Case 2:11-cv-02746-LSC Document 1 Filed 08/01/11 Page 1 of 45

FILED
2011 Aug-01 PM 03:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

____________________________________ UNITED STATES OF AMERICA,
Plaintiff, v. STATE OF ALABAMA & GOVERNOR ROBERT J. BENTLEY,
Defendants. ____________________________________

) ) ) ) ) ) Case No. _____________ ) COMPLAINT ) ) ) ) ) )

Plaintiff, the United States of America, by its undersigned attorneys, brings this civil action for declaratory and injunctive relief, and alleges as follows:
INTRODUCTION 1. In this action, the United States seeks to declare invalid and preliminarily and permanently enjoin the enforcement of various provisions of House Bill 56, as amended and enacted by the State of Alabama, because those provisions1 are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution.
1 For brevity’s sake, this Complaint will use the term, “H.B. 56,” to refer to the challenged provisions of the law except where the context provides otherwise.

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2. In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex — and often competing — objectives that animate federal immigration law and policy. Although a state may exercise its police power in a manner that has an incidental or indirect effect on aliens, it may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.
3. Despite the preeminent federal authority and responsibility over immigration, the State of Alabama recently enacted H.B. 56, a sweeping set of provisions that are designed to address numerous aspects of immigration regulation and enforcement. According to Alabama State Representative and bill co-sponsor
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Mickey Hammon, the purpose of the law is “to prevent illegal immigrants from coming to Alabama and to prevent those who are here from putting down roots.” Julia Preston, In Alabama, a H arsh Bill for Residents Here Illegally, New York Times, June 3, 2011.2 Representative Hammon stated that he believed that H.B. 56 would make unlawfully present aliens’ lives “difficult and they will deport themselves.” Id. H.B. 56’s provisions, working in concert and separately, seek to punish unlawful entry and presence by requiring, whenever practicable, the determination of immigration status during any lawful stop by the police where there is “reasonable suspicion” that an individual is unlawfully present, and by establishing new state punitive and criminal sanctions against unlawfully present aliens. The mandate to enforce H.B. 56 to the fullest extent possible is reinforced by a provision allowing for any legal resident of Alabama to file suit against any state or local authority that “adopt[s] or implement[s] a policy or practice that limits or restricts the enforcement of this act to less than the full extent permitted by this act.” Ala. H.B. 56 § 6(d). Any such authority held liable would face civil penalties of between $1,000 and $5,000 “for each day that the practice or policy has remained in effect after the filing of an action” for under-enforcement. Persons working for state or local authorities have an affirmative duty to report violations of H.B. 56 w here the person has “reasonable cause to believe” that H.B. 56 i s
2 Available at: http://www.nytimes.com/2011/06/04/us/04immig.html
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being violated. A failure to report a violation is a criminal offense. Ala. H.B. 56 § 6(f).
4. By emphasizing one goal — maximum enforcement — H.B 56 ignores the many other objectives that Congress has established for the federal immigration system. This failure to abide by the set of interests animating federal immigration law provides sufficient reason that H.B. 56 is preempted. But just as importantly, even where Alabama appears to pursue one of the goals of the federal system, it does so to the detriment of other federal immigration priorities, thereby disrupting federal immigration enforcement and burdening resources that focus on aliens who pose a threat to national security or public safety.
5. If allowed to go into effect, H.B. 56’s enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. For example, it will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme, diverting resources and attention from aliens who pose a threat to public safety or national security that the federal government targets as its top enforcement priority. The scheme will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be
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swept into the ambit of H.B. 56’s enforcement-at-all-costs approach. It will conflict with longstanding federal law governing the registration and employment of aliens. It will also conflict with the administration and enforcement of U.S. education laws. And it will undermine federal law and invade federal authority by imposing punitive sanctions for conduct that falls outside of the state’s police powers and that Congress affirmatively decided should not be subject to such sanctions.
6. The United States understands the State of Alabama’s legitimate concerns about illegal immigration, and has undertaken significant efforts to secure our nation’s borders and to address the problems created by unlawfully present aliens within our nation’s borders. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Alabama from supplanting the federal government’s immigration regime with its own statespecific immigration policy — a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance already established by the federal government. Accordingly, the provisions set forth below are invalid
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under the Supremacy Clause of the United States Constitution and must be struck down.
JURISDICTION AND VENUE 7. This action arises under the Constitution of the United States, Article VI, Clause 2 and Article I, Section 8, and federal immigration laws including, but not limited to, the Immigration and Nationality Act (“INA”), 8 U .S.C. § 1 101 et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and the United States seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202. 8. Venue lies in the Northern District of Alabama pursuant to 28 U .S.C. § 1391(b). D efendants are the Governor of Alabama and the State of Alabama, both of whom are deemed to r eside in the Northern District of Alabama for purposes of venue. A substantial part of the events or omissions giving rise to this lawsuit occurred or will occur in the Northern District of Alabama.
PARTIES 9. The United States of America is the plaintiff in this action, suing on its own behalf, as well as on behalf of the United States Department of Homeland Security (“DHS”), Department of Justice (“DOJ”), the Department of State, and the Department of Education.
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10. DHS is an executive department of the United States. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). DHS is responsible for the administration and enforcement of laws relating to immigration, as well as the investigation of immigration crimes and protection of the United States’ borders against the illegal entry of aliens. See 8 U.S.C. § 1103. DHS is also responsible for providing citizenship and immigration services.
11. DOJ is a n executive department of the United States. See Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870). The Attorney General, as the head of DOJ, shares certain immigration-related responsibilities with the Secretary of Homeland Security, and he may, among his various immigration functions, order aliens removed from the United States and order the cancellation of removal. See, e.g., 8 U.S.C. §§ 1103, 1158, 1182, 1227, 1229a, 1229b.
12. The Department of State is an executive department of the United States. See State Department Basic Authorities Act of 1956, Pub. L. No. 84-885, as amended; 22 U.S.C. § 26 51 et seq. T he Department of State is partially responsible for administering aspects of the federal immigration laws, including but not limited to the administration of visas.
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13. The Department of Education is an executive department of the United States. See Department of Education Organization Act, 20 U.S.C. § 3401 et seq. The Department of Education administers elementary and secondary education programs that provide financial assistance to States, school districts and others, including but not limited to pr ograms serving students who may be from immigrant backgrounds and are English learners.
14. Defendant, the State of Alabama, is a state of the United States that entered the Union as the 22nd State in 1819.
15. Defendant, Governor Robert J. Bentley, is the Governor of Alabama, and is being sued in his official capacity.
STATEMENT OF THE CLAIM Federal Authority and Law Governing Immigration and Status of Aliens
16. The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.
17. The Constitution affords the federal government the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further,
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the federal government has broad authority to establish the terms and conditions for entry and continued presence in the United States, and to regulate the status of aliens within the boundaries of the United States.
18. The Constitution affords the President of the United States the authority to “take Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. Further, the President has broad authority over foreign affairs. Immigration law, policy, and enforcement priorities are affected by and have impacts on U.S. foreign policy, and are themselves the subject of diplomatic arrangements.
19. Congress has exercised its authority to make laws governing immigration and the status of aliens within the United States by enacting the various provisions of the INA and other laws regulating immigration. Through the INA, Congress set forth the framework by which the federal government determines which aliens may be eligible to enter and reside in the United States, which aliens may be removed from the United States, the consequences for unlawful presence, the penalties on persons who violate the procedures established for entry, conditions of residence, and employment of aliens, as well as the process by which certain aliens may ultimately become naturalized citizens of the United States. See 8 U.S.C. § 1101 et seq. The INA also vests the executive branch with considerable discretion in enforcing the provisions of the federal immigration laws,
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generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases.
20. In exercising its significant enforcement discretion, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security, a risk to public safety, or threaten border security. C onsistent with these enforcement priorities, the federal government focuses its enforcement resources on aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on v iolent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and aliens who are repeat re-entrants or fugitives from immigration courts, especially those with criminal records.
21. In crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests. Assuring effective enforcement of the provisions against illegal immigration and unlawful presence is a highly important interest, but it is not the only goal of the federal immigration laws. The laws also take into account other uniquely national interests, including facilitating trade and commerce; welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they may reside; responding to humanitarian concerns at the
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global and individual levels; and otherwise ensuring that the treatment of aliens present in our nation does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad. B ecause immigration control and management is “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program,” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal citations omitted), Congress vested substantial discretion in the President and the responsible federal agencies to adjust the balance of these multiple interests as appropriate — both globally and in individual cases.
22. Congress has tasked the Executive Branch with overseeing significant portions of the United States’ immigration interests, and has provided each with specific powers to promote the various goals of the federal immigration scheme and to enforce the federal immigration authority under the INA. See 8 U.S.C. § 1103. T he Department of State is also empowered by the INA to a dminister aspects of the federal immigration laws, including visa programs. See, e.g., 8 U.S.C. § 1104. DHS may generally order an alien immediately removed where the alien either fails to present the appropriate documentation or commits fraud at the time of the alien’s inspection for admission into the country. See 8 U.S.C. § 1225(b)(1)(A)(i). DHS may also place an alien into removal proceedings, and
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may ultimately remove an alien who entered the United States unlawfully or violated the conditions of his admission. See 8 U.S.C. §§ 1182, 1225, 1227, 1228(b), 1229, 1229a, 1231. DOJ may order an alien removed for many reasons, including if the alien has stayed in the United States longer than permitted or has engaged in certain unlawful conduct. See 8 U.S.C. §§ 1227, 1229a. In addition to removal, the statute authorizes DHS and DOJ to employ civil and criminal sanctions against an alien for immigration violations, such as unlawful entry, failing to appropriately register with the federal government, and document fraud. See, e.g., 8 U.S.C. §§ 1325, 1306, 1324c. However, in the exercise of discretion, the administering agencies may decide not to apply a specific sanction and may, among other steps, permit the alien to depart the country voluntarily at his or her own expense, and may even decide not to pursue removal of the alien if deferred federal enforcement will help pursue some other goal of the immigration system. See 8 U.S.C. § 1229c.
23. Under federal law, both DHS and DOJ may, for humanitarian or other reasons, decline to exercise certain immigration sanctions or grant an otherwise unlawfully present or removable alien an immigration benefit — and potentially adjust that alien’s immigration status — if the alien meets certain conditions. See, e.g., 8 U .S.C. § 1158 (providing asylum eligibility for aliens who have a well-
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founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, if removed); 8 U.S.C. § 1254a (providing temporary protected status for otherwise eligible nationals of a foreign state that the Secretary of Homeland Security has specially designated as undergoing ongoing armed conflict, a natural disaster, or another extraordinary circumstance); 8 U.S.C. § 1227(a)(1)(E)(iii) (providing discretion to waive ground of deportability “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest” for aliens who are otherwise deportable for encouraging unlawful entry of an immediate family member); 8 U .S.C. § 122 9b (granting the Attorney General discretion to cancel removal for certain aliens). DHS also has the authority to pe rmit aliens, including those who would be inadmissible, to temporarily enter the United States for “urgent humanitarian reasons” or “significant public benefit.” 8 U.S.C. § 1 182(d)(5). D HS may also refrain from enforcement actions, in appropriate circumstances, against persons unlawfully present in the United States. See 8 C.F.R. § 274a.12(c)(14) (discussing deferred action).
24. In light of these statutory provisions, DHS and DOJ exercise discretion with respect to, among other things, whether to allow an unlawfully present alien to voluntarily depart, whether to place an alien into removal
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proceedings, whether to exact criminal sanctions on an alien who has committed an immigration violation, whether to allow an unlawfully present alien to remain in the country without physical detention during the removal process and whether to grant an alien humanitarian or some other form of relief. Decisions to forego removal or criminal penalties result not only from resource constraints, but also from affirmative policy considerations — including humanitarian and foreign policy interests — established by Congress and balanced by the executive branch.
25. Congress, which holds exclusive authority for establishing alien status categories and the consequences thereof and setting the conditions of aliens’ entry and continued presence, has affirmatively decided that unlawful presence — standing alone — should not subject an alien to criminal penalties, incarceration, or other punitive measures, although unlawful presence may subject the alien to the civil remedy of removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)&(C). However, unlawful presence becomes an element of a criminal offense when an alien is found in the United States after having been previously removed or after voluntarily departing from the United States. See 8 U.S.C. § 1326. F urther, unlawful entry into the United States is a criminal offense. See 8 U.S.C. § 1325. Congress specifically authorized federal immigration officers to patrol the United States border, as well as search vehicles and lands near the border, to prevent
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aliens from unlawfully entering the United States, and it empowered these officers to arrest an alien who is seen attempting unlawful entry at the border or whom the officer has reason to believe has unlawfully entered the country and is likely to escape before a warrant can be obtained. See 8 U.S.C. § 1357.
26. Congress has created a comprehensive alien registration system for monitoring the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201, 1301-1306; see also 8 C.F.R. Part 264 (regulations regarding “Registration and Fingerprinting of Aliens in the United States”). U nder this federal alien registration system, aliens seeking to enter the United States, either permanently or temporarily (other than diplomatic and official visitors), must be registered by the Department of State at the time of visa application. See 8 U.S.C. §§ 1201(b), 1301, 1302. A ny alien who is 14 years or older, who has not otherwise been registered and fingerprinted under the INA, and who remains in the United States for 30 days or longer, must apply to be registered and fingerprinted by DHS. See 8 U.S.C. § 1302(a). The INA provides that any alien who is required to apply for registration and willfully fails to do so may be fined and imprisoned not more than six months. See 8 U.S.C. § 1306(a); 18 U.S.C. § 3571. Aliens are required to report any change of address to DHS within ten days of such change. See 8 U.S.C. § 1305.
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27. As part of this federal alien registration system, Congress further specified the content of the registration forms, see 8 U.S.C. § 1304, what special circumstances may require deviation, see 8 U.S.C. § 130 3, and the confidential nature of registration information, see 8 U.S.C. § 1304. Aliens who are 18 years and older are required to carry in their possession their certificate of alien registration or alien registration receipt card. See 8 U.S.C. § 1304(e). Th e INA provides that any alien who fails to comply with this requirement may be fined and imprisoned not more than 30 days. See id.; 18 U.S.C. § 3571.
28. However, there are several circumstances in which an alien would not be provided with evidence of registration notwithstanding the federal government’s knowledge of the alien’s presence. Federal law provides a variety of humanitarian options for aliens — including unlawfully present aliens — who have been victimized or fear persecution or violence, including but not limited to asylum, special visas for victims of trafficking, and special visas for victims of violent crime. In order to qualify for such programs an alien needs to apply and satisfy the criteria that the program at issue requires. During the pendency of the application process, an alien may not have evidence of registration even though the federal government is aware of the alien’s presence, has decided against removing the alien, and has no interest in prosecuting the alien for a crime. These humanitarian
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programs demonstrate that one aspect of federal immigration policy is to assist and welcome such victims in th e United States, notwithstanding possible temporary unlawful presence. It would therefore violate federal policy to prosecute or detain these types of aliens on the basis of their immigration status — which is often known to the federal government and, for affirmative policy reasons, not used as the basis for a removal proceeding or criminal prosecution.
29. Congress has further exercised its authority over the entry and movement of aliens by criminalizing the smuggling of unlawful aliens into the country, as well as the facilitation of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. S pecifically, federal law prohibits the knowing attempt to bring an alien into the United States “at a place other than a designated port of entry or place other than as designated by the [Secretary of Homeland Security],” 8 U .S.C. § 1 324(a)(1)(A)(i), and imposes criminal penalties on a person who, “knowing or in reckless disregard” of the fact that an alien has unlawfully entered or remained in the United States, attempts to “transport or move” the alien within the United States “in furtherance of such violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). These criminal sanctions are directed at the smuggler and are not meant to serve as a criminal sanction for the unlawfully present alien or for incidental transportation. Congress chose not to penalize an unlawfully present
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alien’s mere movement within the country or across state lines unless other factors are present, nor do the federal immigration laws penalize the provision of transportation services in such situations.
30. Federal law also imposes criminal penalties on a person who “conceals, harbors, or shields from detection” an alien in “knowing or in reckless disregard” of the fact that the alien has unlawfully entered or remained in the United States. 8 U.S.C. § 13 24(a)(1)(A)(iii). S imilarly, it i s unlawful to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that” such entry or residence will be in violation of the law. 8 U. S.C. § 132 4(a)(1)(A)(iv). F ederal law does not, as a general matter, restrict the movement of aliens — whether lawfully or unlawfully present — between different states. Federal law additionally exempts from certain of these prohibitions religious organizations which “encourage, invite, call, allow, or enable” an alien to volunteer as a minister or missionary, and which provide the alien with basic living expenses. 8 U.S.C. § 1324(a)(1)(C). Congress has further exercised its authority over immigration and the status of aliens by regulating the hiring of aliens not authorized to work in the United States. 8 U.S.C. § 13 24a(a)(1). S pecifically, federal law makes it unlawful “to hire, or to recruit or refer for a fee” an alien, knowing that the alien is not authorized to work
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in the United States. Id. Federal law also makes it “unlawful for a person or other entity, after hiring an alien for employment,” 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.” 8 U.S.C. § 1324a(a)(2). In addition, Congress established civil penalties for immigration-related document fraud, such as the presentation of fraudulent documents to demonstrate work eligibility. 8 U .S.C. § 1324c. I n enacting penalties on employers of unlawful aliens, as well as on unlawful aliens who engage in document fraud, Congress chose not to impose criminal penalties on aliens solely for seeking or obtaining employment in the United States without authorization and in fact decided that criminal sanctions for seeking or obtaining employment would run counter to th e purposes of the immigration system. A lthough unlawfully present aliens may be subject to removal, no criminal penalty attaches simply because an alien has solicited or performed work without proper authorization.
31. DHS is primarily charged with administering and enforcing the INA and other laws relating to immigration, which it accomplishes mainly through its components, U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection (“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”). See 8 U.S.C. § 1103. DHS also receives state and local cooperation in
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its enforcement efforts. See, e.g., 8 U.S.C. § 1357(g). I n addition, Congress prescribed by statute a number of ways in which states may assist the federal government in its enforcement of the immigration laws. See, e.g., 8 U.S.C. § 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration enforcement authority when an “actual or imminent mass influx of aliens . . . presents urgent circumstances requiring an immediate Federal response”); 8 U.S.C. § 1357(g)(1)–(9) (authorizing DHS to enter into agreements to provide appropriately trained and supervised state and local officers with the authority to perform functions related to the investigation, apprehension, and detention of aliens); 8 U.S.C. § 1252c (authorizing state and local law enforcement to arrest aliens who are unlawfully present in the United States and were previously removed after being convicted of a felony in the United States).
32. Through a variety of programs, DHS works cooperatively with states and localities to accomplish its mission to enforce the federal immigration laws. ICE administers the Law Enforcement Support Center (“LESC”), operational 24 hours a day, 7 d ays a week, which serves as a national enforcement operations center and — among other responsibilities — promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.
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Further, ICE and CBP officers respond to r equests from state and local law enforcement officers on a variety of immigration matters, including assisting with translation, determining alienage, and evaluating immigration documentation.
33. But the opportunity that federal law provides for cooperation by state and local officials does not mean that states can enact their own immigration policies to rival the national immigration policy; the formulation of immigration policy and balancing of immigration enforcement priorities is a matter reserved for the federal government. Such regulations do not fall within the state’s traditional police powers and remain the exclusive province of the federal government.
Alabama’s H.B. 56 34. On June 9, 2011, Governor Bentley signed into law H.B. 56, which contains several provisions designed to work together to discourage and deter the entry into and presence of unlawful aliens in Alabama through a comprehensive statute designed to address all aspects of these aliens’ lives. H.B. 56 includes various provisions, for example, that transform state and local police into immigration enforcement officers outside of the federal verification scheme: in the context of any lawful stop where there is “reasonable suspicion” that the individual is unlawfully present in the United States (Section 12); and in every situation where an alien is driving without a license (Section 18). These verification
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provisions are reinforced through the creation of a private right of action, which subjects state and local authorities to civil penalties of up $5,000 per day if a court concludes that “any official or agency . . . [has] adopt[ed] or implement[ed] a policy” that “limits or restricts the enforcement of federal immigration laws . . . to less than the full extent permitted by federal law.” (Section 6). H .B. 56 also creates or amends several state law criminal provisions, which impose criminal penalties or other punitive sanctions for unlawful status: thus, H.B. 56 criminalizes an alien’s failure to federally register or carry his federal registration documents – effectively an effort to criminalize unlawful presence (Section 10). The statute also creates a criminal sanction for those who provide housing to unlawfully present aliens or encourage an unlawfully present alien to come to A labama (Section 13) H.B. 56 a lso criminalizes an unlawfully present alien’s attempt to seek work (Section 11(a)); and subjects employers who employ or retain unlawfully present aliens to civil penalties and private lawsuits (Sections 16 & 17).
35. H.B. 56 second-guesses federal immigration policies and attempts both to re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry into and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest. Alabama’s adoption of a
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policy focused exclusively on punishing unlawful presence disrupts the national enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against aliens who pose a threat to public safety or national security. Thus, because H.B. 56 attempts to set state-specific immigration policy, it legislates in an area constitutionally reserved to the federal government, conflicts with the federal immigration laws and federal immigration policy, and impedes the accomplishment and execution of the full purposes and objectives of Congress, and is therefore preempted.
36. H.B. 56 implements a novel and comprehensive immigration regime that, among other things, creates a series of state sanctions triggered by an alien’s unlawful presence. The sanctions range from criminalizing mere presence (Section 10), employment (Sections 11, 16, and 17), and housing and transportation (Section 13) of aliens, to chilling an alien’s ability to e nter into and enforce agreements central to daily life (Sections 27 a nd 30) or even to go to school (Section 28). H.B. 56 f urther expands the opportunities for Alabama police to detain aliens under these various crimes by enforcing an immigration status verification system (Sections 12 and 18), backed up by a private right of action. By pursuing criminal enforcement and ignoring other objectives embodied in the
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federal immigration system (including the federal government’s prioritization of the removal of dangerous aliens), H.B. 56 conflicts with and otherwise stands as an obstacle to Congress’s demand for sufficient flexibility in the enforcement of federal immigration law to accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations — a balance implemented through the supervision and policies of the President and various executive officers with the discretion to enforce the federal immigration laws. See 8 U.S.C. § 1101 et seq. Enforcement of H.B. 56 would also effectively create state crimes and sanctions for unlawful presence despite the exclusive federal control over the consequences for unlawful presence and Congress’s considered judgment to establish civil removal — and not criminalization or other punitive sanction — as the exclusive consequence of unlawful status. Alabama’s punitive scheme would further undermine federal foreign policy, in that the federal government has — as a matter of mutual understandings — established that unlawfully present foreign nationals (who have not committed some other violation of law) should be removed without criminal sanction or other punitive measures and that the same treatment should be afforded to American nationals who are unlawfully present in other countries. H.B. 56 would thus interfere with federal policy and prerogatives in the enforcement of the
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U.S. immigration laws, and with the administration and enforcement of U.S. education laws.
37. Numerous other states have passed or are contemplating passing legislation similar to H.B. 56. T he development and implementation of various conflicting state immigration enforcement policies would result in further and significant damage to (1) U.S. foreign relations, (2) the United States’ ability to fairly and consistently enforce the federal immigration laws and provide immigration-related humanitarian relief, and (3) the United States’ ability to exercise the discretion vested in the executive branch under the INA, and would result in the non-uniform treatment of aliens across the United States.
Section 10 of H.B. 56 38. Section 10 of H.B. 56 makes it a state criminal offense — to be applied “[i]n addition to any violation of federal law” — for “an alien who is unlawfully present in the United States” to violate 8 U.S.C. § 1304(e), which requires every alien to “ 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,” or 8 U.S.C. § 1306(a), which penalizes the willful failure to apply for registration when required. Section 10 of H.B. 56 provides a state penalty of up to $100 and up to thirty days imprisonment.
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39. Section 10 of H.B. 56 is preempted by the comprehensive federal alien registration scheme — including 8 U.S.C. §§ 1201, 1301-1306, and 8 C.F.R. Part 264 — which provides a “standard for alien registration in a single integrated and all-embracing system.” Hines v. Davidowitz, 312 U.S. 52, 73 (1941). The federal scheme provides an extensive array of civil sanctions for aliens unlawfully present in the United States, and reflects the affirmative choice of Congress not to have states criminalize unlawful presence. Section 10 of H.B. 56 conflicts with and otherwise stands as an obstacle to the full purposes and objectives of Congress in creating a uniform and singular federal alien registration scheme.
40. Section 10 — the enforcement of which H.B. 56 effectively mandates through operation of Section 6’s maximal enforcement provision — demands the arrest and prosecution of all aliens who do not have certain enumerated registration documents. H.B. 56 thus seeks to criminalize the presence of aliens, including those whose presence has been accepted by the federal government (at least during the pendency of their status review) and thereby conflicts with and otherwise stands as an obstacle to the full purposes and objectives of Congress in providing certain forms of humanitarian relief.
41. Additionally, Section 10 of H.B. 56 is tantamount to a regulation of immigration, in that it seeks to control the conditions of an alien’s entry into and
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presence in the United States without serving any traditional state police interest. Accordingly, Section 10 of H.B. 56 is preempted by the federal government’s recognized exclusive authority over the regulation of immigration.
Section 11(a) of H.B. 56 42. Alabama H.B. 56 § 11(a) criminalizes any attempt by “an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.” 43. Alabama’s prohibition on unauthorized aliens seeking or performing work is preempted by the comprehensive federal scheme of sanctions related to the employment of unauthorized aliens — including 8 U.S.C. §§ 1324a-1324c. The text, structure, history, and purpose of this scheme reflect an affirmative decision by Congress to regulate the employment of unlawful aliens by imposing sanctions on the employer without imposing criminal sanctions on the unlawful alien employee. Alabama’s criminal sanction on unauthorized aliens stands as an obstacle to the full purposes and objectives of Congress’s considered approach to regulating employment practices concerning unauthorized aliens, and it conflicts with Congress’s decision not to criminalize such conduct for humanitarian and other reasons. Enforcement of this new state crime additionally interferes with the comprehensive system of civil consequences for aliens unlawfully present in the
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United States by attaching criminal sanctions on t he conditions of unlawful presence, despite an affirmative choice by Congress not to criminalize unlawful presence.
Sections 12(a) & 18 of H.B. 56 44. Section 12(a) of H.B. 56 mandates that for any lawful “stop, detention or arrest made by a state, county, or municipal law enforcement official” “in the enforcement of any state or local law or ordinance,” including civil ordinances, where reasonable suspicion exists that an individual is an alien and is “unlawfully present” in the United States, the officer must make a reasonable attempt to determine the individual’s immigration status when practicable, and to verify it with the federal government pursuant to 8 U.S.C. § 1 373(c), unless such verification efforts may hinder or obstruct an investigation. 45. Section 18 amends Alabama’s requirement that motor-vehicle drivers carry their licenses with them. If a person is arrested for driving without a license, and the law-enforcement officer cannot confirm that the person has a valid driver’s license, then the officer must first “transport the person to the nearest or most accessible magistrate.” Ala. H.B. 56 § 18(b). Next, “[a] reasonable effort shall be made to determine the citizenship of the person and if an alien, whether the alien is lawfully present in the United States by verification with the federal government
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pursuant to 8 U.S.C. § 1373(c).” Ala. H.B. 56 § 18(c). A verification inquiry must be made within 48 hours, and if the person is unlawfully present, then he “shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities.” Ala. H.B. 56 § 18(d). Section 18 places no limit on how long a person may be detained if federal authorities’ response to the verification request is delayed.
46. The mandatory nature of Sections 12 and 18, in c ombination with Section 6’s full enforcement provision, directs officers to seek maximum scrutiny of a person’s immigration status, which will necessarily result in numerous inspections and detentions of individuals who are lawfully present in the United States.
47. Regarding Section 12, verification is mandated for all cases where an Alabama police officer has a “reasonable suspicion” that a person in a lawful stop is unlawfully present and it is practicable to do so. But a “reasonable suspicion” will often rely on f actors which equally could be exhibited by lawfully present aliens or United States citizens. Thus, the Alabama verification scheme will often result in the verification requirement being applied — wholly unnecessarily — to lawfully present aliens and United States citizens. Section 12 of H.B. 56 will therefore impose burdens on lawful immigrants and U.S. citizens alike who are
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stopped, questioned, or detained and cannot readily prove their immigration or citizenship status, including those individuals who may not have an accepted form of identification because, for example, they are legal minors without a driver’s license. Alabama’s alien inspection scheme therefore will subject lawful aliens to the “possibility of inquisitorial practices and police surveillance,” Hines v. Davidowitz, 312 U.S. 52, 74 (1941) — a form of treatment which Congress has plainly guarded against in crafting a balanced, federally-directed immigration enforcement scheme.
48. Section 18 poses the same risk of unwarranted harassment. Section 18 requires law enforcement to verify with DHS the immigration status of every alien who is unable to produce a valid driver’s license, regardless of whether the alien has documentation of lawful status. And because Section 18 does not limit the amount of time an alien might be detained pending verification, an alien who cannot produce a valid driver’s license will be at risk of extended detention even when, in many cases the initial basis for his stop (such as speeding or having a broken tail light), would not have led to detention at all. Thus, on its face, Section 18 appears to place a burden on lawfully present aliens that is distinct from the burden it places on U.S. citizens engaged in the same conduct. Further, Section 18 requires law enforcement to verify with DHS the immigration status of every alien
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simply as a result of the alien’s inability to produce a valid driver’s license, regardless of whether the alien has documentation of lawful status.
49. Alabama’s state alien inspection scheme and attendant federal verification requirements will impermissibly impair and burden the federal resources and activities of DHS. The mandate in Sections 12 and 18 for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS — many of which will result from violations of non-criminal ordinances — and will thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS resources away from its p olicy priorities. A s such, the federal government will be required to divert resources from its own, carefully considered enforcement primary priorities — aliens who pose a threat to national security and public safety — to address the work that Alabama will now create for it — verification of individuals who are caught driving without a license or jaywalking. S uch interference with federal priorities, driven by state-imposed burdens on federal resources, constitutes a violation of the Supremacy Clause. Sections 12 and 18 therefore conflict with and otherwise stand as an obstacle to the full purposes and objectives of Congress, and their enforcement would further conflict with the enforcement prerogatives and
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priorities of the federal government. Moreover, Sections 12 and 18 do not promote any legitimate state interest.
Section 13 of H.B. 56 50. Section 13(a)(1) of H.B. 56 criminalizes any act, attempt, or conspiracy to “[c]onceal, harbor, or shield . . . an alien from detection in any place in this state . . . if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law.” It is also a crime to “[e]ncourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in the United States is or will be in violation of federal law.” Ala. H.B. 56 §§ 13(a)(2). Section 13(a)(3) criminalizes the transportation, attempted transportation, or conspiracy to transport “an alien in furtherance of the unlawful presence of the alien in the United States,” provided that the person knows or recklessly disregards that the alien is unlawfully present. Section 13(a)(4) of H.B. 56. makes it a crime to “[h]arbor an alien unlawfully present in the United States by entering into a rental agreement, as defined by Section 35-9A1413 of the Code of Alabama 1975, with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully
3 Section 35-9A-141 defines “rental agreement” as any agreement “embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.”
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present in the United States.” A violation of Section 13 will generally be a Class A misdemeanor. Ala. H.B. 56 § 13(b).
51. Alabama’s anti-harboring provisions are preempted by federal law, including 8 U.S.C. § 1324. Congress has explicitly regulated the smuggling, transportation, harboring, and concealment of aliens via § 1324, but that scheme does not impose, or even contemplate, any conditions restricting unlawfully present aliens’ access to housing, much less the extensive restrictions imposed by H.B. 56. If anything, the INA assumes that an unlawfully present alien will generally have a reliable address. See 8 U.S.C. § 1229(a)(1)(F)(i) (explaining that an alien noticed to appear for a removal proceeding must immediately provide the Attorney General “with a written record of an address . . . at which the alien may be contacted respecting [the] proceeding.”). And, more broadly, the INA contemplates that unlawfully present aliens will be subject to an orderly, civil removal process initiated by the federal government. This removal process would be undermined by a state law making it a criminal offense to rent housing to these aliens because the law would deny unlawfully present aliens the ability to reside in Alabama.
52. Alabama’s anti-harboring prohibitions constitute a preempted regulation of immigration because they attempt to establish the consequences of
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unlawful presence and to criminalize the process of alien entry and residence. Additionally, these provisions will result in special, impermissible burdens for lawfully present aliens, who will predictably be impaired from finding housing due to the strictures of Section 13(a)(4). Section 13(a)(4) thus conflicts with and otherwise stands as an obstacle to the full purposes and objectives of Congress in creating a comprehensive system of penalties for aliens who are unlawfully present in the United States, which has never included a systematic denial of housing.
53. Because the purpose of this law is to deter and prevent the movement of certain aliens into Alabama, the law also restricts interstate commerce. Enforcement and operation of Section 13 would therefore conflict and interfere with the federal government’s management of interstate commerce, and would thereby violate Article I, Section 8 of the United States Constitution.
Sections 16 & 17 of H.B. 56 54. Section 16(a) of Ala. H.B. 56 provides: No wage, compensation, whether in money or in kind or in services, or remuneration of any kind for the performance of services paid to an unauthorized alien shall be allowed as a deductible business expense for any state income or business tax purposes in this state. T his subsection shall apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration. And Section 16(b) provides:
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Any business entity or employee who knowingly fails to comply with the requirements of this section shall be liable for a penalty equal to 10 times the business expense deduction claimed in violation of subsection (a). T he penalty provided in this subsection shall be payable to the Alabama Department of Revenue.
55. Section 17(a) provides:
It shall be a discriminatory practice for a business entity or employer to fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) or discharge an employee working in Alabama who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien.
And Section 17(b) provides that “[a] violation of subsection (a) may be the basis of
a civil action in the state courts of this state.” A prevailing party may recover both
compensatory relief and reasonable attorney’s fees.
56. In the Immigration Reform and Control Act of 1986 (“IRCA”),
Congress has established a statutory scheme that establishes, among other things,
employer-directed sanctions for unauthorized employment. IRCA states in
pertinent part that:
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
8 U.S.C. § 1324a(h)(2).
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57. By Sections 16 and 17, Alabama seeks to impose sanctions on
employers or potential employers of unlawfully present aliens. B ecause these
sanctions do not fall within IRCA’s licensing savings clause, they are expressly
preempted.
Sections 27 & 30 of H.B. 56
58. Subject to certain limited exceptions, Section 27(a) states that:
No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.
59. Section 30 makes it a new felony for an unlawfully present alien, or
anyone acting on behalf of an unlawfully present alien, to “enter into or attempt to
enter into a business transaction with the state or a political subdivision of the
state.” Al a. H.B. 56 § 30 (b). Section 30(a) broadly defines the term “business
transaction” to include:
any transaction between a person and the state or a political subdivision of the state, including, but not limited to, a person applying for or renewing a motor vehicle license plate, applying for or renewing a driver’s license or nondriver identification card, or applying for or renewing a business license. “Business transaction” does not include applying for a marriage license.
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Any person who wants to e nter into such a “business transaction” must provide proof of lawful residence. Ala. H.B. 56 § 30 (c). By its own terms, this provision makes it a felony to engage in any transaction with a state instrumentality. These provisions impose different and more punitive restrictions on aliens than Congress intended. Section 27 chills the ability of unlawfully present aliens (as well as lawfully present aliens and some United States citizens) to make and enforce otherwise valid contracts. By interfering with this right, Section 27 is exposing unlawfully present aliens to widespread commercial abuse — despite Congress’s specific effort to regulate immigration so as to protect foreign nationals (whether lawfully or unlawfully present) from such abuse. See, e.g., 8 U.S.C. § 1324a(g)(1) (prohibiting employers from forcing employees to post bonds indemnifying the employers against IRCA liability). Section 30 transforms otherwise lawful conduct (engaging or attempting to engage with state or local governments in a wide swath of circumstances) into criminal conduct only by virtue of who is performing it. Under Section 30, unlawfully present aliens would commit felonies by engaging in transactions essential to Alabama residence, such as paying for county water service or remitting municipal property taxes. This differential treatment conflicts with Congress’s determination that unlawful presence should result in civil rather than criminal sanctions, and United States foreign policy,
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which seeks similar treatment for American nationals who travel abroad. Because the power to decide the terms and conditions applicable to aliens’ stay is within the exclusive province of the federal government, Sections 27 and 30 are preempted.
Section 28 of H.B. 56 60. Section 28 of H.B. 56 requires all public elementary and secondary schools to determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program. Ala. H.B. 56 § 28(a)(1). To make this determination, the school “shall rely upon presentation of the student’s original birth certificate, or a certified copy thereof.” Id., § 28(a)(2). 61. Section 28 further provides that: [i]f, upon review of the student’s birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States, or where such certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the student’s enrollment of the actual citizenship or immigration status of the student under federal law. Ala. H.B. 56 § 28(a)(3). The Act further specifies that, for purposes of § 28(a)(3), notification shall consist of both of:
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a. The presentation for inspection, to a school official designated for such purpose by the school district in which the child is enrolled, of official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student, or alternatively by submission of a notarized copy of such documentation to such official; and b. Attestation by the parent, guardian, or legal custodian, under penalty of perjury, that the document states the true identity of the child. Ala. H.B. 56 § 28 (a)(4). If the student or his or her parent, guardian, or legal representative possesses no such documentation but nevertheless maintains that the student is either a United States citizen or an alien lawfully present in the United States, the parent, guardian, or legal representative of the student may sign a declaration so stating, under penalty of perjury. Id. 62. “If no such documentation or declaration is presented, the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.” Ala. H.B. 56 § 28(a)(5). The Act provides that “[v]erification of lawful presence in the United States shall not be required for . . . primary or secondary school education, and state or local public benefits that are listed in 8 U .S.C. Section 1621(b).” Id., § 7(e)(1).
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63. The Act requires each school district to “collect and compile data as required by this section,” and to “submit to the State Board of Education an annual report listing all data obtained pursuant to this section.” Id., § 28(a)(5)(b)-(c). In turn, the Alabama Board of Education must use this information to prepare an annual report detailing the numbers of U.S. citizens, and lawfully present and unlawfully present aliens enrolled in p ublic schools, and analyze the impact on education and the costs to the state imposed by unlawfully present alien-students.4 Ala. H.B. 56 § 28 (d). Aside from a general prohibition on public disclosure, see Ala. H.B. 56 § 28(e), Section 28 does permit any interference with communications between governmental officials related to immigration enforcement. See also 8 U.S.C. § 1373(b) (“no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from . . . exchanging . . . with any other Federal, State, or local government entity” “information regarding the immigration status, lawful or unlawful, of any individual”).
64. In light of the collection and reporting requirements that Section 28 imposes, many classes of parents may choose to keep their children from attending school. Most obviously, parents who know their children are unlawfully present
4 This report would not specify the names or otherwise identify those individuals presumed to be unlawful aliens, as the annual report would provide data “aggregated by public school.” Ala. H.B. 56 § 28(a)(5)(d)(2).
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may choose to keep their children home, rather than have their status reported to school authorities. Furthermore, some parents or guardians may not be able to provide the documentation Section 28 requires or fear the consequences of sending their children to school under a presumption of unlawful presence. For example, some parents may not have any official documentation of their child’s lawful presence. And, given the myriad designations and rules governing federal immigration status, some of those parents may not b e in a position to declare, under penalty of perjury, their children’s immigration status. Thus, such parents or guardians may choose to withdraw their children from school to avoid having to choose between possibly perjuring themselves, with all the consequences that might entail (or that the parent fears such perjury might entail for themselves or their children, or both). Because Section 28 will lead to the harassment of lawfully present and unlawfully present aliens, it is preempted.
65. Alabama, by its mandatory data collection, classification, and reporting requirements, has impermissibly established a registration scheme for aliens — one that has no counterpart under federal law and was not contemplated by Congress. Without any precondition, Section 28 explicitly commands the parents of children who are born outside the United States to produce documentation and submit a declaration (under penalty of perjury) verifying the
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citizenship of their children. This state-addendum to t he federal system for tracking and verifying alien status demands precisely the type of “indiscriminate and repeated interception and interrogation by public officials”— here, the officials of the Alabama school system — that the Supreme Court described as outside of the state’s police powers, as a danger to federal foreign relations, and as preempted by federal law. Hines, 312 U.S. at 65-66.
66. Furthermore, Section 28’s state-level verification immigration scheme will be error-prone. Many parents of lawfully present children may not be in a position to provide the attestations and declarations Section 28 contemplates because of language issues, a lack of familiarity with the legal system, or fear of disclosing their own immigration status. Other parents, unsure of their children’s immigration status, may not be able to provide a sworn statement. Thus, Section 28’s reliance on parental reporting means that many lawfully present children will be reported as unlawfully present.
67. By reason of the foregoing, defendants’ actions have caused and will continue to cause substantial and irreparable harm to the United States for which plaintiff has no adequate remedy except by this action.
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FIRST CAUSE OF ACTION – VIOLATION OF THE SUPREMACY CLAUSE
68. Plaintiff incorporates paragraphs 1 through 67 of the Complaint as if fully stated herein.
69. Sections 10, 11(a), 12(a), 13, 27, 28, and 30 of H.B. 56, taken in whole and in part, represent an impermissible effort by Alabama to establish its own immigration policy and to directly regulate the immigration status of aliens. In particular, these sections conflict with federal law and foreign policy, disregard federal policies, interfere with federal enforcement priorities in areas committed to the discretion of plaintiff United States, and otherwise impede the accomplishment and execution of the full purposes and objectives of federal law and foreign policy.
70. Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 of H.B. 56 violate the Supremacy Clause, and are invalid. SECOND CAUSE OF ACTION – PREEMPTION UNDER FEDERAL LAW
71. Plaintiff incorporates paragraphs 1 through 70 of the Complaint as if fully stated herein.
72. Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 of H.B. 56 are preempted by federal law, including 8 U.S.C. § 1101 et seq.
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THIRD CAUSE OF ACTION – VIOLATION OF THE COMMERCE CLAUSE
73. Plaintiff incorporates paragraphs 1 through 72 of the Complaint as if fully stated herein.
74. Section 13 of H.B. 56 restricts the interstate movement of aliens in a manner that is prohibited by Article One, Section Eight of the Constitution.
75. Section 13 of H.B. 56 violates the Commerce Clause, and is therefore invalid.
PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests the following relief: 1. A declaratory judgment stating that Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 of H.B. 56 are invalid, null, and void; 2. A preliminary and a permanent injunction against the State of Alabama, and its officers, agents, and employees, prohibiting the enforcement of Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 of H.B. 56; 3. That this Court award the United States its costs in this action; and 4. That this Court award any other relief it deems just and proper.
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 Case 2:11-cv-02746-SLB Document 2 Filed 08/01/11 Page 1 of 85
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

FILED
2011 Aug-01 PM 03:38 U.S. DISTRICT COURT
N.D. OF ALABAMA

____________________________________

UNITED STATES OF AMERICA,

Plaintiff,

v.

)

STATE OF ALABAMA & GOVERNOR ROBERT J. BENTLEY,

Defendants.

)

____________________________________

) ) ) ) )
Case No. 11-J-2746-S ) ) ) )
) )

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

C. VAR
United
20 Washington, Telephone: Fax: Em

TONY WEST Assistant Attorney General JOYCE WHITE VANCE United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch
LEE REEVES, II U CHILAKAMARRI
JOSHUA WILKENFELD Trial Attorneys
States Department of Justice Civil Division, Federal Programs Branch
Massachusetts Avenue, N.W. D.C. 20530
(202) 514-4805 (202) 616-8470 ail: lee.reeves@usdoj.gov

Case 2:11-cv-02746-SLB Document 2 Filed 08/01/11 Page 2 of 85
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
I. FEDERAL STATUTORY & REGULATORY FRAMEWORK GOVERNING IMMIGRATION .............................................................................4
II. SUMMARY OF KEY PROVISIONS OF H.B. 56 .................................................7
LEGAL STANDARD....................................................................................................................13
ARGUMENT .................................................................................................................................13
I. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS.............13
A. Section 10 of H.B. 56 – Alabama’s “Complete or Carry an Alien Registration Document” Provision – is Preempted by Federal Law .........17
1. Operation of Alabama’s Alien Registration Scheme .....................17
2. Section 10 Interferes With the Comprehensive Federal Alien Registration Scheme ............................................................17
3. Section 10 is Preempted Because it Essentially Seeks to Criminalize Unlawful Presence and Will Result in the Harassment of Aliens .....................................................................20
B. Section 11(a) of H.B. 56 – Alabama’s New Criminal Sanction Against Unauthorized Aliens Who Solicit or Perform Work in a Public or Private Place – is Preempted by the Federal Employer Sanctions Scheme ......................................................................................22
1. Congress Has Established the Exclusive Sanctions Regime With Respect to Alien Employment ..............................................22
2. By Criminalizing Work Performed by Unlawfully Present Aliens, Section 11 Impermissibly Conflicts With IRCA’s Objectives ......................................................................................25
C. Section 16 & 17 Of H.B. 56 – Alabama’s New Penalty System Against Employers Who Hire Unauthorized Aliens – is Preempted by the Federal Employer Sanctions Scheme..............................................25
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1. Section 16 Violates IRCA’s Prohibition on Employer Sanctions ........................................................................................26
2. The Employer Tax Deduction Provision is Not Severable From the Penalty Provision............................................................28
3. Section 17 Violates IRCA’s Prohibition on Employer Sanctions ........................................................................................30
D. Alabama’s Prohibitions on the Harboring and Transporting of Aliens, and on Encouraging Their Travel into the State, are Preempted by Federal Law ........................................................................31
E. Alabama’s Housing Restriction – Section 13(a)(4) of H.B. 56 – is Preempted by Federal Law ........................................................................35
F. Alabama’s Restrictions on Private Contracts and Transactions with the Government – Sections 27 and 30 of H.B. 56 – Are Preempted by Federal Law ........................................................................38
1. Section 30 Conflicts with Federal Policies Regarding the Treatment of Aliens ......................................................................38
2. Section 27 Conflicts with Federal Policies Regarding the Treatment of Aliens .......................................................................40
G. Section 28 of H.B. 56 – Alabama’s Education Registration Scheme – is Preempted by Federal Law.................................................................41
1. Alabama’s Educational Registration Scheme Conflicts with Federal Policy, and will Impermissibly Burden Lawfully Present Aliens ...............................................................................41
2. Alabama’s Mandatory Alien Registration Scheme for School Children is Preempted........................................................46
H. Sections 12 and 18 of H.B. 56 – Alabama’s Mandatory Immigration Status Verification Scheme – are Preempted by Federal Law ...............................................................................................47
1. Alabama’s Mandatory Verification Scheme Represents a Non-Cooperative Method of Participating in Federal Immigration Enforcement .............................................................49
a. A State’s Systematic and Mandatory Verification of Immigration Status Must be Conducted in
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“Cooperation With” the Secretary .....................................51 b. Alabama’s Mandatory Verification Scheme
Inherently Interferes with Federal Discretion and is Not Cooperative .................................................................55 2. Alabama’s Verification Scheme Will Impermissibly Burden Federal Resources .............................................................58 3. Alabama’s Verification Scheme Will Impermissibly Result in the Harassment and Interrogation of Lawfully Present Aliens ...........................................................................................61 II. THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION .......................................................65 III. A BALANCING OF THE HARDSHIPS FAVORS THE UNITED STATES AND DEMONSTRATES THAT THE PUBLIC INTEREST WOULD NOT BE DISSERVED BY GRANTING INJUNCTIVE RELIEF .................................................................................................................72 CONCLUSION…………………………………………………………………………………..74
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TABLE OF AUTHORITIES
CASES
Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003).................................................................................................... 20, 21, 70
Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812 (7th Cir. 2003) .................................................................................................. 15
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989).......................................................................................................... 25, 37
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001).......................................................................................................... 20, 59
Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983) .............................................................................................. 66
Chae v. SLM Corp., 593 F.3d 936 (9th Cir. 2010) .................................................................................................. 60
Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010) ......................................................................................... passim
Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) ...................................................................................................... 26, 33
Chism v. Jefferson County, 954 So.2d 1058 (Ala. 2006) .................................................................................................... 29
Chy Lung v. Freeman, 92 U.S. 275 (1875)............................................................................................................ 14, 22
Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).............................................................................................. 14, 19, 22, 25
Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987) ................................................................................................ 66
De Canas v. Bica, 424 U.S. 351 (1976)......................................................................................................... passim
Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981) .................................................................................................. 66
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Edwards v. California, 314 U.S. 160 (1941)................................................................................................................ 35
Felder v. Casey, 487 U.S. 131 (1988)................................................................................................................ 25
Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004) ................................................................................................ 15
Fiallo v. Bell, 430 U.S. 787 (1977)................................................................................................................ 32
Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)................................................................................................................ 13
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)................................................................................................................ 14
Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88 (1992).................................................................................................................. 13
Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006)....................................................................... 33, 36, 59
Georgia Latino Alliance for Human Rights v. Deal, Case No. 11-1804 (N.D. Ga. 2011) ................................................................................. passim
Graham v. Richardson, 403 U.S. 365 (1971)................................................................................................................ 61
Henderson v. Mayor of the City of New York, 92 U.S. 259 (1876).................................................................................................................. 61
Hines v. Davidowitz, 312 U.S. 52 (1941)........................................................................................................... passim
Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002)................................................................................................................ 23
King v. Campbell, 988 So.2d 969 (Ala. 2007) ...................................................................................................... 28
League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal 1995) .......................................................................................... 15
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Leavitt v. Jane L., 518 U.S. 137 (1996)................................................................................................................ 28
Lem Moon Sing v. United States, 158 U.S. 538 (1895)................................................................................................................ 32
Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010)........................................................................................ 33, 36, 37
Mathews v. Diaz, 426 U.S. 67 (1976).................................................................................................................. 14
Meyer v. Nebraska, 262 U.S. 390 (1923)................................................................................................................ 43
Morales v. Trans World Airlines, 504 U.S. 374 (1992)................................................................................................................ 65
Mureau v. Oppenheim, 663 F.2d 1300 (5th Cir. 1981) ................................................................................................ 41
New Jersey v. T.L.O., 469 U.S. 325 (1985)................................................................................................................ 62
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989)................................................................................................................ 66
New York v. United States, 505 U.S. 156 (1992).................................................................................................... 16, 47, 61
Nken v. Holder, 129 S. Ct. 1749 (2009) ............................................................................................................ 71
North Dakota v. United States, 495 U.S. 423 (1990) [See also Arizona] ................................................................................. 59
Northeastern Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283 (11th Cir. 1990) .............................................................................................. 66
Osmose, Inc. v. Viance, LLC, 612 F.3d 1298 (11th Cir. 2010) ........................................................................................ 13, 64
Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190 (1983)................................................................................................................ 13
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Plyler v. Doe, 457 U.S. 202 (1982)......................................................................................................... passim
Puerto Rico Dept. of Consumer Affairs, 485 U.S. 495 (1988)................................................................................................................ 25
Quinchia v. U.S. Att'y Gen., 552 F.3d 1255 (11th Cir. 2008) .............................................................................................. 21
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)................................................................................................................ 52
Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991) .................................................................................................. 66
Saenz v. Roe, 526 U.S. 489 (1999)................................................................................................................ 43
Safford Unified School Dist. No. 1 v. Redding, 129 S.Ct. 2633 (2009) ............................................................................................................. 62
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1261 (11th Cir. 2005) ........................................................................................ 29, 71
Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010) .................................................................................. 13, 71, 72
Shaughnessy v. United States ex rel. Mezie, 345 U.S. 206 (1953)................................................................................................................ 14
Takahashi v. Fish and Game Comm'n, 334 U.S. 410 (1948)................................................................................................................ 15
Toll v. Moreno, 458 U.S. 1 (1982).............................................................................................................. 14, 41
Toll v. Moreno, 458 U.S. 1l (1982)....................................................................................................... 14, 36, 41
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)................................................................................................................ 52
United States v. Zheng, 306 F.3d 1080 (11th Cir. 2002) .............................................................................................. 23
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United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) ........................................................................................... passim
United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) ...................................................................................... 59
United States v. Locke, 529 U.S. 89 (2000).................................................................................................................. 38
United States v. Sanchez-Vargas, 878 F.2d 1163 (9th Cir. 1989) ("§ 1324(a)(1) ................................................................... 33-34
Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835 (N.D. Tex. 2010) ............................................................................. 36, 37
Wisconsin Department of Industry, Labor and Human Relations v. Gould, Inc., 475 U.S. 282 (1986)................................................................................................................ 19 STATUTES
8 C.F.R. § 214.1(e)........................................................................................................................ 24 8 C.F.R. Part 264 ...................................................................................................................... 5, 18 8 C.F.R. § 274a.12(c)(14) ......................................................................................................... 7, 51 8 C.F.R. § 274a.10 ........................................................................................................................ 24 H.R. 4437, 109th Cong. § 203 (2005) .......................................................................................... 21 H.R. Rep. No. 99-682(I) at 46 .................................................................................................. 5, 24 H.R. Rep. 111-157, at 8 (2009)..................................................................................................... 52 S. 2454, 109th Cong. §§ 206, 275 (2006) ..................................................................................... 21 Pub. L. No. 110-329, Title II, 122 Stat. 3574, 3659 (2008).......................................................... 52 Pub. L. No. 111-83, Title II, 123 Stat. 2142, 2149 (2009)............................................................ 52 8 U.S.C. § 1101............................................................................................................................... 6 8 U.S.C. § 1103................................................................................................................... 7, 49, 50 8 U.S.C. § 1158......................................................................................................................... 6, 51
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8 U.S.C. § 1182......................................................................................................................... 5, 51 8 U.S.C. § 1201......................................................................................................................... 5, 18 8 U.S.C. § 1225......................................................................................................................... 5, 51 8 U.S.C. § 1227............................................................................................................... 5, 6, 24, 51 8 U.S.C. § 1228......................................................................................................................... 5, 51 8 U.S.C. § 1229................................................................................................................... 5, 37, 51 8 U.S.C. § 1229b....................................................................................................................... 6, 51 8 U.S.C. § 1229c ....................................................................................................................... 5, 51 8 U.S.C. § 1231......................................................................................................................... 5, 51 8 U.S.C. § 1252c ..................................................................................................................... 49, 50 8 U.S.C. § 1254a ....................................................................................................................... 6, 51 8 U.S.C. § 1255............................................................................................................................... 6 8 U.S.C. § 1301............................................................................................................................. 18 8 U.S.C. § 1301-1306 ..................................................................................................................... 5 8 U.S.C. § 1302............................................................................................................................. 18 8 U.S.C. § 1303............................................................................................................................. 18 8 U.S.C. §1304.................................................................................................................... 8, 17, 18 8 U.S.C. § 1305............................................................................................................................. 18 8 U.S.C. § 1306...................................................................................................................... passim 8 U.S.C. § 1323............................................................................................................................. 32 8 U.S.C. § 1324...................................................................................................................... passim 8 U.S.C. § 1324a .................................................................................................................... passim 8 U.S.C. § 1324c ................................................................................................................. 5, 24, 51
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8 U.S.C. § 1325................................................................................................................... 5, 32, 51 8 U.S.C. § 1327............................................................................................................................. 32 8 U.S.C. § 1328............................................................................................................................. 32 8 U.S.C. § 1357(g) ................................................................................................................. passim 8 U.S.C. § 1373...................................................................................................................... passim 8 U.S.C. § 1621............................................................................................................................. 12 18 U.S.C. § 3571........................................................................................................................... 18 18 U.S.C. 1546(b) ......................................................................................................................... 24
UNITED STATES CONSTITUTION U.S. Const., art. I § 8, cl. 4.............................................................................................................. 4 U.S. Const., art. I § 8, cl. 3.............................................................................................................. 4 U.S. Const., art. II § 3 ..................................................................................................................... 4 U.S. Const., art. VI, cl. 2............................................................................................................... 13
STATE BILLS Ala. H.B. 56 ........................................................................................................................... passim
MISCELLANEOUS Fed. R. Civ. P. 65 ...................................................................................................................... 1, 13
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Pursuant to Federal Rule of Civil Procedure 65, the United States hereby moves this Court to preliminarily enjoin enforcement of various provisions of Alabama’s H.B. 56 to preserve the status quo until this matter can be adjudicated. Specifically, the United States respectfully requests that this Court preliminarily enjoin Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 of H.B. 56.
INTRODUCTION In our constitutional system, the power to regulate immigration is exclusively vested in the federal government. The immigration framework set forth by Congress and administered by federal agencies reflects a careful and considered balance of national law enforcement, foreign relations, and humanitarian concerns — concerns that belong to the nation as a whole, not a single state. The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country. Although a state may adopt regulations in a legitimate area of local concern even though they may have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law. The State of Alabama has crossed this constitutional line. In acknowledged disagreement with the manner in which the federal government has regulated immigration and in contravention of these constitutional principles, Alabama recently enacted H.B. 56 — a comprehensive set of immigration provisions designed to “attack[] every aspect of an illegal alien’s life,” explicitly making life in Alabama so intolerable that unlawful aliens living elsewhere will not come to Alabama, and prevent those who do live in the state from “putting down roots.”1 In service of Alabama’s nascent immigration policy, H.B. 56 creates a panoply of new state offenses
1 Julia Preston, In Alabama, a Harsh Bill for Residents Here Illegally, New York Times, June 3, 2011, available at: http://www.nytimes.com/2011/06/04/us/04immig.html
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criminalizing, inter alia, an alien’s failure to comply with registration requirements under federal law, an alien’s unauthorized attempt to solicit or perform work, and an alien’s attempt to interact with state or local government. H.B 56 also makes it a crime for any landlord to rent housing to an unlawfully present alien, prevents Alabama courts from enforcing agreements to which unlawfully present aliens are a party, and creates an alien registration system for school-age children. And to achieve maximum enforcement of its new immigration policy, H.B. 56 establishes a new state-wide mandatory immigration status-verification system to be employed whenever practicable by every law enforcement officer who, during the course of a stop, has reasonable suspicion that a person is “unlawfully present,” or whenever the officer cannot verify that the person has a valid driver’s license. State and local authorities have no choice but to enforce H.B. 56 to the hilt: Any lawful resident of Alabama may sue a local law enforcement agency for money damages if that agency fails to enforce immigration laws to the fullest extent possible, and the offending agency would also lose all state funding.
Both separately and in concert, many of H.B. 56’s provisions would subvert and interfere with federal immigration laws and objectives; and therefore are preempted. First, Alabama impermissibly seeks to create a state-specific immigration policy that is expressly designed to supplant the federal government’s immigration policy. As such, H.B 56 does not simply provide for state and local officers to lend legitimate assistance to federal officials responsible for administering the federal immigration laws, but instead exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives. H.B. 56 therefore exceeds constitutional boundaries. The states are not permitted to set their own independent immigration policies, with varying and potentially conflicting enforcement systems and priorities. Were a
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number of states to act as Alabama has and strike out on their own, federal immigration policy and enforcement efforts would be seriously frustrated and hampered. Second, individual provisions of H.B. 56 separately conflict with federal law and are therefore preempted. H.B. 56’s criminal and other provisions create a host of conditions on aliens which are preempted because they each conflict with congressional objectives underlying specific federal immigration laws. Further, H.B. 56’s new state-wide mandatory immigration status verification scheme and “reasonable suspicion” provision would disrupt federal control and discretion over immigration enforcement, and it would result in the harassment and incarceration of lawful resident aliens — and even U.S. citizens who would not have readily available documentation to demonstrate their citizenship. In addition, this scheme would divert and burden federal immigration resources that are needed to target high-priority aliens. The federal government has made its top enforcement priority aliens who pose a danger to national security or risk to public safety, but Alabama’s indiscriminate approach would stand in the way of the federal government’s focused efforts to remove the most dangerous aliens from the country.
A preliminary injunction against various provisions of H.B. 56 is necessary to preserve the status quo, because the United States is likely to prevail on the merits of this case, and absent injunctive relief, the United States will suffer irreparable harm. Enforcement of H.B. 56 will disrupt the constitutional order by undermining the federal government’s control over the regulation of immigration and immigration policy and by interfering with its ability to ensure suitable discretion in administration of immigration law, to balance the purposes and objectives of federal law and to pursue its chosen enforcement priorities. Moreover, administration of H.B. 56 would result in the harassment of lawfully present aliens and even U.S. citizens. Implementation of the law would also damage the United States’ ability to speak with a single
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and authoritative voice to foreign governments on immigration matters and is already having negative effects on long-standing and vital international relationships. And implementation of H.B. 56 would impede the federal government’s ability to provide measured enforcement of criminal sanctions so as to accommodate the many other objectives that Congress enacted into the immigration laws. As a matter of law and in the public interest, this Court should enter a preliminary injunction to prevent the provisions of H.B 56 listed above from going into effect.
BACKGROUND I. FEDERAL STATUTORY & REGULATORY FRAMEWORK GOVERNING
IMMIGRATION The Constitution vests the political branches with exclusive and plenary authority to establish the nation’s immigration policy. See U.S. Const., art. I § 8, cl. 4 (Congress has the authority to “establish an uniform Rule of Naturalization”); U.S. Const., art. I § 8, cl. 3 (Congress has the authority to “regulate Commerce with foreign Nations”); see also U.S. Const., art. II § 3 (vesting the President with the authority to “take Care that the Laws be faithfully executed”). Pursuant to this authority, over several decades, Congress has enacted and refined a detailed statutory framework governing immigration — a task that has involved reconciling the complex and often competing interests of national security and public safety, foreign relations, and humanitarian concerns. See, e.g., Declaration of William J. Burns, Deputy Secretary of State (attached as Exhibit 1), ¶¶ 5-6. The federal immigration scheme, largely enacted in the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., empowers the Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State, among other federal agencies, to administer and enforce the immigration laws, and it provides for the considerable exercise of discretion to provide for and direct enforcement in a manner consistent with federal policy objectives.
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A. Federal Laws and Discretion Regarding the Entry, Removal, and Treatment of Aliens Within the United States
The INA sets forth the conditions under which a foreign national may enter, be admitted to, and remain in the United States. As part of these conditions, Congress created a comprehensive alien registration system for monitoring the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201(b), 1301-1306; see also 8 C.F.R. Part 264. If an alien enters the United States without inspection, presents fraudulent documents at entry, violates the conditions of his admission, or engages in certain proscribed conduct, the federal government (through DHS) may place him in removal proceedings or seek his removal through alternate administrative proceedings. See 8 U.S.C. §§ 1182, 1225, 1227, 1228, 1229, 1229c, 1231. In addition to removal, DHS and DOJ may employ civil and criminal sanctions against the alien for particular violations of the federal immigration laws. See, e.g., 8 U.S.C. §§ 1325, 1306, 1324c.
To prevent the unlawful entry of aliens into the United States, Congress further criminalized certain activities of third parties, such as the smuggling of unauthorized aliens into the country, and the facilitation of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. Critically, Congress provided for the civil removal of unlawfully present aliens, but did not criminally penalize their mere presence or movement within the country absent other factors. Nor did Congress impose criminal penalties on aliens solely for seeking or obtaining employment in the country without authorization, see H.R. Rep. No. 99-682(I) at 46, electing instead to prohibit employers from hiring unauthorized aliens. See 8 U.S.C. § 1324a(a)(1). Similarly, Congress has not imposed sanctions, either civil or criminal, that would effectively preclude unlawfully present aliens from obtaining any housing, or engaging in routine interactions with state or local authorities, particularly those interactions that inevitably and unavoidably result from their presence in the country.
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Under this framework, administering agencies are empowered to exercise their discretion not to apply a specific sanction to an alien who has unlawfully entered or remained in the United States. For example, DHS has authority to permit aliens, including those who would otherwise be inadmissible, to temporarily enter and remain in the United States (i.e., “parole”) for “urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). In addition, DHS and DOJ may withhold or cancel the removal of an alien under a variety of special circumstances, including those relating to family unity and domestic abuse. See 8 U.S.C. § 1227(a)(1)(E)(iii); 8 U.S.C. §§ 1229b (providing DOJ discretion to cancel the removal of an otherwise inadmissible or removable alien under certain circumstances); see also 8 U.S.C. § 1182(a)(6)(A)(ii) (excluding from inadmissibility certain aliens who have been subjected to battery or extreme cruelty). Further, both DHS and DOJ may grant an otherwise unlawfully present or removable alien relief from removal — and potentially adjust that alien’s immigration status — if the alien meets certain conditions. If the alien provides “critical reliable information concerning a criminal organization or enterprise” to federal or state authorities, and is deemed by the Attorney General to be “essential to the success of an authorized criminal investigation,” the Attorney General may grant the alien an S visa and also may later adjust the alien’s status to permanent resident. 8 U.S.C. §§ 1101(a)(15)(S) & 1255(j). If an alien has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, he may be eligible for asylum in the United States, “irrespective of [his] status.” See 8 U.S.C. § 1158. Similarly, an alien may be afforded temporary protected status and remain in the United States if he is an eligible national of a country that DHS has designated as experiencing ongoing armed conflict, natural disaster, or another extraordinary circumstance. See 8 U.S.C. § 1254a. Under certain circumstances, moreover, an alien may be provided
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employment authorization while the federal government evaluates his immigration status. See, e.g., 8 C.F.R. § 274a.12(c)(14); Declaration of Lori Scialabba, Deputy Director, USCIS (Attached as Exhibit 9), ¶¶ 6, 12, 14, 15, 18.
Although not an exhaustive description of the complex and detailed federal immigration framework, these provisions reflect that the federal immigration laws do not focus on one, singular interest, but instead seek to further multiple and sometimes competing objectives.
The INA vests DHS — which administers and enforces the INA mainly through its components, U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection (“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”) — DOJ, the Department of State, and their respective components with broad discretion in enforcing the federal immigration laws, generally allowing federal agencies to decide whether particular immigration remedies are appropriate in individual cases. See 8 U.S.C. § 1103; see generally Declaration of Daniel H. Ragsdale, Executive Associate Director for Management and Administration, ICE (Attached as Exhibit 2), ¶ 41; Burns Decl., ¶¶ 14-15 . Because the enforcement of federal immigration law also directly implicates foreign relations, the State Department is actively involved in the administration and enforcement of federal immigration law. Just as with DHS and DOJ, the State Department is vested with broad discretion in administering the INA, and takes into account the competing interests of the INA, including foreign policy interests. II. SUMMARY OF KEY PROVISIONS OF H.B. 56
H.B. 56 contains various measures requiring state and local law enforcement officials to enforce federal, and in some cases, state measures directed at the presence of unauthorized aliens. The Act follows Arizona’s S.B. 1070 in creating a multi-faceted regulatory structure that
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addresses numerous aspects of aliens’ lives. The following is a summary of provisions principally implicated by the United States’ preliminary injunction motion.
A. Section 6 Section 6 requires all state and local law enforcement agencies to enforce all provisions of H.B. 56 to their full extent. If in the judgment of the Alabama Attorney General any enforcement authority has not enforced H.B. 56 to the “full extent permitted by law,” the Attorney General must report any such failure to the Governor, and the offending agency will face, among other possible sanctions, a loss of “any funds, grants, or appropriations from the State of Alabama” “until such violation has ceased and the Attorney General has so certified.” (§ 6(a)). Section 6(d) grants a private right of action to any lawful resident of Alabama to sue any state or local authority that fails to enforce any provision of H.B. 56 fully. Upon a judicial finding that an agency has failed to enforce any provision of the Act to its full extent, the agency shall face a civil penalty between $1,000 and $5,000 for each day that the challenged policy or practice remained in effect after the filing of the action. B. Section 10 Section 10 makes it a state criminal offense for a person in Alabama to violate 8 U.S.C. § 1304(e), which requires aliens to carry their alien registration cards, or § 1306(a), which requires aliens to register with the federal government. (§ 10(a)). A violation of Section 10 is a Class C misdemeanor punishable by a fine of up to $100 and 30 days in jail. (§ 10(f)). Fifty percent of the assessments collected for Section 10 violations shall be remitted to the apprehending jurisdiction, while the remaining half will be divided equally between the Alabama Department of Homeland Security and the Alabama Department of Public Safety. (§ 10(g)).
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C. Section 11(a) Section 11(a) makes it a crime “for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.” A violation of Section 11(a) is a misdemeanor punishable by a fine of up to $500. (§ 11(h)). D. Section 12 Section 12(a) states that “[u]pon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation.” Verification requests must be made to the federal government, as state and local authorities are not authorized to make final verification determinations. (§§ 12(a), (c)). If, however, “for any reason federal verification . . . is delayed beyond the time that the alien would otherwise be released from custody, the alien shall be released from custody.” (§ 12(b)). E. Section 13 Section 13 criminalizes three separate activities when they are done by a person who knows or recklessly disregards the fact that the activities involve an alien who has unlawfully entered or remained in the United States: (i) concealing, harboring, or shielding (or attempting or conspiring to do so) an alien from detection in any place in this state, including any building or any means of transportation; (ii) encouraging or inducing an alien to come to or reside in the state; (iii) transporting (or attempting or conspiring to do so) an alien in furtherance of his
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unlawful presence. Section 13(a)(4) also makes it a state crime: to “[h]arbor an alien unlawfully present in the United States by entering into a rental agreement, as defined by Section 35-9A-141 of the Code of Alabama 1975, with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” “In the enforcement of [Section 13], an alien’s immigration status shall be determined by verification of the alien’s immigration status with the federal government.” (§ 13(g)).
F. Section 16 Section 16 provides penalties for employers who knowingly seek a tax deduction for wages in connection with payments made to unlawfully present alien employees. Section 16 forbids employers from deducting wages or compensation paid to unlawfully present aliens on state or business tax filings. (§ 16(a)). Any employer who knowingly fails to comply with Section 16 faces a penalty of 10 times the business expense deduction claimed. (§ 16(b)). G. Section 17 Section 17 makes it an unlawful business practice for a business entity or employer to fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States or to discharge an employee working in Alabama who is a United States citizen or an alien who is authorized to work in the United States while retaining or hiring an employee whom the business entity or employer knows, or reasonably should have known, is an unauthorized alien. (§ 17(a)). Section 17 authorizes a private right of action for aggrieved employees or applicants, and permits them to obtain compensatory relief and attorney’s fees if they prevail. (§§ 17(b)-(d)). H. Section 18 Section 18 amends Alabama’s requirement that motor-vehicle drivers carry their licenses
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with them. If a person is arrested for driving without a license, and the law-enforcement officer cannot confirm that the person has a valid driver’s license, then the officer must first “transport the person to the nearest or most accessible magistrate.” (§ 18(b)). Next, “[a] reasonable effort shall be made to determine the citizenship of the person and if an alien, whether the alien is lawfully present in the United States by verification with the federal government pursuant to 8 U.S.C. § 1373(c).” (§ 18(c)). State or local authorities must initiate a verification inquiry within 48 hours, and if that inquiry confirms that the person is unlawfully present, then he “shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities.” (§ 18(d)). Unlike Section 12(a), Section 18 does not provide that a person may avoid the verification process by presenting, for example, a valid passport or other forms of identification. Also unlike Section 12, Section 18 contains no detention-limiting language while verification remains pending.
I. Section 27 Section 27 prevents, with limited exceptions, Alabama state courts from enforcing the terms or conditions of any contract to which an unlawfully present alien is a party if the other party had direct or constructive knowledge that the alien was unlawfully present at the time the parties entered into the contract. (§§ 27(a)-(b)). In any court proceedings, the court “may request the federal government to provide further automated or testimonial verification” of the alien’s immigration status. (§ 27(d)). J. Section 28 Section 28 requires every public elementary and secondary school in this state to determine “whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for
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assignment to an English as Second Language class or other remedial program.” (§ 28(a)(1)). To make that determination, Section 28(a)(1) requires that the school “rely upon presentation of the student’s original birth certificate, or a certified copy thereof.” (§ 28(a)(2)). “If, upon review of the student’s birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States, or where such certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the student’s enrollment of the actual citizenship or immigration status of the student under federal law. (§ 28(a)(3)). “Notification shall consist of” both “official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student,” and a statement “by the parent, guardian, or legal custodian, under penalty of perjury, that the document states the true identity of the child.” (§ 28(a)(4)). “If no such documentation or declaration is presented, the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.” (§ 28(a)(5)). Such a determination would not prevent a child from attending school, however, as the Act states that “[v]erification of lawful presence in the United States shall not be required for . . . primary or secondary school education, and state or local public benefits that are listed in 8 U.S.C. Section 1621(b).” (§ 7(e)(1)).
K. Section 30 Section 30 makes it a felony for any unlawfully present alien to enter into or attempt to enter into a “business transaction” with a state or local government within Alabama. (§§ 30(a)(c)). The statute does not define “business transaction,” but Section 30 does specify that an application for a marriage license would not constitute a “business transaction” for Section 30 purposes. (§ 30(a)).
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LEGAL STANDARD A preliminary injunction is warranted where, as here, the movant has established (1) that the movant is substantially likely to succeed on the merits, (2) that the movant will suffer irreparable harm in the absence of an injunction, (3) that the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) that an injunction would not disserve the public interest. Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1307 (11th Cir. 2010); Scott v. Roberts, 612 F.3d 1279, 1290 (11th Cir. 2010); see Fed. R. Civ. P. 65.
ARGUMENT I. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS
The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are “the supreme Law of the Land.” U.S. Const., art. VI, cl. 2. In some cases, the Constitution — of its own force — can preempt state action in a field exclusively reserved for the federal government. See De Canas v. Bica, 424 U.S. 351, 356 (1976). Statutes enacted by Congress may also preempt — either expressly or impliedly — state law and other actions. See Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 98 (1992). The Supreme Court has recognized two methods by which state or local laws may be impliedly preempted. “Field preemption” exists when a “scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room to supplement it” because “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or because “the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.” Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983) (internal quotations marks omitted).
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“Conflict preemption” occurs when a party cannot comply with both state and federal law, Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). These bases for preemption are not “rigidly distinct,” however, and “field preemption may be understood as a species of conflict pre-emption.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (internal citations omitted).
It has long been recognized that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas, 424 U.S. at 354; see also Toll v. Moreno, 458 U.S. 1, 11 (1982) (“determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization” are matters exclusively reserved to the federal government); Mathews v. Diaz, 426 U.S. 67, 84 (1976) (“[I]t is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.”). Control of immigration is a “fundamental sovereign attribute,” Shaughnessy v. United States ex rel. Mezie, 345 U.S. 206, 210 (1953), because, among other reasons, the power over immigration, like other powers concerning the Nation’s external relations, was given to the national government and withheld from the states so that “a single State” could not, “at her pleasure, embroil us in disastrous quarrels with other nations,” Chy Lung v. Freeman, 92 U.S. 275, 280 (1875). Indeed, this principle of “supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution,” and “was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by [the Supreme] Court.”
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Hines, 312 U.S. at 62. Although this federal power does not preclude “every state enactment which in any way
deals with aliens,” De Canas v. Bica, 424 U.S. at 355, a state exceeds its power to enact regulations touching on aliens generally if the regulation is not passed pursuant to state “police powers” that are “focuse[d] directly upon” and “tailored to combat” what are “essentially local problems.” De Canas, 424 U.S. at 356–57. Thus, only the federal government may establish the national immigration policy and the comprehensive schemes for administering and enforcing that policy. See, e.g., Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 419 (1948) (“The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. . . . Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.”); Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) (“In the immigration context . . . the need for national uniformity is paramount.”); Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 815 (7th Cir. 2003) (“Federal immigration power is not just superior to that of the states; it is exclusive of any state power over the subject. Illinois is not entitled to have a policy on the question [of] what precautions should be taken to evaluate the credentials of aliens.”); League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 769–70 (C.D. Cal 1995) (noting that under De Canas, a state is barred from enacting a “comprehensive scheme” for immigration, i.e., a system of state laws that affects “a direct and substantial impact on immigration”).
As with many other areas of the law, although a state has no constitutional authority to
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set national immigration policy or a distinct immigration policy for the state – or enact statutory or regulatory schemes for independently administering and enforcing such an independent policy – a state may nonetheless cooperatively assist the federal government in the federal government’s enforcement of the national immigration policy. Cf. New York v. United States, 505 U.S. 144, 167-68 (1992) (recognizing that in areas of exclusive federal concern, Congress has the power to offer States the choice of “conform[ing] to federal policy choices” and “regulating [ ] activity according to federal standards,” or “having state law pre-empted by federal regulation. . . . This arrangement, which has been termed ‘a program of cooperative federalism,’ [ ] is replicated in numerous federal statutory schemes”).2 The imperative for deference to the federal government is even more pronounced in immigration enforcement and policymaking which is a uniquely federal interest. See supra, page 14-15.
* ** Against this backdrop, H.B. 56 clearly represents an impermissible effort to usurp the federal government’s control over immigration policy in two critical and equally problematic ways: (1) H.B. 56 creates a host of new Alabama-specific conditions for aliens (some with criminal consequences) – including those relating to alien registration, education, employment, transportation, housing, and everyday business transactions; and (2) H.B. 56 attempts to displace the federal government’s exclusive authority to create a systematic scheme for the administration and enforcement of the federal government’s own immigration laws by codifying an inflexible Alabama-specific approach that is, by any definition, “non-cooperative.” As will be discussed in
2 See, e.g., City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (“A system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system. . . . The potential for deadlock . . . inheres in dual sovereignties, but the Constitution has resolved that problem in the Supremacy Clause . . . .”).
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greater detail below, both types of actions will interfere with, and intrude upon, areas in which the federal government has primacy, and therefore they are preempted.
A. Section 10 of H.B. 56 – Alabama’s “Complete or Carry an Alien Registration Document” Provision – is Preempted by Federal Law
Perhaps the starkest conflict of H.B. 56 with federal law is evident in Alabama’s new alien registration requirement, codified in Section 10 of H.B. 56, which legislates in an area that is fully occupied by Congress and which conflicts with the federal scheme.
1. Operation of Alabama’s Alien Registration Scheme Section 10 of H.B. 56 attaches Alabam a criminal sanctions to the f ederal registration system. Section 10(a) provides that: In addition to any violation of federal law, a per son is guilty of willful failure to complete or carry an alien registration doc ument if the person is in violation of 8 U.S.C. § 1304(e) or § 1306(a)[ ], and the pe rson is an alien unl awfully present in the United States. Violation of Section 10 is a Class C misdemeanor and punishable by a fine of not more than $100 and not more than 30 days in jail. Ala. H.B. 56 § 10(f). Alabama’s registration crime turns on a determination of lawful status, and Section 10 provides that that determination shall be made by the federal government pursuant to 8 U.S.C. § 1373(c) and not by local law enforcement. Ala. H.B. 56 § 10(b). To reaffirm Alabama’s intent to criminalize unlawful presence, Section 10 excludes anyone who “maintains authorization from the federal government to be present in the United States.” Ala. H.B. 56 § 10(d).
2. Section 10 Interferes With the Comprehensive Federal Alien Registration Scheme
Exercising its exclusive authority over immigration, Congress has created, through the alien registration provisions of the INA, a comprehensive system for monitoring the entry and location of aliens within the United States — a system that cannot be supplemented by state
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registration provisions. The federal alien registration scheme includes very specific measures ranging from which aliens must register, 8 U.S.C. §§ 1201, 1301, when they must register, 8 U.S.C. § 1302, the content of the registration forms, 8 U.S.C. §§ 1303, 1304, the circumstances under which an already-registered alien must report a change of address, 8 U.S.C. § 1305, and the penalties for failing to register, 8 U.S.C. § 1306, and for failing to carry registration, 8 U.S.C. § 1304(e), 18 U.S.C. § 3571, 8 C.F.R. Part 264.
The federal alien registration scheme has been held by the Supreme Court to represent the quintessential example of a pervasive and comprehensive scheme of federal regulation that leaves no room for state legislation in this area. In Hines v. Davidowitz, 312 U.S. 52 (1941), the Court recognized that the federal alien registration laws manifest congressional intent to monitor aliens through a system that would be “uniform,” “single,” “integrated,” and “all-embracing.” Id. at 74. The Court considered the precursor to the current federal alien registration system, and held that it precluded Pennsylvania from enforcing its own alien registration requirements, because:
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, [and] 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. Put simply, Hines squarely held that Congress intended the federal government to exercise exclusive control over all issues related to alien registration, and that states lack the authority to “complement” that law. See id. As the Ninth Circuit recently held in invalidating the Arizona law provision on which Section 10 was modeled, “[n]othing 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.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011). Alabama’s new alien registration provision is an
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impermissible intrusion into the exclusively federal field of alien registration and is therefore preempted.
Alabama cannot save Section 10 from preemption by claiming that Section 10 simply piggybacks on the requirements of federal law rather than creating its own substantive standards. To begin with, the Supreme Court anticipated and rejected this argument by holding that even state “complements” to the federal registration system are preempted. Hines, 312 U.S. at 66-67. More generally, where Congress has comprehensively regulated and occupied a field (as it has here), a state cannot enter the field by levying its own system of sanctions, even if those sanctions purport to pursue the same goal animating the federal scheme. As the Supreme Court recognized in Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-80 (2000), “a common end hardly neutralizes” the interference posed by “conflicting means.” Otherwise, states would be free to design their own penalty schemes, which would inevitably “undermine[] the congressional calibration of force” embodied in the penalty scheme established by federal law. Id. at 380. What Alabama has done is no different from what the Supreme Court prohibited in Wisconsin Department of Industry, Labor and Human Relations v. Gould, Inc., 475 U.S. 282 (1986), where the Court struck down a Wisconsin law that prohibited certain violators of the National Labor Relations Act from doing business with the State. Id. at 283-84. The Court held that where states had no independent authority to “regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits,” so, too, are states prohibited from “providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act.” Id. at 286 (“The rule is designed to prevent ‘conflict in its broadest sense’ with the ‘complex and interrelated federal scheme of law, remedy, and administration,’ . . . and this Court has recognized that ‘[c]onflict in technique can be fully as disruptive to the system Congress erected
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as conflict in overt policy.’”) (emphasis added). By removing federal control of prosecution for registration violations through creation of
state-specific crimes based on federal alien registration requirements, Alabama seeks to impose its own corresponding set of state penalties for federal registration violations regardless of whether the alien has already been punished by the federal government under the federal alien registration scheme, or whether the federal government has chosen or would choose a different measure to address the alien’s situation. Alabama therefore allows for increased and varied punishment for registration violations that happen to occur in Alabama. Ala. H.B. 56 § 10(f). But Hines makes clear that states are precluded from supplementing the federal alien registration scheme, even if such regulations might appear to complement that scheme. See, e.g., Hines, 312 U.S. at 66-67; Garamendi, 539 U.S. at 420 n.11; Buckman, 531 U.S. at 347 (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.”). Accordingly, Alabama’s auxiliary penalties for violations of the federal alien registration laws are preempted. See also Arizona, 641 F.3d at 354-57 (holding that a virtually identical state provision criminalizing the failure to comply with federal alien registration provisions was likely preempted).3
3. Section 10 is Preempted Because it Essentially Seeks to Criminalize Unlawful Presence and Will Result in the Harassment of Aliens
Section 10 of H.B. 56 is preempted for the additional reason that it is a thinly veiled and impermissible attempt to criminalize unlawful presence. Although Section 10 ostensibly relates
3 Section 10 also conflicts with the federal goal, recognized in Hines, of uniformity and singularity in registration — a field that closely touches on the “uniquely federal area” of foreign relations. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1983 (2011). Specifically, Section 10 would result in the inconsistent treatment of aliens across the United States — a result that would violate the congressional demand for consistency regarding alien registration. See Hines, 312 U.S. at 72; see also Pennsylvania v. Nelson, 350 U.S. 497, 515 (1956).
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to alien registration, its true purpose is to do what Congress has repeatedly declined to do — make unlawful presence a criminal offense. See S. 2454, 109th Cong. §§ 206, 275 (2006); H.R. 4437, 109th Cong. § 203 (2005). By explicitly (i) limiting its reach specifically to unlawfully present aliens, see Ala. H.B. 56 § 10(a); and (ii) providing an exception for any “person who maintains authorization from the federal government” to remain in the United States, Ala. H.B. 56 § 10(d), Section 10 targets unlawful presence in both design and effect. And by essentially criminalizing unlawful presence, this provision can work in conjunction with Section 12 by affording an independent state-law basis for stopping and inspecting aliens and criminally prosecuting them. See infra, page 47-49.
Whatever authority states may have to enact laws that incidentally or indirectly touch on aliens, they have no authority to regulate immigration directly, and consequently may not establish state sanctions for entering or remaining in the country. See De Canas, 424 U.S. at 356-57. Unlawful presence is an immigration status the contours and consequences of which are federally crafted, and are of purely federal concern.
Alabama’s attempt to target and criminalize unlawful presence is also preempted because it creates an obstacle to the accomplishment of the United States’ foreign policy goals. See Burns Decl. ¶ 35 (“U.S. immigration law – and our uniform foreign policy regarding the treatment of foreign nations – has provided that the unlawful presence of a foreign national, in itself, ordinarily will not lead to that foreign national’s criminal arrest, incarceration, or other punitive measures . . . but instead to civil removal proceedings.”); see also Am. Ins. Ass’n v. Garamendi, 539 U.S. at 424; Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1259 (11th Cir. 2008) (“[I]mmigration cases often involve complex public and foreign policy concerns with which the executive branch is better equipped to deal.”). A provision like Section 10, which would operate
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to contradict the foreign relations commitments of the United States — threatens not only to disrupt future U.S. foreign relations efforts, but also risks negative reciprocity of the treatment of U.S. citizens abroad, among other deleterious effects. Burns Decl. ¶¶ 9, 35. Such interference with the fundamental authority to conduct foreign affairs cannot stand. See, e.g., Garamendi, 539 U.S. at 396 (finding obstacle preemption where a state law impinged on the executive branch’s authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (similar); Chy Lung v. Freeman 92 U.S. 275, 280 (1875) (finding it irreconcilable with the constitutional structure, that “a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.”). For all of the foregoing reasons, the United States is substantially likely to prevail in its preemption challenge to Section 10.
B. Section 11(a) of H.B. 56 – Alabama’s New Criminal Sanction Against Unauthorized Aliens Who Solicit or Perform Work in a Public or Private Place – is Preempted by the Federal Employer Sanctions Scheme
Although Congress has specifically invited states to enforce alien employment restrictions in limited ways (e.g., through bona fide state licensing schemes, see 8 U.S.C. § 1324a(h)(2), Section 11(a) claims the authority to re-write the employment laws altogether by overriding Congress’s determination that criminal sanctions should not attach to the seeking or performance of work by unlawfully present aliens. Section 11(a) thus conflicts with Congress’s purposes and objectives embodied in the Immigration Reform and Control Act of 1986 (“IRCA”) — Congress’s comprehensive scheme for regulating alien employment.
1. Congress Has Established the Exclusive Sanctions Regime With Respect to Alien Employment
Section 11(a) of the Act provides: It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.
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Ala. H.B. 56 § 11(a). The Act’s def inition of “unauthorized a lien” relies on the f ederal determination as to who is autho rized to work. Ala. H.B. 56 § 3(16). A violation of Section 11(a) is a Class C misdemeanor and is punishable by a fine of not more than $500. Ala. H.B. 56 § 11(h).
As the Ninth Circuit recognized in Arizona, IRCA reflects Congress’s deliberate choice not to criminally penalize unauthorized aliens for performing work, much less for attempting to perform it. See Arizona, 641 F.3d at 359 (“We . . . 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 [sic] state authority in this context. . . . 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.”). IRCA’s “comprehensive scheme” places a primary emphasis on employer sanctions. See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 147-50 (2002); U.S. v. Zheng, 306 F.3d 1080, 1087 (11th Cir. 2002) (explaining that the “House Committee was of the opinion that the most reasonable approach to the problem [of illegal immigration] was to make unlawful the “knowing” employment of illegal aliens”) (emphasis added); Arizona, 641 F.3d at 357-60. IRCA provides robust penalties for employers of unauthorized aliens, and no criminal penalties for the aliens who simply perform or solicit employment. See 8 U.S.C. § 1324a et seq; Ragsdale Decl. ¶ 10. Among its many provisions targeting employers, IRCA punishes the knowing hiring of unauthorized workers, 8 U.S.C. § 1324a(a)(1)(A), the recruitment of such workers, id., the continued employment of such workers, id. § 1324a(a)(2), and the use of contracts or subcontracts to hire unauthorized workers, id. § 1324a(a)(4). IRCA
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also creates a detailed compliance scheme to enforce an employer’s obligations, with escalating monetary penalties, and the prospect of injunctive sanctions. See id. § 1324a(e)(4); 8 C.F.R. § 274a.10. Criminal penalties against employers are permitted only in the most extreme cases, those involving “a pattern or practice of violations.” 8 U.S.C. § 1324(f)(1).
Congress also demonstrated what sanctions it deemed appropriate for unauthorized aliens who perform work, by providing only narrowly tailored sanctions against such aliens, including deportation, and special sanctions for the presentation of fraudulent documents. See, e.g., 8 U.S.C. § 1227(a)(1)(C)(i) (failure to maintain immigrant status is a deportable offense); 8 C.F.R. § 214.1(e) (prohibiting non-immigrant aliens from unauthorized employment and classifying such conduct as a failure to maintain status under the INA); 8 U.S.C. § 1324c (civil monetary fines for use of fraudulent documents); 18 U.S.C. 1546(b) (criminal sanctions for false attestation or document fraud to obtain employment). Congress, however, decidedly did not criminalize the mere performance or solicitation of work by an unauthorized alien, believing that criminal sanctions were inappropriate and inhumane. See H.R. Rep. No. 99-682(I) at 46, reprinted in 1986 U.S.C.C.A.N. 5649, 5650 (“Now, as in the past, the Committee remains convinced that legislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens.”); Arizona, 641 F.3d at 357n.17 (“We 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.’) (internal citation omitted). Congress’s view that incarceration is not an appropriate option for punishing unauthorized aliens is made all the more evident by other provisions of IRCA which establish Congress’s desire “to protect unauthorized immigrant workers from
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financial exploitation — a burden less severe than incarceration.” Arizona, 641 F.3d at 359. For example, the INA requires employers to repay all employees — including unauthorized aliens — for any extracted financial bonds, and it further provides for a system of complaints, investigation, and adjudication for violations. See 8 U.S.C. §§ 1324a(g), 1324a(e). Where Congress did not require undocumented workers to forfeit their bonds, it is highly unlikely that Congress would favor incarceration of the same workers. See Arizona, 641 F.3d at 359.
2. By Criminalizing Work Performed by Unlawfully Present Aliens, Section 11 Impermissibly Conflicts With IRCA’s Objectives
By attempting to override Congress’s conscious choice not to criminally punish aliens for unauthorized work, Alabama has created a clear conflict with federal law and has undermined the objectives of IRCA. See Crosby, 530 U.S. at 380; Puerto Rico Dep’t. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988). In fact, by criminalizing “work . . . in a private place,” Section 11(a) is even more restrictive than its Arizona law counterpart which the Ninth Circuit enjoined. See Arizona, 641 F.3d at 357-60 (holding that “there is likely no set of circumstances under which [a virtually identical provision of Arizona law which criminalized unauthorized work] would not be preempted”). Because the Supremacy Clause does not permit Alabama to second-guess Congress’s decision not to impose sanctions on employees for soliciting or performing work, the United States is substantially likely to prevail in its challenge to Section 11(a). See, e.g., Bonita Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 152 (1989); Felder v. Casey, 487 U.S. 131, 143 (1988).
C. Section 16 & 17 Of H.B. 56 – Alabama’s New Penalty System Against Employers Who Hire Unauthorized Aliens – is Preempted by the Federal Employer Sanctions Scheme
IRCA contains the following prohibition on state and local employer sanctions: The provisions of this section preempt any St ate or local law imposing civil or criminal
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sanctions (other than through licensing and similar laws ) upon those who e mploy, or recruit or refer for a fee for employment, unauthorized aliens. 4 8 U.S.C. § 1324a(h)(2) (emphasis added). In contravention of IRCA’s prohibition, Alabama seeks, through Sections 16 and 17 of the Act, to promulgate its own sanctions scheme for employers or would-be employers of unauthorized aliens. Because IRCA expressly forecloses Alabama from doing so, Sections 16 and 17 are preempted.
1. Section 16 Violates IRCA’s Prohibition on Employer Sanctions Section 16(a) provides:
No wage, com pensation, whether in m oney or in kind or in services, or remuneration of any kind for the perfor mance of services paid to an unauthorized alien shall be allowed a s a dedu ctible business expense for a ny state incom e or business tax purposes in this state. This subsection shall apply whether or not an Internal Revenue Service For m 1099 is i ssued in conjunction with the wages or remuneration. Ala. H.B. 56 § 16(a). “Any business entity or employee who knowingly fails to comply with the requirements of this section shall be liable for a penalty equal to 10 times the business expense deduction claimed in violation of subsection (a).” Ala. H.B. 56 § 16(b). Section 16 falls outside IRCA’s savings clause authorizing state or local authorities to impose civil or criminal sanctions “through licensing and similar laws.” “A license is a right or permission granted in accordance with law . . . to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Whiting, 131 S. Ct. at 1978 (citing Webster’s Third New Dictionary 1304 (2009)) (internal quotations omitted). “IRCA does not define
4 An “unauthorized alien” under IRCA is an alien who is neither “lawfully admitted for permanent residence” nor “authorized to be . . . employed by [the INA] or by the Attorney General.” 8 U.S.C. § 1324a(h)(3). H.B. 56 uses the same definition. Ala. H.B. 56 § 3(16) (defining “unauthorized alien” as “[a]n alien who is not authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3).”)
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‘sanction,’ but by its ordinary meaning, a sanction is ‘a restrictive measure used to punish a specific action or to prevent some future activity.’” Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 765 (10th Cir. 2010) (citing Webster’s Third New Int’l Dictionary 2009). Thus, the “penalty” specified by Section 16(b) is a “sanction” under IRCA; it does not speak to any “right or permission . . . to engage in some business or occupation”; instead, it speaks of an obligation to remit a prescribed monetary amount to the Alabama Department of Revenue triggered by certain actions that contravene Alabama law (i.e., taking tax deductions in connection with wages or remuneration paid to unauthorized aliens).
To be sure, Section 16(b)’s penalty applies only to those employers of unauthorized aliens who claim the prohibited tax deduction. But this distinction does not take Section 16(b) outside of IRCA’s prohibition; the obligation to pay this penalty arises only if the taxpayer is an employer of unauthorized aliens. Cf. Edmondson, 594 F.3d at 766 (holding that a conditional non-licensing sanction, exposing employers to civil liability for hiring unauthorized aliens, was still impermissible under IRCA because “an employer is subject to sanction only if the employer retains an unauthorized alien.”). By making employment of unauthorized aliens a necessary condition for its non-licensing sanctions, Section 16(b) runs afoul of IRCA’s express-preemption clause.
Likewise, Section 16(a) is an impermissible sanction because it excludes employers of unauthorized aliens from a generally available tax benefit. The mere fact that Section 16(a) contemplates the denial of a benefit, rather than the imposition of a penalty, is of no moment. In economic terms, the denial of an otherwise-available tax benefit is indistinguishable from an equivalent tax penalty. As IRCA’s express-preemption clause makes clear, states can alter that economic calculus for employers only through licensing laws. IRCA’s prohibition would be an
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empty formality if states could evade its prohibition on employer sanctions by framing a sanction as a “denial of a tax benefit.” Because Sections 16(a) and (b) both seek to impose sanctions for hiring unauthorized aliens, and because those section are not saved from preemption by the narrow exception for “licensing [or] similar laws,” IRCA preempts them.
2. The Employer Tax Deduction Provision is Not Severable From the Penalty Provision
Even if this Court were to determine that Section 16(a) is not a “sanction” and therefore not expressly preempted by 8 U.S.C. 1324a(h)(2), Section 16(a) cannot stand apart from Section 16(b), whose “penalty” provision assuredly does come within the ambit of what IRCA proscribes. If Section 16(b) falls, Section 16(a) is not severable and falls as well. Because “[s]everability is of course a matter of state law,” Leavitt v. Jane L., 518 U.S. 137, 139 (1996), Alabama law governs this question. In this respect, the Alabama Supreme Court has determined that:
[I]f the [statutory provisions] are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them. King v. Campbell, 988 So.2d 969, 982 (Ala. 2007) (citations and quotations omitted). The presence of a general severability clause addressing H.B. 56 as a whole does not change the fact that invalidating one provision also invalidates provisions that are “dependent, conditional, or connected.” Section 16(b)’s penalty provision is obviously not “wholly independent” from prohibitions set out in Section 16(a). Nor is there reason to believe that the Alabama Legislature would have passed 16(a) without any enforcement mechanism. To the contrary, Representative
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and bill co-sponsor Mickey Hammon has made clear that Alabama enacted H.B. 56 not because
of any perceived infirmity in federal immigration law itself, but based on Alabama’s view that
federal authorities have not enforced federal immigration law adequately. Representative
Hammon stated that, “When you have thousands of bureaucrats and agencies everywhere that
can simply say, ‘I don’t like this law, I’m not going to follow it,’ then the law is null and void.
This makes sure everyone knows they are required to enforce the law. We do not intend for our
law to sit idly by and not be enforced.” Brian Lawson, Court Challenges Loom For New, FarReaching Alabama Immigration Law, Huntsville Times, June 19, 2011.5 In view of this
statement by H.B. 56’s co-sponsor, Alabama’s views could hardly be clearer: Absent
enforcement, legal prohibitions are “null and void.” Accord Chism v. Jefferson County, 954
So.2d 1058, 1074 (Ala. 2006) (“It is presumed that the legislature does not enact meaningless,
vain, or futile statutes.”) (citations omitted). Because Section 16(a) is inarguably “connected”
with Section 16(b), and because available evidence indicates that Alabama would not have passed Section 16(a) without Section 16(b), Section 16(a) is inseverable from Section 16(b).6
5 Available at: http://blog.al.com/breaking/2011/06/court_challenges_loom_for_alab.html
6 This is not a situation in which Alabama has enacted a statute that is “constitutional on its face” that Alabama had the “undoubted power to enact and which could be reenacted in its exact form” absent Representative Hammon’s comments. United States v. O’Brien, 391 U.S. 367, 383-84 (1968). To the contrary, Section 16 — like much of H.B. 56 — is legally invalid independent of the statements any legislator did or could make. Nor can Alabama dismiss Representative Hammon’s statements as merely views of an “individual legislator.” Eagerton v. Terra Resources, Inc., 426 So.2d 807, 809 (Ala. 1982). The statements of a bill’s sponsor are “powerful evidence of legislative intent,” Vensor v. People, 151 P.3d 1274, 1279 (Colo. 2007), which is consistent with the Eleventh Circuit’s approach. See United States v. Ambert, 561 F.3d 1202, 1214 (11th Cir. 2009) (confirming “broad purpose” of SORNA by “review[ing] . . . the legislative history” and citing statements from SORNA co-sponsor Sen. Orrin Hatch); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1227 (11th Cir. 2005) (relying on legislative history to reject argument by Schiavo’s parents that congressional legislation passed solely for the purpose of granting them a cause of action was also intended to grant parents temporary injunctive relief).
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For all of the foregoing reasons, the United States is substantially likely to prevail in its
challenge to Section 16.
3. Section 17 Violates IRCA’s Prohibition on Employer Sanctions
Like Section 16, Section 17 is also preempted. Section 17(a) provides:
It shall be a discriminatory practice for a business entity or employer to fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) or discharge an employee working in Alabama who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien.
Ala. H.B. § 17(a). And Section 17(b) provides:
A violation of subsection (a) may be the basis of a civil action in the state courts of this state. Any recovery under this subsection shall be limited to compensatory relief and shall not include any civil or criminal sanctions against the employer.
Id., § 17(b). In deciding such cases, the court will consider, as proof of immigration status, only
federal verifications pursuant to 8 U.S.C. § 1373(c). Id., § 17(e).
Notwithstanding Section 17(b)’s statement that a private plaintiff under Section 17 does
not recover “civil or criminal sanctions against the employer,” Section 17 still runs afoul of
IRCA’s express-preemption provision. Again, a sanction is “‘a restrictive measure used to
punish a specific action or to prevent some future activity.’” Chamber of Commerce of U.S. v.
Edmondson, 594 F.3d 742, 765 (2010) (citing Webster’s Third New Int’l Dictionary 2009).
Here, “the restrictive measure” — the threat of compensatory relief, H.B. 56 § 17(b), and
Other courts have also reached a similar conclusion. See, e.g., DiProspero v. Penn, 183 N.J. 477, 499 (N.J. 2005) (bill sponsor’s statements are a “helpful tool in understanding legislative intent”); Emerald Casino, Inc. v. Illinois Gaming Bd., 346 Ill.App.3d 18, 36 (Ill. App. 2 Dist. 2003) (“The statements of a bill’s sponsor matter when discerning legislative intent.”); State v. Alfatlawi, 153 P.3d 804, 818 (Utah App. 2006) (statements of bill sponsor relevant to legislative intent inquiry).
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attorney’s fees, H.B. 56 § 17(c) — is intended to “punish or prevent” the retention or hiring of unauthorized aliens whose employment comes at the expense of United States citizens or lawfully resident aliens. See Ala. H.B. 56 § 17(a).
In Chamber of Commerce v. Edmondson, the Tenth Circuit considered a similar provision of an Oklahoma law authorizing compensatory relief. Citing the definition of “sanction” quoted previously, Oklahoma contended that its law was not preempted by IRCA because the relief it authorized was compensatory rather than punitive in nature, and only purely punitive relief constituted a “sanction” for IRCA preemption purposes. The Tenth Circuit rejected this argument, observing that there was no evidence that Congress intended to preempt only purely punitive sanctions. Edmondson, 594 F.3d at 765. Alabama has imposed even more “sanctions” than Oklahoma: An employer who violates Section 17(b) is liable not only for compensatory relief, but also attorney’s fees. Like the Oklahoma statute invalidated in Edmonson, Section 17(b) applies only to employers who “fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States . . . or who discharge an employee working in Alabama who is a United States citizen or an alien who is authorized to work in the United States . . . while retaining or hiring an employee who the business entity or employer knows, or reasonably should have know, is an unauthorized alien.” Ala. H.B. 56 § 17(a) (emphasis added). Accord Edmondson, 594 F.3d at 766 (“We are not persuaded by Oklahoma’s contention that Section 7(C) merely creates a cause of action for the termination of legal residents. While that is a necessary prerequisite, an employer is subject to sanction only if the employer retains an unauthorized alien.”). Accordingly, the United States is substantially likely to prevail in its preemption challenge to Section 17.
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D. Alabama’s Prohibitions on the Harboring and Transporting of Aliens, and on Encouraging Their Travel into the State, are Preempted by Federal Law.
Sections 13(a)(1)-(3) of H.B. 56 make it a state crime to provide transportation to aliens in furtherance of their unlawful presence, and also criminalize the concealing and harboring of aliens, as well the encouraging or inducing of aliens to enter Alabama, in reckless disregard of their unlawful presence. The federal government is constitutionally vested with the exclusive authority over the process of alien entry, and Congress has regulated this subject matter pursuant to that authority. These provisions are therefore preempted by this constitutional authority and its exercise through the INA, and they also impermissibly regulate interstate movement in violation of the Commerce Clause.
First, through various provisions of the INA, Congress has exercised its constitutional authority to regulate the terms and conditions of an alien’s entry, admission, and residence in the United States. See, e.g., Fiallo v. Bell, 430 U.S. 787, 796 (1977) (“The conditions of entry for every alien . . . the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress.”); Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895). In Part VIII of Chapter 12 of the INA, Congress has provided a detailed set of sanctions for those who unlawfully enter, 8 U.S.C. § 1325, and for the third parties who aid in their entry and stay, see 8 U.S.C. § 1323 (penalizing persons for unlawfully bringing aliens into the United States); 8 U.S.C. § 1324 (penalizing persons for bringing in or harboring certain aliens); 8 U.S.C. § 1327 (penalizing persons who assist certain inadmissible aliens to enter the country); 8 U.S.C. § 1328 (penalizing the importation of aliens for immoral purposes). These statutory provisions reflect the fulfillment by Congress of the exclusive authority vested in it by the Constitution to substantively regulate the terms and conditions of an alien’s entry and subsequent movement,
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including by criminally sanctioning third parties who assist or aid that entry. Indeed, in the context of discussing the unique and comprehensive nature of the federal legislation governing the terms of entry, the Supreme Court in De Canas specifically contrasted Section 1324’s concerns regarding alien transportation (which De Canas considered related to the INA’s core concern of alien entry) with Section 1324’s concern with alien employment (which, prior to IRCA, represented a relatively minor concern of the immigration laws).
The preemptive force of this constitutional and congressional authority, including Section 1324, has been recognized by several courts. See, e.g., Lozano v. City of Hazleton, 620 F.3d 170, 220-21 (3d Cir. 2010) (finding that the City’s prohibition on rental housing was preempted, inter alia, because the INA “plainly precludes state efforts, whether harmonious or conflicting, to regulate residence in this country based on immigration status,” and explaining that even though the City’s “housing provisions neither control actual physical entry into the City, nor physically expel persons from it . . . ‘[i]n essence,’ that is precisely what they attempt to do”) (vacated by Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011)) 7; Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1056 (S.D. Cal. 2006) (finding “serious concerns” of preemption by § 1324); See Georgia Latino Alliance For Human Rights v. Deal, — F.Supp.2d —, 2011 WL 2520752, *11-15 (N.D. Ga. 2011) (finding similar state concealment and transportation laws preempted, because “[u]nlike De Canas, Congress has expressed much more than ‘peripheral concern’ with the transportation, harboring, and inducement of illegal aliens. . . . That concern is expressed in the text of § 1324. [Georgia’s prohibition on concealment and
7 Lozano, which also addressed the issue of whether a municipal licensing ordinance was preempted by IRCA, was vacated and remanded in light of the Supreme Court’s recent decision in Whiting. Because Whiting did not address the preemptive effect of federal law on state or local ordinances addressing transportation, harboring, concealment, or housing, we do not believe the result should be any different on remand with respect to the housing ordinance.
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transportation of aliens] seeks not only to replace and complement the text of § 1324 with its own criminal provisions, but to replace the discretionary and interpretive mechanisms of the federal government as well”); cf. United States v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989) (“§ 1324(a)(1) . . . presents a single comprehensive ‘definition’ of the federal crime of alien smuggling – one which tracks smuggling and related activities from their earliest manifestations (inducing illegal entry and bringing in aliens) to continued operation and presence within the United States (transporting and harboring or concealing aliens).”).
Sections 13(a)(1)-(3) are preempted because, by criminalizing the transportation, harboring, and concealment of unlawfully present aliens, the State is improperly imposing its own substantive regulation over facets of alien entry into the United States. While Alabama might claim that these provisions simply mirror federal law, even complementary or auxiliary state regulations would be impermissible in such an area. See Gould, Inc., 475 U.S. at 286 (finding that where states have no independent authority to regulate an activity, they are also prohibited from “providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by [federal law]”). In this case, these new state crimes for transportation, harboring, and concealment carry with them an independent state penalty and prosecution enforcement mechanism that operates wholly outside of federal control. This is particularly troubling here, because Congress has already made quite clear the precise role that states should have with respect to enforcing federal transportation, harboring, and concealment laws: Congress has provided that states can make arrests for violations of these federal prohibitions. See 8 U.S.C. § 1324(c). The ability to make arrests for such violations in aid of federal enforcement, means that the ultimate prospect of prosecution and sanctions, rests with the federal government. Sections 13(a)(1)-(3), however, remove any federal discretion and impermissibly
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places the entire operation — from arrest to incarceration — squarely in the State’s purview. Second, Sections 13(a)(1)-(3) also violate the dormant Commerce Clause, which forbids
state attempts to discourage or otherwise restrict the movement of people between states. Article I, Section 8 of the Constitution grants Congress the right to regulate commerce among the states — a positive grant of power that has been interpreted as limiting the states’ power to interfere with interstate commerce. The Supreme Court has specifically held that the “Dormant Commerce Clause” forbids certain state attempts to restrict the movement of people between states. See Edwards v. California, 314 U.S. 160, 172-73 (1941). Edwards involved a challenge to a depression-era California statute prohibiting “the ‘bringing’ or transportation of indigent persons into California.” Id. at 173. The Supreme Court invalidated the statute under the Dormant Commerce Clause, which “prohibit[s] attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders.” Id. It is not constitutionally significant that Sections 13(a)(1)-(3) attack those who would facilitate such movement, rather than the aliens themselves. The statute in Edwards did not target the indigent person, but instead criminalized the conduct of those who assisted with the interstate movement, just as Sections 13(a)(1)-(3) target those who, among other things, “encourage[e] or induc[e] an alien “to come to or reside in” Alabama. See also Georgia Latino Alliance For Human Rights, 2011 WL 2520752, at *12 (explaining that “[d]espite superficial similarities” with federal law, Georgia’s prohibition on transporting and harboring aliens goes too far in that it “prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia,” but that “[o]nce in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state”). Accordingly, Sections 13(a)(1)-(3) also run afoul of the Commerce Clause.
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E. Alabama’s Housing Restriction – Section 13(a)(4) of H.B. 56 – is Preempted by Federal Law
Section 13(a)(4) of the Act criminalizes housing “rental agreement[s]” between landlords and unlawful alien renters, if the landlord “knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” Ala. H.B. 56 § 13(a)(4). “Local regulation that conditions the ability to enter private contract[s] for shelter on federal immigration status is of a fundamentally different nature than the sorts of restrictions on employment or public benefits that have been found not to be preempted regulations of immigration.” Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 855 (N.D. Tex. 2010). Because “[d]eciding which aliens may live in the United States has always been the prerogative of the federal government,” Lozano v. City of Hazleton, 620 F.3d 170, 220 (3d Cir. 2010), courts have repeatedly determined that anti-housing rental ordinances like Section 13(a)(4) are preempted by 8 U.S.C. § 1324. See Lozano, 620 F.3d at 224 (finding housing ordinance preempted); Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1056 (S.D. Cal. 2006) (finding “serious concerns” of preemption based on § 1324 and issuing preliminary injunction); Villas at Parkside Partners, 701 F. Supp. 2d. at 859 (issuing permanent injunction). Indeed, a court has recently issued a preliminary injunction against a similar anti-harboring provision of Georgia law, holding that plaintiffs were likely to prevail in their claim that Section 1324 preempted the Georgia ordinance. See Georgia Latino Alliance For Human Rights v. Deal, — F.Supp.2d —, 2011 WL 2520752, *13 (N.D. Ga. 2011).
As the Supreme Court has recognized, states may “neither add to nor take from the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” De Canas, 424 U.S. at 358 (adding emphasis and omitting citation). Relatedly, states also may not impose “an auxiliary burden upon the entrance or
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residence of aliens that was never contemplated by Congress.” Toll v. Moreno, 458 U.S. 1l, 12
(1982) (citations omitted). Like the ordinance struck down in Lozano, Section 13(a)(4) does not
expressly expel unlawful aliens from the state or prevent them from entering. But “it is difficult
to conceive of a more effective method” of doing just that than establishing criminal liability for
anyone who might provide them shelter. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489
U.S. 141, 164 (1989).
This is not “a situation where [Alabama] is aiding in the enforcement of federal
immigration law based on federal standards through the means set forth by federal law; rather,
[Alabama] is attempting to enforce its own scheme that incorporates federal standards for
purposes not contemplated by Congress.” Villas at Parkside Partners, 701 F. Supp. 2d at 859.
That this is Alabama’s “own scheme” and not the federal government’s is confirmed by the fact
that Alabama’s housing rental prohibition, if enforced to its maximal extent, which it must be,
see H.B. 56 § 6, would prevent the state’s unlawful alien population from obtaining practically any kind of housing or shelter.8 The federal government “has never evidenced an intent for
[unlawful aliens] to go homeless.” Lozano, 620 F.3d at 224; see also Burns Decl. ¶ 35 (“U.S.
immigration law . . . has provided that the unlawful presence of a foreign national, in itself,
8 In this regard, it is worth noting the apparent breadth of Section 13(a)(4). This provision of the Act incorporates the definition of “rental agreement” as defined at 35-9A-141 of the Alabama Code which defines “rental agreement” as “all agreements, written or oral, and valid rules and regulations adopted under Section 35-9A-302 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.” Ala. Code 359A-141(13). A “dwelling unit” “means a structure or the part of a structure, including a manufactured home, that is rented as a home, residence, or sleeping place by one or more persons.” Id. at 35-9A-141(4). Although Section 13(a)(4) would clearly apply to longer-term housing agreements such as apartment leases, there is nothing in 35-9A-141 that suggests that a short-term motel or hotel room rental could not or should not constitute a “dwelling unit” under Alabama law. Although a contract for lodging for a single night would fall outside Section 27’s non-enforceability provision, see Ala. H.B. § 27(b), whether a contract is enforceable does not necessarily answer the question of whether a motel or hotel owner could be held criminally liable pursuant to Section 13(a)(4) for entering into such a contract.
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ordinarily will not lead to . . . punitive measures [such as] legislated homelessness[].”). And indeed, the statutory provision for removal of even unlawfully present aliens from the United States plainly contemplates that an alien who challenged his removal may remain in the United States pending entry of a final removal order. See also 8 U.S.C. § 1229(a)(1)(F)(i) (an alien noticed to appear for a removal proceeding must immediately provide the Attorney General “with a written record of an address . . . at which the alien may be contacted respecting [the] proceedings.”). By Section 13(a)(4), Alabama effectively seeks to decide who may reside within its borders. Because deciding which aliens may live within the United States has always been a power committed exclusively to the federal government, Section 13(a)(4) of the Act impermissibly encroaches on that area of “significant federal presence,” United States v. Locke, 529 U.S. 89, 108 (2000), and is therefore preempted.
F. Alabama’s Restrictions on Private Contracts and Transactions with the Government – Sections 27 and 30 of H.B. 56 – Are Preempted by Federal Law
With limited exceptions, Section 27 of H.B. 56 prevents Alabama state courts from enforcing the terms or conditions of any contract to which an unlawfully present alien was a party if the other party had direct or constructive knowledge that the alien was unlawfully present at the time the parties entered into the contract. In addition, Section 30 makes it a felony for any unlawfully present alien to enter into or attempt to enter into a “business transaction” with a state or local government within Alabama. As set forth below, the United States is substantially likely to prevail on its claim that federal law preempts these provisions.
1. Section 30 Conflicts w ith Federal Policies Regarding the Treatment of Aliens
Section 30(b) provides: An alien not lawf ully present in the United Stat es shall not e nter into or attempt to enter into a bus iness transaction with the state or a political subdivision of the s tate and no
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person shall enter into a business transaction or attem pt to ente r into a busin ess transaction on behalf of an alien not lawfully present in the United States. Ala. H.B. 56 § 30(b). Section 30(a) broadly defines the term “business transaction” to include: any transaction between a pers on and the state or a political subdivision of the state, including, but not lim ited to, a person applyi ng for or renewing a m otor vehicle license plate, applying for or renewi ng a driver’s license or nondri ver identification card, or applying for or renewing a business license . “Business transacti on” does not include applying for a marriage license. Id., § 30(a). Any person who wants to enter into such a “business transaction” must provide proof of lawful residence. Id., § 30(c). Violation of Section 30 is a Class C felony. Id., § 30(d). Although a “business transaction” is defined as “any transaction between a person and the state or a political subdivision of the state,” the Act does not define “transaction” itself. In any case, a “business transaction” for Section 30 purposes would necessarily include interactions with the state or political subdivision involving an exchange of money, other than an application for a marriage license. Ala. H.B. 56 § 30(a). This would mean that an unlawfully present alien would commit a felony by, for example, paying his bills for utilities provided by local governments, such as water or sewer service, paying municipal property tax assessments, or paying the filing fee required to initiate a court case. Section 30 thus transforms otherwise lawful conduct into unlawful conduct by virtue of who is performing it. That is, Section 30 conduct becomes criminalized only because it is engaged in by an unlawfully present alien. If Section 30 were to remain, Alabama could easily negate policies enacted by Congress by declaring otherwise innocent conduct to be illegal only when committed by an unlawfully present alien. This is particularly problematic where, as here, the conduct criminalized extends to transactions that, for the overwhelming majority of all Alabama residents, are both universal and
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unavoidable. For example, Alabama has essentially given unlawful aliens the choice between not paying for — and thus not having — service for basic necessities such as water, paying for those essentials and thereby committing a felony, or leaving Alabama. Manifestly, it is not for Alabama or any other state to impose this sort of “distinct, unusual and extraordinary burdens and obligations upon aliens.” Hines, 312 U.S. 52, 65-66 (1941); see also Burns Decl. ¶ 37 (“Section 30 . . . mark[s] a dramatic departure from the norms of mutuality, hospitality, and respect that have informed U.S. law and policy in this area.”).
Alabama’s treatment of unlawfully present aliens in Section 30 also conflicts with Congress’s longstanding policy determination not to criminalize unlawful presence. See also supra, pages 20-22 (Section 10) & pages 36-38 (Section 13(a)(4)) (both effectively criminalizing unlawful presence). Accordingly, the United States is substantially likely to prevail in its challenge to Section 30.
2. Section 27 Conflicts w ith Federal Policies Regarding the Treatment of Aliens
As with Section 30, in Section 27 Alabama has impermissibly altered “the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” De Canas, 424 U.S. at 358 n.6 (adding emphasis and omitting citation). Subject to limited exceptions, Section 27 mandates that:
No court of this state sh all enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unl awfully present in the United States, if the party had direct or constructive know ledge that the alie n was unlawfully present in the United S tates at the tim e the contract was e ntered into, and the performance of the contract required the alien to remain unlawfully present in the United States for m ore than 24 hours after the time the contract was entered into or performance could not reasonably be expected to o ccur without such remaining. Ala. H.B. 56 § 27(a).
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Like Section 30, Section 27 poses the same specter of burden and harassment of aliens, lawful and unlawful alike. See Burns Decl. ¶ 37. Section 27 would sharply limit both aliens’ willingness and ability to enter into contracts, as well as the willingness and ability of potential counterparties. Aliens would be loath to enter into a contract if they knew that the other party could breach the contract without legal consequence. Even if the alien believed he could ultimately vindicate his contractual rights, the prospect of being swindled would still be a deterrent to entering into any contract in the first place. Prospective counterparties also would have reason to be wary. An unlawfully present alien could just as easily breach a contract in the belief (accurate or not) that it would be unenforceable under Section 27. Recognizing this possibility, counterparties would also be reluctant to enter into contracts with those whom they knew or suspected to be unlawfully present aliens. But whenever such beliefs were mistaken, Section 27 would impair the ability of lawfully present aliens or U.S. citizens to make contracts. In any case, there is no evidence that Congress intended, as a categorical matter, unlawfully present aliens’ contracts to be unenforceable. See Mureau v. Oppenheim, 663 F.2d 1300, 1308 (5th Cir. 1981) (“We seriously doubt whether illegal entry, standing alone, makes outlaws of individuals, permitting their contracts to be breached without legal accountability.”). By abrogating an unlawfully present aliens’ ability to enter into and enforce contracts, Alabama has imposed different and starkly more burdensome conditions on aliens in violation of De Canas and Toll. For all of these reasons, the United States is substantially likely to prevail in its preemption challenge to Sections 27 and 30.
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G. Section 28 of H.B. 56 – Alabama’s Education Registration Scheme – is Preempted by Federal Law 1. Alabama’s Educational Registration Scheme Conflicts w ith Federal Policy, and Will Impermissibly Burden Lawfully Present Aliens
Just as Alabama may not punish unlawful presence by barring aliens from obtaining housing or making contracts if they are unlawfully present, see supra, pages 36-41, Alabama may not impose a comparable burden on unlawfully present aliens who are school-age children, or parents of school-age children. Section 28 imposes just such an impermissible burden: contrary to strong federal policy supporting education for children, involvement in that education by schoolchildren’s parents, and humane treatment of foreign nationals, Section 28 discourages parents from enrolling their children in school by demanding that students prove lawful presence. That requirement serves no lawful purpose, as the Constitution guarantees all children an equal right to attend public school irrespective of their immigration status (let alone their parents’). See Plyler v. Doe, 457 U.S. 202 (1982). Federal law preempts any attempt to impose such an irrational new sanction for unlawful presence.
There is no question that, if allowed to go into effect, Section 28 would have a chilling effect on school attendance by children who are aliens or whose parents are aliens. That effect would extend not only to parents who know their children are unlawfully present — some of whom would likely keep their children home rather than have their status reported to authorities — but to parents of lawfully present children as well. Some parents or guardians of lawfully present alien children may not be able to provide the documentation Section 28 requires and thus fear the consequences of the school’s statutorily-required presumption of unlawful presence. See Declaration of Tony Miller, Deputy Secretary and Chief Operating Officer, U.S. Department of Education (Attached as Exhibit 3), at ¶¶ 11, 47. For example, some parents may not have any
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official documentation of their child’s lawful presence. And given the myriad designations and rules governing federal immigration status, some of those parents may not be in a position to declare, under penalty of perjury, their children’s immigration status. Thus, such parents or guardians may choose to withdraw their children from school to avoid having to choose to possibly perjure themselves, with all the consequences that might entail (or that the parent fears such perjury might entail for themselves or their children, or both). Id. ¶¶ 19-21, 46. Section 28’s reliance on parental reporting means that many lawfully present children would be reported as unlawfully present.
Other aliens whose children were born in this country — and thus are United States citizens — may keep their children home because of concerns about their own immigration status. Because Section 28’s notification requirement applies if “upon review of the student’s birth certificate, it is determined that the student . . . is the child of an alien not lawfully present in the United States,” many aliens may not send their children to school because of concerns about their own status. Ala. H.B. 56 § 28(a)(3). Nor could aliens have any assurance that any information that they provide, or any determination schools make, would remain with state and local officials. Section 28 expressly permits state and local authorities to communicate with the federal government regarding information obtained in connection with Section 28. See id., § 28(e) (“Public disclosure by any person of information obtained pursuant to this section which personally identifies any student shall be unlawful, except for purposes permitted pursuant to 8 U.S.C. Sections 1373 and 1644”) (emphasis added).
Although states retain in certain instances the “authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal,” Plyler, 457 U.S. at 225, Section 28 does neither. Under Plyler, even children unlawfully present
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in the United States have a constitutional right to attend public elementary or secondary school. As a result, federal law recognizes no legitimate interest in deterring alien children from attending public school. Alabama has no valid interest in creating an atmosphere so inhospitable to unlawful aliens that it constructively evicts aliens (whether lawfully or unlawfully present) from Alabama, or prevents them from entering. See supra, page 36-38; cf. Saenz v. Roe, 526 U.S. 489, 511 (1999) (States “do not have any right to select their citizens”). Discouraging alien children from obtaining an education is just such a measure. See Plyler, 457 U.S. at 220 (“[I]t is . . . difficult to conceive of a rational justification for penalizing [alien] children for their presence within the United States.”).
Our nation has long viewed “education and the acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Public schools stand as “a most vital civic institution for the preservation of a democratic system of government, and as the primary vehicle for transmitting the values on which our society rests.” Plyler, 457 U.S. at 221 (internal citations and quotations omitted). [E]ducation furthermore “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” Id. Consistent with the view that “education has a fundamental role in maintaining the fabric of our society,” id., a foundational tenet of federal educational policy is and remains that all children, regardless of immigration status, should have full access to public primary and secondary schools, Miller Decl. ¶¶ 8, 48, and consequently school districts “may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin.” Id. ¶ 10 (internal citations omitted). Those policies underlie numerous federal statutes, including those under which Alabama has voluntarily elected to accept hundreds of millions of dollars per year in federal funding — funding the United States intends Alabama to
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use to educate children regardless of immigration status. Id. ¶¶ 5, 7, 14, 19, 22-23, 26, 38-40, 42, 47-48. Unlike United States citizens, who ordinarily will be able to produce United States birth certificates, resident aliens will often be unable to do so. This means that essentially all aliens attending public schools will be subject to the notification procedures of Section 28(a)(4), which requires in every instance a statement under penalty of perjury that the alien is lawfully present. The parents or guardians of unlawfully present aliens therefore will face a Hobson’s choice: Either fail to comply with the notification procedures, which will necessarily result in their child being “presumed” to be unlawfully present, with whatever consequences that might have (or that the alien might fear would occur), or perjure themselves by making a false statement about their child’s status, with whatever consequences that might have. To require an alien seeking access to education first to endure this sort of inquiry about whether one or one’s children are lawfully present is the sort of “inquisitorial practices and police surveillance” that so troubled the Hines Court. Hines, 312 U.S. at 74.
Furthermore, by hindering aliens’ access to public schools, Alabama has unilaterally and dramatically departed “from the norms of mutuality, hospitality, and respect that have informed U.S. law and foreign policy.” Burns Decl., ¶ 37. Alabama thus “risks the adoption of harmful reciprocal measures toward U.S. nationals by foreign governments,” among other possible deleterious foreign policy consequences. Id., ¶ 38. Because Section 28 “provoke[s] questions in the field of international affairs,” Alabama’s actions “bear an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquility of one.” Hines, 312 U.S. at 66. It is not Alabama’s prerogative to “foster[] . . . a damaging perception that the United States is becoming more hostile to foreign nationals.” Burns Decl., ¶ 38. Accordingly, Section 28 conflicts with federal policies in the areas of education and foreign
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relations. That Section 28 serves no legitimate state interest is confirmed by the law’s overbreadth.
The notification requirements apply if “upon review of the student’s birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Ala. H.B. 56 § 28(a)(3) (emphasis added). If an unlawfully present alien gives birth to a child in the United States, the child would be a United States citizen by virtue of the child’s birth in the United States.9 Because the alien status of the parent would be irrelevant to the child’s status in these circumstances, Alabama can have no legitimate reason for seeking this information in this circumstance. The same is true even for children of aliens “born outside the jurisdiction of the United States.” It is not obvious how a child’s birth certificate would allow school officials to determine the immigration status of the child’s parents; even if a birth certificate contained immigration-status information about a parent at the time of birth, that information would be outdated by the time the child attended school. Because Alabama has no legitimate educational purpose in inquiring about parental alien status, it stands to reason that Alabama’s purpose in drafting Section 28 as it did was to discourage unlawful aliens from enrolling their children in school.
2. Alabama’s Mandatory Alien Registration Scheme for School Children is Preempted
As shown above, Alabama’s mandatory data collection, classification, and reporting requirements serve no valid education-related purpose. Instead, Alabama has impermissibly established a registration scheme for children (and derivatively their parents) akin to the one the
9 Moreover, simply because a child is born outside of the United States does not preclude the possibility that the child is a United States citizen—for example, by having a parent or parents who are United States citizens, the naturalization of a parent, and adoption by a United States citizen. See, e.g., 8 U.S.C. §§ 1401(c)-(g) (birth abroad to United States citizen parent(s)), 1431(a)-(b) (citizenship through naturalization of a parent or through adoption).
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Supreme Court invalidated in Hines, and the scheme is preempted for that further reason as well. The Pennsylvania alien registration law at issue in Hines required “every alien 18 years or over, with certain exceptions, to register once each year; provide such information as is required by the statute, plus any ‘other information and details that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or any agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one.” Hines, 312 U.S. at 56 (internal quotations omitted). The Supreme Court ruled that Pennsylvania’s mandatory registration scheme was preempted by federal law. Id. at 74.
No different result should obtain here with respect to Section 28. As the Supreme Court has observed, “[t]he States enjoy no power with respect to the classification of aliens,” Plyler, 457 U.S. at 225 (citing Hines, 312 U.S. 52 (1941)), which is precisely what Section 28 purports to do. Through its immigration status inquiry and verification procedures, Section 28 contemplates dividing up public school children into two categories: those “presumed” to be unlawfully present, Ala. H.B. 56 §§ 28(a)(5), and those not “presumed” to be unlawfully present. Because the federal government has enacted a “complete scheme of regulation” for alien registration and classification, see supra, pages 17-22, Alabama may not “conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 66-67. For all of the foregoing reasons, the United States is substantially likely to prevail in its challenge to Section 28.
H. Sections 12 and 18 of H.B. 56 – Alabama’s Mandatory Immigration Status Verification Scheme – are Preempted by Federal Law Unlike many of the aforementioned provisions, sections 12 and 18 do not create new
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state crimes or penalties associated with alienage. These provisions, however, represent a systematic effort by Alabama to inject itself into the enforcement of the federal government’s own immigration laws in a manner that is non-cooperative with the Secretary, and therefore is impermissible.
Sections 12 and 18 operate in tandem to mandate immigration status verifications upon an enormous number of routine encounters with law enforcement personnel.
Section 12(a) establishes the following scheme for verifying immigration status: Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Ala. H.B. 56 § 12(a). In turn, Section 18 provides an overlapping verification mandate for all persons arrested for driving without a license. Upon such an arrest, Alabama officials must make “[a] reasonable effort . . . to determine the citizenship of the person and if an alien, whether the alien is lawfully present in the United States by verification with the federal government pursuant to 8 U.S.C. § 1373(c).” Ala. H.B. 56 § 18(c). A determination must be made within 48 hours, and if the person is unlawfully present, then he “shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities.” Id., § 18(d). These mandatory verification provisions are reinforced through the creation of a private right of action, which subjects authorities to civil penalties of up $5,000 per day if a court concludes that “any official or agency . . . [has] adopt[ed] or implent[ed] a policy” that “limits or restricts the enforcement” of these provisions “to less than the full extent permitted by federal
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law.” Ala. H.B. 56 § 6(d). Sections 12 and 18 of H.B. 56 convert the Alabama police force into a roving
immigration patrol and conflict with the INA by prescribing an alien verification scheme that is inherently not one that is cooperative with the Secretary — despite the INA’s explicit requirement that states and local officers cooperate with federal officers if they choose to assist in the identification of unlawfully present aliens for immigration enforcement purposes. The INA precludes such state-directed immigration enforcement efforts — and for good reason. Alabama’s mandatory verification scheme promises to disrupt (i) federal control and discretion over immigration enforcement, (ii) the operation of DHS enforcement priorities generally, and (iii) the conditions of residence of lawfully present aliens. Any one of these effects is sufficient to preempt the statute. Accordingly, the United States is likely to succeed in its challenge to Sections 12 and 18.
1. Alabama’s Mandatory Verification Scheme Represents a NonCooperative Method of Participating in Federal Immigration Enforcement
In areas of exclusive federal concern – such as setting immigration policy and enacting regulatory schemes for the enforcement of that policy – Congress has the authority to offer States a choice between “conform[ing] to federal policy choices” and “regulating [ ] activity according to federal standards,” or “having state law pre-empted by federal regulation.” See New York, 505 U.S. at 167-68. In this context, Congress has explicitly recognized various opportunities for state assistance to federal officials in the latter’s enforcement of the federal immigration laws. For example, Congress has authorized states to broadly participate in enforcement actions in specified circumstances. See, e.g., 8 U.S.C. § 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration enforcement authority when an “actual or imminent
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mass influx of aliens . . . presents urgent circumstances requiring an immediate Federal response”); 8 U.S.C. § 1252c (authorizing state and local law enforcement to arrest aliens who are unlawfully present in the United States and were previously removed after being convicted of a felony); 8 U.S.C. § 1324(c) (granting certain state and local law enforcement officers the authority to make arrests for violations of federal smuggling and harboring laws). Outside of such specific authorizations, Congress has also recognized two avenues for the involvement by state and local law enforcement officers. 8 U.S.C. § 1357(g). First, a state or locality may “enter into a written agreement with” the Secretary “pursuant to which an officer or employee of the State or subdivision, who is determined by the [Secretary] 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 . . . may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.” 8 U.S.C. § 1357(g)(1). The conditions for any such agreement are detailed by the INA (see 8 U.S.C. § 1357(g)(1)-(9)), and make clear that any performance of immigration functions by the states “under this subsection,” “shall be subject to the direction and supervision of the [Secretary].” Id. § 1357(g)(3). Second, in the absence of a written agreement, state and local law enforcement may also act by “cooperat[ing] with the [Secretary] 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 plain terms of the INA thus require cooperation with the Secretary where states seek to participate in a systematic way in the “identification, apprehension, detention, or removal of aliens not lawfully present.” And, in requiring that the state’s performance of immigration functions “under this subsection” must not interfere with the Secretary’s ultimate supervisory authority and discretion, see 8 U.S.C. § 1357(g)(3), the statute makes clear that the guarantee of federal primacy applies
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equally even in the absence of a written agreement, and that a state law that provides for a
mandatory systematic or programmatic enforcement approach to the state’s own immigration policy or otherwise interferes with the Secretary’s authority or discretion is preempted.10
a. A State’s Systematic and Mandatory Verification of Immigration Status Must be Conducted in “Cooperation With” the Secretary
The INA requires that states or local officers “cooperate with” the Secretary if they
choose to assist federal officers in immigration enforcement, and states may not enact their own
mandatory schemes for verifying immigration status or otherwise identifying unlawfully present
aliens. In the absence of an agreement with the federal government on immigration enforcement
(or another express authorization), the INA allows states to assist “in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United States” only if
they do so in “cooperat[ion] with the [Secretary]” in pursuing such enforcement. 8 U.S.C. §
1357(g)(10)(B) (emphasis added). Although the term “cooperate with [the Secretary]” is not
expressly defined in section 1357, the meaning of the term follows from federal primacy in the
10 Any effort to read Section 1357(g)(10) as authorizing unlimited state-directed enforcement would violate clear congressional intent. First, the INA’s limited authorization of state involvement at the initial (arrest) stage of immigration enforcement in delineated circumstances (e.g., 8 U.S.C. §§ 1103(a)(10), 1252c, 1324(c)) would be nullified were Section 1357(g)(10) construed as authorizing unlimited state-directed enforcement. Any such construction would further undermine Congress’s intent by eliminating the close supervision contemplated by portions of Section 1357(g) which related to written agreements. It makes little sense to read the statute as requiring close supervision in cases where a state acts through a written agreement (where some level of supervision can be assured through the terms of the written agreement) but as being entirely indifferent to the federal role in situations where there is already reduced federal control over a state scheme due to the absence of a written agreement. Similarly, Section 1357(g)(10)(A) – which permits state and local officers to communicate with the Secretary regarding an individual’s immigration status – must be read in light of Section 1357(g)(10)(B), which immediately follows and provides for states to “otherwise cooperate” with the secretary, which implies that the communication occurring under Section 1357(g)(10)(A) for immigration enforcement purposes is also “cooperative.” Id. (emphasis added).
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administration and enforcement of the immigration laws. The text and underlying purpose of the immigration laws reveals complex and multi-faceted objectives.11 Accordingly, the extent and
method of federal enforcement of the INA must be informed not only by a singular interest of
preventing unlawful entry and residence, but also by, inter alia, the humanitarian and foreign
policy interests in ensuring the fair and equitable treatment of lawfully present foreign nationals
wherever they may visit and reside, and the need to exercise forbearance when dealing with
aliens (lawfully present or not) who may be eligible for humanitarian relief. See, e.g., Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 489 (1999) (observing that
enforcement discretion has long been “a special province of the Executive,” and that such
prerogatives “are greatly magnified in the deportation context”); see also Ragsdale Decl., ¶¶ 7, 9-
10, 18. In addition, Congress has further tasked DHS with establishing enforcement priorities to
ensure that finite resources for identifying, apprehending, and removing aliens are used in the
most effective manner. See DHS Appropriations Act, 2010, Pub. L. No. 111-83, Title II, 123
Stat. 2142, 2149 (2009); Pub. L. No. 110-329, Title II, 122 Stat. 3574, 3659 (2008); see also
H.R. Rep. 111-157, at 8 (2009) (“[R]ather than simply rounding up as many illegal
immigrants as possible, which is sometimes achieved by targeting the easiest and least
11 For example, DHS or DOJ may generally order the removal of an unlawfully present alien or an alien who has engaged in certain unlawful conduct, see 8 U.S.C. §§ 1182, 1225, 1227, 1228(b), 1229, 1229a, 1231, and in certain instances, may employ civil and criminal sanctions for immigration violations, such as unlawful entry, failing to appropriately register with the federal government, and document fraud, see, e.g., 8 U.S.C. §§ 1325, 1306, 1324c. But the administering agencies are not required to pursue removal or other sanctions in every case, as other congressional purposes may counsel in favor of forbearance or even an affirmative grant of relief. See, e.g., 8 U.S.C. § 1158 (asylum); § 1254a (temporary protected status); § 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure family unity); § 1229b (cancellation of removal); § 1182 (d)(5) (parole); § 1182(a)(6)(A)(ii) (exclusions from inadmissibility); 8 C.F.R. § 274a.12(c)(14) (limited employment authorizations); Ragsdale Decl. ¶¶ 7, 9, 10, 18, 41 (“[T]he federal government often has affirmative reasons for not bringing immigration charges against an alien.”). The ability to forego sanctions represents a type of enforcement option that the INA directly and explicitly establishes.
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threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”); id. (“When individuals are identified as illegally present in the United States, ICE can take appropriate steps to ensure the most dangerous of these criminals are deported upon completion of their jail sentences, while those convicted of lesser crimes are identified and deported as resources allow.”) (emphasis added); see also Ragsdale Decl., ¶ 10 (Resource constraints “necessitate[] prioritization to ensure that ICE expends resources most efficiently to advance the goals of protecting national security and public safety and securing the border”). Congress’s desire that the federal government balance competing immigration objectives while effectively prioritizing its enforcement resources is reflected in the federal administration and enforcement of the immigration laws, and necessarily requires federal officers to exercise discretion when setting a direction for immigration enforcement. U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (describing immigration control as “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program”) (internal citations omitted)
Because DHS is charged with administering the immigration laws, and therefore with setting a direction for enforcement, the INA’s “cooperation” requirement means that a state may not adopt its own mandatory set of directives to implement the state’s own enforcement policies because such a mandate would serve as an obstacle in every instance to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances in the particular case require. Thus, for example, a state may systematically involve itself (as H.B. 56 does) in immigration enforcement only if state and local officers remain in a position to respond to the judgment and discretion of appropriate federal
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officers, and only if the state acts consistently with the policies and any applicable direction set
by federal officials. Accordingly, a state is not acting “cooperatively” if it disregards express
federal direction; attempts to force the federal government to routinely deploy scarce
enforcement resources in accordance with an immigration enforcement regime of a state’s
choosing; or if it attempts to deny its officers (who are assisting federal officers in enforcing the
INA) the opportunity to exercise their discretion on a case-by-case basis so that they can be
responsive to the direction and priorities of the federal officials charged with implementing and enforcing the immigration laws.12 As the Ninth Circuit has explained, a state may not “assume[]
a role in directing its officers how to enforce the INA,” because no “INA provision
demonstrat[es] that Congress intended to permit states to usurp the [Secretary’s] role in directing
state enforcement of federal immigration laws.” United States v. Arizona, 641 F.3d at 350.
Thus, cooperation with federal enforcement requires preservation of the federal government’s
statutorily assured enforcement discretion, which must allow the appropriate balance of the various concerns underlying the INA.13
12 The United States is not challenging Alabama’s power to authorize its officers to assist federal officers in their enforcement of the immigration laws. However, the prospect of such authorization does not allow a state to systematically mandate enforcement of federal immigration law in particular circumstances. Any such state -directed mandate would function as a parallel or contradictory direction, in competition with the Secretary’s direction, as to how to enforce immigration law, thereby eroding the federal government’s exclusive authority over immigration enforcement. It would also force the federal government to divert resources away from the enforcement priorities it has set.
13 The “cooperation” requirement does not necessarily require ex ante permission from the federal government for state and local law enforcement personnel to assist in immigration enforcement; Section 1357(g)(10) recognizes that formal authorization is not required before every instance of such cooperation. And the INA’s requirement that the assistance rendered by states and local officers be cooperative or responsive to federal priorities and exercise of discretion likewise does not require affirmative authorization before every single act of assistance. However, the need to preserve federal primacy and ultimate federal enforcement discretion does preclude systematic efforts to reject federal control or direction, or to
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Per the plain terms of the INA, then, states may participate in the “identification . . . of
aliens not lawfully present” — in other words assist in immigration status verification — only if
they do so in cooperation with the Secretary.
b. Alabama’s Mandatory Verification Scheme Inherently Interferes with Federal Discretion and is Not Cooperative
In categorically mandating immigration status verification for the entire alien population,14 Alabama has violated the INA’s requirement that alien verification proceed in
cooperation with the Secretary. 8 U.S.C. § 1357(g)(10)(B). Although the federal government is
exclusively entrusted with setting national immigration policy and enacting frameworks for
administering and enforcing such policies — including the processes and techniques used for
systemically identifying unlawfully present aliens for law enforcement purposes — Alabama
has, through Sections 12 and 18, dictated the circumstances under which verification is required
and thereby “usurp[ed] the [Secretary’s] role in directing state enforcement.” Arizona, 641 F.3d
at 350. H.B. 56 thus embodies an unmistakably non-cooperative scheme. Sections 12 and 18
mandate that Alabama law enforcement personnel participate in the “identification,
apprehension, detention, or removal of aliens not lawfully present in the United States,” see 8
categorically demand enforcement in such a way as to deprive the federal government – and state and local officers – of the flexibility and discretion that animates the federal government’s ability to globally supervise immigration enforcement and to exercise judgment and discretion in particular cases where the responsible federal officers elect to do so.
14 Although verification under Section 12 arises only after a lawful stop, the combination of Sections 12, 10, and 6 expand the dragnet much further. As described previously, anyone who is unlawfully present has committed a crime under Alabama law. See supra, page 17-22. Ala. H.B. 56 § 10. The Act’s maximal enforcement directive, on pain of the sanctions Sections 5 and 6 threaten, requires Alabama police to vigorously pursue investigations of the remainder of H.B. 56, including Section 10. Thus, Alabama police have been commanded to seek out the unlawfully present so as to pursue enforcement of Section 10. Once an alien is lawfully stopped as part of an investigation of a violation of Section 10 (stops that are generally commanded by Section 6), the remainder of the verification scheme kicks in.
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U.S.C. § 1357(g)(10)(B),15 but preclude the availability of discretion of the sort that federal
officers may exercise, as well as the prospect of responsiveness to federal enforcement priorities.
See Ragsdale Decl., ¶¶ 18, 22, 40-41 (“Section 12 is not in alignment with federal guidance on
use of discretionary authority and finite enforcement resources, because an alien in Alabama may
be unlawfully present in the United States but may be an individual for whom ICE would decide
or already has decided, subject to its internal policies, to afford some case-specific exercise of
prosecutorial discretion.”). In its place, H.B. 56 imposes direction from Alabama to verify upon
any lawful stop that gives rise to a suspicion of unlawful presence or any occasion in which an
alien is found driving without a license. This substitution of a state mandate outside of federal
control, exceeds the INA’s scope of permissible state enforcement activity. See 8 U.S.C. §
1357(g)(10)(B).
Tellingly, Section 12 relieves state and local law enforcement of the burdens of
verification “if the determination may hinder or obstruct an investigation.” Ala. H.B. 56 § 12(a).
Alabama thus recognizes that an inflexible verification mandate may interfere with the broader concerns of its own law enforcement16 (and accordingly provides an exception), but at the same
time evinces no concern for whether implementation of the verification mandate in a particular
15 The federal government’s ultimate exclusive control over removal does not somehow minimize the importance of federal direction over the verification process. Congress explicitly included the “identification . . . of aliens not lawfully present,” 8 U.S.C. § 1357(g)(10)(B), as a process that requires cooperation with the Secretary, and thus prohibits states from requiring a verification process that by its very structure, cannot be responsive to the direction and discretion of the federal government. See Ragsdale Decl., ¶ 18 (“ICE exercises prosecutorial discretion throughout all the stages of the removal process [including] investigations.”).
16 Various Alabama law enforcement officers have confirmed that H.B. 56 will result in such interference with police activity. See Declaration of Mike Hale, Sheriff of Jefferson County (Attached as Exhibit 4), ¶ 7 (“[H.B. 56] will cause direct interference with my office’s general work, and its ability to respond to an emergency (such as we did, and are still doing, after the recent tornado.”); Declaration of A.C. Roper, Chief of Birmingham Police Department (Attached as Exhibit 5), ¶¶ 5-8; Declaration of Roy Latham, Sheriff of Clay County (Attached as Exhibit 6), at 3.
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instance would interfere with the federal government’s broader immigration enforcement objectives, policies, and discretion, or resource constraints. In other words, Alabama does not countenance competing federal needs when it wishes to initiate a Section 12 verification inquiry, but when Alabama’s interests are at stake, its maximal enforcement mandate yields.
The mandate embodied in Sections 12 and 18 is especially egregious because it not only casts off the prospect of federal priorities and direction, but affirmatively disregards the federal direction that has already been issued. As part of the authority assigned by the INA to balance the competing concerns of the INA, and in order to manage resource constraints, DHS has made, as its top priority, enforcement efforts against “[a]liens who pose a danger to national security or a risk to public safety.” See John Morton, Assistant Secretary of DHS, ICE, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (June 2010). Consistent with this enforcement priority, the federal government principally targets aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and repeat border crossers and fugitive aliens, especially those with criminal records. Ragsdale Decl., ¶¶ 8-9. These priorities animate DHS’s internal enforcement decisions, and over time, through the traditional and ongoing process of cooperative communication with state and local law enforcement officers, these priorities communicate to states how the federal government is attempting to balance resource constraints and competing immigration objectives. Ragsdale Decl., ¶¶ 5-20; id., ¶ 13 (“ICE routinely communicates with local law enforcement officers on an informal basis, and through this ongoing cooperative process, over time, ICE is generally able to relay its enforcement priorities to individual local law enforcement officers.”).
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But H.B. 56 imposes an inflexible mandate that necessarily prevents state and local law enforcement officers from even attempting to tailor their assistance over time to this federal priority, and instead requires the entire state and local police forces to target individuals such as jaywalkers and aliens who forgot their driver’s licenses. This affirmative conflict with the chosen federal approach and priorities renders Sections 12 and 18 non-cooperative and therefore preempted by the INA.
2. Alabama’s Verification Scheme Will Impermissibly Burden Federal Resources
Putting aside that H.B. 56’s verification mandate constitutes per se non-cooperation – and therefore conflicts with and is preempted by the INA – Sections 12 and 18 would result in real, impermissible burdens on the federal government. Sections 12 and 18 require local law enforcement officers to obtain immigration status information from the federal government by making a request to the Law Enforcement Support Center (“LESC”) under 8 U.S.C. § 1373(c). Because Alabama has imposed an across-the-board requirement that its law enforcement officers verify the immigration status of every person stopped who is reasonably suspected to be unlawfully present and every alien stopped without a driver’s license, the number of new verification requests made to DHS will undoubtedly be significant. See Hale Decl., ¶ 9. The state mandate would thus interfere with LESC’s immigration investigation functions. “[T]he LESC prioritizes its efforts in order to focus on criminal aliens and those most likely to pose a potential threat to their communities.” Declaration of William M. Griffen, Acting Unit Chief for LESC (Attached as Exhibit 7), ¶ 15. DHS has advised that “H.B. 56 will inevitably result in a significant increase in the number of” immigration verification queries, and that such an increase would “reduc[e] [LESC’s] ability to provide timely responses to law enforcement on serious criminal aliens.” Griffen Decl. ¶¶ 22-24. This increase in requests therefore would create a
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significant risk that the federal government would be forced to shift resources away from its chosen priorities. See id. ¶¶ 23, 26-29; Ragsdale Decl., ¶ 44.
Such interference with DHS operations would result both from the sheer number of the Alabama inquiries, and the resulting difficulty in differentiating between high and low priority verification requests. The LESC system does not automatically route inquiries based on seriousness of the offense that gives rise to the verification request. Griffen Decl., ¶¶ 16, 25. Accordingly, DHS needs to individually prioritize each incoming request for information. Id., ¶ 16. Alabama’s contemplated submission of verification requests for minor offenses and those who drive while talking on their cell-phones (see Montgomery Ordinance No. 34-2010) would make it exponentially more difficult for DHS to pay timely attention to inquiries related to high priority or time-sensitive enforcement targets. Griffen Decl., ¶¶ 26-28. This is all the more true where the state promises to detain such individuals until the federal government provides a verification response.
This substantial uptick in verification requests would interfere with federal operations. LESC resources are available not only for immigration verification but also are dedicated in part to critical national security and law enforcement functions. Griffen Decl., ¶ 9. LESC processes FBI requests for immigration-related background information on individuals seeking to purchase firearms, U.S. Secret Service requests for individuals seeking access to a protected area (e.g., the White House Complex), and requests related to employment issues at sensitive locations that could be vulnerable to sabotage, attack, or exploitation. Id. By commandeering greater proportion of LESC resource capacity, Sections 12 and 18 would leave LESC with far fewer resources to devote to these other, crucial law enforcement functions. Accordingly, implementation of H.B. 56’s mandatory verification scheme would “reduc[e DHS’s] ability to
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provide timely responses to law enforcement on serious criminal aliens,” thereby potentially allowing “very serious violators [to] escape scrutiny and be released before the LESC can respond to police” and inform them of the serious nature of the unlawfully present alien they have encountered. Id., ¶ 28.
The Supremacy Clause prohibits such interference with federal priorities, especially where the interference is driven by state-imposed burdens on federal resources that result from a state’s categorical refusal to conform – and categorical refusal to allow its officers to conform – to federal discretion, prioritization and oversight on immigration enforcement. See United States v. Arizona, 703 F. Supp. 2d 980, 995 (D. Ariz. 2010) (“The United States argues that the influx of requests for immigration status determination directed to the federal government or federallyqualified officials would impermissibly shift the allocation of federal resources away from federal priorities. State laws have been found to be preempted where they imposed a burden on a federal agency's resources that impeded the agency’s function.”) (affirmed on other grounds by United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). Even outside of the immigration framework, a state law is preempted where it imposes a burden on a federal agency’s resources that impedes the agency’s functions. See, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349-51 (2001) (preempting state law cause of action in part because it would encourage third parties to submit a deluge of unnecessary information to the FDA, thereby burdening the agency’s ability to evaluate drug applications in a timely fashion); Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (acknowledging serious concerns regarding the city’s use of federal authorities in determining immigration status).
In assessing the scope of H.B. 56’s interference with federal operations, moreover, the Court must consider the cumulative impact that would result if Alabama’s scheme were
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replicated in other states. See, e.g., North Dakota v. United States, 495 U.S. 423, 458 (1990) (Brennan, J., concurring in the judgment in part and dissenting in part) (considering that the difficulties presented by state requirement would “increase exponentially if additional States adopt[ed] equivalent rules,” and noting that such a nation-wide consideration was “dispositive” in Public Utility Commission of the State of California v. United States, 355 U.S. 534, 546 (1958)); see generally Arizona, 641 F.3d 339. Indeed, the prospect of such additional legislation is not speculative: Not only Arizona, but also Georgia, Indiana, South Carolina, and Utah have already adopted their own immigration enforcement measures. Enactments by additional states of H.B. 56-like mandates will only further burden DHS’s operations. Griffen Decl., ¶ 28; Ragsdale Decl. ¶ 38; Chae v. SLM Corp., 593 F.3d 936, 948-49 (9th Cir. 2010) (similar).
3. Alabama’s Verification Scheme Will Impermissibly Result in the Harassment and Interrogation of Lawfully Present Aliens
By adopting its own mandatory verification scheme in Sections 12 and 18, the State of Alabama would also necessarily impose substantial burdens on lawful immigrants in a way that conflicts with the INA’s provision of nationally uniform rules governing the treatment and registration of aliens throughout the country — rules designed to ensure “our traditional policy of not treating aliens as a thing apart.” Hines, 312 U.S. at 73-74. As the Court held in Hines, Congress has “plainly manifested a purpose to . . . protect the personal liberties of law-abiding aliens . . . and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against.” Id. at 74. Specifically, Hines made clear that the INA’s uniform method of registering or tracking aliens is undermined by state laws that “impos[e] distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception
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and interrogation by public officials.” Id. at 65-67. It is for the federal government, not the individual states, to establish a system for tracking aliens because such laws, which govern the conditions of residence of foreign nationals, “bear[] an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquillity of one.” Id. at 66. In exercising its constitutionally assigned authority in this field, the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked, especially where such a system operates outside the control of federal officials who protect the interests of the nation as a whole. Sections 12 and 18 are at odds with this longstanding federal policy and practice. The Supreme Court has consistently recognized that where, as here, the Constitution commits a particular topic exclusively to the federal government’s authority, “Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national.” Henderson v. Mayor of the City of New York, 92 U.S. 259, 274 (1876); Graham v. Richardson, 403 U.S. 365, 378 (1971) (states cannot pass laws that conflict with “overriding national policies in an area constitutionally entrusted to the Federal Government”).
Although Alabama’s verification scheme may intend to ultimately target unlawfully present aliens, the system would inevitably subject lawfully present aliens to the type of “indiscriminate and repeated interception and interrogation by public officials” that Hines described as preempted by the INA. 312 U.S. at 66. After all, the very nature of an immigration status verification scheme, i.e., a scheme to determine whether an alien is lawfully or unlawfully present, is only necessary to resolve ambiguity as to the immigration status of a stopped individual.
There are numerous categories of individuals who will be lawfully present but who will not have readily available documentation to demonstrate that fact. For example, some lawful
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foreign travelers visiting from countries participating in the Visa Waiver Program will not have a form of identification sufficient to demonstrate lawful presence under Section 12. Declaration of David V. Aguilar, Deputy Commissioner, CBP (Attached as Exhibit 8), ¶¶ 10-11. Several categories of individuals who have applied for asylum, temporary protected status, U or T nonimmigrant visas for victims of crimes who are providing assistance to law enforcement, or abused women petitioning for immigration relief under the Violence Against Women Act, also may not have a form of identification sufficient to demonstrate lawful presence. Scialabba Decl., ¶¶ 3, 11, 21, 26, 31, 37, 29. Moreover, United States citizens are of course not required to carry proof of citizenship and some will not have easy access to documents that readily satisfy H.B. 56. Many U.S. citizens do not have or carry a government-issued photo identification, such as minor children and others who do not have a driver’s license.17 And if Alabama officers contact DHS about a U.S. citizen’s immigration status, DHS may not be able to confirm the person’s citizenship, as many citizens have no entries in DHS databases. See Griffen Decl. ¶¶ 17, 29.
Section 12’s reliance on a “reasonable suspicion” of unlawful presence does little to mitigate the risk of an application to lawfully present aliens. “[T]he requirement of reasonable suspicion is not a requirement of absolute certainty.” N.J. v. T.L.O., 469 U.S. 325, 346 (1985); see also Safford Unified School Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2647 (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 less suspicion is needed than would be required to satisf[y] a preponderance of the evidence standard.”)
17 In the context of a vehicle stop, it is not clear that Section 12 applies only to the driver of the vehicle. If, for example, an officer develops “reasonable suspicion” during a stop that passengers in the vehicle are unlawful aliens, the Act’s maximal enforcement provisions suggest that the officer would have an affirmative obligation to initiate a verification inquiry for each individual the officer suspected as unlawfully present.
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(internal citations omitted). Many factors used to support a “reasonable suspicion” that an alien is unlawfully present could also apply to lawfully present aliens. See Hale Decl., ¶ 11 (“I do not believe it is possible to instruct my deputies on how to enforce H.B. 56 without taking into consideration factors such as the person’s appearance and manner of speaking.”); Roper Decl., ¶ 11. So, at the outset, Section 12 would necessarily result in the interception and interrogation of lawfully present aliens, and therefore conflicts with the INA.18
H.B. 56’s application to lawfully present aliens is explicit in Section 18, which demands verification for all aliens, regardless of whether there is any suspicion whatsoever of unlawful presence. The prospect of harassment of lawfully present aliens is compounded further by the risk that aliens also will be subject to prolonged detention as Alabama law enforcement officials await the result of a verification inquiry. Section 18 explicitly allows for detention for 48 hours before a verification inquiry is even submitted. See H.B. 56 § 18(c). And unlike Section 12(a), Section 18 provides no limitation on the length of detention that can result from an immigration status verification. Indeed, the only assurance the Act provides is that a private citizen of Alabama can sue a local law enforcement agency for money damages if that agency fails to enforce the immigration laws to the fullest extent possible. H.B. 56 § 6(d). Thus, if forced to decide between holding and releasing a lawfully present alien during the pendency of a status verification, the statute is clearly designed to encourage Alabama police authorities to opt for continued detention. See, e.g., Hale Decl. ¶ 4 (“[M]y deputies will be required to detain the
18 The likely magnitude of the interception and interrogation scheme — and thus, the degree of conflict with the INA — becomes more pronounced because of the total absence of police training on immigration matters. As one Alabama sheriff has explained, “my deputies . . . are not familiar with reasonable suspicion as to immigration status” and “have not received training on federal immigration law.” Hale Decl. ¶ 10; see also Declaration of Bobby Timmons, Executive Director of Alabama Sheriffs’ Association (Attached as Exhibit 10), ¶ 5 (noting absence of training related to H.B. 56). This absence of training renders the “reasonable suspicion” standard a useless safeguard against application to lawfully present aliens.
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target of the stop pending confirmation of the individual’s immigration status.”). There is also no assurance that a lawfully present alien who is subjected to an immigration status verification under Section 12 would not be subjected to the same inquiry the very next time he is stopped by the police for any reason — raising the specter of the prospect for exactly the type of “repeated interception and interrogation” that Hines held to be preempted by the INA.
Through the INA’s exclusive control over the conditions of residence for lawfully present aliens, the federal government has developed a complex system for tracking aliens throughout the United States. Scialabba Decl. ¶¶ 2, 41–43. The calibration of this system is a federal concern, and — as Hines held — the preservation of federal exclusivity in the area of alien registration is necessary to promote the INA’s goal of ensuring the consistent treatment of aliens. In adopting Sections 12 and 18, Alabama has subjected lawfully present aliens to a redundant tracking system of the type that was held to be unlawful in Hines. Sections 12 and 18 would necessarily increase police intrusion into the lives of lawfully present aliens and compel them to prove their lawful status to the satisfaction of state or local authorities, which is exactly the type of redundant local inquisition and special burden cautioned against by Hines; see also De Canas, 424 U.S. at 358 n.6 (“Of course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress”). The United States is accordingly substantially likely to prevail in its preemption challenge to Sections 12 and 18. II. THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT A
PRELIMINARY INJUNCTION Upon demonstrating a likelihood of success on the merits, a plaintiff must also establish that, absent the preliminary injunction, there is a likelihood that the defendant’s conduct will cause irreparable harm. See Osmose, Inc., 612 F.3d at 1320. Preliminary injunctive relief is
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necessary here because H.B. 56 is causing irreparable harm to the United States, and this harm will only be magnified if the law goes into effect. If not enjoined, H.B. 56 will continue to cause irreparable harm to the United States in at least four significant ways. First, H.B. 56 irreparably undermines the federal government’s control over the regulation of immigration and immigration policy. If H.B. 56 is permitted to become effective on September 1, 2011, the federal government’s administration of the immigration laws will be altered and, at least during the pendency of this action, the federal government’s ability to achieve its chosen balance of the multiple and competing goals underlying the federal immigration system will be seriously damaged. Among other things, as discussed above, H.B. 56 would override and impair the ability of DHS to execute the federal government’s enforcement priorities in locating, detaining, prosecuting, and removing criminal aliens who pose risks to the safety and security of our Nation’s citizens. See Ragsdale Decl., ¶ 38, Griffen Decl., ¶¶ 26-28. This assault on federal priorities is not speculative, as the purpose of H.B. 56 is to interfere with and disrupt the daily lives of unlawfully present aliens in every conceivable way, so that ultimately the federal government will be compelled to initiate enforcement proceedings against these individuals. In the words of H.B. 56 co-sponsor Mickey Hammon, “We really want to prevent illegal immigrants from coming to Alabama and to prevent those who are here from putting down roots.” Julia Preston, In Alabama, a Harsh Bill for Residents Here Illegally, New York Times, June 3, 2011.19 By violating the Constitution’s structural reservation of authority to the federal government to set immigration policy, H.B. 56 effects ongoing irreparable harm to the constitutional order. See Arizona, 641 F.3d at 366 (finding irreparable harm where state enacted an immigration statute that was likely preempted, stating that “an alleged constitutional
19 Available at: http://www.nytimes.com/2011/06/04/us/04immig.html 66

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infringement will often alone constitute irreparable harm.”); see also Morales v. Trans World Airlines, 504 U.S. 374, 381 (1992) (noting that irreparable injury requirement does not prevent courts from enjoining enforcement of unconstitutional laws); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that “irreparable injury may possibly be established . . . by a showing that the challenged state statute is flagrantly and patently violative of . . . the express constitutional prescription of the Supremacy Clause”). Although the Eleventh Circuit has noted that not every allegation that a defendant has violated a plaintiff’s constitutional rights will constitute irreparable harm, see Northeastern Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990), where a constitutional injury is “intangible in nature” and “cannot be undone through monetary remedies,” irreparable harm is evident. See id.; e.g., Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) (holding that loss of First Amendment rights constitutes irreparable injury); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (holding that loss of constitutional privacy rights constitutes irreparable injury). As noted above, a violation of the fundamental division of constitutional authority between the federal and state government is an injury that cannot be undone, and is of sufficient magnitude to itself constitute irreparable harm.
Second, as discussed above, H.B. 56 will immediately alter the conditions of residence for lawfully present aliens, thereby resulting in the harassment of lawfully present aliens. Such harassment and alteration of aliens’ conditions of residence frustrates the United States’ relationship with immigrant communities and damages the United States’ reputation both with other countries and with lawfully admitted aliens. See Ragsdale Decl., ¶¶ 49-50; Burns Decl., ¶¶ 9, 19 (“[D]omestic processes for arrest, detention, and removal of aliens and other aspects of their treatment in the United States are of great interest to foreign governments because of the
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impact these processes have on foreign nationals and their families”; see also Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987) (injury is irreparable if it “cannot be undone through monetary remedies”); Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (“[W]e have also recognized that intangible injuries, such as damage to ongoing recruitment efforts and goodwill, qualify as irreparable harm.”). DHS, which maintains the primary interest in the humane treatment of aliens and the fair administration of federal immigration laws, has advised that such “humanitarian interests would be undermined” if certain aliens or categories of aliens are “detained or arrested by Alabama authorities for being illegally present in the United States,” including aliens eligible for or seeking asylum, aliens seeking protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and aliens in various other circumstances which require individualized discretion. Ragsdale Decl. ¶¶ 41-42. However, because it is impossible for the state to know when ICE would apply such discretion, and because H.B. 56’s blanket and mandatory enforcement policy makes any such knowledge irrelevant, it is all but guaranteed that H.B. 56 will work a very real and irreparable interference with Congress’s humanitarian objectives and enforcement priorities, which are now carried out by ICE’s measured exercise of discretion. See Ragsdale Decl. ¶¶ 9, 10, 18, 22, 40-41 (explaining uses of discretion for humanitarian interests). A court cannot undo the effect of a victimized alien’s inability to find housing, or improper detention, anymore than it can undo the impact that repeated police interrogations would have on a marginalized foreign population, or the chilling effect of a school alien verification program. Nor could a court order undo the message that such conduct would convey abroad. See Georgia Latino Alliance for Human Rights v. Deal, Case No. 11-1804, Doc. 93, June 27, 2011 (N.D. Ga.) (order granting preliminary injunction and finding likelihood of
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irreparable injury because aliens “will be subject to criminal penalties under laws that are allegedly preempted by federal law and the Supremacy Clause of the United States Constitution”).
Third, irreparable harm will result because the enforcement of H.B. 56 will, as discussed above, place a significant burden on DHS resources and force DHS to react to Alabama’s enforcement of H.B. 56 at the expense of its own policy priorities – namely, aliens presenting threats to national security and public safety. See Griffen Decl. ¶¶ 23, 26-29; Ragsdale Decl., ¶¶ 36-39; Declaration of Dominic Gentile, Chief of Records Division, USCIS (Attached as Exhibit 11), ¶¶ 10-11. Sections 12 and 18 of H.B. 56 will result in a dramatic increase in verification requests to DHS. Such an increase is not speculative; it is the exact point of the law. See Griffen Decl., ¶¶ 22-24, 26-29 (“Alabama H.B. 56 will inevitably result in a significant increase in the number of [queries] received by the LESC . . . . This will reduce our ability to provide timely responses to law enforcement on serious criminal aliens as resources will need to be devoted to handling these non-priority queries.”); Ragsdale Decl. ¶¶ 36-39 (“Responding to the number of referrals likely to be generated by enforcement of H.B. 56 and similar state laws could require ICE to divert existing resources from other duties, resulting in fewer resources being available to cases and aliens within ICE’s priorities.”). And, as explained above, the greater share of DHS’s attention that Alabama receives as a result will reduce the federal ability to pursue dangerous aliens. If H.B. 56 is not enjoined, every day the federal government is forced to focus on managing the output of H.B. 56 rather than on these dangerous aliens will constitute an irreparably lost opportunity to focus on higher priority targets. Moreover, H.B. 56 will force the federal government to dedicate resources to Alabama’s inquiries that might otherwise be allocated to non-immigration national security matters, and will increase the
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difficulty of distinguishing between high priority and time-sensitive enforcement matters and the low-level violations that may give rise to verification inquiries under H.B. 56. This, in turn, poses significant and irreparable risks to the safety and security of our nation’s citizens. Enforcement of H.B. 56’s mandatory attrition provisions will similarly interfere with ICE’s outreach program, which ensures the assistance of unlawfully present aliens in the prosecution of higher priority threats and will also endanger federal immigration authorities’ capacity to apprehend highly dangerous targets. Ragsdale Decl., ¶¶ 46-48. Once this type of damage is done to ICE’s enforcement priorities during the period in which Alabama’s maximal enforcement scheme supplants the federal government’s balanced set of values, no final judgment can undo it.
Finally, the enforcement of H.B. 56 will inflict irreparable injury on the United States’ ability to manage foreign policy. As a specific matter, the effect of Alabama’s scheme is to criminalize unlawful status to such an extreme degree so as to conflict not only with the United States’ humanitarian interests, but also its stated foreign policy. Under H.B. 56, aliens in Alabama who may have committed no crime under federal or international law but who have remained in the United States without permission, will either be subjected to detention and incarceration in Alabama, or will be evicted from their homes and denied access to virtually all state and local services designed to benefit those in need. But as a matter of articulated foreign policy, the United States has committed itself not to treat another foreign state’s citizens in such a manner where those foreign nationals are merely unlawfully present. See Burns Decl. ¶¶ 34-37. The consequence of individual states like Alabama acting contrary to the stated foreign policy of the United States — which foreign governments rely upon — are obvious and dire. Burns Decl., ¶¶ 34-38, 50-53.
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As a general matter, the mere existence of Alabama’s comprehensive, punitive immigration policy — with its concomitant promise of the sweeping criminalization of immigrant populations — has already had negative effects on U.S. foreign policy interests, and these consequences will intensify if H.B. 56 is permitted to operate. The reaction of foreign governments to H.B. 56 — from around the Western Hemisphere and elsewhere, including the government of Mexico — has undermined the United States’ ability to pursue various diplomatic objectives and broadly damaged American interests. Burns Decl., ¶¶ 39-45. Such reactions are the predictable result of a state immigration policy whose exclusive aim is attrition of foreign nationals in Alabama through a policy of maximum “enforcement” of particular criminal sanctions – a policy given teeth by a discretion-less verification scheme that enforces a series of interlocking and virtually automatic criminal penalties. Burns Decl., ¶ 21 (“The exercise of immigration functions can quickly provoke a significant bilateral or multilateral problem that harms U.S. interests if handled without appropriate consideration of relevant foreign policy implications.”); id., ¶ 19 (“[D]omestic processes for arrest, detention, and removal . . . are of great interest to foreign governments.”); id., ¶ 31 “[As] a matter of international law and practice, the federal government is held accountable . . . for the actions of state and local authorities regarding our treatment of foreign nationals.”). The State Department carefully cultivates relationships with foreign governments so as to enable maximum cooperation on issues of concern to the United States and its citizens — such as immigration, national security, and economic policy. Indeed, with the deepest understanding of these complex foreign relationships, the State Department advises that H.B. 56 “is likely to hinder our ability to secure the cooperation of foreign governments in efforts to promote U.S. interests internationally across a range of trade, security, and other interests,” is “likely [to] undermine the United States’ ability
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to engage effectively with the international community to promote the advancement and protection of human rights,” and “risk[s] provoking retaliatory treatment against U.S. nationals by other states.” Burns Decl., ¶ 54. Damage that is done to these relationships is irreparable, as it cannot be undone by court order. This ongoing and expected irreparable harm to weighty foreign policy interests alone warrants preliminary injunctive relief. See Garamendi, 539 U.S. 396 (upholding district court’s injunction due to interference with foreign policy). III. A BALANCING OF THE HARDSHIPS FAVORS THE UNITED STATES AND
DEMONSTRATES THAT THE PUBLIC INTEREST WOULD NOT BE DISSERVED BY GRANTING INJUNCTIVE RELIEF In this action, which seeks to protect the interests of the United States as a whole, the burdens that will result absent injunctive relief are directly tied to the public benefits that will be protected if this Court issues the requested injunction. See Scott, 612 F.3d at 1290 (noting that where the government is a party, the third and fourth preliminary injunction considerations are largely the same); Nken v. Holder, 129 S. Ct. 1749, 1762 (2009) (stating, in the related context of criteria governing stay of removal, that the criteria of “harm to the opposing party” and “the public interest” “merge when the Government is the opposing party” because harm to the Government is harm to the public interest). As discussed throughout this memorandum, a variety of national, public interests are endangered by the operation of H.B. 56, and will be promoted by the issuance of the requested injunction. Preliminary injunctive relief will permit federal immigration authorities to continue to focus on high priority issues of national security and public safety; will curb the damage to foreign policy and preserve the federal government’s ability to productively cooperate with other countries on issues of public importance, such as national security, trade, tourism, and the environment; and will prevent unnecessary and impermissible burdens on lawfully present aliens.
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By contrast, a preliminary injunction will not meaningfully burden Alabama. H.B. 56 has not yet gone into effect, so an injunction in this context would merely preserve the status quo. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1261, 1262 (11th Cir. 2005) (noting that textbook application of an injunction is where it would “preserve the status quo and prevent allegedly irreparable injury until the court had the opportunity to decide whether to issue a permanent injunction”). Were this Court ultimately to conclude that H.B. 56 does not offend the Supremacy Clause, Alabama would then be able to implement and enforce H.B. 56 without having suffered any substantial burden. Alabama can hardly argue otherwise, in light of its representation to the Court that the Alabama Constitution might prevent any number of the Act’s provisions from taking effect until at least October 2011. See Hispanic Interest Coalition of Alabama, et al. v. Robert Bentley, et al., 5:11cv02484 (SLB) (Dkt. # 36, at 2, n.2). In any case, “the public, when the state is a party asserting harm, has no interest in enforcing an unconstitutional law.” Scott, 612 F.3d at 1297; see also Edmonson, 594 F.3d at 771 (“Oklahoma does not have an interest in enforcing a law that is likely constitutionally infirm.”).
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CONCLUSION For the foregoing reasons, the United Stat es respectfully requests that the Court is sue a preliminary injunction with respect to Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30.

DATED: August 1, 2011
United 20 Washington, Telephone:

TONY WEST Assistant Attorney General JOYCE WHITE VANCE United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch
/s/ C. Lee Reeves, II C. LEE REEVES, II VARU CHILAKAMARRI JOSHUA WILKENFELD Trial Attorneys
States Department of Justice Civil Division, Federal Programs Branch
Massachusetts Avenue, N.W. D.C. 20530
(202) 514-4805 Fax: (202) 616-8470 Email: lee.reeves@usdoj.gov

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 Case 2:11-cv-02746-SLB Document 69 Filed 08/15/11 Page 1 of 97

FILED
2011 Aug-15 PM 11:51 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

HISPANIC INTEREST COALITION OF ALABAMA; et al.,
Plaintiffs, vs. ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama; et al.,
Defendants. RT. REV. HENRY N. PARSLEY, JR., in his official capacity as Bishop of the Episcopal Church in the Diocese of Alabama; et al.
Plaintiffs, vs.
ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama; et al.,
Defendants. UNITED STATES OF AMERICA,
Plaintiff, vs.
STATE OF ALABAMA; GOVERNOR ROBERT J. BENTLEY,
Defendants.

) ) ) ) ) ) Case Number: ) 5:11-cv-02484-SLB ) ) ) )
) ) ) ) ) ) ) Case Number: ) 5:11-cv-02736-SLB ) ) ) ) )
) ) ) ) ) Case Number: ) 2:11-cv-02746-SLB ) ) ) ) )

ALABAMA AND GOVERNOR BENTLEY’S RESPONSE TO UNITED STATES’ MOTION FOR PRELIMINARY INJUNCTION (DOC. 2)

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. V
INTRODUCTION ............................................................................................................ 1
ARGUMENT .................................................................................................................3
I. The United States is not likely to prevail. .................................................3
A. Federal law does not impliedly preempt any of the Act‘s provisions. ...........................................................................................4
1. The United States advocates an unprecedented approach to preemption.................................................................4
a. Under De Canas, the fact that a state law is not focused solely on purely local matters does not render it impliedly preempted.................................................5
b. The Executive Branch‘s decisions not to enforce federal law cannot preempt state laws designed to prohibit the same conduct. ......................................................8
i. The actions of Congress, rather than nonenforcement decisions made by a particular presidential administration, are what impliedly preempt state law. .............................................................9
ii. The Executive Branch cannot impliedly preempt state laws relating to immigration by invoking foreign-policy concerns...................................12
2. None of the provisions at issue is impliedly preempted. ............15
a. Federal law does not preempt Section 10, which parallels the federal requirement that aliens complete and carry registration documents. .........................16
i. Congress has not field-preempted this area....................18
ii. Section 10 no more criminalizes ―unlawful presence‖ than federal law does. ....................................21
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iii. Foreign-policy concerns do not impliedly preempt Section 10. ........................................................22
b. Federal law does not preempt Section 11(a), which prohibits an unauthorized alien from applying for, soliciting, or performing work. .............................................23
i. Legislative history does not impliedly preempt Section 11. ......................................................................24
ii. Policy concerns do not impliedly preempt Section 11. ......................................................................25
c. Federal law does not preempt Sections 13(a)(1)(3), which parallel federal law by prohibiting harboring, transporting, and encouraging illegal aliens to enter or remain........................................................26
i. The federal provision allowing state officers to ―arrest‖ illegal aliens for federal offenses does not impliedly preempt States from prosecuting illegal aliens for violating parallel state laws. ................27
ii. Section 13(a)(1)-(3) do not violate the dormant Commerce Clause...........................................................30
d. Federal law does not preempt Section 13(a)(4), which parallels federal law by prohibiting harboring illegal aliens by entering into rental agreements with them. ..........................................................33
i. Section 13(a)(4) affects illegal aliens‘ opportunities to obtain rental housing in the same way the federal harboring provision does. ............33
ii. Section 13(a)(4) does not determine who may lawfully reside within Alabama‘s borders......................34
e. Federal law does not preempt Section 30, which prohibits certain transactions between the State and illegal aliens. .........................................................................36
i. The United States misinterprets Section 30....................37
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ii. The United States‘ facial challenge fails because all applications of Section 30 are valid. ...............................................................................38
iii. The United States identifies no basis for preemption of Section 30................................................40
f. Federal law does not preempt Section 27, which renders certain contracts unenforceable when one of the parties is an illegal alien. ............................................41
g. Federal law does not preempt Section 28, which requires public elementary and secondary schools to collect data about a child‘s immigration status at the time of enrollment...........................................................43
i. Alabama has a legitimate interest in Section 28‘s data-collection and reporting requirement..............45
ii. Section 28 is not a preempted registration scheme. ...........................................................................47
h. Federal law does not impliedly preempt Sections 12 and 18, which establish arrest protocols and an immigration-status verification scheme................................48
i. Congress mandated federal responses to state inquiries in 8 U.S.C. §1373(c). .......................................50
ii. The Administration‘s policy concerns cannot impliedly preempt Sections 12 and 18. ..........................53
iii. The term ―cooperate‖ in 8 U.S.C. § 1357(g)(10) does not override 8 U.S.C. § 1373(c). ...........................................................................55
iv. The presumption against preemption is particularly strong here in light of the State‘s interests in its arrest protocols. .......................................60
v. Inquiring into the immigration status of lawfully present aliens is not preempted. .......................61
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B. Federal law does not expressly preempt any of the Act‘s provisions. .........................................................................................63
1. The IRCA does not preempt Section 16. ....................................65 a. Section 1324a(h)(2) does not expressly preempt Section 16(a). ........................................................................66 b. Section 1324a(h)(2) does not preempt Section 16(b), but if it did, Section 16(b) would be severable. ..............................................................................67
2. The IRCA does not expressly preempt Section 17. ....................70 II. The equities weigh against a preliminary injunction. .............................73
A. The United States will not suffer irreparable harm if the Act is allowed to go into effect. ........................................................73
B. The balance of equities tips in Alabama‘s favor. ..............................75 CONCLUSION .............................................................................................................77 CERTIFICATE OF SERVICE..........................................................................................78
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TABLE OF AUTHORITIES
Cases Altria Group, Inc. v. Good,
555 U.S. 70 (2008) ...............................................................................................71 American Insurance Association v. Garamendi,
539 U.S. 396 (2003) ...................................................................................... 14, 15 Ariz. Contractors Ass’n v. Napolitano,
Nos. CV07-1355-PHX-NVW, CV07-1684-PHX-NVW, 2007 WL 4570303 (D. Ariz. 2007) ............................................................................... 27, 53 Ark. Elec. Co-op. Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375 (1983) .............................................................................................30 Artistic Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196 (11th Cir. 2003) ............................................................................69 Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298, 320 (1994) .....................................................................................13 Bartkus v. Illinois, 359 U.S. 121 (1959) .............................................................................................17 Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011) ................................................................................. passim Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742 (10th Cir. 2010) ................................................................. 68, 70, 71 Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th Cir. 2004) ............................................................................66 Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009) .................................................................................53 Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) .............................................................................................68
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Clearing House Ass’n, L.L.C. v. Cuomo, 510 F.3d 105 (2d Cir. 2007) .................................................................................10
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ...................................................................................... 14, 15
Cuomo v. Clearing House Ass’n, L.L.C., 129 S. Ct. 2710 (2009) .........................................................................................10
De Canas v. Bica, 424 U.S. 351 (1976) ..................................................................................... passim
Dows v. City of Chicago, 78 U.S. (11 Wall.) 108 (1870)..............................................................................65
Edwards v. California, 314 U.S. 160 (1941) .............................................................................................32
Gade v. National Solid Wastes Management Assn., 505 U.S. 88 (1992) ...............................................................................................11
Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) ......................................................................... 19, 27
Gray v. City of Valley Park, No. 4:07CV00881 ERW, 2008 WL 294294, 2008 U.S. Dist. LEXIS 7238 (E.D. Mo. Jan. 31, 2008) .............................................................................27
Hillsborough County v. Automated Med. Labs., 471 U.S. 707 (1985) ...................................................................................... 20, 53
Hines v. Davidowitz, 312 U.S. 52 (1941) ............................................................................ 18, 47, 61, 67
Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) ..............................................................................27
I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183 (1991) .............................................................................................11
In re Jose C., 198 P.3d 1087 (Cal. 2009)....................................................................................19
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Jie v. Liang Tai Knitwear Co., 107 Cal. Rptr. 2d 682 (Cal. Ct. App. 2001) .........................................................72
Johnson v. United States, 333 U.S. 10 (1948) ...............................................................................................28
Ker v. California, 374 U.S. 23 (1963) ...............................................................................................28
King v. Campbell, 988 So. 2d 969 (Ala. 2007) ..................................................................................69
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) .............................................................................................65
Limestone County Water & Sewer Authority v. City of Athens, 896 So. 2d 531 (Ala. Civ. App. 2004)..................................................................37
Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011) ............................................................... 30, 31, 32
Lozano v. City of Hazelton, 620 F.3d 170 (3d Cir. 2010) .................................................................................34
Lozano v. City of Hazelton, No. 10-772, 2011 WL 2175213 U.S. (June 6, 2011) ...........................................34
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) ....................................................................... 19, 63
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) .............................................................................................53
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .............................................................................................68
Miller v. United States, 357 U.S. 301 (1958) .............................................................................................28
Moore v. Illinois, 55 U.S. 13 (1852) .................................................................................................17
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Muehler v. Mena, 544 U.S. 93 (2005) ...............................................................................................62
North Dakota v. United States, 495 U.S. 423 (1990) ...................................................................................... 10, 12
NSA Telcoms. Records Litig., 633 F. Supp. 2d 892 (N.D. Cal. 2007) .................................................................10
Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................ 41, 44, 46
Printz v. United States, 521 U.S. 898 (1997) .............................................................................................60
Rizzo v. Goode, 423 U.S. 362 (1976) .............................................................................................76
State of Connecticut v. Com. of Mass., 282 U.S. 660 (1931) .............................................................................................74
State v. Flores, 188 P.3d 706 (Ariz. Ct. App. 2008) .............................................................. 28, 29
State v. Montgomery, 59 So. 294 (Ala. 1912) .........................................................................................70
Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948) .............................................................................................35
U.S. v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) ............................................................................19
United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007) .............................................................................................31
United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) ............................................................. 12, 14, 54, 60
United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) ....................................................................30
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United States v. Balderas, 91 Fed. App‘x 354 (5th Cir. 2004) .......................................................................34
United States v. Cantu, 227 Fed. App‘x 783 (11th Cir. 2007) ...................................................................63
United States v. Contreras-Diaz, 575 F.2d 740 (9th Cir. 1978) ................................................................................63
United States v. Di Re, 332 U.S. 581 (1948) .............................................................................................28
United States v. Kim, 193 F.3d 567 (2d Cir. 1999) .................................................................................33
United States v. Lopez, 521 F.2d 437 (2d Cir. 1975) .................................................................................34
United States v. Raines, 362 U.S. 17 (1960) ...............................................................................................42
United States v. Rodriguez-Arreola, 270 F.3d 611 (8th Cir. 2001) ................................................................................63
United States v. Salerno, 481 U.S. 739 (1987) .............................................................................................38
United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) ............................................................................63
United States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007) ................................................................................63
United States v. Tipton, 518 F.3d 591 (8th Cir. 2008) ................................................................................34
United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981) ................................................................................33
United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) ..................................................................... 19, 63
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Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .............................................................................................42
Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7 (2008) .................................................................................................73
Wyeth v. Levine, 129 S. Ct. 1187 (2009) .................................................................................. 40, 43
Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................................53
Statutes 8 U.S.C. § 1252c ......................................................................................................20 8 U.S.C. § 1302 ........................................................................................................21 8 U.S.C. § 1304 ........................................................................................... 17, 21, 22 8 U.S.C. § 1306 ........................................................................................... 17, 21, 22 8 U.S.C. § 1323 ........................................................................................................42 8 U.S.C. § 1324 ................................................................................................ passim 8 U.S.C. § 1324a .............................................................................................. passim 8 U.S.C. § 1357 ................................................................................................ passim 8 U.S.C. § 1373 ................................................................................................ passim 8 U.S.C. § 1621 ........................................................................................................38 8 U.S.C. § 1644 ........................................................................................................74 ALA. CODE §40-29-110 ............................................................................................70 Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act
2011-535 § 2 .....................................................................................................................1, 67 § 3 .........................................................................................................................26
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§ 10 ............................................................................................................... passim § 11 .................................................................................................... 23, 24, 25, 26 § 12 ............................................................................................................... passim § 13 ............................................................................................................... passim § 16 ............................................................................................................... passim § 17 ............................................................................................................... passim § 18 ............................................................................................................... passim § 27 ................................................................................................................ 41, 42 § 28 ............................................................................................................... passim § 30 .................................................................................................... 36, 37, 38, 40 § 33 .......................................................................................................................69 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Pub. L. 109-13, 119 Stat. 231 (2005).............................................................................................................39 Omnibus Consolidated Appropriations Act of 1997, Pub. L. 104-208, § 502, 110 Stat. 3009-671................................................................................. 39, 41 Other Authorities BLACK‘S LAW DICTIONARY 1077 (7th ed.) ..............................................................66 S. Rep. No. 104-249, 104th Cong., 2d Sess. at 19-20 (1996)..................................52
Constitutional Provisions U.S. CONST. Art. VI....................................................................................................1
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INTRODUCTION The fact that the United States is a plaintiff here brings into sharp focus what these cases are really about. They are not simply about illegal immigration. They are also, on a more fundamental level, about the system of comity and mutual respect our Constitution establishes between the federal government and the States. For there is a marked difference between this case and other suits filed decades ago, also styled United States v. Alabama, during an era of the State‘s history that is now thankfully part of the past. In contrast to the suits filed then, the United States here has no occasion to allege that Alabama or its leaders are defying federal law. To the contrary, the entire point of the Alabama statute at issue is to require Alabama and its officials to ―fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.‖ Act No. 2011-535, § 2. So, the essence of the United States‘ complaint that Alabama‘s elected officials are, through this Act, doing too much to uphold their duty to ―support this Constitution‖ and ―the Laws of the United States which shall be made in Pursuance thereof.‖ U.S. CONST. art. VI. That assertion turns the Supremacy Clause and federalism on their heads, and is no basis for either a lawsuit or an injunction against the Act. As things currently stand, the public‘s confidence in the rule of law is being eroded by the millions of people who are intentionally violating federal
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immigration statutes by entering and residing in the United States illegally. As President Obama acknowledged during a recent Twitter town hall, ―[w]e‘ve got an immigration system that‘s broken right now, where too many folks are breaking the law.‖1
Although the resulting crisis has hit States like Arizona and Texas the hardest, it has also extended to States like Alabama. By one estimate, between 75,000 and 160,000 illegal aliens currently live in this State. Exh. A at 23. Many of these people are taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times: while the unemployment rate in Alabama stands at 10%,2 approximately 4% of Alabama‘s workforce consists of illegal aliens.3 And the difficulties in collecting taxes from these persons, a large percentage of whom work ―off the books,‖ means that many of them are utilizing Alabama‘s public resources without paying their fair share. Illegal aliens also form a substantial part of the state‘s prison population, and thus exact on the State not only the social costs of their crimes, but also the fiscal costs of their incarceration and rehabilitation. See Exh. B.
Act No. 2011-535 marks Alabama‘s effort to address these problems. But it does not seek to replace the immigration laws passed by the federal government. It
1 http://www.whitehouse.gov/the-press-office/2011/07/06/remarks-president-twitter-town-hall. 2 http://www2.dir.state.al.us/LAUS/CLF/ALUS.aspx 3 Exh. A at 24.
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instead simply requires its officials to take certain steps, fully within the State‘s traditional police powers, and fully consistent with federal law, to help ensure that the federal immigration law that Congress put on the books is respected.
The questions now presented are whether the Constitution and federal statutes leave no space for States like Alabama to take steps of this kind, and whether this Court is required to take the dramatic step of enjoining Alabama‘s good-faith effort to deter illegal immigration before the State has even had a chance to implement the Act or to delineate how its provisions will be applied. Because the answer is an emphatic no, the United States cannot prevail on the merits,4 and this Court should not grant the federal government‘s request for a preliminary injunction.
ARGUMENT I. The United States is not likely to prevail.
No preliminary injunction should issue against the provisions of the Act that the United States is challenging here. Its motion asserts that eleven of the Act‘s provisions are preempted—nine through implied preemption, and two through express preemption. As explained below, the United States is wrong on all these fronts.
4 The State Defendants set out the applicable standard of review in their opposition to the preliminary-injunction motion filed by HICA and others. See HICA Doc. 82 at 9-12.
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A. Federal law does not impliedly preempt any of the Act’s provisions.
When it comes to the implied-preemption claims, this brief will address the various provisions challenged by the United States—namely, sections 10, 11(a), 12, 13(a)(1)-(3), 13(a)(4), 18, 27, 28, and 30—in the same order as the United States. And rather than repeat the arguments the State Defendants made against these same claims in the HICA preliminary-injunction motion, this brief will, when possible, simply cross-reference the State Defendants‘ arguments in that opposition. See HICA Doc. 82 at 55-91. But two overarching flaws permeate the United States‘ implied-preemption analysis as a general matter, and those flaws bear emphasis at the outset.
1. The United States advocates an unprecedented approach to preemption. Even more so than the HICA Plaintiffs, the United States is trying to expand the doctrine of implied preemption far beyond the bounds that governing precedents allow—and far beyond common understandings of how federalism and the separation of powers should work. The United States is asking this Court to adopt a cramped reading of the standard the Supreme Court established for immigration-related implied-preemption challenges in De Canas v. Bica, 424 U.S. 351 (1976). Under the United States‘ novel understanding of De Canas, the
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implied-preemption doctrine effectively precludes the States from enacting any law intended to help the federal government curb illegal immigration. Yet the United States is not content to stop there. In analyzing the individual provisions of the Act, the United States consistently advances a novel theory of preemption-byexecutive-inaction that, if it became the law, would jeopardize the state-federal balance not only in the immigration context, but in virtually every area in which the federal government might operate.
a. Under De Canas, the fact that a state law is not focused solely on purely local matters does not render it impliedly preempted.
The United States begins by trying to create a new category of impliedly preempted immigration laws. The De Canas Court laid out a three-part test for determining whether a state law affecting immigration is displaced through implied preemption. See HICA Doc. 82 at 39. Under that test, a state law is preempted if:
(1) it falls into the narrow category of laws deemed to be a ―regulation of immigration,‖ id. at 355;
(2) if Congress expressed ―‗the clear and manifest purpose‘‖ of completely occupying the field and displacing all State activity, id. at 357; or
(3) if the state regulation conflicts with federal laws, such that it ―‗stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,‘‖ id. at 363.
As explained in the State Defendants‘ HICA response and set forth in more detail below, under this test, the movants in these consolidated cases have no substantial
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likelihood of succeeding on the merits of their implied-preemption claims, and Alabama‘s statute must be allowed to go into effect. See HICA Doc 82 at 39-91.
But in its effort to seek a preliminary injunction before the law‘s effective date, the United States has now tried to add a fourth category of impliedly preempted laws to this list. The federal government asserts that under De Canas, ―a state exceeds its power to enact regulations touching on aliens generally if the regulation is not passed pursuant to state ‗police powers‘ that are ‗focuse[d] directly upon‘ and ‗tailored to combat‘ what are ‗essentially local problems.‘‖ U.S. Doc. 2 at 26 (quoting De Canas, 424 U.S. at 356-57). So under the United States‘ theory, De Canas rings the death knell for any state law dealing with illegal aliens that is geared toward putatively ―non-local‖ concerns. Under that approach, apparently, those impermissible ―non-local‖ concerns include the sorts of things that motivated the Alabama Legislature here—namely, desires to decrease illegal immigration within the State and to protect the jobs of citizens and authorized aliens in the State from unfair competition.
But that is not what De Canas said, and it is not the law. The full sentence from which the United States has drawn the terminology at issue reads as follows: ―In attempting to protect California‘s fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, § 2805(a) focuses directly upon these essentially local problems and
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is tailored to combat effectively the perceived evils.‖ De Canas, 424 U.S. at 357. That was merely the Court‘s description of the impetus behind the California law at issue in that case. The Court did not, in the course of giving that description, say that to avoid preemption, the state statute must have goals that are ―local‖ in nature. See id. at 356-58. The De Canas Court could not possibly have intended that reading because the ―local problems‖ the Court identified as the driving forces behind the California law were, in fact, the same sorts of concerns about illegal immigration that motivated Alabama‘s statute here. As the De Canas court explained, California enacted its law addressing the employment of illegal aliens because, among other things, ―[e]mployment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs,‖ and ―acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.‖ De Canas, 424 U.S. at 356-57.
Consequently, the dispositive question here is not whether the Act is ―‗focuse[d] directly upon‘ and ‗tailored to combat‘ what are ‗essentially local problems.‘‖ U.S. Doc. 2 at 26 (quoting De Canas, 424 U.S. at 356-57). It is instead whether the Act falls into one of the three categories identified by De Canas—laws deemed to be a ―regulation of immigration,‖ id. at 355, laws for which Congress expressed ―‗the clear and manifest purpose‘‖ of completely occupying the field and
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displacing all State activity, id. at 357; and laws that conflict with federal laws, such that they ―‗stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,‘‖ id. at 363.
b. The Executive Branch’s decisions not to enforce federal law cannot preempt state laws designed to prohibit the same conduct.
Because the United States does not contend that the Act amounts to a preempted ―regulation of immigration‖ as the De Canas Court defined that term, cf. HICA Doc. 82 at 44-49 (refuting the HICA Plaintiffs‘ argument along those lines), the United States can prevail on its challenge only by showing either (1) that ―Congress has unmistakably … ordained‖ the ouster of all States from the field (or the nature of the subject matter permits no other conclusion that field preemption has occurred); or (2) that the Act ―stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,‖ De Canas, 424 U.S. at 356, 363. Yet in endeavoring to establish that the Act is impliedly preempted, the United States repeatedly relies not on formal statutes enacted by ―Congress,‖ id. at 363, but rather on informal actions—or, perhaps more to the point, failures to act— of the Executive Branch. For two reasons, the approach the United States is now advocating marks a substantial and unwarranted attempt to aggrandize the Executive Branch‘s powers at the expense of both Congress and the States.
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i. The actions of Congress, rather than non-enforcement decisions made by a particular presidential administration, are what impliedly preempt state law.
First, a particular Administration‘s decision not to enforce a federal law cannot preempt the States from taking measures that are consistent with that law as Congress has written it. Yet that is precisely what the United States is arguing at key points in its brief. See, e.g., U.S. Doc. 2 at 68 (arguing that the verification provisions in Sections 12 and 18 are preempted because excessive verification requests would interfere with ―DHS‘s internal enforcement decisions‖). If the Administration‘s theory were accepted by the courts, then the President could displace all sorts of state regulation—and not merely state laws dealing with illegal immigration—merely by declaring his or her intent not to enforce certain federal laws that operate in the same spheres as particular state laws, and by then suing the States on an ―implied preemption‖ theory.
Fortunately, that is not how preemption works. The Supremacy Clause gives preemptive force to only the ―Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . under the Authority of the United States.‖ U.S. CONST. art. VI, cl. 2. It does not give that preemptive force to the exercise of unilateral prosecutorial discretion by the Executive Branch. As the Supreme Court recognized in another context, ―It is Congress—not the [Department of Defense]—that has the power to pre-empt
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otherwise valid state laws.‖ North Dakota v. United States, 495 U.S. 423, 442 (1990); accord Clearing House Ass’n, L.L.C. v. Cuomo, 510 F.3d 105, 131 (2d Cir. 2007) (―[T]he Supremacy Clause in article VI, clause 2 grants the power to preempt state law to the Congress, not to appointed officials in the Executive branch.‖), rev’d in part on other grounds, 129 S. Ct. 2710 (2009)); In re NSA Telcoms. Records Litig., 633 F. Supp. 2d 892, 908 (N.D. Cal. 2007) (stating that ―[e]xecutive orders, in and of themselves, do not preempt state law‖ and that ―Congress has the exclusive power to make laws necessary and proper to carry out the powers vested by the United States Constitution in the federal government‖).
Along the same lines, the United States is wrong when it suggests that state laws that push too hard against the current Administration‘s sense of an implicit, unstated ―balance‖ in federal immigration law are impliedly preempted. See U.S. Doc. 2 at 12-14, 64-65, 68, 77, 81. The Supreme Court rejected that sort of approach, in the immigration context in particular, earlier this year in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968, 1983 (2011). There the Chamber of Commerce had argued that an Arizona law that stripped licenses from businesses that employed illegal aliens and required businesses to use the E-Verify system was impliedly preempted because the Immigration Reform and Control Act ―reflect[ed] Congress‘s careful balancing of several policy considerations,‖ and the Arizona law‘s alleged ―harshness . . . exert[ed] an extraneous pull on the scheme
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established by Congress that impermissibly upsets that balance.‖ Id. (internal quotation marks omitted).
The Whiting Court rejected this theory, responding that every federal statute ―strike[s] a balance among a variety of interests.‖ Id. at 1984-85. But it is the statute itself—and not some sort of unstated ―balance‖—that has the preemptive effect. Thus, while Arizona‘s law might ―result in more effective enforcement of the prohibition on employing unauthorized aliens‖ than the federal statute provided alone, the Arizona law was not impliedly preempted because ―[t]he balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.‖ Id. at 1985. That conclusion was required because ―[i]mplied preemption analysis does not justify a ‗freewheeling judicial inquiry into whether a state statute is in tension with federal objectives‘; such an endeavor ‗would undercut the principle that it is Congress rather than the courts that preempts state law.‘‖ Id. at 1985 (quoting Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in judgment)); accord I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 194 & n.8 (1991) (upholding an Attorney General‘s rule prohibiting certain unauthorized aliens from working in the United States and rejecting objection that it was contrary to the balance created by the IRCA).
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To be sure, in the recent challenge to Arizona‘s immigration statute, a twojudge majority in the Ninth Circuit bought the United States‘ contrary argument on this point—hook, line, and sinker. See United States v. Arizona, 641 F.3d 339, 35152 (9th 2011). But this Court does not have to follow the Ninth Circuit, and as Judge Bea recognized in his dissent, the Ninth Circuit‘s analysis of this issue was flatly wrong. ―The internal policies of [the Bureau of Immigration and Customs Enforcement],‖ he wrote, ―do not and cannot change this result.‖ Id. at 380 (Bea, J., concurring in part and dissenting in part). That is so because ―[t]he 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.‖ Id. (citing North Dakota, 495 U.S. at 442). If things were otherwise, Judge Bea correctly concluded, ―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.‖ Id. “Courts would be required to analyze statutes anew to determine whether they conflict with the newest Executive policy.‖ Id. That is not the law.
ii. The Executive Branch cannot impliedly preempt state laws relating to immigration by invoking foreign-policy concerns.
Second, the United States takes its theory of executive-branch preemption to even more troubling heights by asserting that numerous provisions in Alabama‘s
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statutes are impliedly preempted because they conflict with the current Administration‘s views of what makes for good foreign policy. The Ninth Circuit majority bought that argument as well, but once again Judge Bea had it right in dissent. As he explained, when it comes to federal preemption of state laws that address the problem of illegal immigration, ―[w]e do not grant other nations‘ foreign ministries a ‗heckler‘s veto.‘‖ Arizona, 641 F.3d at 383 (Bea, J., dissenting in part).
Judge Bea‘s analysis was correct, and indeed mandated by Supreme Court precedent. In Barclays Bank PLC v. Franchise Tax Board, several foreign governments and officials ―deplor[ed]‖ a state statute ―in diplomatic notes, amicus briefs, and even retaliatory legislation.‖ 512 U.S. 298, 320 (1994). The Court held that these protests were not relevant, reasoning that in the absence of evidence that Congress intended to preempt the statute, 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 327-28. The Court also rejected the contention that ―a series of Executive Branch actions, statements, and amicus filings‖ could preempt the tax statute at issue, id. at 328, noting that ―[t]he Constitution expressly grants Congress, not the President, the power to ‗regulate Commerce with foreign Nations,‘‖ id. at 329.
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To support its assertion that the current Administration‘s foreign-policy concerns preempt provisions in the Alabama statute, the United States has erroneously invoked a number of inapposite Supreme Court precedents that have considered foreign-policy concerns on preemption issues. Those decisions no relevance here because in each case the state law at issue ―conflict[ed] with federally established foreign relations goals.‖ Arizona, 641 F.3d at 381 (Bea, J., dissenting in part) (emphasis in original). The dispositive factor in those cases was that these goals only had preemptive force because they were enshrined in federal statute or treaties. The Court in Crosby v. National Foreign Trade Council found the Administration‘s foreign-policy concerns relevant when considering the preemptive effect of a federal statute imposing a set of mandatory and conditional sanctions on Burma. 530 U.S. 363, 368, 373 (2000). Likewise, the Court in American Insurance Association v. Garamendi found the state statute preempted because it conflicted with specific foreign policy objectives (concerning Holocaustrelated insurance claims) that had been ―addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century.‖ 539 U.S. 396, 421 (2003); see also Arizona, 641 F.3d at 381 (Bea, J., dissenting in part). Again, the constitutional requirement that preemption can occur only through congressional enactment of a statute or approval of a treaty lay at the foundation of both of these opinions. Also, the Garamendi Court was willing to find preemption
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of that sort only in an area that was ―well within the Executive‘s responsibility for foreign affairs.‖ 539 U.S. at 420. Immigration issues have much more meaningful effects on the welfare of the States and their domestic policy making. Thus, like the tax issues dealt with in Barclays Bank, the field of immigration never been understood to be controlled by the Executive Branch‘s power to conduct foreign relations. Cf. Whiting, 131 S. Ct. at 1983 (noting that in contrast to Whiting itself, which involved Arizona‘s regulation of the employment of unauthorized aliens, Crosby and Garamendi arose from ―area[s] of dominant federal concern‖).
Any other result would upset settled notions of federalism and the separation of powers. If the United States (and the Ninth Circuit majority) were right, then any President could unilaterally invoke implied preemption against any state law by determining that its existence would ―disrupt future U.S. foreign relations efforts.‖ U.S. Doc. 2 at 33. The President could thereby effectively abrogate state laws governing the death penalty or marriage, on the theory that they had aroused foreign sentiment against the United States and thereby ―interfere[d] with the fundamental authority to conduct foreign affairs.‖ Id. That cannot be, and is not, how preemption law works.
2. None of the provisions at issue is impliedly preempted. With those principles in mind, the fundamental questions here are whether Congress—as opposed to unilateral Executive Branch action or the current
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Administration‘s view of foreign affairs—has expressed clear intent to oust all
state laws from the field, or whether any of those provisions ―‗stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.‘‖ De Canas, 424U.S. at 363 (quoting Hines v. Davidowitz, 312 U.S. 52,
67 (1941)). As to each of the ten provisions the United States has challenged, the
answer is no.
a. Federal law does not preempt Section 10, which parallels the federal requirement that aliens complete and carry registration documents.
First, federal law does not preempt Section 10 of the Act, which imposes
parallel state sanctions for violations of the federal statutes that require illegal
aliens to complete and carry registration documents.5 The State Defendants have
5 Section 10 provides as follows:
(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 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a), and the person is an alien unlawfully present in the United States.
(b) In the enforcement of this section, an alien‘s immigration status shall be determined by verification of the alien‘s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A law enforcement officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.
(c) A law enforcement official or agency of this state or a county, city, 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 Constitution and the Constitution of Alabama of 1901.
(d) This section does not apply to a person who maintains authorization from the federal government to be present in the United States.
(e) Any record that relates to the immigration status of a person is admissible in any court of this state without further foundation or testimony from a custodian of records if the record is certified as authentic by the federal government agency that is responsible for maintaining the record. A verification of an alien‘s immigration status received from the federal government pursuant to 8 U.S.C. § 1373(c) shall constitute proof of that alien‘s
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already responded in their HICA brief to most of the arguments the United States
now makes on this front. See HICA Doc. 82 at 63-70. Those points included the
following:
 First, far from ―conflict[ing] with‖ federal statutes, U.S. Doc. 2 at 28, Section 10 simply seeks to concurrently enforce Congress‘s directive that aliens apply for and carry ―any certificate of alien registration or alien registration receipt card.‖ 8 U.S.C. § 1304; HICA Doc. 82 at 63-67 (citing 8 U.S.C. § 1304; id. § 1306(a)). And States have plenary authority to concurrently enforce federal immigration laws. See HICA Doc. 82 at 66-68.
 Second, far from ―allow[ing] for increased and varied punishment for registration violations that happen to occur in Alabama,‖ U.S. Doc. 2 at 31, Section 10‘s penalties mirror or are less stringent than the federal statutory sanctions. See HICA Doc. 82 at 67-68. And the Supreme Court has affirmed that States can enact laws that impose sanctions for conduct that federal law also penalizes. See Bartkus v. Illinois, 359 U.S. 121, 131-32 (1959); Moore v. Illinois, 55 U.S. 13, 21-22 (1852).
 Third, far from ―choos[ing] a different measure to address the alien‘s situation‖ than the one chosen by the federal government, U.S. Doc. 2 at 31, Section 10(b) expressly defers to the federal government‘s determination of an alien‘s ―situation‖ or immigration status. HICA Doc. 82 at 66-67.
status. A court of this state shall consider only the federal government‘s verification in determining whether an alien is lawfully present in the United States. (f) An alien unlawfully present in the United States who is in violation of this section shall be guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail. (g) A court shall collect the assessments prescribed in subsection (f) and remit 50 percent of the assessments to the general fund of the local government where the person was apprehended to be earmarked for law enforcement purposes, 25 percent of the assessments to the Alabama Department of Homeland Security, and 25 percent of the assessments to the Department of Public Safety.
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The United States offers three new arguments aimed at Section 10, but as explained below, these are equally flawed.
i. Congress has not field-preempted this area. First, unable to identify an actual conflict between Section 10 and federal statutes that would give rise to conflict preemption, the United States erroneously turns to the notion of field preemption, asserting that the federal statutes ―leave no room for state legislation in this area.‖ U.S. Doc. 2 at 29. But the authority the United States offers in support of that novel proposition—Hines v. Davidowitz, 312 U.S. 52 (1941)—cannot carry that weight. Hines dealt with conflict preemption, not field preemption: ―Our primary function,‖ the Court said, ―is to determine whether, 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.‖ Id. at 67 (emphasis added). The Court ―expressly [left] open all of appellees‘ other contentions, including the argument that the federal power in this field, whether exercised or unexercised, is exclusive.‖ Id. at 62 (emphasis added). Later precedent makes clear that the federal government‘s regulation of immigration in general is not so comprehensive that it leaves no room for states to act as well. In the still-controlling precedent of De Canas, the Court‘s review
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―d[id] not reveal[] any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.‖ De Canas, 424 U.S. at 358 (footnote omitted). As the California Supreme Court has recently noted, the federal circuit courts that have addressed the question ―have unanimously concluded Congress has not occupied the field and preempted state assistance in the enforcement of federal criminal immigration law.‖ In re Jose C., 198 P.3d 1087, 1100 (Cal. 2009) (citing Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987); Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc); United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001)). Instead, ―[t]hese courts recognize that Congress has established a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy.‖ Id. ―This is the antithesis of preemption.‖ Id.
Indeed, Congress has consistently encouraged states to assist in restoring the rule of law to immigration. As the Tenth Circuit has held, ―Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws.‖ United States v. Vasquez-Alvarez, 176 F.3d 1294, 1300 (10th Cir. 1999). Three
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statutory sections enacted by Congress are particularly noteworthy in this regard. First, 8 U.S.C. § 1373—a statute that plays a critical role in this case—placed the Executive Branch of the federal government under a statutory obligation to respond to all local inquiries about any alien‘s status. Second, 8 U.S.C. § 1357(g) allows states to enter into agreements to deputize specially-trained state officers to exercise the full ―function[s] of an immigration officer‖ of the United States. 8 U.S.C. § 1357(g)(1). Third, 8 U.S.C. § 1252c clarifies that federal law does not preempt state and local officers from arresting an illegally present alien convicted of a felony who had been previously ordered deported. Vasquez-Alvarez, 176 F.3d at 1298.
Nor does the ―comprehensive‖ nature of the federal alien-registration laws merit field preemption. U.S. Doc. 2 at 30. As the State Defendants have already noted, because Alabama‘s statute ―does not establish a state registration system,‖ it does not interfere with the federal government‘s registration system. HICA Doc. 82 at 64. Section 10 of the new Act simply provides for ―concurrent enforcement of state and federal penalties against the same conduct.‖ Id. at 68. ―[M]erely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field.‖ Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 717 (1985).
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ii. Section 10 no more criminalizes ―unlawful presence‖ than federal law does.
Second, the United States erroneously asserts that ―Section 10 . . . is preempted for the additional reason that it is a thinly veiled and impermissible attempt to criminalize unlawful presence,‖ something ―Congress has repeatedly declined to do.‖ U.S. Doc. 2 at 31-32. Even putting aside the established principle that doing what Congress has ―declined to do‖ does not constitute a preempted act, see HICA Doc. 82 at 70-75 (discussing the non-existence of ―preemption by omission,‖), the United States is wrong to assert that Alabama has gone beyond what Congress has done.
That is so because Section 10 does not criminalize ―unlawful presence.‖ Instead, Section 10 only applies to illegal aliens who have committed the federal crimes defined in 8 U.S.C. § 1304(e) and 8 U.S.C. § 1306(a). Large numbers of illegal aliens are not covered by these federal statutes—and, thus, by extension, Section 10. For example, aliens under the age of 18 are not required to carry registration documents. See 8 U.S.C. § 1304(e). And aliens who have been in the United States for fewer than 30 days are not required to register at all. See id. § 1302(a).
Indeed, if the United States had any colorable argument that Alabama has now criminalized unlawful presence, it would also have to concede that the federal
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government has done so as well. That is so because Section 10 mirrors the statutes and sanctions enacted by Congress. See HICA Doc. 82 at 66-67, 69-70. Section 10 applies only to those aliens who have committed the criminal offenses defined in 8 U.S.C. § 1304(e) and 8 U.S.C. § 1306(a), and criminalizes at the state level only conduct that was already a crime at the federal level. It is impossible for an alien to violate Section 10 without also committing a federal crime. There is no conflict here.
iii. Foreign-policy concerns do not impliedly preempt Section 10. The only other argument the United States offers on Section 10 is that it in the views of the current Administration, the provision undermines ―foreign policy goals‖ and ―risks negative reciprocity of the treatment of U.S. citizens abroad.‖ U.S. Doc. 2 at 32, 33. As discussed above, the Executive Branch cannot use foreign-policy concerns to preempt state laws of this sort. See supra at 12-15; accord HICA Doc. 82 at 68-70. And the fact that the Administration would offer foreign-policy concerns as grounds to enjoin Section 10 in particular is extremely telling. Section 10, as noted, simply penalizes the same conduct that is already criminal under federal law. So, by arguing that foreign-policy concerns militate against the enforceability of Section 10, the Administration is implicitly admitting that it does not wish to enforce the parallel provisions of federal law. Perhaps the
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decision not to enforce the law as it was enacted by Congress is within the
President‘s discretion under the Constitution, but that non-enforcement decision
cannot possibly provide grounds for preempting congruent laws enacted by the
states.
b. Federal law does not preempt Section 11(a), which prohibits an unauthorized alien from applying for, soliciting, or performing work.
Likewise, federal law does not preempt Section 11(a), which prohibits unauthorized aliens from seeking, soliciting, or performing work in Alabama.6 The
State Defendants already have responded to most of the arguments the United
States now makes on this front. See HICA Doc. 82 at 70-75. The salient points are
the following:
 The explicit employer sanctions in IRCA, far from ―reflect[ing] Congress‘s deliberate choice‖ to preclude States from ―criminally penaliz[ing] unauthorized aliens for performing work, U.S. Doc. 2 at 34, suggests just the opposite. The fact that Congress chose only to preempt certain measures aimed towards employers affirmatively shows that Congress did not intend to preempt state laws criminalizing the solicitation and acceptance of employment by unauthorized workers. See HICA Doc. 82 at 71-75.
 The ―preemption by omission‖ argument, so critical to the HICA Plaintiffs and now the United States, see U.S. Doc. 2 at 34, has been rejected by the Supreme Court. See HICA Doc. 82 at 71-75.
6 Section 11(a) provides: (a) It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.
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 Despite the United States‘ assertion of ―a clear conflict with federal law‖ and ―the objectives of IRCA,‖ U.S. Doc. 2 at 36, ―[n]either IRCA‘s preemption clause of 8 U.S.C. § 1324a(h)(2), nor anything else in IRCA‘s text, indicates that Congress intended to preempt States from penalizing employees for seeking and performing unauthorized work in a State.‖ See HICA Doc. 82 at 74. The United States also resorts to two additional arguments, both of which
appeal to concerns beyond the text. But neither supports the United States‘ argument.
i. Legislative history does not impliedly preempt Section 11. First, legislative history cannot do the trick. The United States cites one House Report stating that the pertinent House committee thought, when enacting the IRCA, that ―employer sanctions‖ were the ―most humane‖ way of addressing the problem of unauthorized-alien employment. U.S. Doc 2 at 35. But a statement found in a House Report is not the statement of the full Congress, and ―Congress‘s authoritative statement is the statutory text, not the legislative history.‖ Whiting, 131 S. Ct. at 1980 (internal quotation marks omitted). In any event, the House Report says nothing, much less the clear statement it would need to offer in light of the presumption against preemption, about whether state laws on this front are actually preempted. See HICA Doc 82 at 37-39 (discussing the presumption against preemption). Moreover, if the United States is saying that Congress affirmatively
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wanted unauthorized aliens to maintain jobs in this country, then that assertion is obviously incorrect. After all, Congress enacted IRCA to reinforce the illegality of such employment, and to sanction those employers who hire unauthorized alien employees. Alabama law simply makes that prohibition more effective by trying to cut off the supply of those employees as well. Like the Arizona employer-focused provisions in Whiting, Alabama‘s new law might ―result in more effective enforcement of the prohibition on employing unauthorized aliens‖ than the federal statute provides. Whiting, 131 S. Ct. at 1984. But that does not give rise to preemption. See id.; cf. HICA Doc. 82 at 41-44 (discussing Whiting in more detail).
ii. Policy concerns do not impliedly preempt Section 11. Along the same lines, the United States fails in its attempt to generate implied preemption from a 1986 statement from an Executive Assistant to the INS Commissioner that the INS did not ―expect the individual to starve in the United States while exhausting both the administrative and judicial roads the [INA] gives him‖ to remain in the country. U.S. Doc 2 at 24. A statement from a single assistant to an executive official cannot impliedly preempt a state law. And to the extent that the United States is implying that Section 11 would require an illegal alien to ―starve‖ while exhausting his administrative remedies, the United States is ignoring Section 11‘s language. Section 11 does not make it impermissible for all
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illegal aliens to solicit or accept employment. It instead prohibits only ―unauthorized alien[s]‖ from doing so. The state defines that term in Section 3(16), consistently with federal law, as ―[a]n alien who is not authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3).‖ And that federal statute defines the term as including a person who is not either ―an alien lawfully admitted for permanent residence‖ or, critically for present purposes, ―authorized to be so employed by this chapter or by the Attorney General.‖ 8 U.S.C. § 1324a(h)(3). Accordingly, if the United States Attorney General (or Secretary of Homeland Security) has authorized an alien to be employed during his removal proceedings, Section 11 will not apply.
c. Federal law does not preempt Sections 13(a)(1)-(3), which parallel federal law by prohibiting harboring, transporting, and encouraging illegal aliens to enter or remain.
Nor does federal law does preempt Sections 13(a)(1)-(3) of the Act, which impose parallel state sanctions for harboring, concealing, or transporting illegal aliens or encouraging them to come to or reside in Alabama. See U.S. Doc. 2 at 43. Alabama has already responded to most of the preemption arguments the United States now makes on this front. See HICA Doc. 82 at 75-79. The major points include the following:
 By virtue of Section 13(a), Alabama is not ―improperly imposing its own substantive regulation over facets of alien entry into the United States,‖ U.S. Doc. 2 at 45, but is instead merely adopting a provision that is effectively the
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―mirror image‖ of equivalent provisions of federal law. HICA Doc. 82 at 77 (citing 8 U.S.C. § 1324(a)(1)(A));
 Despite the United States‘ assertion that ―even complementary or auxiliary state regulations would be impermissible in such an area,‖ U.S. Doc. 2 at 45, numerous courts, including the Supreme Court in Whiting, have upheld concurrent enforcement by separate state regulation against the same behavior prohibited by federal immigration laws when the state activities do not impair federal regulatory interests. HICA Doc. 82 at 76-77 (citing Gonzalez v. Peoria, 722 F.2d 468, 474 (9th Cir. 1993), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999);
 Despite the United States‘ assertion that ―[t]he preemptive force of this constitutional and congressional authority, including Section 1324, has been recognized by several courts,‖ U.S. Doc. 2 at 44, courts have consistently upheld state-law immigration provisions when they parallel federal law. See HICA Doc. 82 at 76-77 (citing Ariz. Contractors Ass’n v. Napolitano, Nos. CV07-1355-PHX-NVW, CV07-1684-PHX-NVW, 2007 WL 4570303, at *13 (D. Ariz. 2007), aff’d sub nom. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Gray v. City of Valley Park, No. 4:07CV00881 ERW, 2008 WL 294294, at *19, 2008 U.S. Dist. LEXIS 7238, at *33 (E.D. Mo. Jan. 31, 2008)).
The United States does add two new arguments, but neither is availing.
i. The federal provision allowing state officers to ―arrest‖ illegal aliens for federal offenses does not impliedly preempt States from prosecuting illegal aliens for violating parallel state laws.
First, the United States erroneously argues that because Congress expressly
provided for state officials to make ―arrests‖ for federal law violations, it intended
that States would be barred from imposing any sanction for violations of parallel
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state laws like Sections 13(a)(1)-(3). See U.S. Doc. 2 at 45. To be sure, 8 U.S.C. § 1324(c) authorizes ―all other officers whose duty it is to enforce criminal laws‖ to ―make any arrests for a violation of any provision‖ of the federal harboring laws. This makes eminent sense in light of the ―[t]he general rule . . . that local police are not precluded from enforcing federal statutes.‖ Gonzales, 722 F.2d at 474 (citing Ker v. California, 374 U.S. 23 (1963); Miller v. United States, 357 U.S. 301 (1958); Johnson v. United States, 333 U.S. 10 (1948); United States v. Di Re, 332 U.S. 581 (1948)). But by authorizing state officers to enforce federal criminal laws, Congress did not prevent States from enacting parallel state criminal laws that they would also enforce. The United States offers no authority indicating that because the federal government has expressly authorized state law enforcement officers to make arrests for a particular federal immigration crime, that authorization somehow preempts state efforts to further discourage the crime by making it a state offense. See U.S. Doc. 2 at 44-45. On the contrary, the fact that Congress has expressly invited state assistance in making arrests suggests that Congress welcomes state efforts to address the problem.
The Arizona Court of Appeals applied the doctrine of concurrent enforcement in rejecting a preemption challenge very similar to the one that the United States now makes. State v. Flores, 188 P.3d 706, 711-12 (Ariz. Ct. App. 2008). In 2005, the State of Arizona had enacted the Arizona Human Smuggling
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Act, which, like Act No. 2011-535, tracked the language of 8 U.S.C. §
1324(a)(1)(A) with respect to transporting illegal aliens. The Court properly
rejected the preemption challenge, applying the concurrent-enforcement doctrine:
Arizona‘s human smuggling law is not preempted because it neither conflicts with federal law nor ―‗stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress‘ in enacting the INA.‖ De Canas at 363 (quoting Hines, 312 U.S. at 67). Rather, we find that Arizona‘s human smuggling law furthers the legitimate state interest of attempting to curb ―the culture of lawlessness‖ that has arisen around this activity by a classic exercise of its police power. Moreover, to a large extent, Arizona‘s objectives mirror federal objectives. Congress has enacted a similar provision, which provides in relevant part:
Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law . . . shall be punished as provided in subparagraph (B).
8 U.S.C. § 1324(a)(1)(A)(ii) (2005). The same act may offend the laws of both the state and the federal government and may be prosecuted and punished by each. Abbate v. United States, 359 U.S. 187, 194-95 (1959). Thus, Arizona may prosecute and punish a person who knowingly transports illegal aliens within its borders for profit or commercial purpose under its human smuggling law, just as the federal government may prosecute and punish a person who knowingly or recklessly transports such illegal aliens within the United States under its laws.
Flores, 188 P.3d at 712-13 (emphasis added). The same analysis applies here. State
laws prohibiting the transporting, harboring, encouraging, or inducing of illegal
aliens concurrently with federal immigration law are not preempted.
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ii. Section 13(a)(1)-(3) do not violate the dormant Commerce Clause. Second, the United States erroneously asserts that Sections 13(a)(1)-(3) are preempted because they ―violate the dormant Commerce Clause.‖ U.S. Doc. 2 at 46. ―The Dormant Commerce Clause prohibits states from enacting statutes that impose ‗substantial burdens‘ on interstate commerce.‖ Locke v. Shore, 634 F.3d 1185, 1192 (11th Cir. 2011). Although the United States posits that ―the ‗Dormant Commerce Clause‘ forbids certain state attempts to restrict the movement of people between states,‖ U.S. Doc. 2 at 46, it fails to explain how Sections 13(a)(1)(3), ―which create[] parallel state statutory provisions for conduct already prohibited by federal law‖ in all fifty States, ―has a substantial effect on interstate commerce.‖ United States v. Arizona, 703 F. Supp. 2d 980, 1003 (D. Ariz. 2010) (rejecting a Commerce Clause challenge to a similar provision in Arizona‘s immigration statute). A hypothetical possibility that a state statute could burden interstate commerce cannot sustain a facial challenge such as this one. See Ark. Elec. Co-op. Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 395 (1983). Moreover, the United States fails to offer any case law suggesting that the Dormant Commerce Clause protects the transportation of persons in a manner that constitutes a federal crime.
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In addition, Sections 13(a)(1)-(3) do not run afoul of the dormant Commerce Clause line of cases concerning facially discriminatory state statutes. A state law affecting interstate commerce is subjected to exacting scrutiny only when it ―discriminates against out-of-state residents on its face.‖ Locke, 634 F.3d at 1192. ―In this context, discrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.‖ United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007) (internal quotation marks omitted). Sections 13(a)(1)-(3) do not differentiate between in-state and out-of-state economic interests. Instead, they prohibit harboring, transporting, encouraging, and inducing of all aliens ―that ha[ve] come to, ha[ve] entered, or remain[ed] in the United States in violation of federal law.‖ See Act No. 2011-535 § 13(a)(1). It does not matter what State the perpetrator or alien is coming from. And it does not matter if the transportation of the alien crosses a state line. Thus, in-state and out-of-state interests are treated the same, and Section 13 is not facially discriminatory.
On the other hand, nondiscriminatory statutes that are ―directed to legitimate local concerns, with effects upon interstate commerce that are only incidental‖ face a lighter burden. United Haulers Ass’n, Inc., 550 U.S. at 346. They do not violate the Dormant Commerce Clause ―unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.‖ Id.
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(internal quotation marks omitted); Locke, 634 F.3d at 1192. Sections 13(a)(1)-(3) pass muster under that test. Alabama has a strong state interest in public safety and reducing the amount of criminal activity—both state and federal—within its borders, and the benefits of reducing illegal immigration are manifold. See supra at 2-3. The United States has not identified any burdens on interstate commerce that are ―clearly excessive‖ when compared to these local benefits.
Instead, the United States, relying heavily on the inapposite decision in Edwards v. California, 314 U.S. 160 (1941), simply argues that Sections 13(a)(1)(3) run afoul of the Dormant Commerce Clause because they represent an ―‗attempt[] on the part of [a] single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders.‘‖ U.S. Doc. 2 at 46 (quoting Edwards, 314 U.S. at 173).) But this case is nothing like Edwards. Unlike the unique regulation at issue there, which prohibited the movement of all indigent residents into California, see Edwards, 314 U.S. at 173, Section 13 does not aim to restrict the transportation of anyone who is lawfully present in the United States. Closing a State‘s borders to residents of other States who are legally present in the United States is a far cry from enforcing prohibitions on the harboring and transporting of illegal aliens that parallel federal statutes already in place. The United States has no likelihood of prevailing on this challenge to Sections 13(a)(1)-(3).
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d. Federal law does not preempt Section 13(a)(4), which parallels federal law by prohibiting harboring illegal aliens by entering into rental agreements with them.
Nor does federal law preempt Section 13(a)(4), which prohibits ―harbor[ing] an alien unlawfully present in the United States by entering into a rental agreement.‖ See U.S. Doc. 2 at 47. Alabama has already responded to some of the preemption arguments the United States now makes on this front. See HICA Doc. 82 at 79-83. The key points include:
 Contrary to the United States‘ assertion that Section 13(a)(4) imposes auxiliary burdens on the entrance or residence of aliens, U.S. Doc. 2 at 4748, Section 13(a)(4) prohibits a type of ―harboring‖ that is equally prohibited by federal law. See HICA Doc. 82 at 80-83 (citing 8 U.S.C. § 1324; United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)).
 Despite the United States‘ complaint that ―Alabama‘s housing rental prohibition . . . would prevent the state‘s unlawful alien population from obtaining practically any kind of housing or shelter,‖ U.S. Doc. 2 at 48, federal law is equally prohibitive. See HICA Doc. 82 at 79-82 (citing United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981)). The United States offers a slightly different spin on some of these
arguments, but the new spin is equally wrong.
i. Section 13(a)(4) affects illegal aliens‘ opportunities to obtain rental housing in the same way the federal harboring provision does.
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Second, relying on a decision that the Supreme Court has vacated, the United States argues that ―[t]he federal government ‗has never evidenced an intent for [unlawful aliens] to go homeless.‘‖ U.S. Doc. 2 at 48 (quoting Lozano v. City of Hazelton, 620 F.3d 170, 224 (3d Cir. 2010), vacated, No. 10-772, 2011 WL 2175213 (June 6, 2011)). But the federal government‘s actions regarding its own harboring provision tell a different story. As the Second Circuit has observed, when enacting the harboring statute, ―members of Congress appear to have assumed that one providing shelter with knowledge of the alien‘s illegal presence would violate the Act.‖ United States v. Lopez, 521 F.2d 437, 440 (2d Cir. 1975). And the United States has prosecuted individuals for, in part, providing shelter or lodging to illegal aliens under the harboring statute. Cf. id.; United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008); United States v. Balderas, 91 Fed. App‘x 354, 355 (5th Cir. 2004). The mere fact that the current Administration might choose not to enforce this prohibition as Congress wrote it is, again, hardly a reason to find that Congress itself intended to preempt concurrent state regulation in this area. See supra at 4-12.
ii. Section 13(a)(4) does not determine who may lawfully reside within Alabama‘s borders.
Second, the United States erroneously suggests that through ―Section 13(a)(4), Alabama effectively seeks to decide who may reside within its borders,‖
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something that has ―always been a power committed exclusively to the federal government.‖ U.S. Doc. 2 at 49. This argument is belied by the plain language of Section 13(a)(4). It is the federal government, not Alabama, that determines an alien‘s status and whether he or she may reside within the country. Section 13(a)(4) simply enforces that federal determination by implementing a harboring provision that parallels federal law. And a finding that someone has violated the rental provision does not result in a ―deci[sion]‖ as to ―which aliens may live in the United States.‖ U.S. Doc. 2 at 38. It simply results in a conviction of the landlord for harboring. The implied-preemption doctrine, and the concurrent-enforcement doctrine, allow this state provision to stand.
For clarity‘s sake, one other point merits brief mention here. The United States adverts at one point to language from De Canas in which the Court said that states may ―‗neither add to nor take from the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.‘‖ U.S. Doc. 2 at 47 (quoting De Canas, 424 U.S. at 358 n.6) (emphasis added in United States‘ brief). To be clear, the reference to ―residence‖ in the De Canas footnote, which was actually a quotation from an the Court‘s earlier decision in Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948), refers to whether a legal alien is authorized to reside in the United States—and not to whether an illegal alien can reside in a particular type of abode. See De Canas, 424
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U.S. at 358 n.6 (citing Takahashi, 334 U.S. at 419). The United States does not appear to be trying to use that language from De Canas and Takahashi to establish that latter proposition, and with good reason. Section 13(a)(4)‘s restriction on rental agreements for illegal aliens simply has no connection to the concept of ―residence‖ of legal aliens discussed in De Canas and Takahashi.
e. Federal law does not preempt Section 30, which prohibits certain transactions between the State and illegal aliens.
Nor does federal law impliedly preempt Section 30, which prohibits certain transactions between an alien not lawfully present and the State.7 See U.S. Doc. 2 at 49-51. That is so in part because the United States is misinterpreting Section 30. It is also so because the United States is bringing a facial challenge to Section 30 and indisputably cannot show that at least some of its applications are not
7 Section 30 provides as follows: An alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state and no person shall enter into a business transaction or attempt to enter into a business transaction on behalf of an alien not lawfully present in the United States.
Act No. 2011-535, § 30(b). The term ―business transaction‖ is defined as any transaction between a person and the state or a political subdivision of the state, including, but not limited to, a person applying for or renewing a motor vehicle license plate, applying for or renewing a driver‘s license or nondriver identification card, or applying for or renewing a business license. ―Business transaction‖ does not include applying for a marriage license.
Act No. 2011-535, § 30(a).
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preempted. And it is also so because even the applications of Section 30 to which the United States points are not preempted under federal law.
i. The United States misinterprets Section 30. As an initial matter, the United States‘ challenge to Section 30 cannot even get off the ground because the United States is misinterpreting, or at least exaggerating, Section 30. Its fear that Section 30 would prohibit such aliens from having running water or sewer services, for example, has little basis. See U.S. Doc. 2 at 50. Section 30 applies only transactions with the State and its political subdivisions. Many ―water and sewer authorities,‖ on the other hand, are public corporations under Alabama law and are ―separate entit[ies] from the State and from any political subdivision thereof.‖ Limestone County Water & Sewer Authority v. City of Athens, 896 So. 2d 531, 534 (Ala. Civ. App. 2004). Accordingly, Section 30 will not affect an illegal alien‘s payment of his or her bills in localities where the utilities are run by such authorities. Likewise, the United States offers no logical reason why covered ―business transactions‖ would include the payment of property taxes or the payment of court fees. Neither of those transactions involves the exchange of money for goods or services, and neither creates any contractual duty for the State.
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ii. The United States‘ facial challenge fails because all applications of Section 30 are valid.
Moreover, the United States cannot possibly prevail on a facial challenge to Section 30. Because the United States is asking the Court to strike down Section 30 on its face, the United States 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). Here, every application of the Act would be consistent with federal law.
For example, Section 30 prohibits an alien unlawfully present from applying for a driver‘s license. This application does not conflict with federal law, which in fact encourages (and for all practical purposes, requires) a state to deny a driver‘s license to an illegal aliens. By federal statute, an alien unlawfully present ―is not eligible for any State or local public benefit.‖ 8 U.S.C. § 1621(a). The privilege of driving is a public benefit, but there is even more specific evidence of Congressional intent regarding drivers‘ licenses. First, in 1996 Congress expressly provided for ―the State‘s denying driver‘s licenses to aliens who are not lawfully present in the United States‖:
Pursuant to guidelines prescribed by the Attorney General not later than 6 months after the date of the enactment of this Act [Sept. 30, 1996], all States may conduct pilot programs within their State to determine the viability, advisability, and cost-effectiveness of the State's denying driver's licenses to aliens who are not lawfully present in the United States. Under a pilot program a State may deny a driver's license to aliens who are not lawfully present in the United States.
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Omnibus Consolidated Appropriations Act of 1997, Pub. L. 104-208, § 502, 110 Stat. 3009-671 (1996) (emphasis supplied). Then, in 2005, Congress enacted the Real ID Act and effectively made it impermissible for states to issue drivers‘ licenses to illegal aliens. See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Pub. L. 109-13, § 202, 119 Stat. 231, 302 (2005).8 Consequently, if Alabama gave drivers‘ licenses to all comers, regardless of status, then under the Real ID Act, an Alabama driver‘s license could not be used for any official purpose by any federal agency, such as getting through TSA‘s airport security.
The State‘s decision not to contract with illegal aliens for the provision of service or goods to the State is also clearly permissible. No federal law requires States to engage in business transactions with illegal aliens, and no preemption claim could possibly be made on that front. The United States‘ facial challenge thus fails.
8 The Real ID Act provides that no federal agency may accept a State‘s Driver‘s License for any official purpose unless the State meets the standards of the Act:
Beginning 3 years after the date of the enactment of this division, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section. Pub. L. 109-13, § 202(a)(1). One of those standards that the State must meet is to confirm the citizenship or lawful immigration status of all applicants. Pub. L. 109-13, § 202(c)(2)(B).
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iii. The United States identifies no basis for preemption of Section 30. The United States identifies no statutory provision with which it believes Section 30 conflicts. It instead asserts that Section 30 is in tension with extant immigration ―policies.‖ U.S. Doc. 2 at 50. That assertion cannot do the heavy lifting here. The burden here—and especially at the preliminary injunction stage, it is a steep one—is on the United States. The presumption—and especially at the preliminary-injunction stage, it is a strong one—is against preemption, not for it. See Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009); HICA Doc. 82 at 37-39. Invoking policy cannot satisfy that burden. See supra at 12-15. Nor can the United States back into a finding of implied preemption by asserting that Section 30 imposes ―distinct, unusual and extraordinary burdens and obligations upon aliens.‖ U.S. Doc. 2 at 51 (quoting Hines, 312 U.S. at 65-66). Preemption does not turn on the ―burdensomeness‖ or inconvenience that a state law places on an alien unlawfully present in the United States. That is especially so since federal immigration law itself places numerous burdens on illegal aliens. There is no congressional policy that aliens unlawfully present must always be treated exactly the same as persons who have not violated the nation‘s immigration laws. There cannot be, for Congress has already drawn distinctions, such as prohibiting illegal aliens from obtaining driver‘s licenses. See Pub. L. 104-208, § 502, 110 Stat. 3009-671 (1996); cf. Plyler, 457 U.S. at 223 (―Undocumented aliens
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cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy.‖).
f. Federal law does not preempt Section 27, which renders certain contracts unenforceable when one of the parties is an illegal alien.
The United States‘ preemption arguments also fail as to Section 27, which renders certain private contracts unenforceable if one of the parties is an alien, if the other party knows or should know as much, and the contract requires the illegal alien to remain unlawfully present in the United States for more than 24 hours.9 U.S. Doc. 2 at 57. As was the case with Section 30, the United States‘ argument on Section 27 falters on both procedural and substantive grounds.
The United States cannot succeed in its facial challenge to Section 27 because the United States bases its entire argument on hypothetical interactions that might happen in the future. For example, the United States imagines that perhaps some people would mistake a contracting party for an illegal alien when in
9 Section 27 provides as follows: No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.
Act No. 2011-535, § 27(a).
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fact the party is an alien lawfully present in the United States, or a United States citizen. This, they reason, ―would impair the ability of lawfully present aliens or U.S. citizens to make contracts.‖ U.S. Doc. 2 at 52. This is pure speculation. ―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.‖ Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449-50 (2008) (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). To defeat a facial challenge to Section 27, the State Defendants need only offer one application of it that is clearly constitution. To that end, one need look no further than the multiple contracts with illegal aliens that are prohibited by federal law. See, e.g., 8 U.S.C. §§ 1324a(a)(1) & (4); id. § 1323(a)(2); id. §§ 1324(a)(1)(A)(ii) & (iii). ―As a general proposition, a court will not aid either party to an illegal contract, in enforcing or rescinding that contract.‖ Youngblood v. Bailey, 459 So. 2d 855, 859 (Ala. 1984). Section 27 simply codifies that principle with respect to contracts that require an illegal alien to remain unlawfully present in the United States.
There is no colorable argument that the immigration statutes themselves preempt Section 27. See HICA Doc. 82 at 84-86. The United States tries to get around that problem by asserting that Section 27 is preempted because ―there is no evidence that Congress intended, as a categorical matter, unlawfully present aliens‘
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contracts to be unenforceable.‖ U.S. Doc. 2 at 52. In other words, the United States is saying, Section 27 is impliedly preempted because Congress never expressly told the States that they may, in the course of regulating contracts, pass laws regarding the enforceability of contracts involving aliens unlawfully present. But for reasons already explained, that ―preemption by omission‖ analysis does not work. See HICA Doc. 82 at 70-75.
g. Federal law does not preempt Section 28, which requires public elementary and secondary schools to collect data about a child’s immigration status at the time of enrollment.
The United States has failed to identify any federal statute that conflicts with Section 28‘s requirement that school officials ―determine‖ at the ―time of enrollment‖ whether the student ―was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.‖ Act No. 2011-535, § 28(a); U.S. Doc. 2 at 53. Instead, once again, the United States relies on an alleged conflict with ―federal policy‖ of the current Administration. See U.S. Doc. 2 at 53, 55, 56-57. And once again, what the current Administration deems to be ―federal policy‖ cannot impliedly preempt state law. See supra at 4-12, 12-15. That is especially so in the area of education, a traditional state function for which the presumption against preemption is at its apex. Cf. Wyeth, 129 S. Ct. at 1194-95.
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What the United States is really doing on this front is trying to manufacture
a preemption argument by invoking the language of equal-protection
jurisprudence. That much is clear from the United States‘ frequent citation to
Plyler v. Doe, 457 U.S. 202 (1982), an equal-protection precedent, and the United
States‘ assertion that Section 28 ―serves no lawful purpose, as the Constitution
guarantees all children an equal right to attend public school irrespective of their
immigration status.‖ U.S. Doc. 2 at 53. But the United States‘ attempt to use Plyler
to create a new type of implied-preemption analysis must fail.
Alabama has already responded, in the course of addressing the equal-
protection challenge raised by the HICA Plaintiffs, to many of the ―preemption‖
arguments the United States now makes. See HICA Doc. 82 at 118-25. Those
points included the following:
 Despite the United States‘ speculation that ―parents or guardians may choose to withdraw their children from school to avoid having to choose to possibly perjure themselves‖ when declaring their child‘s immigration status, U.S. Doc. 2 at 54, Section 28‘s reporting requirement applies only at ―enrollment,‖ which only occurs once – when the child initially enters school – not on an ongoing or yearly basis. HICA Doc. 82 at 120-21.
 In response to the United States‘ assertion that Section 28 would ―hinder[] aliens‘ access to public schools,‖ U.S. Doc. 2 at 56, the Superintendent of the Department of Education has made ―clear that no child will be denied an education based on unlawful status or on a failure to provide the requested documentation.‖ HICA Doc. 82 at 123.
 In response to the United States‘ concern that ―[n]or could aliens have any assurance that any information that they provide, or any determination schools make, would remain with state and local officials,‖ U.S. Doc. 2 at
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54, the State Board of Education does not read ―Act No. 2011-535 to require further action in the form of a phone call, etc., reporting anyone is an illegal alien.‖ HICA Doc. 82 at 122. The United States‘ additional arguments on this front are equally unavailing.
i. Alabama has a legitimate interest in Section 28‘s data-collection and reporting requirement.
The United States begins by wrongly questioning whether Alabama has any justification for Section 28‘s requirements. The United States asserts that Section 28 is overbroad because it ―inquir[es] about parental alien status.‖ U.S. Doc. 2 at 57. It also suggests that the data-collection and reporting requirement serves no ―legitimate state interest,‖ but is merely a subterfuge for ―discourag[ing] unlawful aliens from enrolling their children in school.‖ Id. Even if any of this were true, it is hard to see how it would be relevant to the preemption analysis. But none of it is true. The State has numerous legitimate interests in imposing this data-collection and reporting requirement.
First, States have a vital interest in obtaining as much information as possible about its schoolchildren, in order to provide them the best educational opportunities. Section 28(a) itself expressly identifies one reason why the State may have an interest in determining the immigration status of students and their parents: to help determine if the student ―qualifies for assignment to an English as Second Language class.‖ Section 28(d)(3) identifies another: to help ―analyze and
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identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States.‖ The State may need this data to supply courts with evidence in future lawsuits addressing the manner in which Alabama runs its education system. Plyler itself offers perhaps the most compelling justification for allowing States to collect this information. There the Court struck down a Texas policy under the Equal Protection Clause because, in part, the State had failed to collect and present evidence regarding the economic effect of illegal aliens attending public schools in the State. See 457 U.S. at 229; HICA Doc. 82 at 124-25. If the Court could fault a State for failing to collect this information, then it cannot be contrary to federal law to collect it.
Second, Alabama also has an economic interest in the data collection and reporting. The Alabama Legislature is responsible for collecting the revenues necessary to fund state services. To ensure that it meets the State‘s needs, the Legislature requires accurate data for projecting costs and services. Section 28(d)(4) thus requires the State Board of Education to compile aggregated data on this front to ―analyze and itemize the fiscal costs to the state and political subdivisions thereof of providing educational instruction, computers, textbooks and other supplies, free or discounted school meals, and extracurricular activities to
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students who are aliens not lawfully present in the United States.‖ And that information might well prove helpful to parties other than the State. It might help inform Congress—or the Administration—about the cost of educating the children of illegal immigrants. The State thus has strong interests in the system established by Section 28.
ii. Section 28 is not a preempted registration scheme. Nor is the United States correct when it contends that Section 28 creates an impermissible ―mandatory alien registration scheme for school children‖ that is preempted by federal law. See U.S. Doc. 2 at 57. The United States relies on Hines v. Davidowitz, 312 U.S. 52 (1941), for support, but as with the Plaintiffs‘ other invocations of Hines, that precedent is unavailing here. See HICA Doc. 82 at 65. Section 28 bears no resemblance to the Pennsylvania statute examined by the Court in Hines, which required all aliens over the age of 18—whether or not they were legally present on the United States—to, among other things, register annually and carry an alien registration card. 312 U.S. at 59-60. The Pennsylvania law thus established a mandatory registration scheme, complete with criminal penalties for noncompliance. In contrast, Section 28 imposes no penalty whatsoever, and does not even purport to register children. This is hardly a Hinesesque ―registration‖ scheme. Parents are already routinely required to submit
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documents to schools upon enrollment, including immunization certificates, medical or religious exemptions, social security numbers or temporary numbers, and proof of age. See HICA Doc. 82-3 at 3. Requesting another document—either a birth certificate or declaration—does not establish an entirely new ―registration scheme.‖ U.S. Doc. 2 at 57. Rather than conflicting with the federal alienregistration scheme, Section 28‘s data-collection requirement relies on that system by determining a student‘s immigration status according to ―federal law.‖ See Act No. 2011-535, § 28(a)(3). And Section 28(e) affirmatively forbids the public disclosure of the gathered information except on grounds authorized by federal law. It thus creates no conflict with federal law.
h. Federal law does not impliedly preempt Sections 12 and 18, which establish arrest protocols and an immigration-status verification scheme.
Nor has the United States established that it is likely to prevail on its implied-preemption arguments as to Sections 12 and 18. U.S. Doc. 2 at 58. These sections define stop-and-arrest protocols for law-enforcement officers. They represent a new procedure, but not a new practice. Long before Alabama enacted Act No. 2011-535, state officers ―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‖ have been permitted to make inquiries with the federal government. 8 U.S.C. § 1373(c). And under Congress‘s direction, the federal
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government is required to respond ―by providing the requested verification or status information.‖ Id.
The only difference between the current system and the one the Act will implement is that currently it is up to each law-enforcement officer‘s discretion to decide whether to act upon reasonable suspicion that a person is an illegal alien by making a telephone call to the federal Law Enforcement Support Center (LESC) via 8 U.S.C. § 1373(c). Such discretion can lead to great variations in lawenforcement protocols and dissimilar treatment of individuals who officers encounter. Accordingly, Sections 12 and 18 will put a uniform protocol into place across Alabama, ensuring that officers treat all persons the same way when reasonable suspicion of their illegal status arises.
Section 12(a) requires state and local officers to make contact with the federal government to inquire into the immigration status of an individual, pursuant to 8 U.S.C. § 1373(c), only when all of the following criteria are met:
1. a person is lawfully stopped, detained, or arrested, 2. by a law enforcement officer in the act of enforcing state or local law, 3. who then acquires reasonable suspicion that the subject may be an
illegal alien, 4. and an inquiry to federal immigration authorities will be practicable, 5. and it will not hinder or obstruct the investigation of the suspected
crime giving rise to the lawful stop, detention, or arrest. Similarly, Section 18 provides that if a person is arrested for driving without a driver‘s license in violation of § 32-6-9 of the Alabama Code and the person is not
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a United States citizen, then the official shall verify the arrestee‘s immigration status under 8 U.S.C. § 1373(c). Contrary to the United States‘ claim that ―Sections 12 and 18 … convert the Alabama police force into a roving immigration patrol,‖ U.S. Doc. 2 at 60, these sections only come into play after law-enforcement officers encounter these persons because of their violations of other laws.
The United States‘ conflict-preemption claim against these sections has no basis. The United States does not present any federal statutory language that can reasonably be construed to conflict with Sections 12 and 18. Instead, the United States ignores the plain text of 8 U.S.C. § 1373, offers theories that federal law will not support, and stretches the word ―cooperate‖ in 8 U.S.C. § 1357(g)(10) beyond the meaning it will bear. As explained below, the United States‘ arguments fail. (It bears noting at the outset, however, that the United States wisely declines to argue that state and local police officers lack the authority to make immigration arrests at all. Since 2002, the U.S. Department of Justice‘s Office of Legal Counsel has opined that States possess inherent authority to make such arrests, and Congress has never preempted that authority. See Exh. C (2002 OLC Opinion).)
i. Congress mandated federal responses to state inquiries in 8 U.S.C. §1373(c).
The federal immigration statutes preclude the United States‘ preemption argument. The United States declares that verifications of aliens‘ immigration
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status from Alabama law-enforcement officers ―would create a significant risk that the federal government would be forced to shift resources away from its chosen priorities.‖ U.S. Doc. 2 at 69-70. But that argument is ignores the text of 8 U.S.C. § 1373(c), which expressly authorizes such requests and establishes by statute that responding to all of them is a top priority. In 1996, Congress placed the Executive Branch under a statutory obligation to respond to all local inquiries into an alien‘s immigration status:
Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. § 1373(c) (emphasis added). In the same section, Congress also recognized the interest of cities and states in ―[s]ending‖ and ―[m]aintaining‖ such ―information regarding the immigration status, lawful or unlawful, of any individual,‖ and said that ―no person or agency may prohibit, or in any way restrict‖ those communications. 8 U.S.C. § 1373(b)(1)-(2). Importantly, Congress wanted local law enforcement agencies to be able to send and maintain information—not just receive it—about an alien‘s legal status.
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The Senate Report accompanying this legislation spelled out Congress‘s objective of encouraging state and local law enforcement agencies to make their own efforts to assist in immigration enforcement:
Effective immigration law enforcement requires a cooperative effort between all levels of government. 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, 104th Cong., 2d Sess., at 19-20 (1996) (emphasis added). Sections 12 and 18 of Alabama‘s statute were built around 8 U.S.C. § 1373 and the federal assistance to state and local law enforcement agencies that it demands. The provisions of 8 U.S.C. § 1373 belie the United States‘ argument that Sections 12 and 18 are preempted because they might ―interfere‖ with the Executive Branch‘s enforcement of the immigration statutes. Through 8 U.S.C. § 1373, Congress ordered the federal government to prioritize its resources in this manner; responding to state and local inquiries would henceforth be one of its highest priorities. The fact that the current Administration might wish to allocate fewer resources to answering inquiries from state and local governments is irrelevant—Congress has established the priority of this task. As the District of Arizona correctly observed in an immigration-preemption case presenting a different question, ―Congress encourages state and federal authorities to communicate regarding immigration status. … The fact that the Act will result in
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additional inquiries to the federal government is consistent with federal law.‖ Arizona Contractors Ass’n v. Napolitano, No. CV07-1355-PHX-NVW, 2007 WL 4570303, at *15 (D. Ariz. Dec. 21, 2007), aff’d sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), aff’d sub nom. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
ii. The Administration‘s policy concerns cannot impliedly preempt Sections 12 and 18.
The United States speculates that an increase in verification requests from Alabama might conflict with the enforcement priorities of the current Administration, but the United States does not even mention the fact that 8 U.S.C. § 1373(c) removes all discretion from the Executive Branch with respect to answering these sorts of inquiries from the States. See U.S. Doc. 2 at 58-72. The United States cannot ignore the statute in this way. When Congress exercises its plenary power to enact laws concerning immigration, the Executive Branch must comply with Congress‘s direction. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 69699 (2001). The fact that the executive agency may have its own priorities that conflict with federal statute does not in any way reduce the agency‘s legal obligation to fully comply with the statute. See Hillsborough County, 471 U.S. at 717; Massachusetts v. EPA, 549 U.S. 497, 533 (2007). Nor does the agency‘s displeasure with federal law have any preemptive effect. See United States v.
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Arizona, 641 F.3d 339, 380 (9th Cir. 2011) (Bea, J., dissenting in part). Moreover, the factual premise of United States‘ argument is at odds with the
message LESC is proclaiming to the public. The LESC website says it ―operates a communications center that provides NCIC Hit Confirmations (within 10 minutes) to law enforcement agencies 24 hours a day, 7 days a week.‖ See http://www.ice.gov/lesc/. The website boasts that ―[t]he number of requests for information sent to the LESC increased from 4,000 in FY 1996 to 807,106 in FY 2008, to 1,133,130 in FY 2010 setting a new record for assistance to other law enforcement agencies.‖ Id. The site gives no indication that the LESC has collapsed under the weight of this increased demand. Instead, it asserts that in 2010, ―the LESC received queries from more than 13,000 distinct ORIs (electronic addresses) representing law enforcement agencies in all 50 states, the District of Columbia, two U.S. territories, and Canada.‖ Id.
The declarations that the United States generated for this litigation are based on pure speculation that the LESC will be overwhelmed. They also make mistaken assumptions. For example, William M. Griffen‘s declaration ignores Section 12‘s requirement that officers first have reasonable suspicion that the subject is an illegal alien before making a query to LESC. See U.S. Doc. 2-7 at 10, ¶ 21 (stating that his understanding is that a query will be made every time if the stop is lawful and it is practicable to do so). He also underestimates the effectiveness and
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competence of Alabama law enforcement officers by suggesting a hypothetical scenario in which an individual has his immigration status checked multiple times—even though Alabama officers are already familiar with LESC by virtue of 8 U.S.C. § 1373. Id. at 11, ¶ 23. The United States cannot override 8 U.S.C. § 1373(c) through unsupported conjecture of that sort.
iii. The term ―cooperate‖ in 8 U.S.C. § 1357(g)(10) does not override 8 U.S.C. § 1373(c).
Unable to offer any response to § 1373(c)‘s mandate, the United States resorts to an argument that stretches a single word in another federal statute beyond any meaning that it will reasonably bear. The United States seizes on the word ―cooperate‖ in 8 U.S.C. § 1357(g)(10)(B), and claims that ―a state is not acting ‗cooperatively,‘‖ and its actions are therefore preempted ―if it … attempts to force the federal government to routinely deploy scarce enforcement resources in accordance with an immigration enforcement regime of a state‘s choosing.‖ U.S. Doc. 2 at 65. But the term ―cooperate‖ in 8 U.S.C. § 1357(g) does not override the federal government‘s obligations under § 1373(c), particularly in light of the function § 1357(g) plays in the overall statutory scheme.
Section 1357(g) allows a State to enter into a written agreement with the federal government to effectively deputize certain specially-trained state officers to exercise the powers of ICE agents. After laying out the requirements for the
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deputizing of such state officers, Congress made clear that no such written
agreement was necessary for state officers to exercise their inherent authority to
make immigration arrests and transfer such illegal aliens to ICE custody. The full
text of 8 U.S.C. § 1357(g)(10) says as follows:
(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.
8 U.S.C. § 1357(g)(10).
The United States rips the word ―cooperate‖ from this context in order to
create a set of state-centered obligations that are nowhere mentioned in the statute.
The United States claims that this single word establishes ―the INA‘s ‗cooperation‘
requirement.‖ U.S. Doc. 2 at 64. It then asserts that this ―‗cooperation‘ requirement
means that a state may not adopt its own mandatory set of directives to implement
the state‘s own enforcement policies because such a mandate would serve as an
obstacle in every instance to the ability of individual state and local officers to
cooperate with federal officers administering federal policies and discretion as the
circumstances in the particular case require.‖ Id. The United States‘ reading is
wrong, for five reasons.
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First, the United States takes no notice of the structure of § 1357(g)(10). Section 1357(g)(10) does not say that ―if a state wishes to make an immigration inquiry, then it must cooperate.‖ Rather, the sentence is a simple statement that a written agreement is not required for the State to cooperate with the Attorney General.
Second, the United States ignores the surrounding context of the sentence. 8 U.S.C. § 1357(g)(10) is designed to free the states of any obligation that might be implied by the preceding subsections, not to impose an obligation upon them. It would be odd to read into this subsection a vast preemption clause that prohibits states from determining the stop-and-arrest protocols for their own officers.
Third, the United States offers an unduly expansive definition of the word ―cooperate,‖ claiming that ―cooperation with federal enforcement requires preservation of the federal government‘s statutorily assured enforcement discretion.‖ U.S. Doc. 2 at 65. In other words, to the United States, ―cooperate‖ means ―defer entirely to the federal government‘s preferences and assume a subservient role.‖ Webster‘s offers a more balanced definition: ―to associate with another or others for mutual benefit.‖ WEBSTER‘S ONLINE DICTIONARY, available at http://www.merriam-webster.com/dictionary/cooperate.
Fourth, the United States fails to explain how an ad hoc policy in which state officers exercise their own discretion whenever they feel so moved is more
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―cooperative‖ than a uniform policy applied only when certain factors apply. This weakness is evident in the United States‘ attempt to explain why ad hoc decisions are better than uniform decisions: ―a state is not acting ‗cooperatively,‘‖ the United States asserts, ―if it . . . attempts to deny its officers (who are assisting federal officers in enforcing the INA) the opportunity to exercise their discretion on a case-by-case basis so that they can be responsive to the direction and priorities of the federal officials.‖ U.S. Doc. 2 at 65. That analysis does not work. The state officer‘s ―responsive‖ reaction to the federal official only occurs after the state official makes a phone call to ICE. Meanwhile, Sections 12 and 18 come into play before the phone call is made. The state officer can be equally responsive afterward, regardless of whether he initiated the call based on an ad hoc decision or based on a uniform policy.
Fifth, the United States ignores § 1357(g)(10)(A), which says a state may ―communicate with the Attorney General regarding the immigration status of any individual.‖ 8 U.S.C. § 1357(g)(10)(A). Subsections (g)(10)(A) and (g)(10)(B) are framed in the alternative; so a State may exercise the authority recognized in (g)(10)(A) without ever running into the word ―cooperate.‖ That is how Sections 12 and 18 of Act No. 2011-535 operate. When a law-enforcement officer makes contact with ICE under either Section 12 or Section 18, he is doing so to communicate with ICE, as described in (g)(10)(A). He is making contact because
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the individual has violated a state or local law. Only after ICE confirms that the
individual in question is an illegal alien, and ICE requests custody from the state
officer, does (g)(10)(B) come into play. Only at that point would the state officer
―det[ain]‖ the alien and transfer him to ICE custody to assist in ICE‘s ―removal‖ of
the alien from the United States. 8 U.S.C. § 1357(g)(10)(B).
The United States is really using the word ―cooperate‖ as a vehicle to once
again argue that the current Administration‘s ―priorities‖ have preemptive effect.
The United States argues, ―These priorities animate DHS‘s internal enforcement
decisions, and … these priorities communicate to states how the federal
government is attempting to balance resource constraints and competing
immigration objectives.‖ U.S. Doc. 2 at 68. The United States offered the same
abstractions in the Arizona case, but as Judge Bea cogently noted in dissent, all
those abstractions revealed was that the Administration did not wish to enforce the
law as written:
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?
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Arizona, 641 F.3d at 379-380 (Bea, J., dissenting in part). Implied preemption cannot be based on such a slender reed.
iv. The presumption against preemption is particularly strong here in light of the State‘s interests in its arrest protocols.
The infirmities described above are enough to render the United States‘ preemption claim invalid, but it bears noting that the presumption against preemption is particularly strong in this context. See HICA Doc. 82 at 37-39. Determining stop-and-arrest protocols is a fundamental attribute of internal law enforcement operations within a State. These protocols come into play before any phone call is made to the federal government, and the arrest is an exercise of state authority to enforce state and local laws. ―It is an essential attribute of the States‘ retained sovereignty that they remain independent and autonomous within their proper sphere of authority.‖ Printz v. United States, 521 U.S. 898, 928 (1997). Provided that such arrest protocols are consistent with the Constitution and are not prohibited by federal statutes, there is no basis for the United States to interfere with or attempt to stop them, as this lawsuit attempts to do. As a Tenth Amendment matter, the federal government lacks the power to ―direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty.‖ Printz, 521 U.S. at 902-03, 932. The presumption against preemption is thus particularly heightened here.
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v. Inquiring into the immigration status of lawfully present aliens is not preempted.
The United States cannot get around these problems by speculating that ―[a]lthough Alabama‘s verification scheme may intend to ultimately target unlawfully present aliens, the system would inevitably subject lawfully present aliens to the type of ‗indiscriminate and repeated interception and interrogation by public officials‘‖ that concerned the Supreme Court in Hines. U.S. Doc. 2 at 73. This speculative argument is based on faulty factual premises and offers no legal basis for preemption.
First, the United States incorrectly equates Sections 12 and 18 with the state registration system struck down in Hines. That system involved police accosting individuals solely to determine whether or not they were carrying the state-issued registration documents. See Hines, 312 U.S. at 59. Sections 12 and 18 of Act No. 2011-535 do no such thing. They only come into play after an individual has been stopped, detained, or arrested for breaking a law unrelated to his or her immigration status.
Second, the United States fails to account for subsections 12(d)(1)-(6), which create a presumption that a person is not unlawfully present in the U.S. if he or she presents one of many forms of identification. For that reason alone, the vast majority of lawfully present aliens stopped by law enforcement officers will not
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have their immigration status checked because the presumption will prevent the officer from forming the necessary reasonable suspicion.
Third, the United States is wrong to surmise that if a lawfully present alien is arrested for driving without a license and says he is not a U.S. citizen, Section 18 will entail longer detention than would otherwise occur. See U.S. Doc. 2 at 75. They ignore the fact that Alabama Code § 32-6-9 already authorizes police officers to arrest and detain individuals lawfully stopped for a traffic violation who are then found to be driving without a license. Once the individual is already arrested and in custody, the immigration status verification pursuant to 8 U.S.C. § 1373(c) will not prolong his time of detention. It is pure speculation for the United States to suggest otherwise—and such speculative pleading cannot sustain a facial challenge, in which a plaintiff must establish that the law is unconstitutional in all of its applications. See HICA Doc. 82 at 13-18.
Fourth and perhaps most important, the law fully allows a police officer to make an immigration inquiry after a lawful stop or detention of any person has occurred. The Supreme Court has held that during a lawful detention, an officer can inquire into the person‘s immigration status without any prior reasonable suspicion that the person is unlawfully present in the United States. Muehler v. Mena, 544 U.S. 93, 101 (2005). In addition, the Eleventh Circuit has recognized that law-enforcement officers have the authority to do exactly what Section 12
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entails: during a lawful stop, an officer can contact ICE after reasonable suspicion arises that the person is an alien unlawfully present in the United States. See United States v. Cantu, 227 Fed. App‘x 783, 785 (11th Cir. 2007). Other Circuits that have addressed the issue have recognized the authority of state and local officers to contact federal immigration authorities when reasonable suspicion arises that a person who has been stopped is an illegal alien. Cf. United States v. SorianoJarquin, 492 F.3d 495, 497, 501 (4th Cir. 2007); United States v. RodriguezArreola, 270 F.3d 611,614, 619 (8th Cir. 2001); United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999); Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987); United States v. Salinas-Calderon, 728 F.2d 1298, 1300-02 (10th Cir. 1984); United States v. Contreras-Diaz, 575 F.2d 740, 743-45 (9th Cir. 1978).
There is thus simply no basis for concluding, as a matter of statutory text or policy, that Section 12 and 18‘s stop-and-arrest protocols are impliedly preempted.
B. Federal law does not expressly preempt any of the Act’s provisions.
The United States raises equally erroneous express-preemption challenges to two of the Act‘s employment-related provisions. See U.S. Doc 2 at 36-42. The first of these, Section 16, prohibits employers from deducting on their state income-tax return, as a business expense, any wages paid to illegal aliens. The second challenged provision, Section 17, makes it a discriminatory employment practice
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for an employer to fire an employee who is legally present in the United States
while retaining an unauthorized alien worker. It also gives discriminated-against
employees a cause of action against employers who violate these provisions. As
explained below, federal law does not expressly preempt either of these provisions.
The United States erroneously contends that 8 U.S.C. § 1324a(h)(2)
expressly preempts Sections 16 and 17. Section 1324a(h)(2) reads as follows:
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.
8 U.S.C. § 1324a(h)(2). In this provision, Congress utilized its power of express
preemption to deny States the authority to impose criminal penalties or civil fines
on the employers of unauthorized aliens. But through this language, Congress left
open three windows for state and local legislation on the subject that are relevant
here:
(1) legislation that discourages the employment of unauthorized aliens through mechanisms other than ―civil or criminal sanctions‖;
(2) legislation that imposes ―sanctions … through licensing and similar laws‖; and
(3) legislation that discourages the employment of unauthorized aliens through penalties divorced from the act of ―employ[ing], or recruit[ing] or refer[ring] for a fee for employment, unauthorized aliens.‖
As explained below, the Alabama Legislature carefully drafted Sections 16 and 17
to fit within these three windows.
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1. The IRCA does not preempt Section 16. The presumption against preemption has particular weight in the context of the tax rules set by Section 16. The Supreme Court has long recognized that ―[t]he States have a very wide discretion in the laying of their taxes.‖ Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359 (1973) (internal quotation marks omitted). For ―[i]t is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible.‖ Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110 (1870). Section 16 simply modifies Alabama‘s tax structure, and that legislative act is well within the State‘s traditional taxing authority. Section 16(a) clarifies that money paid to unauthorized aliens cannot be deemed deductible expenses for state income-tax purposes: No wage, compensation, whether in money or in kind or in services, or remuneration of any kind for the performance of services paid to an unauthorized alien shall be allowed as a deductible business expense for any state income or business tax purposes in this state. This subsection shall apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration. Section 16(b) then imposes a tax penalty, amounting to ten times the amount deducted, on any business that illegally claims these wages as a tax deduction. For
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two reasons, neither of these provisions is a preempted imposition of a ―civil or criminal sanction[]‖ upon ―those who employ … unauthorized aliens.‖ 8 U.S.C. § 1324a(h)(2).
a. Section 1324a(h)(2) does not expressly preempt Section 16(a). As an initial matter, Section 16(a) is not preempted because a State‘s decision to define deductible business expenses as not including moneys paid to unauthorized aliens does not constitute a ―civil or criminal sanction[]‖ for the employment of those persons. 8 U.S.C. § 1324a(h)(2). A ―sanction‖ is a fixed penalty that is imposed by law. Cf. BLACK‘S LAW DICTIONARY 1077 (7th ed.) (defining ―sanction‖ as ―[a] penalty or coercive measure that results from failure to comply with a law, rule, or order‖). And a State‘s definition of what expenses may be deducted does not fit within that definition. The ―creation of tax deductions is an exercise of legislative grace under which no substantive rights may vest.‖ Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1085 (11th Cir. 2004). A State‘s decision not to make certain items deductible through this sort of ―legislative grace‖ imposes no ―sanction‖ on the taxpayer; it simply declines to award the taxpayer for the conduct at issue. If the United States‘ reasoning were correct, then any federal taxpayer who owns his home free and clear, or who lives in an apartment, is being
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―sanctioned‖ by the Internal Revenue Code because he or she is not eligible for the home-mortgage deduction. That is not the law.
Section 16(a) is far better viewed as a revenue-raising provision than it is a penalty or sanction. In passing the Act, the Alabama Legislature expressly decried the drain on public resources posed by the presence of illegal aliens (specifically, in the education context), and asserted its interest in ―ensur[ing] the integrity‖— including the economic integrity—―of various governmental programs and services.‖ Act No. 2011-535, §2. Accordingly, §1324a(h)(2) cannot preempt Section 16‘s valid taxing measures absent a clearer statement from Congress. See generally Hines, 312 U.S. at 68 (contrasting preempted state laws mandating alien registration as being ―in an entirely different category from state tax statutes‖ where the state‘s power is ―bottomed‖ on the ―broad base‖ of ―its power to tax‖).
b. Section 1324a(h)(2) does not preempt Section 16(b), but if it did, Section 16(b) would be severable.
Nor does the IRCA preempt Section 16(b). That provision imposes a penalty on any employer that claims, as a business-expense deduction, wages paid to an unauthorized alien. But § 1324a(h)(2) does not preempt that provision because it does not impose that penalty on an employer for the act of ―employ[ing], or recruit[ing] or refer[ring] for a fee for employment, unauthorized aliens.‖ 8 U.S.C. § 1324a(h)(2).
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Section 1324a(h)(2) can only be read as preempting sanctions that States impose on employers for the actual acts of employing or recruiting unauthorized aliens, or referring them for employment. Someone reading § 1324a(h)(2)‘s language in a cramped, hypertechnical way might assert that it preempts any sanction imposed on employers of unauthorized aliens. See 8 U.S.C. § 1324a(h)(2) (―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.‖). But in light of the purposes underlying § 1324a(h)(2), this language is far more naturally read as preempting sanctions on employers for the act of employing, recruiting, or referring these unauthorized aliens. The case on which the United States relies most heavily for its preemption argument recognizes this reality. See Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 766 (10th Cir. 2010) (―Even assuming that Sections 7(B) and 9 impose ‗sanctions‘ as that term is used in § 1324a(h)(2), imposition of such sanctions is divorced from the employment of unauthorized aliens.‖). The Supreme Court‘s jurisprudence, which requires a ―narrow interpretation‖ of express-preemption clauses, demands this reading of § 1324a(h)(2) as well. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 523 (1992)).
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In light of what §1324a(h)(2) means, Section 16(b) is not preempted. An employer may do all three of the things mentioned in §1324a(h)(2)—employing, recruiting, or referring—without ever triggering Section 16(b). Section 16(b) only comes into play if that employer files his state income taxes and then fraudulently claims those employees‘ wages as deductible business expenses. A business that employs unauthorized aliens can avoid this penalty entirely by not taking the deduction. The penalty is thus assessed on the act of tax fraud, not on the act of employing unauthorized aliens. It is therefore not a ―sanction[]‖ imposed ―upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens‖ for the purposes of 8 U.S.C. § 1324a (h)(2).
Even if that were not the case and Section 16(b) were preempted, Section 16(a) would remain on the books. That is so because Section 16(b) would be severable from the rest of the statute. The United States asserts otherwise, claiming that Section 16(b) is not severable because ―Section 16(a) cannot stand apart from Section 16(b).‖ U.S. Doc. 2 at 39. But the severability of an invalid state statutory provision turns on state law. See Artistic Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196, 1204 (11th Cir. 2003). Under Alabama law, the ―inclusion of a severability clause‖ in a statute, like the one present in Section 33 of the Act at hand, ―is a clear statement of legislative intent‖ that any invalid provision should be severed. King v. Campbell, 988 So. 2d 969, 981 (Ala. 2007) (internal quotation
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marks and emphasis omitted)); accord State v. Montgomery, 59 So. 294, 303 (Ala. 1912). Moreover, although the Act‘s severability clause should end the analysis, the United States is also wrong to assert that ―Section 16(a) cannot stand apart from Section 16(b).‖ U.S. Doc. 2 at 39. Even without the penalty provision, Alabama employers would comply with Section 16(a). That would happen in part because of those employers‘ good faith, and in part because other state-tax-law provisions that would facilitate Section 16(a)‘s enforcement. See, e.g., ALA. CODE §40-29-110 (establishing the criminal offense of attempting to ―evade or defeat‖ the State‘s tax laws). Thus, even if Section 16(b) were preempted, Section 16(a) would stand.
2. The IRCA does not expressly preempt Section 17. Nor does § 1324a(h)(2) preempt Section 17. See U.S. Doc. 2 at 41-42. Section 17(a) makes it a discriminatory employment practice for an employer to retain unlawful alien employees while firing U.S. citizen or authorized alien employees, and Section 17(b) gives employees a private right of action against employers who engage in that practice. Section 1324a(h)(2) does not preempt those provisions for two reasons. First, the United States itself defines ―sanctions‖ as measures with a punitive or deterrent component. See U.S. Doc. 2 at 38 (quoting Edmondson, 594 F.3d at
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765). And Section 17 expressly disclaims any intent to punish or deter conduct. It expressly seeks only to ―compensat[e]‖ victims of a newly defined discriminatory practice for their losses. See Act No. 2011-535 §17(b) (―Any recovery under this subsection shall be limited to compensatory relief and shall not include any civil or criminal sanctions against the employer.‖). Moreover, § 1324a(h)(2) envisions that state or local law will actually ―impos[e]‖ the sanction at issue. Damages assessed in a private lawsuit do not fit that bill.
To be sure, the Tenth Circuit found a similar Oklahoma statute preempted in Edmondson, but the court there misinterpreted § 1324a(h)(2) and misapplied the presumption against preemption. 594 F.3d at 765. In the Tenth Circuit‘s view, the statute‘s ―context‖ did ―not evince an intent to narrowly define ‗sanction‘ as requiring a punitive component.‖ Id. The problem with this reasoning is that it stands the Supreme Court‘s clear-statement rule on its head. See Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (state law will not ―be superseded by [a] Federal Act unless that [is] the clear and manifest purpose of Congress‖ (internal quotation marks omitted). Under the clear-statement rule, ambiguities in an expresspreemption clause should be read against displacement of state law, and preempting Section 17 because ―sanction‖ might conceivably mean something broader than ―penalty,‖ as the Tenth Circuit did, is a bridge too far.
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Second, § 1324a(h)(2) does not preempt Section 17 because merely establishing a private right of action does not guarantee success at litigation. It does not stipulate—or, to use the statute‘s words, ―impos[e]‖ —any specific dollar amount that an employer has to pay, and it does not guarantee that any action will be taken against the employer at all. Rather, it only becomes operative if an employee who has been wrongfully terminated chooses to exercise his private rights. As the California Court of Appeal explained in examining 8 U.S.C. § 1324a(h)(2), ―[s]anctions are not the same as damages; a statutory reference to sanctions does not equal a reference to damages.‖ Jie v. Liang Tai Knitwear Co., 107 Cal. Rptr. 2d 682, 690 n.7 (Cal. Ct. App. 2001).
That result does not change simply because the Act also allows the ―prevailing party‖ to recover ―reasonable attorney fees‖ in the actions contemplated by Section 17(b). The attorney fees authorized by Section 17 do not constitute a civil ―sanction‖ any more than the possibility of compensatory damages does. Attorney fees are borne by the ―losing party,‖ whoever that party is. Section 17 thus imposes attorneys‘ fees not because of an employer‘s employment of unauthorized aliens, but rather simply as an adjunct to the non-preempted private right of action. And whatever attorney fees might be awarded to an employee would, like the compensatory damages, simply compensate the victim of the discriminatory employment practice for his or her costs. Those fees are not
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preempted, and the possibility that they will be awarded in some future case is no

reason to hold that Section 17 is preempted in a facial challenge.

*

*

*

For all of these reasons, the United States has failed to establish that it is

likely to succeed on the merits of its preemption arguments. On that basis alone,

this Court should decline to preliminarily enjoin the Act before it goes into effect.

II. The equities weigh against a preliminary injunction. Just as the United States cannot establish that it will likely succeed on the
merits, it cannot establish that other equitable considerations warrant a preliminary injunction.
A. The United States will not suffer irreparable harm if the Act is allowed to go into effect.
As an initial matter, the United States cannot show that it will suffer irreparable harm if the injunction does not issue. The harms it claims it will suffer—from a potential reduction in resources to fears of international rebuke— are wholly speculative. And ―[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court‘s] characterization of injunctive relief as an extraordinary remedy.‖ Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008) (emphasis added). An injunction ―issues to prevent existing or presently threatened injuries. One will not be granted

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against something merely feared as liable to occur at some indefinite time in the future.‖ State of Connecticut v. Com. of Mass., 282 U.S. 660, 674 (1931).
The United States is wrong when it contends that Act No. 2011-535 will ―alter[]‖ ―the federal government‘s administration of the immigration laws‖ and ―seriously damage[]‖ ―the federal government‘s ability to achieve its chosen balance of the multiple and competing goals underlying the federal immigration system.‖ U.S. Doc. 2 at 77-78. Act No. 2011-535 marks the State‘s effort to work with the federal government, not against it. See supra at 1-3. This policy of cooperative and concurrent enforcement is consistent with the federal policies delineated in 8 U.S.C. § 1373 and 8 U.S.C. § 1644, and is indeed mandated by them. Congress has established this cooperative system between the federal government and States. The Department of Homeland Security thus will not suffer ―irreparable harm‖ by complying with congressional directives. Moreover, the Act does not command the federal government to make any changes to the way it enforces its own laws. The federal government remains free to make its own decisions, under the controlling directives of federal law, about whom to ―initiate enforcement proceedings against.‖ U.S. Doc. 2 at 77.
Nor will the Act ―alter the conditions of residence for lawfully present aliens.‖ U.S. Doc. 2 at 78. Act No. 2011-535 parallels federal law aimed at aliens unlawfully present in the United States and will have no more effect on lawfully
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present aliens than federal law already exerts. Equally misplaced are the United States‘ concerns that the Act will interfere with ICE‘s ―measured exercise of discretion.‖ U.S. Doc. 2 at 79. The Act expressly relies on the federal government‘s determination of an alien‘s immigration status. ICE remains free to exercise its discretion, and Alabama will abide by that determination of status.
The United States‘ final alleged harm is neither irreparable nor a ―harm‖ caused by Act No. 2011-535. The United States asserts that Act No. 2011-535 will ―inflict irreparable injury‖ on its ―ability to manage foreign policy.‖ U.S. Doc. 2 at 81. But, again, this forecasted harm is merely speculative. Act No. 2011-535 closely parallels the United States‘ own statutes and directives about immigration. Thus, any potential international effects are attributable to Congress‘s policy decisions on immigration, not Alabama‘s. The United States simply cannot establish a substantial likelihood that it will suffer an ―irreparable harm‖ at the hands of Act No. 2011-535.
B. The balance of equities tips in Alabama’s favor. Nor has the United States made a compelling showing that the public interest favors an injunction. ―When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-established rule that the Government has traditionally been granted
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the widest latitude in the dispatch of its own internal affairs.‖ Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (internal quotation marks omitted). The United States has not overcome that presumption. The public consequences to Alabama from enjoining Act No. 2011-535 are significant. The Act represents a good-faith attempt to help stem the tide of illegal immigration in the State, and no one can know how efficacious that attempt will be until the law is allowed to go into effect. Federalism concerns thus counsel heavily against an injunction here. Alabama is currently suffering serious consequences from illegal immigration. See supra at 12. Alabama has sought to dispatch its own internal affairs by addressing the serious public consequences from the increased influx of illegal aliens. The equities favor that valid state exercise.
* * * At the end of the day, despite the various policy-laden criticisms that the United States and other Plaintiffs have levied toward Alabama here, the fact remains that federal law prohibits illegal immigration in this country. The current Administration may believe that the system should be reformed,10 and that States such as Alabama should be precluded from doing what they can to help Congress achieve the goals that the current system embodies. But if the current Administration wishes to attain that result, it should do so by going to Congress
10 See http://www.whitehouse.gov/the-press-office/2011/07/06/remarks-president-twitter-townhall.
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itself, and asking Congress to change the law. It should not seek a judicial
declaration that a state statute designed to uphold this federal prohibition is
somehow preempted. This Court should reject the United States‘ attempt to
circumvent the democratic processes.
CONCLUSION
This Court should deny the United States‘ motion for a preliminary
injunction.
Respectfully submitted,
LUTHER STRANGE (ASB-0036-G42L) Attorney General
BY:
s/ John C. Neiman, Jr. John C. Neiman, Jr. Solicitor General (ASB-8093-O68N)
Prim F. Escalona Deputy Solicitor General (ASB-7447-H69F)
Margaret L. Fleming (ASB-7942-M34M) Winfield J. Sinclair (ASB-1750-S81W) James W. Davis (ASB-4063-I58J) Misty S. Fairbanks
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(ASB-1813-T71F) William G. Parker, Jr. (ASB-5142-I72P) Assistant Attorneys General
OFFICE OF THE ALABAMA ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: 334.242.7300 Facsimile: 334.353.8440 jneiman@ago.state.al.us pescalona@ago.state.al.us mfleming@ago.state.al.us wsinclair@ago.state.al.us jimdavis@ago.state.al.us mfairbanks@ago.state.al.us wparker@ago.state.al.us
Attorneys for the State of Alabama and Governor Bentley
CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Mary Bauer Samuel J. Brooke Andrew H. Turner SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, Alabama 36104 Telephone: 334.956.8200 Facsimile: 334.956.8481 mary.bauer@splcenter.org sam.brooke@splcenter.org andrew.turner@splcenter.org
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Cecilia D. Wang Katherine Desormeau Kenneth J. Sugarman AMERICAN CIVIL LIBERTIES UNION 39 Drumm Street San Francisco, California 94111 Telephone: 415.343.0775 Wang
415.343.0778 Desormeau 415.343.0777 Sugarman Facsimile: 415.395.0950 cwang@aclu.org kdesormeau@aclu.org irp_ks@aclu.org
Sin Yen Ling ASIAN LAW CAUCUS 55 Columbus Avenue San Francisco, California 94111 Telephone: 415.896.1701 ext. 110 Facsimile: 415.896.1702 sinyenL@asianlawcaucus.org
Michelle R. Lapointe Naomi Tsu Daniel Werner SOUTHERN POVERTY LAW CENTER 233 Peachtree St., NE, Suite 2150 Atlanta, Georgia 30303 Telephone: 404.521.6700 Lapointe & Werner
404.221.5846 Tsu Facsimile: 404.221.5857 michelle.lapointe@splcenter.org naomi.tsu@splcenter.org daniel.werner@splcenter.org
Erin E. Oshiro ASIAN AMERICAN JUSTICE CENTER 1140 Connecticut Ave., NW, Suite 1200 Washington, DC 20036 Telephone: 202.296.2300
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Facsimile: 202.296.2318 eoshiro@advancingequality.org
G. Brian Spears G. BRIAN SPEARS PC 1126 Ponce de Leon Avenue Atlanta, Georgia 30306 Telephone: 404.872.7086 Facsimile: 404.892.1128 bspears@mindspring.com
Ben E. Bruner BRUNER LAW FIRM 1904 Berryhill Road Montgomery, Alabama 36117 Telephone: 334.201.0835 brunerlawfirm@gmail.com
Andre Segura Elora Mukherjee Omar C. Jadwat Lee Gelernt Michael K.T. Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: 212.549.2676 Segura
212.549.2664 Mukherjee 212.549.2620 Jadwat 212.549.2616 Gelernt 212.549.7303 Tan Facsimile: 212.549.2654 asegura@aclu.org emukherjee@aclu.org ojadwat@aclu.org lgelernt@aclu.org mtan@aclu.org
Linton Joaquin Karen C. Tumlin
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Vivek Mittal Melissa S. Keaney Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: 213.639.3900 Facsimile: 213.639.3911 joaquin@nilc.org tumlin@nilc.org mittal@nilc.org keaney@nilc.org cheer@nilc.org
Tanya Broder NATIONAL IMMIGRATION LAW CENTER 405 14th Street, Suite 1400 Oakland, California 94612 Telephone: 510.663.8282 Facsimile: 510.663.2028 broder@nilc.org
Freddy Rubio RUBIO LAW FIRM, P.C. 438 Carr Avenue, Suite 1 Birmingham, Alabama 35209 Telephone: 205.443.7858 Facsimile: 205.433.7853 frubio@rubiofirm.com
Herman Watson, Jr. Eric J. Artrip Rebekah Keith McKinney WATSON, MCKINNEY & ARTRIP, LLP 203 Greene Street Post Office Box 18368 Huntsville, Alabama 35801 Telephone: 256.536.7423 Facsimile: 256.536.2689 watson@watsonmckinney.com
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artrip@watsonmckinney.com mckinney@watsonmckinney.com
Diana S. Sen LATINOJUSTICE PRLDEF 99 Hudson Street – 14th Floor New York, New York 10013 Telephone: 212.219.3360 dsen@latinojustice.org
Foster S. Maer Ghita Schwartz LATINOJUSTICE PRLDEF 99 Hudson Street – 14th Floor New York, New York 10013 Telephone: 212.219.3360 fmaer@latinojustice.org gschwarz@latinojustice.org
Victor Viramontes Martha L. Gomez MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 634 S. Spring Street, 11th Floor Los Angeles, California 90014 Telephone: 213.629.2512 vviramontes@maldef.org mgomez@maldef.org
Amy Pederson MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 1016 16th Street, Suite 100 Washington, D.C. 20036 Telephone: 202.293.2828 apedersen@maldef.org
J.R. Brooks, Jr. Taylor P. Brooks LANIER FORD SHAVER & PAYNE, P.C. Post Office Box 2087 Huntsville, Alabama 35804-2087
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Telephone: 256.535.1100 Facsimile: 256.533.9322 jrb@lfsp.com tpb@lanierford.com
Donald B. Sweeney, Jr. BRADLEY ARANT BOULT CUMMINGS LLP One Federal Place 1819 Fifth Avenue North, Seventh Floor Post Office Box 830709 Birmingham, Alabama 35283-0709 Telephone: 205.521.8000 Facsimile: 205.488.6275 dsweeney@babc.com
C. Lee Reeves, II Joshua Wilkenfeld Varu Chilakamarri U.S. DEPT OF JUSTICE, CIVIL DIVISION FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue NW Washington, DC 20530 lee.reeves@usdoj.gov Joshua.i.wilkenfeld@usdoj.gov varudhini.chilakamarri@usdoj.gov
Joyce White Vance Praveen Krishna US ATTORNEY‘S OFFICE 1801 4th Avenue North Birmingham, AL 35203-2101 joyce.vance@usdoj.gov Praveen.krishna@usdoj.gov
Augusta S. Dowd WHITE ARNOLD & DOWD PC 2025 3rd Avenue, North, Suite 600 Birmingham, AL 35203 adowd@waadlaw.com
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Terry McElheny DOMINICK FLETCHER YEILDING WOOD & LLOYD P.O. Box 1387 Birmingham, AL 35201 tmc@dfy.com
F. Grey Redditt, Jr. VICKERS RIIS MURRAY & CURRAN LLC 106 St. Francis Street, 11th Floor P.O. Drawer 2568 Mobile, AL 36652-2568 gredditt@vickersriis.com
John F. Whitaker WHITAKER MUDD SIMMS LUKE & WELLS LLC 2001 Park Place North, Suite 400 Birmingham, AL 35203 jwhitaker@wmslawfirm.com
and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants:
Counsel for Plaintiffs
Nina Perales MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 100 Broadway, Suite 300 San Antonio, Texas 78205 Telephone: 210.224.5476 nperales@maldef.org
s/John C. Neiman, Jr. OF COUNSEL
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 Case 2:11-cv-02746-SLB Document 81 Filed 08/23/11 Page 1 of 49
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

FILED
2011 Aug-23 AM 09:44 U.S. DISTRICT COURT
N.D. OF ALABAMA

____________________________________

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

)

STATE OF ALABAMA &

)

GOVERNOR ROBERT J. BENTLEY, )

)

Defendants.

)

)

____________________________________)

Case No. 5:11-cv-02484 (SLB) Case No. 5:11-cv-02736 (SLB) Case No. 5:11-cv-02746 (SLB)

PLAINTIFF UNITED STATES OF AMERICA’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 2:11-cv-02746-SLB Document 81 Filed 08/23/11 Page 2 of 49
INTRODUCTION Exercising its constitutional authority to “establish an uniform Rule of Naturalization” and to “regulate Commerce with foreign Nations,” Congress has enacted a complex federal immigration scheme which covers a broad range of issues, including alien entry, movement, employment, and removal, as well as immigration benefits. Under this system, the federal government expends significant resources to prevent illegal immigration and to remove unlawfully present aliens. Since 2004, the Department of Homeland Security (DHS) has doubled the size of the Border Patrol, Aguilar Decl. ¶ 7, U.S. Br., Ex. 8, and over the last fiscal year, it has processed over 260,000 individuals at ports of entry in Alabama alone, id. ¶ 4a, preventing thousands of inadmissible aliens from entering the country though the state, id. ¶ 5. On an average day this year, DHS arrested 775 aliens nationwide and removed 1,049 aliens, including 537 criminal aliens. Ragsdale Decl. ¶ 5, U.S. Motion for a Preliminary Injunction [hereinafter, “U.S. Br.”], Ex. 2. While removal and criminal sanctions form a critical part of the federal immigration scheme, these are not Congress’s sole concerns. Congress also sought to protect aliens against exploitation, despite their unlawful status, and affirmatively created an enforcement system that is built around the appropriate exercise of discretion, which can account for humanitarian and foreign relations concerns, as well as resource constraints. See U.S. Br. at 5-7, 52 & n.11. Alabama ignores the multi-faceted objectives that Congress has evidenced through the enactment of various immigration laws, complaining that the federal government has not employed criminal sanctions and removal to the exclusion of all other goals. Attempting to take matters into its own hands, Alabama has enacted its own comprehensive immigration scheme, touching virtually every aspect of unlawfully present (and sometimes lawfully present) aliens’
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lives in Alabama – covering their registration, entry and movement in the state, housing, employment, education, and ability to contract – all with the singular goal of criminally sanctioning the aliens or essentially effectuating their removal from the state.
As demonstrated in our opening brief, it is impermissible for a state to enact such provisions, as their enforcement would present an obstacle to the fulfillment of the purposes and objectives Congress embodied in its complex system of immigration laws and would intrude upon certain areas reserved to the federal government. In response, Alabama advocates what amounts to a two-fold approach that would essentially eliminate the doctrine of implied preemption and permit states to run roughshod over the objectives of Congress: wherever Congress has enacted a specific immigration provision, the states are free to enact their own laws – laws such as Sections 10, 13, 12, and 18 – which supposedly parallel or are intended to help enforce the federal laws. On the other hand, where Congress has not enacted a law proscribing specific immigration related conduct, Alabama contends that the states are also free to fully regulate in those areas – as with Sections 11, 16, 17, 27, 28, and 30 – because there can be no “preemption by omission.” Alabama’s approach has no basis in preemption law. This reply will first address the general flaws in Alabama’s approach, and will then turn to each specific provision at issue.
ARGUMENT Alabama claims that H.B. 56 does not conflict with federal law because Alabama is simply trying to achieve federal objectives. But Alabama’s approach misreads the complex immigration scheme as having a singular and exclusive focus on criminal prosecution or sanction. The Supreme Court has recognized that, in carrying out the sometimes competing congressional objectives underlying the immigration laws, “flexibility and the adaptation of the
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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). Congress has therefore designated DHS and the Department of Justice to enforce the Immigration and Nationality Act (INA), and with that comes the authority to implement this statutory scheme with the necessary flexibility and discretion. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-85 (1999). This authority is not limited to the simple decision of whether or not to remove an alien from the United States, but necessarily infuses the manner in which immigration sanctions are applied, as well as the methods of enforcement.1 Thus, contrary to Alabama’s claim that the United States is advocating a theory of preemption by executive policy or inaction, see Defendants’ Opp’n to Plaintiff’s Motion for a Preliminary Injunction [hereinafter, “Alabama U.S. Opp.”] at 8-10, the issue here is that “flexibility” in the executive’s enforcement forms a “‘critical component of the statutory and regulatory framework’ under which the federal government pursues the difficult (and often competing) objectives” set forth by Congress in the INA. Ga. Latino Alliance for Human Rights v. Deal, 2011 WL 2520752, at *14 (N.D. Ga. 2011); see Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349-350 (2001) (holding that additional state-law punishment for unlawful fraud on the Food and Drug Administration is preempted because it would interfere with FDA’s “flexibility” to “pursue[] difficult (and often competing) objectives”); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).
Accordingly, in an arena where flexibility and adaptation to multiple objectives are critical, and where Congress has vested discretion to balance those objectives in the Executive,
1 See, e.g., Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (noting that the federal government’s control over immigration includes control over the “manner of the[ immigration laws’] execution”); Ragsdale Decl. ¶¶ 9, 42, U.S. Br., Ex. 2 (noting, inter alia, that criminal sanctions for unlawful entry would not be appropriate for an alien who may have been victimized and eligible for relief such as asylum).
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Alabama’s general claim that it may “concurrently enforce” any singular congressional objective does not pass muster – even where the state’s professed intention is to help the federal government achieve that particular objective.2 Alabama’s supposed support for its “concurrent enforcement” principle is a case dealing with the unique area of employer regulation, see Alabama U.S. Opp. at 3, 17, 27; Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011). Regulation of employers is a unique area because Congress has expressly authorized the states to regulate concurrently – but only through a single means, “licensing and similar laws.” 8 U.S.C. 1324a(h)(2). Whiting thus deals with a “particular category of sanctions” over which “Congress specifically preserved [state] authority”; a plurality of the Court concluded that given the express authorization to regulate in that area, “it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.” 131 S. Ct. at 1981, 1984. Alabama cannot bootstrap concurrent regulation of employers through licensing, which has a statutory basis, into concurrent regulation of immigration writ large, which does not.
Rather, the question of whether a state can enact its own laws and enforcement systems which parallel federal laws depends on the subject matter of, and congressional intent surrounding, the specific federal provision at issue. For example, where Congress has legislated in an area within its superior constitutional authority, even a state law that “mirrors” federal law may be preempted. As the Supreme Court has explained:
The State contends that its requirement is not pre-empted because it is similar to federal requirements. This is an incorrect statement of the law. It is not always a sufficient answer to a claim of pre-emption to say that state rules supplement, or
2 Alabama portrays H.B. 56 as merely an effort to “fully cooperate with federal immigration authorities,” Alabama U.S. Opp. at 1, citing Section 2 of H.B. 56. The United States is not seeking to invalidate this hortatory Section, and invites the genuine cooperation of the states. But many of the other sections of H.B. 56 go well beyond offering assistance to the United States, and attempt to seize control of numerous facets of immigration law from the United States.
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even mirror, federal requirements. . . . The appropriate inquiry still remains whether the purposes and objectives of the federal statutes, including the intent to establish a workable, uniform system, are consistent with concurrent state regulation.
United States v. Locke, 529 U.S. 89, 115 (2000) (emphasis added); accord Fla. Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963) (“The test of whether both federal and state
regulations may operate, or the state regulation must give way, is whether both regulations can
be enforced without impairing the federal superintendence of the field, not whether they are
aimed at similar or different objectives.”). Even where Congress has regulated an issue, the
separate state regulation of that same issue would undoubtedly result in some degree of
difference in enforcement and interpretation of the federal statutes, which could impair Congress’s ability to effectively control a particular area.3 Thus, Alabama’s premise that it is
free to enact and enforce any law that parallels or is designed to enhance existing federal
provisions is untenable.
The second prong of Alabama’s approach similarly overreaches and ignores real limitations on the states.4 Alabama claims that it does not seek to “replace the immigration laws
passed by the federal government,” Alabama U.S. Opp. at 2-3, yet it presses a theory where
states are virtually free to enact any immigration law unless affirmatively prohibited by
Congress. First, Alabama attempts to read De Canas v. Bica, 424 U.S. 351 (1976), as giving free
3 Alabama cites Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983), as supporting concurrent enforcement by the states, but that case addressed certain enforcement of federal law, not enactment of independent state law. Other cases cited by defendants, (Alabama U.S. Opp. at 27), are similar to Whiting, in that they deal with a state’s narrow ability to revoke employer licenses based on express savings clause in federal law. See Gray v. City of Valley Park, 2008 WL 294294, at *9-11 (E.D. Mo. Jan. 31, 2008); Ariz. Contractors Ass’n v. Napolitano, 2007 WL 4570303, at *9 (D. Ariz. Dec. 21, 2007). 4 For example, the Supreme Court has often noted that, “[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls . . . the pre-emptive inference can be drawn.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988).
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rein to state enactments that are unrelated to local concerns and traditional police powers. See Alabama U.S. Opp. at 5-8. But the type and scope of state power being exercised were central to the Court’s analysis in De Canas. Rather than simply “descri[bing] the impetus behind the California law at issue,” see id. at 7, the Court went to some length to describe the sorts of “police powers” that states ordinarily possess, including laws affecting “child labor,” and “occupational health and safety,” and concluded that (prior to the passage of IRCA) the regulation of employment fell within these local concerns. 424 U.S. at 356. The Court also explained that “even state regulation designed to protect vital state interests” could be preempted by paramount federal legislation, id. at 357, indicating that state regulation should, at a minimum, focus on local interests. The primary import of De Canas here is that states cannot create their own independent immigration policies and schemes for enforcing such policies, such as Sections 12 and 18 of H.B. 56. U.S. Br. at 15. And, as relevant to many other sections of H.B. 56, Alabama cannot ignore De Canas’s admonition that “state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress,” because such regulations “conflict with [the United States’] constitutionally derived federal power to regulate immigration.” De Canas, 424 U.S. at 358 n.6; Toll v. Moreno, 458 U.S. 1, 12-13 & n.8 (1982).
Alabama further misinterprets the significance of foreign policy as it applies to areas left “unregulated” by Congress. While the disruption to U.S. foreign relations does not form the sole basis of the challenge to any of H.B. 56’s sections, there are numerous instances in which sections of H.B. 56 conflict with the longstanding stated foreign policy of the United States. This argument is not one of preemption by “heckler’s veto,” as Alabama suggests, Alabama U.S. Opp. at 13. Rather, as Deputy Secretary of State Burns advises, “our uniform foreign policy . . .
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has provided that the unlawful presence of a foreign national, in itself, ordinarily will not lead to that foreign national’s criminal arrest, incarceration, or other punitive measures (e.g. legislated homelessness) but instead to civil removal proceedings. Unlawful presence is a basis for removal, not retribution,” and this policy is “longstanding,” “understood internationally,” “consonant with multilateral resolutions,” and consistent with U.S. human rights commitments and interests in reciprocal treatment for U.S. citizens abroad. Burns Decl. ¶ 35, U.S. Br., Ex. 1. Thus, the foreign policy conflict does not arise from the mere displeasure of foreign nations – although such concerns certainly highlight the deleterious effects of the conflict. Instead, the conflict arises because many sections of the Alabama law effectively criminalize or penalize unlawful presence in a manner that “alters” or could be seen as “reneging” on the very real stated U.S. foreign policy positions on which the international community has relied. Id. ¶ 34.
Alabama’s approach to preemption would allow a state to enact almost any type of immigration regulation. Such a position is unsupportable. Instead, each of the challenged provisions of H.B. 56 must be viewed against the federal law and congressional intent that is unique to each area of regulation. Under that standard, each of these provisions must be enjoined. A. Section 10 is Preempted Because it Both Regulates in an Area Exclusively Occupied
by the Federal Government and Conflicts with the INA. 1. The Supreme Court has barred states from enacting laws touching on alien
registration. The federal government has comprehensively regulated alien registration, leaving no room for supplemental state regulation. See Hines v. Davidowitz, 312 U.S. 52, 74 (1941); see U.S. Br. at 18-20. For this reason, the Ninth Circuit unanimously held that an almost identical Arizona provision was preempted. United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011). Alabama quibbles over whether Hines involved field preemption or conflict preemption. Alabama U.S. Opp. at 18-20. This argument is misplaced, as Alabama acknowledges that
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Congress established “an integrated national registration system maintained by the federal government.” Alabama Opposition to HICA Motion for a Preliminary Injunction [Hereinafter, “Alabama HICA Opp.”] at 65. Defendants forget that the categories of implied preemption are not “rigidly distinct”; instead, “field pre-emption may be understood as a species of conflict preemption.” English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990); Nat’l Ass’n of State Util. Consumer Advocates v. FCC, 457 F.3d 1238, 1252 (11th Cir. 2006). The precise classification of Hines is therefore irrelevant here because under either analysis, Section 10 is preempted. The Supreme Court described federal regulation of the “registration of aliens” as sufficiently “comprehensive” to foreclose any state supplementation, and held that the states are precluded from “complement[ing]” the registration scheme or from “enforc[ing] additional or auxiliary regulations.” Hines, 312 U.S. at 61, 66-67, 70. Section 10 falls on this basis alone. See Arizona, 641 F.3d at 383 (Bea, C.J., concurring and dissenting) (referring to “the federal government's uniform, integrated, and comprehensive system of [alien] registration which leaves no room for its enforcement by the state”).5
Eventually, Alabama acknowledges “the ‘comprehensive’ nature of the federal alienregistration laws” and defends Section 10 as an effort to “concurrentl[ly] enforce[]” the federal registration laws. Alabama U.S. Opp. at 20. Hines forecloses this effort. Alabama may not
5 Alabama misreads Hines as leaving open whether the field of alien registration is preempted, see Alabama U.S. Opp. at 18. The language cited by Alabama does not speak to preemption via congressional occupation of the field, but to whether alien registration is a field that the states are constitutionally precluded from entering, even in the absence of any congressional enactments. See Hines, 312 U.S. at 61-62 (leaving unaddressed whether the state exceeded its “constitutional power” to register aliens, and whether “federal power in this field, whether exercised or unexercised, is exclusive”) (emphasis). Given that Congress had enacted a comprehensive scheme for alien registration, Hines did not need to decide whether the federal power over alien registration – even if unexercised – was exclusive; the actual scheme enacted by Congress was, and continues to be, sufficiently preemptive.
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independently criminalize immigration conduct. See De Canas, 424 U.S. at 363 (“[I]n neither Hines nor Nelson was there affirmative evidence . . . that Congress sanctioned concurrent state legislation[.]”); see also supra at 7. And the criminal provisions of Section 10 are especially inappropriate in light of the Supreme Court’s confirmation that the states are not permitted to have their own alien registration requirements, and therefore cannot “provide their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the [federal statute].” Wisconsin Dep’t of Industry v. Gould, Inc., 475 U.S. 282, at 283 (1986).
Section 10 also contradicts federal law by effectively criminalizing the mere unlawful presence of aliens, which Congress has chosen not to do.6 Alabama does not dispute that it lacks the authority to sanction unlawful presence. Instead, Alabama argues that Section 10 is no more of a sanction on unlawful status than what is already available under federal law. Alabama U.S. Opp. at 21-22. Although Section 10 is superficially based on the federal registration laws, it is tailored to apply exclusively to unlawfully present aliens. Unlawful presence is an element of the crime created by Section 10, beyond mere failure to comply with the federal registration laws. To reiterate its focus on unlawfully present aliens, Section 10 additionally immunizes anyone who “maintains authorization from the federal government to be present in the United States.” H.B. 56 § 10(d). Thus, Section 10 is not simply an effort to copy the federal registration provisions – which itself would be impermissible – it is an effort to start with the federal registration crime and end in a crime focused exclusively on unlawful presence.
2. Section 10 impermissibly interferes with foreign affairs. Lastly, Alabama contends that the United States cannot rely on the Executive’s control over foreign affairs to argue for preemption of Section 10. But Alabama cannot deny that the 6 Congress has repeatedly considered and rejected attempts to criminalize unlawful presence. See S. Res. 2454, 109th Cong. §§ 206, 275 (2006); H.R. Res. 4437, 109th Cong. § 203 (2005); see also Burns Decl., ¶ 35.
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Supreme Court invalidated the registration scheme at issue in Hines partly because of the risk that that state alien registration requirements would interfere with foreign relations. Hines, 312 U.S. at 66. Alabama’s argument that the Executive’s control over foreign affairs is relevant to the preemption analysis only where a state statute might contradict a specific, established federal policy “enshrined in [a] federal statute or treaties,” Alabama U.S. Opp. at 14, is demonstrably incorrect. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 n.14 (2003) (finding preemption even though “the President in this case is acting without express congressional authority,” because “the President possesses considerable independent constitutional authority to act on behalf of the United States on international issues, and conflict with that authority is a comparably good reason to find preemption of state law” (citation omitted)); see also id. at 41617. And as the Deputy Secretary of State has made clear, state registration laws do conflict with actual arrangements with other countries (see Burns Decl. ¶ 35) – at least to the same extent as the registration provision that was invalidated in Hines. Defendants’ narrow understanding of the federal foreign affairs power would “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.” Crosby, 530 U.S. at 381. B. Section 13’s Prohibitions on the Harboring, Housing, and Transporting of Aliens,
and on Encouraging Their Travel into the State, are Preempted. 1. Even if Section 13 mirrored federal law, it could not stand. Alabama contends that Section 13 simply mirrors federal law, and therefore cannot be preempted under its theory that “concurrent enforcement” by states is always permissible. This argument is flawed for several reasons. First, the underlying premise that a state law cannot be preempted if it seeks to concurrently regulate and enforce conduct already regulated by the federal government is simply incorrect. See supra at 4-6. The preemption analysis here thus
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requires an inquiry into the specific federal statutes and authorities at issue – an inquiry in which Alabama has wholly failed to engage.
As explained in the United States’ motion, Congress has unique constitutional authority to regulate the terms and conditions of an alien’s entry in the United States, and it has exercised this authority by providing a detailed set of sanctions for those who unlawfully enter, and for the third parties who aid in their entry or concealment, or who harbor them. See U.S. Br. at 32-34 (citing 8 U.S.C. §§ 1323, 1324, 1327, 1328). The preemptive force of these provisions is derived from the subject matter of these laws, which relate to the entry and movement of aliens and thus strike at the heart of immigration itself. See, e.g., De Canas, 424 U.S. at 360-61; Fiallo v. Bell, 430 U.S. 787, 796 (1977); Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895); Henderson v. Mayor of New York, 92 U.S. 259, 270 (1875) (Constitution prohibits sanction on third parties who assist in alien entry). Alabama makes no effort to contradict this point, and the reason is clear: If a single state were permitted to regulate alien entry and movement into and through the state, one must imagine the effect if all 50 states were permitted to do the same.7 The consequence of each state eliminating any real possibility of passage or residence for certain aliens, would be that the United States has effectively closed its external and interstate borders in a manner dictated by the states rather than the national government. Alabama’s claim that it only targets the activities of the unlawfully present is beside the point, because the Constitution precludes states from engaging in any regulation of entry and residence in the United States. De Canas, 424 U.S. at 355; Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948). The federal government’s exclusive authority here includes the concomitant authority over the
7 See, e.g., Gould, 475 U.S. at 288; Pub. Util. Comm’n v. United States, 355 U.S. 534, 546 (1958); Arizona, 641 F.3d at 354 (noting that the effect and magnitude of all states enacting similar laws must be considered in a preemption analysis).
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manner of enforcement and when to sanction individual offenders. See Chy Lung, 92 U.S. at 280 (explaining that the federal government exercises exclusive control over “the character of [immigration] regulations” and “the manner of their execution”); see also Gould, 475 U.S. at 286 (holding that where states have no authority to regulate an activity, they are also prohibited from “providing their own regulatory or judicial remedies for conduct prohibited . . . by [federal law]”). For any state to take that authority unto itself would necessarily intrude upon the federal government’s exclusive ability to administer uniform immigration rules relating to entry and residence.8
Relatedly, Section 13 also violates the dormant Commerce Clause, as it attempts to discourage or otherwise restrict the movement of people between states. The Supreme Court has adopted a two-tiered approach to analyzing potential Commerce Clause violations:
[1] When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry. . . . [2] When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits. Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). Under this test, a state regulation is per se invalid where it “directly regulates or discriminates against interstate commerce.” Id. (emphasis added); see also Diamond Waste, Inc. v. Monroe County, Ga., 939 F.2d 941, 944 (11th Cir. 1991) (“[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. The clearest example of
8 Several other courts have similarly held that state regulation in this area is impermissible. See, e.g., Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 855 (N.D. Tex. 2010); Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1056 (S.D. Cal. 2006); Deal, — F. Supp. 2d —, 2011 WL 2520752, at *13 (N.D. Ga. 2011).
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such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders.”); NCAA v. Miller, 10 F.3d 633, 638 (9th Cir. 1993) (similar).
Alabama responds that Section 13 is not invalid because it does not “discriminate” against interstate commerce or substantially “burden” interstate commerce, Alabama U.S. Opp. at 30-31, ignoring the first part of the Brown-Forman test for per se unconstitutionality. Alabama’s prohibition on encouraging an alien to come to the state, or transporting an alien into the state directly regulates commerce by “restraining the transportation of persons . . . across its borders,” just like the statute that was struck down in Edwards v. California, which made it a criminal offense to “bring[ ]or assist[ ] in bringing into the State any indigent person who is not a resident of the State.” 314 U.S. 160, 171-73 (1941). Alabama also attempts to evade constitutional scrutiny by arguing that it targets the movement of “illegal aliens,” Alabama U.S. Opp. at 32, but this distinction is irrelevant. The Supreme Court has long made clear that the Commerce Clause is implicated by restrictions on the movement of aliens. Henderson, 92 U.S. at 270. The exclusive federal control over the interstate movement of aliens is not diminished because of an alien’s unlawful presence. See City of Philadelphia v. New Jersey, 437 U.S. 617, 622 (1978) (“All objects of interstate trade merit Commerce Clause protection” and “none is excluded by definition at the outset.”). In fact, the Court in Bowman ruled in a similar fashion, when it held that a state may not bar the importation of a product even if it would be illegal to possess or sell in the state. See Bowman v. Chicago & N.W. Ry. Co., 125 U.S. 465, 493 (1888) (invalidating state’s bar on the importation of alcohol, which was illegal in the state). Thus, just as the lawful status of an article of commerce has no bearing on a state’s inability to control its importation, by analogy, an alien’s unlawful presence does not permit Alabama to regulate his or her interstate movement.
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2. Sections 13(a)(3) & 13(a)(4) do not even mirror federal law, and conflict with the purposes and objectives of Congress.
Although Alabama would be precluded from enacting state provisions which “mirror” federal law in this area, even the suggestion that the state is mirroring federal law does not withstand scrutiny. Parts of Section 13 differ from federal law in ways that undermine the purposes and objectives of Congress.
First, although Alabama attempts to defend Section 13(a)(3) by relying on Arizona state court precedent on a similar provision, see Alabama U.S. Opp. at 28-29, the analogy to Arizona’s so-called self-smuggling provision reveals that Section 13 is not a mirror image of federal law. Instead, Section 13 – like Arizona’s law – permits the state to criminally punish the “smugglee” himself for furthering his own unlawful presence. Compare H.B. 56 § 13(a)(3) (“Conspiracy to be so transported shall be a violation”), with State v. Barragan-Sierra, 196 P.3d 879, 885 (Ariz. Ct. App. 2008) (finding that Arizona’s law permits the person smuggled to be convicted). By contrast, federal law does not extend to the smuggled alien, United States v. HernandezRodriguez, 975 F.2d 622, 626 (9th Cir. 1992) (observing that unlawfully present aliens who are transported “are not criminally responsible for smuggling under 8 U.S.C. § 1324”), and therefore, Alabama has attempted to broaden the crime to penalize mere unlawful presence. Not only has Congress declined to criminalize unlawful presence, but such criminalization conflicts with the objectives of Congress and the foreign policy of the United States. See supra at 9 n.6. For this reason, the district court in United States v. Arizona found there to be potential preemptive conflict between Arizona’s self-smuggling provision and federal law. See United States v. Arizona, Case No. 10-1413, slip op. at 15 (D. Ariz. Dec. 12, 2010).
Second, Section 13(a)(4) – Alabama’s anti-housing rental prohibition – similarly differs from federal law in a significant way, and is preempted 8 U.S.C. § 1324. Alabama asserts that
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Section 13(a)(4) “prohibits a type of ‘harboring’ that is equally prohibited by federal law,” Alabama U.S. Opp. at 33, claiming that because “the language in Section 13 is taken directly from 8 U.S.C. § 1324(a)(1)(A)(ii)-(iv),” it represents “perfect concurrent enforcement against the same criminal activity that is already prohibited by federal law.” Alabama HICA Opp. at 75. Alabama is wrong.9 Alabama simply ignores the judicial authority striking down similar housing restriction provisions on preemption grounds. See U.S. Br. at 36 (citing cases). Nor does Alabama address federal immigration regulations that contemplate the provision of housing to unlawfully present aliens. See id. at 38 (citing 8 U.S.C. § 1229(a)(1)(F)(i)). Unable to contend with the case law finding similar state enactments to be preempted, Alabama attempts to seek refuge in the case law applying 8 U.S.C. § 1324. Alabama cites a litany of cases, all ostensibly for the proposition that the act of providing housing to unlawfully present aliens has constituted harboring under federal law. Id. at 80-82; Alabama U.S. Opp. at 33-34. These cases cannot bear the weight that Alabama places on them: Not one of the cases Alabama cites holds that the provision of housing to unlawful aliens, without more, constitutes harboring within the meaning of 8 U.S.C. § 1324. Although Alabama emphasizes the housing aspect of the harboring decisions it cites, the cases uniformly involve conduct that transcends the provision of housing.
Alabama represents, for example, that “[t]he Former Fifth Circuit has specifically held that providing illegal aliens with ‘lodging’ constitutes harboring.” Alabama HICA Opp. at 81 (citing United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981)). The facts of Varkonyi, as determined by the Court, are as follows:
9 Indeed, if the federal anti-harboring provisions “already prohibited” all renting to unlawfully present aliens, Section 13(a)(4) would not prohibit anything beyond what Sections 13(a)(1)-(3) already prohibit, and would have been unnecessary to enact.
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Border Patrol Agents Barragan and Gomez were proceeding to make a routine check of the El Paso railroad yards . . . . As the [INS] van drew near, one of the men in the scrap metal yard yelled, “Immigration is coming”, and the men . . . attempted to hide behind a table in the back of that yard. The agents stopped the van and called to the men, who were visible through the fence, to come out and talk with them. Receiving no answer, Agent Barragan attempted to enter the yard to ascertain the immigration status of the workers; however, his entry was blocked at the open gate by Varkonyi, who shoved him out of the yard and threatened to call the police. Seeing the above confrontation, the workers left their hiding place and decided to voluntarily surrender.
Id. at 454-55. Based on these events, the former Fifth Circuit affirmed Varkonyi’s conviction for
harboring, concluding that “[t]he evidence adduced at trial revealed that Varkonyi knew of the
aliens undocumented status; that he had instructed the aliens on avoiding detection on a prior
occasion; that he was providing the aliens with employment and lodging while they were
unlawfully in the United States; that he had forcibly interfered with INS agents to protect the
aliens from apprehension; and, that he was partly responsible for the subsequent escape of one
alien in INS custody.” Id. at 459. Alabama’s characterization of other harboring decisions is
equally incomplete.10 In sum, Alabama identifies no case in which any court has interpreted 8
10 In United States v. Tipton, 518 F.3d 591 (8th Cir. 2008), a restaurant owner was convicted of harboring six unlawful aliens. The evidence in Tipton was not, as Alabama represents, that the defendants simply “provid[ed] an apartment for the undocumented aliens,” Alabama HICA Opp. at 82, but rather that the defendants “harbored these aliens by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each alien.” Tipton, 518 F.3d at 595. Similarly, in United States v. Sanchez, 963 F.2d 152 (8th Cir. 1992), the evidence of harboring was that the defendant “met with illegal aliens; that the aliens told Sanchez that they were illegal; that Mr. Sanchez told illegal aliens that he could provide immigration papers for them; that Sanchez paid to rent an apartment for the illegal aliens”; and that “in exchange for anywhere from $300 to $800, Sanchez would provide aliens with falsified [immigration documents].” Id. at 154-55. And in United States v. Lopez, 521 F.2d 437 (2d Cir. 1975), the defendant, in addition to sheltering a “substantial number of illegal aliens,” also assisted these aliens “in obtaining employment for them and transporting them to and from their jobs,[] arrange[d] sham marriage ceremonies to United States citizens for the purpose of enabling the aliens to claim citizenship, and [] assist[ed] in preparation of their applications for citizenship.” Id. at 441. This evidence, “taken together,” was sufficient to sustain Lopez’s conviction for illegal harboring. Id.
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U.S.C. § 1324 to reach the mere provision of housing, as Section 13(a)(4) would.11 The absence
of any such case, even though Section 1324’s harboring prohibition has been on the books in
substantially the same form for decades, fully refutes Alabama’s unfounded suggestion that the
divergence between its prohibition and the federal one results from some recent prosecutorial
reinterpretation of the federal statute. See Alabama U.S. Opp. at 34. Accordingly, Alabama’s
assertion that Section 13(a)(4) “parallels federal law” (Alabama U.S. Opp. at 35) finds no
support in either the text of 8 U.S.C. § 1324 or pertinent case law.
Because Section 13(a)(4) purports to reach every housing rental agreement involving
unlawfully present aliens, Alabama impermissibly seeks to decide who may reside within its
borders, a power that is committed exclusively to the federal government. See U.S. Br. at 38.
Alabama responds that “a finding that someone has violated [Section 13(a)(4)] does not result in
a decision as to which aliens may live in the United States,” but “simply results in a conviction
of the landlord for housing.” Alabama U.S. Opp. at 35. That is not even superficially responsive
to the preemption point. Residence requires a place to reside. The purpose of Alabama’s anti-
housing rental provision, like all of H.B. 56, is to “decrease illegal immigration.” Id. at 6. Just
11 Alabama’s other harboring citations are equally inapt. See, e.g., United States v. Cantu, 557 F.2d 1173, 1175-75 (5th Cir. 1977) (evidence of harboring including refusing entry to INS agents and seeking to arrange transportation for illegal alien to avoid detection by INS agents); United States v. Rubio-Gonzales, 674 F.2d 1067, 1070 (5th Cir. 1982) (informing illegal aliens that “immigration is here”); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007) (defendant confessed to making false identification cards for illegal aliens, and concealed aliens’ identity from authorities by failing to file social security paperwork); United States v. Herrera, 584 F.2d 1137, 1145 (2d Cir. 1978) (defendants “installed and utilized closed circuit television cameras and an alarm system to warn illegal aliens that INS officials were on the premises”; upon INS’ arrival, defendants also “yelled ‘Immigration’ several times in Spanish to warn the illegal aliens of the INS presence”); United States v. Martinez-Medina, 2009 WL 117611, at *1 (5th Cir. 2009) (defendant “provided the aliens with jobs, transportation, housing, and utilities, [and] “also paid his workers in cash, did not pay taxes on the workers' wages, and did not complete the required I-9 forms, thereby enabling them to avoid scrutiny by federal authorities,” and “advised his workers not to run when Border Patrol vehicles drove past in order to avoid arousing suspicion, advice intended to enable them to avoid detection”).
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as an employer-sanctions law seeks to reduce unauthorized aliens’ supply of work by penalizing employers who offer it, cf. Whiting, 131 S. Ct. at 1984-1985, Alabama seeks to reduce the supply of housing by penalizing landlords. As shown in the opening brief, that goal is not a permissible one. Accordingly, Section 13(a)(4) is preempted. C. The Mandatory Verification Scheme Created by Sections 12 and 18 is Preempted.
In its opening brief, the United States argued that Sections 12 and 18 of H.B. 56 are preempted because they (i) conflict with the INA , (ii) will impermissibly burden DHS resources, and (iii) will result in the harassment of lawfully present aliens. Alabama has failed to genuinely dispute any of these arguments. Accordingly, this Court should preliminarily enjoin operation of Sections 12 and 18, just as the Ninth Circuit – in a decision whose relevance to Sections 12 and 18 Alabama largely ignores – held that federal law preempted nearly identical Arizona provisions. See Arizona, 641 F.3d at 349-50.
1. Alabama acknowledges that Sections 12 and 18 preclude cooperation with the federal government and thus necessarily conflict with federal law. Alabama’s opposition brief explicitly acknowledges that Sections 12 and 18 are designed
to forbid Alabama police who might engage in alien verification from considering any factor other than the direction received through H.B. 56. Alabama U.S. Opp. at 48-49. The plain point of this regime is to displace federal authority with Alabama’s dictates, and to preclude responsiveness to federal enforcement priorities. See Arizona, 641 F.3d at 349-50 (holding that Arizona’s mandatory verification scheme precluded cooperation and thus conflicted with the INA). This avowed refusal to cooperate with the Secretary of DHS – who Congress entrusted to administer the INA – necessarily conflicts with federal law and renders Sections 12 and 18 preempted.
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Instead of attempting to portray Sections 12 and 18 as cooperative, Alabama asks this Court to construe the INA as indifferent to whether states cooperate with the federal government when they enforce the federal immigration laws. But Alabama’s revisionism is unavailing.
a. Alabama attempts to evade the INA’s demand for cooperation. In opposing the instant motion, Alabama suggests that the INA’s reference to “cooperat[ion] with” the Secretary is not meant actually to require cooperation. Alabama U.S. Opp. at 57. Alabama construes the word “cooperate” as having no substantive importance, and more generally, construes 8 U.S.C. § 1357(g)(10)(B) as authorizing unlimited state efforts to participate in the “identification, apprehension, detention, [and] removal of aliens not lawfully present in the United States” – regardless of whether those efforts cooperate with or undermine federal enforcement efforts. Id. at 56-57 (arguing that Section 1357(g)(10)(B) is meant to “free the states of any obligation”). This approach violates basic maxims of statutory interpretation, the structure of the INA, and core notions of federal primacy in immigration enforcement. First, Alabama’s construction is untenable because it reads the word “cooperate” out of Section 1357(g)(10)(B). As the Eleventh Circuit has explained, “an interpretation of statutory language that causes other language within the statute to be meaningless contravenes the elementary canon of . . . construction that a statute should be interpreted so as not to render one part inoperative.” Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (internal citations omitted). Thus, Alabama’s failure to give the word “cooperate” any effect is unpersuasive. More generally, Alabama’s approach would impermissibly render whole provisions of the INA superfluous. As discussed in the United States’ opening brief, Congress specifically authorized states to participate in immigration enforcement in very limited circumstances. See U.S. Br. at 49-50. Outside of these specific authorizations, Congress created a structure through
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which state and local officers could engage in generalized immigration enforcement activities where (i) the law enforcement agency agrees, in writing, to certain terms with the federal government, (ii) the state officers who would engage in immigration enforcement are appropriately trained, and (iii) the state conduct is subject to the supervision of the Secretary. 8 U.S.C. § 1357(g)(1)-(9). Such a written agreement is not an absolute prerequisite for certain cooperative state immigration enforcement efforts, as Section 1357(g)(10) makes clear. Alabama, however, goes farther, and would construe Section 1357(g)(10)(B) as meaning that states are free of “any obligation,” Alabama U.S. Opp. at 57, thereby rendering the remainder of Section 1357(g) totally meaningless. Basic rules of statutory construction forbid such an approach. See Arizona, 641 F.3d at 350.
The implausibility of Alabama’s approach is also confirmed by paragraph 1357(g)(10)’s reference to “cooperat[ion]” in the “removal” of aliens not lawfully present. State and local officers have no independent authority to remove an alien from the United States.12 But Alabama’s construction of Section 1357(g)(10)(B) – which suggests that Congress intended to allow the states to independently direct all the activities listed in Section 1357(g)(10)(B) – would, read to its logical conclusion, mean that states could independently remove aliens from the United States. This is clearly not the case, as Section 1357(g)(10) makes clear by allowing for state efforts in connection with removal only in “cooperat[ion] with” the Secretary. And, per the explicit terms of the INA, the same type of cooperation required for state involvement in removal proceedings is likewise required throughout the four-step enforcement process described in Section 1357(g)(10) – including in state efforts to “identif[y] . . . aliens not lawfully present.”
12 See Chy Lung, 92 U.S. at 281 (invalidating deportation order issued by California, because “[t]he passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States”); Arizona, 641 F.3d at 349.
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Alabama protests that Section 1357(g)(10) does not, as a linguistic matter, directly order states to cooperate. See Alabama U.S. Opp. at 57 (“Section 1357(g)(10) does not say that ‘if a state wishes to make an immigration inquiry, then it must cooperate.’”). But Alabama does not dispute that the “cooperation” reference in Section 1357(g)(10) reflects (i) the federal government’s primacy in immigration enforcement under the U.S. Constitution and (ii) the various ways in which the INA reaffirms that federal primacy. See U.S. Br. at 51-54. As the Supreme Court has explained, the federal government exercises exclusive control over “the character of [immigration] regulations” and “the manner of their execution.” Chy Lung, 92 U.S. at 280. Whatever inherent authority a state may have to assist DHS with immigration enforcement, that authority must be exercised cooperatively so as to avoid interference with “the manner of . . . execution” adopted by the federal government. Section 1357(g)(10) confirms this federal primacy, and the concomitant imperative that states seeking to enforce immigration laws cooperate with federal enforcement efforts.
Even Alabama does not genuinely or consistently dispute the necessity of cooperation. In discussing Section 1357(g)(10)(A), Alabama suggests that “(g)(10)(B) come[s] into play” after “ICE confirms that the individual in question is an illegal alien” and before a state officer decides to “‘det[ain]’ the alien and transfer him to ICE custody to assist in ICE‘s ‘removal’ of the alien from the United States.” Alabama U.S. Opp. at 59. Alabama thus eventually acknowledges that cooperation is required under Section 1357(g)(10)(B), but simply disputes whether cooperation is required at the alien verification stage, or only thereafter. The INA unequivocally resolves this
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dispute by requiring cooperation for state efforts to “identif[y] . . . aliens not lawfully present” as forcefully as it requires cooperation in detention or removal efforts.13
b. Neither Section 1357(g)(10)(A) nor Section 1373 provides an alternative basis for defending this type of mandatory scheme.
Alternatively, Alabama suggests that no cooperation is necessary for Sections 12 and 18 because such systematic, mandatory verification schemes – i.e., schemes that foreclose and reject responsiveness to DHS’s direction and priorities – are otherwise authorized by 8 U.S.C. § 1357(g)(10)(A) and 8 U.S.C. § 1373. Alabama U.S. Opp. at 50-54, 58-59. But neither of these provisions overrides the cooperation requirement of Section 1357(g)(10)(B).
First, Alabama suggests that Section 1357(g)(10)(A) – which specifies that no 287(g) Agreement is necessary for a state 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” – allows a state to pursue a systematic mandatory verification scheme “without ever running into the word ‘cooperate.’” Alabama U.S. Opp. at 58. This is wrong, and ignores basic rules of statutory construction. Section 1357(g)(10)(A) must be read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for state and local officers to “otherwise . . . cooperate” with the Secretary, without a written agreement.
13 As an alternative to ignoring the word “cooperate” outright, Alabama tries to redirect the focus of the “cooperation” required by the INA and suggests that the INA merely requires Alabama and the federal government “to associate with [each] other[] for mutual benefit.” Alabama U.S. Opp. at 57 (internal citation omitted). This approach is triply flawed. First, it ignores that the INA requires cooperation “with the [Secretary]” rather than cooperation in the abstract. Second, it ignores the federal government’s general supremacy in federal/state relations. City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999). Third, this approach ignores the federal government’s particular primacy in immigration enforcement – a primacy that, as discussed above, makes clear why state enforcement efforts must assist the federal government’s efforts rather than pursuing state-specific ends.
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Id. (emphasis). The phrase “otherwise cooperate” in Section 1357(g)(10)(B) makes clear that the immediately prior subsection, Section 1357(g)(10)(A), also requires cooperation.14
Similarly, Section 1373 – which recognizes some state authority to request immigration status information from the federal government – does not eliminate the cooperation requirement established by Section 1357 and therefore does not support Alabama’s claim that “[t]he provisions of 8 U.S.C. § 1373 belie the United States’ argument that Sections 12 and 18 are preempted.” Alabama U.S. Opp. 50-54. Under Section 1357(g)(10)(A) and (B), communication regarding individuals’ immigration status must be “cooperat[ive]”; Section 1373 does not lift that requirement, expressly or implicitly.
Congress enacted Section 1373 at the same time as Section 1357(g)(10). See Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104- 208, §§ 133, 642 (1996); Arizona, 641 F.3d at 350-51. The two provisions therefore must be read consistently with each other. See Wood v. A. Wilbert’s Sons Shingle & Lumber Co., 226 U.S. 384, 389 (1912) (separate parts of the same enactment should be read as to not conflict and should be construed such that “each [part has] its proper application, distinct from and harmonious with that of the other”); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (“[C]onstruction of [a statute] must, to the extent possible, ensure that the statutory scheme is coherent and consistent.”). This need for consistency prohibits Alabama’s effort to construe Section 1373 as overriding the cooperation requirement of Section 1357(g)(10)(B). “It would be illogical to assume that Congress . . . would turn around and nullify its own choice” elsewhere in the same legislation by lifting the
14 As discussed above, Alabama suggests that Section 1357(g)(10)(A) controls the verification process, and that Section 1357(g)(10)(B) only picks up after a verification inquiry is complete. Alabama U.S. Opp. at 59. But, as noted above, this approach willfully ignores the demand in Section 1357(g)(10)(B) for cooperation in state efforts to “identif[y]” unlawfully present aliens.
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cooperation requirement it had just imposed. Department of Revenue v. ACF Indus., Inc., 510 U.S.. 332, 343 (1994).
Instead, the general provisions of Section 1373 apply outside of the specific situations in which Section 1357(g)(10)(B) mandates cooperation. Thus, a state or local government may use the procedures described by subsection 1373(c) to promote bona fide state interests – for example, investigating identity fraud, ensuring eligibility for certain state benefits, or corroborating information obtained in investigating a state crime. But when a state or local government utilizes Section 1373 to systematically assist in the “identification . . . of aliens not lawfully present in the United States,” the “more specific statute [i.e., Section 1357(g)(10)(B)] takes precedence over the more general statute [i.e., Section 1373].” Thomas, 371 F.3d at 786; see also Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 375 (1990) (“It is an elementary tenet of statutory construction that . . . a specific statute will not be controlled or nullified by a general one.” (internal citations omitted)). To hold otherwise would be to allow Alabama to exploit Section 1373 to establish its own immigration priorities, thereby negating not only the specific cooperation requirement of Section 1357(g)(10)(B), but also skewing Congress’s carefully delineated scheme of state participation in federal enforcement, and the federal government’s general primacy in immigration enforcement as derived from the INA.
c. Alabama’s attack on discretionary verification does not speak to the conflicts between H.B. 56 and the INA.
Rather than even attempting to defend H.B. 56 as cooperative, Alabama tries to suggest that other schemes might also be non-cooperative, and specifically argues that “the United States fails to explain how an ad hoc policy in which state officers exercise their own discretion . . . is more ‘cooperative’ than a uniform policy.” Alabama U.S. Opp. at 57-58.
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To begin with, this argument is plainly irrelevant. Whether or not a different policy might be cooperative certainly does not help defend Alabama’s avowedly non-cooperative policy. But, more substantively, Alabama fails to recognize the critical flaw in its mandatory system: That by inflexibly mandating deference to Alabama’s verification conditions, Sections 12 and 18 forbid state and local officers from responding to direction from DHS or from considering whether federal priorities might counsel against verification in a particular instance. See U.S. Br. at 55-56. Although a similar lack of receptiveness to federal priorities might pervade even a system that gives officers discretion, such a discretionary system generally allows individual state and local officers to consider federal priorities when deciding whether to “identif[y] . . . aliens unlawfully present,” and thereby preserves the prospect of cooperation.
Alabama’s mandatory verification scheme does not preserve any such prospect of cooperation. In fact, the very purpose of the law, as Alabama acknowledges, is to have the state (not the federal government) dictate the conditions of alien verification. See Alabama U.S. Opp. at 48-49. Alabama is intentionally shutting out direction from the federal government, because it concluded that a discretionary scheme would give officers too much latitude to consider factors outside of Alabama’s control. The mandate of H.B. 56 eschews individual officers’ discretion and therefore ends the prospect of cooperation, in direct conflict with the INA.15 Beyond the inherent conflict with the INA that arises from foreclosing cooperation, Alabama’s particular
15 Similarly unavailing is Alabama’s suggestion that the federal government has no interest in prioritizing or directing alien verification efforts. Alabama U.S. Opp. at 59-60. First, this argument is undermined by the INA, which commands cooperation for the alien “identification” stage. If, as Alabama suggests, Congress wanted to encourage unlimited verification, it would have had no need to require the same type of cooperation for alien verification as it did for alien removal. See supra at 20-21. Moreover, this argument is undermined by H.B. 56 itself, which (as discussed in the United States’ opening brief) allows Alabama law enforcement officers to refrain from a mandated verification inquiry where alien verification would interfere with other Alabama law enforcement priorities, and thereby acknowledges that an inflexible verification mandate can interfere with such priorities. See U.S. Br. at 56-57.
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refusal to cooperate has consequences: Moving from a discretionary to a mandatory scheme will necessarily increase the burdens on DHS and thereby further undermine DHS operations. See U.S. Br. at 58-61
d. Alabama cannot escape from the cooperation requirement by portraying H.B. 56 as an effort to control police procedures.
As part of its repeated efforts to establish a presumption against preemption and to escape the cooperation requirement, Alabama offers the questionable claim that Sections 12 and 18 of H.B. 56 are designed as mere “stop-and-arrest protocols.” Alabama U.S. Opp Br. at 50, 57, 6063. This argument lacks all credibility as the plain and explicit purpose of Sections 12 and 18 is to affect immigration enforcement. See Alabama U.S. Opp. at 48-49.
Sections 12 and 18 do not, as Alabama claims, “only come into play after lawenforcement officers encounter . . . persons because of their violations of other laws.” Alabama U.S. Opp. at 50; see also id. at 61 (“Sections 12 and 18 . . . . come into play after an individual has been stopped, detained, or arrested for breaking a law unrelated to his or her immigration status.”). Section 12 intersects with the other immigration crimes established throughout H.B. 56. By enacting its own set of immigration crimes – e.g., for failure to maintain or carry registration documents (H.B. 56 § 10) or for attempting to engage in a transaction with a public entity (H.B. 56 § 30) – Alabama ensured that Sections 12 and 18 would apply to stops for violations “[]related to [an alien’s] immigration status.” Cf. Alabama U.S. Opp. at 61.
Most critical, though, is the focus of Sections 12 and 18, which dictates the state’s involvement in the indisputably federal scheme of immigration enforcement. See Alabama U.S. Opp. at 2-3 (“[H.B. 56] seek[s] . . . to help ensure that the federal immigration law that Congress put on the books is respected.”). Sections 12 and 18 do not simply relate to internal Alabama procedures – the very purpose of these provisions is to engage the federal government’s
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enforcement resources. Alabama cannot now portray Sections 12 and 18 as regulating purely local activities.
2. By abandoning cooperation, Sections 12 and 18 will impermissibly burden DHS enforcement resources. Aside from conflicting with the INA’s command of cooperation, Sections 12 & 18 will
also impose an impermissible burden on a federal agency’s resources that impedes the agency’s functions (U.S. Br. at 60-61). Alabama has not disputed the jurisprudence holding that state laws that impose such burdens can be preempted. Instead, Alabama (i) attempts to portray Sections 12 and 18 as resulting in minimal burdens and (ii) suggests that Section 1373 authorizes Alabama such burdens on DHS enforcement resources. Both of these arguments are meritless.
First, Alabama suggests that the United States’ burden argument relies on speculation. See Alabama U.S. Opp. at 54-55. Notably, Alabama has not disputed that H.B. 56 will likely result in a dramatic increase in verification requests; the state simply suggests that the United States cannot definitively predict the precise size of the increase.
The United States has articulated a sufficient basis for preemption here. Alabama’s own police chiefs – the officers charged with implementing this mandate – have predicted that a large percentage of lawful stops will result in alien verification requests. See Hale Decl. ¶ 9, U.S. Br., Ex. 4. Alabama has not disputed that it arrested and booked over 178,000 people in 2010, and that it stopped and detained many, many more. See Griffen Decl. ¶ 22, U.S. Br., Ex. 7. Additionally, Alabama has not disputed that, as discussed in the United States’ opening brief, Alabama police have no training in assessing reasonable suspicion of unlawful presence. See U.S. Br. at 64 n.18. Accordingly, speculation is not required to predict that, in the absence of a good grounding in what constitutes reasonable suspicion of unlawful presence, a large
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percentage of stops will result in verification inquiries.16 DHS is in the best position to know
what impedes its enforcement efforts. Alabama does not and cannot genuinely dispute DHS’s
judgment regarding the effect on its operations if even a small percentage of stops produce
verification inquiries.17 See Griffen Decl. ¶ 22, U.S. Br., Ex. 7. The United States has therefore
presented sufficient evidence that Sections 12 and 18 will impermissibly burden DHS
resources.18 Moreover, as discussed in the United States’ opening brief, the burden inquiry
should envision the increased workload that would result if Alabama’s mandatory scheme were
enacted around the country – thereby multiplying the already significant burdens resulting from
Sections 12 and 18. See U.S. Br. at 60-61.
16 Alabama incorrectly argues that the United States has adduced a merely “hypothetical scenario” by “suggesting [that] an individual [will have] his immigration status checked multiple times.” Alabama U.S. Opp. at 55. Multiple checks are not hypothetical; they are explicitly required by the statute. If an officer develops a “reasonable suspicion” of unlawful presence, an alien arrested for failure to carry a driver’s license must be verified once under Section 12 and then again under Section 18. If the alien is confined, further verification will be mandated by Section 19, and may be mandated again by Section 19 based on the charge. These redundant inquiries are therefore explicitly required by the statute’s text.
17 Alabama cites ICE’s website to try to suggest that LESC can absorb this burden without difficulty. See Alabama U.S. Opp. at 54. But the cited website language only suggests that LESC resources have proven sufficient for the inquiries that have resulted in the absence of mandates like this one. The clear – and stated – motivation for Sections 12 and 18 is to dramatically increase the number of verification requests. See Alabama U.S. Opp. at 48-49. Further, for preemption purposes, this Court should assess the cumulative impact that would result if Alabama’s scheme were replicated in other states – at which point the burden would far outstrip LESC’s capacity. See U.S. Br. at 60-61 (citing sources). And finally, Sections 12 and 18 will impose an impermissible burden not only because of the sheer number of requests, but also because many such requests will necessarily result from low-priority offenses and violations of civil ordinances. See U.S. Br. at 59. Thus, LESC’s current, aggregate performance has no bearing on the burden that will be generated from H.B. 56’s new scheme.
18 The same conclusion is commanded by Buckman Co., where the Supreme Court held that a state law was preempted in part because it would burden the agency’s ability to evaluate drug applications in a timely fashion – a conclusion the Supreme Court reached even in the absence of any specific data on the burden that would result from the law. See 531 U.S. at 349-51.
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Other than this feint effort to disclaim the burdensomeness of Sections 12 and 18, Alabama argues that 8 U.S.C. § 1373 entitles it to impose these types of burdens on the United States. Alabama U.S. Opp. at 54-55. But, as discussed above, Section 1373 does not relieve Alabama of the obligation to cooperate with the Secretary. See supra at 23-24. The statute thus does not provide an invitation to burden federal resources and interfere with federal operations. Instead, the burdens that result from H.B. 56’s mandate highlight why cooperation with the Secretary is so crucial, and why this Court should enjoin Sections 12 and 18.
3. Sections 12 and 18 will result in the harassment of lawfully present aliens. In its opening brief, the United States argued that that Sections 12 and 18 are also
preempted because they will necessarily result in the harassment of lawfully present aliens and thereby also interfere with foreign policy (see U.S. Br. at 61-65); Alabama has not denied this likely effect of the statute. As discussed above, Alabama has not disputed that its officers receive no immigration training, and that Alabama officers are therefore ill-equipped to distinguish between lawfully and unlawfully present aliens (and even between aliens and U.S. citizens). See supra at 27-28. Nor could Alabama offer any contrary suggestion: This lack of training has been confirmed by several of Alabama’s own police chiefs, as well by the Alabama Sheriffs’ Association. See U.S. Br. at 64 n.18 (citing declarations). Alabama has thus provided no protection against the type of systematic, repeated interceptions of lawfully present aliens that resulted in preemption in Hines.
To discount the significance of this harassment, Alabama claims that Sections 12 and 18 “come into play after an individual has been stopped, detained, or arrested for breaking a law unrelated to his or her immigration status.” Alabama U.S. Opp. at 61. This is incorrect, as discussed above. See supra at 26-27. Section 12 mandates verification for aliens suspected of violating Alabama’s various immigration crimes – crimes that clearly are not “unrelated” to
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immigration status. Section 12 also mandates verification for individuals who have not “broken” any law, but have merely been stopped, as well as for individuals who may have “broken” an ordinance regulating bicycle or cell-phone use. Alabama thus fails to justify the harassment that results from Sections 12 and 18.19
Similarly, Alabama argues that the prospects of harassment are diminished by Section 12’s recognition of certain forms of identification as evidence of lawful presence. See Alabama U.S. Opp. at 61-62. But the ability to establish a presumption of lawful presence provides little relief from the sting of Sections 12 and 18. The presumption of lawful presence will be totally unhelpful to an alien or a U.S. citizen who happens not to be carrying any identification. The presumption will be similarly unavailable to aliens visiting from any jurisdiction that does not, to Alabama’s satisfaction, sufficiently establish lawful presence as a condition of granting a driver’s license. See H.B. 56 § 12(d)(4).
Finally, Alabama suggests that Sections 12 and 18 are justified by general police authority “to inquire into [a] person’s immigration status without any prior reasonable suspicion that the person is unlawfully present.” Alabama U.S. Opp. at 62-63. But the authority to potentially and occasionally investigate immigration status is not at issue here. Instead, by mandating sweeping alien verification based on stops for trivial offenses, Sections 12 and 18
19 Alabama also argues that Section 18 – which authorizes Alabama law enforcement to detain an alien for 48 hours pending verification – will not prolong the detention of aliens who are arrested for driving without a license. Alabama U.S. Opp. at 62. But Alabama cannot seriously suggest that Alabama police would, prior to the enactment of Section 18, generally detain aliens for two days for driving without a license. Besides, even if Alabama police did adhere to such a practice – for which Alabama offers no proof whatsoever – that would still not justify the detention contemplated by Section 18, which proceeds because of ambiguity over immigration status rather than as a sanction for driving without a license. Notably, the statute does not authorize 48 hour detention for U.S. citizens caught driving without a license (see Alabama Code § 32-6-9(c)), and thus clearly allows for extended detention only for aliens – many of whom will prove to be lawfully present.
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squarely risk the type of widespread police interceptions that formed the basis of the preemption ruling in Hines. The risk of harassment of lawfully present aliens from an occasional immigration inquiry has no bearing on the risk of harassment – and the related interference with foreign policy – that results from the type of systematic, mandatory verification scheme that is advanced by Sections 12 and 18. D. Section 11’s Criminalization of Aliens Seeking or Performing Unauthorized
Work Conflicts With IRCA and Improperly Regulates in an Area Comprehensively Attended to by Congress. Alabama’s attempt to defend Section 11 by glossing over contrary congressional purposes and objectives in the area of alien employment is untenable. First, Alabama mistakenly describes Congress as having been silent on the question of whether unauthorized aliens should be criminally sanctioned and fined for seeking work, and contends that in this alleged vacuum, the state has merely created a “more effective” way of preventing employers from unlawful hiring by “cut[ting] off the supply of those employees as well.” Alabama U.S. Opp. at 25. Alabama is wrong in its portrayal of federal law, and it has ventured into an area of regulation that is foreclosed to the states. Indeed, as Alabama again ignores, the unanimous panel in Arizona upheld a preliminary injunction of a state law that was virtually identical to Section 11, finding that state-imposed criminal sanctions and fines on unauthorized aliens seeking or performing work runs contrary to the clear purposes and objectives of Congress. Arizona, 641 F.3d at 357-61, 383. Federal law Aestablishes a complex scheme to discourage the employment of unauthorized immigrants B primarily by penalizing employers who knowingly or negligently hire them.@ Id. at 358; Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (noting that Congress created a “comprehensive scheme prohibiting the employment of illegal aliens”). In enacting
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this comprehensive scheme of civil and criminal penalties on employers, see U.S. Br. at 23 (citing provisions), Congress did not simply fail or forget to enact criminal penalties against unauthorized aliens. Instead, Congress provided targeted sanctions against such aliens, including deportability and sanctions for document fraud, and, just as critically, Congress simultaneously sought to protect unauthorized aliens from financial exploitation by requiring employers to repay their financial bonds, see id. at 24-25 (citing provisions). Congress constructed this scheme deliberately and drew its boundaries consciously. This is not, as Alabama contends, a case of “preemption by omission.” To the contrary, there is striking evidence that in comprehensively regulating this area, Congress purposefully withheld criminal sanctions and fines against unauthorized aliens, believing removal and other remedies to be more appropriate in this context than criminal liability and financial hardship. See Arizona, 641 F.3d at 359-60 (“Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work.”); U.S. Br. at 24-25 (detailing how the structure of IRCA and legislative history indicate that Congress crafted a system it thought was most effective and humane).20
Alabama may not agree with Congress’s approach, and indeed, may believe that it has created a “more effective” method for controlling illegal immigration. See Alabama U.S. Opp. at 25. But that policy perspective does not permit Alabama to contravene Congress’s considered judgment in this area. Am. Ins. Assn. v. Garamendi, 539 U.S. 396, 427 (2003) (state statute
20 In dismissing the context in which IRCA was passed, and a statement that the INS did not expect aliens to starve while exhausting administrative remedies, Alabama states that it would only criminalize and fine aliens who do not yet have formal work authorization, see Alabama U.S. Opp. at 25. Alabama appears to assume, without reason, that at any point in the adjustment of status process (including the early stages of submitting an application) an alien would have already been granted work authorization by DHS. In any event, the weight of other authority – including the specific structure of IRCA and the committee statements indicating that employerbased sanctions were seen by Congress as the most credible, effective, and humane means of regulating this area – makes clear that Congress did not want criminal sanctions and fines to be imposed on unauthorized workers. See U.S. Br. at 24; Arizona, 641 F.3d at 357-61.
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preempted that “seeks to use an iron fist where [Congress] has consistently chosen kid gloves”). Nor can Alabama ignore the doctrine of implied preemption, which by its nature rests not only on the federal statute’s plain text, but also the statutory objectives, structure, and legislative history. See, e.g., De Canas, 424 U.S. at 357-60 & n.8; Howard v. Uniroyal, Inc., 719 F.2d 1552, 1556-57 (11th Cir. 1983).
Second, Alabama claims that Congress’s decision to expressly preempt states from imposing civil or criminal sanctions on employers who hire unauthorized aliens, see 8 U.S.C. § 1324a(h)(2), indicates that Congress did not intend to preempt states from imposing criminal sanctions on alien employees. Alabama U.S. Opp. at 23. It is well established, however, that the “existence of an express preemption clause does not preclude a holding that there is implied preemption beyond the scope of the express provision.” United States v. Fleet 498 F.3d 1225, 1229 (11th Cir. 2007) (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). Here, because Section 1324a constitutes a “comprehensive scheme prohibiting the employment of illegal aliens in the United States,” Hoffman Plastic Compounds, 535 U.S. at 147, replacing a previous regime that the Supreme Court in De Canas had found was not preemptive, it made sense for Congress to include an express preemption provision regarding employers. That Congress wanted to permit states to continue regulating one, and only one, aspect of that area, i.e., licensing, was further reason to include such a provision. Likewise, because Congress has not enacted a statute imposing criminal sanctions on unauthorized workers, and Congress was not legislating against a background of state sanctions on alien employees at the time of IRCA’s passage, there has been no similar occasion for Congress to enact an express preemption provision here. Thus, the absence of such a provision is inconsequential. Alabama’s attempt to equate Section 11 with the state employer-based license revocation law that was upheld in
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Whiting is also unavailing. The law in Whiting was expressly saved from preemption, which was a factor in the Court’s implied-preemption analysis as well. See 131 S. Ct. at 1981. Here, by contrast, the “scope of ‘licensing’ law[s] in the savings clause of the express preemption provision in IRCA has no bearing on whether IRCA impliedly preempts [Alabama] from enacting sanctions against undocumented workers.” Arizona, 641 F.3d at 358 & n.18. Accordingly, there is no basis for permitting Section 11 to go into effect. E. Sections 16 & 17 of H.B. 56 — Alabama’s New Penalty Scheme Against Employers
Who Hire Unlawfully Present Aliens — are Expressly Preempted by IRCA. IRCA expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). In response to the United States’ argument that this provision expressly preempts Sections 16 and 17, Alabama does not argue that either section falls within the IRCA’s licensing savings clause, but instead disputes whether IRCA’s preemption provision applies in the first instance. 1. Section 16 violates IRCA’s prohibition on employer sanctions. Alabama argues that neither Section 16(b)’s penalty provision nor Section 16(a)’s tax deduction denial provision comes within the ambit of IRCA’s employer sanctions prohibition, because IRCA “can only be read as preempting sanctions that States impose on employers for the actual acts of employing or recruiting unauthorized aliens, or referring them for employment.” Alabama U.S. Opp. at 68. Alabama maintains that Section 16(b) “only comes into play if that employer files his state income taxes and then fraudulently claims those employees’ wages as deductible business expenses.” Id. at 69. To begin with, Section 16 does not merely reform the state tax code. Alabama did not enact Section 16 as some generally applicable, stand-alone provision of tax law; Alabama
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enacted Section 16 as part of its overall effort to regulate immigration. Alabama U.S. Opp. at 1. Section 16, like Sections 11(a) and 17, targets a particular subset of employers, i.e., employers of unlawfully present aliens. An employer is entitled to deduct employees’ wages; only an employer that employs unauthorized aliens is punished financially through higher taxes and associated penalties. In any case, Alabama’s restrictive interpretation of IRCA’s prohibitory ambit would substantially undermine its vitality. A state could easily evade IRCA’s sanctions preemption provision by levying a sanction on entities who “employ, recruit, or refer” illegal aliens, but by making the trigger for such sanctions be some activity besides “employment, recruitment, or referral.” For example, under Alabama’s interpretation, IRCA would not prohibit the state from imposing a utilities surcharge of 500% on employers of unlawful aliens. The employer would in theory be free to employ unlawful aliens, and would only face a sanction if it wished to use electricity. Alabama’s tenfold tax penalty is not materially different. Cf. Edmondson, 594 F.3d at 766 (holding that a conditional non-licensing sanction, exposing employers to civil liability for hiring unauthorized aliens, was still impermissible under IRCA because “an employer is subject to sanction only if the employer retains an unauthorized alien.”). For these reasons, Alabama’s argument that Section 16(b) is not a “sanction” that IRCA prohibits lacks merit.
In its opening brief, the United States argued that Section 16(a) was not severable from Section 16(b), because the two provisions are “dependent, conditional, or connected.” U.S. Br. at 28 (citing King v. Campbell, 988 So. 2d 969, 982 (Ala. 2007)). Alabama correctly does not dispute that Sections 16(a) and (b) are “dependent, conditional, or connected,” but responds instead that “the Act’s severability clause should end the analysis.” Alabama U.S. Opp. at 70. That is obviously wrong. If the existence of a severability clause were dispositive of
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severability, it would not matter whether a statute’s provisions were “dependent, conditional, or connected.” Alabama cites no case in which the mere existence of a severability provision obviated the need for further analysis, and the cases it does cite contradict its argument. See Alabama U.S. Opp. at 69 (citing King v. Campbell). For these reasons, IRCA preempts Section 16, both in whole and in part.
2. Section 17 violates IRCA’s prohibition on employer sanctions. Section 17 authorizes a private right of action for an individual who is either not hired or not retained by an employer while the employer “retain[s] or hir[es] an employee whom the . . . employer knows, or reasonably should have known, is an unauthorized alien.” Ala. H.B. 56 § 17(a). Alabama asserts that because “Section 17 expressly disclaims any intent to punish or deter conduct,” and “expressly seeks only to compensate victims of a newly defined discriminatory practice for their losses,” Alabama U.S. Opp. at 71, Section 17 falls outside IRCA’s sanctions preemption provision. At bottom, Alabama’s argument is that compensatory damages cannot constitute a “sanction” within the meaning of IRCA. Alabama’s sole citation, Jie v. Liang Tai Knitwear Co., 107 Cal. Rptr. 2d 682, 690 n.7 (Ct. App. 2001), stated in dicta that “sanctions are not the same as damages; a statutory reference to sanctions does not equal a reference to damages.” For this proposition, Jie relied on Faria v. San Jacinto Unified School District, 59 Cal. Rptr. 2d 72 (Cal. App. 4th 1996), which states that “[e]ven when the statute expressly provides for criminal sanctions, damages may be available.” Id. at 77-78 (emphasis added). Alabama thus seeks to bootstrap a case unremarkably holding that criminal sanctions do not preclude civil damages into the far broader, and less tenable proposition that civil damages can never constitute civil sanctions.
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As Alabama concedes, the only court to have squarely addressed this issue has rejected the state’s cramped interpretation of “sanction.” See Chamber of Commerce v. Edmondson, 594 F.3d 742, 765 (10th Cir. 2010). As the Edmondson Court recognized, Congress used the word “sanction” rather than “penalty” in § 1324a(h)(2), although it used the word “penalty” elsewhere in § 1324a. Id.; also compare 8 U.S.C. § 1324a(h)(2) with 8 U.S.C. § 1324a(e)(4)(A) & § 1324a(f). Alabama makes no attempt to address the penalty/sanction distinction the Edmondson Court noted, maintaining instead that the Edmondson Court “misinterpreted § 1324a(h)(2) and misapplied the presumption against preemption.” Alabama U.S. Opp. at 71. According to Alabama, because Congress did not clearly evince its desire to preempt compensatory damages and attorney’s fees, IRCA’s preemption provision is ambiguous, and such ambiguity must be read in Alabama’s favor, “against displacement of state law.” Id. But it is hard to see how Congress could have been any clearer in § 1324a(h)(2).
Alabama next argues that the compensatory damages and attorney’s fees Section 17 authorizes do not constitute a sanction “because merely establishing a private right of action does not guarantee success at litigation” or even “guarantee that any action will be taken against the employer at all.” Alabama U.S. Opp. at 72 (emphasis in original). Alabama’s suggestion that a sanction is not a “sanction” for IRCA preemption purposes absent a guarantee that the sanction will be applied to each and every violation finds no support in law or logic. A “sanction” is a “restrictive measure used to punish a specific action or to prevent some future activity.” Edmondson, 594 F.3d at 765 (citing Webster’s Third New Int’l Dictionary 2009) (emphasis added). As any driver can attest, police need not pull over every speeder to deter others from breaking the speed limit. So too, here. Alabama correctly does not dispute that the prospect of litigation — with the attendant possibility of compensatory damages and attorney’s fees — will
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deter employers from hiring or retaining unlawfully present aliens. This deterrent is not somehow less because the sanction will be imposed through private litigation rather than by Alabama directly. To an employer, how it is being sanctioned for employing unlawfully present aliens is economically unimportant; whether it is being sanctioned is what matters. Accordingly, Section 17 is preempted by IRCA. F. Alabama’s Restrictions on Transactions with State and Local Government and on
Private Contracts Are Preempted by Federal Law. 1. Section 30 effectively criminalizes unlawful presence, and seeks to remove
unlawfully present aliens from the State. With limited exceptions, Section 30 makes it a felony for any unlawfully present alien to attempt to enter into or attempt to enter into a “business transaction” with state or local governments. H.B. 56 § 30. The United States argued that by closing the doors of state and local governments to unlawfully present aliens, Alabama has impermissibly imposed “distinct, unusual, and extraordinary burdens” on aliens in violation of Hines v. Davidowitz, 312 U.S. 52, 65-66 (1941), particularly given that many of the transactions Section 30 prohibits “are both universal and unavoidable.” U.S. Br. at 39-40. Alabama’s response that “there is no congressional policy that aliens unlawfully present must always be treated exactly the same” as others is beside the point. Alabama U.S. Opp. at 40. The salient question is whether Alabama may forbid unlawfully present aliens, under pain of criminal liability, from engaging in such a broad array of conduct that Section 30 effectively criminalizes unlawful presence or would otherwise effect removal. Hines makes clear that the answer to this question is no. Here Alabama backpedals, accusing the United States of “misinterpreting” and “exaggerating” the scope of conduct that Section 30 would reach. Alabama argues that there is “no logical reason why covered ‘business transactions’ would include the payment of property
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taxes or the payment of court fees.” Alabama U.S. Opp. at 37. But the very term “business transaction” plainly encompasses such interactions. Black’s Law Dictionary defines “business transaction” as “[a]n action that affects the actor’s financial or economic interests, including the making of a contract.” Black’s Law Dictionary 9th Ed. (2009). Alabama cannot dispute that payment of property taxes or the payment of court fees does “affect[a person’s] financial or economic interests.” A second “logical reason” is that Section 30 is a broadly worded provision in a comprehensive statute the acknowledged purpose, according to the bill’s sponsor, is to “attack[] every aspect of an illegal immigrant’s life . . . so they will deport themselves.” April 5 Debate at 9:3-8 (emphasis added).
Alabama nonetheless assures that Section 30 would only apply to “transactions involv[ing] the exchange of money for goods or services.” Alabama U.S. Opp. at 37. Even accepting Alabama’s self-serving construction of the statute to encompass only quid pro quo financial transactions, Alabama still has not removed the specter of criminal liability even from certain fundamentally important transactions, such as the ability to access courts. Without paying a filing fee, one generally cannot gain access to courts. Alabama argues that “the payment of court fees” does not involve the “exchange of money for goods or services,” but it never explains why. Id. In defense of Section 30, Alabama argues that this provision would not prohibit unlawfully present aliens from obtaining water or sewer services in Limestone County because the Limestone County Water and Sewer Authority is a “public corporation” and therefore is a distinct legal entity from the state or its subdivisions, Even if Alabama were correct in this regard,21 its example misses the point: Alabama cannot defeat a facial challenge by
21 It is not clear that Alabama is correct in its interpretation of Section 30’s scope. The Alabama Supreme Court has held that “[b]ecause public corporations perform municipal functions, they have long been held to be agencies of the municipality they serve, regardless of their
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pointing to a circumstance under which the statute would not apply. More fundamentally, what about those unlawfully present aliens who reside elsewhere, in one of Alabama’s other 66 counties? Alabama notably does not suggest that aliens who live in major population areas within the state, such as the greater Birmingham area, would fall outside the ambit of Section 30 because “public corporations” provide their essential utilities. Alabama’s silence is unsurprising, because municipal governments provide utility services to consumers in parts of Jefferson County. See, e.g., Bessemer Water Service v. Lake Cyrus Development Co., 959 So.2d 643, 645 (Ala. 2006) (Bessemer Water Service is “a department of the city of Bessemer”); Ex parte Bank of America, N.A., 39 So.3d 113 (Ala. 2009); Hilgers v. Jefferson County, — So.3d —, 2010 WL 4034875, (Ala. Civ. App. 2010) (Jefferson County directly provides customers sewage service). Alabama’s suggestion that “all applications of Section 30 are valid” is therefore demonstrably false. Alabama U.S. Opp. at 38.
2. The procedural posture of this challenge does not diminish the United States’ likelihood of success on the merits.
Alabama devotes most of its Section 30 discussion to rebutting at length an argument that the United States has not advanced; namely, that unlawful aliens must be allowed to apply for drivers’ licenses. Alabama presumably does so in an effort to show that not every conceivable application of Section 30 would be preempted. From this Alabama argues that the United States’ facial challenge to Section 30 is doomed under United States v. Salerno, 481 U.S. 739 (1987). Alabama U.S. Opp. at 38, 42 (“To defeat a facial challenge . . . , the State Defendants need only offer one application of [a challenged provision] that is clearly constitutional.”). Because it can
organizational structure.” Water Works and Sewer Bd. of City of Talladega v. Consolidated Publ’g, Inc., 892 So.2d 859, 863 (Ala. 2004); Jackson v. Hubbard, 53 So.2d 723, 728 (Ala. 1951) ((“[T]he supplying of water to a city and its inhabitants is a municipal function and that the Water Works Board of the City of Auburn is in that sense an agency of the city.”).
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deny unlawfully present aliens drivers’ licenses without running afoul of the Supremacy Clause, Alabama argues that Section 30 is impervious to any facial challenge under Salerno. This elides a critical point: It is one thing for Alabama to deny an unlawfully present alien or any other ineligible person a driver’s license; it is quite another for Alabama to threaten to incarcerate a subset of ineligible people (i.e., unlawfully present aliens) simply for making the request. Moreover, Alabama’s theory, if accepted, would perversely encourage a state to adopt a broader law so as to sweep in some unstated permissible application to accompany all of the unconstitutional applications, and thereby inoculate the law against a facial challenge.
In any event, Alabama’s search for a single, saving, permissible application of an otherwise unconstitutional statute begins from a flawed premise. “[C]ongressional intent,” not speculation, “is the ‘ultimate touchstone’ in a preemption case,” and “this intent governs [a court’s] determination of whether federal law preempts state law.” This That & Other Gift & Tobacco, Inc. v. Cobb County, Ga., 285 F.3d 1319, 1322 (11th Cir. 2002) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). For preemption purposes, the only question this Court needs to ask is whether this provision enters a field that “Congress intend[ed] federal law to occupy” fully or whether it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby, 530 U.S. at 373. Indeed, the Supreme Court has expressly disavowed in Supremacy Clause challenges the sort of approach that Alabama contemplates. “If [such] conjectures suffice[d] to prevent federal and state law from conflicting for Supremacy Clause purposes, it is unclear when, outside of express pre-emption, the Supremacy Clause would have any force. . . . The Supremacy Clause, on its face, makes federal law ‘the supreme Law of the Land’ even absent an express statement by Congress.” Pliva v. Mensing, 131 S. Ct. 2567, 2579 (2011) (citing U. S. Const., art. VI, cl. 2.”)); accord Crosby, at
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379-800 (“The conflicts are not rendered irrelevant by the State’s argument that there is no real conflict between the statutes . . . . [T]he fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ.”).
Moreover, as the Ninth Circuit has observed, “it is not entirely clear from relevant Supreme Court cases the extent to which the Salerno doctrine applies to a facial preemption challenge.” See United States v. Arizona, 641 F.3d 339, 345 n.3. In the almost twenty five years since the Supreme Court decided Salerno, the Court has never applied Salerno’s “no set of circumstances” standard in a preemption case.22 Id. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), and American Insurance Association v. Garamendi, 539 U.S. 396 (2003), were both facial preemption challenges decided after Salerno, yet the Supreme Court did not apply Salerno’s “no set of circumstances” formulation in either case. See also Whiting, 131 S. Ct. 1968 (not referencing Salerno in a facial pre-enforcement challenge to a state law immigration provision). Accordingly, Alabama’s reliance on Salerno to save Section 30 is misplaced.
3. Section 27 would impermissibly effect removal. Like Section 30, Section 27 is a broadly worded provision intended to alter the conditions of residence for unlawfully present aliens in Alabama and does so in a manner not contemplated by federal immigration law. Cf. De Canas, 424 U.S. at 358 (states may “neither add to nor take
22 In Anderson v. Edwards, 514 U.S. 143 (1995), the Supreme Court did cite Salerno. Although aspects of Edwards do deal with preemption, Edwards does not cite Salerno in the preemption section of the opinion. “Rather, the [Supreme] Court references Salerno in the section of the Edwards opinion holding that the California rule at issue there did not violate any of the three federal regulations on which the Court of Appeals relied.” Arizona, 641 F.3d at 345 n.3 (citing Edwards, 514 U.S. at 155). “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.” Id.
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from the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or several states”) (citations omitted). In particular, Section 27 is intended to effect removal: It precludes state courts from enforcing any contract to which an unlawfully present alien is a party when the counterparty knows or should know the alien is unlawfully present, and when performance is premised on the alien being in Alabama for more than 24 hours. It expressly excepts contracts that are incidental to an alien’s leaving Alabama. See Ala. H.B. 56 § 27(b) (exempting, for example, “a contract for transportation of the alien that is intended to facilitate the alien’s return to his or her country of origin”). The United States previously demonstrated that Section 27 “would sharply limit both aliens’ willingness and ability to enter into contracts, as well as the willingness and ability of potential counterparties.” U.S. Br. at 41. At no point does Alabama deny that by abrogating unlawfully present aliens’ ability to enter into and enforce contracts, it has “imposed different and starkly more burdensome conditions on aliens in violation of De Canas and Toll.” Id. Rather, Alabama relies predominantly on its mistaken understanding of Salerno. See Alabama U.S. Opp. at 41-42. It dismisses as “pure speculation” the United States’ concern about Section 27’s impact on lawfully present aliens and United States citizens, even though pre-enforcement challenges necessarily involve some predictive element. Alabama reasons that because federal law prohibits certain contracts involving illegal aliens, see id. at 42, Alabama has free reign to invalidate or otherwise not to enforce every contract to which an unlawfully present alien is a party, with the exception of those contracts Section 27 expressly exempts. As explained supra at 41-42, the Supremacy Clause does not countenance such a result. Section 27 is preempted.
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G. Section 28 of H.B. 56 — Alabama’s Education Registration Scheme — is Preempted by Federal Law. In its opening brief, the United States argued that Alabama’s education registration and
verification scheme was preempted by federal law because it constituted an impermissible registration scheme under Hines, and because it would impermissibly burden lawfully present aliens. Although Alabama accuses the United States of transposing equal protection jurisprudence with preemption jurisprudence, Alabama U.S. Opp. at 44, these two bodies of law are not rigidly distinct in the immigration context. Plyler cited Hines extensively. Recognizing that Congress has expressly endorsed Plyler, see 8 U.S.C. § 1643(a)(2), at least one court has determined that federal law regarding “regulation of government benefits to aliens” “demarcate[s] a field of comprehensive federal regulation within which states may not legislate, and define federal objectives with which states may not interfere.” League of United Latin American Citizens v. Wilson, 997 F.Supp. 1244, 1253-54 (C.D. Cal. 1997).
Because Section 28’s notification requirements would apply to essentially all aliens attending public schools, the United States argued that Alabama will force the parents or guardians of unlawfully present alien children to “[e]ither fail to comply with the notification procedures, which will necessarily result in their child being ‘presumed’ to be unlawfully present, with whatever consequences that might have (or the alien might fear would occur), or perjure themselves by making a false statement about their child’s status, with whatever consequences that might have.” U.S. Br. at 45. Alabama responds that Section 28’s “reporting requirement applies only at ‘enrollment,’ which occurs only once — when the child enters school — not on an ongoing or yearly basis.” Alabama U.S. Opp. at 44. But imposing “distinct,
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unusual, and extraordinary burdens” on aliens only once does not somehow make it lawful. Hines v. Davidowitz, 312 U.S. 52, 65-66 (1941).23
More important, Section 28’s demand for information about parental immigration status demonstrates that this provision does not genuinely advance even an arguable educational purpose. See U.S. Br. at 42-46. Although Alabama denies that Section 28 “is merely a subterfuge for discouraging unlawful aliens from enrolling their children in school,” Alabama U.S. Opp. at 45, Alabama does not even attempt to assert an educational interest in information concerning parental immigration status. Id. at 45-47. Indeed, Alabama’s own filings affirmatively belie its assurances on this point. Joseph B. Morton, Alabama’s State Superintendent of Education, has provided a flow chart entitled “Enrollment of Students in Alabama Public School,” Alabama HICA Opp, Ex. 3, p.4, presumably to explain how Section 28 would operate. At no point does Superintendent Morton’s flow chart explain what a school official should do if “upon review of the student’s birth certificate, it is determined that the student . . . is the child of an alien not lawfully present in the United States.” H.B. 56 § 28(a)(3). Superintendent Morton simply omits this portion of the statute from his analysis. Evidently, not even Alabama’s highest education officer can conceive of a legitimate state interest that is served by having schools probe the immigration status of a student’s parents.
Alabama is similarly mistaken in its registration analysis. Alabama argues that “Section 28 bears no resemblance” to the registration scheme the Supreme Court invalidated in Hines,
23 Alabama furthermore does not deny that, under 8 U.S.C. § 1373, the federal government is entitled to access the immigration-status information schools collect. Given Alabama’s representation that immigration status information, “once entered into the statewide student management system, remains saved,” Alabama HICA Opp. at 121 (emphasis in original), the prospect of information sharing means that for some students and parents, Section 28’s deterrent effect may not be limited to the provision of immigration status-related information upon enrollment.
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relying heavily on the assertion that the Pennsylvania scheme authorized criminal penalties for violations, while Alabama’s does not. Alabama U.S. Opp. at 47. This is misleading. Alabama ignores Section 28’s requirement that a student without a United States birth certificate, or whose birth certificate indicates that he “is the child of an alien not lawfully present,” must produce a parental declaration under penalty of perjury to avoid being “presumed” to be unlawfully present. Ala. H.B. 56 § 28(a)(3), (4)(b). Under Alabama law, lying under oath to a public servant (i.e., a school official) constitutes second degree perjury, see Ala. Code. § 13A-10-102, a Class A misdemeanor punishable by up to a year in jail — a penalty that far exceeds the 60 day maximum sentence Pennsylvania authorized for violations of its registration scheme. See Hines, 312 U.S. 59-60.
Not only does Section 28 create the prospect of substantially more severe criminal liability than the provision invalidated by Hines, the fundamental fact remains that Section 28 purports to classify its students on the basis of perceived immigration status, which the Supreme Court has forbidden. See Plyler v. Doe, 457 U.S. 202, 225 (1982) (citing Hines, 312 U.S. 52 (1941)). Alabama cannot deny that Section 28 requires school officials to divide school children into two categories: those “presumed” to be unlawfully present, and those not “presumed” to be unlawfully present. H.B. 56 § 28(a)(5). Alabama notes that because “[p]arents are already routinely required to submit documents to schools upon enrollment, including immunization certificates, medical or religious exemptions, social security numbers or temporary numbers, and proof of age, [r]equesting another document — either a birth certificate or declaration — does not establish an entirely new ‘registration scheme.’” Alabama U.S. Opp. 47-48. But none of these documents forms the basis for statutory classifications on the basis of “presumed” immigration status, nor do parents attest to the veracity of these documents under penalty of
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perjury.24 Alabama’s attempts to distinguish Section 28 from the registration scheme in Hines
are therefore unavailing.25 For all of these reasons, Section 28 is preempted.
* * *
The United States incorporates by reference the arguments made in its opening brief
regarding irreparable harm and the balance of the hardships and public interest. U.S. Br. at 65-
73. Alabama affords little attention to these equitable considerations, and does not dispute that a
violation of the Supremacy Clause alone would constitute irreparable harm to the United States.
Instead, Alabama simply reiterates its claims on the merits, contending that H.B. 56 represents a
cooperative and concurrent effort to enforce federal law. See Alabama U.S. Opp. at 74-75.
Alabama also responds that “the United States cannot show that it will suffer irreparable harm,”
id. at 73, plainly ignoring that the legal standard is a showing of a “likelihood” of irreparable
harm. There is no authority suggesting that a plaintiff must wait until it has been actually
24 Furthermore, regardless of the holding in Plyler, Section 28’s effect on lawfully present children is significant in a preemption analysis. Section 28 requires school officials to “determine whether the student enrolling . . . is the child of an alien not lawfully present,” H.B. 56 § 28(a)(1). This requirement – particularly when read in the context of a state immigration scheme that is designed to effectuate the removal of unlawfully present aliens from the State – violates De Canas’s clear prohibition against “state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country,” where such regulations “impose[] additional burdens not contemplated by Congress.” De Canas, 424 U.S. at 358 n. 6. The Supreme Court has previously rejected state efforts that “point[] in one direction for minor citizens . . . whose parents cannot be naturalized, and in another for all other children-for minor citizens whose parents are either citizens or eligible aliens.” Oyama v. California, 332 U.S. 633, 641 (1948). Section 28 represents such a measure. Section 28 – through intent and effect – treats lawfully present alien children whose parents are unlawfully present differently from those whose parents are lawfully present, because the registration-under-perjury automatically sweeps the parent – through her child – into the state’s law enforcement purview.
25 Also unavailing is Alabama’s effort to claim that “the State Defendants and the United States are in agreement” on the application of the Equal Protection Clause to Section 28. See Alabama Supp. Br. on Equal Protection at 3. As Alabama acknowledges, the United States did not challenge Section 28 on Equal Protection grounds. Id. at 3 n.1. The absence of such a challenge from the United States, however, should not be construed as a comment one way or another on Alabama’s position on the Equal Protection claims raised by private plaintiffs.
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harmed before seeking an injunction. In fact, the opposite is true, as various courts have recognized that “the very purpose of a preliminary injunction . . . is to preserve the status quo and the rights of the parties until a final judgment issues in the cause” – to prevent the infliction of harm in the first place. See, e.g., U.S. Philips Corps. v. KBC Bank, 590 F.3d 1091, 1094 (9th Cir. 2010). And here, where the United States has advanced clear legal justifications coupled with significant authority indicating that its equities will – and have already begun to be – eroded as it pertains to its ability to administer the immigration laws and effectively manage U.S. foreign policy, the United States has satisfied its burden. See United States v. Arizona, 641 F.3d at 366 (finding that the equitable factors favor a preliminary injunction in similar circumstances).

CONCLUSION For the foregoing reasons, the United States’ preliminary injunction motion should be granted in its entirety.

DATED: August 22, 2011

TONY WEST Assistant Attorney General JOYCE WHITE VANCE United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch
/s/ C. Lee Reeves, II C. LEE REEVES, II VARU CHILAKAMARRI JOSHUA WILKENFELD Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 514-4805 Fax: (202) 616-8470 Email: lee.reeves@usdoj.gov

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 Case 2:11-cv-02746-SLB Document 93 Filed 09/28/11 Page 1 of 115

FILED
2011 Sep-28 PM 12:35 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

vs.

)

)

STATE OF ALABAMA; GOVERNOR )

ROBERT J. BENTLEY,

)

)

Defendants.

)

Case Number: 2:11-CV-2746-SLB

MEMORANDUM OPINION I. SUMMARY
On June 2, 2011, the Alabama Legislature approved House Bill 56 (H.B. 56), the “Beason-Hammon Alabama Taxpayer and Citizen Protection Act,” Ala. Laws Act 2011-535, hereinafter H.B. 56. On June 9, 2011, Governor Robert Bentley signed the Act into law, with the majority of its provisions to become effective on September 1, 2011. On August 29, 2011, this court temporarily enjoined the Act until September 29, 2011.
On August 1, 2011, the United States filed a Complaint against the State of Alabama and Governor Robert J. Bentley seeking declaratory and injunctive relief contending that various provisions of H.B. 56 are preempted by federal law, and, therefore, violate the Supremacy Clause of the United States Constitution. (Doc. 1.)1 On the same date, the
1Reference to a document number, [“Doc. ___”], refers to the number assigned to each document as it is filed in the court’s record. References to page numbers in this

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United States filed a Motion for Preliminary Injunction, (doc. 2), seeking to preliminarily enjoin the following sections of H.B. 56: 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30. The Act declares it “a compelling public interest to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.” H.B. 56 § 2. The term “alien” is defined in the Act as “[a]ny person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101, et seq., and amendments thereto.” H.B. 56 § 3.
H.B. 56 includes a severability provision, stating that “If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.” H.B. 56 § 33. Therefore, the court will address the challenges to H.B. 56 on a section-bysection basis. The following sections are challenged by the United States:
H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States. H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work. H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
Memorandum Opinion refer to the page numbers assigned to the document by the court’s electronic filing system, not the page number at the bottom of each page.
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H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.
H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
As discussed more fully below, “[a] preliminary injunction is an extraordinary and
drastic remedy.” Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of
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Jacksonville, Florida, 896 F.2d 1283, 1285 (11th Cir. 1990) (citations omitted). Moreover,
as the Eleventh Circuit has noted
When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government. Such a step can occasionally be justified by the Constitution (itself the highest product of democratic processes). Still, preliminary injunctions of legislative enactments
– because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits – must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.
Id. (emphasis added).
Upon consideration of the Motion for Preliminary Injunction, the memoranda
submitted in support of and in opposition to the Motion, the arguments of counsel, the Amici
briefs accepted by the court, and the relevant law, the court is of the opinion, as more fully
discussed below, that the United States has not met the requirements for a preliminary
injunction on its claim that Sections 10, 12(a), 18, 27, 28, and 30 of H.B. 56 are preempted
by federal law. Therefore, the motion for preliminary injunction as to these sections will be
denied. However, the court is of the opinion, as more fully discussed below, that there is a
substantial likelihood that the United States will succeed on the merits of its claim that
Sections 11(a), 13, 16, and 17 of H.B. 56 are preempted by federal law. The court further
finds that the United States will suffer irreparable harm if these sections of H.B. 56 are not
enjoined, the balance of equities favors the entry of an injunction, and its entry would not be
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adverse to the public interest. Therefore, the Motion for Preliminary Injunction will be granted as to these sections.
II. PRELIMINARY INJUNCTION STANDARD “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”2 Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal quotations and citations omitted). “In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)(internal quotations and citations omitted). In this Circuit – In order to prevail on an application for a preliminary injunction, the plaintiff must clearly establish all of the following requirements: (1) . . . a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
2“It is always true, by definition, that the status quo is less restrictive than a new regulatory law. It is always less restrictive to do nothing than to do something.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 684 (2004)(Breyer, J., dissenting)(emphasis in original).
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Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011)(quoting Am. Civil Liberties Union
of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009)). “In
exercising their sound discretion, courts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24
(quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
III. FEDERAL IMMIGRATION LAW
The Third Circuit in Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010), clearly
set forth the current federal law regarding immigration and immigrants:
1. The Immigration and Nationality Act
The primary body of federal immigration law is contained in the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101–537, enacted in 1952, and amended many times thereafter. The INA sets forth the criteria by which “aliens,” defined as “any person not a citizen or a national of the United States,” 8 U.S.C. § 1101(a)(3), may enter, visit, and reside in this country.
Under the INA, there are three primary categories of aliens who may lawfully enter and/or spend time within the United States: (1) “nonimmigrants,” who are persons admitted for a limited purpose and for a limited amount of time, such as visitors for pleasure, students, diplomats, and temporary workers, see 8 U.S.C. § 1101(a)(15); (2) “immigrants,” who are persons admitted as (or after admission, become) lawful permanent residents of the United States based on, inter alia, family, employment, or diversity characteristics, see 8 U.S.C. § 1151; and (3) “refugees” and “asylees,” who are persons admitted to and permitted to stay for some time in the United States because of humanitarian concerns, see 8 U.S.C. §§ 1157–58. Aliens wishing to be legally admitted into the United States must satisfy specific eligibility criteria in one of these categories, and also not be barred by other provisions of federal law that determine inadmissibility. Congress has determined that non-citizens who, inter alia, have certain health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States, are inadmissible, see 8 U.S.C. § 1182, and if
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detained when attempting to enter or reenter the country, may be subject to expedited removal, see 8 U.S.C. § 1225.
Despite the carefully designed system for lawful entry described above, persons lacking lawful immigration status are obviously still present in the United States. As the Supreme Court explained almost thirty years ago: “[s]heer incapability or lax enforcement of the laws barring entry into this country . . . has resulted in the creation of a substantial ‘shadow population’ . . . within our borders.” Plyler [v. Doe], 457 U.S. [202,] 218 [(1982)]. Such persons may lack lawful status because they entered the United States illegally, either by failing to register with immigration authorities or by failing to disclose information that would have rendered them inadmissible when they entered. See 8 U.S.C. § 1227. In addition, aliens who entered legally may thereafter lose lawful status, either by failing to adhere to a condition of admission, or by committing prohibited acts (such as certain criminal offenses) after being admitted. See id.
Persons here unlawfully are subject to removal from the country. Removal proceedings are initiated at the discretion of the Department of Homeland Security (“DHS”). [footnote] See Juarez v. Holder, 599 F.3d 560, 566 (7th Cir. 2010)(“[T]he decision when to initiate removal proceedings is committed to the discretion of immigration authorities.” (citing Reno v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 489 (1999))). Although certain aliens are subject to more expedited removal proceedings, for all others, section 240 of the INA sets forth the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3).
[Footnote:] Prior to 2003, the Immigration and Naturalization Service (“INS”), which operated under the Department of Justice, administrated both immigration services and immigration enforcement. On March 1, 2003, Congress abolished the INS. Pursuant to the Homeland Security Act of 2002, Pub.L. No. 107–296, 116 Stat. 2135, that agency’s functions were transferred to three separate agencies within the newly created Department of Homeland Security: U.S. Citizenship and Immigration Services (“USCIS”), which performs immigration and naturalization services, U.S. Immigration and Customs Enforcement (“ICE”), which enforces federal immigration and customs laws, and U.S. Customs and Border Protection (“CBP”), which monitors and
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secures the country’s borders. Older documents may continue to refer to the pre–2003 administrative structure, and citations to them should be understood in that context.
Under section 240, an alien facing removal is entitled to a hearing before an immigration judge and is provided numerous procedural protections during that hearing, including notice, the opportunity to present and examine evidence, and the opportunity to be represented by counsel (at the alien's expense). See 8 U.S.C. § 1229a. At the conclusion of a removal hearing, the presiding immigration judge must decide, based on the evidence produced during the hearing, whether the alien is removable, see 8 U.S.C. § 1229a(c)(1)(A), and if so, whether s/he should be ordered removed, or should be afforded relief from removal. Such relief can include postponement of removal, cancellation of removal, or even adjustment of status to that of lawful permanent resident. See 8 U.S.C. §§ 1229a(c)(4), 1229b.
In sum, while any alien who is in the United States unlawfully faces the prospect of removal proceedings being initiated against her/him, whether s/he will actually be ordered removed is never a certainty until all legal proceedings have concluded. Moreover, even after an order of removal issues, the possibility remains that no country will accept the alien. Under such circumstances, the Constitution limits the government’s authority to detain someone in anticipation of removal if there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
The INA, as amended, also prohibits the “harboring” of aliens lacking lawful immigration status. It provides that any person who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection . . . such alien in any place, including any building or any means or transportation” shall be subject to criminal penalties. 8 U.S.C. § 1324(a)(1)(A)(iii).
For decades, the INA contained no specific prohibition against the employment of aliens lacking legal status. Rather, regulation of the employment of aliens not lawfully present was at most a “peripheral concern.” DeCanas v. Bica, 424 U.S. 351, 360 (1976). This changed in 1986, when Congress amended the INA through enactment of the Immigration Reform and Control Act (“IRCA”), Pub.L. No. 99–603, 100 Stat. 3359 (codified at 8
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U.S.C. §§ 1324a–1324b). IRCA “forcefully made combating the employment of illegal aliens central to the policy of immigration law.” Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147(2002) (internal quotation marks and alterations omitted).
2. The Immigration Reform and Control Act
IRCA regulates the employment of “unauthorized aliens,” a term of art defined by the statute as those aliens neither “lawfully admitted for permanent residence” nor “authorized to be . . . employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3). IRCA makes it unlawful to knowingly hire or continue to employ an unauthorized alien, or to hire anyone for employment without complying with the work authorization verification system created by the statute. 8 U.S.C. § 1324a(a)(1)-(2). This verification system, often referred to as the “I–9 process,” requires that an employer examine certain documents that establish both identity and employment authorization for new employees. See 8 U.S.C. § 1324a(b). The employer must then fill out an I–9 form attesting that s/he reviewed these documents, that they reasonably appear to be genuine, and that to the best of the employer’s knowledge, the employee is authorized to work in the United States. See id. Although employers are required to verify the work authorization of all employees, Congress did not extend this requirement to independent contractors. See 8 U.S.C. § 1324a(a)(1)(making unlawful the knowing “employment” of an unauthorized alien, and the hiring of an employee for “employment” without verifying the employee’s work authorization); 8 C.F.R. § 274a.1(f)(specifically excluding “independent contractors” from the definition of “employee”); 8 C.F.R. § 274a.1(g) (specifically excluding a “person or entity using . . . contract labor” from the definition of “employer”).
The I–9 “verification system is critical to the IRCA regime.” Hoffman Plastic Compounds, 535 U.S. at 147–48. Not only is failure to use the system illegal, but use of the system provides an affirmative defense to a charge of knowingly employing an unauthorized alien. See 8 U.S.C. § 1324a(a)(3). Thus, employers who use the I–9 process in good faith to verify the work authorization of employees are presumed not to have knowingly employed someone unauthorized to work in this country. In enacting IRCA, Congress required the President to monitor the security and efficacy of this verification
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system. See 8 U.S.C. § 1324a(d). Congress also imposed limits on the President’s ability to change it. Id.
In addition to relying on the I–9 verification system, IRCA uses public monitoring, prosecution, and sanctions to deter employment of unauthorized aliens. IRCA provides for the creation of procedures through which members of the public may file complaints about potential violations; it authorizes immigration officers to investigate these complaints; and it creates a comprehensive hearing and appeals process through which complaints are evaluated and adjudicated by administrative law judges. See 8 U.S.C. § 1324a(e)(1)-(3).
Under IRCA, an employer who knowingly hires an unauthorized alien shall be ordered to cease and desist the violation, and to pay between $250 and $2000 per unauthorized alien for a first offense, between $2000 and $5000 per unauthorized alien for a second offense, and between $3000 and $10,000 per unauthorized alien for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization of its employees can be ordered to pay between $100 and $1000 for each person whose authorization it failed to authenticate. 8 U.S.C. § 1324a(e)(5). Employers who engage in a “pattern or practice” of hiring unauthorized aliens shall be fined up to $3000 per unauthorized alien, imprisoned for not more than six months, or both. 8 U.S.C. § 1324a(f)(1).
IRCA expressly pre-empts states and localities from imposing additional “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).
Because of its concern that prohibiting the employment of unauthorized aliens might result in employment discrimination against authorized workers who appear to be foreign, Congress included significant anti-discrimination protections in IRCA. See 8 U.S.C. § 1324b. [Footnote] The statute provides that, with certain limited exceptions, it is an “unfair immigration-related employment practice” to discriminate in hiring on the basis of national origin or citizenship status. 8 U.S.C. § 1324b(a)(1). Congress put teeth into this provision by creating the office of a “Special Counsel” to investigate and prosecute such offenses, and it required that the President fill that position “with the advice and consent of the Senate.” 8 U.S.C. § 1324b(c). Congress also authorized immigration judges to punish those who violate IRCA’s
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anti-discrimination mandate by imposing civil fines equivalent in amount to those imposed for knowingly hiring unauthorized aliens. Compare 8 U.S.C. § 1324a(e)(4)(A)(i)-(iii) with 8 U.S.C. § 1324b(g)(2)(B)(iv)(I)-(III).
[Footnote:] 8 U.S.C. § 1324b provides in relevant part that:
[with certain limited exceptions, it] is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment – (A) because of such individual’s national origin, or (B) in the case of a protected individual . . . because of such individual’s citizenship status.
8 U.S.C. § 1324b(a). Any person adversely-affected by an unfair immigration-related employment practice “may file a charge respecting such practice or violation.” 8 U.S.C. § 1324b(b)(1).
3. The Illegal Immigration Reform and Immigrant Responsibility Act
In 1996, Congress again amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in various sections of 8 U.S.C.). In IIRIRA, Congress directed the Attorney General, and later the Secretary of Homeland Security, to conduct three “pilot programs of employment eligibility confirmation” in an attempt to improve upon the I-9 process. IIRIRA § 401(a), 110 Stat. 3009-655. Congress mandated that these programs be conducted on a trial basis, for a limited time period, and in a limited number of states. See IIRIRA § 401(b)-(c), 110 Stat. 3009-655-66. Two of these trial systems were discontinued in 2003. However, the third – originally known as the “Basic Pilot Program” but since renamed “E-Verify” – was reauthorized and expanded to all fifty states in 2003. See Basic Pilot Program Extension and Expansion Act of 2003, Pub.L. No. 108-156, §§ 2, 3, 117 Stat. 1944. It has been reauthorized several times since, and its current authorization will expire, absent congressional action, on September 30, 2012.
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See Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580.
E-Verify allows an employer to actually authenticate applicable documents rather than merely visually scan them for genuineness. When using E-Verify, an employer enters information from an employee’s documents into an internet-based computer program, and that information is then transmitted to the Social Security Administration and/or DHS for authentication. See IIRIRA, as amended, § 403(a)(3). These agencies confirm or tentatively nonconfirm whether the employee’s documents are authentic, and whether the employee is authorized to work in the United States. See IIRIRA, as amended, § 403(a)(4). If a tentative nonconfirmation is issued, the employer must notify the employee, who may contest the result. See id. If an employee does not contest the tentative result within the statutorily prescribed period, the tentative nonconfirmation becomes a final nonconfirmation. See id. If the employee does contest it, the appropriate agencies undertake additional review and ultimately issue a final decision. See id. An employer may not take any adverse action against an employee until it receives a final nonconfirmation. See id. However, once a final nonconfirmation is received, an employer is expected to terminate the employee, or face sanctions.
With only a few exceptions, federal law makes the decision of whether to use E-Verify rather than the default I-9 process entirely voluntary. See IIRIRA, as amended, § 402(a). Federal government employers and certain employers previously found guilty of violating IRCA are currently required to use E-Verify; all other employers remain free to use the system of their choice. See IIRIRA, as amended, § 402(e). Significantly, in enacting IIRIRA, Congress specifically prohibited the Secretary of Homeland Security from requiring “any person or other entity to participate in [E-Verify].” See IIRIRA, as amended, § 402(a). Congress also directed the Secretary to publicize the “voluntary nature” of the program and to ensure that government representatives are available to “inform persons and other entities that seek information about [E-Verify] of [its] voluntary nature.” IIRIRA, as amended, § 402(d).
Those employers who elect to use E-Verify and actually do use the system to confirm an employee’s authorization to work are entitled to a rebuttable presumption that they did not hire that employee knowing that s/he
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lacks authorization to work in this country. See IIRIRA, as amended, § 402(b)(1). Employers who elect to use E-Verify, but in practice continue to use the I-9 process, are not entitled to the E-Verify rebuttable presumption, but can still claim the I-9 affirmative defense. See IIRIRA, as amended, § 402(b)(2). Lozano v. City of Hazleton, 620 F.3d 170, 196-201 and nn.21, 24 (3d Cir. 2010)(emphasis in original; footnotes omitted except where otherwise indicated, parallel Supreme Court citations omitted), cert. granted and judgment vacated, 131 S. Ct. 2958 (2011) (Mem).
IV. DISCUSSION A. PREEMPTION AND THE SUPREMACY CLAUSE
The United States argues that Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28 and 30 of H.B. 56 are preempted under the Supremacy Clause of the United States Constitution and federal immigration law. (Doc. 1 ¶¶ 69-70, 72.) The Supremacy Clause of the U.S. Constitution provides that the Constitution, federal laws, and treaties are “the Supreme Law of the Land.” U.S. CONST., art. VI, cl. 2. In certain instances, the Constitution – in its own right – can preempt state action in a field exclusively reserved for the federal government. DeCanas v. Bica, 424 U.S. 351, 354-56 (1976) (“[The constitutional] [p]ower to regulate immigration3 is unquestionably exclusively a federal power.”), superceded by statute as stated in Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1975 (2011).4 The Supremacy
3According to the Supreme Court, a regulation of immigration “is essentially a determination of who should or should not be admitted to the country, and the conditions under which a legal entrant may remain. DeCanas, 424 U.S. at 355.
4In DeCanas, the Supreme Court held that a California law prohibiting an employer from knowingly employing an alien unlawfully present in the United States, if such
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Clause also “vests Congress with the power to preempt state law.” Stephen v. Am. Brands,
Inc., 825 F.2d 312, 313 (11th Cir. 1987); see also Gibbons v. Ogden, 22 U.S. 1, 211 (1824).5
Therefore, this court’s analysis of preemption claims
must 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
employment would have an adverse effect on lawful resident workers, was not unconstitutional as a regulation of immigration or as being preempted under the Supremacy Clause by the Immigration and Nationality Act . DeCanas, 424 U.S. at 356, 363. In Whiting, the Court noted:
IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” [8 U.S.C.] § 1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in DeCanas are expressly preempted.
Whiting, 131 S. Ct. at 1975.
5In Gibbons, Chief Justice Marshal wrote:
The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.
Gibbons, 22 U.S. at 211.
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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, 555 U.S. 555, 129 S. Ct. 1187, 1194-95 (2009)(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996))(internal quotations and citations omitted). Preemption may be express or implied, Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (O’Connor, J., plurality opinion), and “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Express preemption occurs when the text of a federal law is explicit about its preemptive effects. Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008)(“Express preemption occurs when Congress manifests its intent to displace a state law using the text of a federal statute.”). Implied preemption falls into two categories: field preemption and conflict preemption. Gade, 505 U.S. at 98; Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)(“Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances.”); see Browning, 522 F.3d at 1167 (“Field and conflict preemption in turn have been considered under the umbrella term ‘implied preemption.’”). Field preemption exists when: Congress’ intent to supercede state law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it, because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same
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subject, or because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Pac. Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 203-04 (1983)(internal quotations omitted). “Conflict preemption” occurs when “compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,142-43 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). These “categories of preemption are not ‘rigidly distinct,’” however, as “field pre-emption may be understood as a species of conflict preemption.” Crosby, 530 U.S. at 373 n.6 (quoting English v. Gen. Elec. Co., 496 U.S. 72, 7980 n.5 (1990)). In their Motion for Preliminary Injunction, the United States argues that some sections of H.B. 56 are due to be enjoined on the basis of express preemption by federal statutes and that other sections are due to be enjoined because the United States contends they are impliedly preempted by federal law. B. SECTION 10 Section 10(a) of H.B. 56 states:
(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 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a), and the person is an alien unlawfully present in the United States.
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H.B. 56 § 10(a). An “alien unlawfully present in the United States” who violates Section 10 is “guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail.” Id. § 10(f). For the purposes of enforcing Section 10, “an alien’s immigration status shall be determined by verification of the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c).” H.B. 56 § 10(b). Section 10 “does not apply to a person who maintains authorization from the federal government to be present in the United States.” Id. § 10(d).
To understand H.B. 56 § 10, it is necessary to consult certain provisions of the INA, namely 8 U.S.C. §§ 1302, 1304(e), and 1306(a). As with any question of statutory interpretation, the court “begin[s] by examining the text of the statute to determine whether its meaning is clear.” United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir. 2011) (quoting Lewis v. Barnhart, 285 F.3d 1329, 1331 (11th Cir. 2002)). Section 1302 provides that “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 . . . , and (3) remains in the United States for thirty days or longer” must “apply for registration and to be fingerprinted before the expiration of such thirty days.” 8 U.S.C. § 1302(a). Section 1302 also provides that “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 . . . , and (3) remains in the United States for thirty days or longer” must “apply for the registration of such alien before the expiration of such thirty days.” Id. (b). An alien described in Section 1302(b) who “attains his fourteenth
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birthday in the United States” must, “within thirty days thereafter, apply in person for registration and to be fingerprinted.” Id.
Section 1304 provides that “[e]very alien in the United States who has been registered and fingerprinted . . . shall be issued a certificate of alien registration or an alien registration card . . . .” 8 U.S.C. § 1304(d). Section 1304 also provides that “[e]very 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 . . . .” Id. § 1304(e). An alien who violates Section 1304(e) is “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.” Id. Section 1304(e) presupposes that the alien has registered pursuant to § 1302 and been provided documentation pursuant to Section 1304(d). An alien who has never registered or applied for a certificate of alien registration cannot, by the plain language of 8 U.S.C. § 1304(a), be charged with a crime for failure to have in his or her personal possession any registration documents issued to him or her.
Section 1306 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” is “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. 8 U.S.C. § 1306(a).
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Essentially, H.B. 56 § 10 creates two Alabama state crimes related to the INA’s alien registration scheme. The first state crime has two elements and arises when an alien is “unlawfully present in the United States” and “in violation of 8 U.S.C. § 1304(e).” H.B. 56 § 10(a). The second state crime has two elements and arises when an alien is “unlawfully present in the United States” and “in violation of . . . 8 U.S.C. § 1306(a).” Id. Although it is a federal crime to violate 8 U.S.C. § 1304(e) and 8 U.S.C. § 1306(a), the state crimes for violating H.B. 56 § 10 arise in a narrower set of circumstances than the federal crimes for violating either 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a). In other words, there may be circumstances when an alien would be in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) but would not, under the same circumstances, be in violation of H.B. 56 § 10(a).
Section 1304(e) applies to “[e]very alien,” whether lawfully present or not, who has registered under Section 1302 and been issued documentation under Section 1304(d) but who fails to carry the documentation as required by Section 1304(e). See, e.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 546 (6th Cir. 2002)(citing 8 U.S.C. § 1304(e))(“Failure to carry one’s green card on his or her person can subject a legal resident alien to criminal sanctions.”); Etuk v. Slattery, 936 F.2d 1433, 1444 (2d. Cir. 1991) (“The INA mandates that the Attorney General provide [lawful permanent residents] who register with proof of their legal status.” (citing 8 U.S.C. § 1304(d))). Section 10(a) of H.B. 56, on the other hand, applies only to aliens who are “unlawfully present in the United States” and who fail to carry documentation as required by 8 U.S.C. § 1304(e). Unlike 8 U.S.C. §
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1304(e), H.B. 56 § 10(a), by its plain language, does not apply to aliens lawfully present in the United States, such as legal permanent residents, who fail to carry their registration documents.
The same reasoning applies to the second state crime created by H.B. 56 § 10(a). Section 1306(a) applies to “any alien,” whether lawfully present or not, who has failed to register or be fingerprinted as required by 8 U.S.C. § 1302. Section 10(a) of H.B. 56, on the other hand, applies only to an alien who is “unlawfully present in the United States” and has failed to register and be fingerprinted in violation of 8 U.S.C. § 1306(a). Unlike Section 1306(a), H.B. 56 § 10(a), by its plain language, does not apply to aliens lawfully present in the United States who fail to register or be fingerprinted in violation 8 U.S.C. § 1306(a).
The United States argues that H.B. 56 § 10 is conflict preempted because it interferes with the federal alien registration scheme. (Doc. 2 at 28-31.) As noted, 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. (quoting Lohr, 518 U.S. at 485.) The second is that a presumption against preemption applies when “Congress has legislated . . . in a field which the States have traditionally occupied.” Id. Because the states have not traditionally occupied the field of alien registration, the court applies no presumption against preemption for H.B. 56 § 10.
The current federal registration system set forth in 8 U.S.C. §§ 1302, 1304, and 1306, creates a comprehensive scheme for alien registration. See Hines, 312 U.S. at 74. The
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federal system requires aliens to register, 8 U.S.C. § 1302, and requires registered aliens to obtain a certificate of alien registration or an alien registration card, 8 U.S. C. § 1304(d). The INA provides criminal penalties for aliens who fail to carry a registration card or certificate, 8 U.S.C. § 1304(e), and who willfully fail to register, notify the federal government of a change of address, make fraudulent statements, and produce counterfeit documents. 8 U.S.C. § 1306 (a)-(d).
The United States relies primarily on Hines to support its assertion that H.B. 56 § 10 is preempted. (See doc. 2 at 28-30.) In Hines, the Supreme Court considered whether the federal Alien Registration Act, the precursor to the INA, preempted the Alien Registration Act adopted in Pennsylvania. Hines, 312 U.S. at 56. The subject of both the federal Act and the Pennsylvania Act was the registration of aliens. Id. at 61. The Court stated:
[W]here the federal government, in the exercise of its superior authority in [the] field [of immigration], 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.
Id. at 66-67 (emphasis added). On that basis, the Court found that its “primary function” was “to determine whether . . . Pennsylvania’s law [stood] as an obstacle to the accomplishment . . . of the full purposes and objectives of Congress” in enacting the federal Act. Id. at 67. Although compliance with both the Pennsylvania Act and the federal Act was not
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impossible,6 the Court nonetheless found that the Pennsylvania Act could not be enforced
because it stood “as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Id. at 67, 71-74.
First, the Pennsylvania Act established a separate, state-specific alien registration
scheme that was independent from the federal Act. Id. at 59-61. Pennsylvania’s state-
specific registration scheme stood in clear conflict with Congress’s objective of having a
“uniform national registration system,” and “a standard for alien registration in a single
integrated and all-embracing system” through the federal Act. Id. at 74. Second, the
Pennsylvania Act created registration requirements that were different from those provided
by Congress in the federal Alien Registration Act. Id. at 59-61. For example, the
Pennsylvania Act required aliens to carry their registration cards with them at all times. Id.
at 60-61. Congress had considered and rejected such a provision in the federal Act. Id. at 72-73.7
6See Hines, 312 U.S. at 78 (in his dissent, Justice Stone noted, “It is conceded that the federal act in operation does not at any point conflict with the state statute, and it does not by its terms purport to control or restrict state authority in any particular.”)(Stone, J., dissenting); see also Wyeth, 129 at 1211-12 (“The Court [in Hines] did not find that the two statutes, by their terms, directly conflicted.”)(Thomas, J., concurring)(citations and footnote omitted).
7 The Court in Hines explained:
The requirement that cards be carried and exhibited has always been regarded as one of the most objectionable features of proposed registration systems, for it is thought to be a feature that best lends itself to tyranny and intimidation. Congressman Celler, speaking in 1928 of the repeated defeat of registration bills and of an attempt by the Secretary of Labor to require
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This case is distinguishable from Hines. As the State Defendants note “there was a clear conflict between Pennsylvania law and the federal scheme” in Hines and “[i]n contrast, no such conflict exists between Section 10 of [H.B. 56] and 8 U.S.C. §§ 1304(e) and 1306(a).” (Doc. 38 at 65-66.) First, unlike the Pennsylvania Act in Hines, H.B. 56 § 10 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to the rights established by Congress in the INA. The standard for registration provided by Congress remains uniform. H.B. 56 § 10, consistent with the Court’s recent decision in Chamber of Commerce v. Whiting, expressly defers to the federal alien registration scheme and federal immigration status determinations. See Whiting, 131 S. Ct. at 1981. It does so by: (1) requiring that “an alien’s immigration status . . . be determined by verification of the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c),” H.B. 56 § 10(b); (2) exempting “a person who maintains authorization from the federal government to be present in the United States,” id. (d); and (3) providing penalties that closely track those provided by federal law, compare 8 U.S.C. § 1306(a) (providing that a person who willfully fails to register is “guilty of a
registration of incoming aliens by executive order, said: [“]But here is the real vice of the situation and the core of the difficulty: ‘The admitted alien,’ as the order states, ‘should be cautioned to present (his card) for inspection if and when subsequently requested so to do by an officer of the Immigration Service.[’]” 70 Cong. Rec. 190. Hines, 312 U.S. at 71 n.32. In 1952, after the Hines decision, 8 U.S.C. §§ 1304 and 1306 were adopted to add the requirement that aliens carry their registration documents. See H.R. Rep. 82-1365, 2d Session, 1952, 1952 U.S.C.C.A.N. 1653, 1723.
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misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both”) and 8 U.S.C. § 1304(e) (providing that a person who fails to carry his registration documents is “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”) with H.B. 56 § 10(f) (providing that an alien unlawfully present in the United States and who is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) is “guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail”). Second, the current federal alien registration scheme requires that aliens carry their registration documents. See 8 U.S.C. § 1304(e). In 1952, Congress amended the alien registration laws to require aliens to carry their registration documents. See 8 U.S.C. § 1304(e). When Congress passed the 1952 law making an alien’s failure to carry his registration documents a crime, it stated, “the provisions have been modified . . . to require . . . the registration . . . and fingerprinting of all aliens in the country and to assist in the enforcement of those provisions.” See H.R. Rep. 82-1365, 2d Session, 1952, 1952 U.S.C.C.A.N. 1723. Congress explicitly recognized that the 1952 amendments to the scheme made it a crime for aliens not to carry their registration documents. See 98 Cong. Rec. 4432-33 (1952)(“Alien registration cards are not new in the law, yet this is the first time where it becomes a necessity for an alien to carry the card with him and, if he does not, it becomes a crime.” (statement of Rep. Chudoff)). As a result, H.B. 56 § 10 does not suffer the same obstacle preemption problem as the Pennsylvania Act.
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Although the penalties provided by H.B. 56 § 10 “complement” the INA’s registration provisions by making it a state crime for “alien[s] unlawfully present” to violate 8 U.S.C. §§ 1304(e) or 1306(a), this “complement[ing]” is not “inconsistent[] with the purpose of Congress.” See Hines, 312 U.S. at 66-67. The penalties provided by H.B. 56 § 10 apply in narrow circumstances that are completely encompassed by the federal scheme. It is already a crime under the federal alien registration scheme for an unlawfully present alien to violate 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a). Unless Congress has occupied the field through the INA – a conclusion the Supreme Court appears to have rejected, seeDeCanas , 424 U.S. at 358; United States v. Arizona, 703 F. Supp. 2d 980, 999 (D. Ariz. 2010) (“[In DeCanas] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens.”) – it is not “inconsistent[] with the purpose of Congress” to do that which Congress has already done. See Hines, 312 U.S. at 66. The Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute is derived from its own ‘inherent sovereignty,’ not from the Federal Government. Heath v. Alabama, 474 U.S. 82, 89 (1985). The fact that states can enact laws which impose state penalties for conduct that federal law also sanctions, without being preempted, is “too plain to need more than statement.” Westfall v. United States, 274 U.S. 256, 258 (1927).
The United States argues, “The federal alien registration scheme has been held by the Supreme Court to represent the quintessential example of a pervasive and comprehensive
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scheme of federal regulation that leaves no room for state legislation in this area,” and, “Hines squarely held that Congress intended the federal government to exercise exclusive control over all issues related to alien registration.” (Doc. 2 at 29.) However, it does not address whether the provisions of H.B. 56 § 10 are “inconsistent[] with the purpose of Congress.” See Hines, 312 U.S. at 66. The court does not read Hines as holding that Congress has “occupied the field” of alien registration. Id. at 67 (“Our primary function is to determine whether, 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.”) (emphasis added); see also Wyeth, 129 S. Ct. at 1213 (Thomas, J., concurring).8 The United States has not directed this court to any authority for the proposition that Congress intended exclusivity, rather than uniformity. “[S]ilence on the part of Congress alone is not only insufficient to demonstrate field preemption, it actually weighs in favor of holding that it was the intent of Congress not to occupy the field.” Frank Bros.,
8 The court notes that in Wyeth, Justice Thomas stated: According to Justice Stone, the Hines majority’s analysis resembled an
inquiry into whether the federal act “‘occupied the field,’” rather than an application of simple conflict pre-emption principles. Id., at 78 (dissenting opinion). Regardless of whether Hines involved field or conflict pre-emption, the dissent accurately observed that in assessing the boundaries of the federal law – i.e., the scope of its pre-emptive effect – the Court should look to the federal statute itself, rather than speculate about Congress’ unstated intentions. Id. at 78-79. Wyeth, 129 S. Ct. at 1213 n.4 (Thomas, J., concurring) (parallel citations omitted).
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Inc. v. Wisconsin Dept. of Transp., 409 F.3d 880, 891 (7th Cir. 2005)(emphasis added).
Although the Hines Court “relied on the comprehensiveness of the federal regulatory
scheme[] in finding” intent to preempt a state-specific alien registration scheme, see
DeCanas, 424 U.S. at 362-63, this court does not interpret the comprehensiveness of the
federal alien registration scheme as evidence of Congress’s intent to preempt state laws that
do not affect the uniformity of the national standard for alien registration. Consequently, the
court sees no reason why Alabama, pursuant to its dual sovereignty, cannot, consistent with
the purpose of Congress, make violations of 8 U.S.C. §§ 1304(e) and 1306(a) by unlawfully
present aliens, state crimes in Alabama.9
9 The court’s conclusion is consistent with the decision in League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995). There, the district court considered various constitutional challenges to California’s Proposition 187. Id. at 763. As relevant here, plaintiffs had challenged Sections 2 and 3 of Proposition 187, which made “it a crime to manufacture, distribute, sell or use false documents to conceal true citizenship or immigration status.” Id. at 786. Violations of Sections 2 and 3 were “punishable by imprisonment for up to five years or, in the case of manufacturing, distributing or selling false documents, a fine of up to $75,000 and for use of such documents, a fine of up to $25,000.” Id. The court stated:
Plaintiffs argue that by imposing different penalties than those already imposed under federal laws regulating the production or use of false citizenship, naturalization and alien registration papers and the misuse or forgery of passports and visas,sections 2 and 3 conflict with federal law. There has been no showing that the criminal penalties contemplated by sections 2 and 3 conflict with or impede the objectives of federal law. Sections 2 and 3 are not preempted under the third De Canas test.
Id. (emphasis added; footnote omitted). 27

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The United States contends, though not in certain terms, that the court should follow the recent decision in United States v. Arizona. (Doc. 2 at 29, 31 [citing United States v. Arizona, 641 F.3d 339, 354-57 (9th Cir. 2011)].) In that case, the United States had challenged the constitutionality of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act in the United States District Court for the District of Arizona and moved to enjoin the Act. See Arizona, 703 F. Supp. 2d 980. Section 3 of the Arizona Act, A.R.S. § 13-1509(A), which is substantially similar to H.B. 56 § 10(a), was among the challenged provisions. Id. at 998-99. Section 3 of the Arizona Act 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).” Id. at 998. This section of the Arizona Act did not, as H.B. 56 § 10 does, apply only to those “unlawfully present.” The district court preliminarily enjoined Section 3, reasoning that:
Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67; see also A.R.S. § 131509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67.
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Arizona, 703 F. Supp. 2d at 999 (parallel citations omitted). Arizona appealed. See Arizona,
641 F.3d at 354-57.
On appeal, the Ninth Circuit affirmed the district court’s decision to enjoin Section
3. Id. at 357. The Ninth Circuit reasoned:
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.” Id.
Arizona, 641 F.3d at 355-56 (alteration in original; footnote and parallel citations omitted).
This court is not persuaded by the decisions in the Arizona cases regarding Section
3 of the Arizona Act. The Arizona district court and the Ninth Circuit both found that
“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.’” Arizona, 641 F.3d
at 356 (quoting Hines, 312 U.S. at 66-67); Arizona, 703 F. Supp. 2d at 999. Neither court,
however, explained how the “additional or auxillary regulations” were “inconsistent[] with
the purpose of Congress.” See Hines, 312 U.S. at 66-67. As the Ninth Circuit noted,
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“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.” Arizona, 641 F.3d at 355 (emphasis added). However, this lack of affirmative evidence that Congress intended the states to participate is not dispositive of the preemption issue. See Saleh v. Titan Corp., 580 F.3d 1, 24 (D.C. Cir. 2009)(“Wyeth v. Levine, the Supreme Court’s most recent preemption case, further reflects the Court’s unwillingness to read broad preemptive intent from congressional silence.”). Affirmative evidence that Congress intended the states to participate would negate any inference of preemptive intent,10 but the absence of such affirmative evidence does not, without more, support a finding of any inference of preemptive intent. The fact that “Congress provided very specific directions for state participation” in matters not relating to alien registration, Arizona, 641 F.3d at 355 (referring to 8 U.S.C. § 1357), “demonstrating that it knew how to ask for help where it wanted help,” id., says very little about Congress’s preemptive intent regarding state penalties for violations of the federal registration scheme. See Camps Newfound / Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 616 (1997)(“[E]ven where Congress has legislated in an area subject to its authority, our pre-emption jurisprudence explicitly rejects the notion that
10 For instance, in DeCanas, the Court found “affirmative evidence . . . that Congress sanctioned concurrent state legislation” with respect to the employment of illegal aliens. DeCanas, 424 U.S. 361-63. Similarly, in Whiting, the Court found “Congress expressly preserved the ability of the States to impose their own sanctions through licensing” and noted that such preservation “necessarily entails the prospect of some departure from homogeneity.” Whiting, 131 S. Ct. at 1979-80.
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mere congressional silence on a particular issue may be read as preempting state law”) (emphasis in original). The court declines to construe Congress’s silence in this instance as evidence of its preemptive intent.
H.B. 56 § 10 creates Alabama state crimes for unlawfully present aliens who engage in conduct that constitutes existing federal crimes under the INA. Section 10 does not criminalize mere unlawful presence because it also requires a violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a), both of which carry criminal penalties under federal law. Although “unlawful presence in the United States is not a federal crime,” see Arizona, 703 F. Supp. 2d at 988, and criminalizing mere unlawful presence might impair or impede the United States foreign policy goals, (see doc. 2-1 ¶¶ 9, 35), the Supreme Court has recognized that “entering or remaining unlawfully in this country is itself a crime.” INS v. LopezMendoza, 468 U.S. 1032, 1038 (1984)(citing 8 U.S.C. §§ 1302, 1306, and 1325) (emphasis added; citations omitted). That “there [is no] federal criminal statute making unlawful presence in the United States, alone, a federal crime, Martinez-Medina v. Holder, 2011 WL 855791, *6 (9th Cir. Mar. 11, 2011), is of little moment here. As noted above, an alien in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) is not necessarily “unlawfully present” under federal law. Mere unlawful presence may subject an alien to civil removal, but not criminal penalties, in a narrow set of circumstances, such as where an “alien has overstayed a valid visa or otherwise remains in the country after the expiration of a period authorized by the Department of Homeland Security.” Martinez-Medina, 2011 WL 855791 at *6 n.4.
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Section 10 does not seek to alter those narrow circumstances. The court finds H.B. 56 § 10 does not stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67. For all these reasons, the court finds that the United States is not likely to succeed in showing that H.B. 56 § 10 is impliedly preempted.
The United States also argues that Section 10 is unlawful because it seeks to criminalize unlawful presence11 and this creates an obstacle to the accomplishment of the foreign policy goals of the United States. (Doc. 2 at 31-33.) The court rejects this argument.
The United States argues that H.B. 56 inherently interferes with the Federal Government’s foreign policy objectives concerning international diplomatic relations as well as the uniform enforcement of national immigration laws. (See doc. 2 at 12-13, 18, 25, 33-34, 56, 81-83.) In support of this argument the United States submitted the Declaration of William J. Burns, Deputy Secretary of State, (doc. 2-1), who states that H.B. 56 threatens to disrupt “uniform foreign policy regarding the treatment of foreign nations” and “risks negative reciprocity of the treatment of U.S. citizens abroad, among other deleterious effects.” (Doc. 2 at 32-33 [citing doc 2-1 at ¶¶ 9, 35; quoting id. ¶ 35].) Legislation affecting the treatment and movement of another country’s citizens living abroad necessarily touches the foreign relations between the visiting and the host nations; however, something more is required before the court can enjoin an otherwise valid state law on foreign policy grounds.
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The United States has not cited the court to a specific conflict between Section 10, or any other Section of H.B. 56, and some Congressionally-granted Executive Branch authority directly relating to foreign policy. Nevertheless, it argues that H.B. 56 interferes with the Executive Branch’s “fundamental authority to conduct foreign affairs.” (Doc. 2 at 33.) However, Supreme Court cases that have found conflict preemption when a state law obstructs the Executive Branch’s authority to conduct foreign affairs are limited to instances where the Executive Branch’s action has been specifically authorized by Congress and is intended as a means of achieving key national foreign policy goals. See, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 420-25 (2003); Crosby, 530 U.S. at 380-85.
The Supreme Court has taken varying positions regarding the weight to be given statements of Executive Branch officials seeking to preempt a state law on the basis of foreign policy. Compare Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 328-31 (1994) (rejecting Executive Branch statements and amicus filings in deciding that state tax law with international implications was not preempted), with Garamendi, 539 U.S. at 424-25 (considering letters from the Deputy Secretary of State as well as statements submitted by other foreign governments in the Court’s decision to preempt a state law in conflict with executive agreements between the United States and European nations); and Crosby, 530 U.S. at 385-88 (distinguishing Barclays and finding statements by Executive Branch officials and foreign powers persuasive in deciding that a state law, which limited transactions with a foreign nation, was preempted by a conflicting federal statute). These decisions
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demonstrate that, in a conflict preemption analysis, the Supreme Court will rely on statements of Executive Branch officials to invalidate an otherwise valid state law based on preemption only when there is evidence that such statements demonstrate a national foreign relation policy. See Garamendi, 539 U.S. at 421 (noting preemption was properly grounded on the “national position, expressed unmistakably in the executive agreement” between the President of the United States and the German Chancellor). Statements from Executive Branch officials and other evidence of foreign discontent or threats of reprisal are insufficient to establish the national position. See Barclays, 512 U.S. at 327-28. The evidence must show that the foreign policy concerns expressed by the Executive Branch are within “Congress’s express command to the President to take the initiative for the United States among the international community,” Crosby, 530 U.S. at 380-81 (emphasis added), as demonstrated by statements from Congress, ratified treaties, or international agreements. See Garamendi, 539 U.S. at 420 (emphasis added); see also Arizona, 641 F.3d at 381 (Bea, J., concurring in part and dissenting in part).
Thus, to base a finding of preemption of Section 10 based on Executive Branch foreign policy, the court must have some evidence of a national foreign policy – either some evidence of Congress’s intent or a treaty or international agreement establishing the national position. This is the position raised in Judge Bea’s dissent in Arizona, in which he noted:
Neither does the Supreme Court’s preemption jurisprudence in the field of foreign relations change the conclusion that Section 2(B) is not preempted. . . . .
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. . . . [A]s 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 352–54. 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 354.
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 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 federal policy; any negative effect on foreign relations caused by the free flow of immigration status information between Arizona 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 relations any more than could such a foreign relations claim override Congressional statutes 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.
Arizona, 641 F.3d at 380-82 (Bea, J., concurring in part and dissenting in part) (emphasis
added).
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There is no evidence before the court that Section 10, or any other provision of H.B. 56, conflicts with Congressional intent regarding national foreign policy goals or with an international agreement “identify[ing] a federal foreign relation policy”. See id. at 381 (Bea, J., concurring in part and dissenting in part). The statement submitted in this case by the Deputy Secretary of State, alleging that foreign policy is hindered, is insufficient. Without evidence of Congressional intent, the United States must show specifically a national foreign policy “addressed in Executive Branch diplomacy and formalized in treaties and executive agreements.” Garamendi, 539 U.S. at 421. There is no such evidence before the court. Therefore, the court finds that the United States has not shown that it is likely to succeed on its claim that Section 10 is preempted due to interference with the nation’s foreign relations policy.
Based on the foregoing, the court finds the United States has not established a likelihood of success on its claim that H.B. 56 § 10 is preempted by federal law. C. SECTION 11(a)
Section 11(a) of H.B. 56 states: It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state. H.B. 56 § 11(a). A person who violates Section 11 is “guilty of a Class C misdemeanor and subject to a fine of not more than five hundred dollars ($500).” Id. (h). For the purposes of enforcing Section 11, “an alien’s immigration status shall be determined by verification of
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the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c).” Id. Section 11 “does not apply to a person who maintains authorization from the federal government to be employed in the United States.” Id. (d). Also, Section 11 “shall be interpreted consistently with 8 U.S.C. § 1324a and any applicable federal rules and regulations.” Id. (j).
The United States argues that Section 11(a) is conflict preempted because it seeks to override Congress’s determination that criminal sanctions should not attach to the solicitation or performance of work by unlawfully present aliens. (Doc. 2 at 33.) As noted above, 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. Because the power to regulate the employment of aliens not authorized to work is “within the mainstream” of the states’ historic police power, a presumption against preemption applies. DeCanas, 424 U.S. at 356; Arizona, 641 F.3d at 357. Therefore, with respect to Section 11(a), the court “start[s] with the assumption that the historic police powers of [Alabama to regulate the employment of unauthorized aliens will not] be superseded . . . unless that [is] the clear and manifest purpose of Congress.” Wyeth, 129 S. Ct. at 1194-95 (quoting Lohr, 518 U.S. at 485)(internal quotations and citations omitted).
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In 1986, Congress amended the INA through enactment of the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99–603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a to1324b), which is “a comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147 (2002). IRCA “was . . . designed to deter aliens from entering [the United States] illegally.” Zheng, 306 F.3d at 1087 (internal citations and quotations omitted). IRCA “forcefully made combating the employment of illegal aliens central to the policy of immigration law. Hoffman Plastic Compounds, 535 U.S. at 147 (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 194, and n.8 (1991))(internal quotations omitted). The Senate Report explained that “[t]he primary incentive for illegal immigration is the availability of U.S. employment,” and that IRCA was “intended to increase control over illegal immigration.” S. REP. NO. 99-132, 99th Cong., 1st Sess. 1 (1985).
IRCA makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324a(a)(1)(A); see also id. (a)(2) (making it unlawful for an employer 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”); id. (a)(4) (making it unlawful for an employer to use a “contract, subcontract, or exchange . . . to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien . . . with respect to performing such labor”). An “unauthorized alien” is defined under IRCA as an alien who
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is not “lawfully admitted for permanent residence” or not otherwise authorized by the Attorney General to be employed in the United States. Id. (h)(3). IRCA requires employers to review documents establishing an employee’s eligibility for employment. Id. (b). An employer can confirm an employee’s authorization to work by reviewing, among other things, the employee’s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General. Id. (b)(1)(B)-(D). The employer must attest under penalty of perjury on Department of Homeland Security [“DHS”] Form I–9 that he “has verified that the individual is not an unauthorized alien” by reviewing these documents. Id. (b)(1)(A). The I–9 form itself “and any information contained in or appended to [it] . . . may not be used for purposes other than for enforcement of” IRCA and other specified provisions of federal law. Id. (b)(5).
The text of IRCA reflects a clear choice on the part of Congress to deter the employment of unauthorized aliens through a detailed scheme of civil and criminal sanctions against employers, not employees. See id. (e)(4)-(5), (f)(1); 8 C.F.R. § 274a.10. An employer who knowingly hires an unauthorized alien shall be ordered to “cease and desist from such violations,” and to pay a civil penalty in an amount “not less than $250 and not more than $2,000 for each unauthorized alien” for a first offense, “not less than $2,000 and not more than $5,000 for each [unauthorized] alien” for a second offense, and “not less than $3,000 and not more than $10,000 for each [unauthorized] alien” for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization
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of its employees “shall [be required] 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.” Id. (e)(5). Employers who engage in a “pattern or practice” of hiring unauthorized aliens “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.” Id. (f)(1).
Congress has demonstrated the sanctions that it deems appropriate for unauthorized aliens who perform work by providing only narrowly-tailored sanctions against such aliens, including deportation, and special sanctions for the presentation of false or fraudulent documents. See 8 U.S.C. § 1227(a)(1)(C)(i) (making failure to maintain immigrant status is a deportable offense); 8 U.S.C. § 1324c (making it a civil violation to make or use a false document or to use a document belonging to another person, in the context of unlawful employment of an unauthorized alien); 8 C.F.R. § 214.1(e) (prohibiting non-immigrant aliens from unauthorized employment and classifying such conduct as a failure to maintain status under the INA).
Other sections in IRCA that provide affirmative protections to unauthorized alien workers counsel against a finding that Congress intended to permit the criminalization of applying for, soliciting, or performing work by unauthorized aliens. Section 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
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the extent necessary to verify that an individual is not an unauthorized alien.” 8 U.S.C. § 1324a(d)(2)(C). This section would prohibit Alabama from using personal information in the verification system for the purpose of investigating or prosecuting violations of H.B. 56 § 11(a). Also, subsection (g)(1) provides, “It 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.” Id. (g)(1) Section 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). Id. (e). The penalty for a violation of (g)(1) 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.” “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.” Arizona, 641 F.3d at 359 (emphasis added).
The legislative history of IRCA reflects a deliberate decision on the part of Congress not to criminalize work by unauthorized alien. In Nat. Center 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), the Ninth Circuit thoroughly reviewed IRCA’s legislative history. The Ninth Circuit found that the determination to reduce or deter employment of unauthorized workers by sanctioning
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employers, rather than employees, was “a congressional policy choice clearly elaborated in
IRCA.” Id. at 1370.
The court stated:
While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals. Immigration Reform and Control Act of 1985: Hearings before the Senate Subcommittee on Immigration and Refugee Policy, 99th Cong., 1st Sess. (1985), S. Hrg. 99-273, at 56, 59 (In response to the proposal that aliens be fined or detained as a deterrence to illegal immigration, Senator Simpson, the Chairman of the Senate Judiciary Committee, stated that this was not a new recommendation, but one that had previously been suggested and rejected). See also 118 Cong. Rec. H30155 (daily ed. Sept. 12, 1972) (statement of Rep. Rodino) (the House Judiciary Committee decided not to impose any additional criminal sanctions or other penalties on employees, believing that such penalties “would serve no useful purpose”). Instead, it deliberately adopted sanctions with respect to the employer only. 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. During the extensive debates and hearings conducted during earlier attempts to enact similar legislation, the INS specifically agreed that employee sanctions, such as denying aliens employment pending deportation hearings or detaining aliens, should be rejected. James Hennessey, the Executive Assistant to the INS Commissioner, testified that the INS would not attempt to control employment during deportation proceedings:
Rep. Rodino: [During deportation proceedings] the fact that an illegal alien is a holder of a job or some employment, means that there is no such surveillance on the part of the Service or anybody that he won't be holding the job?
Mr. Hennessey: He will undoubtedly continue. In fact, having still the right to go before the Board [of Immigration Appeals], I don’t think we could attempt or ask for any legislation that he not hold the job. We will not expect the individual to starve in the United States while he is exhausting both the administrative and judicial roads that the legislation gives him.
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Illegal Aliens, Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, 92d Cong., Serial No. 13 pts. 1-5, pt. 1 at 46. Even an INS District Director for Detroit, Michigan who favored administrative action against illegal aliens who worked, explicitly rejected detention as a means of curtailing immigration:
Mr. Pederson: I believe that we ought to impose a penalty against the alien to help stop him [from working].
Rep. Rodino: What kind of penalty would you impose on the alien?
Mr. Pederson: Well, I do not feel that a fine or imprisonment is the answer but I do feel that there should be some form of sanction. It could be possible to deny administrative relief of some form.
Id., pt. 3 at 919. The House Judiciary Committee concluded at the end of this round of hearings that “[t]he illegal entrant should not be subject to additional penalties . . . .” Id., pt. 1, at 90.
Although some continued to argue for restraints against the employee, the approach of controlling employment through employer not employee sanctions was adjudged by Congress to provide the only realistic and appropriate solution. As stated in the final House report, employer sanctions, “coupled with improved border enforcement, is the only effective way to reduce illegal entry and in the Committee’s judgment it is the most practical and cost-effective way to address this complex problem.” H.R. Rep. No. 99682(I), 99th Cong., 2nd Sess. 49, reprinted in 1986 U.S. Code Cong. & Admin. News. 5653 (emphasis added).
Nat’l Center for Immigrants’ Rights, 913 F.2d at 1367-69 (footnote omitted; emphasis in
original); see also H.R. Rep. No. 99-682(I), reprinted in 1986 U.S.C.C.A.N. 5650 (“The
Committee remains convinced that legislation containing employer sanctions is the most
humane, credible and effective way to respond to the large-scale influx of undocumented
aliens.”).
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In United States v. Arizona, the United States challenged Section 5(C) of the Arizona Act, A.R.S. § 13-2928(C), which is similar to H.B. 56 § 11(a). See Arizona, 703 F. Supp. 2d at 1001-02. Section 5(C) of the Arizona Act 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.” A.R.S. § 13-2928(C). The district court, relying on IRCA’s text and the Ninth Circuit’s interpretation of congressional intent set forth in National Center for Immigrants’ Rights, found that the United States was likely to succeed on its claim that Arizona’s new crime for working without authorization conflicts with a comprehensive federal scheme and is preempted. Id. at 1002. Arizona appealed.
On appeal, the Ninth Circuit affirmed the decision of the district court. Finding that it was bound by its holding regarding congressional intent in National Center for Immigrants’ Rights, the Court of Appeals “conclude[d] 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.” Arizona, 641 F.3d at 359.
This court agrees with the Ninth Circuit’s holdings in National Center for Immigrants’ Rights and its decision in Arizona. Based on IRCA’s text and legislative history, this court concludes that the clear and manifest purpose of Congress was to
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supercede Alabama’s authority to enact H.B. 56 § 11(a) sanctioning work by unauthorized aliens.
The State Defendants argue that IRCA’s text and legislative history show “that Congress did not intend to preempt State laws that criminalized the solicitation and acceptance of work by unauthorized workers.” (Doc. 38 at 71.) They maintain that the United States is “attempt[ing] to revive the discredited theory of ‘preemption by omission.’” (Id.) The court disagrees. The arguments advanced by the United States are not based solely on the inaction or omission of Congress. Rather, the arguments of the United States are based on “inaction joined with action.” See Puerto Rico Dept’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988). In Isla Petroleum Corp., the Supreme 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 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. Isla Petroleum Corp. involved an Energy Policy Conservation Act (“EPCA”) provision that terminated the President’s authority to implement federal price controls on petroleum products that had been granted under the older Emergency Petroleum Allocation Act (“EPAA”). Id. at 497-98. After the President’s regulatory authority terminated, Puerto Rico implemented price controls on petroleum products. Id. at 498-99. Several oil
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companies filed suit, arguing that the price controls were preempted; they argued that the EPAA “evinced a federal intent to enter the field of petroleum allocation and price regulation, and that the EPCA never countermanded that intent.” Id. at 500. The oil companies argued that the EPCA simply changed the nature of the federal control of petroleum allocation and price regulation from “one of federal hands-on regulation to one of federally mandated free-market control.” Id.
Justice Scalia, writing for the Court, rejected that argument, stating that, the preemption analysis must begin with the assumption that “the historic police powers of the States” are not to be pre-empted “unless that was the clear and manifest purpose of Congress.” Id. at 500. The Court determined that there was no text in “any extant federal regulation that might plausibly be thought to imply exclusivity.” Id. at 501. “Without a text that can . . . plausibly be interpreted as prescribing federal pre-emption it is impossible to find that a free market was mandated by federal law.” Id. The Court further determined that, with the EPCA, Congress had “withdrawn from all substantial involvement in petroleum allocation and price regulation. There being no extant action that can create an inference of pre-emption in an unregulated segment of an otherwise regulated field, preemption, if it is intended, must be explicitly stated.” Id. at 504.
In Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U.S. 409 (1986), which was discussed at length in Isla Petroleum Corp., the Court considered whether the states could impose conditions on the first sale of natural gas which,
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by direct statutory exemption, was placed beyond regulation by the Federal Energy Regulatory Commission (“FERC”). Prior to 1978 regulation by FERC preempted any state regulation. See N. Natural Gas Co. v. State Corporation Comm’n of Kansas, 372 U.S. 84 (1963). In the Natural Gas Policy Act of 1978, Pub.L. 95-621, 92 Stat. 3351, Congress substantially restricted FERC’s regulatory authority. The Transcontinental Court noted that a “decision to forego regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much preemptive force as a decision to regulate.” Transcontinental, 474 U.S. at 422 (quoting Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 384 (1983)). The Court refused to accept the argument that Congress “in revising a comprehensive federal regulatory scheme to give market forces a more significant role in determining the supply, the demand, and the price of natural gas, intended to give the States the power it had denied FERC.” Id.
Here, unlike in Isla Petroleum Corp., there is “extant action that can create an inference of pre-emption in an unregulated segment of an otherwise regulated field.” Isla Petroleum Corp., 485 U.S. at 504. “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.” Arizona, 641 F.3d at 359 (emphasis added). Congress’s “decision to forego” criminalizing unauthorized work, as revealed by IRCA’s text and legislative history, implies “an authoritative federal determination that the area is best left unregulated,” and that decision has “as much
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preemptive force as a decision to regulate.” Transcontinental, 474 U.S. at 422 (citations omitted). “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.” Arizona, 641 F.3d at 359-60.
Alabama’s decision, through Section 11(a) of H.B. 56, to criminalize work – which Congress explicitly chose not to do through IRCA and the INA – “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67. Section 11(a) is not saved from preemption simply because it may further the strong federal policy of prohibiting unauthorized aliens from seeking employment in the United States. As the Supreme Court recognized in Crosby, “[t]he fact of a common end hardly neutralizes conflicting means.” Crosby, 530 U.S. at 379; cf. id. at 380 (“‘[C]onflict is imminent’ when ‘two separate remedies are brought to bear on the same activity’”)(quoting Wis. Dept. of Indus. v. Gould, Inc., 475 U.S. 282, 286 (1986)). For these reasons, the court finds that the United States is likely to succeed on its claim that Section 11(a) is preempted.
In addition to demonstrating a likelihood of success on the merits, the United States must also establish that it will suffer an irreparable injury if the injunction does not issue, that the threatened injury to the United States outweighs whatever damage the proposed injunction may cause the state defendants, and that, if issued, the preliminary injunction will not adversely effect the public’s interest.
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The United States must establish that it will suffer irreparable harm if the preliminary injunction is not granted. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). “‘Even if the movant establishes a substantial likelihood of success on the merits, his failure to establish irreparable injury ‘would, standing alone, make preliminary injunctive relief improper.’” Windsor v. United States, 379 Fed. App’x 912, 915-16 (11th Cir. 2010)(quoting Siegel, 234 F.3d at 1176); see also Snook v. Trust Co. of Ga. Bank of Savannah, 909 F.2d 480, 486-87 (11th Cir. 1990)(although movants proved they would likely succeed on the merits, denying preliminary injunctive relief was proper due to failure to show irreparable injury); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983)(“The Government’s success in establishing a likelihood it will prevail on the merits does not obviate the necessity to show irreparable harm.”). The harm at issue at this stage of the proceeding is the harm that will occur in the time between the filing of the action and a final judgment. Lambert, 695 F.2d at 540. The focus of the court’s inquiry is directed to whether this harm is irreparable. N.E. Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). Whether an injury is irreparable may depend on whether it can “be undone through monetary remedies.” Id. The availability of remedial measures, including monetary relief, only increases the burden of proving irreparable harm:
Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a [an injunction], are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
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City of Jacksonville, 896 F.2d at 1285 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). The court finds that the United States will endure irreparable harm during the
pendency of this litigation if Section 11(a) is not preliminarily enjoined. The United States argues that “H.B. 56 effects ongoing irreparable harm to the
constitutional order” by disrupting the “Constitution’s structural reservation of authority to the federal government to set immigration policy.” (Doc. 2 at 77.) As a preliminary matter, the court notes that the Eleventh Circuit has clearly stated that not every alleged constitutional infringement per se constitutes irreparable harm. Siegel, 234 F.3d at 1177 (“Plaintiffs also contend that a violation of constitutional rights always constitutes irreparable harm. Our case law has not gone that far, however.”); see also City of Jacksonville, 896 F.2d at 1285 (“No authority from the Supreme Court or the Eleventh Circuit has been cited to us for the proposition that the irreparable injury needed for a preliminary injunction can properly be presumed from a substantially likely equal protection violation.”). Although in United States v. Lambert, the Eleventh Circuit found the United States suffered no irreparable injury stemming from the defendant’s likely violation of the Clean Water Act, the decision to uphold denial of preliminary injunctive relief turned, in part, on the availability of environmental restoration and monetary relief following a trial on the merits. Lambert, 695 F.2d at 540. The Lambert court was not satisfied that the harm was truly irreparable because the evidence indicated that any injury suffered in the interim would only “make restoration
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more difficult, more expensive, and more uncertain,” but not impossible. Id. (internal quotations omitted).
By contrast, the injury United States alleges is definite and irreparable – it cannot be remediated or “undone through monetary remedies.” City of Jacksonville, 896 F.2d at 1285. The court finds that Section 11 is likely preempted by federal law and thus invalid. See U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme 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.”); see also Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (“state laws that conflict with federal law are ‘without effect’” (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981))). To allow Section 11(a) to take effect would be to allow a law of Alabama to be “supreme” over federal law; this is an irreparable constitutional injury.
A preliminary injunction is an extraordinary remedy, but because the court finds Section 11(a) is preempted, preliminary injunctive relief is warranted. The United States will be irreparably harmed if this section is enforced during the pendency of this action and the “public interest will perforce be served by enjoining the enforcement of the invalid provision of state law.” Bank of America v. Sorrell, 248 F. Supp. 2d 1196, 1200 (N.D. Ga. 2002)(quoting Bank One, Utah v. Guttau, 190 F.3d 844, 848 (8th Cir. 1999)); see also Guttau, 190 F.3d at 847-48 (“If [plaintiff] proves that the relevant provisions of the [state
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law] are preempted by the [federal law] and that it will suffer irreparable harm if the State is not enjoined from enforcing those provisions, then the question of harm to the State and the matter of the public interest drop from the case, for [plaintiff] will be entitled to injunctive relief no matter what the harm to the State, and the public interest will perforce be served by enjoining the enforcement of the invalid provisions of state law.”)
Therefore, for these reasons, the court finds the United States has shown its entitlement to an injunction of Section 11(a) of H.B. 56 pending final judgment in this case. The United States’s Motion for Preliminary Injunction as to Section 11(a) will be granted. D. SECTION 12(a)
Section 12 of H.B. 56 sets forth circumstances under which state, county, and municipal law enforcement officers must attempt to verify the citizenship and immigration status of persons detained or arrested. Section 12(a) provides:
Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Section 12(a) requires citizenship and immigration status determinations “be made by contacting the federal government pursuant to 8 U.S.C. § 1373(c) and relying upon any verification provided by the federal government.”12 A person “is presumed not to be an alien
12H.B. 56 defines a person as unlawfully present in the United States “only if the 52

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who is unlawfully present in the United States” if the person provides to the law enforcement
officer any one of six forms of identification.13 Id. (d). In carrying out the requirements of
Section 12, law enforcement officers are prohibited from considering “race, color, or national
origin . . . except to the extent permitted by the United States Constitution or the Constitution
of Alabama of 1901.” Id. (c). “A law enforcement officer shall not attempt to independently
make a final determination of whether an alien is lawfully present in the United States.” Id.
“If an alien is determined by the federal government to be an alien who is unlawfully present
in the United States pursuant to 8 U.S.C. § 1373(c), the law enforcement agency shall
person’s unlawful immigration status has been verified by the federal government pursuant to 8 U.S.C. § 1373(c).” H.B. 56 § 3(10).
13 These forms of identification are:
(1) A valid, unexpired Alabama driver’ license, (2) A valid, unexpired Alabama nondriver identification card. (3) A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier. (4) Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance. (5) A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States. (6) A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer’s admission to the United States.
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cooperate in the transfer of the alien to the custody of the federal government, if the federal government so requests.” Id. (e).
The United States claims that Section 12(a) is preempted by federal law because it “represent[s] a systematic effort by Alabama to inject itself into the enforcement of the federal government’s own immigration laws in a manner that is non-cooperative with the Secretary, and therefore is impermissible.” (Doc. 2 at 59.) Specifically, it contends that “Alabama’s mandatory verification scheme promises to disrupt (i) federal control and discretion over immigration enforcement, (ii) the operation of DHS enforcement priorities generally, and (iii) the conditions of residence of lawfully present aliens.” (Id. at 60.) As the United States correctly points out, Congress has provided for state assistance in enforcement of federal immigration law in limited circumstances. In the criminal context, state and local law enforcement are specifically authorized to arrest aliens who are unlawfully present in the United States and who have previously left the country or were deported after being convicted of a felony, 8 U.S.C. § 1252c, and to make arrests for violations of federal smuggling and harboring laws, 8 U.S.C. § 1324(c). Federal law also authorizes the Attorney General to confer upon state or local law enforcement the powers of a federal immigration officer “[i]n the event the Attorney General determines that an actual or mass influx of aliens” arriving near a water or land border of the United States “presents urgent circumstances requiring an immediate Federal response.” 8 U.S.C. § 1103(a)(10). Aside from those provisions, federal law also provides certain circumstances under which state
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officers and employees can perform functions of federal immigration officers. 8 U.S.C. § 1357(g).
Under section 1357(g), the Attorney General “may enter into a written agreement with 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 . . . , may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.” Id. (g)(1). Named after section 287(g) of the Immigration and Nationality Act, such written agreements are known as “287(g) agreements”. State officers performing an immigration function pursuant to such a written agreement with the Attorney General are required to “have knowledge of, and adhere to, Federal law relating to that function,” id. (g)(2), and “shall be subject to the direction and supervision of the Attorney General,” id. (g)(3). Further, “the specific powers and duties that may be, or are required to be, exercised or performed by the individual [who is authorized to perform a federal immigration function], 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.” Id. (g)(5). Subsection (g)(10) provides that no written agreement is required under section 1357(g) in order for any state officer or employee –
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(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. Id. (g)(10). The aforementioned federal provisions allowing certain state involvement in federal immigration enforcement must be read in conjunction with 8 U.S.C. § 1373(c). Section 1373(c) states that the INS (now Immigrations and Customs Enforcement or “ICE”), “shall respond” to inquiries from federal, state, or local governments “seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” 8 U.S.C. § 1373(c) (emphasis added). The United States argues that, in the absence of a written agreement under Section 1357(g)(1), states can only assist in the “identification, apprehension, detention, or removal of aliens not lawfully present” in cooperation with the Attorney General under section 1357(g)(10)(B).” (Doc. 2 at 61.) According to the United States, the mandatory language regarding verification of immigration status contained in Section 12 of H.B. 56 would serve as an “obstacle . . . to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances in the particular case require.” (Id. at 64.) The United States contends that it –
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is not challenging Alabama’s power to authorize its officers to assist federal officers in their enforcement of the immigration laws. However, the prospect of such authorization does not allow a state to systematically mandate enforcement of federal immigration law in particular circumstances. Any such state-dictated mandate would function as a parallel or contradictory direction, in competition with the Secretary’s direction, as to how to enforce immigration law, thereby eroding the federal government’s exclusive authority over immigration enforcement. It would also force the federal government to divert resources away from the enforcement priorities it has set. (Id. at 65 n.12.) The United States contends that the mandated submission of verification requests for individuals who violate even minor crimes would result in a “substantial uptick in verification requests [that] would interfere with federal operations,” and place “real, impermissible burdens on the federal government.” (Id. at 69, 70.) It further argues that Alabama’s mandatory verification scheme impedes the enforcement discretion of the federal government and interferes with the federal government’s priorities in enforcing immigration law by pursuing “[a]liens who pose a danger to national security or a risk to public safety.” (Id. at 68 [alteration in original; internal quotation and citation omitted].) The State Defendants respond that 8 U.S.C. § 1357(g)(10) reveals Congress’s intent to allow states to assist in immigration enforcement without express authorization from Congress. They point to 8 U.S.C. § 1373 as evidence of Congressional intent to require ICE to respond to inquiries from the state seeking verification of the citizenship or immigration status of a person. Also, the State Defendants contend that a presumption against preemption should apply because Section 12 simply sets forth “stop-and-arrest protocols” that are “a fundamental attribute of internal law enforcement operations within a State.” (Doc. 69 at
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72.) They argue that an “arrest [under Sections 12 and 18] is an exercise of state authority to enforce state and local laws,” (id.); however, Section 12 reaches beyond arrest protocols into the field of identification of unlawfully present aliens. Identifying unlawfully present aliens is not “a field which the States have traditionally occupied.” Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted). Accordingly, there is no presumption against preemption of Section 12.
Nothing in the text of the INA expressly preempts states from legislating on the issue of verification of an individual’s citizenship and immigration status. There is also nothing in the INA which reflects Congressional intent that the United States occupy the field as it pertains to the identification of persons unlawfully present in the United States. Therefore, the court must consider whether Section 12 is preempted because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” See Hines, 312 U.S. at 67. As noted above in the discussion of Section 10, in Arizona, the United States challenged the constitutionality of, and moved to preliminarily enjoin, Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act. See generally Arizona, 703 F. Supp. 2d 980. Section 2(B) of the Arizona Act, A.R.S. § 11-1051(B), which is nearly identical to Section 12(a) and (b), was among the challenged provisions. Id. at 993-98. As quoted by the Ninth Circuit in United States v. Arizona, Section 2(B) of Arizona S.B. 1070 provides:
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
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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 persons 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.
641 F.3d at 346 n.5.
As in the instant case, the United States had argued that this section was “preempted
because it [would] result in the harassment of lawfully present aliens and [would] burden
federal resources and impede federal enforcement and policy priorities.” Arizona, 703 F.
Supp. 2d at 993. The district court preliminarily enjoined Section 2(B), finding the United
States had demonstrated a likelihood of success on its claim that the mandatory immigration
verification requirements were preempted by federal law. Id. at 993-998. The court reasoned
in part as follows:
Federal resources will be taxed and diverted from the federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are
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required to verify immigration status whenever, during the course of a lawful stop, detention or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States. In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads to the inference of preemption. Id. at 998. On appeal, the Ninth Circuit, in a 2-1 decision on this point, affirmed the district court’s decision to enjoin Section 2(B). However, Judge Bea, the dissenting judge, noted the majority had affirmed the district court, not based on its findings, but on the majority’s interpretation of 8 U.S.C. § 1357(g), “which prescribes the process by which Congress intended state officers to play a role in the enforcement of federal immigration laws.” Arizona, 641 F.3d at 372-73 (Bea, J., concurring in part and dissenting in part). According to the Ninth Circuit majority, Section 1357(g) demonstrated that “Congress intended for state officers to systematically aid in the immigration enforcement only under the close supervision of the Attorney General–to whom Congress granted discretion in determining the precise conditions and direction of each state officer’s assistance.” Id. at 350. Arizona had argued that 8 U.S.C. § 1373(c), which requires the Department of Homeland Security “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,” reflects the intent of Congress for states to assist in immigration enforcement. The majority rejected this argument, however, finding that a reading of all sections of the INA revealed a Congressional intent “that systematic state
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immigration enforcement will occur under the direction and close supervision of the Attorney
General . . . [and that] 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.”
Arizona, 641 F.3d at 352.
The reasoning of the majority in Arizona was followed in Georgia Latino Alliance for
Human Rights v. Deal, Civil Action File No. 1:11–CV–1804–TWT, 2011 WL 2520752
(N.D. Ga. June 27, 2011), in which the court preliminarily enjoined Section 8 of a Georgia
statute, which is similar to Section 12 of H.B. 56 and Section 2(B) of the Arizona Act.
Section 8 of the Georgia Act provides in part –
[W]hen an officer has probable cause to believe that a suspect has committed a criminal violation, the officer shall be authorized to seek to verify such suspect’s immigration status when the suspect is unable to provide one of five specified identity documents.
Id. at *9 (internal quotations and alterations omitted). The Georgia district court stated:
“Section 8 attempts an end-run — not around federal criminal law-but around federal statutes
defining the role of state and local officers in immigration enforcement.” Id. at *11. It
found:
8 U.S.C. § 1357 and § 1103 clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law. Indeed, Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state, . . . or where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens.
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Id. at *10 (internal citations omitted). The court held, “Section 8 circumvents Congress’ intention to allow the Attorney General to authorize and designate local law enforcement officers to enforce civil immigration law.” Id. at *11. Because Section 8 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” the court held it was preempted by federal law. Id. (internal quotations omitted).
This court is not persuaded by these decisions on this point. It agrees that Congressional intent should be determined by the intent of Congress as found in 8 U.S.C. §§ 1357 and 1373(c). However, this court is of the opinion that the dissent in United States v. Arizona, 641 F.3d 339, 371-82 (Bea, J., concurring in part and dissenting in part), correctly analyzed the relationship between Federal law and State and local law enforcement. Judge Bea dissented from the majority’s holding in Arizona that Section 2(B) of Arizona’s S.B. 1070, containing a verification provision very similar to Section 12(a) of H.B. 56, was preempted by federal law. Focusing on the intent of Congress as expressed in 8 U.S.C. §§ 1357 and 1373, he rejected arguments in favor of preemption similar to those raised in this case and which the majority had accepted. Judge Bea wrote:
[T]his 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.
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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) . . . 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 detain certain illegal aliens. Id. § 1252c.
. . . .
I dissent from the majority’s determination that Section 2(B) of Arizona S.B. 1070 is preempted by federal law and 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.”
. . . .
. . . . 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
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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”) 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. Indeed, as established by 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 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 locality shall be required to enter into such an agreement with the Attorney General. Finally, § 1357(g)(10) explains what happens if no such
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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 . . . . 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.
. . . .
To determine Congress’s intent, we must attempt to read and interpret Congress’s statutes on similar topics together. . . . In light of this, I submit that a more natural reading of § 1357(g)(10), together with § 1373(c), leads to a conclusion 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.
. . . .
I agree with the majority that “we must determine how the many provisions of [the] vastly complex [INA] function together.” Maj. Op. at 351. 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 351. 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 information 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
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Congress enacted was “When the state and local officers ask, give them the information.”
. . . .
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 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
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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, 126 S. Ct. 2405, 165 L.Ed.2d 345 (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).
. . . .
The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE's “priorities and strategies.” . . . 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, 110 S.Ct. 1986, 109 L.Ed.2d 420 (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 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.
641 F.3d at 369-80 (footnotes omitted; italic emphasis in original; bold emphasis added).
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This court agrees with the above-quoted analyses of Congressional intent as expressed in 8 U.S.C. §§ 1357 and 1373(c). As it did in the Arizona case, the United States argues that federal law preempts Section 12 because, while Section 1357(g) authorizes states to assist in enforcement of federal immigration law, Section 1357(g) only provides such authorization when state officials execute immigration duties under the close supervision and direction of the Attorney General. (Doc. 2 at 60-62.) The United States argues that the verification scheme in H.B. 56 § 12(a) eliminates the supervision and direction of the Attorney General required for the state’s involvement in enforcement of federal immigration law. However, under Section 1357(g)(10), local law enforcement may cooperate with the Attorney General in identifying immigration status of individuals, and otherwise cooperate in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” The plain language of this subsection reveals that local officials have some inherent authority to assist in the enforcement of federal immigration law, so long as the local official “cooperates” with the federal government. H.B. 56 § 12 reflects an intent to cooperate with the federal government, in that all final determinations as to immigration status are made by the federal government, § (a), unlawful presence is defined by federal law, id. (e), and state law enforcement will only transfer illegal aliens to the federal government’s custody at the federal government’s request. Id.
Under Section 12, Alabama law enforcement officers are instructed under certain circumstances to communicate with the federal government regarding the immigration and
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citizenship status of certain individuals who are stopped, detained, or arrested. The statute does not require the federal government to act upon this information; therefore, the federal government still retains discretion as to whether it wishes to pursue those found to be unlawfully present.
The United States also argues that the mandatory verification scheme of Section 12 imposes “substantial burdens on lawful immigrants in a way that conflicts with the INA’s provision of nationally uniform rules governing the treatment and registration of aliens throughout the country” and that has been held preempted by Hines. (Doc. 2 at 72.) Even if states are not required to make immigration status requests under §§ 1357 or 1373, they have the option to do so and to require their local officials to do the same. See Whiting, 131 S. Ct. at 1986. Unlike Hines, where the Court found the Pennsylvania Statute to be inconsistent with the purposes of Congress, this court finds Section 12(a) is consistent with the purposes of Congress, as discussed at length in Judge Bea’s concurring and dissenting opinion. The court is not persuaded that H.B. 56 § 12 must be preempted because it will result in “substantial burdens on lawful immigrants,” as discussed in Hines.
Finally, the United States argues that Section 12 is preempted by foreign policy goals. However, for the reasons set forth above, the court finds the United States has not submitted sufficient evidence that Section 12 conflicts with federally-established foreign policy goals.
For the foregoing reasons, the court concludes that the United States is not likely to succeed on its claim that H.B. 56 § 12 conflicts with Congressional intent as expressed in the
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provisions of the INA. Therefore, its Motion for Preliminary Injunction as to Section 12 will
be denied.
E. SECTION 13
Section 13(a) provides:
(a) It shall be unlawful for a person to do any of the following: (1) Conceal, harbor, or shield or attempt to conceal, harbor, or shield or conspire to conceal, harbor, or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law.
(2) Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in the United States is or will be in violation of federal law.
(3) Transport, or attempt to transport, or conspire to transport in this state an alien in furtherance of the unlawful presence of the alien in the United States, knowingly, or in reckless disregard of the fact, that the alien has come to, entered, or remained in the United States in violation of federal law. Conspiracy to be so transported shall be a violation of this subdivision.
(4) Harbor an alien unlawfully present in the United States by entering into a rental agreement, as defined by Section 35-9A-141 of the Code of Alabama 1975, with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.
H.B. 56 § 13(a). “Any person” who violates Section 13(a) is “guilty of a Class A
misdemeanor for each unlawfully present alien, the illegal presence of which in the United
States and the State of Alabama, he or she is facilitating or attempting to facilitate.” Id. (b).
“A person” who violates Section 13 is “guilty of a Class C felony when the violation involves
10 or more aliens, the illegal presence of which in the United States and the State of
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Alabama, he or she is facilitating or attempting to facilitate.” Id. (c). “Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation” of Section 13(a), “and the gross proceeds of such a violation,” are “subject to civil forfeiture under the procedures of Section 20-2-93 of the Code of Alabama 1975.” Id. (f). “Any person acting in his or her official capacity as a first responder or protective services provider” may “harbor, shelter, move, or transport an alien unlawfully present in the United States pursuant to state law.” Id. (e). For purposes of Section 13, “an alien’s immigration status shall be determined by verification of the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c).” Id. (g).
The United States argues that Section 13 is an impermissible regulation of immigration, and that it “violate[s] the dormant Commerce Clause,” (Doc. 2 at 43-45, 46.) It also argues that Section 13 is conflict preempted because it “undermine[s] the purposes and objectives of Congress.” (Doc. 81 at 15.) The court will address each argument in turn.
1. Preemption As the Supreme Court has 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. (citation omitted). The second is that a presumption against preemption applies when “Congress has legislated . . . in a field which the States have traditionally occupied.” Id. (citation omitted). Because the states have not traditionally
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occupied the field in the areas covered by Section 13, no presumption against preemption applies.
a. Regulation of Immigration The United States argues that Section 13 is “ preempted because, by criminalizing the transportation, harboring, and concealment of unlawfully present aliens, the State is improperly imposing its own substantive regulation over facets of alien entry into the United States.” (Doc. 2 at 45.) As noted above, in DeCanas the Court recognized that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas, 424 U.S. at 354. At the same time, however, the Court noted that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” Id. at 355. According to the Court, “standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration.” Id. It explained that a regulation of immigration “is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id.; see also Fiallo v. Bell, 430 U.S. 787, 796 (1977) (internal quotation marks and citations omitted) (“The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.”).
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In Arizona, the United States challenged Section 5 of the Arizona Act “which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona.” Arizona, 703 F. Supp. 2d at 1002 (citing A.R.S. § 13-2929(A)(1)-(3)). In order to violate Section 5, “a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.” Id. The United States, as it does here with regard to Section 13 of H.B. 56, had argued that Section 5 of the Arizona Act was an impermissible regulation of immigration because it “attempt[s] to regulate entry into the nation – a definitively federal area of concern in which state regulations are barred by the U.S. Constitution.” Id. The district court rejected the United States’s argument, reasoning that Section 5 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States.” Id. at 1003 (citing DeCanas, 424 U.S. at 355). On that basis, the court concluded that the United States was not likely to succeed on its claim that Section 5 was an impermissible regulation of immigration. Id.
The court finds the Arizona district court’s preemption analysis regarding Section 5 to be persuasive. Section 13 of H.B. 56, like Section 5 of the Arizona Act is not an impermissible regulation of immigration. Section 13 does not attempt to regulate “who
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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. Therefore, the United States is not likely to succeed on its claim that H.B. 56 § 13 is preempted because it infringes on Congress’s exclusive authority to regulate alien entry.
b. Conflict Preemption The United States also argues Section 13 impermissibly conflicts with the operation of federal immigration law. (Doc. 81 at 13.) Congress has provided a uniform, comprehensive scheme of sanctions for those who unlawfully enter the United States. See, e.g., 8 U.S.C. § 1325 (penalizing persons for illegal entry into the United States, marriage fraud, and immigration-related entrepreneurship fraud). Congress has enacted a detailed sanctions scheme for third parties who aid the entry and stay of those who unlawfully enter. 8 U.S.C. § 1323 (penalizing persons for unlawfully bringing aliens into the United States); 8 U.S.C. § 1324 (penalizing persons for bringing in or harboring aliens); 8 U.S.C. § 1327 (penalizing persons who assist certain inadmissible aliens to enter the country); 8 U.S.C. § 1328 (penalizing the importation of aliens for immoral purposes). The federal scheme also creates a narrow exemption for “a religious denomination having a bona fide nonprofit, religious organization in the United States.” 8 U.S.C. § 1324(a)(1)(C). The State Defendants argue that Section 13 is not preempted because its provisions constitute “perfect concurrent enforcement against the same criminal activity that is already prohibited by federal law.” (Doc. 38 at 75.) They maintain that the language in Section
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13(a)(1)-(3) is “taken directly from 8 U.S.C. § 1324(a)(1)(A)(ii)-(iv),” and that it is a “mirror image of the equivalent provisions of 8 U.S.C. § 1324(a)(1)(A).” (Doc. 38 at 75.) They cite several cases, including Whiting; Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999); Arizona Contractors Ass’n., Inc. v. Napolitano, Nos. CV07-1355-PHX-NVW, CV07-1684PHX-NVW, 2007 WL 4570303, *13-14 (D. Ariz. Dec. 21, 2007) (unpublished), and Gray v. City of Valley Park, Mo., No. 4:07CV00881 ERW, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008) (unpublished), for the proposition that “[s]tates are not preempted in the immigration arena when they prohibit the same activity that is already prohibited by federal law.” (Doc. 38 at 76-83.) However, none of these cases support the State Defendants’ authority to enact the specific harboring and transportation scheme of Section 13. Although Section 13 purports to regulate the same conduct covered by 8 U.S.C. § 1324, its language actually prohibits conduct allowed under federal law and criminalizes conduct that is lawful under federal law.
In Whiting, the Court found that “Congress expressly preserved the ability of the States to impose their own sanctions through licensing,” and it noted that such preservation “necessarily entail[ed] the prospect of some departure from homogeneity.” Whiting, 131 S. Ct. at 1979-80; see also Arizona Contractors Ass’n., 2007 WL 4570303 at *13-14. Likewise, Gray concerned the authority of the states to impose additional sanctions on employers through licensing laws, an authority expressly preserved to states by Congress. 2008 WL
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294294 at *19. The court in Gray, as the State Defendants do here, cited Gonzales for the proposition that “generally, a state has concurrent jurisdiction with the federal government to enforce federal laws.” Id. (citing Gonzales, 722 F.2d at 474). In Gonzales, the Ninth Circuit, construing Congress’s intent with respect to 8 U.S.C. §§ 1324, 1325, and 1326, had held that “federal law does not preclude local enforcement of the criminal provisions of the [INA].” Gonzales, 722 F.2d at 475. The court found the legislative history of 8 U.S.C. § 1324(c), which allows “officers whose duty it is to enforce criminal laws” to make arrests for violations of 8 U.S.C. § 1324, supported a finding “that federal law does not preclude enforcement of the criminal provisions of the [INA].” Id.
Unlike Whiting, Arizona Contractors Ass’n., Inc., and Gray, which all concerned the authority of the states to act in areas where Congress specifically has preserved such authority, Congress has not preserved the authority of any state to regulate alien harboring and transportation in the manner provided in H.B. 56 § 13. The justification for a departure from homogeneity with federal law in the cases cited by the State Defendants – the specific preservation of state authority to act – is absent in this case. In addition, Section 13 is not a “mirror image” of federal law as the State Defendants claim. It does not represent “a situation where [Alabama] . . . is aiding in the enforcement of federal immigration law based on federal standards through the means set forth by federal law; rather, [Alabama] . . . is attempting to enforce its own scheme ” and impose penalties and burdens on aliens and
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citizens that conflict with the purposes and objectives of Congress. See Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010).
H.B. 56 § 13 seeks to regulate the same subject matter covered by 8 U.S.C. § 1324; however, in doing so, it criminalizes conduct specifically allowed under federal law. Congress, through 8 U.S.C. § 1324(a)(1)(C), provided that “[e]xcept where a person encourages or induces an alien to come to or enter the United States,” “a religious denomination having a bona fide nonprofit, religious organization in the United States . . . [may] invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, . . . provided the minister or missionary has been a member of the denomination for at least one year.” 8 U.S.C. § 1324(a)(1)(C). Section 13, in contrast, only creates exemptions for first responders and protective service providers. H.B. 56 §13(e). Therefore, H.B. 56 § 13 “impose[s] prohibitions or obligations which are in direct contradiction to Congress’ primary objectives, as conveyed with clarity in the federal legislation.” Gade, 505 U.S. at 110, 112 (Kennedy, J., concurring).
Furthermore, Section 13, in addition to criminalizing conduct specifically authorized by federal law, creates new regulations for conduct not prohibited by federal law. These regulations, which have no parallel counterpart in the federal scheme, impose burdens on aliens not contemplated by Congress. In Georgia Latino Alliance for Human Rights v. Deal,
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2011 WL 2520752 (N.D. Ga. 2011) (hereinafter “GLAHR”), various nonprofit organizations,
business associations, and individuals challenged several provisions of Georgia’s Illegal
Immigration Reform and Enforcement Act of 2011 (the “Georgia Act”). Section 7 of the
Georgia Act was challenged as unconstitutional under the Supremacy Clause. GLAHR, 2011
WL 2520752 at *11. Section 7 created three state criminal violations:
(1) transporting or moving an illegal alien in a motor vehicle, O.C.G.A. 16-11200(b); (2) concealing, harboring or shielding an illegal alien from detection, O.C.G.A. § 16-11-201(b); and (3) inducing, enticing, or assisting an illegal alien to enter Georgia, O.C.G.A. § 16-11-202(b). All three crimes require knowledge that the person being transported, harbored, or enticed is an illegal alien. Also, all three sections require that the defendant be engaged in another criminal offense.
GLAHR, 2011 WL 2520752 at *11. The defendants argued that Section 7 “simply reinforces
§ 1324’s parallel provisions.” Id. at *13. The district court disagreed; it held:
Despite superficial similarities, however, Section 7 is not identical to § 1324. See Whiting, 131 S. Ct. at 1982 (noting that state law traces federal law). For example, O.C.G.A. § 16-11-202 prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia. Section 1324’s corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” 8 U.S.C. § 1324. Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state.
Similarly, O.C.G.A. § 16-11-201 defines “harboring” as “any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law,” subject to several exceptions. Under § 1324, federal courts have also discussed the bounds of “harboring,” developing a significantly different definition. See Hall v. Thomas, 753 F. Supp. 2d 1113, 1158 (N.D. Ala. 2010)(“The plain language reading of ‘harbor’ to require provision of shelter or refuge, or the taking of active steps to prevent authorities from discovering that the employee is unauthorized or illegally remaining in the country, should control.”); United States v. Kim, 193 F.3d
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567, 573-74 (2d Cir. 1999)(harboring defined as “conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”); Edwards v. Prime, Inc., 602 F.3d 1276, 1298-99 (11th Cir. 2010)(discussing whether hiring illegal alien constituted harboring under § 1324). . . .
Still, the Defendants contend that HB 87 does not create new crimes, but rather “creates a mechanism by which [immigration crimes] could be prosecuted at a local level.” (Defs.’ Br. in Opp’n to Pls.’ Mot. for Prelim. Injunction, at 17.) No doubt the Defendants believe such a mechanism is necessary. Indeed, the Defendants assert that “every day that passes with passive enforcement of the federal law is a day that drains the state coffers.” (Id. at 14.) In response to this concern, Section 7 creates a state system for prosecuting and interpreting immigration law, just as Section 8 creates a state system for policing civil immigration offenses. Under Section 7, state agents will exercise prosecutorial discretion. Decisions about when to charge a person or what penalty to seek for illegal immigration will no longer be under the control of the federal government. Similarly, Georgia judges will interpret Section 7’s provisions, unconstrained by the line of federal precedent mentioned above. Thus, although Section 7 appears superficially similar to § 1324, state prosecutorial discretion and judicial interpretation will undermine federal authority “to establish immigration enforcement priorities and strategies.” United States v. Arizona, 641 F.3d at 352.
. . . .
Further, whereas the Arizona statute in Whiting imposed licensing laws specifically authorized by a statutory savings clause, HB 87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation. See Whiting, 131 S.Ct. at 1981 (noting that Congress “specifically preserved” states’ authority to enact licensing laws). Finally, unlike in DeCanas and Whiting, HB 87 does not address an area traditionally subject to state regulation. See Whiting, 131 S.Ct. at 1971; DeCanas, 424 U.S. at 356 (“[T]o prohibit the knowing employment by California employers of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of such police power regulation.”). Rather, unlike concurrent state and federal regulations in other areas, the movement of unauthorized aliens is not a traditional area of state regulation. Thus, “[a]ny concurrent state power that may exist is
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restricted to the narrowest of limits; the state's power here is not bottomed on the same broad base as is its power to tax.” Id. at 68. GLAHR, 2011 WL 2520752 at *13-14 (parallel citations omitted). The court finds the GLAHR decision with respect to Section 7 of the Georgia Act persuasive. First, H.B. 56 § 13(a)(2), in a manner similar to Section 7 of the Georgia Act, prohibits encouraging or inducing aliens to enter Alabama, while 8 U.S.C. 1324(a)(1)(A)(iv)’s corresponding provision only prohibits inducing an alien to “come to, enter, or reside in the United States.” “Once in the United States, it is not a federal crime to induce an illegal alien to enter [Alabama] from another state.” GLAHR, 2011 WL 2520752 at *13. Second, Section 13(a)(3) permits Alabama to criminally punish an unlawfullypresent alien for furthering his or her own unlawful presence by providing that “[c]onspiracy to be so transported shall be a violation” of Section 13(a)(3). By contrast, the corresponding federal provision in 8 U.S.C. § 1324(a)(1)(A)(ii) has no such “[c]onspiracy” provision and does not extend to the smuggled or transported alien. See United States v. HernandezRodriguez, 975 F.2d 622, 626 (9th Cir. 1992)(recognizing that unlawfully-present aliens who are transported “are not criminally responsible for smuggling under 8 U.S.C. § 1324”). Third, Section 13(a)(4) reaches beyond the provisions of the Georgia harboring law by criminalizing the “entering into a rental agreement, as defined by Section 35-9A-141 of the Code of Alabama 1975, with an alien to provide accommodations.” H.B. 56 § 13(a)(4). By
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contrast, nothing in 8 U.S.C. § 1324 or any other federal immigration law criminalizes such
rental agreements.14
The State Defendants contend that Section 13(a)(4) “prohibits a type of ‘harboring’
that is equally prohibited by federal law.” (Doc. 69 at 45 [citing 8 U.S.C. §
1324(a)(1)(A)(iii)].) Neither Congress nor the Supreme Court has defined the term
“harboring.” However, the Circuit Courts of Appeal have consistently defined “harboring”
as facilitating the alien remaining unlawfully in the United States. See, e.g., United States
v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)(holding that harboring “encompasses conduct
tending substantially to facilitate an alien’s remaining in the United States illegally and to
prevent government authorities from detecting his unlawful presence.”); United States v.
Cantu, 557 F.2d 1173 (5th Cir. 1977).15 In Cantu, the former Fifth Circuit held that Section
1324 prohibits conduct “tending substantially to facilitate an alien’s remaining in the United
States illegally.” Cantu, 557 F.2d at 1180 (citation omitted). It does not appear the Eleventh
14 Indeed, federal law and regulations explicitly or implicitly permit landlords to provide housing and other services to unlawfully present aliens. See, e.g., 42 U.S.C. §§ 10401-10500 (providing federal funding to assist the states in providing domestic violence victims “shelter” without any restrictions on immigration status and defining “shelter” as “the provision of temporary refuge and supportive services in compliance with applicable state law (including regulation) governing the provision, on a regular basis, of shelter, safe homes, meals, and supportive services to victims of family violence, domestic violence, or dating violence, and their dependents”); 24 C.F.R. § 5.508(e) (providing that households in which some, but not all, family members establish eligible immigration status may nonetheless receive federal housing assistance).
15 In Bonner v. Prichard, the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit announced prior to October 1, 1981. See 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc).
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Circuit has altered this standard in the years following Cantu. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir. 2010); Zheng, 306 F.3d at 1086 (referring to harboring in the general sense of facilitating an alien’s presence in the United States). Therefore, the court will follow Cantu.
Under the standard articulated in Cantu, no Fifth Circuit or Eleventh Circuit case has held that the mere provision of rental housing to someone he knew or had reason to know was an unlawfully-present alien constitutes “substantial facilitation,” of the alien remaining in the United States and this court declines to so hold. The State Defendants cite a list of cases to show that the act of providing housing to unlawfully present aliens constitutes harboring under federal law. (See doc. 38 at 80-82.) However, none of these cases supports a finding that providing rental housing to unlawfully present aliens, without more, constitutes harboring within the meaning of 8 U.S.C. § 1324. For instance, the State Defendants cite, inter alia, United States v. Tipton, 518 F.3d 591 (8th Cir. 2008), Zheng, 306 F.2d 1080, and United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981), to show that H.B. 56 is no more restrictive than federal law. These cases, however, involved more than the mere provision of rental housing. See Tipton, 518 F.3d at 595 (finding employer violated 8 U.S.C. § 1324(a)(1)(A)(iii) where it employed and housed six unauthorized alien employees, provided them with transportation and money to purchase necessities, and maintained counterfeit immigration papers for them); Zheng, 306 F.3d at 1086 (finding defendants “harbored the illegal aliens by providing both housing and employment”) (emphasis added); Varkonyi, 645
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F.2d at 459 (finding a violation of Section 1324’s harboring provision where the defendant provided both employment and lodging to illegal aliens and forcibly interfered with INS agents to prevent the aliens’ apprehension). While the act of providing housing to unlawfully present aliens may be significant evidence that the provider has “harbored” an illegal alien in violation of §1324(a)(1)(A)(iii), that evidence, without more, is not sufficient to constitute “substantial facilitation,” of the alien’s unlawful presence to support a conviction. cf. Hall v. Thomas, 753 F. Supp. 2d 1113, 1160 (N.D. Ala. 2010). As the United States correctly points out, “if the federal anti-harboring provisions ‘already prohibited’ all renting to unlawfully present aliens, Section 13(a)(4) would not prohibit anything beyond what Sections 13(a)(1)-(3) already prohibit, and would have been unnecessary to enact.”16 (Doc. 81 at 16 n.9.)
In sum, H.B. 56 § 13 is preempted because it prohibits conduct specifically authorized under the federal harboring and transportation scheme, creates “additional” regulations for conduct not prohibited by the federal harboring and transportation scheme, “inconsistently with the purpose of Congress,” Hines, 312 U.S. at 66, and allows the Alabama courts to interpret an Alabama-specific transportation and harboring scheme
16 The court does not agree with the United States’s assertion that “[b]ecause Section 13(a)(4) purports to reach every housing rental agreement involving unlawfully present aliens, Alabama impermissibly seeks to decide who may reside within its borders.” (Doc. 81 at 18.) H.B. 56 § 13(a)(4) does not seek to decide which aliens may live in the United States. Instead, it provides criminal penalties for landlords who provide rental housing under certain circumstances. The distinction, though subtle, is an important distinction nonetheless.
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“unconstrained by the line of federal precedent” interpreting the federal harboring and transportation scheme. GLAHR, 2011 WL 2520752 at *13. H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U.S. at 67. Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” (Doc. 2 at 45-46.) Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.
For the reasons set forth above with regard to Section 11(a), the court finds the United States will suffer irreparable harm if Section 13 is not enjoined during the pendency of this action. Also, the court finds the balance of equities and the public’s interest support granting the United States’s Motion for Preliminary Injunction.
Based on the foregoing, the United States’s Motion for Preliminary Injunction will be granted as to Section 13.
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2. Dormant Commerce Clause The United States also argues that Subsections 13(a)(1)-(3) of H.B. 56 “violate the
dormant Commerce Clause.” (Doc. 2 at 46.) The Commerce Clause vests Congress with
the power to “regulate Commerce . . . among the several States.” U.S. CONST. art I, § 8, cl.
3. The Supreme Court has interpreted the Commerce Clause “to have a ‘negative’ aspect,”
Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98 (1994), which is often
referred to as the “dormant Commerce Clause.” United Haulers Ass’n v. Oneida-Herkimer
Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). The dormant Commerce Clause
“prohibits states from enacting statutes that impose ‘substantial burdens’ on interstate
commerce.” Locke v. Shore, 634 F.3d 1185, 1192 (11th Cir. 2011)(citing Dennis v. Higgins,
498 U.S. 439, 447 (1991)). A review of a state statute under the dormant Commerce Clause:
involves two levels of analysis. Bainbridge v. Turner, 311 F.3d 1104, 1108-09 (11th Cir. 2002). We first must determine whether the state law discriminates against out-of-state residents on its face. Id. Laws that facially discriminate against out-of-state residents are analyzed under heightened scrutiny and are rarely upheld. Id. (citing Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578–79 (1986)). Second, state laws that do not facially discriminate against out-of-state residents are struck down only if “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Bainbridge, 311 F.3d at 1109.
Locke, 634 F.3d at 1192 (parallel citations omitted).
The United States argues that Section 13 violates the dormant commerce clause by
“restrict[ing] the movement of people between states.” (Doc. 2 at 46.) The United States
has not established that Section 13 discriminates against out-of-state residents on its face.
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Nor has it established that any burden imposed on interstate commerce “is clearly excessive
in relation to the putative local benefits,” argued by the State Defendants. (See doc. 89 at
44.) Therefore, the United States is not likely to succeed on its claim that Section 13
violates the dormant Commerce Clause. However, as noted, Section 13 is due to be
enjoined because it is preempted under federal law.
F. SECTION 16 Section 16 provides:
(a) No wage, compensation, whether in money or in kind or in services, or remuneration of any kind for the performance of services paid to an unauthorized alien shall be allowed as a deductible business expense for any state income or business tax purposes in this state. This subsection shall apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration.
(b) Any business entity or employer who knowingly fails to comply with the requirements of this section shall be liable for a penalty equal to 10 times the business expense deduction claimed in violation of subsection (a). The penalty provided in this subsection shall be payable to the Alabama Department of Revenue.
H.B. 56, § 16.
The United States contends Section 16 is expressly preempted by 8 U.S.C. §
1324a(h)(2), which states, “The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing and similar laws) upon
those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” (Doc.
2 at 36-38 [citing 8 U.S.C. § 1324a(h)(2)].) The Supreme Court has held, “IRCA expressly
preempts States from imposing ‘civil or criminal sanctions’ on those who employ
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unauthorized aliens, ‘other than through licensing and similar laws.’” Whiting, 131 S. Ct. at 1977 (quoting 8 U.S.C. § 1324a(h)(2)).
In Whiting, the Supreme Court noted: IRCA . . . restricts the ability of States to combat employment of
unauthorized workers. The Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” § 1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in De Canas are now expressly preempted. Id. at 1975. Section 16 is not a licensing law; therefore, if Section 16 sanctions “those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” it is expressly preempted by § 1324a(h)(2). The State Defendants argue that Section 16(a) is not a sanction because it is merely Alabama’s “definition of what expenses may be deducted” under Alabama’s tax code. (Doc. 69 at 78.) To be sure, “[t]he ‘creation of a tax deduction is an exercise of legislative grace under which no substantive rights may vest.’” (Id. [quoting Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1085 (11th Cir. 2004)].) However, such “legislative grace” – in the face of § 1324a(h)(2) – does not allow Alabama to deny an employer a tax deduction to which it otherwise qualifies on the basis of the immigration status of its employee. The State Defendants argue, by analogy, “If the United States’ reasoning [that denial of the deduction is a sanction on employers of unauthorized aliens] [is] correct, then any federal taxpayer who owns a home free and clear, or who lives in an apartment, is being ‘sanctioned’ by the
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Internal Revenue Code because he or she is not eligible for the home-mortgage deduction.” (Id. at 78-79.) However, using the State Defendant’s analogy, Section 16 is more akin to the denial of a home-mortgage deduction to someone who actually pays a home mortgage than to the denial of the same deduction to someone who does not have the expense of a home mortgage.
Section 16(a) denies an employer a tax deduction for “wage[s], compensation, whether in money or in kind or in services, or remuneration of any kind for the performance of services” based on the immigration status of the employee, a deduction to which the employer would be eligible but for the immigration status of its employee. In the opinion of the court, denying a tax deduction to which the employer is otherwise eligible based on the immigration status of an employee fits within the meaning of a “sanction” against an employer of an unauthorized alien found in 8 U.S.C. § 1324a(h)(2).
The Supreme Court has held that “the meaning of ‘sanction’ is spacious enough to cover not only what we have called punitive fines, but coercive ones as well.” United States Dept. of Energy v. Ohio, 503 U.S. 607, 621-22 (1992). Indeed, the House Report on Section 1324a(h)(2) stated,
[t]he penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral or undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws,
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which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.
Lozano, 620 F.3d at 208 n.29 (quoting H.R. Rep. No. 99–682(I), at 12, 1986 U.S.C.C.A.N.
5649, 5662)(original emphasis omitted; emphasis added). The Tenth Circuit, interpreting
“sanction” as used in Section 1324a(h)(2), stated:
IRCA does not define “sanction,” but by its ordinary meaning, a sanction is “a restrictive measure used to punish a specific action or to prevent some future activity.” Webster’s Third New Int’l Dictionary 2009 (1993). Moreover, the statutory context does not evince an intent to narrowly define “sanction” as requiring a punitive component. Title 8, Section 1324a(e)(4)(A) outlines a series of “penalties” for employers hiring unauthorized aliens, ranging from $250 to $10,000. Penalties are ordinarily understood as serving punitive purposes. Yet, in § 1324a(h)(2) Congress used the term “sanctions” rather than “penalty” as it did in § 1324a(e)(4)(A). Had Congress intended to preempt only those state laws that are punitive, we would have expected it to use “penalties” in § 1324a(h)(2). Had it used “sanctions” in § 1324a(e)(4), we might reach a similar conclusion. It did neither.
Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 765 (10th Cir.
2010)(emphasis added). By enacting Section 1324a(h)(2), Congress preempted state and
local governments from using any “sanctions” – other than licensing or similar laws – to
affect an employer’s future behavior with regard to the employment of unauthorized aliens.
By denying a tax deduction to an employer for the wages paid to an unauthorized
alien – a tax deduction to which the employer is entitled for wages paid to all other
employees – Alabama has sanctioned that employer for employing the unauthorized alien.
This sanction, set forth in Section 16(a) of H.B. 56, is not in the nature of a licensing law;
therefore, Section 16(a) is expressly preempted by federal law. See 8 U.S.C. § 1324a(h)(2).
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Because the court finds Section 16(a) is a “sanction” against employing an unauthorized alien expressly preempted by Section 1324a(h)(2), the court has no need to discuss separately Section 16(b), which imposes a tax penalty “equal to 10 times the business expense deduction claimed in violation of subsection (a).”
The court finds the United States has established a likelihood of success on its claim that Section 16 is expressly preempted by federal law. Also, for the reasons set forth above with regard to Section 11(a), the court finds the United States will suffer irreparable harm if Section 16 is not enjoined during the pendency of this action. The court further finds the balance of equities and the public’s interest support granting the United States’s Motion for Preliminary Injunction.
Based on the foregoing, the United States’s Motion for Preliminary Injunction will be granted as to Section 16. G. SECTION 17
Section 17 of H.B. 56 provides: (a) It shall be a discriminatory practice for a business entity or
employer to fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) or discharge an employee working in Alabama who is a United States citizen or an alien who is authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien.
(b) A violation of subsection (a) may be the basis of a civil action in the state courts of this state. Any recovery under this subsection shall be
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limited to compensatory relief and shall not include any civil or criminal sanctions against the employer.
(c) The losing party in any civil action shall pay the court costs and reasonable attorneys fees for the prevailing party; however, the losing party shall only pay the attorneys fees of the prevailing party up to the amount paid by the losing party for his or her own attorneys fees.
(d) The amount of the attorneys fees spent by each party shall be reported to the court before the verdict is rendered.17
(e) In proceedings of the court, the determination of whether an employee is an unauthorized alien shall be made by the federal government, pursuant to 8 U.S.C. § 1373(c). The court shall consider only the federal government’s determination when deciding whether an employee is an unauthorized alien. The court may take judicial notice of any verification of an individual’s immigration status previously provided by the federal government and may request the federal government to provide further automated or testimonial verification.
H.B. 56 § 17 (footnote added).
Section 17(b) creates a cause of action in favor of a United States citizen or a
lawfully-present alien against a business entity or employer. This cause of action arises
when a business entity/employer fails to hire or terminates the citizen or authorized alien at
a time when it has an employee that it knows or should know is unlawfully present
according to federal law, irrespective of considerations such as cause for the termination or
qualification for the position. H.B. 56 § 17(a). Damages for a violation of Section 17(a)
are limited to compensatory damages and costs, including attorneys’ fees. Id. (b), (c).
17The court notes that discrimination cases in federal court are often taken by attorneys on a contingency-fee basis. Assuming the same holds true in cases filed under Section 17, most, if not all, plaintiffs will not have “spent” any money on attorneys’ fees before a verdict.
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The United States contends that Section 17 is expressly preempted by 8 U.S.C. § 1324a(h)(2). As set forth above, Section 1324a(h)(2) preempts any state or local law that “impos[es] 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.” The State Defendants argue that Section 17 is not preempted because (1) it is not a “sanction” as it imposes only compensatory damages to “victims of a newly[-]defined discriminatory practice” and “expressly disclaims an intent to punish or deter conduct,” (doc. 69 at 83), and (2) it “merely establish[es] a private right of action [and] does not guarantee success at litigation” by the suing employee, (id. at 84 [emphasis in original]).
As set forth above, a “sanction” under § 1324a(h)(2) includes all government penalties and coercive conduct designed to affect an employer’s behavior with regard to the employment of unauthorized aliens. Therefore, establishing a law that makes an employer liable to an unsuccessful applicant or terminated citizen/authorized alien based only on the employment of an unauthorized alien, despite Section 17’s disclaimer of any “intent to punish or deter conduct,” has the effect of creating a sanction based on the employment of an unauthorized alien.18
18The court notes that it is not required to assume that Section 17 is not a sanction merely because it says that any “recovery” does not include a sanction. See H.B. 56 § 17(b).
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In Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 766 (10th
Cir. 2010), the Tenth Circuit considered whether an Oklahoma statute, similar to H.B. 56
§ 17 was expressly preempted by Section 1324a(h)(2).
Section 7(C) of the [Oklahoma] Act made it a discriminatory practice for an employer to discharge an employee working in Oklahoma who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien.
Id. at 754. The Tenth Circuit found that “cease and desist orders, reinstatement, back pay,
costs, and attorneys’ fees” were “‘restrictive measures’ that fall within the meaning of
‘sanctions’ as used in § 1324a(h)(2).” Id. at 765. Moreover, the court held:
Additionally, we conclude that Section 7(C) sanctions are imposed “upon those who employ . . . unauthorized aliens,” 8 U.S.C. § 1324a(h)(2). An employer is subject to sanction under Section 7(C) if it terminates a legal worker while retaining a worker the employer knows, or should reasonably know, is an unauthorized alien. Okla. Stat. tit. 25, § 1313(C)(1). Sanctions are therefore contingent on the employment of an unauthorized alien. See id. We are not persuaded by Oklahoma’s contention that Section 7(C) merely creates a cause of action for the termination of legal residents. While that is a necessary prerequisite, an employer is subject to sanction only if the employer retains an unauthorized alien. Id. The [Plaintiffs] are thus likely to succeed on the merits of this portion of their express preemption claim.
Id. at 766. In a separate opinion concurring in the majority’s decision that Section 7(C) was
expressly preempted, Judge Hartz stated that he considered reinstatement, back pay, costs,
and attorney fees not to be civil sanctions within the meaning of Section 1324a(h)(2). Id.
at 777 (Hartz, J., concurring in part and dissenting in part). However, he considered Section
7(C) to be preempted by Section 1324a(h)(2) because other provisions of the Oklahoma law
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provided for “civil penalties” for “discriminatory practices.” Id. The court agrees with the reasoning of the majority of the Tenth Circuit, which held that neither the contingent nature of litigation nor the form of damages saved the Oklahoma statute from the express preemption of Section 1324a(h)(2).
Although this court believes that back pay and attorneys fees should be classified as “sanctions” despite their compensatory nature, this court finds Section 1324a(h)(2) is not limited to money “sanctions”. By creating a cause of action in favor of citizens and authorized aliens based solely on the hiring or retention of an unauthorized alien, Alabama has sanctioned the employment of an unauthorized alien beyond its licensing laws.
According to federal law, employment discrimination is typically divided into two categories: “Disparate-treatment,” which “occur[s] where an employer has treated a particular person less favorably than others because of a protected trait,” and “disparate impact,” which occurs where “an employer uses a particular employment practice that causes a disparate impact on the basis of [a protected trait].” Ricci v. DeStefano, 129 S. Ct. 2658, 2672-73 (2009) (internal quotations omitted). The Alabama Supreme Court has similarly described “discrimination.” Alabama Power Co. v. Aldridge, 854 So. 2d 554, 569 (Ala. 2002)(“The necessary element of discriminatory treatment in the context of claims alleging excessive monitoring is disparate treatment of wrongdoers, not merely getting caught doing wrong.”)(emphasis added); Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987)(Among the factors relevant to consideration of a Batson challenge include:
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“Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner;” and “Disparate examination of members of the venire”)(emphasis added); Ex parte Wooden, 670 So. 2d 892, 894 (Ala. 1995)(In certain contexts, at least, evidence of such a disparate impact on an ethnic group permits a strong inference of invidious discrimination.”)(emphasis added). In other words, to constitute “discrimination,” the decision being challenged must be based on a protected class or status as opposed to a decision on the merits.19
To create a cause of action in state courts for discrimination based, not on an employer’s purposeful disparate treatment based on a protected class, but on mere presence of a single unauthorized alien employee is to sanction employment of that unauthorized alien. However, what Alabama has called “discrimination” does not describe a decision by the employer based on immigration status – the targeted classification. Indeed, liability
19Black’s Law Dictionary defines “discrimination” as: 1. The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or disability. • Federal law, including Title VII of the Civil Rights Act, prohibits employment discrimination based on any one of those characteristics. Other federal statutes, supplemented by court decisions, prohibit discrimination in voting rights, housing, credit extension, public education, and access to public facilities. State laws provide further protections against discrimination. 2. Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored. BLACK’S LAW DICTIONARY 534 (9th ed. 2009).
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may be established pursuant to Section 17 if the plaintiff, the United States citizen or authorized alien, shows only (1) he or she was not hired or was fired for any reason, irrespective of qualifications, and (2) an unauthorized-alien employee was hired or retained.
For example, Alabama has determined that “[a]n individual shall be disqualified for total or partial unemployment . . . [i]f he was discharged or removed from his work for a dishonest or criminal act committed in connection with his work or for sabotage or an act endangering the safety of others or for the use of illegal drugs after previous warning or for the refusal to submit to or cooperate with a blood or urine test after previous warning.” ALA. CODE § 25-4-78(3)(a)(1975)(emphasis added). Under Section 17(a), an employer could be found liable for terminating a citizen or authorized alien for any of these reasons – if the employer has retained or hired an unauthorized alien. Also, an employer is liable for not hiring a citizen or authorized alien that lacks the required education, experience, or license for the position – if it has hired or retained an unauthorized alien. Therefore, the only basis for the employer’s liability in such situations is the employment of an unauthorized alien. Clearly such “liability” is a sanction for the employment of an unauthorized alien, rather than liability for a business decision based on consideration of a protected classification.
The court is not called upon to decide today whether Section 17 could evade preemption if it had created a cause of action designed to compensate qualified employees and applicants for discrimination based on their citizenship and/or authorized alien status. Federal employment discrimination laws allow an employer to choose any candidate or to
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prefer one employee over another as long as its decision is not based on “unlawful criteria,” such as a protected characteristic. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). And, the Supreme Court has found that “undocumented status” is not protected under the Equal Protection Clause. See Plyler, 457 U.S. at 220 (“Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action.”) It may be that such a statute would not be considered a “sanction” for the employment of an unauthorized alien. Nevertheless, the plain language of Section 17 creates employer liability based solely on hiring or retaining an unauthorized alien. This is a sanction expressly preempted by Section 1324a(h)(2).
Based on the foregoing the court finds the United States has established a likelihood of success on the merits of its challenge to Section 17 of H.B. 56. Also, for the reasons set forth above with regard to Section 11(a), the court finds the United States will suffer irreparable harm if Section 17 is not enjoined during the pendency of this action. The court further finds the balance of equities and the public’s interest support granting the United States’s Motion for Preliminary Injunction.
Based on the foregoing, the United States’s Motion for Preliminary Injunction will be granted as to Section 17.
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H. SECTION 18
Section 18 amends Section 32-6-9, Code of Alabama 1975, which requires drivers
of motor vehicles to have their drivers’ licenses in their possession at all times. Section 32-
6-9 currently states:
Every licensee shall have his or her license in his or her immediate possession at all times when driving a motor vehicle and shall display the same, upon demand of a judge of any court, a peace officer, or a state trooper. However, no person charged with violating this section shall be convicted if he or she produces in court or the office of the arresting officer a driver's license theretofore issued to him or her and valid at the time of his or her arrest.
Ala. Code § 32-6-9. Section 18 of H.B. 56 adds the following subsections to Section 32-6-9
of the Code of Alabama:
(b) Notwithstanding the provisions of Section 32-1-4,20 if a law officer arrests a person for a violation of this section and the officer is unable to determine by any other means that the person has a valid driver's license, the officer shall transport the person to the nearest or most accessible magistrate.
(c) A reasonable effort shall be made to determine the citizenship of the person and if an alien, whether the alien is lawfully present in the United States by verification with the federal government pursuant to 8 U.S.C. § 1373(c). An officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.
(d) A verification inquiry, pursuant to 8 U.S.C. § 1373(c), shall be made within 48 hours to the Law Enforcement Support Center of the United States Department of Homeland Security or other office or agency designated for that purpose by the federal government. If the
20 Ala. Code § 32-1-4 governs the right to hearings and court appearances for those arrested for a misdemeanor related to motor vehicles and traffic violations.
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person is determined to be an alien unlawfully present in the United States, the person shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities. H.B. 56 § 18 [footnote added]. The United States argues that Section 18 is preempted by federal law and represents “a systematic effort by Alabama to inject itself into the enforcement of the federal government’s own immigration laws in a manner that is non-cooperative with the Secretary,” and therefore is preempted. (Doc. 2 at 59 [emphasis added].) Relying on 8 U.S.C. § 1357(g)(10)(B), the United States makes the identical argument for preemption with regard to Section 18 that it does with regard to Section 12: “The INA requires that states or local officers ‘cooperate with’ the Secretary if they choose to assist federal officers in immigration enforcement, and states may not enact their own mandatory schemes for verifying immigration status or otherwise identifying unlawfully present aliens.” (Id. at 62.) Again, the United States relies on the language of 8 U.S.C. § 1357(g)(10)(B) for the proposition that mandatory verification is non-cooperative and thus impermissible under the INA. Identifying unlawfully present aliens is not “a field which the States have traditionally occupied.” Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted). Therefore, there is no presumption against preemption of Section 18. As the court noted in its discussion with regard to Section 12, nothing in the text of the INA expressly preempts states from legislating on the issue of verification of an individual’s
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citizenship and immigration status. And, as the State Defendants note, prior to the enactment of H.B. 56, federal law permitted state law enforcement officers to request information concerning “the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law” and the federal government is required to respond “by providing the requested verification or status information.” See 8 U.S.C. § 1373(c).
For the reasons discussed more fully with regard to Section 12, this court agrees with the State Defendants that the verification requirements of Ala. Code § 32-6-9(c), as amended by Section 18, do not stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Therefore, the court finds the United States has not shown a likelihood of success on its claim that Section 18 is impliedly preempted by federal law.
The United States’s Motion for Preliminary Injunction as to Section 18 will be denied. I. SECTION 27
Section 27 provides: (a) No court of this state shall enforce the terms of, or otherwise
regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.
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(b) This section shall not apply to a contract for lodging for one night, a contract for the purchase of food to be consumed by the alien, a contract for medical services, or a contract for transportation of the alien that is intended to facilitate the alien’s return to his or her country of origin.
(c) This section shall not apply to a contract authorized by federal law.
(d) In proceedings of the court, the determination of whether an alien is unlawfully present in the United States shall be made by the federal government, pursuant to 8 U.S.C. § 1373(c). The court shall consider only the federal government's determination when deciding whether an alien is unlawfully present in the United States. The court may take judicial notice of any verification of an individual’s immigration status previously provided by the federal government and may request the federal government to provide further automated or testimonial verification.
H.B. 56 § 27.
In essence, Section 27 strips an unlawfully-present alien of the capacity to contract
except in certain circumstances – i.e. the other party to the agreement did not know the alien
was unlawfully present and the contract could be performed in less than 24 hours. H.B. 56
§ 27(a). Section 27(b) excepts from the operation of subsection (a) certain contracts based
on the subject matter of the agreement – i.e. “lodging for one night, a contract for the
purchase of food to be consumed by the alien, a contract for medical services, or a contract
for transportation of the alien that is intended to facilitate the alien’s return to his or her
country of origin.” Capacity to contract is typically understood as established by state law.
See United States v. Yazell, 382 U.S. 341, 343, 352-53 (1966).
The United States argues that Section 27 is preempted by federal immigration laws
contending that “Alabama has impermissibly altered the conditions imposed by Congress
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upon admission, naturalization and residence of aliens in the United States or the several states.” (Doc. 2 at 51[emphasis in original; internal quotation and citation omitted].) As set forth above, federal immigration law has not occupied the entire field with regard to all laws touching immigrants. The United States argues that “there is no evidence that Congress intended as a categorical matter, unlawfully present aliens’ contracts to be unenforceable.” (Doc. 2 at 52.) However, this argument is inadequate to find implied preemption because nothing shows Congress intended that such contracts would be enforceable. Federal immigration law does not prohibit Alabama from passing a law regarding the enforceability of contracts involving aliens unlawfully present in the United States.
Therefore, the court finds that the United States has not established a likelihood of success on its claim that Section 27 is preempted by federal law. Its Motion for Preliminary Injunction will be denied as to Section 27. J. SECTION 28
Section 28 of H.B. 56 states: (a)(1) Every public elementary and secondary school in this state, at
the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.
(2) The public school, when making the determination required by subdivision (1), shall rely upon presentation of the student’s original birth certificate, or a certified copy thereof.
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(3) If, upon review of the student’s birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States, or where such certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the student’s enrollment of the actual citizenship or immigration status of the student under federal law.
(4) Notification shall consist of both of the following:
a. The presentation for inspection, to a school official designated for such purpose by the school district in which the child is enrolled, of official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student, or alternatively by submission of a notarized copy of such documentation to such official.
b. Attestation by the parent, guardian, or legal custodian, under penalty of perjury, that the document states the true identity of the child. If the student or his or her parent, guardian, or legal representative possesses no such documentation but nevertheless maintains that the student is either a United States citizen or an alien lawfully present in the United States, the parent, guardian, or legal representative of the student may sign a declaration so stating, under penalty of perjury.
(5) If no such documentation or declaration is presented, the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.
(b) Each school district in this state shall collect and compile data as required by this section.
(c) Each school district shall submit to the State Board of Education an annual report listing all data obtained pursuant to this section.
(d)(1) The State Board of Education shall compile and submit an annual public report to the Legislature.
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(2) The report shall provide data, aggregated by public school, regarding the numbers of United States citizens, of lawfully present aliens by immigration classification, and of aliens believed to be unlawfully present in the United States enrolled at all primary and secondary public schools in this state. The report shall also provide the number of students in each category participating in English as a Second Language Programs enrolled at such schools.
(3) The report shall analyze and identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States.
(4) The report shall analyze and itemize the fiscal costs to the state and political subdivisions thereof of providing educational instruction, computers, textbooks and other supplies, free or discounted school meals, and extracurricular activities to students who are aliens not lawfully present in the United States.
(5) The State Board of Education shall prepare and issue objective baseline criteria for identifying and assessing the other educational impacts on the quality of education provided to students who are citizens of the United States, due to the enrollment of aliens who are not lawfully present in the United states, [sic] in addition to the statistical data on citizenship and immigration status and English as a Second Language enrollment required by this act. The State Board of Education may contract with reputable scholars and research institutions to identify and validate such criteria. The State Board of Education shall assess such educational impacts and include such assessments in its reports to the Legislature.
(e) Public disclosure by any person of information obtained pursuant to this section which personally identifies any student shall be unlawful, except for purposes permitted pursuant to 8 U.S.C. §§ 1373 and 1644. Any person intending to make a public disclosure of information that is classified as confidential under this section, on the ground that such disclosure constitutes a use permitted by federal law, shall first apply to the Attorney General and receive a waiver of confidentiality from the requirements of this subsection.
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(f) A student whose personal identity has been negligently or intentionally disclosed in violation of this section shall be deemed to have suffered an invasion of the student’s right to privacy. The student shall have a civil remedy for such violation against the agency or person that has made the unauthorized disclosure.
(g) The State Board of Education shall construe all provisions of this section in conformity with federal law.
(h) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. H.B. 56 § 28. Section 28 requires all children enrolling in a public elementary or secondary school to provide their birth certificate to a school official. Id. (a)(1)-(2). According to subsection (a)(2) and (3), school officials must rely on the birth certificate to determine “whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Id. (a)(2)-(3). Information about the immigration status of a parent is not reflected on Alabama birth certificates. Alabama requires “date, time, and location of birth; name of child; sex; plurality and birth order if not single; mother’s information such as name, residence, and date and place of birth; father’s information as provided in Code of Ala. 1975, § 22-9A-7(f); attendant’s information; and information for legal purposes such as certificate number and date filed.” ALA. ADMIN. CODE r. 420-7-1-.03(2)(a)1 (2007); see also ALA. CODE § 22-9A7(f)(1975)(Information concerning the father in included on the birth certificate based on the mother’s marital status and whether paternity has been legally determined.). Other
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information about the parents, “such as race, ethnicity, and education,” is collected for “statistical research and public health purposes,” but such information is not included on the birth certificate. Ala. Admin. Code r. 420-7-1-.03(2)(a)2. Nothing in the record indicates that immigration status is reflected on the birth certificates from other states or countries. For purposes of determining the reach of H.B. 56 § 28, the court assumes that school officials will not seek to determine the immigration status of parents beyond examination of the child’s birth certificate (see Section 28(a)(2)), and that such information is not included on the birth certificate. Therefore, Section 28 does not compel school officials to determine the immigration status of a parent of a student.
If the birth certificate shows the child was “born outside the jurisdiction of the United States” or if the birth “certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the student’s enrollment of the actual citizenship or immigration status of the student under federal law.”21 H.B. 56 § 28(a)(3). This “notification” requires the person responsible for the child to “present[ ] for inspection . . . official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student,” and a declaration or affidavit swearing that the official documents “state[ ] the true identity of the child.” Id. (a)(4). If the parent or other person responsible for the child does not have documentation
21Although subsection (a)(1) refers to the immigration status of a student’s parents, subsection (a)(3) does not require notification or collection of information regarding a parent’s immigration status.
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establishing citizenship or lawful presence, he or she “may sign a declaration . . . stating” that the child is a citizen or is otherwise lawfully present. Id. (a)(4)(b). From this information, the school creates a report listing the number of students who are citizens, lawfully-present aliens and presumed unlawfully-present aliens.22 Id. (a)(5). The number of unlawfully-present alien children includes any student not submitting the required documentation. Id. (a)(5)(a). Section 28 states that it “shall be enforced without regard to . . . national origin.” Id. (h). The effect of Section 28 is that all children unable to present a birth certificate showing that he or she was born in the United States are presumed to be unlawfully present for reporting purposes unless and until he or she establishes citizenship or lawful presence. Therefore, for reporting purposes, it is possible that children will be presumed unlawfully-present aliens who are neither aliens nor unlawfully-present.
The United States argues that Section 28, which creates “mandatory data collection, classification, and reporting requirements,” is preempted as an “impermissibl[e] . . . registration scheme for children (and derivatively their parents) akin to the one the Supreme Court invalidated in Hines.” (Doc. 2 at 57-58.) The court disagrees. As the State Defendants argue, “Section 28 bears no resemblance to the Pennsylvania statute examined by the court in Hines, which required all aliens over the age of 18 – whether or not they
22Also, Sections 28(a)(1) and (d)(2) require schools to determine and report the number of students participating in English as a Second Language [ESL] Programs. This information is already collected and reported under federal law. See 20 U.S.C. § 6968. Plaintiffs do not challenge the collection and reporting of the number of ESL students, which, the court notes, is not synonymous with a student’s national origin.
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were legally in the United States–to, among other things, register annually and carry an alien registration card.” (Doc. 69 at 59 [citing Hines, 312 U.S. at 59-60].) They also contend that Section 28 is distinguishable from the state registration scheme in Hines because Section 28 does not impose a penalty. (Id.)
As noted above, in Hines, the Supreme Court considered whether the federal Alien Registration Act, the precursor to the INA, preempted the Alien Registration Act adopted by the Commonwealth of Pennsylvania. Hines, 312 U.S. at 56. The subject of both the federal Act and the Pennsylvania Act was the registration of aliens as a distinct group. Id. at 61. The Court stated:
[W]here the federal government, in the exercise of its superior authority in . . . [the] field [of immigration], 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. Id. at 66-67 (emphasis added). On that basis, the Court found that its “primary function” was “to determine whether . . . Pennsylvania’s law . . . [stood] as on obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in enacting the federal Act. Id. at 66-67. Unlike the Pennsylvania Act in Hines, Section 28 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to those established by Congress in the INA. The standard for registration provided by Congress remains uniform. Section 28 is not preempted by federal
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law. Therefore, the United States has not shown a likelihood of success on its claim that
Section 28 is preempted by federal law.
Also, the United States argues that Section 28 is preempted by foreign policy goals.
However, for the reasons set forth above with regard to Section 10, the court finds the
United States has not submitted sufficient evidence that Section 28 conflicts with federally-
established foreign policy goals.
Based on the foregoing, the United States’s Motion for Preliminary Injunction will
be denied as to Section 28.
K. SECTION 30
Section 30 provides:
(a) For the purposes of this section, “business transaction” includes any transaction between a person and the state or a political subdivision of the state, including, but not limited to, applying for or renewing a motor vehicle license plate, applying for or renewing a driver’s license or nondriver identification card, or applying for or renewing a business license. “Business transaction” does not include applying for a marriage license.
(b) An alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state and no person shall enter into a business transaction or attempt to enter into a business transaction on behalf of an alien not lawfully present in the United States.
(c) Any person entering into a business transaction or attempting to enter into a business transaction with this state or a political subdivision of this state shall be required to demonstrate his or her United States citizenship, or if he or she is an alien, his or her lawful presence in the United States to the person conducting the business transaction on behalf of this state or a political subdivision of this state. United States citizenship shall be demonstrated by
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presentation of one of the documents listed in Section 29(k).23 An alien’s
23These documents are:
(1) The applicant's driver’s license or nondriver’s identification card issued by the division of motor vehicles or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant's driver’s license or nondriver’s identification card that the person has provided satisfactory proof of United States citizenship.
(2) The applicant’s birth certificate that verifies United States citizenship to the satisfaction of the county election officer or Secretary of State.
(3) Pertinent pages of the applicant’s United States valid or expired passport identifying the applicant and the applicant’s passport number, or presentation to the county election officer of the applicant’s United States passport.
(4) The applicant’s United States naturalization documents or the number of the certificate of naturalization. If only the number of the certificate of naturalization is provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States Bureau of Citizenship and Immigration Services by the county election officer or the Secretary of State, pursuant to 8 U.S.C. § 1373(c).
(5) Other documents or methods of proof of United States citizenship issued by the federal government pursuant to the Immigration and Nationality Act of 1952, and amendments thereto.
(6) The applicant’s Bureau of Indian Affairs card number, tribal treaty card number, or tribal enrollment number.
(7) The applicant’s consular report of birth abroad of a citizen of the United States of America.
(8) The applicant’s certificate of citizenship issued by the United States Citizenship and Immigration Services.
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lawful presence in the United States shall be demonstrated by this state’s or a political subdivision of this state’s verification of the alien’s lawful presence through the Systematic Alien Verification for Entitlements program operated by the Department of Homeland Security, or by other verification with the Department of Homeland Security pursuant to 8 U.S.C. § 1373(c).
(d) A violation of this section is a Class C felony.
(e) An 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 Constitution or the Constitution of Alabama of 1901.
(f) In the enforcement of this section, an alien’s immigration status shall be determined by verification of the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). An official of this state or political subdivision of this state shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.
H.B. 56 § 30 (footnote added).
(9) The applicant’s certification of report of birth issued by the United States Department of State.
(10) The applicant’s American Indian card, with KIC classification, issued by the United States Department of Homeland Security.
(11) The applicant’s final adoption decree showing the applicant’s name and United States birthplace.
(12) The applicant’s official United States military record of service showing the applicant’s place of birth in the United States.
(13) An extract from a United States hospital record of birth created at the time of the applicant’s birth indicating the applicant’s place of birth in the United States.
H.B. 56 § 29(k).
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Section 30 prohibits all “business transaction[s]” between an unlawfully-present alien and “the state or a political subdivision of the state.” H.B. 56, § 30(b). “‘It is well established by the decisions of [the Alabama Supreme Court] that a public corporation is a separate entity from the State and from any local political subdivision thereof, including a city or county.’” Limestone Cnty. Water and Sewer Auth. v. City of Athens, 896 So. 2d 531, 534 (Ala. Civ. App. 2004)(quoting Knight v. W. Ala. Envtl. Improvement Auth., 246 So. 2d 903, 905 (Ala. 1971)). “Business transaction” is not defined in Section 30 except to say that applying or renewing vehicle licenses, driver’s licenses, identification cards, and business licenses are “business transactions.” H.B. 56 § 30(a).
To be sure, use of the word “business” to modify “transactions” implies an intent to limit the “transactions” to those involving a commercial aspect.24 Indeed, Alabama has defined “business” within the business licensing statute as:
Any commercial or industrial activity or any enterprise, trade, profession, occupation, or livelihood, including the lease or rental of residential or nonresidential real estate, whether or not carried on for gain or profit, and whether or not engaged in as a principal or as an independent contractor, which is engaged in, or caused to be engaged in, within a municipality.
24Black’s Law Dictionary defines “business” as: 1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain. 2. Commercial enterprises. 3. Commercial transactions. BLACK’S LAW DICTIONARY 226 (9th ed. 2009). It defines “business transaction” as “An action that affects the actor’s financial or economic interests, including the making of a contract.” Id. at 227.
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ALA. CODE § 11-51-90.1(1)(1975). As commonly understood, Section 30 would prohibit all commercial contracts between unlawfully-present aliens and the state or one of its political subdivisions. However, given that Section 27 declares unlawfully-present aliens do not have the capacity to contract, such interpretation does not reach the scope intended by the Alabama legislature.
Yet, the words of Section 30 obfuscate its meaning. It declares a ban on business transactions and then proceeds to define “business transactions” with examples, none of which fit within the commonly understood definition of a business transaction. The three examples are (1) applying for or renewing a motor vehicle license plate; (2) applying for or renewing a driver’s license or a nondriver identification card; and (3) applying for or renewing a business license. H.B. 56 § 30(a).
Although not a “business transaction,” the court finds that Section 30 is intended to prohibit the state from issuing a license to an unlawfully-present alien.25 “‘The word ‘license,’ means permission, or authority; and a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize.’” Fed. Land Bank of Wichita v. Bd. of Cnty. Commrs of Kiowa Cnty., 368 U.S. 146, 154 n.23 (1961)
25The court finds that the term “business transactions” does not reach registration requirements. Therefore, it finds no need to decide whether prohibiting unlawfully-present aliens from registering births and deaths or complying with state and local government registration laws is prohibited.
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(quoting Gibbons v. Ogden, 22 U.S. 1, 213 (1824)). Alabama issues licenses to drivers and businesses, but also to professionals, hospitals, day care facilities, and a myriad of other individuals giving them permission to conduct business or “do that thing” the license allows. The United States has not demonstrated that Congress has – expressly or implicitly – preempted the power of the states to refuse to license an unlawfully-present alien. Cf. John Doe No. 1 v. Ga. Dep’t of Pub. Safety, 147 F. Supp. 2d 1369, 1374, 1376 (N.D. Ga. 2001)(holding Georgia can deny an unlawfully-present alien a driver’s license).
Based on the foregoing, the court finds that, to the extent Section 30 reaches commercial contracts and licenses, the United States has not shown that it has a likelihood of success on the merits as its claim that Section 30 is preempted by federal law.
Section 30 prohibits unlawfully-present aliens from contracting with state and local governments, applying for or renewing drivers’ licenses and identification cards, and applying for and renewing motor vehicle license plates. This law is not preempted. Therefore, the United States has not shown a likelihood of success of the merits. The United States’s Motion for Preliminary Injunction as to Section 30 will be denied.
CONCLUSION For the foregoing reasons, the court concludes: 1. The United States has shown that it is entitled to an injunction preliminarily enjoining Sections 11(a), 13, 16, and 17 of H.B. 56.
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Case 2:11-cv-02746-SLB Document 93 Filed 09/28/11 Page 115 of 115 2. The United States has not shown that it is entitled to an injunction preliminarily
enjoining Sections 10, 12, 18, 27, 28, and 30 of H.B. 56. An Order granting in part and denying the United States’s Motion for Preliminary
Injunction, (doc. 2), and enjoining enforcement of Sections 11(a), 13, 16 and 17, will be entered contemporaneously with this Memorandum Opinion.
DONE, this 28th day of September, 2011. SHARON LOVELACE BLACKBURN CHIEF UNITED STATES DISTRICT JUDGE
115

 
 Case 2:11-cv-02746-SLB Document 103

Filed 10/14/11 Page 1 of 16

FILED
2011 Oct-14 PM 01:55 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUI No. 11-14532-CC

. u.s. couR:toFAPPfi~§
ELEVEMTI~ CtRCUIT
~OCT 14 2011

JOON LEY
CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellant, Cross Appellee,

versus

STATE OF ALABAMA, GOVERNOR OF ALABAMA,

Defendants-Appellees, Cross Appellants,

NATIONAL FAIR HOUSING ALLIANCE, INC., AMERICAN UNITY LEGAL DEFENSE FUND,

Defendants-Appellees.

No. 11-14535-CC

D.C. Docket No. 5: 11-cv-2484-SLB

HISPAl'fiC INTEREST COALITI9N OF ALABAMA, AlpS ACTION COALITION, et al.,
versus

Plaintiffs-Appellants, Cross Appellees,

GOVERNOR OF ALABAMA,

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 2 of 16
ATTORNEY GENERAL, STATE OF ALABAMA, et al.,
Defendants-Appellees, Cross Appellants,
SUPERINTENDENT OF HUNTSVILLE CITY SCHOOL SYSTEM, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Alabama
Before CARNES, BARKETT, and HULL, Circuit Judges.
ORDER BY THE COURT: These two appeals involve the United States' and various plaintiffs' 1 (the
"private plaintiffs") challenges to the Beason-Hammon Alabama Taxpayer and
Citizen Protection Act, Ala. Laws Act 2011-535 ("H.B. 56"). In the district court,
1The plaintiffs in the second appeal are:(l) Hispanic Interest Coalition of Alabama; (2) AIDS Action Coalition; (3) Huntsville International Help Center; (4) Interpreters and Translators Association of Alabama; (5) Alabama Appleseed Center for Law & Justice, Inc.; (6) Service Employees International Union; (7) Southern Regional Joint Board of Workers United; (8) United Food and Commercial Workers International Union; (9) United Food and Commercial Workers Union Local1657; (10) DreamActivist.org; (11) Greater Birmingham Ministries; (12) Boat People SOS; (13) Matt Webster; (14) Maria D. Ceja Zamora; (15) Pamela Long; (16) Juan Pablo Black Romero; (17) Christopher Barton Thau; (18) Ellin Jimmerson; (19) Robert Barber; (20) Daniel Upton; (21) Jeffrey Allen Beck; (22) Michelle Cummings; (23) Esayas Haile; (24) Fiseha Tesfamariam; (25) Jane Doe #1; (26) Jane Doe #2; (27) Jane Doe #3; (28) Jane Doe #4; (29) Jane Doe #5; (30) Jane Doe #6; (31) John Doe #1, a minor, by his legal guardian Matt Webster; (32) John Doe #2; (33) John Doe #3; (34) John Doe #4; (35) John Doe #5; and (36) John Doe #6.
2

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 3 of 16
the United States and the private plaintiffs filed motions for a preliminary · injunction as to various sections of H.B. 56. After a hearing, the district court granted the motions as to numerous sections of H.B. 56 but denied them as to other sections. Pursuant to Rules 8(a) and 27 of the Federal Rules of Appellate Procedure, the United States and the private plaintiffs move this Court to enjoin pending appeal Alabama's enforcement of six ofthe sections ofH.B. 56 not enjoined by the district court. After review and briefing, we grant in part and deny in part the motions for injunctions pending appeal.
I. PROCEDURAL BACKGROUND On June 2, 2011, the Alabama Legislature approved H.B. 56, and Governor Robert Bentley signed H.B. 56 into law on June 9, 2011. The majority of the provisions in H.B. 56 were set to become effective on September 1, 2011. A. United States' Lawsuit Seeking to permanently enjoin enforcement of certain provisions ofH.B. 56, the United States sued the State of Alabama, Governor Robert J. Bentley in his official capacity, the National Fair Housing Alliance, Inc., and the American Unity Legal Defense Fund. The United States argued, inter alia, that Sections 10, 11(a), 12, 13, 16, 17, 18, 27, 28, and 30 ofH.B. 56 were preempted under the Supremacy Clause and by federal law, principally the comprehensive registration scheme
3

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 4 of 16
embodied in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et
The contents of the sections challenged by the United States are summarized
as follows:
Section 10 creates a criminal misdemeanor violation under Alabama law for "willful failure to complete or carry an alien registration document ifthe person is in violation of8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a),2 and the person is an alien unlawfully present in the United States." Section 1O(b) prohibits law enforcement officers from attempting to independently make a final determination ofwhether an alien is lawfully present in the United States and requires law enforcement to determine immigration status by seeking verification from the federal government under 8 U.S.C. § 1373(c).3
Section 11(a) makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.
Section 12 requires a law enforcement officer-upon ·making "any lawful stop, detention, or arrest" in the enforcement ofstate or local law and upon reasonable suspicion that person stopped, detained, or arrested is unlawfully present in the United States-to make a reasonable attempt, "when practicable," to determine the citizenship and
2Pursuant to § 1304(e), every alien eighteen years of age and older must carry a certificate of alien registration or alien registration receipt card; failure to carry the registration card is a misdemeanor punishable by a fine not exceeding $100, imprisonment of no more than 30 days, or both. 8 U.S.C. § 1304(e). Section 1306(a) states that an alien's willful failure to apply for registration and to be fingerprinted is a misdemeanor punishable by a fine not exceeding $1,000, imprisonment of no longer than six months, or both. 8 U.S.C. § 1306(a). ·
3Pursuant to§ 1373(c), "The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." 8 U.S.C. § 1373(c).
4

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 5 of 16
immigration status of the person stopped, detained, or arrested, except if the determination may hinder or obstruct an investigation. A person is presumed not to be an alien who is unlawfully present if the alien presents a valid driver's license, a valid Alabama nondriver identification card, an unexpired, government-issued identification bearing a photograph or other biometric identifier, a tribal identification card, or a foreign passport with an unexpired visa. A law enforcement officer may not consider race, color, or national origin in implementing this section. Section 12(b) requires law enforcement, within 24 hours of arresting an alien, to verify with the federal government the immigration status ofthe arrestee. Ifthe federal verification "is delayed beyond the time that the alien would otherwise be released from custody, the alien shall be released from custody."
Section 13 makes it unlawful for a person to (1) conceal, harbor, or shield an alien unlawfully present in the United States, or attempt or conspire to do so; (2) encourage an unlawful alien to come to the State of Alabama; or (3) transport (or attempt or conspire to transport) an unlawful alien.
Section 16 forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
Section 17 establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring or retaining an unauthorized alien.
Section 18 amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine by any other· means that the person has a valid driver's license, the officer shall transport the arrested person to the nearest magistrate; a reasonable effort must be made to determine the citizenship ofthe arrested person, and iffound to be unlawfully present in the United States, the arrested person shall be considered a flight risk and must be detained until prosecution or until handed over to federal immigration authorities.
5

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 6 of 16
Section 27 bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, contracts for transportation for an alien to return to his or her country of origin, or any "contract authorized by federal law." In court proceedings, the determination ofwhether an alien is unlawfully present in the United States shall be made by the federal government, pursuant to 8 U.S.C. § 1373(c).
Section 28 requires every public elementary and secondary school in Alabama, "at the time ofenrollment in kindergarten or any grade in such school," to determine ifthe student "was born outside the jurisdiction of the United States or is the child" of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program. Section 28(a)(2) provides that, in making the above determination, the school "shall rely upon presentation ofthe student's original birth certificate, or a certified copy thereof." Section 28 also requires the school or district to compile the data required by the Section and to submit the data to the State Board of Education, which must submit a public report to the legislature. However, Section 28(e) and (f) proscribe public disclosure of information obtained under the section that personally identifies a student (except for purposes permitted by 8 U.S.C. §§ 1371 and 1644), and the student enjoys a right to privacy and a civil remedy for any public disclosure of such information. Any person intending to make a public disclosure of information that is classified as confidential under this section, on the ground that such disclosure constitutes a use permitted by federal law, shall first apply to the Attorney General and receive a waiver of confidentiality from the requirements of Section 28(e).
Section 30 makes it a felony for an alien. not lawfully present in the United States to enter into or attempt to enter into a "business transaction" with the State of Alabama or any political subdivision thereof. Section 30(a) defines a "business transaction" to include
6

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 7 of 16
applying for or renewing a license plate, driver's license, nondriver identification card, or business license. However~ "business transaction" does not include applying for a marriage license. The state and any political subdivision thereof may not consider race, color, or national origin in the enforcement of this section except to the extent permitted by the U.S. Constitution or the Constitution of Alabama of 1901.
B. Private Plaintiffs' Lawsuit
In a separate lawsuit seeking to enjoin H.B. 56, the private plaintiffs sued not
only the State of Alabama and Governor Robert J. Bentley but also numerous other
state and local officials.4 The private plaintiffs argued that the entire act, and
particularly Sections 10, 12, 18, 27, 28, and 30, are invalid on numerous
constitutional and other grounds.5 But the private plaintiffs' only ground asserted for
4The private plaintiffs sued Robert Bentley, in his official capacity as Governor of the State of Alabama, and Luther Strange, in his official capacity as Attorney General of the State of Alabama. They also named as defendants Joseph B. Morton, State Superintendent of Education and Freida Hill, Chancellor of Postsecondary Education, as well as six school superintendents: E. Casey Wardynski, Superintendent of the Huntsville City School System; Jamie Blair, Superintendent of the Vestavia Hills City School System; Randy Fuller, Superintendent of the Shelby County Public School System; Charles D. Warren, Superintendent of the DeKalb County Public School System; Barbara W. Thompson, Superintendent of the Montgomery County Public School System; and Jeffery E. Langham, Superintendent of the Elmore County Public School System. They also name R<?bert L. Broussard, District Attorney for Madison County. On September 16, 2011, plaintiffs filed an Amended Complaint, which substituted Larry E. Cravin, in his official capacity as Interim State Superintendent of Education, for Morton, who retired on August 31, 2011.
5In their complaint and in the district court, the private plaintiffs also argued that (I) Sections 12, 18, 19, and 20 violate the Fourth Amendment; (2) Sections 8, 10, and 12 (in addition to Section 28) violate the Equal Protection Clause of the Fourteenth Amendment; (3) Sections 12, 18, 19, and 20 violate procedural due process under the Due Process Clause of the Fourteenth Amendment; (4) Sections 10, 12, 13, and 30 are vague and overbroad in violation of the Due Process Clause of the Fourteenth Amendment; (5) Section 11 effects a content-based restriction on speech relating to work and is impermissibly vague in violation of the First
7

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 8 of 16
purposes oftheir motion for injunction pending appeal as to Sections 10, 12, 18, 27,
and 30 is that the entire act and those sections are preempted under the Supremacy
Clause and by federal law (primarily the INA but also 42 U.S.C. § 1981 as to Section
27). The private plaintiffs' motion argues that Section 28 is not only preempted but
also violates the Equal Protection Clause of the Fourteenth Amendment.
In addition to the sections of H.B. 56 challenged by the United States, the
private plaintiffs challenged these provisions of the act, which are summarized as
follows:
Section 8 prohibits an alien not lawfully present in the United States from enrolling in or attending any public post-secondary educational institution and requires any alien attending a public post-secondary educational institution to possess lawful pe~anent residence or an appropriate nonimmigrant visa.
Sections 10(e), 11(e), and 13(h) state that verification of an alien's immigration status received from the federal government pursuant to 8 U.S.C. § 1373(c) is conclusive proofofthe alien's status and that a state court may consid~r only the federal verification i;n determining whether
Amendment; (6) Section 27 unconstitutionally impairs the obligation of contracts by forbidding Alabama state courts from enforcing a contract between a party and an alien unlawfully present in the United States; (7) Sections 10(e), 11 (e), and 13(h) violate the Confrontation Clause and Compulsory Process Clause of the Sixth Amendment; and (8) Sections 27 and 30 violate 42 U.S.C. § 1981 by prohibiting unlawfully present aliens from making and enforcing contracts.
Because the private plaintiffs have requested an injunction pending appeal only as to Sections 10, 12, 18, 27, 28, and 30 and based only on federal preemption as to those sections and on Equal Protection grounds as to Section 28, we have considered only those specific claims of the private plaintiffs.
8

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 9 of 16
an alien is lawfully present in the United States.6
Section 11 (f) and (g) make it unlawful for an occupant of a motor vehicle stopped on a street or roadway to attempt to hire or hire and pick up passengers for work at a different location ifthe motor vehicle blocks or impedes traffic. Section 11 (f) applies to an occupant of a motor vehicle; Section 11 (g) applies to a person picked up by a motor vehicle blocking traffic.
Section 12(e) requires a state law enforcement agency to cooperate in the transfer of an unlawfully present alien to the custody of the federal government, if the federal government so requests.
Section 19 states that, if a person is charged with a crime for which bail is required or confined for any period in state, county, or municipal jail, law enforcement must make a reasonable effort to determine if the person is an alien unlawfully present in the United States.
Section 20 requires the state agency responsible for the incarceration of an unlawfully present alien convicted ofa violation ofstate or local law to notify U.S. Immigration and Customs Enforcement and to assist in the coordination and transfer of the prisoner to the appropriate federal immigration authority.
C. Motions for Preliminary Injunction in the District Court
In the district court, the United States moved for a preliminary injunction of
Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 ofH.B. 56. In the separate
lawsuit, the private plaintiffs moved the district court for a preliminary injunction
ofthe entire act or of Sections 8, 10(a), 10(e), 11(a), 11(e), 11(f), 11(g), 12(a) and
6The private plaintiffs argued that the last sentence of these subsections violated the Compulsory Process Clause of the Sixth Amendment by prohibiting an alien from offering any evidence in defense of an element of a criminal offense.
9

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 10 of 16
(e), 13, 18, 19, 20, 27, 28, and 30. The parties proceeded by filing affidavits and briefs before the district court.
In support of its motion for a preliminary injunction, the United States submitted, inter alia, eleven declarations, including: (1) the Declaration of William J. Bums, Deputy Secretary of State; and (2) the Declaration of Daniel H. Ragsdale, Executive Associate Director for Management and Administration at U.S. Immigration and Customs Enforcement.
The private plaintiffs submitted, among other documents: ( 1) the text of House Bill 56; (2) over forty declarations; and (3) an article entitled "Alabama Town Closely Watches New Immigration Law."
In response, the State of Alabama presented various documents, including: (1) a Pew Hispanic Center study entitled "Unauthorized Immigrant Population: National and State Trends, 201 0"; (2) the affidavit of Henry M. Redden, the Director of Information Systems for the Alabama Department of Corrections; (3) a 2002 Office of Legal Counsel memorandum on "Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations"; (4) a study by the National Education Association entitled "Rankings of the States 2010 & Estimates of School Statistics 2011 "; (5) several declarations; and (6) two letters, including one written by State Superintendent of Education
10

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 11 of 16
Joseph B. Morton. On August 24, 2011, the district court held a full-day hearing on the
motions for a preliminary injunction. Although the district court heard the arguments of counsel, no witnesses testified at the hearing. No depositions have been filed. After the hearing but before the ruling, the private plaintiffs filed additional documents and declarations.
On August 29, 2011, the district court temporarily enjoined enforcement of H.B. 56 until September 29, 2011. However, the court noted that the temporary injunction issued solely to allow more time to consider the various challenges to H.B. 56 and was not addressing the merits of the motions for a preliminary injunction.
Subsequently, in a 115-page opinion dated September 28, 20 11, the district court granted the United States' motion in part and enjoined enforcement of Sections 11(a), 13, 16, and 17. The district court denied a preliminary injunction with respect to Sections 10, 12(a), 27, 28, and 30.
In a separate 106-page order also dated September 28, 20 11, the district court granted the private plaintiffs' motion in part and enjoined Sections 8, 10(e),
11

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 12 of 16
11(e), 11{f), and 11(g).7 The district court denied a preliminary injunction with ·respect to Sections 10(a), 12(a) and (e), 18, 19, 20, 27, 28, and 30.
By virtue of the expiration of the temporary injunction, H.B. 56, including the unenjoined Sections 10, 12, 18, 19, 20, 27, 28, and 30, went into effect on September 29, 20 11. The private plaintiffs filed a notice of interlocutory appeal on September 29, 2011, and the United States filed a notice of interlocutory appeal on September 30, 2011. In the district court, both the United States and the private plaintiffs moved for an injunction pending their appeal of the district court's denial of a preliminary injunction on Sections 10(a), 12(a), 18, 27, 28, and 30. On October 5, 2011, the district court denied the motions for an injunction pending appeal. D. Motions for Injunction Pending Appeal
On October 7, 20 11, both the United States and the private plaintiffs filed the present motions for injunctions pending appeal, but only as to Sections 1O(a), 12(a), 18, 27, 28, and 30.8 They also asked this Court to expedite consideration of
7ln the private plaintiffs' lawsuit, the district court denied the motion for a preliminary injunction as moot with respect to Sections 11(a) and 13 because the district court enjoined enforcement of these sections in the United States' lawsuit.
81n the district court, the private plaintiffs moved for a preliminary injunction as to Sections 19 and 20, but the private plaintiffs did not move for an injunction pending appeal as to these Sections. Nor do the private plaintiffs move in· this Court for an injunction pending appeal as to Sections 19 and 20.
12

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 13 of 16
the underlying appeals. On October 7, 2011, this Court immediately expedited briefing of, and oral argument on, the merits of the underlying appeal as to the denial of the preliminary injunctions of enforcement ofH.B. 56. (See Order dated October 7, 2011). This order addresses only the parties' motions for an injunction pending appeal.9
III. STANDARD FOR INJUNCTION PENDING APPEAL We grant the "extraordinary remedy" of an injunction pending appeal only if the petitioners can show: "(1) a substantial likelihood that they will prevail on the merits of the appeal; (2) a substantial risk of irreparable injury to the intervenors unless the injunction is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest." Touchston v. McDermott, 234 F.3d 1130, 1132 {lith Cir. 2000) (en bane). "A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain, success." Schiavo ex rei. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005) (emphasis omitted). "Failure to show any of the four factors is fatal, and the most common failure is not showing a substantial likelihood of
91n this appeal, the United States, the private plaintiffs, or the State of Alabama also filed a few additional declarations, documents, and newspaper articles. While the motions panel has considered everything, we leave it to the merits panel to sort out what is properly considered as evidence on appeal.
13

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 14 of 16
success on the merits." Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). Further, "preliminary injunctions of legislative enactments-because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits-must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts." Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990).
IV. DISCUSSION Upon review of the record and consideration of the parties' briefs and the district court's orders and opinions, we GRANT IN PART and DENY IN PART the United States' and the private plaintiffs' motions for injunction pending appeal. We conclude that the United States and the private plaintiffs have met their burden as to all four requirements for an injunction pending appeal as to Section 10 and we therefore ENJOIN the State of Alabama's enforcement of Section 10 pending appeal and until further order by the merits panel. We also conclude that the United States has met its burden as to all four requirements for an injunction pending appeal as to Section 28 and we therefore
14

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 15 of 16
ENJOIN the State of Alabama's enforcement of Section 28 pending appeal and until further order by the merits panel. The private plaintiffs' motion for injunction pending appeal is DENIED AS MOOT as to Section 28, and thus we need not reach the standing issues.
The United States' and the private plaintiffs' motions for injunction pending appeal are DENIED as to Sections 12, 18, 27, and 30.10
Our decision does not bind the merits panel, which will consider the case after full briefing and oral argument. See 11th Cir. R. 27-1(g) ("A ruling on a motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.").
MOTIONS GRANTED IN PART AND DENIED IN PART.
10The United States' "Motion for Temporary Injunction Pending Full Consideration" of the motions for injunction pending appeal is DENIED AS MOOT.
15

Case 2:11-cv-02746-SLB Document 103 Filed 10/14/11 Page 16 of 16
BARKETT, Circuit Judge, concurring in part and dissenting in part: I agree that Sections 10 and 28 should be enjoined and that Sections 27 and
30 should not be enjoined. However, I would find that the United States and the private plaintiffs have met the requirements for an injunction pending appeal as to Sections 12 and 18.
16

 
 Case 2:11-cv-02746-SLB Document 119 Filed 10/29/13 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

FILED
2013 Oct-29 PM 03:36 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES OF AMERICA,

)

)

Plaintiffs,

)

)

vs.

)

Case Number:

)

5:11-cv-02746-SLB

STATE OF ALABAMA; and

)

GOVERNOR ROBERT J. BENTLEY, )

)

Defendants.

)

JOINT REPORT REGARDING CASE STATUS AND DISPOSITION Plaintiff United States of America and Defendants Stat e of Alabama an d Governor Bentley (collec tively “Alabama”) have c onferred about the proper disposition of this matter in light of decisions by the Suprem e Court and the Eleventh Circuit. In the interests of ai ding the Court to bring about a proper and efficient resolution of this case, the part ies make the following representations and requests regarding the various statutory provisions at issue: 1. The p arties agree that the El eventh Circuit panel’s decision in United States v. Alabama, 691 F.3d 1269 (11t h Cir. 2012), holds t hat Sections 10, 11(a), 13, 16, 17, and 27 of H.B. 56 (Ala. Code §§ 31-13-10, -11(a), -13, -16, -17, & -26), and Section 6 of H.B. 658 (A la. Code § 31-13-33), are preempted by federal law. Further, the parties agree that the Supreme Court’s decision in Arizona v. United

Case 2:11-cv-02746-SLB Document 119 Filed 10/29/13 Page 2 of 4
States, 132 S. Ct. 2492 (2012), requires holding that Sections 10 and 11(a) of H.B. 56 are preempted by federal law. The partie s also agree that the United States can satisfy the other requirements for obtai ning final injunctions against these provisions.
2. The United States proposes to di smiss voluntarily, without prejudice, its existing facial cl aims against Sections 12(a), 18, and 30 of H.B. 56 (Ala. Code §§ 31-13-12(a), -29, & Ala. Code § 32-6-9( b)), in light of the Supre me Court’s decision in Arizona v. United States , 132 S. Ct. 2492 (2012), and the Eleventh Circuit’s decision in United States v. Alabama , 691 F.3d 1269 (11th Ci r. 2012). Alabama consents to the voluntary dismissal of such claims.
3. Provided that this Court enters a permanent injunction against Section 28 of H.B. 56 (Ala. Code § 31-13-27) in Hispanic Interest Coalition of Ala., et al. v. Governor of Ala., No. 5:11-cv-02484-SLB, the Unite d States proposes t o dismiss voluntarily, without prejudice, its claim against Section 28 in this action. Alabama consents to the voluntary dismissal of such claim.
4. Accordingly, all parties consent to the form of Final Judgment subm itted herewith, subject to the reservations and other statements made herein.
5. The United States’ dismissals of its existing claim s against Sections 12(a), 18, and 30 of H.B. 56 are without prejudice to the filin g of new claim s against any of t hose provisions in the future, if warranted based on Alabama’s
2

Case 2:11-cv-02746-SLB Document 119 Filed 10/29/13 Page 3 of 4
interpretation and application of those pr ovisions. Additionally, the United States’ dismissal of its existing claim against Section 28 of H.B. 56 is without prejudice to the filing of a new claim against that provision in the future, shoul d Section 28 no longer be enjoined in Hispanic Interest Coalition of Ala., et al. v. Governor of Ala., No. 5:11-cv-02484-SLB.
6. Alabama reserves its right , should governing statutory or decisional law or other circumstances change in the future, to seek modification of the injunctions in the Final Judgment via a post-judgment motion under the Federal Rules of Civil Procedure.
7. Each reference to a provision of H.B. 56 herein shall be construed as a reference to such provision as amended, if applicable.
8. A proposed final judgm ent consistent with this Joint Report is subm itted at Attachment 1 hereto.
Respectfully submitted, FOR DEFENDANTS ALABAMA ET AL.: LUTHER STRANGE (ASB-0036-G42L) Alabama Attorney General BY: s/ John C. Neiman, Jr. John C. Neiman, Jr.
3

Case 2:11-cv-02746-SLB Document 119 Filed 10/29/13 Page 4 of 4

 
 Case 2:11-cv-02746-SLB Document 113 Filed 11/21/12 Page 1 of 2 Case: 11-14532 Date Filed: 11/13/2012 Page: 1 of 1

FILED
2012 Nov-21 PM 04:34 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES COURT OF APPEALS For the Eleventh Circuit
______________
Nos. 11-14532 & 11-14674 ______________
District Court Docket No. 2:11-cv-02746-SLB

UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant llllllllllllllllllllllllllllllllllllllllCross Appellee,
versus
STATE OF ALABAMA, GOVERNOR OF ALABAMA,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellees llllllllllllllllllllllllllllllllllllllllCross Appellants,
NATIONAL FAIR HOUSING ALLIANCE, INC., lllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
__________________________________________
Appeals from the United States District Court for the Northern District of Alabama
__________________________________________
JUDGMENT
It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court.
Entered: August 20, 2012 For the Court: John Ley, Clerk of Court
By: Djuanna Clark
Issued as Mandate November 13, 2012

Case 2:11-cv-02746-SLB Document 113 Filed 11/21/12 Page 2 of 2 Case: 11-14532 Date Filed: 11/13/2012 Page: 1 of 1

John Ley Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
November 13, 2012

For rules and forms visit www.ca11.uscourts.gov

Sharon Harris United States District Court 1729 FIFTH AVE N BIRMINGHAM, AL 35203
Appeal Number: 11-14532-CC Case Style: USA v. State of Alabama, et al District Court Docket No: 2:11-cv-02746-SLB

The enclosed judgment is hereby issued as the mandate of this court. A copy of this letter, but not a copy of the court's decision, is also being mailed to counsel. A copy of the court's decision was previously mailed to counsel on the date it was issued.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Joe Caruso Phone #: (404) 335-6177
Enclosure(s)

MDT-1 Letter Issuing Mandate

 
 Case 2:11-cv-02746-SLB Document 120 Filed 11/25/13 Page 1 of 2

FILED
2013 Nov-25 PM 03:41 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

vs.

)

)

STATE OF ALABAMA; GOVERNOR )

ROBERT J. BENTLEY,

)

)

Defendants.

)

Case Number: 2:11-CV-2746-SLB

DISMISSAL ORDER AND STIPULATED PERMANENT INJUNCTION

Pursuant to the Eleventh Circuit’s decision in United States v. Alabama, 691 F.3d

1269 (11th Cir. 2012), and the parties’ Joint Report Regarding Case Status and Disposition,

(doc. 119), the court hereby ORDERS as follows:

1. The defendants are PERMANENTLY ENJOINED from implementing Sections

10, 11(a), 13, 16, 17, and 27 of Alabama's H.B. 56, codified as Ala. Code §§ 31-13-10, 31-

13-11(a), 31-13-13, 31-13-16, 31-13-17, and 31-13-26, and Section 6 of Alabama’s H.B.

658, codified as Ala. Code § 31-13-33.

2. Plaintiff’s facial challenges to Sections 12(a), 18, and 30 of H.B. 56, codified as

Ala. Code §§ 31-13-12(a), 31-13-29, and Ala. Code § 32-6-9(b), are DISMISSED

WITHOUT PREJUDICE.

3. Based upon this court’s Dismissal Order and Stipulated Permanent Injunction

entered in the companion case, Hispanic Interest Coalition of Ala., et al. v. Governor of Ala.,

Case No. 5:11-CV-02484-SLB, which permanently enjoins Alabama’s implementation of

Case 2:11-cv-02746-SLB Document 120 Filed 11/25/13 Page 2 of 2 Section 28 of H.B. 56, codified as Ala. Code § 31-13-27, the United States’s claim challenging Section 28 in this action is DISMISSED WITHOUT PREJUDICE.
4, The Clerk of the Court is DIRECTED to close this case. DONE, this 25th day of November, 2013.
SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE
2

 
 Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 1 of 22
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:11−cv−02746−SLB

CLOSED

United States of America v. Alabama, State of et al Assigned to: Judge Sharon Lovelace Blackburn Case in other court: 11th Circuit, 11−14532−CC Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 08/01/2011 Date Terminated: 11/25/2013 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: U.S. Government Plaintiff

United States of America

represented by W Scott Simpson US DEPARTMENT OF JUSTICE Room 7210 PO Box 883 Washington, DC 20044 202−514−3495 Fax: 202−616−8470 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Lee Reeves , II U. S. DEPT. OF JUSTICE, CIVIL DIVISION FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue NW Washington, DC 20530 202−514−4805 Fax: 202−616−8470 Email: lee.reeves@usdoj.gov ATTORNEY TO BE NOTICED

Joshua Wilkenfeld UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202−514−4805 Fax: 202−616−8470 Email: joshua.i.wilkenfeld@usdoj.gov ATTORNEY TO BE NOTICED

Joyce White Vance USA 1801 4th Avenue North Birmingham, AL 35203 205−244−2001 Email: usaaln.ecfusa@usdoj.gov ATTORNEY TO BE NOTICED

Praveen Krishna U. S. ATTORNEY 1801 4th Avenue North Birmingham, AL 35203 205−244−2168 Fax: 205−244−2174 Email: praveen.krishna@usdoj.gov ATTORNEY TO BE NOTICED

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 2 of 22
Tony West US DEPARTMENT OF JUSTICE Assistant Attorney General 950 Pennsylvania Avenue NW Washington, DC 20530 202−514−3301 Email: tony.west@usdoj.gov
Varu Chilakamarri UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202−616−8489 Fax: 202−616−8470 Email: varudhini.chilakamarri@usdoj.gov ATTORNEY TO BE NOTICED
William H Orrick , III US DEPARTMENT OF JUSTICE Deputy Assistant Attorney General Office of Immigration Litigation, Civil Division 950 Pennsylvania Avenue, NW Washingon, DC 20530−0001 202−353−7958 Email: bill.orrick@usdoj.gov TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

V. Defendant Alabama, State of

represented by James W Davis OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us ATTORNEY TO BE NOTICED
John C Neiman , Jr MAYNARD COOPER & GALE PC 1901 Sixth Avenue North 2400 Regions Harbert Plaza Birmingham, AL 35203 205−254−1228 Fax: 205−254−9999 Email: jneiman@maynardcooper.com ATTORNEY TO BE NOTICED
Joshua K Payne SPOTSWOOD SANSOM & SANSBURY LLC 1819 5th Avenue North Suite 1050 Birmingham, AL 35203 205−986−3620 Fax: 205−986−3639 Email: jpayne@spotswoodllc.com TERMINATED: 08/13/2012

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 3 of 22

ATTORNEY TO BE NOTICED

Margaret L Fleming OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8440 Email: mfleming@ago.state.al.us ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8440 Email: mmessick@ago.state.al.us ATTORNEY TO BE NOTICED

Prim Formby Escalona MAYNARD COOPER & GALE PC 1901 Sixth Avenue North, Suite 2400 Birmingham, AL 35203 205−254−1000 Fax: 205−254−1999 Email: pescalona@maynardcooper.com TERMINATED: 06/05/2012 ATTORNEY TO BE NOTICED

William G Parker , Jr OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−242−7997 Fax: 334−353−8440 Email: wparker@ago.state.al.us ATTORNEY TO BE NOTICED

Winfield J Sinclair OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−353−9110 Fax: 334−353−8440 Email: wsinclair@ago.state.al.us ATTORNEY TO BE NOTICED

Defendant
Robert J Bentley Governor

represented by James W Davis (See above for address) ATTORNEY TO BE NOTICED

John C Neiman , Jr (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 4 of 22

Amicus United Mexican States United Mexican States (Mexico)
Amicus Argentina Argentina
Amicus Bolivia Bolivia
Amicus Brazil Brazil

Joshua K Payne (See above for address) TERMINATED: 08/13/2012 ATTORNEY TO BE NOTICED
Margaret L Fleming (See above for address) ATTORNEY TO BE NOTICED
Misty Shawn Fairbanks Messick (See above for address) ATTORNEY TO BE NOTICED
Prim Formby Escalona (See above for address) TERMINATED: 06/05/2012 ATTORNEY TO BE NOTICED
R Cooper Shattuck The University of Alabama System 500 University Boulevard East Tuscaloosa, AL 35401 205−348−7380 Fax: 205−348−8377 Email: cooper@coopershattuck.com TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED
William G Parker , Jr (See above for address) ATTORNEY TO BE NOTICED
Winfield J Sinclair (See above for address) ATTORNEY TO BE NOTICED
represented by W Edward Still EDWARD STILL LAW FIRM LLC 429 Green Springs Hwy STE 161−304 Birmingham, AL 35209 205−320−2882 Fax: 205−320−2882 Email: Still@votelaw.com ATTORNEY TO BE NOTICED
represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED
represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED
represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 5 of 22

Amicus
Chile Chile

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Colombia Columbia

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus Costa Rica

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Dominican Republic Dominican Republic

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Ecuador Ecuador

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
El Salvador El Salvador

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Guatemala Guatemala

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Honduras Honduras

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Nicaragua Nicaragua

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Paraguay Paraguay

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Peru Peru

represented by W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Amicus
Uruguay Uruguay

represented by W Edward Still (See above for address)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 6 of 22

ATTORNEY TO BE NOTICED

Amicus
Hispanic Association of Colleges and Universities (HACU)

represented by Miguel A Perez−Vargas MULTICULTURAL EDUCATION AND TRAINING INC, META INC 240 A Elm Street Suite 22A Somerville, MA 02144 617−628−2226 Fax: 617−628−0322 Email: perezvargasmiguel@gmail.com ATTORNEY TO BE NOTICED

Amicus National Education Association

Amicus Alabama Education Association

Amicus
National Association of Criminal Defense Lawyers

Amicus
AMERICAN IMMIGRATION LAWYERS ASSOCIATION

Amicus Central Alabama Fair Housing Center

represented by James Uriah Blacksher JAMES U. BLACKSHER, ATTORNEY P O Box 636 Birmingham, AL 35201 205−591−7238 Fax: 866−845−4395 Email: jblacksher@ns.sympatico.ca ATTORNEY TO BE NOTICED

Amicus
Fair Housing Center of Northern Alabama

represented by James Uriah Blacksher (See above for address) ATTORNEY TO BE NOTICED

Amicus
South Alabama Center for Fair Housing

represented by James Uriah Blacksher (See above for address) ATTORNEY TO BE NOTICED

Amicus National Fair Housing Alliance, Inc.

represented by James Uriah Blacksher (See above for address) ATTORNEY TO BE NOTICED

Amicus Anti−Defamation League

represented by David I Schoen 2800 Zelda Road, Suite 100−6 Montgomery, AL 36106 334−395−6611 Fax: 917−591−7586

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 7 of 22

Email: DSchoen593@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Alabama Coalition Against Domestic Violence

Amicus NAACP Alabama Conference

represented by David Gespass GESPASS & JOHNSON P O Box 550242 Birmingham, AL 35222 205−323−5966 Fax: 205−323−5990 Email: pass.gandjlaw@gmail.com ATTORNEY TO BE NOTICED

Amicus ACHR

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Alabama NOW

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus AALDEF

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Birmingham Peace Project

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
Dominican American National Roundtable

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Equality Alabama

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
Federation of Southern Cooperatives/Land Assistance Fund

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Hispanic Federation

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 8 of 22

Immigration Equality

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
Lawyers Committee for Civil Rights Under Law

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Montgomery Improvement Association

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus National Asian−Pacific Bar Association

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Association of Latino Elected and Appointed Officials

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus National Council of La Raza

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus National Employment Law Project

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus National Guestworker Alliance

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Immigration Law Project of the National Lawyers Guild

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
New Orleans Workers Center for Racial Justice

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus
Sikh American Legal Defense and Education Fund

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Amicus Society of American Law Teachers

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 9 of 22

Amicus Southern Christian Leadership Conference Amicus Southern Coalition for Social Justice Amicus United States Hispanic Leadership Institute Amicus National Lawyers Guild Amicus American Unity Legal Defense Fund
Amicus Alabama Legislators

represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED
represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED
represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED
represented by David Gespass (See above for address) ATTORNEY TO BE NOTICED
represented by Barnaby White Zall WEINBERG JACOBS & TOLANI LLP 11300 Rockville Pike Suite 1200 Rockville, MD 20852 301−231−6943 Fax: 301−984−1200 Email: bzall@aol.com ATTORNEY TO BE NOTICED
John J Park , Jr STRICKLAND BROCKINGTON LEWIS LLP 1170 Peachtree Street NE, Suite. 2200 Atlanta, GA 30309 678−347−2208 Fax: 678−347−2210 Email: jjp@sbllaw.net ATTORNEY TO BE NOTICED
represented by Stephen W Williams FOXTROT LFC 1321 Gunter Avenue Guntersville, AL 35976 256−582−2905 Email: stephen@thinkfoxtrot.com ATTORNEY TO BE NOTICED

Date Filed 08/01/2011
08/01/2011

# Docket Text
1 COMPLAINT against Alabama, State of, Robert J Bentley, filed by United States of America.(ASL) (Entered: 08/01/2011)
2 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 Exhibit 11)(Reeves, C) (Entered: 08/01/2011)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 10 of 22

08/01/2011 08/01/2011 08/01/2011 08/02/2011 08/03/2011 08/03/2011 08/03/2011 08/03/2011 08/03/2011
08/03/2011 08/03/2011
08/03/2011
08/03/2011
08/03/2011 08/03/2011

3 ORDER OF RECUSAL. Judge Inge P Johnson recused. Case reassigned to Judge William M Acker, Jr for all further proceedings. Signed by Judge Inge P Johnson on 8/1/11. (ASL) (Entered: 08/01/2011)
4 NOTICE of Appearance by Praveen Krishna on behalf of United States of America (Krishna, Praveen) (Entered: 08/01/2011)
5 Summons Issued as to Alabama, State of, Robert J Bentley, returned to pla for service (KGE, ) (Entered: 08/02/2011)
6 MOTION to Consolidate Cases by United States of America. (Reeves, C) (Entered: 08/02/2011)
7 MOTION to Consolidate Cases and for Additional Time by Alabama, State of, Robert J Bentley. (Davis, James) (Entered: 08/03/2011)
8 ORDER re 6 MOTION to Consolidate Cases filed by United States of America; the parties shall file any opposition to the motion by 8/8/2011. Signed by Chief Judge Sharon Lovelace Blackburn on 8/3/2011. (KAM, ) (Entered: 08/03/2011)
9 ORDER OF RECUSAL. Judge William M Acker, Jr recused. Case reassigned to Judge L Scott Coogler for all further proceedings. PLEASE USE CASE NUMBER CV 11−CO−2746−S ON ALL FURTHER PLEADINGS. Signed by Judge William M Acker, Jr on 8/3/11. (KGE, ) (Entered: 08/03/2011)
10 RESPONSE to Motion re 6 MOTION to Consolidate Cases filed by Alabama, State of, Robert J Bentley. (Davis, James) (Entered: 08/03/2011)
11 ORDER granting motions to consolidate; motions for additional time are denied; PARTIES SHALL FILE ALL PLEADINGS IN LEAD CASE 5:11CV2484 SLB; Oral argument on the pending motions for preliminary injunction is set for 8/24/2011 09:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Chief Judge Sharon Lovelace Blackburn. Dfts shall file their opposition to USA's motion for preliminary injunction by 8/15/2011; USA shall reply by 8/22/2011. Signed by Chief Judge Sharon Lovelace Blackburn on 8/3/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−LSC, 5:11−cv−02736−CLS(KAM, ) (Entered: 08/03/2011)
12 Case reassigned to Judge Chief Judge Sharon Lovelace Blackburn for consolidation with 5:11cv2484 SLB. Judge Judge L Scott Coogler no longer assigned to the case. (KAM, ) (Entered: 08/03/2011)
13 MOTION for Leave to File Brief of Amici Curiae by Hispanic College Fund, LULAC, META, Inc.. (Attachments: # Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Rice, Roger) (Additional attachment(s) added on 8/4/2011: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (KAM, ). (Entered: 08/03/2011)
14 MOTION for Leave to Appear PRO HAC VICE by Hispanic College Fund, LULAC, META, Inc.. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Perez−Vargas, Miguel) (Additional attachment(s) added on 8/4/2011: # 1 Exhibit) (KAM, ). (Entered: 08/03/2011)
15 MOTION for leave to file Amicus Curiae APPEARANCE entered by Edward Still on behalf of United Mexican States. (Attachments: # 1 Appendix brief, # 2 Exhibit A, # 3 Exhibit B)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Still, Edward) Modified on 8/4/2011 (KAM, ). (Entered: 08/03/2011)
PHV Fee paid: $ 50, receipt number 1126−1452513. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Perez−Vargas, Miguel) NDAL rec# B4601025475 Modified on 8/4/2011 (KAM, ). (Entered: 08/03/2011)
16 MOTION for leave to file Amicus Curiae APPEARANCE entered by Edward Still on behalf of Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Uruguay. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Still, Edward) Modified on 8/4/2011 (KAM, ). (Entered:

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 11 of 22

08/04/2011 08/04/2011 08/04/2011 08/04/2011
08/04/2011
08/04/2011 08/04/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011

08/03/2011)
17 SUMMONS Returned Executed by United States of America. Alabama, State of served on 8/3/2011, answer due 8/24/2011. (Krishna, Praveen) (Entered: 08/04/2011)
18 SUMMONS Returned Executed by United States of America. Robert J Bentley served on 8/3/2011, answer due 8/24/2011. (Krishna, Praveen) (Entered: 08/04/2011)
19 MOTION for Leave to File to Join Brief of Amici Curiae by Hispanic College Fund, LULAC, META, Inc., Hispanic Association of Colleges and Universities (HACU). Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Perez−Vargas, Miguel) (Entered: 08/04/2011)
ORDER granting (57) Motion for Leave to Appear PHV by Roger Rice; granting (61) Motion for Leave to Appear PHV by Miguel Perez−Vargas in case 5:11−cv−02484−SLB; granting (14) Motion for Leave to Appear PHV in case 2:11−cv−02746−SLB; granting (7) Motion for Leave to Appear PHV in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/4/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM) (Entered: 08/04/2011)
ORDER granting (60) Motion for Leave to File Amici Curiae brief by Hispanic College Fund, LULAC, META, Inc; granting (62) Motion for Leave to File Amicus Curiae by United Mexican States; granting (63) Motion for Leave to join Amicus Curiae by Argentina, Bolivia, Brazil, Chile, Comombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Uraguay; granting (64) Motion for Leave to join brief of Amici Curiae by HACU in case 5:11−cv−02484−SLB; granting (19) Motion for Leave to File Amici Curiae brief; granting (13) Motion for Leave to File Amicus Curiae in case 2:11−cv−02746−SLB; granting (6) Motion for Leave to File Amicus Curiae; granting (10) Motion for Leave to File Amici Curiae in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/4/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/04/2011)
20 MOTION for Leave to Appear Pro Hac Vice by − Jessica Karp obo all pltfs in 5:11−2484−SLB (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Brooke, Samuel) (Entered: 08/04/2011)
PHV Fee paid: $ 50, receipt number 1126−1453466. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Brooke, Samuel) (Entered: 08/04/2011)
21 Amicus Curiae APPEARANCE entered by Miguel A Perez−Vargas on behalf of Hispanic Association of Colleges and Universities (HACU), Hispanic College Fund, LULAC, META, Inc.. SEE DOCUMENT 26 FOR COMPLETE BRIEF (Entered: 08/05/2011)
22 MOTION for Leave to File As Amici Curiae by National Education Association, Alabama Education Association. (Attachments: # 1 Brief)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Gardner, J) (Entered: 08/05/2011)
23 Corporate Disclosure Statement by Alabama Education Association, National Education Association. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Gardner, J) (Entered: 08/05/2011)
24 MOTION for Preliminary Injunction by Henry N. Parsley, Jr. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Dowd, Augusta) (Entered: 08/05/2011)
25 MOTION for Leave to File Amicus Brief in Support of Preliminary Injunction by National Association of Criminal Defense Lawyers. (Attachments: # 1 Exhibit Brief)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Spina, Thomas) (Entered: 08/05/2011)
26 Amicus Curiae brief on behalf of Hispanic Association of Colleges and Universities (HACU), Hispanic College Fund, LULAC, META, Inc.. (Attachments: # 1 Exhibit A

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− Dear Colleage Letter 1997, # 2 Exhibit B−Delaration MPV, # 3 Exhibit C−Declaration M. Fix, # 4 Exhibit D−Declaration Dr. Castro)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Perez−Vargas, Miguel) (Entered: 08/05/2011)
27 Brief of Amicus Curiae Anti−Defamation League in Support of Plaintiffs' Motion for Preliminary Injunction. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Schoen, David) (Entered: 08/05/2011)
28 MOTION for Leave to Appear Pro Hac Vice by AMERICAN IMMIGRATION LAWYERS ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Badrinath, Vikram) (Entered: 08/05/2011)
29 MOTION for Leave to Appear As Amicus Curiae by AMERICAN IMMIGRATION LAWYERS ASSOCIATION. (Attachments: # 1 Text of Proposed Order Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Badrinath, Vikram) (Entered: 08/05/2011)
30 Brief of Amicus Curiae (AILA). Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Badrinath, Vikram) (Entered: 08/05/2011)
PHV Fee paid: $ 50, receipt number 1126−1454047. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Badrinath, Vikram) (Entered: 08/05/2011)
31 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Central Alabama Fair Housing Center, Fair Housing Center of Northern Alabama, South Alabama Center for Fair Housing, National Fair Housing Alliance, Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Amicus Brief, # 3 Disclosure Statement)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) (Entered: 08/05/2011)
32 ORDER Setting Hearing on Motion (15 in 5:11−cv−02736−SLB) MOTION for Preliminary Injunction : Oral argument set for 8/24/2011 09:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Chief Judge Sharon Lovelace Blackburn; dfts shall file their opposition by 8/15/2011; plas' reply is due by 8/22/2011. Signed by Chief Judge Sharon Lovelace Blackburn on 8/5/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/05/2011)
33 NOTICE of Appearance by David I Schoen on behalf of Anti−Defamation League Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Schoen, David) (Entered: 08/05/2011)
34 MOTION for Leave to File Amicus Curiae Brief In Support of Plaintiffs' Motion for Preliminary Injunction by Alabama Coalition Against Domestic Violence. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Tedrow, Klari) (Entered: 08/05/2011)
35 MOTION for Leave to File Amicus Curiae Brief by NAACP Alabama Conference, ACHR, Alabama NOW, AALDEF, Birmingham Peace Project, Dominican American National Roundtable, Equality Alabama, Federation of Southern Cooperatives/Land Assistance Fund, Hispanic Federation, Immigration Equality, Lawyers Committee for Civil Rights Under Law, Montgomery Improvement Association, National Asian−Pacific Bar Association, National Association of Latino Elected and Appointed Officials, National Council of La Raza, National Employment Law Project, National Guestworker Alliance, National Immigration Law Project of the National Lawyers Guild, New Orleans Workers Center for Racial Justice, Sikh American Legal Defense and Education Fund, Society of American Law Teachers, Southern Christian Leadership Conference, Southern Coalition for Social Justice, United States Hispanic Leadership Institute, National Lawyers Guild. (Attachments: # 1 Exhibit Brief of Amici Curiae & Appendix)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Gespass, David) (Entered: 08/05/2011)

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36 MOTION for Leave to Appear Pro Hac Vice − Steven P. Rice by Alabama Coalition Against Domestic Violence. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Tedrow, Klari) (Entered: 08/05/2011)
37 MOTION for Leave to Appear Pro Hac Vice − Thy B. Bui by Alabama Coalition Against Domestic Violence. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Tedrow, Klari) (Entered: 08/05/2011)
38 RESPONSE in Opposition re (37 in 5:11−cv−02484−SLB) MOTION for Preliminary Injunction and Memorandum in Support filed by Robert Bentley, Robert L. Broussard, Freida Hill, Joseph B. Morton, Luther Strange. (Attachments: # 1 Exhibit 1 (Declaration of Haran Lowe), # 2 Exhibit 2 (Declaration of Jerry Bassett), # 3 Exhibit 3 (Letter from Superintendent Morton), # 4 Exhibit 4 (Letter from Chancellor Hill))Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Davis, James) (Entered: 08/05/2011)
39 Amicus Curiae APPEARANCE entered by David Gespass on behalf of NAACP Alabama Conference. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Gespass, David) (Entered: 08/06/2011)
40 MOTION for Leave to Appear Pro Hac Vice by Central Alabama Fair Housing Center, Fair Housing Center of Northern Alabama, National Fair Housing Alliance, Inc., South Alabama Center for Fair Housing. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) (Entered: 08/08/2011)
41 MOTION for Leave to Appear Pro Hac Vice by Central Alabama Fair Housing Center, National Fair Housing Alliance, Inc., South Alabama Center for Fair Housing, Fair Housing Center of Northern Alabama. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) (Entered: 08/08/2011)
42 MOTION for Leave to Appear Pro Hac Vice by Central Alabama Fair Housing Center, Fair Housing Center of Northern Alabama, National Fair Housing Alliance, Inc., South Alabama Center for Fair Housing. (Attachments: # 1 Text of Proposed Order)Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) (Entered: 08/08/2011)
PHV Fee paid: for Jamie L. Crook $ 50, receipt number 1126−1454701. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) ALND rec # B4601025582 Modified on 8/9/2011 (KAM, ). (Entered: 08/08/2011)
PHV Fee paid: for Katherine Gillaspie $ 50, receipt number 1126−1454704. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James)ALND rec # B4601025584 Modified on 8/9/2011 (KAM, ). (Entered: 08/08/2011)
PHV Fee paid: for Stephen Dane $ 50, receipt number 1126−1454707. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Blacksher, James) ALND rec# B4601025583 Modified on 8/9/2011 (KAM, ). (Entered: 08/08/2011)
43 MOTION for Leave to Appear as Amicus Curiae by Anti−Defamation League. (Attachments: # 1 Exhibit Exhibit "A" − ADL Amicus Brief [DE 71])Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Schoen, David) (Entered: 08/08/2011)
44 MOTION for Leave to Appear PHV by Bonard I. Molina Garcia by NAACP Alabama Conference. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/08/2011)
45 MOTION for Leave to Appear PHV for Gaela K. Gehring Flores by NAACP Alabama Conference. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/08/2011)

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PHV Fee paid: $ 50, receipt number 1126−1455697. (Zall, Barnaby) (Entered: 08/09/2011)
PHV Fee paid: for Stephen P. Rice and Thy B. Bui $100, receipt number B4601025575 Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/09/2011)
ORDER granting (65) Motion for Leave to Appear PHV; granting (72) Motion for Leave to Appear PHV; granting (80) Motion Appear PHV; granting (81) Motion Appear PHV; granting (84) Motion for Leave to Appear PHV; granting (85) Motion for Leave to Appear PHV; granting (86) Motion for Leave to Appear PHV in case 5:11−cv−02484−SLB; granting (20) Motion for Leave to Appear PHV; granting (28) Motion for Leave to Appear PHV; granting (36) Motion Appear PHV; granting (37) Motion Appear PHV; granting (40) Motion for Leave to Appear PHV; granting (41) Motion for Leave to Appear PHV; granting (42) Motion for Leave to Appear PHV in case 2:11−cv−02746−SLB; granting (19) Motion for Leave to Appear PHV; granting (27) Motion Appear PHV; granting (28) Motion Appear PHV; granting (31) Motion for Leave to Appear PHV; granting (32) Motion for Leave to Appear PHV; granting (33) Motion for Leave to Appear PHV; granting (11) Motion for Leave to Appear PHV in case 5:11−cv−02736−SLB ; Counsel are reminded that they must register for electronic filing through this court's website www.alnd.uscourts.gov. Signed by Chief Judge Sharon Lovelace Blackburn on 8/9/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/09/2011)
ORDER granting (66) Motion for Leave to File Amicus Curiae brief; granting (69) Motion for Leave to File Amicus Curiae brief; granting (73) Motion for Leave to Appear Amicus Curiae; granting (75) Motion for Leave to File Amicus Curiae brief; granting (78) Motion for Leave to File Amicus Curiae brief; granting (79) Motion for Leave to File Amicus Curiae; granting (87) Motion for Leave to Appear Amicus Curiae in case 5:11−cv−02484−SLB; granting (22) Motion for Leave to File Amicus Curiae brief; granting (25) Motion for Leave to File Amicus Curiae brief; granting (29) Motion for Leave to Appear Amicus Curiae; granting (31) Motion for Leave to File Amicus Curiae brief; granting (34) Motion for Leave to File Amicus Curiae brief; granting (35) Motion for Leave to File Amicus Curiae brief; granting (43) Motion for Leave to Appear Amicus Curiae in case 2:11−cv−02746−SLB; granting (13) Motion for Leave to File Amicus Curiae brief; granting (16) Motion for Leave to File Amicus Curiae brief; granting (20) Motion for Leave to Appear Amicus Curiae; granting (22) Motion for Leave to File Amicus Curiae brief; granting (25) Motion for Leave to File Amicus Curiae brief; granting (26) Motion for Leave to File Amicus Curiae brief; granting (34) Motion for Leave to Appear Amicus Curiaein case 5:11−cv−02736−SLB ; Amici are DIRECTED to electronically file their briefs FORTHWITH. Signed by Chief Judge Sharon Lovelace Blackburn on 8/9/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM) (Entered: 08/09/2011)
46 ORDER the court will not hear oral argument on motion for more definite statement and to strike − hearing set for 8/24/2011 is cancelled; any opposition to the motion remains due by 8/12/2011. Signed by Chief Judge Sharon Lovelace Blackburn on 8/9/2011. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(KAM, ) (Entered: 08/09/2011)
47 NOTICE of Appearance by Prim Formby Escalona on behalf of Robert Bentley, Robert L. Broussard, Luther Strange, Alabama, State of, Robert J Bentley, Robert L. Broussard, Freida Hill, Joseph B. Morton Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Escalona, Prim) (Entered: 08/09/2011)
48 NOTICE of Appearance by John C Neiman, Jr on behalf of Robert Bentley, Robert L. Broussard, Luther Strange, Alabama, State of, Robert J Bentley, Robert L. Broussard, Freida Hill, Joseph B. Morton Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Neiman, John) (Entered: 08/09/2011)
49 Amicus Curiae Brief re(37 in 5:11−cv−02484−SLB) by Alabama Coalition Against Domestic Violence in Support Of Plaintiffs' Motion For Preliminary Injunction. Associated Cases: 5:11−cv−02484−SLB, 2:11−cv−02746−SLB, 5:11−cv−02736−SLB(Tedrow, Klari) (Entered: 08/09/2011)

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50 MOTION Certify Question to the Supreme Court of Alabama re (15 in 5:11−cv−02736−SLB) MOTION for Preliminary Injunction, (1 in 5:11−cv−02736−SLB) Complaint by Robert Bentley, Robert L. Broussard, Luther Strange. Associated Cases: 5:11−cv−02736−SLB, 2:11−cv−02746−SLB(Fairbanks, Misty) (Entered: 08/09/2011)
PHV Fee paid: $50, receipt number 4601025631 re: Garcia (doc 88 in lead, doc 35 in 2736 and doc 44 in 2746) Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(FNC) (Entered: 08/10/2011)
PHV Fee paid: $50, receipt number 4601025632 re: Flores. (doc 89 in lead; doc 36 in 2736 and doc 45 in 2746). Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(FNC) (Entered: 08/10/2011)
51 AMICI CURIAE BRIEF by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, United Mexican States, Uruguay. (Attachments: # 1 Exhibit A, # 2 Exhibit B)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Still, Edward) (Entered: 08/10/2011)
52 NOTICE of Appearance by Praveen Krishna on behalf of United States of America (Krishna, Praveen) (Entered: 08/10/2011)
53 NOTICE of Appearance by Praveen Krishna on behalf of United States of America (Krishna, Praveen) (Entered: 08/10/2011)
54 Brief re(66 in 5:11−cv−02484−SLB, 22 in 5:11−cv−02746−SLB, 13 in 5:11−cv−02736−SLB) MOTION for Leave to File As Amici Curiae. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Gardner, J) (Entered: 08/10/2011)
55 NOTICE by Alabama Education Association, National Education Association Certification of Service of Motion for Leave, Brief and Corporate Disclosure Statement Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Gardner, J) (Entered: 08/10/2011)
56 MOTION to Amend/Correct (95 in 5:11−cv−02484−SLB) Trial Brief, (amicus) by United Mexican States. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Still, Edward) (Entered: 08/10/2011)
57 Amended MOTION for Preliminary Injunction by Robert J. Baker, Henry N. Parsley, Jr, Thomas J. Rodi, William H. Willimon. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Dowd, Augusta) (Entered: 08/10/2011)
58 MOTION to Amend/Correct First Amended Complaint by Robert J. Baker, Henry N. Parsley, Jr, Thomas J. Rodi, William H. Willimon. Associated Cases: 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Dowd, Augusta) (Entered: 08/11/2011)
PHV Fee paid: $ 50, receipt number 1126−1458556. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Schoen, David) ALND rec# B4601025745 Modified on 8/12/2011 (KAM, ). (Entered: 08/12/2011)
59 MOTION for Leave to Appear Pro Hac Vice on behalf of Dale M. Schwartz, Esquire by Anti−Defamation League. (Attachments: # 1 Exhibit Certificate of Good Standing)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Schoen, David) (Entered: 08/12/2011)
60 MOTION for Leave to Appear PHV by United Mexican States for Carla Gorniak, Henry Solano and Christopher Clark. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Still, Edward) Modified on 8/15/2011 (CVA). (Entered: 08/12/2011)
61 MOTION for Leave to File Pro Hac Vice by Alabama Education Association, National Education Association. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Gardner, J) (Entered: 08/12/2011)
62 ORDER granting (2) Motion for leave to proceed under pseudonyms in case 5:11−cv−02484−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/12/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB,

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5:11−cv−02746−SLB(KAM, ) (Entered: 08/12/2011)
ORDER granting (88) Motion for Leave to Appear PHV; granting (89) Motion for Leave to Appear PHV; granting (100) Motion for Leave to Appear PHV in case 5:11−cv−02484−SLB; granting (44) Motion for Leave to Appear PHV; granting (45) Motion for Leave to Appear PHV; granting (59) Motion for Leave to Appear PHVin case 5:11−cv−02746−SLB; granting (35) Motion for Leave to Appear PHV; granting (36) Motion for Leave to Appear PHV; granting (51) Motion for Leave to Appear PHV in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/12/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/12/2011)
63 Opposition to re (36 in 5:11−cv−02484−SLB, 36 in 5:11−cv−02484−SLB) Plaintiffs' Opposition To Defendants' Motion for More Definite Statement and To Strike filed by Aids Action Coalition, Alabama Appleseed Center for Law & Justice, Inc., Robert Barber, Jeffrey Allen Beck, Boat People SOS, Michelle Cummings, Dreamactivist.org, Greater Birmingham Ministries, Esayas Haile, Hispanic College Fund, Hispanic Interest Coalition of Alabama, Huntsville International Help Center, Interpreters and Translators Assocation of Alabama, Ellin Jimmerson, Pamela Long, Juan Pablo Black Romero, Service Employees International Union, Southern Regional Joint Board of Workers United, Fiseha Tesfamariam, Christopher Barton Thau, United Food and Commercial Workers International Union, Local 1657 United Food and Commercial Workers International Union, Daniel Upton, Matt Webster, Maria D. Ceja Zamora. (Attachments: # 1 Declaration with Exhibits)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Viramontes, Victor) (Entered: 08/12/2011)
64 MOTION for Leave to Appear Pro Hac Vice for Barnaby Zall by American Unity Legal Defense Fund. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Park, John) Modified on 8/15/2011 (CVA). (Entered: 08/15/2011)
65 MOTION for Leave to File Brief Amicus Curiae by American Unity Legal Defense Fund. (Attachments: # 1 Exhibit A)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Park, John) (Entered: 08/15/2011)
PHV Fee paid for Carla Gorniak, Henry Solano and Christopher Clark, receipt number B4601025753, $150 (for Motion 101 in lead case). Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(CVA) (Entered: 08/15/2011)
66 RESPONSE in Opposition re (57 in 5:11−cv−02746−SLB, 47 in 5:11−cv−02736−SLB, 99 in 5:11−cv−02484−SLB) Amended MOTION for Preliminary Injunction (State Defendants' Response to Church Leaders' Amended Motion for Preliminary Injunction and Memorandum in Support) filed by Robert Bentley, Robert L. Broussard, Luther Strange. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Fairbanks, Misty) (Entered: 08/15/2011)
67 MOTION for Leave to Appear by Alabama Legislators. (Attachments: # 1 Exhibit proposed amicus brief, # 2 Exhibit list of individual amici, # 3 Exhibit 1996 OLC opinion, # 4 Exhibit 2002 Bybee memo)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Williams, Stephen) (Entered: 08/15/2011)
68 REPLY to Response to Motion re (37 in 5:11−cv−02484−SLB) MOTION for Preliminary Injunction and Memorandum in Support filed by Aids Action Coalition, Alabama Appleseed Center for Law & Justice, Inc., Robert Barber, Jeffrey Allen Beck, Boat People SOS, Michelle Cummings, Dreamactivist.org, Greater Birmingham Ministries, Esayas Haile, Hispanic Interest Coalition of Alabama, Huntsville International Help Center, Interpreters and Translators Assocation of Alabama, Ellin Jimmerson, Pamela Long, Juan Pablo Black Romero, Service Employees International Union, Southern Regional Joint Board of Workers United, Fiseha Tesfamariam, Christopher Barton Thau, United Food and Commercial Workers International Union, Local 1657 United Food and Commercial Workers International Union, Daniel Upton, Matt Webster, Maria D. Ceja Zamora. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)Associated Cases: 5:11−cv−02484−SLB,

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 17 of 22

08/15/2011 08/17/2011 08/18/2011 08/19/2011 08/19/2011
08/20/2011 08/20/2011 08/21/2011 08/22/2011 08/22/2011

5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Wang, Cecillia) (Entered: 08/15/2011)
69 RESPONSE in Opposition re (2 in 5:11−cv−02746−SLB) MOTION for Preliminary Injunction filed by Alabama, State of, Robert J Bentley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Neiman, John) (Entered: 08/15/2011)
70 Evidentiary Material re:(47 in 5:11−cv−02736−SLB) Amended MOTION for Preliminary Injunction. (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 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Dowd, Augusta) (Entered: 08/17/2011)
71 NOTICE of Appearance by Allison E Neal on behalf of All Plaintiffs Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Neal, Allison) (Entered: 08/18/2011)
72 REPLY to Response to Motion re (47 in 5:11−cv−02736−SLB) Amended MOTION for Preliminary Injunction filed by Robert J. Baker, Benedictine Sisters of Cullman, Alabama, Inc, Benedictine Society of Alabama, Henry N. Parsley, Jr, Thomas J. Rodi, William H. Willimon. (Attachments: # 1 Exhibit A, # 2 Exhibit B)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Dowd, Augusta) (Entered: 08/19/2011)
73 NOTICE by Robert J. Baker, Benedictine Sisters of Cullman, Alabama, Inc, Benedictine Society of Alabama, Henry N. Parsley, Jr, Thomas J. Rodi, William H. Willimon, United States of America, Aids Action Coalition, Alabama Appleseed Center for Law & Justice, Inc., Robert Barber, Jeffrey Allen Beck, Boat People SOS, Michelle Cummings, Dreamactivist.org, Greater Birmingham Ministries, Esayas Haile, Hispanic Interest Coalition of Alabama, Huntsville International Help Center, Interpreters and Translators Assocation of Alabama, Ellin Jimmerson, Pamela Long, Juan Pablo Black Romero, Service Employees International Union, Southern Regional Joint Board of Workers United, Fiseha Tesfamariam, Christopher Barton Thau, United Food and Commercial Workers International Union, Local 1657 United Food and Commercial Workers International Union, Daniel Upton, Matt Webster, Maria D. Ceja Zamora re (37 in 5:11−cv−02484−SLB) MOTION for Preliminary Injunction and Memorandum in Support NOTICE OF SUPPLEMENTAL EVIDENCE (Attachments: # 1 Exhibit A−Napolitano Memo)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Tumlin, Karen) (Entered: 08/19/2011)
74 NOTICE by Alabama, State of, Robert J Bentley, Robert Bentley, Robert L. Broussard, Freida Hill, Joseph B. Morton, Luther Strange re (82 in 5:11−cv−02484−SLB) Response in Opposition to Motion,, (110 in 5:11−cv−02484−SLB) Response in Opposition to Motion, Correction Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Neiman, John) (Entered: 08/20/2011)
75 Brief (State Defendants' Supplemental Briefing Addressing Equal Protection Challenge) filed by Robert Bentley, Robert L. Broussard, Freida Hill, Joseph B. Morton, Luther Strange. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Fleming, Margaret) (Entered: 08/20/2011)
76 Brief HICA Plaintiffs' Supplemental Briefing on Section 28 Equal Protection Challenge. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Brooke, Samuel) (Entered: 08/21/2011)
77 Opposition to (Surreply to) Church Leaders' Motion for Preliminary Injunction (Doc. 99) filed by Robert Bentley, Robert L. Broussard, Luther Strange. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Parker, William) (Entered: 08/22/2011)
78 NOTICE by Hispanic Interest Coalition of Alabama Notice of Supplemental Evidence (Attachments: # 1 Exhibit)Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Turner, Andrew) (Entered: 08/22/2011)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 18 of 22

08/22/2011 08/23/2011 08/23/2011
08/23/2011 08/23/2011 08/23/2011 08/23/2011
08/23/2011 08/23/2011
08/23/2011 08/23/2011 08/24/2011 08/25/2011

79 REPLY Brief filed by Plaintiff United States of America re: 69 Response in Opposition to Motion, 2 MOTION for Preliminary Injunction filed by United States of America. (Reeves, C) (Entered: 08/22/2011)
80 MOTION Leave to File Corrected Cover Page of Reply Brief by United States of America. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Reeves, C) (Entered: 08/23/2011)
ORDER granting (101) Motion for Leave to Appear PHV in case 5:11−cv−02484−SLB; granting (60) Motion for Leave to Appear PHV in case 5:11−cv−02746−SLB; granting (52) Motion for Leave to Appear PHV in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/23/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/23/2011)
ORDER granting (119) Motion to correct cover page in case 5:11−cv−02484−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/23/11. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(SMH) (Entered: 08/23/2011)
ORDER in case 5:11−cv−02484−SLB; granting (71) Motion to correct cover page reflecting consolidated case numbers in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/23/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/23/2011)
81 UNITED STATES OF AMERICAS REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION filed by United States of America. (Deemed filed 8/22/2011 in 5:11cv2746) Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/23/2011)
ORDER granting (105) Motion for Leave to Appear PHV in case 5:11−cv−02484−SLB; granting (64) Motion for Leave to Appear PHV in case 5:11−cv−02746−SLB; granting (56) Motion for Leave to Appear PHV in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/23/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/23/2011)
PHV Fee paid: $ 50, receipt number 1126−1465176. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Gardner, J) (Entered: 08/23/2011)
ORDER granting (102) Motion for Leave Appear PHV by Michael D. Simpson in case 5:11−cv−02484−SLB; granting (61) Motion for Leave to File in case 5:11−cv−02746−SLB; granting (53) Motion for Leave to File in case 5:11−cv−02736−SLB. Signed by Chief Judge Sharon Lovelace Blackburn on 8/23/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/23/2011)
82 MOTION to Dismiss the Second Amended Complaint of Plaintiffs Parsley, et al. (Doc. 50 in Case No. 11−cv−2736) by Robert Bentley, Robert L. Broussard, Luther Strange. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Davis, James) (Entered: 08/23/2011)
83 MOTION to Dismiss the United States' Complaint (Doc. 1 in Case No. 11−cv−2746) by Alabama, State of, Robert J Bentley. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Davis, James) (Entered: 08/23/2011)
Minute Entry for proceedings held before Chief Judge Sharon Lovelace Blackburn: Motion Hearing held on 8/24/2011 re Pltfs' MOTIONS for Preliminary Injunction. (Court Reporter Julie Martin.) Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(SMH) (Entered: 08/24/2011)
84 NOTICE of Appearance by J Mark White on behalf of Henry N. Parsley, Jr Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(White, J) (Entered: 08/25/2011)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 19 of 22

08/25/2011 08/25/2011 08/29/2011
08/30/2011
09/01/2011 09/08/2011 09/19/2011 09/20/2011 09/27/2011 09/28/2011 09/28/2011 09/30/2011

85 NOTICE of Appearance by Andrew C Allen on behalf of Henry N. Parsley, Jr Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Allen, Andrew) (Entered: 08/25/2011)
86 NOTICE of Appearance by Katherine R Brown on behalf of Henry N. Parsley, Jr Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Brown, Katherine) (Entered: 08/25/2011)
87 ORDER that Act 2011−535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first. Signed by Chief Judge Sharon Lovelace Blackburn on 8/29/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/29/2011)
88 Transcript of Proceedings held on 8/24/2011, before Judge Sharon Lovelace Blackburn. Court Reporter/Transcriber Julie Martin. 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. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court forms/transcripts/Transcript Redaction Policy.pdf) See Transcript Redaction Policy Redaction Request due 9/20/2011. Redacted Transcript Deadline set for 9/30/2011. Release of Transcript Restriction set for 11/28/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 08/30/2011)
89 ORDER for case management purposes and ease of appellate review; the 8/3/2011 order of consolidation is vacated; the parties shall file all future pleadings in the individual cases as appropriate. Signed by Chief Judge Sharon Lovelace Blackburn on 9/1/2011. Associated Cases: 5:11−cv−02484−SLB, 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(KAM, ) (Entered: 09/01/2011)
90 Evidentiary Material re:(70 in 5:11−cv−02746−SLB) Evidentiary Material,, Supplemental Submission. (Attachments: # 1 Exhibit A)Associated Cases: 5:11−cv−02736−SLB, 5:11−cv−02746−SLB(Dowd, Augusta) (Entered: 09/08/2011)
91 MOTION to Stay re 83 MOTION to Dismiss the United States' Complaint (Doc. 1 in Case No. 11−cv−2746) by United States of America. (Reeves, C) (Entered: 09/19/2011)
92 NOTICE of Appearance by Joshua Kerry Payne on behalf of Alabama, State of, Robert J Bentley (Payne, Joshua) (Entered: 09/20/2011)
ORDER granting 91 Plaintiff's Unopposed Motion to Stay Further Briefing on Motion to Dismiss. Within two weeks of the court's ruling on the pending Motion for Preliminary Injunction, the parties should file their proposed briefing schedule with regard to the Defendants' Motion to Dismiss. Signed by Chief Judge Sharon Lovelace Blackburn on 9/27/11. (Blackburn, Sharon) (Entered: 09/27/2011)
93 MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/28/2011. (KAM, ) (Entered: 09/28/2011)
94 ORDER in accordance with the memo opn entered contemporaneously, granting in part and denying in part 2 Motion for Preliminary Injunction ; the motion is GRANTED as to Sections 11(a), 13, 16, and 17 of H.B. 56 and dfts are ENJOINED from executing or enforcing these sections ; motion is denied as to Sections 10, 12(a), 18, 27, 28, and 30. Signed by Chief Judge Sharon Lovelace Blackburn on 9/28/2011. (KAM, ) (Entered: 09/28/2011)
95 NOTICE by United States of America re 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, (Reeves, C) (Entered: 09/30/2011)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 20 of 22

09/30/2011 09/30/2011 10/01/2011
10/03/2011
10/04/2011 10/05/2011
10/05/2011
10/06/2011 10/07/2011 10/07/2011 10/11/2011 10/12/2011 10/13/2011
10/14/2011

96 Emergency MOTION to Stay re 95 Notice (Other), 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, Enjoin Portions of H.B. 56 Pending Appeal by United States of America. (Reeves, C) (Entered: 09/30/2011)
NOTICE OF APPEAL as to 94 Order on Motion for Preliminary Injunction, by United States of America. see document 95 (KAM, ) (Entered: 10/03/2011)
ORDER that any opposition to plaintiff's motion for an injunction pending appeal, or alternatively, a temporary injunction pending adjudication of an emergency motion to the court of appeals for an injunction pending appeal(doc. 96) shall be filed no later than 5:00 p.m. on Tuesday, October 4, 2011. Signed by Chief Judge Sharon Lovelace Blackburn on 10/1/11. (SMH) (Entered: 10/01/2011)
97 MOTION To Incorporate Filing By Reference Into United States' Motion For An Injunction Pending Appeal re 96 Emergency MOTION to Stay re 95 Notice (Other), 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, Enjoin Portions of H.B. 56 Pending Appeal by United States of America. (Reeves, C) (Entered: 10/03/2011)
98 RESPONSE in Opposition re 96 Emergency MOTION to Stay re 95 Notice (Other), 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, Enjoin Portions of H.B. 56 Pending Appeal filed by Alabama, State of, Robert J Bentley. (Attachments: # 1 Exhibit A)(Davis, James) (Entered: 10/04/2011)
99 ORDER denying 96 United Statess Motion for an Injunction Pending Appeal or, Alternatively, a Temporary Injunction Pending Adjudication of an Emergency Motion to the Court of Appeals for an Injunction Pending Appeal as further set out in this order. Signed by Chief Judge Sharon Lovelace Blackburn on 10/5/2011. (KAM, ) (Entered: 10/05/2011)
ORDER granting 97 Motion To Incorporate Filing By Reference Into United States' Motion For An Injunction Pending Appeal re 96 Emergency MOTION to Stay re 95 Notice (Other), 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, Enjoin Portions of H.B. 56 Pending Appeal by United States of America.. Signed by Chief Judge Sharon Lovelace Blackburn on 10/5/2011. (KAM, ) (Entered: 10/05/2011)
100 USCA Case Number 11−14532−CC for Notice of Appeal filed by United States of America. (KAM, ) (Entered: 10/06/2011)
101 NOTICE by Alabama, State of, Robert J Bentley Alabama and Governor Bentley's Notice of Cross−Appeal (Davis, James) (Entered: 10/07/2011)
NOTICE OF CROSS APPEAL as to 93 Memorandum Opinion, 94 Order on Motion for Preliminary Injunction, by Alabama, State of, Robert J Bentley. SEE DOCUMENT 101 (KAM, ) (Entered: 10/07/2011)
USCA Appeal Fees received $ 455.00 receipt number B4601027425 re Notice of Cross Appeal filed by Robert J Bentley, Alabama, State of (KAM, ) (Entered: 10/17/2011)
102 Joint MOTION to Stay re Order on Motion to Stay, 83 MOTION to Dismiss the United States' Complaint (Doc. 1 in Case No. 11−cv−2746) Further Briefing on Motion to Dismiss and Rule 26(F) Obligations by United States of America. (Reeves, C) (Entered: 10/12/2011)
ORDER granting 102 Joint Motion to Stay Further Briefing on Motion to Dismiss and Rule 26(f) Obligations. By January 12, 2012, the parties will provide the court with a report on the status of the pending cross appeals and with an update on their respective positions regarding a briefing schedule on the pending Motion to Dismiss. Signed by Chief Judge Sharon Lovelace Blackburn on 10−13−11. (Blackburn, Sharon) (Entered: 10/13/2011)
103 ORDER of USCA, before Carnes, Barkett and Hull, USCJ, the motion for injunction pending appeal is GRANTED IN PART AND DENIED IN PART; The State of Alabama is Enjoined from enforcement of HB 56 − Section 10 and Section 28 pending appeal and until further order by the merits panel; Motion is denied as to Sections 12, 18, 27 and 30. (KAM, ) (Entered: 10/14/2011)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 21 of 22

12/30/2011 01/12/2012 01/12/2012
03/12/2012
05/23/2012 06/01/2012 06/05/2012 08/13/2012 08/13/2012 08/13/2012 08/23/2012 10/18/2012 10/22/2012 10/22/2012 11/21/2012
11/27/2012 11/27/2012 12/10/2012

104 NOTICE of Appearance by R Cooper Shattuck on behalf of Robert J Bentley (Shattuck, R) (Entered: 12/30/2011)
105 STATUS REPORT In Response to Court Order and Requesting that the Court Further Stay Briefing on Motion to Dismiss and Rule 26(f) Obligations by United States of America. (Reeves, C) (Entered: 01/12/2012)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of this appeal re: Notice of Cross Appeal, Notice of Appeal, Appeal No. 11−14532. The entire record on appeal is available electronically, (KAM, ) (Entered: 01/12/2012)
106 ORDER of USCA before Wilson, Martin, USCJ and Voorhees, USDJ, expanding the 10/14/11 order and hereby ENJOIN the State of Alabama's enforcement of Section 27 and 30 of H.B. 56 pending complete resolution of these appeals (KAM, ) (Entered: 03/12/2012)
107 STIPULATION of United States, HICA Plaintiffs, and State Defendants by Hispanic Interest Coalition of Alabama,. filed by Hispanic Interest Coalition of Alabama, (Attachments: # 1 Exhibit A)(Brooke, Samuel) (Entered: 05/23/2012)
108 MOTION to Withdraw as Attorney Prim F. Escalona by Alabama, State of, Robert J Bentley. (Escalona, Prim) (Entered: 06/01/2012)
ORDER granting 108 Motion to Withdraw as Attorney. Attorney Prim Formby Escalona terminated. Signed by Chief Judge Sharon Lovelace Blackburn on 06/05/2012. (SDB, ) (Entered: 06/05/2012)
109 MOTION to Withdraw as Attorney by Alabama, State of, Robert J Bentley. (Payne, Joshua) (Entered: 08/13/2012)
ORDER granting 109 Motion to Withdraw as Attorney. Attorney Joshua Kerry Payne terminated. Signed by Chief Judge Sharon Lovelace Blackburn on 08/13/2012. (SDB, ) (Entered: 08/13/2012)
110 MOTION to Withdraw as Attorney William H. Orrick, III by United States of America. (Reeves, C) (Entered: 08/13/2012)
111 STATUS REPORT in Response to Court Order by United States of America. filed by United States of America (Reeves, C) (Entered: 08/23/2012)
112 MOTION to Withdraw as Attorney by Robert J Bentley. (Shattuck, R) (Entered: 10/18/2012)
ORDER granting 112 Motion to Withdraw as Attorney. Attorney R Cooper Shattuck terminated. Signed by Chief Judge Sharon Lovelace Blackburn on 10/22/2012. (SDB, ) (Entered: 10/22/2012)
ORDER granting 110 Motion to Withdraw as Attorney. Attorney William H Orrick, III terminated. Signed by Chief Judge Sharon Lovelace Blackburn on 10/22/2012. (SDB, ) (Entered: 10/22/2012)
113 MANDATE of USCA as to Notice of Cross Appeal filed by Robert J Bentley, Alabama, State of, Notice of Appeal filed by United States of America, before Wilson, Martin,and Voorhees, AFFIRMING IN PART, REVERSING IN PART, DISMISSING IN PART AND REMANDING as set out, with opinion attached; issued as mandate 11/13/2012 (Attachments: # 1 Opinion)(KAM, ) (Entered: 11/21/2012)
114 STATUS REPORT by United States of America. filed by United States of America (Reeves, C) (Entered: 11/27/2012)
115 STATUS REPORT by United States of America. filed by United States of America (Reeves, C) (Entered: 11/27/2012)
116 ORDER granting 115 Status Report filed by United States of America, denying as moot 114 Status Report filed by United States of America ; the parties shall inform the court whether either party has filed a petition for certiorari or the recommendations for further proceedings by 1/29/2013. Signed by Chief Judge Sharon Lovelace Blackburn on 12/7/2012. (KAM, ) (Entered: 12/10/2012)

Case: 2:11-cv-2746 As of: 04/10/2017 08:53 PM CDT 22 of 22

12/13/2012 01/24/2013 10/29/2013
11/25/2013

117 NOTICE of Appearance by W Scott Simpson on behalf of United States of America (Simpson, W) (Entered: 12/13/2012)
118 STATUS REPORT (Joint) by Alabama, State of, Robert J Bentley, United States of America. filed by Alabama, State of, Robert J Bentley, United States of America (Simpson, W) (Entered: 01/24/2013)
119 Joint MOTION REPORT REGARDING CASE STATUS AND DISPOSITION by Alabama, State of, Robert J Bentley, United States of America. (Attachments: # 1 Exhibit Attachment 1 − Proposed Final Judgment)(Neiman, John) (Entered: 10/29/2013)
120 DISMISSAL ORDER AND STIPULATED PERMANENT INJUNCTION pursuant to the 11th Circuit's decision and the parties joint report; defts are PERMANENTLY ENJOINED from implementing Sections 10, 11(a), 13, 16, 17, and 27 of AL's H.B. 56 and Section 6 of Alabamas H.B.658,2. Plas facial challenges to Sections 12(a), 18, and 30 of H.B. 56,are DISMISSED WITHOUT PREJUDICE; based upon this court's dismissal and permanent injunction in 5:11cv2484−SLB, the United State's claim challenging Section 28 is Dismissed w/out prejudice. Signed by Judge Sharon Lovelace Blackburn on 11/25/2013. (Entered: 11/25/2013)

 
 Case: 11-14532 Date Filed: 08/20/2012 Page: 1 of 57
[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 11-14532; 11-14674 ________________________
D.C. Docket No. 2:11-cv-02746-SLB

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllll

Plaintiff - Appellant Cross Appellee,

versus

STATE OF ALABAMA, GOVERNOR OF ALABAMA,

llllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllll

Defendants - Appellees Cross Appellants,

NATIONAL FAIR HOUSING ALLIANCE, INC., lllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllll

Defendant-Appellee.

________________________

Appeals from the United States District Court for the Northern District of Alabama ________________________ (August 20, 2012)

Case: 11-14532 Date Filed: 08/20/2012 Page: 2 of 57
Before WILSON and MARTIN, Circuit Judges, and VOORHEES,* District Judge. WILSON, Circuit Judge:
On June 9, 2011, Governor Robert Bentley signed into law House Bill 56, titled the “Beason–Hammon Alabama Taxpayer and Citizen Protection Act” (H.B. 56). The stated purpose of the legislation is to discourage illegal immigration within the state and maximize enforcement of federal immigration laws through cooperation with federal authorities. See Ala. Code § 31-13-2. A total of ten provisions of H.B. 56 are at issue in the appeal before us,1 some of which have been amended by an act of the Alabama legislature, House Bill 658 (H.B. 658), which Governor Bentley signed into law on May 18, 2012.
Section 102 of H.B. 56 creates a new state crime for an unlawfully present alien’s “willful failure to complete or carry an alien registration document.” Ala. Code § 31-13-10(a). An unlawfully present alien violates section 10 when he or she is found to be in violation of 8 U.S.C. §§ 1304(e) or 8 U.S.C. § 1306(a), the
* Honorable Richard L. Voorhees, United States District Judge for the Western District of North Carolina, sitting by designation.
1 Additional provisions have been challenged in the related case involving private plaintiffs, Case Nos. 11-14535 and 11-14675. Those additional sections are described in that companion opinion.
2 Consistent with how this case has been presented, we reference the originally designated sections of H.B. 56 rather than the Alabama Code section where the provisions are currently housed.
2

Case: 11-14532 Date Filed: 08/20/2012 Page: 3 of 57
federal provisions governing alien registration. A violation of this provision carries with it a fine of up to $100 and not more than thirty days in prison. Ala. Code § 31-13-10(f).
Section 11 criminalizes an “unauthorized” alien’s application for, solicitation of, or performance of work, whether as an employee or independent contractor, inside the state of Alabama. Ala. Code § 31-13-11(a). An alien who is authorized to work within the United States is not subject to penalty under this provision, id. § 31-13-11(d), and section 11 is otherwise construed as consistent with 8 U.S.C. § 1324a, id. § 31-13-11(j). The United States has challenged the criminalization of the underlying conduct described in subsection (a).
Through section 12, Alabama requires officers to determine a lawfully seized individual’s immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the United States. Id. § 31-1312(a). The immigration-status determination is made pursuant to a request under 8 U.S.C. § 1373(c). Id. A similar request is required for any alien arrested and booked into custody. Id. § 31-13-12(b).
Section 13 creates three new state crimes similar to those codified in 8 U.S.C. § 1324(a)(1)(A). First, it criminalizes the concealment, harboring, or shielding from detection of any alien, as well as any attempt to do so. Ala. Code
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§ 31-13-13-(a)(1). Second, it criminalizes the act of encouraging or inducing an alien to “come to or reside in” Alabama. Id. § 31-13-13(a)(2). Third, it criminalizes transporting, attempting to transport, or conspiring to transport an alien “in furtherance of the unlawful presence of the alien in the United States.” Id. § 31-13-13(a)(3). An individual who engages in “conspiracy to be so transported” is also subject to prosecution. Id. Each individual crime requires knowledge or reckless disregard of the fact that the alien is unlawfully present, see id. § 31-13-13(a)(1)–(3), and H.B. 658 amended the statute to clarify that each crime is to be interpreted consistent with 8 U.S.C. § 1324(a)(1)(A). As originally enacted, section 13 also criminalized certain instances of entering into a rental agreement with an unlawfully present alien. An amendment included in H.B. 658 moved this provision to a different part of the Alabama Code but left it substantively intact. See H.B. 658, § 6.
The next two provisions at issue, section 16 and section 17, concern employment of undocumented workers. Section 16 disallows an employer’s state tax deduction for wages and compensation paid to an alien unauthorized to work in the United States. Ala. Code § 31-13-16(a). An employer who knowingly fails to comply with this requirement is “liable for a penalty equal to 10 times” the deduction claimed. Id. § 31-13-16(b). Section 17 similarly concerns employment,
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and it labels as a “discriminatory practice” an employer’s act of firing or failing to hire a U.S. citizen or an alien authorized to work while the employer simultaneously employs or hires an alien unauthorized to work in the country. Id. § 31-13-17(a). An employer who engages in this practice is subject to a state civil action for compensatory relief, id. § 31-13-17(b), and the losing party in that action must pay court costs and attorneys’ fees, id. § 31-13-17(c).
Section 18 amends a state provision governing drivers’ licenses, Ala. Code § 32-6-9. The preexisting statute required all drivers to possess a drivers’ license and display it upon the request of a proper state official. Id. § 32-6-9(a). Section 18 adds that, when a driver is found to be in violation of subsection (a), a reasonable effort must be made within forty-eight hours to determine that driver’s citizenship and, if an alien, whether the individual is permissibly present in the country. Id. § 32-6-9(c).3
Section 27 prohibits state courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party “had direct or constructive knowledge” of the alien’s unlawful presence and that performance of the contract would require the alien to remain in the state for more than twenty-
3 Originally, the statute also required a person arrested under subsection (a) to be taken to a magistrate in the event the officer could not determine whether the arrestee possessed a valid license. H.B. 658 struck that provision.
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four hours after its formation. Id. § 31-13-26(a). Section 27 does contain exemptions from its scope, including contracts for overnight lodging, purchase of food, medical services, or transportation to facilitate the alien’s return to his country of origin. Id. § 31-13-26(b). Additionally, any federally authorized contract is outside the scope of section 27, as are any contracts entered into prior to the section’s enactment and any contracts for retention of legal counsel. Id. § 31-13-26(c); H.B. 658, § 1.
Next, section 28 provides a process for schools to collect data about the immigration status of students who enroll in public school. Schools are required to determine whether an enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Id. § 31-13-27(a)(1). That determination is made based on the birth certificate of the child. Id. § 31-13-27(a)(2). If none is available, or if the certificate reflects that “the student was born outside . . . the United States or is the child of an alien not lawfully present in the United States,” then the enrolling child’s parent or guardian must notify the school of the “actual citizenship or immigration status of the student under federal law.” Id. § 31-13-27(a)(3). This notification consists of (a) official citizenship or immigration documentation and (b) an attestation under penalty of perjury that the document identifies the child. Id. § 31-13-27(a)(4). If
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the statutory notification is not provided, then the student is presumed to be “an alien unlawfully present in the United States.” Id. § 31-13-27(a)(5).
Finally, as originally enacted, section 30 prohibited unlawfully present aliens from entering, or attempting to enter, into a “business transaction” with the state or a political subdivision thereof. Id. § 31-13-29(b) (2011), amended by H.B. 658, § 1. A business transaction was defined as including “any transaction,” except for the application of marriage licenses. Id. § 31-13-29(a). As amended by H.B. 658, the provision now prohibits unlawfully present aliens from entering, or attempting to enter, into a “public records transaction” with the state or a political subdivision thereof. H.B. 658, § 1. A public records transaction is defined as applying for or renewing “a motor vehicle license plate,” “a driver’s license or nondriver identification card,” “a business license,” “a commercial license,” or “a professional license.” Id. Any person who violates this prohibition, or any person who attempts to enter into a public records transaction on behalf of an unlawfully present alien, can be charged with a Class C felony. Ala. Code § 31-13-29(d).
Several additional provisions also bear on the application and interpretation of H.B. 56 as a whole. Section 2 provides the overall goals and findings of the
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legislature in enacting the law.4 Section 5 prohibits state officials from adopting
any policy that would restrict enforcement of federal immigration law to its full
extent and provides for a civil cause of action to challenge alleged lax enforcement
of the law. See id. § 31-13-5. Section 6 similarly prohibits state officials from
adopting relaxed enforcement policies with regard to Alabama’s own immigration
provisions and provides an analogous civil cause of action. See id. § 31-13-6.
Both of these sections impose a duty on state officials to report violations of
4 Section 2 states in full:
The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. Because the costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States can adversely affect the availability of public education resources to students who are United States citizens or are aliens lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States, in order to forecast and plan for any impact that the presence such population may have on publicly funded education in this state. The State of Alabama further finds that certain practices currently allowed in this state impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama. Therefore, the people of the State of Alabama declare that it is a compelling public interest to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Alabama also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
Ala. Code § 31-13-2.
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Alabama’s immigration laws, and failure to do so could result in a conviction under Ala. Code § 13A-10-2 for obstructing government operations. Id. §§ 31-135(f), -6(f). The results of Alabama’s immigration-enforcement scheme are reported periodically pursuant to section 24, which requires the Alabama Department of Homeland Security to summarize the “progress being made in the effort to reduce the number of illegal aliens in the State of Alabama” in a public report. Id. § 31-13-23.
Before the challenged provisions became effective, the United States filed suit seeking to enjoin them on the ground that they are an impermissible attempt to regulate immigration and are, therefore, preempted by federal law. Around the same time, a group of private plaintiffs filed a separate preenforcement challenge to H.B. 56 asserting preemption and other constitutional claims. (Although many of the issues overlap, these appeals are not consolidated, and the case involving the private plaintiffs is resolved in a companion case, Nos. 11-14535, 11-14675.) Along with its complaint, the United States filed a motion for a preliminary injunction to preserve the status quo until final adjudication. The United States sought to enjoin enforcement of sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30. At the time of filing, the private plaintiffs had already filed a motion for a preliminary injunction, and the district court consolidated the two cases for
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purposes of deciding the preliminary injunction issues. After briefing and argument, the district court granted in part and denied in
part the motions for preliminary injunction. The district court found a likelihood of success in the preemption challenge to sections 11(a), 13, 16, and 17 and enjoined their enforcement; it did not find a likelihood of success in the preemption challenge to sections 10, 12(a), 18, 27, 28, and 30.5 United States v. Alabama, 813 F. Supp. 2d 1282 (N.D. Ala. 2011).
The United States and private plaintiffs appealed the district court’s denial of a preliminary injunction, and Alabama cross-appealed the district court’s grant of preliminary injunctive relief. After filing its notice of appeal, the United States sought from this court an injunction pending appeal to prevent enforcement of the sections for which the district court denied an injunction. A panel of this court granted in part the motion for injunction pending appeal, enjoining enforcement of sections 10 and 28. Later, after briefing and oral argument, we modified the injunction pending ultimate disposition of this appeal and enjoined enforcement of sections 27 and 30. As a result of the rulings, only two challenged provisions—sections 12 and 18—are currently being enforced, each of which
5 In the case of the private plaintiffs, the district court further found that sections 8, 10(e), 11(e)–(g), and 13(h) should be enjoined. Hispanic Interest Coal. of Ala. v. Bentley, ___ F. Supp. 2d ___, No. 11-2484, 2011 WL 5516953 (N.D. Ala. Sept. 28, 2011).
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provides for law enforcement inquiries into the immigration status of certain individuals suspected of criminal activity.6
Having closely considered the positions and new briefing of the parties in light of the recent decision in Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (2012), we conclude that most of the challenged provisions cannot stand. Specifically, we conclude that the United States is likely to succeed on its preemption claims regarding sections 10, 11(a), 13(a), 16, 17, and 27. We therefore affirm the district court’s decision as to sections 11(a), 13(a), 16, and 17. We reverse the district court’s decision as to sections 10 and 27 and remand for the entry of a preliminary injunction. We conclude, however, that the United States has not at this stage shown that sections 12(a), 18, or 30 are facially invalid. We therefore affirm the district court’s decision not to preliminarily enjoin these provisions. Finally, because we find section 28 violative of the Equal Protection Clause in the companion case brought by private plaintiffs, we dismiss the United States’s appeal as to this section as moot without deciding whether that provision is preempted. In sum, we affirm in part and reverse in part the order of the district
6 In supplemental briefing following the Supreme Court’s decision in Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (2012), the United States declared that it will no longer pursue the appeal of sections 12 and 18. Because neither party has requested dismissal of the appeal, we will address the merits of the preemption claim with respect to sections 12 and 18, recognizing the concession of the United States that it will not succeed on those claims.
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court, and we dismiss in part the appeal. I. Standard of Review
We review a district court’s grant of a preliminary injunction for abuse of discretion. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). Legal determinations underlying the grant of an injunction are reviewed de novo, and factual determinations are reviewed for clear error. Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171–72 (11th Cir. 2002).
II. Discussion A preliminary injunction may be granted to a moving party who establishes “(1) substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Robertson, 147 F.3d at 1306. We address these factors in turn, focusing in particular on the most contested determination—whether the United States is likely to succeed on the preemption claims. A. Likelihood of Success on the Merits Our Constitution provides Congress with the power to preempt state law, see U.S. Const. art. VI cl. 2, and that preemption may be express or implied.
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Although preemption law cannot always be neatly categorized, we generally recognize three classes of preemption. See Browning, 522 F.3d at 1167 (recognizing the doctrines of express, field, and conflict preemption). The first, express preemption, arises when the text of a federal statute explicitly manifests Congress’s intent to displace state law. Id. The second, field preemption, “occurs when a congressional legislative scheme is ‘so pervasive as to make the reasonable inference that Congress left no room for the states to supplement it.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947)). To determine the boundaries that Congress sought to occupy within the field, we look to “‘the federal statute itself, read in the light of its constitutional setting and its legislative history.’” De Canas v. Bica, 424 U.S. 351, 360 n.8, 96 S. Ct. 933, 938 (1976) (quoting Hines v. Davidowitz, 312 U.S. 52, 78–79, 61 S. Ct. 399, 410 (1941) (Stone, J., dissenting)).
The third, conflict preemption, may arise in two ways. First, conflict preemption can occur “when it is physically impossible to comply with both the federal and the state laws.” Browning, 522 F.3d at 1167. Conflict preemption may also arise “when the state law stands as an obstacle to the objective of the federal law.” Id. We use our judgment to determine what constitutes an unconstitutional obstacle to federal law, and this judgment is “informed by
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examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373, 120 S. Ct. 2288, 2294 (2000).
In determining the extent to which federal statutes preempt state law, we are “guided by two cornerstones.” Wyeth v. Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 1194 (2009). First, “‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’” Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250 (1996)). Second, we assume “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.” Id. at 565, 116 S. Ct. at 1194–95 (internal quotation marks and alterations omitted); see also Arizona, 132 S. Ct. at 2501. With these considerations in mind, we turn to the merits of whether the United States is likely to succeed on its claims that sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 are preempted by federal law.
1. Section 10 Section 10 criminalizes an unlawfully present alien’s willful failure to complete or carry registration documents in violation of 8 U.S.C. §§ 1304(e), 1306(a). The district court rejected the United States’s preemption argument, finding that section 10 is a permissible complement to federal law. This court
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enjoined enforcement of section 10 pending appeal. Having the benefit of the Supreme Court’s decision in Arizona, we conclude that the district court erred in finding that the United States was not likely to succeed on its preemption challenge to section 10.7
In Arizona v. United States, the Supreme Court recently found preempted section 3 of Arizona’s Senate Bill 1070 (S.B. 1070), which forbade “willful failure to complete or carry an alien registration document” in violation of 8 U.S.C. §§ 1304(e) or 1306(a). 132 S. Ct. at 2501 (quoting Ariz. Rev. Stat. § 13-1509(A)). After identifying the federal statutes that Congress enacted to create the present alien-registration scheme, the Court concluded that the federal government “has occupied the field of alien registration.” Id. at 2502. Congress promulgated standards for alien registration as well as “punishment for noncompliance.” Id. As a result of field preemption, Congress manifestly “foreclose[d] any state regulation in the area, even if it is parallel to federal standards.” Id.
Like section 3 of S.B. 1070, section 10 intrudes into the field of alien registration, which the Supreme Court has confirmed is an area of exclusive federal concern. Because federal law occupies the field, “even complementary
7 In supplemental briefing after Arizona, Alabama has acknowledged that section 10 is preempted.
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state regulation is impermissible.” Id. As was the case in Arizona, any attempt by Alabama to enforce its own requirements would dilute federal control over immigration enforcement and detract from Congress’s comprehensive scheme. Id. The Court has made clear that a state’s shared goal and adoption of federal standards is insufficient to save its statute from a finding of field preemption. Id. at 2502–03. The Court’s holding that federal alien registration law occupies the field necessarily requires that state regulations in that area are preempted. We therefore conclude, consistent with Arizona, that section 10 is preempted by federal law.
2. Section 11(a) Section 11(a) criminalizes the knowing application for work, solicitation of work, or performance of work by an alien who is not authorized to work in the United States. The district court enjoined this section on the ground that Congress intended to curb the employment of unauthorized aliens by regulating the actions of employers who hire unauthorized workers, not the employees who acquire these jobs. The Supreme Court concluded in Arizona that a nearly identical provision of Arizona law was preempted, and in light of that holding, we agree with the district
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court.8 In Arizona, the Supreme Court passed on section 5(C) of S.B. 1070, which
made 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 the state. 132 S. Ct. at 2503 (quoting Ariz. Rev. Stat. § 13-2928(C)). The Court explained that Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, as “a comprehensive framework ‘combating the employment of illegal aliens.’” Arizona, 132 S. Ct. at 2504 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S. Ct. 1275, 1282 (2002)). Notably, while federal law contemplates some consequences for unauthorized aliens who accept employment, IRCA “does not impose federal criminal sanctions on the employee side” and instead imposes criminal penalties on employers who hire unauthorized aliens. Id. IRCA’s regulatory scheme, along with its legislative history, compelled the Court to conclude that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Id.; see also id. (“IRCA’s framework reflects a considered judgment that making criminals
8 In supplemental briefing after Arizona, Alabama has acknowledged that section 11(a) is preempted.
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out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.”). In light of this intent, the Court found that Arizona’s law “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.” Id. at 2505. As a result, it found section 5(C) preempted by federal law. Id.
In light of Congress’s decision that “it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment,” Alabama’s section 11(a) is preempted by federal law. Id. Section 11(a) cannot be meaningfully distinguished from the provision at issue in Arizona. Both the Alabama and Arizona provisions criminalize the application, solicitation, and performance of work by an unauthorized alien. Ala. Code § 31-13-11(a); Ariz. Rev. Stat. § 13-2928(C). This attempt to criminalize conduct that Congress has chosen not to criminalize presents an obstacle to accomplishment of federal law. Arizona, 132 S. Ct. at 2505. As a result, section 11(a) is preempted by federal law.
3. Section 12(a) Pursuant to section 12, a state law enforcement officer is obligated to investigate the immigration status of lawfully seized individuals whom the officer has reasonable suspicion to believe is unlawfully present in the United States.
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Neither the district court nor this court enjoined this section. Following Arizona,
and consistent with the positions of the parties, we conclude that the United States
is not likely to succeed on its challenge to section 12 in this preenforcement
challenge.
In Georgia Latino Alliance for Human Rights v. Deal (GLAHR), No. 11-
13044, ___ F.3d ___ (11th Cir. Aug. 20, 2012), we recounted relevant aspects
from the recent Supreme Court opinion in Arizona v. United States:
In Arizona, the Supreme Court rejected a preenforcement challenge to section 2(B) of S.B. 1070, which requires state officers to make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there exists reasonable suspicion that the detained individual is an unlawfully present alien. 132 S. Ct. at 2507; see Ariz. Rev. Stat. § 11-1051(B). The Arizona statute contains three limitations: production of certain identification renders an individual presumptively lawfully present, Ariz. Rev. Stat. § 11-1051(B); officers may not consider race, color, or national origin except as authorized by the United States and Arizona Constitutions, id.; and the statute must be implemented consistently with federal law and in a manner protective of civil rights, id. § 11-1051(L).
Arizona clarified the principle that “[c]onsultation between federal and state officials is an important feature of the immigration system.” 132 S. Ct. at 2508. Pursuant to 8 U.S.C. § 1357(g)(10), state officers may permissibly communicate with the federal government about “the immigration status of any individual,” even absent a formalized agreement between the locality and federal government. Moreover, Congress has set up a system to provide assistance to state officers and has mandated that Immigration and Customs Enforcement (ICE) respond to state inquiries concerning the immigration status of individuals. Arizona, 132 S. Ct. at 2508.
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Above all, Congress has “encouraged the sharing of information about possible immigration violations,” and federal law permits “a policy requiring state officials to contact ICE as a routine matter.” Id. The state’s failure to incorporate or reference federal enforcement priorities in its immigration-inquiry statute is irrelevant. Id.
The Court also explained in Arizona that a preenforcement challenge to the scope of detention authorized by the state statute is premature. Id. at 2509–10. It noted the potential problems with a state statute that would permit detention “solely to verify [an individual’s] immigration status” but noted that the state’s interpretation of its statute could remedy these concerns. Id. at 2509. In sum, if all the state statute requires is that state officers conduct an immigration inquiry “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 objectives.” Id. Notably, the Court left open the possibility that the interpretation and application of Arizona’s law could prove problematic in practice and refused to foreclose future challenges to the law. Id. at 2510.
GLAHR, Slip Op. at 28–30.
Like the relevant Arizona provision, we are compelled to conclude that this
preenforcement challenge to section 12(a) cannot succeed. As the Court
confirmed in Arizona, it is not problematic to request information explicitly
contemplated by federal law. See Arizona, 132 S. Ct. at 2508. While we do not
foreclose any future challenge to the scope of detention eventually authorized or
permitted under section 12(a), at this point we cannot conclude that the state
statute “will be construed in a way that creates a conflict with federal law.” Id. at
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2510. As a result, we reject the preenforcement challenge that section 12(a) is
preempted by federal law.
4. Section 13
Section 13 creates state crimes for (1) concealing, harboring, or shielding an
unlawfully present alien from detection, or attempting to do so; (2) encouraging or
inducing an unlawfully present alien to “come to or reside in” Alabama; (3)
transporting, attempting to transport, or conspiring to transport an unlawfully
present alien, including an alien’s conspiracy to be transported; and (4) harboring
an unlawfully present alien by entering into a rental agreement with that alien.9
The district court enjoined operation of this section on the ground it was conflict
preempted by the largely analogous provisions of the INA. Even in light of the
recent amendments accomplished by H.B. 658, we agree.10
9 Although section 6 of H.B. 658 altered the phrasing of the rental-agreement provision and moved it to another section of the Alabama Code, the parties have stipulated in district court that the preliminary injunction extends to section 6 of H.B. 658. Our discussion of section 13 therefore encompasses the rental-agreement provision, which is, for purposes of our review, substantively the same as the prior enactment.
10 Like the parties, we conclude that the challenge to section 13 is not moot in light of H.B. 658. The statutory amendments merely clarified that section 13 was to be applied consistently with federal law and moved one provision to another part of the Alabama Code. The United States has argued that section 13 is preempted because it regulates “the same type of conduct already regulated by Congress.” Response Brief of United States at 47. The amendments, which clarify that section 13 reaches only the conduct proscribed by federal law, do not affect the core preemption challenge lodged by the United States. See Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 113 S. Ct. 2297, 2301 (1993).
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We first look to the intent of Congress to determine the scope of the federal
immigration scheme. In GLAHR, we found that federal law “provides a
comprehensive framework to penalize the transportation, concealment, and
inducement of unlawfully present aliens” and summarized the relevant provisions
of the INA:
Pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii)–(iv), it is a federal crime for any person to transport or move an unlawfully present alien within the United States; to conceal, harbor, or shield an unlawfully present alien from detection; or to encourage or induce an alien to “come to, enter, or reside in the United States.” Any person who conspires or aids in the commission of any of those criminal activities is also punishable. Id. § 1324(a)(1)(A)(v). Section 1324(c) permits local law enforcement officers to arrest for these violations of federal law, but the federal courts maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute. See id. § 1329. Subsection (d) of § 1324 further dictates evidentiary rules governing prosecution of one of its enumerated offenses, and subsection (e) goes so far as to mandate a community outreach program to “educate the public in the United States and abroad about the penalties for bringing in and harboring aliens in violation of this section.” Rather than authorizing states to prosecute for these crimes, Congress chose to allow state officials to arrest for § 1324 crimes, subject to federal prosecution in federal court. See id. §§ 1324(c), 1329. In the absence of a savings clause permitting state regulation in the field, the inference from these enactments is that the role of the states is limited to arrest for violations of federal law. See De Canas, 424 U.S. at 363, 96 S. Ct. at 940.
The comprehensive nature of these federal provisions is further evident upon examination of how § 1324 fits within the larger context of federal statutes criminalizing the acts undertaken by aliens and those who assist them in coming to, or remaining within, the United
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States. Regarding the aliens themselves, § 1325, for example, imposes civil and criminal penalties for unlawful entry into the United States. Congress has similarly authorized criminal penalties for individuals who bring aliens into the United States, id. § 1323, aid the entry of an inadmissible alien, id. § 1327, and import an alien for an immoral purpose, id. § 1328. In enacting these provisions, the federal government has clearly expressed more than a “peripheral concern” with the entry, movement, and residence of aliens within the United States, see De Canas, 424 U.S. at 360–61, 96 S. Ct. at 939, and the breadth of these laws illustrates an overwhelmingly dominant federal interest in the field.
GLAHR, Slip Op. at 19–21 (footnote omitted).
We found support for the conclusion that the similar sections of Georgia’s
immigration law were preempted by looking to the recent Arizona decision and
Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477 (1956).
Section 3 of Arizona’s Senate Bill 1070 (S.B. 1070) added a “statelaw penalty for conduct proscribed by federal law”—the failure to complete and carry alien registration documents as required by 8 U.S.C. §§ 1304(e), 1306(a). Arizona, 132 S. Ct. at 2501. The Court explained the comprehensive nature of the current federal registration scheme, which holds aliens to certain standards of conduct and penalizes their willful failure to register with the federal government. Id. at 2502. Based on the breadth of federal regulation, the Court concluded that “the Federal Government has occupied the field of alien registration” and therefore found impermissible “even complementary state regulation” within that field. Id.; see also id. (“Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field . . . that has been occupied by federal law.”). The Supreme Court dismissed the state’s argument that its goal of concurrent enforcement was appropriate in a field occupied by federal regulation. Id. at 2502–03. Like the federal registration scheme addressed in Arizona, Congress has provided a
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“full set of standards” to govern the unlawful transport and movement of aliens. Id. at 2502. The INA comprehensively addresses criminal penalties for these actions undertaken within the borders of the United States, and a state’s attempt to intrude into this area is prohibited because Congress has adopted a calibrated framework within the INA to address this issue. See id. at 2502–03.
. . . In Nelson, the Court held that Pennsylvania’s sedition act, which “proscribe[d] the same conduct” as the federal sedition statute, was preempted by federal law. Id. at 499, 76 S. Ct. at 479. As it did in Arizona, the Court rejected the state’s argument that its purported supplementation of federal law shielded the state statute from federal preemption. See id. at 504, 76 S. Ct. at 481; see also Charleston & W. Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S. Ct. 715, 717 (1915) (“When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.”). The Court later discussed that the federal statute’s preemptive effect was implied because it occupied “the specific field which the States were attempting to regulate.” De Canas, 424 U.S. at 362, 96 S. Ct. at 940. The finding of preemption in Nelson was further justified because, like here, Congress had not sanctioned concurrent state legislation “on the subject covered by the challenged state law.” Id. at 363, 96 S. Ct. at 940.
GLAHR, Slip Op. at 21–23. Like the Georgia law at issue in GLAHR, we similarly
conclude that Alabama is prohibited from enacting concurrent state legislation in
this field of federal concern.
Furthermore, section 13 undermines the intent of Congress to confer
discretion on the Executive Branch in matters concerning immigration. As we
explained in GLAHR, “[b]y confining the prosecution of federal immigration
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crimes to federal court, Congress limited the power to pursue those cases to the appropriate United States Attorney. See 8 U.S.C. § 1329; Arizona, 132 S. Ct. at 2503 (explaining that if the state provision came into force, states 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 determine that prosecution would frustrate federal policies’). As officers of the Executive Branch, U.S. Attorneys for the most part exercise their discretion in a manner consistent with the established enforcement priorities of the Administration they serve.” GLAHR, Slip Op. at 24. Even though section 13 contemplates consistency with the text of 8 U.S.C. § 1324, its enforcement is noticeably “not conditioned on respect for the federal concerns or the priorities that Congress has explicitly granted executive agencies the authority to establish.” Id. (citing Department of Homeland Security Appropriations Act 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009), which requires the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime”). Section 13, at the very least, is in tension with federal law.
Also relevant to our finding of conflict preemption, though, are the substantive differences between the federal and state laws. Like the Georgia law
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at issue in GLAHR, section 13 also
creates a new crime unparalleled in the federal scheme. Federal law prohibits an individual from encouraging or inducing an alien to “come to, enter, or reside in the United States.” 8 U.S.C. § 1324(a)(1)(A)(iv) (emphasis added). Once inside the territory, though, it is not (and has never been) a federal crime for a person to encourage an alien to migrate into another state. The Supreme Court has indicated that such additional regulation conflicts with federal law, at least when federal interest dominates. See Hines, 312 U.S. at 66–67, 61 S. Ct. at 404 (“[W]here the federal government, in the exercise of its superior authority in th[e immigration] field, has enacted a complete scheme of regulation . . . , states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” (emphasis added)). Similarly, the criminal acts of harboring and transporting unlawfully present aliens constitute an impermissible “complement” to the INA that is inconsistent with Congress’s objective of creating a comprehensive scheme governing the movement of aliens within the United States. See id.
GLAHR, Slip Op. at 26–27.
Still, other provisions of section 13 are more troubling. First, the
criminalization of an alien’s “conspiracy to be transported,” Ala. Code § 31-13-
13(a)(3), by its text, appears to prohibit an unlawfully present alien from even
agreeing to be a passenger in a vehicle. This provision cannot coexist with
§ 1324(a), as unlawfully present aliens who are transported “are not criminally
responsible for smuggling under 8 U.S.C. § 1324.” United States v. Hernandez-
Rodriguez, 975 F.2d 622, 626 (9th Cir. 1992). Next, the prohibition on
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“harbor[ing] an alien unlawfully present in the United States by entering into a rental agreement . . . to provide accommodations,” H.B. 658, § 6, effectuates an untenable expansion of the federal harboring provision. See, e.g., United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008) (construing “harboring” to encompass conduct tending to “prevent government authorities from detecting the alien’s unlawful presence”); United States v. Myung Ho Kim, 193 F.3d 567, 574 (2d Cir. 1999) (same); see also United States v. Chang Qin Zheng, 306 F.3d 1080, 1086 (11th Cir. 2002) (finding evidence sufficient to convict of harboring where the defendant facilitated the aliens’ presence in the United States and “prevented government authorities from detecting the illegal aliens’ unlawful presence” (citing Myung Ho Kim, 193 F.3d at 574)); Lozano v. City of Hazleton, 620 F.3d 170, 223 (3d Cir. 2010) (“[W]e are not aware of any case in which someone has been convicted of ‘harboring’ merely because s/he rented an apartment to someone s/he knew (or had reason to know) was not legally in the United States.”), vacated, 131 S. Ct. 2958 (2011) (vacating for further consideration in light of Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, 131 S. Ct. 1968 (2011)). Because each of these individual provisions mandates enforcement of “additional or auxiliary regulations” that the INA does not contemplate, they are conflict
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preempted.11 See Hines, 312 U.S. at 66–67, 61 S. Ct. at 404. 5. Section 16
Section 16 prohibits employers from deducting as a business expense on their state tax filings any compensation paid to unauthorized aliens. It imposes a monetary penalty for violation of this provision equal to ten times the deduction, payable to the Alabama Department of Revenue. The district court found that the United States was likely to succeed on its preemption challenge to section 16, and we agree that it is expressly preempted by 8 U.S.C. § 1324a(h)(2).
Section 1324a, enacted in 1986 as part of IRCA, regulates the employment of aliens unauthorized to work in the United States. It expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Alabama does not characterize the statutory denial of a tax deduction as a licensing law but nevertheless contends that section 16 is not preempted. Therefore our task is to determine whether the statutory prohibition constitutes a “sanction” within the
11 Alabama contends that, if anything, only certain offending sentences of section 13 are preempted. As we have explained, however, section 13 in its entirety is at odds with federal law, both as an enactment within the comprehensive scope of analogous federal provisions, see Arizona, 132 S. Ct. at 2502–03, and as legislation in conflict with the INA.
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meaning of § 1324a(h)(2). Alabama argues that a “sanction” should be interpreted narrowly and
contends that the withholding of a tax deduction is more properly characterized as withholding a sort of reward from an employer. Neither Congress nor the Supreme Court has precisely delineated the boundaries of what constitutes a “sanction” under § 1324(a)(h)(2). In interpreting a statute, “we assume that Congress used the words in a statute as they are commonly and ordinarily understood.” Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212 (11th Cir. 2010). A sanction is commonly understood to be “a restrictive measure used to punish a specific action or to prevent some future activity.” Webster’s Third New International Dictionary 2009 (1976). Notably, a sanction “may take the form of a reward which is withheld for failure to comply with the law.” Id. In its briefs, Alabama itself characterizes the relevant consequence as withholding of a “reward” (i.e. a tax deduction), and that description falls squarely within the common usage of the term sanction.12 The obvious goal of section 16 is “to
12 The Supreme Court has likewise instructed that, “[a]s a general matter, the meaning of ‘sanction’ is spacious enough to cover not only . . . punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended.” United States Dep’t of Energy v. Ohio, 503 U.S. 607, 621, 112 S. Ct. 1627, 1636 (1992). This generality applies with full force here, where Alabama seeks to coerce employers through the withholding of tax deductions and imposition of steep fines when an employer takes those deductions.
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prevent some future activity” of an employer—the hiring of unauthorized workers. We are thus persuaded that the ordinary understanding of the term sanction encompasses the section 16 prohibition on tax deductions.
The structure of § 1324a offers further support that the section 16 prohibition is preempted. Congress utilized the word “penalty” to describe civil fines in § 1324a(e)(4)(A), in contrast to use of “sanction” in subsection (h)(2). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam)). As the Tenth Circuit stated: “Had Congress intended to preempt only those state laws that are punitive, we would have expected it to use ‘penalties’ in § 1324a(h)(2). Had it used ‘sanctions’ in § 1324a(e)(4), we might reach a similar conclusion. It did neither.” Chamber of Commerce v. Edmondson, 594 F.3d 742, 765 (10th Cir. 2010).
Along those lines, by expressly exempting “licensing and similar laws” from its reach, Congress implicitly recognized that the unqualified statutory term “sanction” was broad enough to cover those types of nonpunitive measures. If
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Congress had shared Alabama’s narrow definition of a sanction, it would not have needed to clarify that licensing laws were permitted, since they would not be contemplated as a sanction in the first place. Because Alabama’s reading would render the licensing exemption superfluous, we do not accept its definition of “sanction.” See Huff v. DeKalb Cnty., 516 F.3d 1273, 1280 (11th Cir. 2008) (“[C]ourts must not interpret one provision of a statute to render another provision meaningless.” (quoting Burlison v. McDonald’s Corp., 455 F.3d 1242, 1247 (11th Cir. 2006))). The licensing exclusion and the broader structure of § 1324a thus reinforce our conclusion that Congress intended the term “sanction” to encompass more than simply monetary penalties, in accordance with its ordinary meaning.
Section 16 is functionally indistinguishable from a monetary sanction imposed on persons who employ unauthorized aliens because it denies employers an otherwise available tax deduction on account of an employee’s immigration status. See Ala. Code § 40-18-15(a)(1) (permitting deductions for “ordinary and necessary” business expenses as determined in accordance with federal law); see also I.R.C. § 162(a)(1) (classifying reasonable salaries paid to employees as an ordinary and necessary business expense). Denying this deduction has the same effect on an employer as would the imposition of a direct fine. The means by which Alabama takes money from the employer is a distinction without a
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difference under these circumstances, and the attempted end-run around § 1324a(h)(2)’s express preemption clause is impermissible. We therefore agree with the district court that section 16 is preempted.
6. Section 17 Section 17 declares that it is a “discriminatory practice” for an employer to either fire or fail to hire an individual authorized to work in the United States while simultaneously employing an unauthorized alien employee. Ala. Code § 3113-17(a). It provides a civil cause of action for recovery of compensatory damages related to this “discriminatory practice” as well as court costs and attorneys’ fees for the prevailing party. Id. § 31-13-17(b)–(c). Section 17 also instructs that “[t]he court shall consider only the federal government’s determination when deciding whether an employee is an unauthorized alien.” Id. § 31-13-17(e). The district court found that, like section 16, this provision is expressly preempted by 8 U.S.C. § 1324a(h)(2). We agree. Alabama’s civil-liability scheme acts to deter employers from hiring and retaining unauthorized aliens.13 Section 17 authorizes “restrictive
13 The private nature of the liability is irrelevant. “[O]nly an arbitrary distinction exists between sanctions initiated by government and those initiated by private individuals. Civil liability necessarily bears the sanction of government.” 1A Sutherland Statutory Construction § 20:19 (7th ed. 2009).
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measures”—compensatory damages, mandatory attorneys’ fees, and mandatory court costs—to punish a “specific action”—hiring or retaining an unauthorized employee. It therefore fits well within the ordinary understanding of a sanction. Although section 17 conditions liability on a prerequisite act—firing or refusing to hire an authorized worker—that requirement does not obviate a finding that this section functions as a sanction. Section 17 at its core is clearly intended to punish the employment of unauthorized aliens, and adding a conjunctive condition that targets specific circumstances under which this behavior will be punished does not change its essence as a sanction.
Our conclusion is in accord with the Tenth Circuit’s finding that § 1324a expressly preempted a similar state compensatory statute. Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010). In Edmondson, the Tenth Circuit was faced with an Oklahoma law subjecting employers to “cease and desist orders, reinstatement, back pay, costs, and attorneys’ fees” if they terminated a legal worker while retaining an unauthorized alien employee. 594 F.3d at 765. In addition to looking at the common understanding of the term “sanction,” the Tenth Circuit found instructive the use of that term in other provisions of federal law. See id. at 765–66. The court noted that “sanctions” in the Federal Rules of Civil Procedure included in their scope reasonable attorneys’ fees, costs, and other
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expenses. Id. at 766 (citing Fed. R. Civ. P. 11(c)(4), 37(d)(3)). Like section 17, the Oklahoma statute included precisely those punishments described as sanctions in other parts of federal law, which offered further justification that it was expressly preempted by § 1324a.
Alabama analogizes three cases to illustrate that section 17’s “compensatory remedies” cannot qualify as § 1324a sanctions. In none of those cases, however, is an employer required to pay on account of his having hired or retained an unauthorized alien; the cause of action in each case was based on another statute wholly removed from any contingency of employing an unauthorized alien. Alabama first relies on Madeira v. Affordable Housing Foundation, Inc., in which the Second Circuit held that § 1324a did not expressly preempt a state workers’ compensation law that levied damages against an employer who refused to pay an unauthorized worker who was injured on the job. 469 F.3d 219, 239–40 (2d Cir. 2006). There, the employer’s liability was totally unrelated to the work authorization of any employee involved. Alabama also cites to Jie v. Liang Tai Knitwear Co. for the proposition that “a statutory reference to sanctions does not equal a reference to damages.” 107 Cal. Rptr. 2d 682, 690 n.7 (Cal. Ct. App. 2001). As in Madeira, the cause of action in Jie was retaliatory termination—an
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action not in any way based on the work authorization of an employee.14 Finally, Alabama points to an equally inapposite case, Mendoza v. Zirkle Fruit Co., which held that the plaintiffs had stated a state claim for civil conspiracy based on the employer’s alleged hiring of unauthorized workers in order to depress wages. No. 00-3024, 2000 WL 33225470, at *11 (E.D. Wash. Sept. 27, 2000), rev’d on other grounds, 301 F.3d 1163 (9th Cir. 2002). Yet again, the state cause of action was not dependent on whether the underlying acts involved unauthorized workers. These cases are all dissimilar from the section 17 cause of action in which liability is invariably contingent on the hiring and retention of an unauthorized worker. We are thus persuaded that the Tenth Circuit’s reasoning in Edmondson is a much closer analogy than any of the cases cited by Alabama, and we find that section 17 is expressly preempted by § 1324a(h)(2).
7. Section 18 Section 18, as amended, imposes a requirement to investigate, through inquiry under 8 U.S.C. § 1373(c), whether individuals found to be in violation of Ala. Code § 32-6-1 or § 32-6-9 are permissibly within the United States. Neither
14 It does not appear that the Jie court even seriously considered an express preemption argument as related to § 1324a. The court’s reasoning centered around conflict preemption, see 107 Cal. Rptr. 2d at 589 (“[T]here is no conflict between IRCA and the California law that allows employees to sue for wrongful termination . . . .”), and the absence of any provision of IRCA that expressed preemptive intent for federal law to trump “long-standing state law that allows a private cause of action for wrongful termination,” id. at 690.
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the district court nor this court enjoined enforcement of section 18 prior to the H.B. 658 amendment. In light of Arizona, we find at this time that the United States is not likely to succeed in its preenforcement challenge to section 18.15
We have already determined with respect to section 12(a) that Alabama officers may inquire into the immigration status of individuals lawfully detained. This conclusion is consistent with the Supreme Court’s rejection of a similar challenge in Arizona. 132 S. Ct. at 2507–10. Section 18 specifies that an immigration-status inquiry must be performed for any individual found in violation of Ala. Code §§ 32-6-1 or 32-6-9—provisions concerning driving without a valid license—regardless of whether the officer has reasonable suspicion to believe that the individual is unlawfully present. Cf. Ala. Code § 31-13-12(a) (requiring reasonable suspicion of unlawful presence in order to engage in the § 1373(c) inquiry). We believe the absence of a reasonable suspicion element is irrelevant in light of the federal-state communication contemplated by 8 U.S.C. § 1373(c), which is not contingent on a state officer’s belief of the inquired-about individual’s immigration status. See Arizona, 132 S. Ct. at 2508 (“Congress has
15 The challenge to section 18 is not moot. The arguments in the district court, and those made prior to the Arizona ruling, hinged on whether the state had the authority to mandate this type of immigration inquiry. The removal of the requirement that an arrestee be taken to a magistrate does nothing to moot the challenge, nor does the clarification of the extent of detention authorized by section 18 “render the original controversy a mere abstraction.” Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992).
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made clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual . . . .’” (emphasis added) (quoting 8 U.S.C. § 1357(g)(10)(A))).
Furthermore, we must give the state an opportunity to clarify the extent to which detentions are permissible under section 18. See id. at 2509–10. Although this provision could be construed to allow a detention, we do not rule out the possibility that it could be interpreted differently. The state could, for example, determine that section 18 does not authorize detention or that a detention must be limited in certain ways. In sum, Arizona instructs us that a preenforcement challenge to the possibility of detention under section 18 is inappropriate, and we therefore reject the preemption arguments at this time.
8. Section 27 Section 27 prohibits Alabama courts from enforcing or recognizing contracts between a party and an unlawfully present alien, provided the party knew or constructively knew that the alien was in the United States unlawfully. Ala. Code § 31-13-26(a).16 Certain contracts are permissible, though, and those
16 We agree with the parties that the minor alterations to section 27 effectuated by H.B. 658 do not moot this case. H.B. 658 clarified that the provision did not apply to “a contract entered into prior to [its] effective date” or to “a contract for the appointment or retention of legal
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exceptions help illustrate Alabama’s end goal in enacting section 27: forcing undocumented individuals out of Alabama. A contract is permissible if, for example, it can reasonably be completed within 24 hours of formation. Id. Additionally, contracts are permitted to provide for overnight lodging, food, medical services, or transportation “that is intended to facilitate the alien’s return to his or her country of origin.” Id. § 31-13-26(b). In light of these narrow exceptions to section 27, undocumented aliens will be practically prohibited from enforcing contracts for basic necessities.17 To say that section 27 is extraordinary and unprecedented would be an understatement, as it imposes a statutory disability typically reserved for those who are so incapable as to render their contracts void or voidable. Essentially, the ability to maintain even a minimal existence is no longer an option for unlawfully present aliens in Alabama.
The power to expel aliens has long been recognized as an exclusively federal power. See Fok Yung Yo v. United States, 185 U.S. 296, 302, 22 S. Ct. 686, 688 (1902); Fong Yue Ting v. United States, 149 U.S. 698, 706–07, 13 S. Ct.
counsel in legal matters.” H.B. 658, § 1. These changes have neither removed the “challenged features” of the prior law nor altered the fundamental argument of the United States, so we find the controversy is not moot. Fillyaw, 958 F.2d at 1520.
17 Although an unlawfully present alien could technically enter into a contract, the other party could withdraw from it with impunity, taking the proceeds and leaving the alien with no recourse.
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1016, 1019 (1893). The power to exclude and the related federal power to grant an alien permission to remain “exist as inherently inseparable from the conception of nationality.” See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318, 57 S. Ct. 216, 220 (1936). This is so because the federal government “is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties,” which includes the field of immigration. Hines v. Davidowitz, 312 U.S. 52, 62–63, 61 S. Ct. 399, 402 (1941); see also Arizona, 132 S. Ct. at 2506–07; Chy Lung v. Freeman, 92 U.S. 275, 279–80 (1876). In light of these principles, a state’s decision to impose “distinct, unusual and extraordinary burdens and obligations upon aliens” may constitute an impermissible intrusion into the federal domain. Hines, 312 U.S. at 65–66, 61 S. Ct. at 403. We believe that the blanket prohibition of the right to enforce nearly any contract easily qualifies as an extraordinary burden.
The ability to contract is not merely an act of legislative grace; it is a capability that, in practical application, is essential for an individual to live and conduct daily affairs. The importance of contracts in the United States is reaffirmed by the Constitution, federal statute, and the Supreme Court. See U.S. Const. art. I, § 10, cl. 1; 42 U.S.C. § 1981(a); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432, 88 S. Ct. 2186, 2199 (1968) (recognizing the right “to make
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contracts” as one of the “great fundamental rights”). Consistent with this general recognition, the Alabama legislature and courts have crafted limitations on the essential right to contract only in circumstances where the contracting individual is presumptively incapable of conducting their own affairs.18 See, e.g., S.B. v. St. James Sch., 959 So. 2d 72, 96 (Ala. 2006) (explaining that minors under the age of nineteen are generally incapable of contracting under Alabama law); Lloyd v. Jordan, 544 So. 2d 957, 959 (Ala. 1989) (discussing the lack of contractual capacity of the mentally ill); Williamson v. Matthews, 379 So. 2d 1245, 1247–48 (Ala. 1980) (explaining that an individual’s intoxication renders a contract voidable); see also Ala. Code § 26-1-1 (defining the age of majority under state law); id. § 26-13-1 et seq. (prescribing procedures to relieve minors from the disabilities of nonage).
As previously stated, section 27 excepts from its scope contracts for (1) “lodging for one night,” (2) food, (3) medical services, and (4) transportation intended to “facilitate the alien’s return to his or her country of origin.” Ala. Code § 31-13-26(b). Considering this provision, which imposes “distinct, unusual and
18 See also Restatement 2d of Contracts § 13 cmt. a (justifying the lack of contractual capacity of persons under guardianship); id. § 15 cmt. a (offering the rationale that a person suffering mental disease incurs voidable contractual duties based on “protection of persons unable to protect themselves”).
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extraordinary burdens,” Hines, 312 U.S. at 65, 61 S. Ct. at 403, in conjunction with the sections that require maximum and mandatory enforcement, see Ala. Code §§ 31-13-5, -6, we are convinced that Alabama has crafted a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state. See also Ala. Code § 31-13-23 (requiring a periodic report on “the progress being made in the effort to reduce the number of illegal aliens in the State of Alabama”). Because this power is retained only by the federal government, section 27 is preempted by the inherent power of the federal government to regulate immigration. See De Canas, 424 U.S. at 354, 96 S. Ct. at 936 (“Power to regulate immigration is unquestionably exclusively a federal power.” (emphasis added)).19
It is also clear to us that the expulsion power Alabama seeks to exercise through section 27 conflicts with Congress’s comprehensive statutory framework governing alien removal. Congress has specified the numerous categories of aliens who are subject to removal, 8 U.S.C. § 1227, and identified the particular classes subject to expedited proceedings, id. § 1228. Congress further provided
19 Our conclusion is fully consistent with De Canas, where the Supreme Court ruled that a California employment statute was not an unconstitutional regulation of immigration. 424 U.S. at 355–56, 96 S. Ct. at 936. As stated above, section 27 has much more than a “purely speculative and indirect impact on immigration” and, therefore, is not comparable to the statute at issue in De Canas. Id. at 355, 96 S. Ct. at 936.
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that the determination of removability typically must be made by an immigration judge consistent with the procedures set forth in the INA. Id. § 1229a(a)–(b). Various statutes govern the relief available to aliens otherwise subject to removal—that is, those aliens who are in the country unlawfully but permitted to remain, whether permanently or temporarily. See, e.g., 8 U.S.C. § 1158 (governing an alien’s application for asylum); id. § 1229b (regulating cancellation of removal and adjustment of the alien’s unlawful status); id. § 1229c (prescribing the conditions of voluntary departure); id. § 1231(b)(3) (governing withholding of removal); see also 8 C.F.R. § 208.16(c) (controlling claims under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). By enacting section 27, Alabama has essentially decided that unlawfully present aliens cannot be tolerated within its territory, without regard for any of the statutory processes or avenues for granting an alien permission to remain lawfully within the country.
It is also obvious from the statutory scheme that Congress intends the Executive Branch to retain discretion over expulsion decisions and applications for relief.20 See Holder v. Martinez Gutierrez, 566 U.S. ___, 132 S. Ct. 2011,
20 Control over the expulsion of aliens has long been recognized as “a power affecting international relations,” Fong Yue Ting, 149 U.S. at 713, 13 S. Ct. at 1022, thus bringing it within the province of the Executive, see Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414, 123 S.
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2015 (2012) (“The immigration laws have long given the Attorney General discretion to permit certain otherwise-removable aliens to remain in the United States.”). This discretion is perhaps best illustrated by Congress’s decision to vest exclusive power in the Attorney General to “commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–85, 119 S. Ct. 936, 943–44 (1999) (discussing the administrative discretion codified in § 1252(g)). Similarly, Congress contemplated that officers of the Executive Branch would exercise their judgment on the subject of granting temporary or permanent relief from removal. See 8 U.S.C. § 1158(b)(1)(A) (permitting the Attorney General or Secretary of Homeland Security to grant asylum); id. § 1229b(a), (b) (permitting the Attorney General to cancel removal proceedings and to adjust an alien’s immigration status); id. § 1229c(a), (b) (authorizing the Attorney General to permit an alien’s voluntary departure); id. § 1231(b)(3) (prohibiting removal if the Attorney General determines the alien’s life or freedom would be threatened on any of the specified grounds). And along with this discretion, Congress sharply
Ct. 2374, 2386 (2003). See also Arizona, 132 S. Ct. at 2498; Harisiades v. Shaughnessy, 342 U.S. 580, 588–89, 72 S. Ct. 512, 519 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations . . . .”).
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limited judicial review of the immigration-related adjudications. See id. § 1252(a)(2), (b)(4). These statutes point to one conclusion: Congress intended that the Executive Branch determine who must be removed and who may permissibly remain. Through section 27, Alabama has taken it upon itself to unilaterally determine that any alien unlawfully present in the United States cannot live within the state’s territory, regardless of whether the Executive Branch would exercise its discretion to permit the alien’s presence. This is not a decision for Alabama to make,21 and we find that section 27 conflicts with federal law.
Alabama argues that section 27 is shielded from preemption because it legislates in the field of contract law, which is typically within the province of the states and therefore entitled to the presumption against preemption. While it is true that contract is a matter of traditional state concern, that does not resolve the preemption inquiry. Indeed, the Supreme Court’s decision in Crosby v. National Foreign Trade Council refutes Alabama’s position. 530 U.S. 363, 120 S. Ct. 2288 (2000). In Crosby, Massachusetts enacted a law to restrict the ability of state agencies to buy goods and services from companies that conducted business with Burma. Id. at 367, 120 S. Ct. at 2291. Congress, however, enacted a statute
21 If every other state enacted similar legislation to overburden the lives of aliens, the immigration scheme would be turned on its head. The federal government—not the fifty states working in concert—retains the power to exclude aliens from the country.
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imposing mandatory and conditional sanctions on Burma just three months after the Massachusetts law was enacted. Id. at 368, 120 S. Ct. at 2291. The intended result of the state statute—like its federal counterpart—was economic pressure on the Burmese government, and the state sought to achieve its goal through the state’s own purchasing power. The Court concluded that, even if a presumption against preemption applied, the Massachusetts statute regulating the state’s own business transactions would not escape preemption. Id. at 374 n.8, 120 S. Ct. at 2294. Similar to the situation at hand, Congress had promulgated federal law to ensure that the Executive had “flexible and effective authority” over the economic sanctions, which contributed to the finding of preemption. See id. at 374, 120 S. Ct. at 2295.
The Supreme Court has also instructed that a preemption analysis must contemplate the practical result of the state law, not just the means that a state utilizes to accomplish the goal. In Buckman Co. v. Plaintiffs’ Legal Committee, the Supreme Court found that a state tort cause of action—an area of traditional state concern—was preempted by federal law where the underlying allegations concerned fraud against a federal agency. 531 U.S. 341, 347, 121 S. Ct. 1012, 1017 (2001) (“Policing fraud against federal agencies is hardly ‘a field which the States have traditionally occupied’ . . . .” (quoting Rice v. Santa Fe Elevator
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Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947))). The concern was stated more explicitly in Wisconsin Department of Industry, Labor & Human Relations v. Gould, Inc., where the Court considered a state statute that regulated the state’s own purchase of goods and services. 475 U.S. 282, 283–84, 106 S. Ct. 1057, 1059–60 (1986). “[T]he point of the [state] statute,” the Court explained, was “to deter labor law violations.” Id. at 287, 106 S. Ct. 1061–62; see also id. (observing that “[n]o other purpose could credibly be ascribed” to the state law). Thus, even though the state purported to govern in an area of traditional state concern, it could not “enforce the requirements” of federal regulations through its own statutory scheme. Id. at 291, 106 S. Ct. at 1064. Stated another way, “[t]he fact that the State ‘had chosen to use its spending power rather than its police power’” did not remedy the conflict between the federal and state statutes. Crosby, 530 U.S. at 373 n.7, 120 S. Ct. at 2294 (quoting Gould, 475 U.S. at 289, 106 S. Ct. at 1062).
Like the state statutes in Crosby, Buckman, and Gould, the thrust of section 27 is to impinge on an area of core federal concern. It constitutes a thinly veiled attempt to regulate immigration under the guise of contract law, and thus, we do not think the presumption against preemption applies. See Buckman, 531 U.S. at 347–48, 121 S. Ct. at 1017. Even if it does, we conclude that it is preempted. See
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Crosby, 530 U.S. at 374 n.8, 120 S. Ct. at 2294.22 9. Section 28
Section 28 requires Alabama’s public elementary and secondary schools to request certain documentation from enrolling children in order to classify them as either lawfully or unlawfully present within the United States. Ala. Code § 31-1327(a). The United States contends, as it did in the district court, that section 28 is preempted by 8 U.S.C. § 1643(a)(2), which provides that no federal law “may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe.” The district court did not preliminarily enjoin section 28, but this court did enjoin its enforcement pending appeal.
We have found in the private plaintiffs’ companion case, No. 11-14535, that section 28 violates the Equal Protection Clause as interpreted in Plyler. Thus, it is unnecessary to address the United States’s argument that it is also preempted by federal law, though we recognize that the statutory reference to Plyler means that the inquiries necessarily overlap. Because we reverse the district court’s disposition of this claim in the private plaintiffs’ case, we dismiss the United
22 Alabama suggests in its supplemental brief that section 27 could be saved by severing the “constructive knowledge” element of the provision. We do not think that the purpose or the effect of the statute would be materially altered by that.
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States’s appeal as moot. 10. Section 30
As originally enacted, section 30 provided that an unlawfully present alien “shall not enter into or attempt to enter into a business transaction with the state or a political subdivision” thereof. Alabama contended that this language covered only transactions to obtain licenses, and the district court adopted that reading of the law in making its decision. See United States v. Alabama, 813 F. Supp. 2d at 1350–51. Since oral argument in this appeal, the Alabama legislature amended section 30 to clarify that it is a criminal act for an unlawfully present alien to enter into certain “public records transaction[s].” H.B. 658, § 1.23 This phrase is defined as applying for or renewing “a motor vehicle license plate,” “a driver’s license or nondriver identification card,” “a business license,” “a commercial license,” or “a professional license.” Id. Section 30, as amended, clarifies that it does not reach applications for a marriage license, transactions related to housing or property ownership, payment of property or other taxes, or “any other transaction.” Id. Thus, by the terms of the newly enacted section 30, the state legislature has clarified that the criminal prohibitions apply only to six select
23 It is also unlawful for any individual to enter or attempt to enter into any of these transactions on behalf of an unlawfully present alien. Ala. Code § 31-13-29(b).
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categories of state-issued licenses: vehicle license plates, driver’s licenses,
identification cards, business licenses, commercial licenses, and professional
licenses. An individual who engages in the proscribed behavior commits a Class
C felony, Ala. Code § 31-13-29(d), which is punishable by a term of imprisonment
of between one and ten years, id. § 13A-5-6(a)(3), and a possible additional fine of up to $15,000, see id. § 13A-5-11(a)(3); see also id. § 13A-5-2(a)–(b).24
First, we dismiss any argument that the particular licensing restrictions
housed in subsection (a) are facially preempted by federal law. Through the
REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2)(B), 119 Stat. 231, 313
(codified as note to 49 U.S.C. § 30301), Congress encouraged individual states to
require evidence of lawful status as a prerequisite to issuing a driver’s license or
identification card to an applicant. Given that the states may thus permissibly
withhold these instruments from unlawfully present aliens, it follows that it is
perfectly legitimate for Alabama to withhold a motor vehicle license plate from an
24 We conclude that the challenge to section 30 is not moot. Section 30(d), the subsection that imposes criminal penalties, has been amended only to clarify that it applies to unlawfully present aliens or those who act on their behalf, as stated in subsection (b). We understand this criminalization to be the main thrust of the United States’s challenge, and H.B. 658 has not removed this “objectionable feature[] of the prior law.” Fillyaw, 958 F.2d at 1520. Moreover, H.B. 658 aligned the text of section 30(a) with the interpretation that Alabama adopted in briefing and that the district court applied in its ruling. Because the United States consistently argued that the former section 30 was preempted even if limited to business transactions, the controversy here remains live.
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individual who cannot lawfully operate the vehicle. The withholding of business, commercial, and professional licenses is
likewise permissible. Pursuant to Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“Welfare Reform Act”), Pub. L. No. 104-193, 110 Stat. 2105, Congress deemed some unlawfully present aliens ineligible for certain state and local public benefits unless the state explicitly provides otherwise. See 8 U.S.C. § 1621. The benefits for which such aliens are ineligible include any “professional license[] or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government.” Id. § 1621(c)(1)(A). Congress’s definition of the relevant benefits appears to us entirely consistent with the licenses that Alabama withholds through section 30. As Congress has either expressly or implicitly approved of the state’s withholding of a license in each of the six categories within the purview of section 30, the state’s restriction is not facially preempted.
The United States observes that there may be an incongruence between the two federal statutes and Alabama’s licensing restrictions, insofar as the latter may be applied to certain aliens who may in fact be eligible for the licenses under federal law. This argument has some force. Indeed, the key phrase in section 30(b)—“alien not lawfully present in the United States”—could be construed in a
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way that it would be in tension with the REAL ID Act, see, e.g., Pub. L. No. 109-
13, § 202(c)(2)(B)(vi), 119 Stat. at 313 (contemplating that an alien who “has a
pending application for asylum” can obtain a driver’s license), and the Welfare
Reform Act, see, e.g., 8 U.S.C. §§ 1621, 1641(b)(5) (providing that “an alien
whose deportation is being withheld” is a “qualified alien” eligible for state
benefits). But section 30 could be construed to avoid this problem, and if this
issue does arise, it may be more appropriately addressed in the context of an as-
applied challenge.
The question then is whether section 30 can be upheld insofar as subsection
(d) creates a new state felony for application or attempted application for the
requested licenses. The United States emphasizes the complete absence of federal
criminal penalties attached to licensing applications. The United States posits that
the felony criminal penalty associated with attempts to apply for state licenses are
inconsistent with the federal scheme because the only result contemplated under federal law is denial of the requested license.25 Although there is some pull to this
25 The United States also suggests that section 30, both as originally enacted and as amended, effectively criminalizes “an alien’s unlawful presence in Alabama.” Supplemental Brief of the United States at 13. We have difficulty seeing this to be the case. We agree with the United States that section 30, as originally enacted, had the purpose and effect of driving unlawfully present aliens out of the state. It criminalized any attempt by such aliens to enter into “any transaction between a person and the state or a political subdivision,” with the exception of applications for marriage licenses. Ala. Code § 31-13-29(a) (emphasis added), amended by H.B. 658, § 1. Thus, it clearly contemplated that these aliens would be deprived of basic needs, such
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argument, at this point we do not find it entirely persuasive.
The United States identifies the REAL ID Act and the Welfare Reform Act
as the sources of federal preemption. But our examination of these statutes does
not leave us with the impression that subsection (d) would be inconsistent with
federal objectives. As relevant here, the REAL ID Act provides that the federal
government will not accept a state-issued driver’s license or identification card
unless the state verified the citizenship or immigration status of the applicant
before issuing the document. See Pub. L. No. 109-13, § 202(c)(2)(B), 119 Stat. at
313. Notably, this measure does not prohibit states from issuing driver’s licenses
or identification cards to unlawfully present aliens. Nor does it even require that
states verify the citizenship or immigration status of those who apply for such
documents. Rather, it provides an incentive—albeit a strong one—for states to
institute such a verification scheme.
The REAL ID Act thus does not purport to comprehensively regulate
as water, garbage, and sewer services. It thus amounted to an impermissible policy of expulsion. As amended, however, section 30 criminalizes only the attempt to obtain vehicle license
plates and various licenses. The scope of section 30, as amended, is thus considerably smaller, and we do not think that it has the effect of making it impossible for unlawfully present aliens to live in Alabama or otherwise criminalizing their presence. This is especially so because the state may withhold these benefits, consistent with the REAL ID Act and the Welfare Reform Act. Section 30 only operates to proscribe conduct in which unlawfully present aliens are unlikely to engage, given that, through H.B. 56 and prior legislation, Alabama has chosen not to make them eligible for these specific benefits in the first place. See also Ala. Admin. Code r. 760-X-1-.20 (requiring driver’s license applicants to submit proof of authorized presence).
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driver’s licenses, identification cards, and unlawfully present aliens. Rather, it leaves the field essentially open, giving room for the states to adopt different policies concerning this subject. See H.R. Rep. No. 109-72, at 177 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 302 (noting that the REAL ID Act “does not directly impose federal standards” and that “states need not comply with the listed standards”). Given the limited scope of the REAL ID Act, we do not see how it forecloses Alabama’s decision to make it a crime for an unlawfully present alien to attempt to get a driver’s license or identification card once it has decided that such aliens are ineligible for these documents.
The idea that the Welfare Reform Act preempts section 30(d), insofar as it concerns business, commercial, and professional licenses, rests on more solid ground. That legislation sought to establish a “national policy with respect to welfare and immigration,” one that Congress enacted in an attempt to “remove the incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. § 1601. Thus, the Welfare Reform Act is similar to IRCA in that it represents a concerted effort on the part of Congress to address the flow of illegal immigration across the nation’s borders. See Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988) (“Congress enacted the IRCA to reduce illegal immigration by eliminating employers’ economic incentive to hire undocumented
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aliens.”). But the Welfare Reform Act is different from IRCA in a crucial respect.
IRCA is a “comprehensive scheme,” Hoffman Plastic Compounds, 535 U.S. at 147, 122 S. Ct. at 1282, that embodies a “careful balance struck by Congress,” Arizona, 132 S. Ct. at 2505. Specifically, IRCA’s lengthy legislative history shows “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Id. at 2504. The legislative record reflects “a considered judgment that [such penalties] would be inconsistent with federal policy and objectives.” Id. For this reason, even though the text of IRCA itself does not prohibit states from imposing sanctions on unauthorized aliens who engage in work, the individual states are not free to do so. See id. at 2504–05.
The same conclusion does not seem to obtain under the Welfare Reform Act. It is true that the statute is singularly focused on the withholding of licenses, and it does not provide for criminal sanctions. See 8 U.S.C. § 1621.26 But the
26 The Welfare Reform Act also seems to be of a different character than IRCA in that it does not purport to offer a definitive approach to the problem that Congress perceived. Indeed, although Congress made the determination that unlawfully present aliens generally should not be eligible for licenses, see 8 U.S.C. § 1621(a), it also contemplated that states could opt out of that rule, see id. § 1621(d); see also id. § 1601(7) (recognizing that states can choose not to “follow the Federal classification”). Thus, far from occupying the field, Congress accepted that states would adopt different policies on licenses and unlawfully present aliens.
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statute also does not expressly rule out such penalties, and the United States has not cited any legislative history, similar to that of IRCA, that would reflect “a considered judgment” on the part of Congress “that [such penalties] would be inconsistent with federal policy and objectives.” Arizona, 132 S. Ct. at 2504. In the absence of such a showing, it is not evident that a measure like subsection (d) would detract from Congress’s policy objectives and thus be impliedly preempted.
Of course, this is not to say that subsection (d) is, without a doubt, in harmony with the existing congressional design. Alabama has decided to make an attempt to seek a license an offense that is punishable by up to ten years imprisonment, see Ala. Code § 13A-5-6(a)(3), and a possible additional fine of up to $15,000, see id. § 13A-5-11(a)(3); see also id. § 13A-5-2(a)–(b).27 Congress may very well have thought that this kind of penalty is inappropriate. Cf. H.R. Rep. No. 99-682, pt. I, at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650 (discussing in the context of IRCA that employer, rather than employee, sanctions are “the most humane, credible and effective way” of responding to the influx of undocumented aliens). But the United States has not drawn our attention to any legislative history to demonstrate this. As a result, for now, there is only “a
27 We observe again that section 30 only criminalizes conduct that appears highly unlikely to occur, given that Alabama has chosen not to make these specific benefits available in the first place.
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hypothetical or potential conflict,” which is insufficient to establish preemption. Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S. Ct. 3294, 3299 (1982).
In sum, we conclude that the restrictions on licenses, as clarified by recent amendment, are not facially in tension with the federal immigration scheme. We also hold that at this stage, the United States has not shown that the criminal provisions located in section 30(d) are preempted by federal law.
B. Equitable Factors The equities weigh in favor of enjoining those provisions that are preempted by federal law. The United States suffers injury when its valid laws in a domain of federal authority are undermined by impermissible state regulations. Frustration of federal statutes and prerogatives are not in the public interest, and we discern no harm from the state’s nonenforcement of invalid legislation. For these reasons, and the numerous reasons detailed above that require federal law to prevail, the equities favor enjoining enforcement of sections 10, 11(a), 13(a), 16, 17 and 27.
III. Conclusion Just like Arizona, Alabama has “understandable frustrations with the problems caused by illegal immigration.” Arizona, 132 S. Ct. at 2510. Although it is a problem that gives rise to unique issues in our Nation, we must be mindful that individual states “may not pursue policies that undermine federal law.” Id.
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We find that the United States is likely to succeed on the merits of its challenge to sections 10, 11(a), 13(a), 16, 17, and 27. Consistent with its position set forth in supplemental briefing, we agree with the United States that it is not likely to succeed on the merits of its challenge to section 12(a) or section 18 at this time. We also find that the United States has not shown at this stage that it is likely to succeed on the merits of its challenge to section 30. Finally, we dismiss the United States’s appeal as to section 28 as moot, as our opinion in the private plaintiffs’ companion case fully disposes of that issue.28
AFFIRMED IN PART, REVERSED IN PART, DISMISSED IN PART, AND REMANDED.
28 In light of our disposition, Alabama’s motion to partially vacate the injunction is granted. A separate order shall issue.
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