the authority of federal immigration officers. See 8 U.S.C. 1103(a)(10).

7 b. Congress has also authorized DHS to enter into formal cooperative agreements with States and localities. Under these “ 287(g) agreements,” 7 appropriately trained and qualified state and local officers may perform specified functions of a federal immigration officer in relation to the investigation, apprehension, or detention of aliens. 8 U.S.C. 1357(g)(1)-(9). The state officers’ activities under these agreements “shall be subject to the direction and supervision of the [Secretary].” 8 U.S.C. 1357(g)(3). The INA further provides, however, that a formal, written agreement is not required for state and local officers to “cooperate with the [Secretary]” in certain respects. 8 U.S.C. 1357(g)(10). Specifically, even without a formal agreement, state and local officers are able to “communicate with the [Secretary] regarding the immigration status of any individual,” or “otherwise to cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Ibid . Consistent with that provision, DHS has invited, and receives, assistance in a variety of contexts from state and local law-enforcement personnel without a 287(g) agreement. See DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters (Sept. 21, 2011) (DHS Guidance), http://www.dhs.gov/xlibrary/assets/guidance-state-localassistance-immigration-enforcement.pdf. Arizona participates in several such cooperative law-enforcement programs, including the Alliance to Combat Transnational Threats, which seeks “to disrupt and dismantle violent cross-border criminal organizations that have a
7 8 U.S.C. 1357(g) is Section 287(g) of the INA.

8
negative impact on the lives of the people on both sides of the border.” J.A. 105.
c. To enhance communications, Congress has provided for the reciprocal exchange of information between the federal government and States and localities. 8 U.S.C. 1373. Subsections (a) and (b) prevent States and localities from enacting laws or policies that “prohibit[] or in any way restrict” the ability of state and local officers to cooperate with federal officials by sending and receiving information concerning an individual’s immigration status. Subsection (c) provides, in turn, that DHS “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.” To facilitate responses to such inquiries, DHS has established the Law Enforcement Support Center (LESC), to respond to inquiries around the clock. J.A. 91.
B. Arizona’s S.B. 1070
This case involves four provisions of S.B. 1070, 2010 Ariz. Sess. Laws, Ch. 113.8 The law’s statement of purpose declares that S.B. 1070 was enacted to make “attrition through enforcement the public policy of all state and local government agencies in Arizona.” § 1, Ariz. Rev. Stat. Ann. § 11-1051 note (“Intent”). In furtherance of that state policy, any state or local official or agency that “adopts or implements a policy that limits or restricts the enforcement of federal immigration laws
8 All references to provisions of S.B. 1070 are to the law as amended shortly after adoption. Except as noted, references to the Arizona Revised Statutes Annotated are to the 2011 supplement.

9 * * * to less than the full extent permitted by federal law” is subject to civil penalties of up to $5000 per day. Id. § 2, Ariz. Rev. Stat. Ann. § 11-1051(H). Any legal resident of Arizona may bring a lawsuit to enforce these penalties. Ibid .
S.B. 1070’s provisions are expressly designed to “work together” to deter the unauthorized entry, presence, and economic activity of aliens in the United States. S.B. 1070, § 1. Two of the provisions at issue— Sections 3 and 5—create new state crimes, and the others—Sections 2 and 6—impose requirements on Arizona law-enforcement officers to verify immigration status and provide arrest authority.
1. Criminal provisions. Section 3, Ariz. Rev. Stat. Ann. § 13-1509, makes it a state crime to violate the federal alien-registration statutes, see p. 2, supra. The state crime “does not apply to a person who maintains authorization from the federal government to remain in the United States.” Id. § 13-1509(F ).
Violation of Section 3 is a misdemeanor punishable by 20 days of imprisonment for a first violation and 30 days for a subsequent violation, or by a fine. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3 appears to make those penalties mandatory: a person sentenced under Section 3 “is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by [work-release and furlough statutes] until the sentence imposed by the court has been served,” minus good-conduct time. Id. § 13-1509(D).
The relevant provision of Section 5, Ariz. Rev. Stat. Ann. § 13-2928(C),9 makes it a state crime for any “un-
9 All references to “Section 5” are to that subdivision.

10
authorized alien” who is unlawfully present in the United States to apply for, publicly solicit, or perform work as an employee or independent contractor.10 Violation of Section 5 is a misdemeanor punishable by up to six months of incarceration, a $2500 fine, and three years of probation. Id . § 13-2928(F ); see id. §§ 13-707(A)(1) (2010), 13-802(A) (2010), 13-902(A)(5).
2. Stop and arrest provisions. The relevant provision of Section 2, Ariz. Rev. Stat. Ann. § 11-1051(B), imposes two mandatory duties on all state and local lawenforcement officers in Arizona. First, whenever “practicable,” an officer must determine the immigration status of any individual who is stopped or detained if there is reasonable suspicion that the person is an alien and “unlawfully present in the United States,” unless doing so would hinder or obstruct an investigation. Second, a law-enforcement officer must determine the immigration status of anyone who is arrested before he is released.
Section 6, Ariz. Rev. Stat. Ann. § 13-3883(A)(5), authorizes an Arizona officer to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person removable from the United States.”
C. Four Provisions Of S.B. 1070 Are Enjoined
1. The United States filed this action to enjoin several provisions of S.B. 1070 as preempted by federal law, Pet. App. 170a-204a, and sought a preliminary injunction. The district court declined to enjoin certain parts of S.B. 1070, but preliminarily enjoined the portions of
10 An “[u]nauthorized alien” is an alien not authorized “under federal law to work in the United States.” Ariz. Rev. Stat. Ann. § 13-2928(G)(2) (citing 8 U.S.C. 1324a(h)(3)).

11 Sections 2, 3, 5, and 6 discussed above, as likely preempted by federal law. Id. at 116a-169a.
The court held that Section 3 impermissibly creates an Arizona-specific “supplement” to “the uniform,” “complete,” and “comprehensive federal alien registration scheme.” Pet. App. 149a-150a. The court further held that Section 5 is likely preempted by the INA’s comprehensive scheme of employment regulation, which does not criminalize seeking work. Id . at 151a-156a.
The court also held that mandatory verification of federal immigration status under Section 2 would divert federal resources from implementation of federal priorities and burden lawfully present aliens. Pet. App. 146a. The court further held that Section 6, which would require state officers to make complex judgments about whether an alien will be found removable under federal law, burdens lawfully present aliens by exposing them to wrongful warrantless arrest. Id. at 165a.
Finally, the court found that the United States had established likely irreparable injury to its “ability to enforce its policies and achieve its objectives” regarding the national immigration laws, and that the other equitable factors supported preliminary injunctive relief. Pet. App. 165a-168a.
2. The court of appeals affirmed, concluding that the district court did not abuse its discretion. Pet. App. 1a-115a.
a. The court unanimously held that the criminal provisions of Sections 3 and 5 are likely preempted. The court first concluded that Section 3’s state-law crime of failure to register is incompatible with the INA, under this Court’s decision in Hines v. Davidowitz, 312 U.S. 52 (1941). Pet. App. 29a-30a.

12 The court also unanimously concluded that Section 5 conflicts with Congress’s comprehensive and “complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them.” Pet. App. 35a. Congress declined to impose criminal penalties on unauthorized aliens who work or seek work, and it imposed only civil immigration consequences for working without authorization (and criminal penalties for fraud); Arizona’s “criminalization of work,” the court of appeals concluded, was likely preempted as “a substantial departure” from Congress’s approach. Id. at 39a, 40a. b. By a divided vote, the court concluded that the stop and arrest provisions of Sections 2 and 6 likely are also preempted. The court explained that 8 U.S.C. 1357(g)(10), which authorizes state and local officers to “cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present” even in the absence of a written agreement, “does not permit states to * * * systematically enforce the INA in a manner dictated by state law.” Pet. App. 15a. The court concluded that Section 2’s mandatory directive to verify the immigration status of anyone stopped and suspected of being unlawfully present “attempt[s] to hijack a discretionary role that Congress delegated to the Executive” in enforcing the INA. Id. at 22a. The court noted that the enactment of Section 2 “has had a deleterious effect on the United States’ foreign relations,” ibid., thereby “thwart[ing] the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs.” Id . at 26a. Finally, the court concluded that Section 6’s new grant of warrantless arrest authority is likely pre-

13
empted, because it exceeds the “circumstances in which Congress has allowed state and local officers to arrest immigrants.” Pet. App. 44a-45a. The court held that States lack inherent authority to enforce civil immigration laws and that Section 6 both exceeds the scope of congressionally authorized cooperation and interferes with federal prerogatives. Id . at 45a-53a.11
c. Judge Noonan joined the court’s opinion and also filed a separate concurring opinion to “emphasize the intent of [S.B. 1070] and its incompatibility with federal foreign policy.” Pet. App. 55a. He explained that the provisions of S.B. 1070 were intended to work together to effectuate Arizona’s goal of “attrition through enforcement,” and that it would be “difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States.” Id . at 56a.
d. Judge Bea concurred in affirming the preliminary injunction with respect to Sections 3 and 5 but would have reversed the injunction with respect to Sections 2 and 6. Pet. App. 66a-114a.
SUMMARY OF ARGUMENT
I. Under the Constitution, the National Government has plenary authority to admit aliens to this country, to prescribe the terms under which they may remain, and if necessary, to remove them. Because those decisions involve other countries’ citizens, they necessarily implicate “important and delicate” considerations of foreign policy. Hines v. Davidowitz, 312 U.S. 52, 64 (1941). As the Framers understood, it is the National Government
11 The court of appeals also concluded that the government had established the other requisites for granting a preliminary injunction. Pet. App. 54a. Petitioners do not challenge that conclusion.

14 that has ultimate responsibility to regulate the treatment of aliens while on American soil, because it is the Nation as a whole—not any single State—that must respond to the international consequences of such treatment.
In the INA, Congress vested the Executive Branch with the authority and the discretion to make sensitive judgments with respect to aliens, balancing the numerous considerations involved: national security, law enforcement, foreign policy, humanitarian considerations, and the rights of law-abiding citizens and aliens. The Executive Branch has considerable statutory discretion to decide who may enter and who must leave; who must register while in the country, with whom, and under what conditions, and what punishment to seek for a violation; who may work while here; and when an alien is subject to removal, what considerations might justify allowing her to remain at liberty temporarily, or even to remain in the country permanently. Discretion is a necessary part of many statutory enforcement schemes, but the need for that discretion is especially strong in the area of immigration. The decision to admit, detain, or remove a particular alien depends not only on resource constraints, but on numerous other considerations that call for a decisionmaker to exercise sound judgment on behalf of the Nation as a whole, according to a single standard. The INA assigns the Executive Branch that function.
In S.B. 1070, Arizona seeks to interpose its own judgments on those sensitive subjects. Arizona has adopted its own immigration policy, which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments that the INA provides for the Executive Branch to make. For each State, and each locality, to

15 set its own immigration policy in that fashion would wholly subvert Congress’s goal: a single, national approach.
Each provision of S.B. 1070 at issue here is preempted.
II. A. Congress has set forth a single federal framework governing aliens’ obligations to register and maintain proof of that registration. This Court in Hines established that Congress had left no room for the States to adopt their own rival registration rules. Section 3 of S.B. 1070 fails under that holding. Although petitioners acknowledge that Arizona has not sought to set up its own registration system, it has set up its own registration penalties and its own scheme of registration enforcement. The State cannot, in the name of enforcing a federal registration obligation that runs between individual aliens and the National Government, claim the right to punish aliens who are not registered but who the Executive Branch has decided not to prosecute based on important considerations consistent with the INA.
B. Congress has likewise set forth a comprehensive scheme governing employment of aliens. When an employer hires an individual, the employer must follow a statutorily specified procedure to verify that the new employee is authorized to work. Employers are subject to carefully graduated penalties for breaches of that duty. Employees are subject to criminal punishment only for deceptive practices in seeking employment, and they may face civil consequences for working without authorization. But Section 5 seeks to criminalize working, or even seeking work, without authorization, a penalty rejected by Congress and contrary to the balanced and comprehensive framework Congress created.

16 C. In enforcing the INA, the United States welcomes the assistance of state and local officers, provided that they work “cooperat[ively]” with federal officers toward the goals and priorities set by the Executive Branch, as Congress has specified in the INA itself. 8 U.S.C. 1357(g)(10)(B). Before S.B. 1070, Arizona officers routinely worked in partnership with federal officers to cooperatively enforce the immigration laws. Section 2 changed Arizona’s policy from one of cooperation to one of confrontation. By insisting indiscriminately on enforcement in all cases, and requiring state and local officers (whenever practicable) to verify the immigration status of everyone they stop or arrest if there is reasonable suspicion that the person is unlawfully present, Section 2 forbids officers—on pain of civil penalties—from looking to the lead of federal officials and adhering to the enforcement judgments and discretion of the federal Executive Branch. Congress’s authorization of “cooperat[ion]” does not permit Arizona to set its own immigration policy. Section 2 makes cooperation impossible. D. Section 6 likewise is not “cooperat[ion],” because it empowers state and local officers to pursue and detain a person based on the officers’ perception that the person is removable, and without regard for whether proceedings to remove that person would be consistent with the federal government’s priorities.

17
ARGUMENT
I. ARIZONA’S STATUTE IMPERMISSIBLY SEEKS TO FRUSTRATE THE DISCRETIONARY JUDGMENTS THROUGH WHICH THE FEDERAL GOVERNMENT SETS IMMIGRATION POLICY FOR THE NATION
A. Under The Constitution And The INA, The Federal Government Comprehensively Regulates Immigration And Enforces The Immigration Laws
1. The “authority to control immigration * * * is vested solely in the Federal Government,” Truax v. Raich, 239 U.S. 33, 42 (1915), and the formulation of “[p]olicies pertaining to the entry of aliens and their right to remain here * * * is entrusted exclusively to Congress,” Galvan v. Press, 347 U.S. 522, 531 (1954). This Court has repeatedly recognized that “whatever power a state may have” to legislate regarding immigration and alien registration is “subordinate to supreme national law.” Hines v. Davidowitz, 312 U.S. 52, 68 (1941); see also Toll v. Moreno, 458 U.S. 1, 11 (1982); De Canas v. Bica, 424 U.S. 351, 354 (1976); Mathews v. Diaz, 426 U.S. 67, 84 (1976); Fong Yue Ting v. United States, 149 U.S. 698, 705-706 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 603-605 (1889).
The allocation of that authority to the National Government reflects the fundamental proposition that the United States’ “policy toward aliens is vitally and intricately interwoven with * * * the conduct of foreign relations,” Harisiades v. Shaugnessy, 342 U.S. 580, 588589 (1952). “One of the most important and delicate of all international relationships,” this Court has stated, is “the protection of the just rights of a country’s own nationals when those nationals are in another country.” Hines, 312 U.S. at 64.

18 The Framers vested that power exclusively in the National Government so that the Nation can speak with one voice in this area. See The Federalist No. 42, at 279 (James Madison) (Jacob E. Cooke ed., 1961) (“If we are to be one nation in any respect, it clearly ought to be in respect to other nations.”). The alternative—with variegated state laws reflecting different and perhaps conflicting state policies—is cacophony. Such a situation would also risk allowing “a single State * * * , at her pleasure, [to] embroil us in disastrous quarrels with other nations.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1875), and threaten retaliatory action against American citizens abroad, see Hines, 312 U.S. at 64-65; J.A. 142143, 149. 2. In pursuance of the National Government’s paramount authority in this area, Congress has enacted the INA, which today comprehensively regulates not only the admission and removal of aliens, but also their registration and employment. The role of the Executive Branch is a crucial part of that comprehensive framework. Whenever Congress vests enforcement authority in an Executive Department, the Department presumptively possesses the responsibility to exercise discretion, “balancing a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). That is especially so in the context of immigration, where “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (citation omitted). Thus, Congress has vested various responsibilities under the INA in the President, the Secretary of Home-

19
land Security, the Attorney General, the Secretary of State, and other federal officers, because immigration touches numerous national concerns: protecting the Nation’s security and borders, foreign relations, humanitarian considerations, and justly administering the INA with respect to both citizens and aliens. That broad grant of discretion is manifested in a number of specific provisions of the INA.
In particular, “Congress [has] made a deliberate choice to delegate to the Executive Branch * * * the authority to allow deportable aliens to remain in this country in certain specified circumstances,” whether by postponing or forgoing removal proceedings, granting interim release, or granting relief from removal. INS v. Chadha, 462 U.S. 919, 954 (1983). First, the Executive Branch may refrain from initiating removal proceedings, and “[a]t each stage” it “has discretion to abandon the endeavor” if, in its judgment, the circumstances warrant. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999) (AADC).12 Congress has not only recognized but has protected that executive discretion by expressly insulating it from judicial review. See 8 U.S.C. 1252(g); AADC, 525 U.S. at 483-484, 485 n.9, 486.
Second, once proceedings are initiated, Congress has given the Executive Branch substantial, unreviewable
12 The same is true of the INA’s criminal provisions. In keeping with the President’s duty to take care that the laws be faithfully executed, U.S. Const. Art. II, § 3, the decision whether to prosecute any violation of “the Nation’s criminal laws” is a “ ‘special province’ ” of the Executive Branch. United States v. Armstrong, 517 U.S. 456, 464 (1996). The detention and prosecution of foreign nationals for violating federal law also implicate the President’s constitutional authority to conduct foreign relations.

20
discretion to release aliens on bond or conditional parole. See 8 U.S.C. 1226(a)(2) and (e). Congress has also authorized the Secretary to let a removable alien remain at liberty pending departure for as long as 120 days, in exchange for the alien’s commitment to depart voluntarily. 8 U.S.C. 1229c; Dada v. Mukasey, 554 U.S. 1, 1011 (2008).
Third, the Executive Branch has statutory discretion to grant lawful status to a removable alien pursuant to several forms of relief from removal. J.A. 44; see, e.g., 8 U.S.C. 1229b, 1255 (2006 & Supp. IV 2010); pp. 21-22, infra. Several of those forms of relief take time to adjudicate,13 and while the alien is pursuing a claim for a special visa or asylum, she remains formally unregistered and unlawfully present. J.A. 40-47.14
Fourth, even if permanent relief from removal is unavailable, the INA provides several grounds for allowing an alien to remain free or on supervised release pending eventual removal. For instance, humanitarian conditions, foreign-policy considerations, or other reasons may preclude or counsel against the alien’s removal to a designated country. See, e.g., 8 U.S.C. 1231(b)(3)(A), 1254a; Zadvydas v. Davis, 533 U.S. 678, 684 (2001); see also J.A. 139-141 (discussing treaty commitments and other reasons for these policies). Aliens granted Temporary Protected Status may not be detained and must receive work authorization while they maintain that status. 8 U.S.C. 1254a(a)(1)(B) and (d)(4). Other individuals who are not removed may obtain supervised release,
13 See, e.g., 8 C.F.R. 214.2(t)(4)-(6) (extensive five-step, multi-agency review of applications for S visa).
14 An application for the discretionary relief of adjustment of status satisfies the registration requirement, 8 C.F.R. 264.1(a) (Form I-485), but other applications for discretionary relief do not.

21 8 U.S.C. 1231(a)(3), and indeed, this Court has interpreted the governing statute presumptively to require such release after six months if removal is not yet reasonably foreseeable, Zadvydas, 533 U.S. at 701.
Congress has qualified the Executive Branch’s discretion in some respects by adopting eligibility requirements (e.g., disqualifying aggravated felons) and annual limits on certain categories of relief. But those tailored limitations only underscore Congress’s judgment that unlawful presence does not in all cases justify detention, much less criminal punishment.
3. The Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely. DHS receives sufficient funding to provide for the removal of only about 400,000 aliens per year, whereas an estimated 10.8 million aliens are unlawfully present. J.A. 109. Enforcement considerations may also conflict with each other. For example, vigorously enforcing certain provisions of the INA, such as the criminal prohibitions on alien smuggling, will frequently require the Executive Branch to exercise its discretion to secure cooperation from witnesses, who may themselves be unlawfully present and potentially subject to removal or prosecution. See, e.g., United States v. ValenzuelaBernal, 458 U.S. 858, 864 (1982) (noting government’s “dual responsibility” in this regard); J.A. 87. Congress has recognized the importance of securing the cooperation and availability of alien victims and other witnesses and has explicitly given the Executive Branch additional discretion in this regard. See, e.g., 8 U.S.C. 1101(a)(15)(S)-(U), 1182(d), 1184(k), (o) and (p), 1227(d) (2006 & Supp. IV 2010); 22 U.S.C. 7105(c)(3) (Supp. IV 2010). See generally, e.g., ICE, Tool Kit for Prosecutors

22
(Apr. 2011), http://www.ice.gov/doclib/about/offices/ osltc/pdf/tool-kit-for-prosecutors.pdf.
Congress’s decision to vest authority in the Executive Branch accords with the sensitivity of enforcement, detention, and removal decisions. It is the Executive Branch that must respond to the foreign-policy repercussions of any decision to admit, arrest, detain, or remove the nationals of other countries, see, e.g., J.A. 140160, and Congress thus has appropriately given the Executive Branch significant authority over those decisions. See, e.g., Jama v. ICE, 543 U.S. 335, 348 (2005) (interpreting removal statute in light of the “customary policy of deference to the President in matters of foreign affairs,” because “[r]emoval decisions * * * ‘may implicate our relations with foreign powers’”) (quoting Mathews, 426 U.S. at 81); accord Negusie v. Holder, 555 U.S. 511, 517 (2009).
B. S.B. 1070 Would Supplant Federal Policy With A New And Contrary State Policy
The framework that the Constitution and Congress have created does not permit the States to adopt their own immigration programs and policies or to set themselves up as rival decisionmakers based on disagreement with the focus and scope of federal enforcement. Yet that is precisely what S.B. 1070 would do, by consciously erecting a regime that would detain, prosecute, and incarcerate aliens based on violations of federal law but without regard to federal enforcement provisions, priorities, and discretion. S.B. 1070 cannot be sustained as an exercise in cooperative federalism when its very design discards cooperation and embraces confrontation. Contrary to petitioners’ assertion (Br. 26) that the States may exercise “plenary authority” in this area, it is Con-

23 gress that has been granted and exercised plenary authority over alien registration, employment, apprehension, detention, and removal, and it is the Executive Branch to which Congress has assigned the implementation of that authority. Under the INA, genuine cooperation by state and local law-enforcement officers with federal officials is welcome, see p. 7, supra, but S.B. 1070 is not cooperation at all.
S.B. 1070 rests on Arizona’s view that the National Government has adopted a “misguided policy,” Remarks by Gov. Jan Brewer, Apr. 23, 2010, at 2,15 and has misallocated resources along the southern border, see Pet. Br. 2 & n.3, 14. Arizona seeks to replace federal policy with one of its own, which the statute calls “attrition through enforcement”; the provisions of S.B. 1070 are designed to “work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” S.B. 1070, § 1, Ariz. Rev. Stat. Ann. § 11-1051 note. And Arizona brooks no deviation from its policy: S.B. 1070 includes a highly unusual provision that imposes civil penalties on any official or agency that “limit[s] or restrict[s]” enforcement to anything less than the “full extent.” Ariz. Rev. Stat. Ann. § 11-1051(A) and (H)-(J).
Petitioners assert that Arizona’s status as a border State that is particularly affected by illegal immigration justifies its adoption of its own policy directed to foreign nationals. But the Framers recognized that the “bordering States * * * will be those who, under the impulse of sudden irritation, and a quick sense of apparent
15 h t t p : / / a z g o v e r n o r . g o v / d m s / u p l o a d / S P _ 0 4 2 3 1 0 _ SupportOurLawEnforcementAndSafeNeighborhoodsAct.pdf.

24 interest or injury,” might take action that undermines relations with other nations, and regarded that possibility as a further reason to vest authority over foreign affairs in the National Government. The Federalist No. 3, at 17 (John Jay).
Petitioners acknowledge that Congress has expressly stated its intent that the INA be applied uniformly, nationwide. See Pet. Br. 2, 60-61 (citing Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, § 115(1), 100 Stat. 3384). They contend, however, that Arizona may adopt its own approach to the enforcement of federal immigration law—and that any, some, or all of the 50 States (and presumably their political subdivisions) could adopt varying policies without threatening nationwide uniformity—because Arizona’s approach is “substantive[ly]” compatible with the laws Congress has enacted. E.g., Pet. Br. 23.
Arizona’s contention is well wide of the mark. That the State purports to regulate the same conduct as federal law is the beginning of the inquiry, not the end. A scheme that depends on national uniformity cannot coexist with a patchwork of different state regimes, whether that patchwork involves 50 different decisionmakers, 50 different remedies, or 50 different substantive rules. Indeed, this Court has repeatedly held that in areas committed to the National Government, the States may not second-guess Congress’s choice of how to carry out its aims, or through whom—even if the States profess to share the same aims as Congress. See, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348, 350, 352-353 (2001) (state tort remedy preempted even though it prohibited same conduct—fraud on a federal agency—as federal law); Crosby v. National Foreign Trade Council, 530 U.S. 363, 379-380 (2000)

25 (state procurement restriction preempted even though it “share[d] the same goals” as federal sanctions); Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286-288 (1986) (Gould) (state procurement restriction preempted even though it operated only after National Labor Relations Board found federal labor-law violations, because it was an impermissible “supplemental sanction” for those violations). The problem with the common-law tort in Buckman or the statutory debarment penalty in Gould was not that they applied to conduct that was permitted by federal law. Rather, the problem was that they allowed the State, or private plaintiffs, to second-guess a federal decision not to pursue a particular violation or not to impose a particular remedy, in an area of federal primacy.
These principles apply with particular force to immigration. Federal law controls both “the character of [immigration] regulations” and “the manner of their execution.” Chy Lung, 92 U.S. at 280. Arizona seeks to enforce federal immigration law through means different from those Congress designated: it has criminalized acts that Congress has decided to punish only civilly; it has allowed county prosecutors to charge and incarcerate individuals for violations that the Executive Branch has decided not to pursue; and it has required state officers to take steps in the name of federal law enforcement without regard to the policies and priorities of the federal officials in whom Congress has vested enforcement authority. Those provisions significantly intrude on the comprehensive system Congress has enacted, an intrusion only heightened by petitioners’ position that every other State could enact its own, distinct schemes of enforcement and punishment as well.

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II. ARIZONA’S ATTEMPT TO PUNISH VIOLATIONS OF FEDERAL LAW INTRUDES ON EXCLUSIVE FEDERAL AUTHORITY
Both Section 3 and Section 5 create new state crimes allowing state prosecutors to punish conduct that federal law comprehensively regulates. Although petitioners refer to these provisions as examples of “cooperative law enforcement,” Pet. Br. 26, in fact they involve no cooperation with the federal government; they are aimed at independently punishing violations of federal law, and they do so without regard to the discretion Congress has conferred on federal officials to enforce the INA.
Petitioners’ primary argument in defense of these two provisions, therefore, is not actually about cooperation; it is the starker submission that a State may criminalize anything that Congress has prohibited, unless Congress expressly forbids the State from doing so. But Arizona has no authority to punish an offense that is solely against the United States or to add new punishments to a comprehensive federal regulatory scheme.
A. Section 3 Impermissibly Intrudes Into A Field Reserved To, And Occupied By, The Federal Government
In Hines, this Court struck down Pennsylvania’s alien registration statute because the federal registration statute was a “complete scheme of regulation” that occupied the field. 312 U.S. at 66. Congress’s decision to adopt “one uniform national system” of registration, id. at 73, preempted any efforts by a State in that area: the Court held that the State could not “curtail or complement * * * the federal law, or enforce additional or auxiliary regulations.” Id. at 66-67.

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The federal registration statute today is substantively identical to the one considered in Hines, compare 8 U.S.C. 1302(a) with 8 U.S.C. 452(a) (1946), although Congress has added a further requirement that adult aliens must carry on their persons any proof of registration they receive. 8 U.S.C. 1304(e). In short, both the alien’s initial obligation and his continuing responsibility are now the subject of exclusive federal statutes. “[A]lien registration” thus remains a field of “dominant federal interest” where “Congress manifestly did not desire concurrent state action.” Pennsylvania v. Nelson, 350 U.S. 497, 504 n.21 (1956) (emphasis added).
1. Arizona has no inherent power to impose criminal punishment for violation of a duty owed to the federal government
Petitioners assert (Br. 49) that the State may escape the clear holding of Hines because Section 3 does not establish its own state registration scheme, but only punishes unlawfully present aliens in state court for violating the federal registration law. But the fact that the State does not and cannot register aliens itself simply underscores the State’s lack of any independent interest in punishing aliens who fail to register. In any event, as petitioners concede (ibid.), duplicative federal and state prohibitions cannot coexist where “field preemption by Congress” precludes duplication. See, e.g., Kurns v. Railroad Friction Prods. Corp., 132 S. Ct. 1261, 1266 (2012). Alien registration is such a field.
In resisting that conclusion, petitioners can hardly assert that punishing aliens’ failure to comply with their obligation to the federal government is a traditional area of state regulation. To the contrary, as this Court has squarely held, “the relationship between a federal

28 agency and the entity it regulates”—here, registration of aliens as part of the regulation of immigration—“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. An alien’s breach of that federal obligation is inherently a federal matter that does not implicate state police-power considerations.
This Court has often held that in exclusively federal contexts like this one, a State has no inherent power to supplement the punishment for an offense solely against the United States. Thus, for instance, in Buckman this Court held that a State could not provide a tort remedy for claims premised on fraud perpetrated against the Food and Drug Administration (FDA) through the failure to make disclosures required by federal law. The Court observed that States have no general authority to legislate with regard to the duties owed to the federal government. 531 U.S. at 347-348. The holding of Buckman—which petitioners discuss only glancingly (Br. 53)—indisputably refutes petitioners’ bold assertion (Br. 23) that “ ‘parallel’ tort claims” are “easy cases” for non-preemption merely because “both state and federal law enforce the same standard.” As Buckman illustrates, a state law may interfere with a balanced federal approach even without setting a different substantive standard. See p. 24-25, supra.
The Court has reached the same conclusion in other contexts involving areas of plenary federal authority. For instance, the Court held in In re Loney, 134 U.S. 372 (1890), that States have no power to punish perjury before a federal tribunal. “[T]he power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals

29
that proceeding is had,” the Court explained, and a witness in a federal judicial proceeding thus “is accountable for the truth of his testimony to the United States only.” Id. at 375. The state prosecution was impermissible not because federal and state perjury laws were substantively different, but because a federal witness’s breach of his duty of truthfulness does not impair “any authority derived from the State.” Ibid.16
This Court in Loney distinguished the same line of cases on which petitioners rely—cases in which “the same act” may validly constitute “a violation of the laws of the State, as well as of the laws of the United States.” 134 U.S. at 375. But each of those cases presented questions of legitimate local concern that were not displaced by federal law. Thus, for instance, in Fox v. Ohio, 46 U.S. (5 How.) 410 (1847), the Court upheld a conviction for passing a counterfeit coin, because although counterfeiting itself is an offense against the United States, passing the counterfeit coin was a “cheat” upon private individuals, which the State could prevent and punish. Id. at 433, 434.17 Similarly, in Gilbert v. Minnesota, 254
16 Similarly, in Nelson, the Court held that the federal Smith Act of 1940 preempted state sedition laws, even those purporting to be compatible, because the prohibited subversive conduct was “not a local offense” but “a crime against the Nation.” 350 U.S. at 504-505 (citation omitted). The Court analogized the Smith Act to the (simultaneously enacted) Alien Registration Act of 1940 at issue in Hines, noting that both concerned “a field of * * * dominant federal interest” in which “Congress manifestly did not desire concurrent state action.” Id . at 504 n.21.
17 Accord, e.g., California v. Zook, 336 U.S. 725, 734-735 (1949) (state transportation law aimed at “evils * * * of the oldest within the ambit of the police power: protection against fraud and physical harm to a state’s residents”); Asbell v. Kansas, 209 U.S. 251, 256 (1908) (law requiring inspection of imported animals “clearly within the authority

30 U.S. 325 (1920), the state statute punishing interference with enlistment in federal or state armed forces was “a simple exertion of the police power to preserve the peace of the State” against “a prompting to violence.” Id. at 331.18 Here, by contrast, compliance with the federal alien-registration and documentation requirements does not lie within any traditional police power of the state.
As petitioners acknowledge, the Court likewise held in Gould that States may not add to the comprehensive remedial scheme established by the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., by refusing to contract with employers who are found by a federal agency to have committed multiple violations of that statute. The refusal to contract, the Court concluded, “functions unambiguously as a supplemental sanction for [federal] violations” for conduct that the State had no authority to regulate. 475 U.S. at 288. As the previous discussion illustrates, Gould is not a “lone exception” that is “inapplicable” outside “the field of labor relations.” Pet. Br. 50 n.34. Rather, the basic holding of Gould—that “ conflict is imminent” when “separate remedies are brought to bear on the same activity” that the federal government regulates exclusively, 475 U.S. at 286 (citation omitted)—has been repeatedly applied to reject claims like petitioners’ here. Where federal law demands uniformity, the 50 States may not “add state penalties” or create their own “parallel enforcement track[s],” Pet. Br. 52, 61, whether or not they profess to
of the state”). 18 Indeed, the State in Gilbert relied only on local police-power
concerns and disclaimed any attempt to protect military recruiting, per se, from interference. 254 U.S. at 331.

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share the same goal as the federal government. Accord, e.g., Crosby, 530 U.S. at 380.
That principle is controlling here. Congress, in the exercise of its exclusive power over immigration, has adopted a single, unified scheme for prescribing when and how aliens must register, and with whom, and what the consequences shall be for failure to do so. Section 3 impermissibly inserts the State into that area.
2. Section 3 conflicts with the purposes and objectives of the INA
Even if the federal alien-registration scheme left room for States to adopt their own measures to punish noncompliance, Section 3 would still be preempted. Although nominally about registration, Section 3 does not seek to punish all failures to register with the federal government, or to carry federal registration papers, 8 U.S.C. 1304(e), but only those involving an alien without “authorization from the federal government to remain in the United States.” Ariz. Rev. Stat. Ann. § 131509(A) and (F ). As then-state Senator Russell Pearce, the sponsor of the provision, explained, Section 3 “says that if you’re in Arizona * * * in violation of federal law, that you can be arrested under a state law.” Video Recording: Meeting of Ariz. House Comm. on Military Affairs & Pub. Safety, Mar. 31, 2010, 18:15-18:39.19 But the United States, in conformity with the practice of other nations, has declined to criminalize unlawful presence. J.A. 148-149. And allowing state prosecutors to pursue and incarcerate aliens based on their immigration status would impermissibly interfere with the Executive Branch’s discretion, conferred by Congress, to
19 http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_ id=7286.

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determine whether or not a particular alien’s unlawful presence warrants detention or removal.20
a. Unlawful presence is not a crime under the INA. Rather, an alien who is present in the United States without authorization may be placed in civil removal proceedings; ordered removed by an Immigration Judge, subject to administrative and judicial review; and removed. 8 U.S.C. 1182(a)(6)(A)(i), 1227(a)(1). But although many unlawfully present aliens are detained and ultimately removed, Congress has provided the Executive Branch with substantial discretion to pursue other courses—e.g., to defer proceedings, grant relief from removal, or allow temporary release from custody. See pp. 19-22 and note 14, supra. When the Executive Branch stays its hand in that fashion to allow individual aliens to remain at liberty, it naturally may also refrain from prosecuting them for registration violations, even though the aliens are unlawfully present and not registered.
b. Section 3 directly contradicts this federal scheme. Empowering a host of local officials and giving them only one function—criminally prosecuting unlawfully present, unregistered aliens—threatens to skew the balance fundamentally. Under Section 3, any unlawfully present and unregistered alien would be subject to criminal prosecution and incarceration if a local prosecutor so chose—without regard to the numerous considerations important to the United States as a whole. Congress gave discretion in this area to the Executive Branch, which is best able to balance those broader con-
20 Indeed, by ruling out probation or a suspended sentence, Arizona also prescribes a harsher penalty than the federal alien-registration provisions. See 8 U.S.C. 1304(e), 1306(a); 18 U.S.C. 3561 (probation permissible).

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siderations in individual cases. See Buckman, 531 U.S. at 348 (Congress gave FDA “ampl[e]” authority to prevent fraud on the agency, and sharing that authority with innumerable private plaintiffs “inevitably conflict[s] with the FDA’s ability to police fraud consistently with the [FDA’s] judgment and objectives”) (emphasis added).
Petitioners suggest (Br. 26) that the Executive Branch’s “enforcement posture” is not preemptive of its own force. But here the preemption comes from Congress’s decision to assign to the Executive Branch, not to a host of local prosecutors pursuing a patchwork of local policies, the responsibility to make the sensitive judgments necessary to enforce the immigration laws. Both here and in Buckman, Congress vested enforcement authority in a single decisionmaker to guarantee the “flexibility” to pursue a “somewhat delicate balance” of “difficult (and often competing) objectives.” 531 U.S. at 348, 349. Under the INA, Congress has assigned the Executive Branch the responsibility and discretion to decide the disposition of an unlawfully present alien— ranging from expedited removal to temporary release to permanent adjustment of status. It is Congress’s action that preempts Arizona’s attempt to second-guess the Executive’s judgments.
B. Section 5 Impermissibly Imposes A Punishment That Congress Rejected In Adopting Comprehensive Federal Regulation
As petitioners acknowledge (Br. 57), Congress “decided not to impose [criminal] sanctions on unauthorized alien workers.” Yet Section 5 makes it a crime in Arizona for an alien who is unlawfully present in the United States and is not authorized to work to “knowingly apply

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for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Ariz. Rev. Stat. Ann. § 13-2928(C). That provision is incompatible with the comprehensive federal scheme governing the employment of aliens.
1. Congress has specified that the INA’s employment restrictions shall be enforced through employer sanctions, criminal prohibitions on document fraud and perjury, and removal
a. Until 1986, federal law did not generally proscribe the employment of unauthorized aliens. During that pre-1986 period, this Court held that Congress had not occupied the field governing the employment of aliens, explaining that Congress “believe[d] th[e] problem d[id] not yet require uniform national rules.” De Canas, 424 U.S. at 360 n.9. At that time, “the Federal Government had ‘at best’ expressed ‘a peripheral concern with [the] employment of illegal entrants.’ ” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1974 (2011) (quoting De Canas, 424 U.S. at 360).
In 1986, Congress changed that landscape dramatically by enacting IRCA. The product of a carefully negotiated compromise hammered out over several years, IRCA’s major element was to add to the INA 8 U.S.C. 1324a, a “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). IRCA thus brought regulation of the employment of aliens within the INA’s broader comprehensive framework for regulation of immigration generally—an area of exclusive federal responsibility.
Through detailed requirements, Congress made employers primarily responsible for preventing unautho-

35 rized aliens from obtaining employment: IRCA’s prohibitions, penalties, and safe harbors focus on employers. IRCA makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U.S.C. 1324a(a)(1)(A) and (2). IRCA also requires every employer to verify the employment authorization status of those they hire, within a short time after the employee begins work. 8 U.S.C. 1324a(a)(1)(B) and (b); 8 C.F.R. 274a.2(b)(1)(i)-(ii). Good-faith compliance with that verification procedure can be a defense to liability. 8 U.S.C. 1324a(a)(3) and (b)(6). These requirements are enforced through an escalating series of civil and, ultimately, criminal penalties on employers. See 8 U.S.C. 1324a(e)(4) and (f); 8 C.F.R. 274a.10.
Congress preserved for the States a narrowly defined role in punishing state-licensed employers (and only employers) for violations of IRCA’s requirements. IRCA’s express-preemption clause specifies that States may impose sanctions “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” but only “through licensing and similar laws.” 8 U.S.C. 1324a(h)(2). All other state and local sanctions on employers, such as the state law the Court upheld against a field-preemption challenge in De Canas, are preempted. Whiting, 131 S. Ct. at 1975.
By contrast, Congress did not impose criminal penalties on unauthorized workers for the mere act of seeking or performing work. But Congress did not simply leave alien employees unregulated, as petitioners would have it (Br. 55). Rather, an alien whose nonimmigrant status does not permit him to work is subject to removal if he performs “[a]ny unauthorized employment.” 8 C.F.R. 214.1(e); see 8 U.S.C. 1227(a)(1)(C)(i). Furthermore, an alien who works without authorization is generally ineli-

36
gible for the discretionary relief of adjustment of status. See 8 U.S.C. 1255(c)(2) and (8).
Although merely obtaining employment carries only civil consequences, obtaining employment through fraudulent means is punished criminally. In IRCA, Congress added a new provision criminalizing false attestations or document fraud during the verification procedure, 18 U.S.C. 1546(b), and reaffirmed that aliens who lie under oath, knowingly make a fraudulent statement, or forge or falsify a document are potentially subject to federal criminal prosecution under four specified provisions already on the books, 18 U.S.C. 1001, 1028, 1546(a), and 1621. 8 U.S.C. 1324a(b)(5) and (d)(2)(F )(G). IRCA thus provided that the information an employee submits to verify work authorization may be used in a prosecution under the specified federal criminal statutes, or to enforce the INA itself, but “may not be used” for any other purpose. Ibid.21 That prohibition, making the information that an alien submits available only under the INA or focused federal criminal provisions, underscores that IRCA leaves no room for the imposition of state criminal liability on individual aliens.
Congress also adopted certain protections for employees working unlawfully. Recognizing that employers might seek to transfer the financial risk of sanctions to the aliens they hire, Congress prohibited employers from requiring employees to “provide a financial guarantee or indemnity” against any IRCA liability, such as a bond. 8 U.S.C. 1324a(g)(1). An employer who violates this provision and is indemnified by an unauthorized
21 In 1990 and 1996, Congress also added to the INA provisions for civil sanctions and cease-and-desist orders against aliens who submit forged, altered, or falsely made documentation in the employmentverification process. See 8 U.S.C. 1324c(a) and (d)(3).

37
employee must return to the employee any monies received. 8 U.S.C. 1324a(g)(2).22
b. Congress’s omission of criminal penalties for unauthorized work, standing alone, was a deliberate decision, as the legislative history of IRCA demonstrates. In the years of hearings and debates that culminated in IRCA, Congress considered alternative means of regulating alien employment, including proposals for criminal penalties on unauthorized workers.23 None of those proposals was adopted. Instead, the legislative history reflects a judgment that “many who enter illegally do so for the best of motives—to seek a better life for themselves and their families,” and that “legislation containing employer sanctions is the most humane, credible and effective way to respond to” the influx of unauthorized
22 Congress also adopted new civil-rights protections, 8 U.S.C. 1324b, to ensure that employers do not react to the possibility of sanctions by discriminating against applicants based on national origin or citizenship status.
23 See, e.g., Immigration Reform and Control Act of 1985: Hearings Before the Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 44-45, 56-59 (1985) (discussing one witness’s proposal to fine and detain illegal aliens); 119 Cong. Rec. 14,184 (1973) (statement of Rep. Dennis) (stating that “[t]he bill originally considered” penalized both the employer and “the illegal alien who took work when he was not entitled to it,” but explaining that the proposal for employee sanctions was later rejected); 118 Cong. Rec. 30,155 (1972) (statement of Rep. Rodino) (noting committee’s rejection of proposal to “impos[e] any additional criminal sanctions on the alien who enters illegally and obtains employment,” finding that such penalties “would serve no useful purpose”); Illegal Aliens: Hearings Before Subcomm. No. 1 of the House Comm. on the Judiciary, 92d Cong., 1st Sess. Pt. 1, at 54, 77, 78, 85, 89-91, 102, 106, 108-109, 145-146, 155-156, 185-186, 210 (1971) (discussing proposal for criminal penalties on nonimmigrant aliens who accept unauthorized employment).

38
aliens. H.R. Rep. No. 682, 99th Cong., 2d Sess. Pt. 1, at 46 (1986); accord id. at 49; S. Rep. No. 132, 99th Cong., 1st Sess. 8 (1985) (concluding that the “only” remaining approach was “to prohibit the knowing employment of illegal aliens” and enforce that prohibition through employer sanctions).
2. Section 5 impermissibly adds a punishment Congress rejected
a. Arizona attempts to defend Section 5 on the ground that it merely “impose[s] parallel state penalties” upon the employment of unauthorized workers and “adopts the federal rule as its own,” Pet. Br. 25, 26. As discussed above, that argument fundamentally misconceives relevant preemption principles. Congress’s comprehensive regulation of both employers and employees does not allow state penalties that the federal statute omits. See, e.g., Gould, 475 U.S. at 288 & n.5 (state statute that enforced federal law by adopting a “punitive” “supplemental sanction” “conflict[ed] with the [agency’s] comprehensive regulation”).
Petitioners are demonstrably incorrect in their suggestion (Br. 14, 17, 53) that Congress has regulated only the “demand side” and not the “supply side” of the employment market. As shown above, Congress has adopted a number of measures to sanction aliens who work without authorization, especially those who obtain jobs through fraudulent means. Congress did not reject the idea of regulating employees altogether; it rejected the idea of criminally prosecuting employees merely for seeking work or working.
This conclusion is not altered by petitioners’ observation that employment is generally a matter of state concern. “[E]ven state regulation designed to protect vital

39 state interests must give way to paramount federal legislation.” De Canas, 424 U.S. at 357. As discussed at pp. 24-25, supra, state legislation that impinges on matters within the province of the National Government is preempted even if it purports to address matters of traditional state concern, such as contracting (Crosby), tort law (Buckman), or insurance, American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). Although Congress may have considered aliens’ employment a largely local matter at the time of De Canas, that is no longer the case. In IRCA, Congress adopted a balanced federal regulatory regime, within the broader comprehensive scheme for the regulation of immigration under the INA. Indeed, the law at issue in De Canas itself is now preempted by IRCA expressly, see Whiting, 131 S. Ct. at 1975. Thus, while petitioners note that the Court in De Canas started from the assumption that state police power had not been superseded, the addition of IRCA to the INA reverses that assumption, just as the adoption of the NLRA did in the context of labor law, see Gould, 475 U.S. at 286.
b. Even if IRCA left room for supplemental state measures, Arizona’s choice of means would still be preempted. Section 5 cannot be justified under a rule of “dual criminalization,” because it criminalizes conduct that Congress affirmatively concluded, after extensive study, not to make criminal. Section 5—which does not require proof that the alien knew she was not authorized to work or misused any documents—does not even cover the same conduct that Congress made the sole bases of federal criminal liability. Section 5’s criminal penalties for working, or seeking or soliciting work, conflict with the careful balance Congress struck, which does not impose sanctions if an alien and her employer substantially

40 comply in good faith with the verification procedure after hiring. See p. 35, supra; cf. 8 U.S.C. 1324b(a)(6) (prohibiting discriminatory refusal “to honor documents tendered that on their face reasonably appear to be genuine”).
Indeed, Congress and DHS have allowed certain grace periods for good-faith compliance with verification requirements, and Section 5 would criminalize working even during those grace periods. First, a person must attest that she is authorized to work before beginning work, but she has three days to provide the necessary documentation. See p. 35, supra. Second, Congress included a similar grace period in the statute governing E-Verify—a program that verifies an employee’s eligibility to work using electronic databases and that Arizona requires all businesses to use, Whiting, 131 S. Ct. at 1975, 1976-1977. When E-Verify provides a “tentative nonconfirmation” of a new employee’s authorization to work, the employee may challenge that response and has a right to continue working unless a final nonconfirmation is received. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 403(a)(4)(B)(iii), 110 Stat. 3009661 (8 U.S.C. 1324a note) (“In no case shall an employer terminate employment of an individual because of a failure of an individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final.”).
Moreover, Section 5 criminalizes even applying for or soliciting work. Under the INA, by contrast, employers are not required to verify eligibility until an employee is hired, 8 U.S.C. 1324a(a)(1)(B), and IRCA’s civil-rights provision strictly limits an employer’s ability to ask applicants for documents before (or as a condition

41 of) hiring them.24 The same is true of the E-Verify statute, which requires safeguards preventing “unlawful discriminatory practices based on national origin or citizenship status, including * * * the use of the [E-Verify] system prior to an offer of employment.” IIRIRA § 404(d)(4)(B), 110 Stat. 3009-664 (8 U.S.C. 1324a note). If the verification procedures work as they should, and the employee never makes a false attestation or begins work, the mere attempt furnishes no basis for criminal punishment.
IRCA also contains persuasive indicia that Congress’s goal was to implement broadly applicable but balanced procedures that would deter the hiring of unauthorized aliens, preserve jobs for American workers, and reduce the incentive for aliens to enter illegally. Congress accordingly adopted carefully graduated penalties for violations by employers and provided that good-faith compliance with the verification procedure would ordinarily eliminate the employer’s liability even if an unauthorized alien ended up working. Far from suggesting that isolated instances of unauthorized work are criminally punishable themselves, Congress affirmatively took steps to preclude such prosecutions. The verification procedure requires every new employee to submit Form I-9, swearing to his eligibility and allowing his employer to verify it. Yet Congress placed that form, and its supporting documentation, off limits except for certain specified federal law-enforcement purposes. See p. 36, supra.
c. Finally, petitioners observe (Pet. Br. 54) that Section 5 does not fall within the scope of IRCA’s express-
24 See, e.g., Reyes-Martinon v. Swift & Co., 9 OCAHO No. 1068, at 11, 2001 WL 909276, at *8 (2001).

42 preemption provision, which bars “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). Preemption need not be express, and “neither an express pre-emption provision nor a saving clause ‘bar[s] the ordinary working of conflict pre-emption principles.’ ” Buckman, 531 U.S. at 352 (quoting Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (brackets in original)).25 Here, the imposition of state criminal sanctions on individuals for working without authorization, a step IRCA rejected in favor of employer sanctions, document-fraud penalties, and civil consequences, is preempted because it both intrudes on and frustrates the comprehensive federal regime.
The fact that the saving clause does not authorize sanctions on employees distinguishes this case from both Whiting and Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), on which petitioners rely. In those cases, Congress had expressly saved the sort of state-law action that was at issue; the plurality in Whiting accordingly proceeded from the premise that Congress must have wanted to permit the States “appropriate tools” to carry out the licensing authority preserved by the saving clause. 131 S. Ct. at 1981. Here, Congress has given no textual reason to overlook the real and significant conflict between the federal law and the new state crime.
25 At the time Congress enacted IRCA, a number of States imposed sanctions on employers who hired unauthorized aliens. See Whiting, 131 S. Ct. at 1974 n.1 (collecting state statutes). IRCA therefore expressly preempted those sanctions. But there had been no similar proliferation of state sanctions against employees.

43
III. ARIZONA’S NEW STOP AND ARREST PROVISIONS ARE NOT VALID MEASURES TO COOPERATE WITH THE FEDERAL GOVERNMENT
The remaining provisions of S.B. 1070 that are at issue in this Court authorize Arizona law-enforcement officers to detain individuals whom they suspect of being present in the United States in violation of federal immigration law. Petitioners characterize those provisions as efforts to cooperate with the federal government in apprehending removable aliens. But by refusing to respect Congress’s designation of the Executive Branch to take the lead in the enforcement of the federal immigration laws, and by requiring all Arizona officers to adhere instead to the State’s own policy of “attrition through enforcement,” Arizona has exceeded the permissible bounds of cooperation, and its stop and arrest provisions, Sections 2 and 6, are preempted.
A. In Our Federal System, State And Local Officers May Cooperate In The Enforcement Of The Immigration Laws Only Subject To The Ultimate Direction Of The Executive Branch
1. The Framers of the Constitution consciously determined that the new National Government, unlike its predecessor under the Articles of Confederation, would have the power to enforce its own laws for itself. The United States acts not through the several States, but directly on the People from whom it draws its authority. See New York v. United States, 505 U.S. 144, 165-166 (1992). The States have their own authority, separate and independent from that assigned by the Constitution to the National Government, subject to the federal Supremacy Clause. By allowing both federal and state governments alike to regulate directly within their own

44 designated spheres, without the other’s concurrence, the Framers ensured that each of the two sovereigns would be “protected by incursion from the other.” Printz v. United States, 521 U.S. 898, 920 (1997) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring)). A clear allocation of responsibility also ensured that the people would be able to hold the United States and the individual States directly accountable for their actions. Ibid.
Furthermore, by creating a federal Executive Branch headed by a Chief Executive, the Constitution provides for federal laws to be carried out without depending on state officials. Laws adopted by Congress, such as the INA, are to be enforced by the President and by officers of the United States answerable to him. U.S. Const. Art. II, § 3; Printz, 521 U.S. at 922. The President lacks such power over state officials. Accordingly, where Congress has vested ultimate enforcement authority exclusively in the Executive, state officials cannot engage in enforcement of that federal law entirely on their own. Ibid.; cf. Free Enter. Fund v. PCAOB, 130 S. Ct. 3138, 3154-3155; Bowsher v. Synar, 478 U.S. 714, 726-727 (1986).
The Constitution undoubtedly contemplates cooperation between sovereigns in the execution of federal law. Since the First Congress, federal legislation has provided for the officers of one sovereign to assist another sovereign in enforcing its laws or regulations. Printz, 521 U.S. at 910-911. But Congress cannot give responsibilities to state officers “without the consent of the States,” ibid., nor can it wholly export to state officers the President’s power to take care that the laws be faithfully executed, id. at 922.

45 This case involves the converse situation: an effort by a State, without authorization by Congress or the Executive, to wrest from federal officials the enforcement of federal laws by imposing a mandatory directive as a matter of state law. The proper constitutional relationship is one of cooperation: while the President may accept assistance from other sovereigns in executing the laws assigned to the Executive Branch to administer, enforcement authority ultimately runs to the President and the Heads of Departments in whom statutory responsibilities are vested, and the exercise of such authority must be responsive to those officials’ judgment and discretion. That principle of cooperation undergirds the relationship between any two sovereigns who render mutual assistance. A sovereign offering assistance naturally takes its lead from, and respects the judgment of, the sovereign seeking help in enforcing its own laws. A fortiori, the federal-state relationship (which is governed by the Supremacy Clause) must presumptively involve comparable cooperation when a State undertakes to assist federal officers in the enforcement of federal law. And those principles apply with all the more force in the context of an area like immigration, which the Constitution assigns to the single National Government in recognition of the need for the United States to speak with one voice in its dealings with other countries and their nationals. See, e.g., Hines, 312 U.S. at 64; The Federalist No. 3, at 14-15 (John Jay). 2. Congress has amended the INA expressly to incorporate that principle of cooperation by state and local law-enforcement officers with federal immigration officers. See 8 U.S.C. 1357(g)(10). The statute provides that, even without a formal agreement, state and local

46
officers who wish to assist in the execution of federal immigration law may “cooperate with the [Secretary]” in several ways: they may “communicate with the [Secretary] regarding [an individual’s] immigration status,” and they may “otherwise * * * cooperate in the identification, apprehension, detention, or removal of aliens not lawfully present.”
The ability to “cooperate with the [Secretary]” in those areas contrasts with other provisions of the INA, which actually grant state officers some of the authority of a federal immigration officer, but only with prior federal approval. See 8 U.S.C. 1103(a)(10), 1357(g)(1). “[C]ooperat[ion]” under Section 1357(g)(10) does not require that state and local officers be under the day-today control of a federal agency, or that they obtain advance permission before taking action. But it necessarily contemplates that the responsible federal officials will take the lead in fashioning enforcement priorities and techniques, and that state and local officers can and will conform and respond to federal policies, determinations, and discretion. See DHS Guidance 8-10.26 That is the very definition of cooperation. Arizona’s attempt to set its own policy for enforcement of federal immigration law is not cooperation; it is confrontation.
B. Section 2 Impermissibly Requires Arizona Officers To Enforce Federal Immigration Law Without Regard To Federal Priorities And Discretion
1. Section 2 requires Arizona law-enforcement officers to verify the immigration status of anyone stopped or detained for any reason, whenever verification would
26 In contrast, other federal statutes explicitly authorize state officials to make arrests on their own for violations of criminal provisions of the INA in limited circumstances. See p. 6, supra.

47 be “practicable” and an officer has “reasonable suspicion” that the person is an alien unlawfully present in the United States. Ariz. Rev. Stat. Ann. § 11-1051(B). To further deter any possible exercise of discretion, Section 2 also provides that “[a]ny state or local official or agency that “adopts or implements a policy that limits or restricts the enforcement of federal immigration laws * * * to less than the full extent permitted by federal law” is subject to civil penalties of up to $5000 per day. S.B. 1070, § 2, Ariz. Rev. Stat. Ann. § 11-1051(H). Any legal resident of Arizona may sue to enforce these penalties. Ibid .
2. Section 2 thus imposes mandatory duties on state and local officers in connection with the enforcement of federal law to “identif[y]” and “apprehen[d]” unlawfully present aliens, 8 U.S.C. 1357(g)(10)(B). Although petitioners defend the provision (Br. 32) as facilitating permissible “cooperation between States and the federal government in connection with immigration enforcement,” they fail to explain how it actually enhances cooperation. For instance, they do not dispute that even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS about a suspect’s unlawful status and otherwise cooperate with federal immigration officers. J.A. 62, 82.
In fact, requiring state and local officers to detain every person suspected of being an unlawfully present alien until her status can be verified runs squarely contrary to Congress’s direction to prioritize the removal of criminal aliens, see p. 4, supra, and to DHS’s resulting enforcement priorities. Indeed, in petitioners’ view the conflict with DHS’s priorities is a virtue, given the State Legislature’s expressed disagreement with federal enforcement policy (even though those priorities focus di-

48 rectly on concerns petitioners now emphasize, Br. 3-6). But petitioners cannot rely on a federal statute protecting federal-state “cooperat[ion]” to justify writing into state law their disagreement with federal policy.
The text of Section 1357(g)(10) refutes petitioners’ notion (Br. 36) that Congress wrote the statute as a “saving clause” for state immigration legislation. The provision preserves the ability of a state or local “officer or employee” to “cooperate with the [Secretary]”; it makes no mention of state legislatures adopting their own laws that, at some broad level, each legislature deems “cooperat[ive]” with the intent of the INA (which S.B. 1070 is not in any event). Rather, Section 1357(g)(10) focuses on where cooperation actually occurs on a regular basis: in the field, at the level of individual officers.27
Cooperation at that level requires state and local officers to be free at all times to respond to federal direction and discretion about enforcement priorities— just as federal agents must be. DHS’s highest enforcement priorities are aliens who threaten public safety or national security and members of criminal gangs that smuggle aliens and contraband. DHS also gives priority to removing repeat border crossers, recent entrants, aliens who have previously been removed, and aliens who have disregarded a final order of removal. J.A. 108109; pp. 4-5, supra. Before S.B. 1070, state and local officers in Arizona were able to assist in the identifica-
27 Even if Section 1357(g)(10) is seen as saving “cooperat[ive]” state legislation, it follows that non-cooperative state legislation is preempted. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 100 (1992); accord id. at 112-113 (Kennedy, J., concurring in part and concurring in the judgment).

49
tion, apprehension, and detention of aliens consistent with those priorities.
That form of on-the-ground cooperation is precisely what Section 2 forbids, on pain of civil penalties. Instead, state and local officers in Arizona are mandated to determine the immigration status of every person stopped for any infraction (including jaywalking) if there is a “reasonable suspicion” that the person may be “unlawfully present” in the United States and if verification is “practicable.”28 Section 2 thus redirects federal resources to immigration inquiries that law-enforcement officers would not otherwise have pursued—a consequence that would be greatly exacerbated if other States or localities followed suit. J.A. 96-98.
Furthermore, Section 2 does so not for a cooperative purpose, but in service of the State’s own policy. Section 2 and the remainder of S.B. 1070 are designed to have the in terrorem effect of “discourag[ing] and deter[ring] the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” S.B. 1070, § 1, Ariz. Rev. Stat. Ann. § 11-1051 note. And because the policy applies to all stops and arrests whenever there is reasonable suspicion that the person is unlawfully present, it threatens to result in the unnecessary detention of lawfully present aliens, a consequence with significant foreign-policy consequences for the National Government. See J.A. 132; Hines, 312 U.S. at 65-66 (“[S]ubjecting [aliens] alone, though perfectly law-abiding, to indiscriminate and repeated interception” is the sort of “distinct, unusual and extraordi-
28 Petitioners’ suggestion that the qualifier “practicable” limits Section 2’s broad mandatory scope is meritless. Verification is “practicable” (within that word’s ordinary meaning) whenever it can be accomplished, not whenever it is a good idea.

50 nary burden[]” that implicates national authority and international relations). Similarly, as noted at pp. 19-22, supra, the Executive Branch has ample statutory authority to allow aliens to remain at large despite being formally unregistered and not yet in lawful status; Section 2 threatens to subject those aliens, too, to repeated harassment despite the Executive Branch’s decision to leave them at liberty.
It is true that Section 2 does not preclude officers from conducting verifications that are consistent with DHS’s priorities; rather, it directs officers to conduct those verifications, and many more besides, and not to consider DHS’s priorities at all. But petitioners cannot save Section 2 from a facial challenge by contending that DHS would have welcomed some of the verifications Section 2 mandates; Section 2 has no valid applications because it always precludes officers from taking DHS’s priorities and discretion into account in the first place. A stopped clock may be right twice a day, but it is still a facially invalid method of timekeeping. And removing the obstacle of Section 2 would not eliminate requests for verification; rather, it would restore the previous condition of federal-state cooperation. E.g., J.A. 62, 82.
Section 2 is preempted because in every instance, by interposing a mandatory state law between state and local officers and their federal counterparts, it “stands as an obstacle to the accomplishment” of the federal requirement of cooperation, Hines, 312 U.S. at 67, and the full effectuation of the enforcement judgment and discretion Congress has vested in the Executive Branch under the INA, see Crosby, 530 U.S. at 374-377.
3. Petitioners contend that Section 2’s mandate is authorized by 8 U.S.C. 1373(c), which provides that DHS “shall respond to an inquiry by a Federal, State, or local

51
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.” But Section 1373(c) does not expressly or impliedly authorize States to create independent regimes based on different enforcement priorities.29 To the contrary, it was enacted as part of the same statute (IIRIRA) as Section 1357(g)(10), and indeed, part of Section 1357(g)(10) speaks directly to the same subject matter as Section 1373. Even in the absence of a formal 287(g) agreement, state and local officers are not precluded from “communicat[ing] with the [Secretary] regarding the immigration status of any individual,” 8 U.S.C. 1357(g)(10)(A). But the statute expressly contemplates that such communication will be in the form of “cooperat[ion].” See 8 U.S.C. 1357(g)(10)(A)-(B) (officers may “communicate” or “otherwise * * * cooperate”).
Thus, Section 1373(c) does not create an exception to the rule of federal-state cooperation in the “identification, apprehension, detention, or removal of aliens.” 8 U.S.C. 1357(g)(10)(B). Rather, Section 1373 seeks to ensure “[c]ommunication between government agencies and [DHS],” 8 U.S.C. 1373 (heading), by providing for the reciprocal exchange of information between the federal government and state and local officers. See also 8 U.S.C. 1644 (similar, in benefits-eligibility context). In particular, Congress enacted Section 1373 to preempt
29 In contrast, when Congress directly authorized state and local officers to arrest and detain certain aliens who have illegally returned to the United States after previously being convicted of a felony and removed from the country, it directed the federal government to provide to those officers the specific information they need to “carry out [those] duties.” 8 U.S.C. 1252c(b).

52
various state and local laws and policies that, at the time, precluded officials from sharing information with federal immigration authorities. See, e.g., City of New York v. United States, 179 F.3d 29, 31-32 (2d Cir. 1999), cert. denied, 528 U.S. 1115 (2000). Subsections (a) and (b) of Section 1373 therefore prevent States and localities from enacting laws or policies that “prohibit[] or in any way restrict” the ability of state and local officers to cooperate with federal officials by sending and receiving information concerning an individual’s immigration status. Subsection (c) provides, in turn, for federal responses to state inquiries for “purpose[s] authorized by law.”30 8 U.S.C. 1373(c); see S. Rep. No. 249, 104th Cong., 2d Sess. 19-20 (1996) (explaining that Section 1373 is intended to assist the “Federal regulation of immigration” by “[p]rohibit[ing] any restriction on the exchange of information” between federal, state, and local authorities).
No restriction on communication is at issue here. DHS follows Section 1373(c)’s requirement to respond to inquiries, and nothing in this case seeks to change that. But Section 1373(c) does not sanction efforts to use DHS resources to enforce the federal immigration laws without regard to federal priorities and discretion. That is not “cooperation,” because it forces those officers to make inquiries irrespective of whether they are cooperative with, or responsive to, the Secretary’s administration of immigration enforcement. See DHS Guidance 11-12.
30 In addition to cooperation “in the identification, apprehension, detention and removal of aliens” authorized by Section 1357(g)(10), permissible “purposes authorized by law” may include purely state-law purposes, such as assessing flight risk in state-court bail proceedings.

53
C. Section 6 Impermissibly Authorizes State Officers To Arrest Aliens Based On Removability Without Regard For Federal Priorities
Section 6 authorizes warrantless arrests whenever an Arizona law-enforcement officer has probable cause to believe that “[t]he person to be arrested has committed any public offense that makes the person removable from the United States.” Ariz. Rev. Stat. Ann. § 13-3883(A)(5). Before enactment of Section 6, Arizona law already authorized the warrantless arrest of a person who commits a felony, misdemeanor, petty offense, or one of certain criminal violations in connection with a traffic accident in Arizona. Id . § 13-3883(A)(1)-(4) (2010 & Supp. 2011). Arizona law also authorized the warrantless arrest of a person charged with a felony in another State. Id. § 13-3854 (2010). Thus, Section 6 added only the authority to arrest an alien who, an officer believes, has committed an offense that could make him removable, but who is not currently wanted on actual criminal charges for that offense (e.g., because he has already served his sentence). Pet. App. 42a; see also id. at 161a-162a. Although petitioners claim “inherent” authority to “enforce” federal immigration law, Br. 45, they ultimately recognize (id. at 46) that under Section 1357(g)(10), participation by state and local officers in the “apprehension” or “detention” of aliens must be done in cooperation with federal officers. See pp. 45-46, supra.
1. Section 6 combines objectionable aspects of Sections 2 and 3: it empowers state and local officers to pursue and detain a person based on the officers’ perception that the person is removable, and without regard to federal priorities or even specific federal enforcement determinations. Even if the officer is correct in believ-

54
ing that a ground for removal exists, but see pp. 54-55, infra, whether and when to pursue removal is within the Secretary’s plenary discretion. In addition, the Executive Branch may—and in a few circumstances must, see 8 U.S.C. 1231(b)(3)—grant relief from removal or temporary release under numerous circumstances, even for some criminal aliens. Section 6 thus would result in the apprehension, detention, and harassment of ostensibly “removable” aliens whom, for various reasons, the federal government has decided not to remove or detain, just as Sections 2 and 3 would allow Arizona to harass or even punish aliens whom the federal government has allowed to remain, temporarily or permanently. See Hines, 312 U.S. at 65-66; pp. 32-33, 49-50, supra.
Such broad and unilateral arrest authority also is not necessary to facilitate true cooperative enforcement. State and local officials (including in Arizona) have long made arrests at the request of federal immigration officials, and federal officials may place detainers on aliens who are wanted by DHS but who otherwise would be released from state or local custody. 8 C.F.R. 287.7.31
2. Moreover, determining whether an alien has committed an offense that might make him removable under the INA will typically be outside the expertise of the arresting officer. That determination “is often quite
31 Petitioners also contend (Br. 42) that Section 6 might be valid in at least some applications because it authorizes arrests of aliens who were “previously deported from the country for the crime but subsequently re-entered illegally.” There is no indication that that was Section 6’s purpose: unlawfully reentering the United States following removal is a felony, see 8 U.S.C. 1326(a), and federal felons were already arrestable, see p. 53, supra. Furthermore, Section 6 is triggered by commission of a “public offense,” defined to include a violation of another State’s law that would also be illegal in Arizona. Ariz. Rev. Stat. Ann. § 13-105(27). The federal crime of illegal reentry does not qualify.

55
complex.” Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., concurring in the judgment). The INA generally does not list specific crimes that make an alien removable but, rather, uses “broad categor[ies] of crimes, such as crimes involving moral turpitude or aggravated felonies.” Ibid . (citation omitted). And determining whether a particular crime fits within those categories “is not an easy task”; it may involve looking not only at the statute in question, but also at the record of conviction. Ibid .32
Section 6 cannot be deemed cooperative in any real sense. Nor was it needed for state and local officers to engage in the sort of true cooperation welcomed by the federal government.33 Section 6 thus is preempted.
32 If the offense was committed outside Arizona, the officer would also have to determine whether the offense also would be punishable under Arizona law. Ariz. Rev. Stat. Ann. § 13-105(27).
33 Petitioners cite various cases in support of their “inherent authority” argument, and several amici likewise assert that the Department of Justice’s Office of Legal Counsel (OLC) has recognized States’ inherent authority. Those cases, however, and the relevant portions of that OLC opinion, merely recognize States’ ability, without situationspecific federal statutory authorization (such as 8 U.S.C. 1252c), to engage in the kind of cooperation with the federal government that is permissible under Section 1357(g)(10). See J.A. 270, 273, 280; see also National Council of La Raza v. Department of Justice, 411 F.3d 350, 353-355 (2d Cir. 2005). For instance, in United States v. VasquezAlvarez, 176 F.3d 1294 (10th Cir.), cert. denied, 528 U.S. 913 (1999), a federal immigration officer called a state police officer “to investigate [a] suspicious transaction.” Id. at 1295. The federal officer also “expressed suspicion” that one of the people he had seen “was an illegal alien” and affirmatively asked the state officer to arrest that person if he turned out to be, “in fact, in the country illegally.” Ibid . See also Muehler v. Mena, 544 U.S. 93, 96, 100-101 (2005) (discussing federal immigration official’s involvement in investigation); United States v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir. 1984) (same). Nothing

56

CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.

IVAN K. FONG General Counsel Department of Homeland Security
HAROLD HONGJU KOH Legal Adviser Department of State

DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
BETH S. BRINKMANN Deputy Assistant Attorney General
WILLIAM M. JAY Assistant to the Solicitor General
MARK B. STERN MICHAEL P. ABATE BENJAMIN M. SHULTZ DANIEL TENNY JEFFREY E. SANDBERG
Attorneys

MARCH 2012

in any of those authorities supports a claim that a State has inherent authority to enact a law mandating enforcement that is not “cooperat[ive].” See note 27, supra.

 
 No. 11-182

Suputmc Court, U.S. FILED
APR'i 7 2012
OPFICIi 0' THE: CLERK

IN THE
~upreme QCourt of tbe ~nitelJ ~tate.5

STATE OF ARIZONA AND JANICE K. BREWER, GOVERNOR
OF THE STATE OF ARIZONA, IN HER OFFICIAL CAPACITY,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United States Court ofAppeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

JOSEPH SCIARRO'ITA, JR. General Counsel
OFFICE OF GOVERNOR JANICE K BREWER
1700 W. Washington St. 9th Floor PhoeIrix, AZ 85007 (602) 542-1586
JOHN J. BOUMA .RoBERT A HENRY
KELLYKs~NSKI
SNELL & WILMER LLP One Arizona Center 400 East Van Buren PhoeIrix, AZ 85004 (602) 382-6000

PAULD. CLEMENT
Counsel ofRecord
VIETD.DINH
H. CHRISTOPHER BARTOLOMUCCI
NICHOLAS J. NELSON
BANCROFT PLLC
1919 M Street, N.W. Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com

'.;

TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... ii

REPLY BRIEF FOR PETITIONERS ........................ 1

I. STATES

HAVE

INHERENT

AUTHORITY

TO

ENFORCE

FEDERAL LAW, INCLUDING

FEDERAL IMMIGRATION LAW ...................... 3

A. States Have Inherent Authority to Enforce Federal Law.................................... 3

B. Absent Field Preemption or Express Congressional Direction to the Contrary States May Punish Conduct That Independently Violates Federal Law ................................... 6

II. THE

LAW

ENFORCEMENT

PROVISIONS OF S.B. 1070 ARE NOT

pREEMPTED.................................................... 11

A. Section 2(B) ................................................ 11

B. Section 6 ..................................................... 16

III. SECTION 3 PARALLELS FEDERAL

ALIEN

REGISTRATION

REQUIREMENTS ............................................ 18

IV. SECTION 5(C) REGULATES WORK BY ILLEGAL ALIENS, WHICH FEDERAL LAW DOES NOT REGULATE....................................................... 20

CONCLUSION......................................................... 24

,.".'

11

TABLE OF AUTHORITIES Page(s)

Cases

Altria Grp., Inc. v. Good, 555 U.S. 70 (2008) ................................................. 21

Buckman Co. v. Plaintiffs'Legal Comm., 531 U.S. 341 (2001) ................................................. 8

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ............................................... 19

Chamber of Commerce of U.S. v. Brown,

554 U.S. 60 (2008) ................................................... 9

Chamber of Commerce of u.s. v. Whiting,

.

131 S. Ct. 1968 (2011) ....................................passtm

Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ................................................. 8

DeCanas v. Bica,

.

424 U.S. 351 (1976) ........................................passtm

Foxv. Ohio, 46 U.S. 410 (1847) ................................................... 9

Gilbert v. Minnesota, 254 U.S. 325 (1920) ................................................. 9

Hines v. Davidowitz, 312 U.S. 52 (1941) ........................................... 19,20

In re Quarles, 158 U.S. 532 (1895) ................................................. 4

INS v. Chadha, 462 U.S. 919 (1983) .:............................................... 7

iii
Pennsylvania I!. Nelson, 350 U.S. 497 (1956) ............................................... 19
Plyler v. Doe, 457 U.S. 202 (1982) ..................................... 6, 10, 20
Printz v. United States, 521 U.S. 898 (1997) ............................................. 5, 6
Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ............................................... 19
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ................................................. 6
Thomas v. Loney, 134 U.S. 372 (1890) ................................................. 9
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............................................... 10
United States v. Di Re, 332 U.S. 581 (1948) ............................................. 4, 5
United States v. Salerno, 481 U.S. 739 (1987) ............................................... 18
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) ............................................... 18
Watters v. Wachovia Bank, 550 U.S. 1 (2007) ..................................................... 7
Wisconsin Dep't ofIndus., Labor & Human Relations v. Gould Inc., 475 U.S. 282 (1986) ................................................. 8
Statutes
8 U.S.C. § 1304(e)..................................................... 18
8 U.S.C. § 1306(a)............................................... 18, 20

IV
f! U.S.C. § 132I\a(II)................................................... 21 8 U.s.C. § 1324a(h)(2) .............................................. 21
8 U.S.C. § 1357(g)(10) .................................. 12,15,17
8 U.S.C. § 1373(a)........................ ..... ........................ 12 8 U.S.C. § 1373(b)..................................................... 12
8 U.S.C. § 1373(c) ............................................... 12, 16 8 U.S.C. § 1644......................................................... 12
18 U.S.C. § 1546(b)............................. ...................... 22
National Labor Relations Act, 29 U.S.C. §§ 151·169 ............................................... 9
Act of September 24, 1789, ch. 20, § 33, 1 Stat. 73 ............................................. 5
S.B. 1070, § 2(B), Ariz. Rev. Stat. § 11·1051 ........... .................... 11, 12
S.B. 1070, § 3, Ariz. Rev. Stat. § 13·1509 ..................................... 18
S.B. 1070, § 5(C), Ariz. Rev. Stat. § 13·2928 ..................................... 20
S.B. 1070, § 6, Ariz. Rev. Stat. § 13·3883 ................. .................. .. 16
Other Authorities 1 Joseph Story, Commentaries on the
Constitution of the United States (3d ed. 1858) ............................................................ 6
118 Congo Rec. H30155 (daily ed. Sept. 12, 1972)....................................... 23

V
.m egal Aliens: HearingR Before Subcomm. No.1 of the H. Comm. on the Judiciary, 92d Congo(1971) .............................................. 22, 23
The Federalist No. 45 (James Madison) ................... 5

REPLY BRIEF FOR PETITIONERS
Ariwna, with its 370-mile border with Mexico, indisputably bears a disproportionate share of the costs of illegal immigration. In response, Arizona enacted S.B. 1070, which dedicates considerable state resources to the effective enforcement of the substance of federal immigration law. By expressly borrowing federal standards, S.B. 1070 avoids any possibility of preemption. To be clear, S.B. 1070 does not authorize any arrest or impose any penalty for conduct that is permissible under federal law. Instead, it consistently adopts the federal substantive law as its own. And Congress, far from preempting the field or prohibiting such complementary state efforts, has affirmatively encouraged such cooperative law enforcement and expressly preempted state laws that would prevent state officers from communicating with federal officers. This is not fertile ground for a preemption argument.
The United States nonetheless insists that S.B. 1070 is impliedly preempted on its face. . But its argument depends on inverting fundamental principles of federalism and the separation of powers and ignoring the plain text of multiple immigration provisions. Under our system of government, States have inherent authority to make arrests for violations of federal law, and Congress, not the executive, does the preempting. The United States acknowledges, as it must, that voluntary state efforts to enforce federal law are the norm. The fledging Republic enacted criminal and immigration laws long before it established an extensive network of federal law enforcement agents, and the Framers

2
reassured skeptics that Congress' ability to enact substantive law would not require a significant cadre of federal law enforcement officials. Nonetheless, the United States contends that while ad hoc cooperation from state law enforcement officials is just fine, a systematic state effort to enforce federal law crosses the line from cooperation into confrontation. But there is no support for this novel theory, and no reason to prefer the ad ho.c over a state statute like S.B. 1070. If Congress deCIdes that systematic state efforts are problematic, it is perfectly capable of preempting them. But Congress has consistently expressed a preference for maximizing state cooperation and prohibiting efforts to limit communication between the States and federal immigration officials.
In the end, because Congress has consistently favored active enforcement of the immigration laws by both state and federal law enforcement, the United States is reduced to arguing that Arizona's more systematic efforts to enforce the law interfere with the executive branch's preferred enforcement posture. But it is the federal law enacted by Congress, not the executive's preferred enforcement posture, that carries preemptive effect. Moreov:er, the executive's concern about too much cooperatlOn is essentially the same argument that this Court rejected just last Term in Chamber of Commerce of United States u. Whiting, 131 S. Ct. 1968 (2011).
The United States' objection to state-law penalties on violations of federal registration obligations or soliciting employment that is verboten under federal law suffers the same defect. State laws imposing penalties for violations of federal standards, so-

3
called "parallel" cases, are the easy caRes for preemption purposes. Absent express or field preemption, there is simply no conflict and no bas~ for facially invalidating a duly enacted state statute that unquestionably has constitutional applications.
I. STATES HAVE INHERENT AUTHORITY
TO ENFORCE FEDERAL LAW,
INCLUDING FEDERAL IMMIGRATION
LAW.
A. States Have Inherent Authority to Enforce Federal Law.
Although respondent cannot deny that the Constitution permits state efforts to enforce federal law, it nonetheless insists that States derive their authority from federal law and cannot "wrest from federal officials the enforcement of federal laws by imposing a mandatory directive as a matter of state law." Br. 45. That view is both critical to respondent's preemption argument and fundamentally misdescribes our federal system. The States' ability to enforce federal law-whether through state law enforcement officers or through state laws imposing penalties for violations of federal-law standards-is a function of the States' inherent residual sovereignty, not any federal statutory authorization. While Congress can preempt such state efforts, in the absence of such congressional action, state enforcement of federal law standards is the norm, not a deviation that demands express authorization from-Congress.
The notion that States may enforce federal law as an incident of their inherent and residual sovereignty is hardly radical. Respondent's own

4
Office of Legal Counsel (OLC) has opined that "the authority to arrest for violation of federal law inheres in the States subject only to preemption by federal law." OLC, Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations (Apr. 3, 2002) (JA 267). As OLC explained, "the authority of state police to make arrests for violation of federal law is [not] limited to those instances in which they are exercising delegated federal power" because "such arrest authority inheres in the States' status as sovereign entities." JA 270. OLC stated that the "contrary conclusion," i.e., "that States, through their police, may exercise only the arrest power that Congress has affirmatively authorized," is not only "lacking any legal support" but "would dramatically upset settled practices." JA 273.
This Court's cases confirm that state officers may make arrests for violations of federal law even if there is no federal statute authorizing them to do so. See, e.g., United States v. Di Re, 332 U.S. 581, 589590 (1948) (absent an applicable federal statute, state law determines validity of a state officer's warrantless arrest for federal criminal violations); see also In re Quarles, 158 U.S. 532, 535 (1895). As Justice Jackson explained in Di Re, the principle that state law enforcement officers may make arrests for violations of federal law as long as the arrests are authorized by state law has roots going all the way back to "one of the earliest acts of Congress." 332 U.S. at 589.. That provision, part of the Act of September 24, 1789, authorized the arrest and detention of an individual for a federal crime "agreeably to the usual mode of process against

5
offenders in such state." Ch. 20, § 33, 1 Stat. 73, 91; Di Re, 332 U.S. at 589 n.B.
This notion that state officials could voluntarily enforce federal law whenever consistent with state law would have struck the framing generation as obvious. The new Republic enacted criminal penalties and naturalization rules long before it developed a network of federal law enforcement agents sufficient to enforce those laws without state assistance. ·While there is some debate over the extent to which state cooperation was compelled as opposed· to merely welcomed, compare Printz v. United States, 521 U.S. 898, 905-912 (1997) with id. at 946-953 (Stevens, J., dissenting), there is no doubt that the early Congresses depended on state cooperation. Indeed, the Framers viewed the new federal government's reliance on .pre-existing state officials-who drew their authority from the inherent and reserved power of the States, not the new federal government---as a virtue, not a vice. When opponents of the Constitution suggested that the new federal government's ability to tax would necessitate an army of federal tax collectors, Madison responded that the enforcement effort "will generally be made by the officers, and according to the rules, appointed by the several States." The Federalist No. 45 (James Madison).
Nor did the Framers envision a different rule for naturalization. The founding generation concluded that the substantive rule of citizenship needed to be uniform to avoid the prospect that one State could have particularly lax rules which would then extend to the entire nation by virtue of Article IV's Privileges and I=unities Clause. See 1 Joseph

6
Story, Commentaries on the Constitution of the United States 384 (3d ed. 1858). But when it came to enforcing those uniform national rules, Congress once again turned to the States, particularly the state court system. See Printz, 521 U.S. at 905-906 (discussing laws relying on state courts to "record applications for citizenship" and "to register aliens seeking naturalization").
Nothing that has happened since suggests that state officials' ability to enforce federal immigration laws depends on express federal authorization.' Instead, like many other areas of the law, the authority of state law enforcement officers to enforce federal law depends on state law. And, unless Congress acts to override state law, state efforts to enforce federal immigration laws remain valid.
B. Absent Field Preemption or Express Congressional Direction to the Contrary States May Punish Conduct That Independently Violates Federal Law.
At times, respondent comes close to suggesting that federal law occupies the field when it comes to immigration. But it is well-established that States may legislate t.o protect state interests affected by violations of federal immigration law. &e Whiting, 131 S. Ct. 1968; Plyler v. Doe, 457 U.S. 202, 225 (1982); DeCanas v. Biea, 424 U.S. 351, 355·356 (1976).
, If employers can report violations of the immigration laws to federal immigration authorities (which they can, see Sure· Tan, Inc. u. NLRB, 467 U.S. 883, 895 (1984», state law enforcement officers surely can do the same.

7
Respondent emphasizes (Hr. 19-20) that Congress granted the executive branch broad discretion to determine when an unlawfully present alien should be deported. That is true, but nothing in S.B. 1070 interferes with this exclusive removal power. The law enforcement provisions of S.B. 1070, Sections 2 and 6, may result in a brief detention or arrest of an unlawfully·present alien, but the federal executive will determine whether that individual may stay or must go. Sections 3 and 5 of S.B. 1070 penalize federal registration and unauthorized-work requirements, but the penalties do not include removal.2
That the executive branch has discretion in enforcing the immigration laws is wholly unremarkable and has no bearing on the preemption analysis. Whenever Congress enacts a criminal law, the federal executive will have considerable prosecutorial di~tion. But that does not give the executive any authority to pick and choose which state efforts to enforce federal standards interfere with its enforcement priorities and are therefore preempted. The circumstances in which Congress can delegate its ability to preempt state law to the executive branch remain subject to some doubt. See,·
e.g., Watters v. Waehovia Bank, 550 U.S. 1, 38-44
(2007) (Stevens, J., dissenting). But the executive must point to something much more concrete and
2 Respondent invokes (Br. 19) INS u. Chadha, 462 U.S. 919 (1983), to argue that Congress granted the Executive Branch unfettered discretion with respect to the removal of aliens. But actually Congress went to great and ultimately unconstitutional lengths to retain a veto over the executive's removal decisions.

8
exprOAB than a mere grant of prosecutorial discretion.
Respondents' preemption argument rests principally (Br. 24-25) on three cases: Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001); CraBby v. National Foreign Trade Council, 530 U.S. 363 (2000); and Wisconsin Department of Industry, Labor and Human Relations v. Gould Inc., 475 U.S. 282 (1986). Two of those cases were raised and distinguished in Whiting, and the third is so patently inapposite that it did not even make the cut.
In Whiting, this Court explained that both Buckman and Crosby "concern[ed] state actions that directly interfered with the operation of the federal program." Whiting, 131 S. Ct. at 1983 (plurality) (emphasis added). The Court distinguished Buckman and Crosby, finding that "[t]here is no similar interference with the federal program in this case; that program operates unimpeded by the state law." Id. Whiting involved an Arizona statute that, inter alia, authorized county attorneys to verify employment status pursuant to 8 U.S.C. § 1373(c) and made use of the federal E-Verify system mandatory. The Court found no significant interference because the state statute relied on federal standards and mechanisms. The same conclusion follows here.
Even apart from Whiting, Buckman and Crosby distinguish themselves and demonstrate the weakness of the preemption claim here. Buckman involves the federal government's unique interest in prohibiting fraud in its own proceedings, which is akin to the longstanding rule that only federal authorities can prosecute perjury in the federal

9

courts. See Thomas v. Loney, 134 U.S. 372, 375

(1890) (recognizing this rule as an exception to the

general rule that two BOvereigns can make the same

conduct illegal); see alBo Gilbert v. Minnesota, 254

U.S. 325 (1920) (applying the general rule to uphold

state law prohibiting interference with enlistment in

federal military). And Crosby's zero-tolerance for

inconsistent state sanctions clearly does not extend

outside the distinct context of international

sanctions. Whiting and DeCanas make clear that a

similar rule does not apply in the immigration

context.

•

Whiting did not discuss Gould, because neither the United States nor the Whiting petitioners saw fit to cite it. And no wonder: Not only is Gould irrelevant to state regulation of illegal aliens, but this Court has already rejected an effort to transplant the unique rules of preemption under the National
Labor Relations Act, 29 U.S.C. §§ 151-169, and "the Garmon rule" into the immigration context. See DeCanas, 424 U.S. at 358-361 & n.7 (rejecting reliance on Garmon as "misplaced" because "nothing
remotely resembling the NLRA scheme is to be found in the INA").3

The United States seeks to distinguish cases such as Fox v. Ohio, 46 U.S. 410 (1847), and Gilbert v. Minnesota, which underscore the general presumption that States can independently punish

3 The Court's citation of Gould in Chamber of Commerce u. Brown, 554 U.S. SO, 65 (2008), but not in Chamber of Commerce u. Whiting, underscores that Gould involved the special labor law rule of Garmon preemption and sheds no light on preemption questions in the distinct immigration context.

10
conduct that violates federal law on the view that "those cases presented questions of legitimate local concern that were not displaced by federal law." Br. 29. But the massive number of illegal aliens in Arizona and the costs and damages directly related thereto are even more obviously matters of local concern than counterfeiting federal coinage or interference with federal military enlistment, see Pet. Br. 1-8. As this Court has emphasized: "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." Plyler, 457 U.S. at 228 n.23; see also DeCanas, 424 U.S. at 356 (describing California's effort as "certainly within the mainstream of such police power regulation"); United States v. Brignoni-Ponce, 422 U.S. 873, 878879 (1975) (noting that illegal aliens "create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services").
Although respondent identifies a handful of readily distinguishable cases involving either field preemption or truly unique areas like international sanctions and perjury committed in federal court, its fundamental problem is that it cannot remotely deny or avoid the general default rules: State officers can enforce federal law and States are free to impose their own penalties on conduct independently prohibited by federal law. Any effort to suggest that immigration is governed by the special rule for truly unique federal interests is foreclosed not only by

11
Whiting and DeCanGS, but also by over two centuries of history dating back to the first Congress. The Constitution itself recognizes the importance of having a uniform substantive immigration law. B"ut state efforts to enforce the uniform federal substantive law have been commonplace since the founding and raise no special concerns. As in other contexts, when a state law adopts the federal standard as its own, "operates 'only with respect to individuals whom the Federal Government has already declared'" ineligible for work or subject to penalty, and provides a "parallel" state remedy, there is no conflict or preemption. Whiting, 131 S. Ct. at 1981 (quoting DeCanas, 424 U.S. at 363).
II_ THE lAW ENFORCEMENT PROVISIONS OF S.B. 1070 ARE NOT PREEMPTED.
A. Section 2(B)
Section 2(B) of S.B. 1070, Ariz. Rev. Stat. § 11·1051, provides that when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is an unlawfully present alien, "a reasonable attempt shall be made, when practicable, to determine the immigration status of the person" pursuant to the verification procedure established by 8 U.S.C. § 1373(c). That is the same verification provision utilized in the law upheld in Whiting. See 131 S. Ct. at 1976. Section 2(L) further provides that Section 2(B) shall be implemented consistently with federal immigration law. That provision avoids any possibility of preemption, as Section 2(B) is not only consistent with federal law but expressly permitted

12
by multiple federal laws. See 8 U.S.C. §§ 1357(g)(10), 1373(a).(c), 1644.4
Indeed, Section 2(B) is most readily understood as state law authorization for precisely the kind of cooperative law enforcement and communication federal law welcomes. Congress, far from discouraging state efforts to verify immigration status, has affirmatively mandated that federal immigration authorities respond to such requests. Section 1373(c) directs that federal authorities "shall respond" to any inquiry by a state or locality "seeking to verify or ascertain the citizenship or immigration status of any individual within [its] jurisdiction" by "providing the requested verification or status information." As if that direction were not clear enough, 8 U.S.C. § 1644 declares that "[n]otwithstanding any other provision of Federal ... law, no State or local government entity may be prohibited, or in any way restricted, from sending to
4 Respondent is wrong to say that Section 2(B) "requir[es] state and local officers to detain every person suspected of being an unlawfully present alien until her status can be verified." Br. 47. Section 2(B) provides only that "a reasonable attempt shall be made, when practicable" to determine a person's immigration status when "reasonable suspicion" exists that the person is an illegal alien; it does not require the verification be completed duriog the stop or detention if that is not reasonable or practicable. Respondent's claim also overlooks the fact that, under Section 2(B), a person who provides a valid Arizona driver or identification licenee is presumed not to be an unlawfully present alien. Because respondent brought a facial challenge to S.B. 1070 before it could take effect or be construed by the Arizona courts, Arizona's reasonable construction of its own statute should be
accepted. Ct. Pet. Br..39·41.

13
or receiving from [federal immigration authorities] information regarding tho immigration status, lawful or unlawful, of an alien in the United States." Sections 1373(a) and (b) are to the same effect, expressly prohibiting any federal, state or local law from inhibiting communication with INS officials. And to comply with these congressional directions, the federal Law Enforcement Support Center was created "to respond to inqniries around the clock." Br.8.
In the face of this rather remarkable congressional invitation for cooperative state law enforcement, respondent tries several tacks in seeking to divine preemptive intent in this express congressional embrace of state enforcement. First, respondent suggests that because Arizona candidly expressed dissatisfaction with the extent of federal enforcement efforts, S.B. 1070 ·and its direction that state officials utilize Section 1373(c) whenever "practicable" "is not cooperation; it is confrontation." Br. 46. But it cannot be that a State that genuinely believes that the federal government should do more to enforce federal law loses its ability to do everything in its reserved power to facilitate such enforcement if it has the temerity to criticize the federal efforts. Beyond that, it is not at all clear how taking the maximum "practicable" advantage of a federal system expressly provided by Congress is confrontational.
Respondent suggests that the federal government must "take the lead in fashioning enforcement priorities and techniques," and that following that lead "is the very definition of cooperation." Br. 46. It is no accident that respondent offers no citation to

14
a dictionary that actually defines cooperation in this "very" strange way. While this domineering arrangement might reflect an officient relationship between dance partners, it is an odd notion <of cooperation between sovereigns. In any event, Congress has taken the lead in fashioning enforcement "techniques" and has invited States to take advantage of one such technique-the 1373(c) process. Section 2(B) authorizes the precise inquiries that Section 1373(c) envisions and fully comports with Congress' definition of cooperation, which is surely the relevant one.
As for the federal government's enforcement priorities, Section 2(B) poses no obstacle. To the extent a state law enforcement inquiry brings an unlawful alien to the federal government's attention, it in no way forces federal officials to take any particular action. It simply ensures that the federal government has a fuller range of potential candidates on which to bring its enforcement priorities to bear. If the federal government launched an initiative focusing on large scale corporate fraud or major bank robbers, state officials presumably would <not be regarded as confrontational or even uncooperative if they sought to hand over small-scale robbers of federal banks or reported those engaged in relatively modest frauds. Federal officials could decide whether the cases fit thoir enforcement profile or not. Of course, some in Congress or the national electorate might not look kindly on federal prosecutors declining to prosecute clear violations of federal law brought to their attention by state officials. But, a desire to avoid

15
such accountability to Congress and the citizenry can hardly be a basis for preemption.
Respondent's next effort to evade Congress' obvious intention to facilitate, not preempt, the kind of state enforcement inqniries authorized by Section 2(B) is to suggest that there is something fundamentally different when the requests are the product of a state statute, rather than ad hoc decisions by individual state officials. But there is no support in the statute or anything else for the respondent's rather unusual preference for ad hoc, as opposed to more systematic, government action. The savings clause in 8 U.S.C. § 1357(g)(1O) is another significant indication of Congress' interest in avoiding any impediment to state law enforcement's ability to communicate with federal officials and cooperate "in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Nothing in that provision remotely suggests it saves ad hoc efforts by individual officers but not "state immigration legislation." Br. 48 (emphasis in original). To be sure, Section 1357(g)(10) does not specifically mention legislation, but that simply reflects that federal law is appropriately indifferent to whether a State leaves the decision to contact the federal authorities up to individual officers or addresses the issue by statute. There is absolutely no support for the quizzical notion that Section 1357(g)(10) intrudes on such matters of internal state policy.
Finally, respondent contends (Br. 50·51) that 8 U.S.C. § 1373(c) "does not expressly or impliedly authorize" Section 2(B). But with all due respect, that argument gets the constitutional inquiry

16
exactly backwards. The question is not whether a federal statute authorizes Section 2(B), but whether any federal statute preempts it. Respondent has the burden of identifying such a preemptive statute, and has failed to do so. A State, unlike a federal agency, does not require a federal statute to authorize its actions. Indeed, Section 1373(c) reflects this basic dichotomy. Not only does it not purport to authorize any state action, it is not directed to States at all. It is directed instead to the relevant federal agency and instructs it in no uncertain terms to respond to requests from state and local officials "by providing the requested verification or status information." There is simply no trick of alchemy that can convert that express direction for federal authorities to facilitate and respond to state requests into a basis for preemption of those same requests.
B. Section 6
The United States has relatively little to say about why Section 6 of S.B. 1070, Ariz. Rev. Stat. § 133883, is preempted (Br. 53-55), presumably because it is a straightforward authorization for state officers to enforce federal law. It authorizes a state officer to make a warrantless arrest when there is probable cause to believe that the arrestee has committed an offense that makes him removable pursuant to the federal immigration laws. It is thus a classic, and perfectly valid, expression of the State of Arizona's sovereign authority to assist in enforcing federal law. Moreover, federal law expressly preserves state officers' ability to assist in the "apprehension" and

17
"detention" of "alienR not lawfully present in tho United States." 8 U.S.C. § 1357(g)(1O)(B).5
Respondent does not defend the Ninth Circuit's holding that state officers cannot enforce federal removability requirements if those requirements are civil rather than criminal in nature. Nor does it defend the Ninth Circuit's holding that Section 6 is preempted by 8 U.S.C. § 1252c.6 OLC correctly rejected those views a decade ago. JA 267 (opining that the INA does not "preclude [state officers] from arresting aliens on the basis of civil deportability" and that § 1252c "does not preempt state arrest authority in any respect").
Instead, respondent revives the argument that Section 6 interferes with its enforcement priorities as to removals, which are "within the Secretary's plenary discretion." Br. 54. But Section 6, like the other provisions at issue here, does nothing to interfere with federal removal decisions or priorities. Section 6 authorizes, but does not require, state officers to arrest an individual who has committed a removable offense. State officers do not decide whether the individual will be removed, but such arrests will ensure that federal authorities can act
6 Respondent misstates petitioners' position when it claims (Br. 53) that "(petitioners] ultimately recognize" that Section 1357(g)(10) limite the States' inherent arrest authority. A savings clause is not the place to look for limite on state authority. The whole point of Section 1357(g)(10) is that nothing in Section 1357(g) should be construed to limit state authority.
6 Nor does respondent defend the Ninth Circuit's misguided reliance on foreign criticism to buttress its preemption ruling. See Pet. Br. 57-59.

18
on their own priorities. The ultimate removal decision remains squarely with federal authorities.
Respondent argues (Br. 54) that Section 6 risks the arrest of some removable aliens who the executive has already decided not to remove, and of some aliens who are not in fact removable. But as petitioners emphasized in their opening brief (at 38, 41, 49), this is a facial challenge, and respondent does not contend that Section 6 would raise such issues "in all of its applications." Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (citing United States v. Salerno, 481 U.S. 739, 745 (1987». Tellingly, respondent cites neither Washington State Grange nor Salerno anywhere in its brief. Section 6 should not be facially invalidated when it undisputedly would have numerous constitutional applications.7
III. SECTION 3 PARALLELS FEDERAL ALIEN REGISTRATION REQllREMENTS.
Section 3 of S.B. 1070, Ariz; Rev. Stat. § 13-1509, sets forth state law penalties for violations of the federal laws requiring aliens to register and carry registration documents. See 8 U.S.C. §§ 1304(e) and 1306(a). The maximum penalties for a second or subsequent violation of Section 3 are the same as the maximum penalties in Section 1304(e), which in turn are less than the maximum penalties in Section 1306(a). The States' inherent power to enforce federal law includes the power to authorize parallel
7 The fact that tlriB is a facial challenge also disposes of respondent's argument (Br. 54-55) that it may be difficult for some state officers to determine whether some aliens have committed removable.offenses.

19
enforcement of federal requiroments. See, e.g., Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008).
Hines v. Davidowitz, 312 U.S. 52 (1941), does not help respondent's argument that federal law occupies the field of immigration registration. The Hines Court struck down Pennsylvania's Alien Registration Act, not because federal law occupied the field, but because "under the circumstances of this particular case, Pennsylvania's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 312 U.S. at 67. Indeed, when this Court enumerates the three principal forms of federal preemptionexpress, field, and obstacle-it frequently cites Hines as the exemplar of obstacle preemption. See, e.g., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698699 (1984). Moreover, in light of the Hines Court's ambivalence about different formulations of the preemption inquiry, 312 U.S. at 67, and its effort to ground its decision in the circumstances of the particular case, id., it is a mistake to extrapolate from Hines to this very different statute that consciously parallels federal requirements.8
The State of Arizona obviously was aware of Hines when it enacted Section 3 and purposefully crafted it to avoid any conflict with federal law. The
8 Respondent also invokes a footnote in Pennsyluania u. Nelson to the effect that "Congress manifestly did not deaire concurrent state action," 350 U.S. 497, 504 n.21 (1956). See Br. 27, 29 n.16. But the Court was referring to concurrent state regulation of sedition. Nelson, unlike Hines, was a field· preemption case, but the relevant field was sedition, not alien registration. 350 U.S. at 504 C'Congress has intended to occupy the field of sedition.}.

20
Pennsylvania law in Hines, by contrast, pre-dated the federal Alien Registration Act, 332 U.S. at 60, and thus not surprisingly conflicted with it, see Pet. Br. 52-53 (detailing differences between Pennsylvania and federal law). Section 3, by contrast, clearly parallels federal law. An alien violates Section 3 only by violating the federal registration and carry laws. And the maximum penalty for a violation of Section 3 is no greater than the maximum penalty for a federal-law violation. Section 3 is not preempted by federal law because it merely "follow[sl the federal direction." Plyler, 457 U.S. at 219 n.19.
Respondent claims (Br. 32 n.20) that Section 3 is "harsher" than federal law because Section 3 violators are ineligible for probation. But surely preemption does not turn on probation·eligibility. In all events, the lack of a probation option reflects the relatively minor penalties imposed by state law. The maximum penalties under Section 3 are a $100 fine and (for a second or subsequent offense) 30 days in jail. The federal failure-to-register penalties are much stiffer. See 8 U.S.C. § 1306(a) ($1,000 fine and six months imprisonment).
IV. SECTION 5(C) REGULATES WORK BY ILLEGAL ALIENS, WHICH FEDERAL LAW DOES NOT REGULATE.
Section 5(C) of S.B. 1070, Ariz. Rev. Stat. § 132928, prohibits aliens who are "unlawfully present" and "unauthorized" from knowingly working or applying for work in Arizona. Section 5(C) regulates in an area of traditional state authority. See DeCanas, 424 U.S. at 356 ("States possess broad authority under their police powers to regulate the

21
employment relationship to protect workers within
the State."); see also Whiting, un S. Ct. at 1974.
Therefore, the presumption against preemption "applies with particular force" to Section 5(C). AltriG Grp., Inc. u. Good, 555 U.S. 70, 77 (2008).
In the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a et seq. (IRCA), Congress made it unlawful for employers to hire unauthorized alien workers. See 8 U.S.C. § 1324a(a). IRCA expressly preempts state laws "imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ unauthorized aliens." Id. § 1324a(h)(2). But IRCA did not address the employee or supply-side of the equation in either its general prohibition.. or it.'! noticeably limited preemption clause. Thus, despite an express preemption provision, respondent's argument remains an implied preemption argument in an area of traditional state concern.
Respondent asserts (Br. 36) that "IRCA leaves no room for the imposition of state criminal liability on individual aliens." But that assertion is neither supported nor sustainable. IRCA did not preempt the field, as both the limited reach of its express preemption provision and the holdings of this Court in Whiting on both implied and express preemption make crystal clear. By failing to address the employee side of the equation, Congress left the law in the same state as to employees as it was for both employees and employers pre-IRCA.
Respondent quibbles that Congress did not leave the employee side of the relationship completely unregulated, but criminalized document fraud by aliens seeking work, see Br. 36 (citing 18 U.S.C.

22
~ 1546(b». Rut respondent does not argue that Congress' {lmhibition on docum.mt fraud preempts or immuni7.es efforts to solicit unlawful employment that do not rely on document fraud. Moreover, the fact that Congress did address one particular form of employee misconduct only makes the fact that IRCA expressly preempts only state laws addressed to employers all the more telling.
Nor is there any tension between Section 5(C) and the grace periods provided for an employer's "goodfaith compliance with verification requirements." See Br. 40. Those grace periods ensure that employers that inadvertently employ illegal workers during the time necessary to ascertain their status are not punished. But the employer in that context has done nothing wrong. The worker, by contrast, has already done something wrong by applying for or engaging in unlawful employment during the grace period (and presumably disguising his work status from an employer that diligently verified it).
Lacking any textual basis for a preemption argument, respondent resorts to legislative history, but that effort (Br. 37 & n.23) is strained. If anything can be gleaned from the few cited snippets from the early 1970's-thirteen years before IRCA's enactment-it is that Congress simply decided that it would not be worthwhile for the federal government to impose federal criminal sanctions on employees.9 The legislative history does not show
9 nlegal Aliens: Hearings Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 92d Congo Pt. 1, 46 (1971) (statement of Charles Gordon, General Counsel, INS); id. 89·90 (statement of Joseph Sureck, Regional Counsel, INS) (witness was "not so concerned to add a further penalty upon the employee[s]"

23
that Congress believed unauthorized workers should be immune from any such sanctions. Nor could legislative history provide such immunity in any event.
Respondent argues that, "[a]lthough Congress may have considered aliens' employment a largely local matter at the time of DeCanas," IRCA "reverses" the presumption against preemption. Br. 39. Not so. The employment relationship remains an area of traditional state authority, as this Court held in DeCanas, 424 U.S. at 356. To the extent IRCA addressed employers and not employees, it left the law as to employees precisely where it was at the time of DeCanas when Justice Brennan had little difficulty concluding for a unanimous Court that regulation ofthe employment relationship was a core state concern and "within the mainstream of such police power regulation." ld. The bottom line is that Section 5(C) does not come within IRCA's express preemption provision, and, like the statutes in DeCanas and Whiting, is not impliedly preempted when it "operates 'only with respect to individuals whom the Federal Government has already declared
because they were "already subject to prosecution" or deportation for illegal entry); id. Pt. 2, 491 (statement of Howard L. Adams, Dist. Dir., INS) (witness "trying to be realistic about this," noting that "[o]ur court dockets are crowded, we impose other penalties, and ... I just doubt the ability of the court to handle the cases of this type of criminal process"); id. 548·549 (statement of James Boyd, U.S. Magistrate, El Paso, TX) (noting as "a matter of pragmatism" that "you are going to have trouble getting [criminal sanctions] enforced"); 118 Congo Rec. H30155 (daily ed. Sept. 12, 1972) (Rep. Rodino) (expressing reluctance to add additional criminal penalties where existing ones were ''ineffective deterrent"}.

24

cannot work in this country.'" Whiting, 131 S. Ct. at 1981 (quoting DeCanas, 424 U.S. at 363). As with the other provisions of S.B. 1070, Arizona's effort to go "the extra mile in ensuring that its law closely tracks [federal law] in all material respects" defeats respondent's extraordinary effort to have it condemned as impliedly preempted on its face. Id.

CONCLUSION

For the foregoing reasons, as well as those stated in petitioners' opening brief, the judgment of the Ninth Circuit should be reversed.

Respectfully submitted,

Joseph Sciarrotta, Jr. General Counsel
OFFICE OF GOVERNOR
JANICE K. BREWER 1700 W. Washington St. 9th Floor Phoenix, AZ 85007 (602) 542-1586
John J. Bouma Robert A. Henry Kelly Kszywienski SNELL & WILMER LLP One Ari7.ona Center 400 East Van Buren Phoenix, AZ 85004 (602) 382-6000

Paul D. Clement Counsel of Record VietD. Dinh H. Christopher Bartolomucci Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, N.W. Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com

Counsel for Petitioners

April 17, 2012

 
 (Slip Opinion)

OCTOBER TERM, 2011

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
ARIZONA ET AL. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 11–182. Argued April 25, 2012—Decided June 25, 2012
An Arizona statute known as S. B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The United States sought to enjoin the law as preempted. The District Court issued a preliminary injunction preventing four of its provisions from taking effect. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States”; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government. The Ninth Circuit affirmed, agreeing that the United States had established a likelihood of success on its preemption claims.
Held: 1. The Federal Government’s broad, undoubted power over immi-
gration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. Removal is a civil matter, and one of its principal features

2

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Syllabus
is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock. Pp. 2–7.
2. The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant 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. Second, state laws are preempted when they conflict with federal law, including when they stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7–8.
3. Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law. Pp. 8–19.
(a) Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. In Hines, a state alien-registration program was struck down on the ground that Congress intended its “complete” federal registration plan to be a “single integrated and all-embracing system.” 312 U. S., at 74. That scheme did not allow the States to “curtail or complement” federal law or “enforce additional or auxiliary regulations.” Id., at 66–67. The federal registration framework remains comprehensive. Because Congress has occupied the field, even complementary state regulation is impermissible. Pp. 8–11.
(b) Section 5(C)’s criminal penalty stands as an obstacle to the federal regulatory system. The Immigration Reform and Control Act of 1986 (IRCA), a comprehensive framework for “combating the employment of illegal aliens,” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147, makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers, 8 U. S. C. §§1324a(a)(1)(A), (a)(2), and requires employers to verify prospective employees’ employment authorization status,

Cite as: 567 U. S. ____ (2012)

3

Syllabus
§§1324a(a)(1)(B), (b). It imposes criminal and civil penalties on employers, §§1324a(e)(4), (f), but only civil penalties on aliens who seek, or engage in, unauthorized employment, e.g., §§1255(c)(2), (c)(8). IRCA’s express preemption provision, though silent about whether additional penalties may be imposed against employees, “does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” making it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861, 869–872. The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. Pp. 12–15.
(c) By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue a warrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15–19.
4. It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives. Pp. 19–24.
(a) The state provision has three limitations: A detainee is presumed not to be an illegal alien if he or she provides a valid Arizona driver’s license or similar identification; officers may not consider race, color, or national origin “except to the extent permitted by the

4

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Syllabus
United States [and] Arizona Constitution[s]”; and §2(B) must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” P. 20.
(b) This Court finds unpersuasive the argument that, even with those limits, §2(B) must be held preempted at this stage. Pp. 20–24.
(1) The mandatory nature of the status checks does not interfere with the federal immigration scheme. Consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations. See §§1357(g)(10)(A), 1373(c). The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___. Pp. 20–21.
(2) It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Pp. 22–24.
641 F. 3d 339, affirmed in part, reversed in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. SCALIA, J., THOMAS, J., and ALITO, J., filed opinions concurring in part and dissenting in part. KAGAN, J., took no part in the consideration or decision of the case.

Cite as: 567 U. S. ____ (2012)

1

Opinion of the Court
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, Wash­ ington, 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. 11–182
_________________
ARIZONA, ET AL., PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 25, 2012]
JUSTICE KENNEDY delivered the opinion of the Court.
To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated pur­ pose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlaw­ fully present in the United States.” Note following Ariz. Rev. Stat. Ann. §11–1051 (West 2012). The law’s provi­ sions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law.
I
The United States filed this suit against Arizona, seek­ ing to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien­ registration requirements a state misdemeanor. Ariz.

2

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Opinion of the Court
Rev. Stat. Ann. §13–1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthor­ ized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13–2928(C). Two other provisions give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes offic­ ers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). Section 2(B) provides that offic­ ers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immi­ gration status with the Federal Government. See §11– 1051(B) (West 2012).
The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F. 3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unan­ imous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important ques­ tions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011).
II A
The Government of the United States has broad, un­ doubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982); see generally S. Legomsky & C. Rodríguez, Immigration

Cite as: 567 U. S. ____ (2012)

3

Opinion of the Court
and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)).
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest­ ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa­ rate States. See Chy Lung v. Freeman, 92 U. S. 275, 279– 280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of appar­ ent interest or injury” might take action that would un­ dermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all interna­ tional relationships . . . has to do with the protection of the just rights of a country’s own nationals when those na­ tionals are in another country.” Hines v. Davidowitz, 312 U. S. 52, 64 (1941).
Federal governance of immigration and alien status is

4

ARIZONA v. UNITED STATES

Opinion of the Court
extensive and complex. Congress has specified catego­ ries of aliens who may not be admitted to the United States. See 8 U. S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301–1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also au­ thorizes States to deny noncitizens a range of public bene­ fits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Re­ moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commission­ ers of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for For­ mer INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (volun­ tary departure).
Discretion in the enforcement of immigration law em­ braces immediate human concerns. Unauthorized work­ ers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com­ mit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the

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5

Opinion of the Court
community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Exec­ utive Branch to ensure that enforcement policies are con­ sistent with this Nation’s foreign policy with respect to these and other realities.
Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is responsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id., at 2. ICE also operates the Law Enforcement Support Cen­ ter. LESC, as the Center is known, provides immigration status information to federal, state, and local officials around the clock. See App. 91. ICE officers are respon­ sible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration En­ forcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010).

6

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Opinion of the Court
B
The pervasiveness of federal regulation does not di­ minish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful im­ migration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthor­ ized aliens who remain in the State comprise, by one estimate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (esti­ mating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
Statistics alone do not capture the full extent of Arizo­ na’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated.
These concerns are the background for the formal legal

Cite as: 567 U. S. ____ (2012)

7

Opinion of the Court
analysis that follows. The issue is whether, under pre­ emption principles, federal law permits Arizona to imple­ ment the state-law provisions in dispute.
III
Federalism, central to the constitutional design, adopts the principle that both the National and State Govern­ ments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (KENNEDY, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the su­ preme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000); Gibbons v. Ogden, 9 Wheat. 1, 210–211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (slip op., at 4).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regu­ lated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115 (1992). The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the

8

ARIZONA v. UNITED STATES

Opinion of the Court
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 (1947); see English v. General Elec. Co., 496 U. S. 72, 79 (1990).
Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142–143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execu­ tion of the full purposes and objectives of Congress,” Hines, 312 U. S., at 67; see also Crosby, supra, at 373 (“What 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”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Con­ gress.” Rice, supra, at 230; see Wyeth v. Levine, 555 U. S. 555, 565 (2009).
The four challenged provisions of the state law each must be examined under these preemption principles.
IV A Section 3
Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to

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regulate. See Brief for United States 27, 31. The Court discussed federal alien-registration require­
ments in Hines v. Davidowitz, 312 U. S. 52. In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registra­ tion.” Id., at 70. The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration rec­ ords and fingerprints. The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id., at 74. Because this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce addi­ tional or auxiliary regulations.” Id., at 66–67. As a con­ sequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id., at 59, 74.
The present regime of federal regulation is not identi­ cal to the statutory framework considered in Hines, but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U. S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id., §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id., §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id., §457 (1940 ed.).
The framework enacted by Congress leads to the conclu­ sion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi, 539 U. S. 396, 419, n. 11 (2003)

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(characterizing Hines as a field preemption case); Pennsylvania v. Nelson, 350 U. S. 497, 504 (1956) (same); see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 2107 (2000) (same). The federal statu­ tory directives provide a full set of standards governing alien registration, including the punishment for noncom­ pliance. It was designed as a “ ‘harmonious whole.’ ” Hines, supra, at 72. Where Congress occupies an entire field, as it has in the field of alien registration, even com­ plementary state regulation is impermissible. Field pre­ emption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984).
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U. S. 725, 730– 731, 733 (1949); see also In re Loney, 134 U. S. 372, 375– 376 (1890) (States may not impose their own punishment for perjury in federal courts).
Arizona contends that §3 can survive preemption be­ cause the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Gov­ ernment has reserved for itself—but also is unpersuasive

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on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circum­ stances where federal officials in charge of the comprehen­ sive scheme determine that prosecution would frustrate federal policies.
There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between §3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U. S. C. §1304(e) (2006 ed.); 18 U. S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13–1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin Dept., supra, at 286 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)).
These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–67. Section 3 is preempted by federal law.

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B Section 5(C)
Unlike §3, which replicates federal statutory require­ ments, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Ari­ zona. Ariz. Rev. Stat. Ann. §13–2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarcera­ tion for up to six months. See §13–2928(F); see also §§13–707(A)(1) (West 2010); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control.
When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were “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 law was upheld against a preemption challenge in De Canas v. Bica, 424 U. S. 351 (1976). De Canas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” Id., at 360; see Whiting, 563 U. S., at ___ (slip op., at 3).
Current federal law is substantially different from the regime that prevailed when De Canas was decided. Con­ gress enacted IRCA as a comprehensive framework for

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“combating the employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147 (2002). The law makes it illegal for employers to know­ ingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U. S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authori­ zation status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalat­ ing series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U. S. C. §§1324a(e)(4), (f); 8 CFR §274a.10.
This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employ­ ment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U. S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specify­ ing these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U. S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U. S. C. §§1324a(b)(5), (d)(2)(F)–(G).
The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose crim­ inal penalties on aliens who seek, or engage in, unauthor­ ized employment. A commission established by Congress to study immigration policy and to make recommen­ dations concluded these penalties would be “unnecessary

14

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and unworkable.” U. S. Immigration Policy and the Na­ tional Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981); see Pub. L. 95–412, §4, 92 Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9–12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA’s framework reflects a considered judg­ ment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibil­ ity of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919–920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives).
IRCA’s express preemption provision, which in most instances bars States from imposing penalties on employ­ ers of unauthorized aliens, is silent about whether addi­ tional penalties may be imposed against the employees themselves. See 8 U. S. C. §1324a(h)(2); Whiting, supra, at ___–___ (slip op., at 1–2). But the existence of an “ex­ press pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861, 869– 872 (2000); see Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002).
The ordinary principles of preemption include the well­ settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and exe­

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15

Opinion of the Court
cution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of en­ forcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Con­ gress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inap­ propriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988) (“Where a comprehensive federal scheme intention­ ally leaves a portion of the regulated field without con­ trols, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law.
C Section 6
Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-

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Opinion of the Court
Mendoza, 468 U. S. 1032, 1038 (1984). If the police stop someone based on nothing more than possible removabil­ ity, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Ap­ pear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A).
The federal statutory structure instructs when it is ap­ propriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U. S. C. §1226(a); see Memo­ randum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Prior­ ities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and re­ lated decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2).
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible remova­

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Opinion of the Court
bility than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigra­ tion policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.
This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi­ pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circum­ stance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super­ vision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra­ tion officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the

18

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training). By authorizing state officers to decide whether an
alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 483–484 (1999); see also Brief for Former INS Commis­ sioners 8–13. A decision on removability requires a de­ termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 348 (2005) (“Removal deci­ sions, including the selection of a removed alien’s destina­ tion, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omit­ ted)); see also Galvan v. Press, 347 U. S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich, 239 U. S. 33, 42 (1915) (“The author­ ity to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”).
In defense of §6, Arizona notes a federal statute permit­ ting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Depart­ ment of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force

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Opinion of the Court
with federal officers, provide operational support in exe­ cuting a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See Dept. of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 (2011), online at http:// www.dhs.gov/files/resources/immigration.shtm (all Inter­ net materials as visited June 21, 2012, and available in Clerk of Court’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation.
Congress has put in place a system in which state offic­ ers may not make warrantless arrests of aliens based on possible removability except in specific, limited circum­ stances. By nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U. S., at 67. Sec­ tion 6 is preempted by federal law.
D Section 2(B)
Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­ termined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.

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Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari­ zona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012).
The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed.
1
Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special train­ ing needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law

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Opinion of the Court
enforcement agencies.” ICE, Fact Sheet: Law Enforce­ ment Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC re­ sponded to more than one million requests for information in 2009 alone. App. 93.
The United States argues that making status verifica­ tion mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have de­ tained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memo­ randum 4–5 (mentioning these factors as relevant).
Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U. S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___–___ (slip op., at 23–24) (reject­ ing argument that federal law preempted Arizona’s re­ quirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use).

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2
Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immi­ gration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Ari­ zona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.
But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practica­ ble”); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (finding no Fourth Amendment violation where questioning about

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Opinion of the Court
immigration status did not prolong a stop). To take another example, a person might be held pend­
ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir­ cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.
However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objec­ tives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigra­ tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U. S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F. 2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in HodgersDurgin v. de la Vina, 199 F. 3d 1037 (CA9 1999).
The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government

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Opinion of the Court
has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful con­ stitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.
V
Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distin­ guished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization ceremonies bring together men and women of different ori­ gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012).

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The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought­ ful, rational civic discourse. Arizona may have under­ standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
* * *
The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.
The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

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SUPREME COURT OF THE UNITED STATES _________________
No. 11–182
_________________
ARIZONA, ET AL., PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 25, 2012]
JUSTICE SCALIA, concurring in part and dissenting in part.
The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, ap­ proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.
I
As a sovereign, Arizona has the inherent power to ex­ clude persons from its territory, subject only to those limitations expressed in the Constitution or constitution­ ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated:
“The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to

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the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).
See also I R. Phillimore, Commentaries upon Internation­ al Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1
There is no doubt that “before the adoption of the consti­ tution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132– 133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitu­ tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confeder­
——————
1 Many of the 17th-, 18th-, and 19th-century commentators main­ tained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather & W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83–87 (2002). But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise.

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ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus­ tice excepted, shall be entitled to all privileges and im­ munities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Con­ gress not to abrogate States’ power to exclude those they did not want, but to vindicate it.
Two other provisions of the Constitution are an ac­ knowledgment of the States’ sovereign interest in protect­ ing their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be abso­ lutely necessary for executing it’s inspection Laws.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.
Notwithstanding “[t]he myth of an era of unrestricted

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immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­ nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro­ vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 Id., at 1883.
In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254, 273–276 (1964), but one of the Alien Acts3 also aroused controversy at the time:
“Be it enacted by the Senate and House of Representa­ tives of the United States of America in Congress as­ sembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machina­ tions against the government thereof, to depart out of the territory of the United States . . . .” An Act con­ cerning Aliens, 1 Stat. 570, 570–571.

——————
2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime . . . he shall be confined in jail for three months, and be fined one hundred dollars”).
3 There were two Alien Acts, one of which dealt only with enemy aliens. An Act respecting Alien Enemies, 1 Stat. 577.

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The Kentucky and Virginia Resolutions, written in denun­ ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi­ zens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur­ ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern­ ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.
In Mayor of New York v. Miln, this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city.” 11 Pet., at 130–131. After discussing the sovereign authority to regulate the en­ trance of foreigners described by De Vattel, the Court said:
“The power . . . of New York to pass this law having undeniably existed at the formation of the constitu­ tion, the simply inquiry is, whether by that instru­ ment it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” Id., at 132.

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And the Court held that it remains. Id., at 139.
II
One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigra­ tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Con­ gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immi­ gration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procur­ ing [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time what­ ever, as servants or apprentices, or to be held to service or labor.” 12 Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18 Stat. 477. And in 1882, Congress enacted the first general immi­ gration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive.
I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than

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for the States. As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumer­ ated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”
In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.
Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty:

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the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abro­ gate,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted). Implicit “field preemption” will not do.
Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, at 3. The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals be­ cause of their countries’ views (some countries, for exam­ ple, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sover­ eign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals be­ cause the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008). We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.

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Opinion of SCALIA, J.
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law— whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail.
§2(B)
“For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the per­ son is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status deter­ mined before the person is released. . . .” S. B. 1070, §2(B), as amended, Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012).
The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law au­ thority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and otherwise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, obviates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplish­ ment and execution of the full purposes and objectives of

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Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Sal­ erno, 481 U. S. 739, 745 (1987). And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government’s con­ cession, already authorized to do.
The Court therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, at 22. Of course, any investigatory detention, in­ cluding one under §2(B), may become an “unreasonable . . . seizur[e],” U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes, 543 U. S. 405, 407 (2005). But that has nothing to do with this case, in which the Gov­ ernment claims that §2(B) is pre-empted by federal immi­ gration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law.

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§6
“A peace officer, without a warrant, may arrest a per­ son if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 1070, §6(A)(5), Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011).
This provision of S. B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See §13–3883. If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not re­ quired to make an arrest. The Government’s primary contention is that §6 is pre-empted by federal immigration law because it allows state officials to make arrests “with­ out regard to federal priorities.” Brief for United States 53. The Court’s opinion focuses on limits that Congress has placed on federal officials’ authority to arrest remov­ able aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17.
Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien,

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contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commence­ ment of the removal process unless the Federal Govern­ ment makes it so.
But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.
The Court quotes 8 U. S. C. §1226(a), which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limi­

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13

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tations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand.
The Court raises concerns about “unnecessary harass­ ment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well de­ termine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)
The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particu­ larly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.
§3
“In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8

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[U. S. C.] §1304(e) or §1306(a).” S. B. 1070, §3(A), as amended, Ariz. Rev. Stat. Ann. §13–1509(A).
It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinc­ tively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U. S. 34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota, 254 U. S. 325 (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” Id., at 331 (inter­ nal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integ­ rity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive fed­ eral 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.” Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982).
The Court’s opinion relies upon Hines v. Davidowitz, supra. Ante, at 9–10. But that case did not, as the Court believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registra­ tion requirements for aliens. 312 U. S., at 66–67. But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. Hines does not prevent the State from relying on the federal

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registration system as “an available aid in the enforce­ ment of a number of statutes of the state applicable to aliens whose constitutional validity has not been ques­ tioned.” Id., at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23–781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” 312 U. S., at 75. And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible.
In some areas of uniquely federal concern—e.g., fraud in a federal administrative process (Buckman Co. v. Plain­ tiffs’ Legal Comm., 531 U. S. 341 (2001)) or perjury in violation of a federally required oath (In re Loney, 134 U. S. 372 (1890))—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate in­ terest in protecting (among other things) its unemployment­ benefits system is an entirely adequate basis for making the violation of federal registration and carry require­ ments a violation of state law as well.
The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Su­ premacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished

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more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have dis­ cussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration.
Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” California v. Zook, 336 U. S. 725, 735 (1949).
It holds no fear for me, as it does for the Court, that “[w]ere §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme de­ termine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonen­ forcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition.
§5(C)
“It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public

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place or perform work as an employee or independent contractor in this state.” S. B. 1070, §5(C), as amended, Ariz. Rev. Stat. Ann. §13–2928(C).
Here, the Court rightly starts with De Canas v. Bica, 424 U. S. 351 (1976), which involved a California 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.’ ” Id., at 352 (quoting Califor­ nia Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest pur­ pose” of displacing such state regulation. Id., at 356–357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful.
The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens, 8 U. S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. Congress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law imposing civil or criminal sanctions (other than through licens­ ing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius, suggests

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that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.”
The Court has no credible response to this. It quotes our jurisprudence to the effect that an “express pre­ emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (quoting Geier v. American Honda Motor Co., 529 U. S. 861, 869 (2000) (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say that since “Congress decided it would be inappropriate to im­ pose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system Con­ gress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regu­ lated field without controls, then the pre-emptive inference can be drawn.’ ” Ibid. (quoting Puerto Rico Dept. of Con­ sumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision.
The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (an­ other field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthor­ ized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Re­ form and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the

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truth, it was most likely expressive of what inaction ordi­ narily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 389 (2000) (SCALIA, J., concurring in judgment) (internal quotation marks and alterations omitted).
* * *
The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its re­ sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations:
“[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an in­ creasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Na­ tion’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted).
Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?

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But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years . . . ,
“• is currently in school, has graduated from high school, has obtained a general education develop­ ment certificate, or is an honorably discharged veteran . . . ,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”5
then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen­
——————
4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1.
5 Memorandum from Janet Napolitano, Secretary of Homeland Secu­ rity, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenship and Immigration Services; and John Morton, Director, U. S. Immigration and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court’s case file).
6 Id., at 2.

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forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­ tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc­ ing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable hor­ ror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratifica­ tion of the fundamental charter that the Convention pro­ duced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously
——————
7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov.

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guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision— perhaps inserted right after Art. I, §8, cl. 4, the Naturali­ zation Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immi­ gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en­ forcement, and will be able to compete openly with Ari­ zona citizens for employment.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

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1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES _________________
No. 11–182
_________________
ARIZONA, ET AL., PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 25, 2012]
JUSTICE THOMAS, concurring in part and dissenting in part.
I agree with JUSTICE SCALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U. S. 555, 588 (2009) (THOMAS, J., concurring in judgment) (“Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)).
Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by Congress in 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohib-

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ited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigration status” of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. §1373(c).
Section 6 of S. B. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. See United States v. Di Re, 332 U. S. 581, 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As JUSTICE SCALIA notes, ante, at 12 (opinion concurring in part and dissenting in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” §1357(g)(10)(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion).
Section 3 of S. B. 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in violation of 8 U. S. C. §1304(e) and §1306(a). Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur recent cases have

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3

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frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (THOMAS, J., dissenting); see, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973). Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the province of the Federal Government. That Congress created a “full set of standards governing alien registration,” ante, at 10 (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. Hines v. Davidowitz, 312 U. S. 52 (1941), is not to the contrary. As JUSTICE SCALIA explains, ante, at 14, Hines at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very registration requirements that Congress created.
Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Federal law 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.” 8 U. S. C. §1324a(h)(2) (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves.
Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an

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obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, supra, at 67. I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See Wyeth, 555 U. S., at 604 (opinion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___–___ (2011) (opinion concurring in judgment) (slip op., at 2–3); Haywood v. Drown, 556 U. S. 729, 767 (2009) (dissenting opinion). Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth, supra, at 604 (THOMAS, J., concurring in judgment). Thus, even assuming the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis.

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1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES _________________
No. 11–182
_________________
ARIZONA, ET AL., PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 25, 2012]
JUSTICE ALITO, concurring in part and dissenting in part.
This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 1070. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practicable,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U. S. C. §1304(e) or §1306(a) is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. §13–1509(A) (West Supp. 2011). Section 5(C) makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. §13–2928(C). And §6 authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5).
I agree with the Court that §2(B) is not pre-empted.

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That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.
I also agree with the Court that §3 is pre-empted by virtue of our decision in Hines v. Davidowitz, 312 U. S. 52 (1941). Our conclusion in that case that Congress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” id., at 66–67, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for violations of the federal registration scheme.
While I agree with the Court on §2(B) and §3, I part ways on §5(C) and §6. The Court’s holding on §5(C) is inconsistent with De Canas v. Bica, 424 U. S. 351 (1976), which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid. Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law.
Section 2(B) A
Although §2(B) of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I

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Opinion of ALITO, J.
agree with the Court that §2(B) is not pre-empted. Section 2(B) quite clearly does not expand the authority
of Arizona officers to make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made . . . in the enforcement of any other [state or local] law or ordinance.” Ariz. Rev. Stat. Ann. §11–1051(B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before §2(B) took effect.
Section 2(B) also does not expand the authority of Arizona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” §2(B) instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. §11– 1051(B). Even before the Arizona Legislature enacted §2(B), federal law permitted state and local officers to make such inquiries. In 8 U. S. C. §1357(g)(10)(A), Congress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, Congress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” §1373(a); see also §1644 (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the

4

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immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigrationstatus information from the Federal Government, another federal statute, §1373(c), requires that the Federal Government respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that §2(B) prescribes. See App. 294–298 (reporting that officers in 59 surveyed state and local jurisdictions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and Customs Enforcement (ICE) when they believe an arrestee to be an undocumented alien while only 17 do not). Congress has invited state and local governments to make immigration-related inquiries and has even obligated the Federal Government to respond. Through §2(B), Arizona has taken Congress up on that invitation.
The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that §2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that §2(B)’s mandate runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, §2(B) “stands as an obstacle to the accomplishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and

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5

Opinion of ALITO, J.
discretion Congress has vested in the Executive Branch.” Ibid. (internal quotation marks and citation omitted).
The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that §2(B)’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priorities before requesting verification of a person’s immigration status. Neither 8 U. S. C. §1357(g)(10) nor §1373(a) conditions the right of state and local officers to communicate with the Federal Government on their first taking account of its priorities. Nor does §1373(c) condition the Federal Government’s obligation to answer requests for information on the sensitivity of state and local officers to its enforcement discretion. In fact, §1373(c) dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that command applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, §2(B) does not conflict with federal law.
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, §2(B)’s verification

6

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Opinion of ALITO, J.
requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in particular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the country unlawfully, the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Government, not with Arizona. Nothing in §2(B) suggests otherwise.
The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Cf. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298, 330 (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congressionally condoned” state law). If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed?
Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow. To the contrary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., p. 4 (June 17, 2011) (“This list is not exhaustive and no one factor is determinative. ICE offi-

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7

Opinion of ALITO, J.
cers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ibid., which change from administration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system.
B
It has been suggested that §2(B) will cause some persons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investigation of their immigration status is undertaken. But nothing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporating the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) “shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. §11–1051(L).
In the situations that seem most likely to occur, enforcement of §2(B) will present familiar Fourth Amendment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that §2(B) comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose

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also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U. S. C. §1325(a).
It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. See, e.g., Miller v. United States, 357 U. S. 301, 305 (1958); United States v. Di Re, 332 U. S. 581, 589 (1948). I see no reason why this principle should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island, 594 F. 3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reasonable belief that the arrestees “had committed immigration violations”); United States v. Vasquez-Alvarez, 176 F. 3d 1294, 1296 (CA10 1999) (noting that “state lawenforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws”); Gonzales v. Peoria, 722 F. 2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (1999) (en banc) (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996).
More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immigration-related arrests in certain situations. See, e.g., 8 U. S. C. §1103(a)(10) (providing for the extension of “any” immigration enforcement authority to state and local

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9

Opinion of ALITO, J.
officers in the event of an “actual or imminent mass influx of aliens arriving off the coast”); §1252c(a) (providing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. Without more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothetical case, the Arizona officer may arrest the driver for violating §1325(a) if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amendment, while the question of illegal entry is investigated.
We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U. S. 405, 407 (2005). But if during the course of a stop an officer acquires suspicion that a detainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. Cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (holding that “no additional Fourth Amendment justification” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain within the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and

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thus require probable cause. See Caballes, supra, at 407. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See Hayes v. Florida, 470 U. S. 811, 816 (1985) (holding that the line between detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”).
If properly implemented, §2(B) should not lead to federal constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will inevitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.1
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1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. §202(a)(1), 119 Stat. 312. One requirement is that any identification be issued only on proof that the applicant is lawfully present in the United States. §202(c)(2)(B), id., at 313. I

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Section 3 I agree that §3 is pre-empted because, like the Court, I read the opinion in Hines to require that result. Although there is some ambiguity in Hines, the Court largely spoke in the language of field pre-emption. The Court explained that where Congress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” 312 U. S., at 66–67. In finding the Pennsylvania alien-registration law pre-empted, the Court observed that Congress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform national registration system.” Id., at 74. If we credit our holding in Hines that Congress has enacted “a single integrated and all-embracing system” of alien registration and that States cannot “complement” that system or “enforce additional or auxiliary regulations,” id., at 66–67, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration requirements must be invalidated.
Section 5(C)
While I agree that §3 is pre-empted, I disagree with the Court’s decision to strike down §5(C). I do so in large measure because the Court fails to give the same solicitude to our decision in De Canas, 424 U. S. 351, as it is willing to give our decision in Hines. In De Canas, the Court upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were

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anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under §2(B).

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unlawfully present in the United States. The Court explained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigration.” 424 U. S., at 355. The Court emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. In light of that broad authority, the Court declared that “[o]nly a demonstration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legislation.” Id., at 357 (some internal quotation marks omitted); see also Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) (“In areas of traditional state regulation, [the Court] assume[s] that a federal statute has not supplanted state law unless Congress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)).
The Court now tells us that times have changed. Since De Canas, Congress has enacted “a comprehensive framework for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omitted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law.
The Court gives short shrift to our presumption against pre-emption. Having no express statement of congressional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13.

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Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15.
The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002). With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate preemptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional intention to do so.
Not only is there little evidence that Congress intended to pre-empt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U. S. C. §1324a(a), Congress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, §1324a(h)(2). Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to

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regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to pre-empt such authority.
The Court dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against preemption, Geier v. American Honda Motor Co., 529 U. S. 861, 869–870 (2000), it is still probative of congressional intent. And it is the intent of Congress that is the “ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963).
The Court infers from Congress’ decision not to impose federal criminal penalties that Congress intended to preempt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that Congress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely Congress’ decision not to extend its express pre-emption provision to state or local laws like §5(C) is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De Canas, then §5(C) must survive. “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.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (plurality opinion)

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(slip op., at 22) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here.
Section 6
I also disagree with the Court’s decision that §6 is preempted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See Ariz. Rev. Stat. §13–3883 (West 2010). Before §6 was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and certain traffic-related criminal violations. See §§13– 3883(A)(1)–(4). Largely duplicating the authority already conferred by these prior subsections, §6 added a new subsection, §13–3883(A)(5) (West Supp. 2011), that authorizes officers to make warrantless arrests on probable cause that the arrestee has committed a “public offense” for which the arrestee is removable from the United States. A “public offense” is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13–105(27).
In what way, if any, does §6 enlarge the arrest authority of Arizona officers? It has been suggested that §6 confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee committed an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. 641 F. 3d 359, 361 (CA9 2011). These are exceedingly

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narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which federal law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense.
A
The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that “in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” Di Re, 332 U. S., at 589; see also Miller, 357 U. S., at 305 (stating that, where a state officer makes an arrest based on federal law, “the lawfulness of the arrest without warrant is to be determined by reference to state law”). Therefore, given the premise, which I understand both the United States and the Court to accept, that state and local officers do have inherent authority to make arrests in aid of federal law, we must ask whether Congress has done anything to curtail or pre-empt that authority in this particular case.
Neither the United States nor the Court goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U. S. C. §1357(g)(10). Under §§1357(g)(1)–(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a federal immigration officer. But §1357(g)(10)(B) makes clear that States and municipalities need not enter into those agreements “otherwise to cooperate . . . in the identification, apprehension, detention, or removal of aliens not

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lawfully present in the United States.” It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests.
Although §1357(g)(10) contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is “ambiguity as to what constitutes cooperation,” the Court says that “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Ante, at 18. The Court adopts an unnecessarily stunted view of cooperation. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative.
To be sure, were an officer to persist in making an arrest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the relevant federal statutes suggests that Congress does not want aliens who have committed removable offenses to be arrested.2 To the contrary, §1226(c)(1) commands that the Executive “shall take into custody any alien” who is deportable for having committed a specified offense. And §1226(c)(2) substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in §1226(c)(1), the Federal Government is
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2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 108.

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obligated to take the alien into custody. That Congress generally requires the Executive to take
custody of criminal aliens casts considerable doubt on the Court’s concern that §6 is an obstacle to the Federal Government’s exercise of discretion. The Court claims that the authority conferred by §6 “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case” and that this “would allow the State to achieve its own immigration policy,” resulting in the “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But §1226(c)(1) belies the Court’s fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, Congress has left the Executive no discretion but to take the alien into custody. State and local officers do not frustrate the removal process by arresting criminal aliens. The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Federal Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under §6 to arrest the alien.
To be sure, not all offenses for which officers have authority to arrest under §6 are covered by §1226(c)(1). As for aliens who have committed those offenses, Congress has given the Executive discretion under §1226(a) over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has enforcement discretion cannot mean that the exercise of state police powers in support of federal law is automatically pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express

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statutory grant of discretion in §1226(a) somehow indicates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, §6 is not pre-empted on its face given its substantial overlap with §1226(c)(1).
It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by §6 to the crimes specified in §1226(c)(1). And to the extent §1226(c)(1) is unclear about which exact crimes are covered,3 Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of §6, and the Court should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with Congress’ clear and manifest intent. We have said that a facial challenge to a statute is “the most difficult challenge to mount successfully” because “the challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987); see also Anderson v. Edwards, 514 U. S. 143, 155, n. 6 (1995) (applying the Salerno standard in a pre-emption case). As to §6, I do not believe the United States has carried that

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3 I readily admit that it can be difficult to determine whether a particular conviction will necessarily make an alien removable. See Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4).

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heavy burden.
B
Finally, the Court tells us that §6 conflicts with federal law because it provides state and local officers with “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Ante, at 16–17. The Court points to 8 U. S. C. §1357(a)(2), which empowers “authorized” officers and employees of ICE to make arrests without a federal warrant if “the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Because §6 would allow Arizona officers to make arrests “regardless of whether a federal warrant has issued or the alien is likely to escape,” ante, at 17, the Court concludes that §6 is an obstacle to the accomplishment of Congress’ objectives. But §6 is an obstacle only to the extent it conflicts with Congress’ clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers, Congress has not manifested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law.
Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in Miller, 357 U. S. 301, is instructive. In that case, a District of Columbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. Id., at 303–304. The federal officer did not have statutory authorization to arrest without a warrant, but the local officer did. Id., at 305. We held that District of Columbia law dictated the lawfulness of the arrest. Id., at 305–306.

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Where a state or local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without warrant is to be determined by reference to state law.” Id., at 305. Under §6, an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under §1357(a)(2). As Miller makes clear, that fact alone does not render arrests by state or local officers pursuant to §6 unlawful. Nor does it manifest a clear congressional intent to displace the exercise of state police powers that are brought to bear in aid of federal law.