UNITED STATES of America, Plaintiff-Appellee, v. State of ARIZONA; Janice K. Brewer, Governor of the State of Arizona, in her official capacity, Defendants-Appellants.
No. 10-16645
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 1, 2010. Filed April 11, 2011.
641 F.3d 339
PAEZ, Circuit Judge
PETITION DENIED.
Noonan, Circuit Judge, filed concurring opinion.
Bea, Circuit Judge, filed an opinion concurring in part and dissenting in part.
Service‘s proposed rule on Asylum and Withholding Definitions, which states that, in contrast to other persecution cases, “[a domestic abuse] victim‘s attempt to leave typically increases the abuser‘s motivation to locate and harm her” and that an abuser is more likely to know where a victim would go or who she would turn to for assistance. 65 Fed.Reg. 76,588 at 76,595. The proposed rule, while informative and descriptive generally of abuse situations, does not provide the evidence necessary to sustain a relocation claim.
Edwin Kneedler, Deputy United States Solicitor General, Tony West, Assistant Attorney General, Dennis K. Burke, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Thomas M. Bondy, Michael P. Abate, Daniel Tenny, Attorneys, Appellate Staff Civil Division, Department of Justice, for plaintiff-appellee United States of America.
Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.
Opinion by Judge PAEZ; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge BEA.
OPINION
PAEZ, Circuit Judge:
In April 2010, in response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 (“S.B. 1070“), “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona.” S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B.
Before Arizona‘s new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act (“INA“), and that it violated the Commerce Clause. Along with its complaint, the United States filed a motion for injunctive relief seeking to enjoin implementation of S.B. 1070 in its entirety until a final decision is made about its constitutionality. Although the United States requested that the law be enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F.Supp.2d 980, 992 (D.Ariz.2010).
The district court granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Id. at 1008. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections is the central issue this appeal presents.1
We have jurisdiction to review the district court‘s order under
Standard of Review
We review the district court‘s grant of a preliminary injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc). A preliminary injunction “should be reversed if the district court based ‘its decision on an erroneous legal standard or on clearly erroneous findings of fact.‘” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) (quoting FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1211-12 (9th Cir. 2004)). We review de novo the district court‘s conclusions on issues of law, including “the district court‘s decision regarding preemption and its interpretation and construction of a federal statute.” Am. Trucking Ass‘ns, Inc. v. Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).
Discussion
I. General Preemption Principles
The federal preemption doctrine stems from the Supremacy Clause,
Even if Congress has not explicitly provided for preemption in a given statute, the Supreme Court “ha[s] found that state law must yield to a congressional Act in at least two circumstances.” Crosby, 530 U.S. at 372. First, “[w]hen Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Id. (quoting California v. ARC America Corp., 490 U.S. 93, 100, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989)). Second, “even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.” Id. Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Id. at 372-373. Impossibility preemption exists “where it is impossible for a private party to comply with both state and federal law.” Id. Obstacle preemption exists “where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” Id. at 373 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). To determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our “judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Id.2
We recently applied the facial challenge standard from United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), to a facial preemption case. Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579-80 (9th Cir. 2008) (en banc). In Sprint, the appellant argued that a federal law “preclud[ing] state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” facially preempted a San Diego ordinance that imposed specific requirements on applications for wireless facilities. Id. at 573-74. We explained in Sprint that “[t]he Supreme Court and this court have called into question the continuing validity of the Salerno rule in the context of First Amendment challenges.... In cases involving federal preemption of a local statute, however, the rule applies with full force.” Id. at 579, n. 3.3
Thus, under Salerno, “the challenger must establish that no set of circumstances exists under which the Act
II. Section 2(B)5
S.B. 1070 Section 2(B) provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they “shall” make “a reasonable attempt ... when practicable, to determine the immigration status” of the person.
A. Interpretation of Section 2(B)
To review the district court‘s preliminary injunction of Section 2(B), we must first determine how the Section‘s sentences relate to each other. Arizona argues that Section 2(B) does not require its officers to determine the immigration status of every person who is arrested. Arizona maintains that the language in the second sentence, “[a]ny person who is arrested shall have the person‘s immigration status determined,” should be read in conjunction with the first sentence requiring officers to make “a reasonable attempt ... when practicable, to determine the immigration status” of a person they have stopped, detained, or arrested, if there is reasonable suspicion the person is an unauthorized immigrant. That is, Arizona argues that its officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation.
On its face, the text does not support Arizona‘s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person‘s immigration status determined before the person is released.”
In addition, Arizona‘s reading creates irreconcilable confusion as to the meaning of the third and fifth sentences. The third sentence, which follows the requirement of determining status prior to an arrestee being released, provides that “[t]he person‘s immigration status shall be verified with the federal government.” The fifth sentence enumerates several forms of identification that will provide a presumption that a person is lawfully documented. These two sentences must apply to different—and unrelated—status-checking requirements since one mandates contact with the federal government and a definite verification of status, while the other permits a mere unverified presumption of status, assuming the presumption is not rebutted by other facts. Arizona‘s reading would give law enforcement officers conflicting direction. That is, under Arizona‘s reading, if an officer arrests a person and reasonably suspects that the arrestee is undocumented, but the arrestee provides a valid Arizona driver‘s license, is the officer no longer bound by the third sentence‘s requirement that he or she “shall” verify the arrestee‘s status with the federal government?
We agree with the district court that the reasonable suspicion requirement in the first sentence does not modify the plain meaning of the second sentence. Thus, Section 2(B) requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant. Our interpretation gives effect to “arrest” in the first sentence and “arrest” in the second sentence. The first and second
B. Preemption of Section 2(B)
As the Supreme Court recently instructed, every preemption analysis “must be guided by two cornerstones.” Wyeth, 129 S.Ct. at 1194. The first is that “the purpose of Congress is the ultimate touchstone.” Id. The second is that a presumption against preemption applies when “Congress has legislated... in a field which the States have traditionally occupied.” Id. The states have not traditionally occupied the field of identifying immigration violations so we apply no presumption against preemption for Section 2(B).
We begin with “the purpose of Congress” by examining the text of
These provisions demonstrate that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General‘s close supervision. Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform, as evidenced by the disjunctive “or” in subsection (g)(1)‘s list of “investigation,
We note that in subsection (g)(10), Congress qualified its other
Nothing in this subsection shall be construed to require an agreement ... in order for any officer or employee of a State ... (A) to communicate with the Attorney General regarding the immigration status of any individual ... or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present.
The inclusion of the word “removal” in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under
In sum,
Arizona argues that in another INA provision, “Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers,” citing
We agree that
In addition to providing the Attorney General wide discretion in the contents of each
By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government‘s authority to implement its priorities and strategies in law enforcement, turning Arizona officers
In light of this guidance, Section 2(B)‘s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)‘s “unyielding” mandatory directives to Arizona law enforcement officers “undermine[] the President‘s intended statutory authority” tо establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, 121 S.Ct. 1012, of—according to ICE—“advanc[ing] the goals of protecting national security, protecting public safety, and securing the border.” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.
In light of the above, S.B. 1070 Section 2(B) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” as expressed in the aforementioned INA provisions. Hines, 312 U.S. at 67. The law subverts Congress’ intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Furthermore, the mandatory nature of Section 2(B)‘s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities.
In addition to Section 2(B) standing as an obstacle to Congress’ statutorily expressed intent, the record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States’ foreign relations, which weighs in favor of preemption. See generally Garamendi, 539 U.S. 396 (finding obstacle preemption where a State law impinged on the Executive‘s authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated that “even the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law.” 539 U.S. at 420, 123 S.Ct. 2374 (emphasis add-
The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood ... [of] produc[ing] something more than incidental effect;” rather, Arizona‘s law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419, 123 S.Ct. 2374 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona‘s law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.
In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010 U.S.-Mexico Border Governors’ Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.
In Crosby, the Supreme Court gave weight to the fact that the Assistant Secretary of State said that the state law at issue “has complicated its dealings with foreign sovereigns.” 530 U.S. at 383-84, 120 S.Ct. 2288. Similarly, the current Deputy Secretary of State, James B. Steinberg, has attested that S.B. 1070 “threatens at least threе different serious harms to U.S. foreign relations.”13 In addition, the Deputy Assistant Secretary for International Policy and Acting Assistant Secretary for International Affairs at DHS has attested that Arizona‘s immigration law “is affecting DHS‘s ongoing efforts to secure international cooperation in carrying out its mission to safeguard America‘s people, borders, and infrastructure.” The Supreme Court‘s direction about the proper use of such evidence is unambiguous: “statements of foreign powers necessarily involved[,] indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.” Crosby, 530 U.S. at 385.14 Here, we are presented with
Finally, the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption. In Wis. Dep‘t of Indus., Labor and Human Relations v. Gould Inc., 475 U.S. 282, 288, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986), where the Court found conflict preemption, the Court explained that “[e]ach additional [state] statute incrementally diminishes the [agency‘s] control over enforcement of the [federal statute] and thus further detracts from the integrated scheme of regulation created by Congress.” (internal citations omitted). See also Buckman, 531 U.S. at 350 (“[a]s a practical matter, complying with the [federal law‘s] detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants—burdens not contemplated by Congress in enacting the [federal laws]“).
In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.
III. Section 3
S.B. 1070 Section 3 provides: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of
Similarly, the dissent asserts that our reasoning grants a “heckler‘s veto” to foreign ministries and argues that a “foreign nation may not cause a state law to be preempted simply by complaining about the law‘s effects on foreign relations generally.” Dissent at 383. As a preliminary matter, we disagree with the dissent‘s characterization of our opinion, as we do not conclude that a foreign government‘s complaints alone require preemption. Our consideration of this evidence is consistent with the Supreme Court‘s concern that we not disregard or minimize the importance of such evidence. Garamendi, 539 U.S. at 419, 123 S.Ct. 2374; Crosby, 530 U.S. at 385-86, 120 S.Ct. 2288. Moreover, the dissent implies that S.B. 1070 is merely an internal affair, which is contrary to the Supreme Court‘s opinion in Hines. In striking down the Pennsylvania 1939 Alien Registration Act, the Court stated that:
The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. “For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.” Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. Hines, 312 U.S. at 62, 61 S.Ct. 399 (quoting The Chinese Exclusion Cases (Chae Chan Ping v. United States), 130 U.S. 581, 606, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)).
Starting with the touchstones of preemption, punishing unauthorized immigrants for their failure to comply with federal registration laws is not a field that states have “traditionally occupied.” Wyeth, 129 S.Ct. at 1194; see generally Hines, 312 U.S. 52, 61 S.Ct. 399. Therefore, we conclude that there is no presumption against preemption of Section 3.
Determining Congress’ purpose, and whether Section 3 poses an obstacle to it, first requires that we evaluate the text of the federal registration requirements in
Arizona argues that Section 3 is not preempted because Congress has “invited states to reinforce federal alien classifications.” Attempting to support this argument, Arizona cites INA sections outside the registration scheme where Congress has expressly indicated how and under what conditions states should help the federal government in immigration regulation. See
In addition, S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court‘s direction: “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 66-67. In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court‘s language speaks in general terms about “a complete scheme of regulation,“—as to registration, documen-
The Supreme Court‘s more recent preemption decisions involving comprehensive federal statutory schemes also indicate that federal law preempts S.B. 1070 Section 3. In Buckman, the Supreme Court held that the Food Drug and Cosmetics Act (“FDCA“) conflict preempted a state law fraud claim against defendants who allegedly made misrepresentations to the Food and Drug Administration (“FDA“). 531 U.S. at 343, 121 S.Ct. 1012. The Court explained that private parties could not assert state-fraud on the FDA claims because, “the existence of the[] federal enactments is a critical element in their case.” Id. at 353, 121 S.Ct. 1012. The same principle applies here to S.B. 1070 Section 3, which makes the substantive INA registration requirements “a critical element” of the state law.
By contrast, the Supreme Court found that state law claims were not preempted in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (holding that an express preemption provision in the federal Medical Device Amendments to the FDCA did not preclude a state common law negligence action against the manufacturer of an allegedly defective medical device), Altria Grp., Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (holding that the federal Labeling Act did not expressly preempt plaintiffs’ claims under the Maine Unfair Trade Practices Act alleging that Altria‘s advertising of light cigarettes was fraudulent), or Wyeth, 129 S.Ct. at 1193 (holding that the FDA‘s drug labeling judgments pursuant to the FDCA did not obstacle preempt state law products liability claims). In these cases, the state laws’ “generality le[ft] them outside the category of requirements that [the federal statute] envisioned.” Medtronic, 518 U.S. at 502. The state law claim in Medtronic was negligence, 518 U.S. at 502, the state statute in Altria was unfair business practices, 129 S.Ct. at 541, and the state law claim in Wyeth was products liability, 129 S.Ct. at 1193. All of the state laws at issue in these cases had significantly wider applications than the federal statutes that the Court found did not preempt them. Here, however, Section 3‘s “generality” has no wider application than the INA.
In addition, as detailed with respect to Section 2(B) above, S.B. 1070‘s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 3.
IV. Section 5(C)
S.B. 1070 Section 5(C) provides that it “is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.”
We have previously found that “because the power to regulate thе employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption applies here.” Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, Chamber of Commerce of the U.S. v. Candelaria, --- U.S. ----, 130 S.Ct. 3498, 177 L.Ed.2d 1088 (2010). Therefore, with respect to S.B. 1070 Section 5(C), we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth, 129 S.Ct. at 1194 (internal quotations and citations omitted) (quoting Medtronic, 518 U.S. at 485).
Within the INA, Congress first tackled the problem of unauthorized immigrant employment in the Immigration Reform and Control Act of 1986 (“IRCA“). We have previously reviewed IRCA‘s legislative history and Congress’ decision not to criminalize unauthorized work. See Nat‘l Ctr. for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir.1990), rev‘d on other grounds, 502 U.S. 183, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991). In this case, we are bound by our holding in National Center regarding Congressional intent.
In National Center, we considered whether the INA, through
At oral argument, Arizona asserted that National Center does not control our analysis of Section 5(C) because it addressed the limited issue of whether the
The text of the relevant IRCA statutory provision—
In addition, other provisions in
Subsection 1324a(g)(1) demonstrates Congress’ intent to protect unauthorized immigrant workers from financial exploitation—a burden less severe than incarceration. This section provides that “[i]t is unlawful for a person or other entity, in the hiring . . . of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring . . . of the individual.” Subsection 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). The penalty for a violation is “$1,000 for each violation” and “an administrative order requiring the return of any amounts received . . . to the employee or, if the employee cannot be located, to the general fund of the Treasury.”
We therefore conclude that the text of
[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, 108 S.Ct. 1350. Given the facts in Isla, the Court could not draw this preemptive inference because “Congress ha[d] withdrawn from all substantial involvement in petroleum allocation and price regulation.” Id. at 504, 108 S.Ct. 1350.
The present case, however, presents facts likely to support the kind of preemptive inference that the Supreme Court endorsed, but did not find, in Isla. Here, Congress’ inaction in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers, justifies a preemptive inference that Congress intended to prohibit states from criminalizing work. Far from the situation in Isla, Congress has not “withdrawn all substantial involvement” in preventing unautho
We are also guided by the Supreme Court‘s recognition, even before IRCA, that a “primary purpose in restricting immigration is to preserve jobs for American workers.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). As Arizona states, “Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States.” The Supreme Court has cautioned, however, that “conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Gould, 475 U.S. at 286, 106 S.Ct. 1057 (quoting Motor Coach Emps. v. Lockridge, 403 U.S. 274, 287, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971)). In Crosby, the Court explained that “a common end hardly neutralizes conflicting means.” 530 U.S. at 379-80, 120 S.Ct. 2288. Similarly, in Garamendi, the Court explained that a state law was preempted because “[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves.” 539 U.S. at 427, 123 S.Ct. 2374. The problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that “[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force.” Crosby, 530 U.S. at 380, 120 S.Ct. 2288.
In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem. Therefore, Arizona‘s assertion that this provision “furthers the strong federal policy” does not advance its argument against preemption. Sharing a goal with the United States does not permit Arizona to “pull[] levers of influence that the federal Act does not reach.” Crosby, 530 U.S. at 376, 120 S.Ct. 2288. By pulling the lever of criminalizing work—which Congress specifically chose not to pull in the INA—Section 5(C) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67, 61 S.Ct. 399. It is therefore likely that federal law preempts Section 5(C).
In addition, as detailed with respect to Section 2(B) above, S.B. 1070‘s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 5(C).
In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.
V. Section 6
S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”
Thus, the question we must decide is whether federal law likely preempts Arizona from allowing its officers to effect warrantless arrests based on probable cause of removability. Because arresting immigrants for civil immigration violations is not a “field which the States have traditionally occupied,” we do not start with a presumption against preemption of Section 6. Wyeth, 129 S.Ct. at 1194.
We first turn to whether Section 6 is consistent with Congressional intent. As authorized by
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.
Thus, Section 6 significantly expands the circumstances in which Congress has allowed state and local officers to arrest immigrants. Federal law does not allow these officers to conduct warrantless arrests based on probable cause of civil removability, but Section 6 does. Therefore, Section 6 interferes with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted. Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State‘s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition.
We have previously suggested that states do not have the inherent authority to enforce the civil provisions of federal immigration law. In Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir.1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999), we held that “federal law does not preclude local enforcement of the criminal provisions of the [INA].” (Emphasis added). There, we “assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.” Id. at 474-75 (emphasis added). We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law—we now hold that states do not have such inherent authority.
We recognize that our view conflicts with the Tenth Circuit‘s. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir.1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant‘s “arrest was based solely on the fact that Vasquez was an illegal alien.” Id. at 1295. The arrest did not comply with the requirements of
With such a threat to our public safety posed by criminal aliens, one would think that we would give law enforcement all the tools it needs to remove these criminals from our streets, but unfortunately just the opposite is true. In fact, the Federal Government has tied the hands of our State and local law enforcement officials by actually prohibiting them from doing their job of protecting public safety. I was dismayed to learn that the current Federal law prohibits State and local law enforcement officials from arresting and detaining criminal aliens whom they encountered through their routine duties . . . . My amendment would also permit State and local law enforcement officials to assist the INS by granting them the authority in their normal course of duty to arrest and detain criminal aliens until the INS can properly take them into Federal custody . . . . My amendment is supported by our local law enforcement because they know that fighting illegal immigration can no longer be left solely to Federal agencies. Let us untie the hands of those we ask to protect us and include my amendment in H.R. 2703 today.
Id. at 1298 (citing 142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle)). Interpreting these comments, the Tenth Circuit stated: “As discussed at length above, § 1252c‘s legislative history demonstrates that the purpose of the provision was to eliminate perceived federal limitations . . . There is simply no indication whatsoever in the legislative history to § 1252c that Congress intended to displace preexisting state or local authority to arrest individuals violating federal immigration laws.” Id. at 1299-1300.
The Tenth Circuit‘s interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit‘s conclusion is nonsensical: we perceive no reason why Congress would display an intent “to displace preexisting . . . authority” when its purpose in passing the law was to grant authority it believed was otherwise lacking. Id. at 1300.
Vasquez-Alvarez also cited “subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws” in support of its conclusion that § 1252c does not prevent state officers from making civil immigration-based arrests pursuant to state law. Id. at 1299. The court noted that “in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration
Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of
In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law. Therefore, Arizona must be federally-authorized to conduct such enforcement. Congress has created a comprehensive and carefully calibrated scheme—and has authorized the Executive to promulgate extensive regulations—for adjudicating and enforcing civil removability. S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona‘s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government‘s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress.
In addition, as detailed with respect to Section 2(B) above, S.B. 1070‘s detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal
In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.
VI. Equitable Factors
Once a party moving for a preliminary injunction has demonstrated that it is likely to succeed on the merits, courts must consider whether the party will suffer irreparable harm absent injunctive relief, and whether the balance of the equities and the public interest favor granting an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008).
We have “stated that an alleged constitutional infringement will often alone constitute irreparable harm.” Assoc. Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 (9th Cir.1991) (internal quotation marks omitted). We have found that “it is clear that it would not be equitable or in the public‘s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available. . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount.” Cal. Pharmacists Ass‘n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir.2009) (emphasis added); see also Am. Trucking Ass‘ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059-60 (9th Cir.2009) (recognizing that the balance of equities and the public interest weighed in favor of granting a preliminary injunction against a likely-preempted local ordinance).
Accordingly, we find that as to the S.B. 1070 Sections on which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest.
Conclusion
For the foregoing reasons, we AFFIRM the preliminary injunction enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6.
AFFIRMED; REMANDED.
NOONAN, Circuit Judge, concurring:
I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.
Consideration of the constitutionality of the statute begins with Section 1 of the law, which in entirety, reads as follows:
Sec. 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.
This section of the act constitutes an authoritative statement of the legislative purpose. The purpose is “attrition,” a noun which is unmodified but which can only refer to the attrition of the population of immigrants unlawfully in the state. The purpose is to be accomplished by “enforcement,” also unmodified but in context re
It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States. The presence of these persons is to be discouraged and deterred. Their number is to be diminished. Without qualification, Arizona establishes its policy on immigration.
As Section 1 requires, each section of the statute must be read with its stated purpose in mind. Section 2 might, in isolation from Section 1, be read as requiring information only. Such a reading would ignore the intent established in Section 1, to secure attrition through enforcement. As the United States observes, Arizona already had the capability of obtaining information on immigrants by consulting the federal database maintained by the federal government. Section 2 of the statute provides for more—for the detention of immigrants to achieve the purpose of the statute. Section 2 is not intended as a means of acquiring information. It is intended to work with the other provisions of the act to achieve enforcement.
As the opinion of the court makes clear, Sections 3, 5 and 6 are unconstitutional. Section 2 is equally unconstitutional in its function as their support.
Section 1‘s profession of “cooperative” enforcement of federal immigration laws does not alter Arizona‘s enactment of its own immigration policy distinct from the immigration policy and the broader foreign policy of the United States.
Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.
That immigration policy is a subset of foreign policy follows from its subject: the admission, regulation and control of foreigners within the United States. By its subject, immigration policy determines the domestication of aliens as American citizens. It affects the nation‘s interactions with foreign populations and foreign nations. It affects the travel of foreigners here and the trade conducted by foreigners here. It equally and reciprocally bears on the travel and trade of Americans abroad. As the declarations of several countries or governmental bodies demonstrate in this case, what is done to foreigners here has a bearing on how Americans will be regarded and treated abroad.
That the movement of the people of one nation into the boundaries of another nation is a matter of national security is scarcely a doubtful or debatable matter. Almost everyone is familiar with how the movement of the Angles and the Saxons into Roman Britain transformed that country. The situation of the United States is less precarious. Nonetheless, an estimated 10.8 million foreigners have illegally taken up residence in our country. U.S. Dept. of Homeland Sec., Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010 at 2. True, at the maximum, their number is less than 4% of our population. They are not about to outnumber our citizens. Still, in individual towns and areas those illegally present can be a substantial presence.
The local impact appears to call for local response. Yet ineluctably the issue is national. The people of other nations are entering our nation and settling within its borders contrary to our nation‘s stated requirements. We must deal with people of other nations and so must deal with other nations. The problems are local but our whole nation is affected. Reasonably, the nation has made enforcement of criminal sanctions against aliens criminally present in the United States the top priority of the federal government. United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2009 at 1.
Against this background, the following propositions are clear:
The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.
Federal foreign policy is determined by Congress when Congress exercises the power to declare war conferred upon it by Article I, Section 8 of the Constitution. Foreign policy is also determined by the Senate when it exercises the power to ratify a treaty, the power conferred upon it by Article II, Section 2. Congress also determines foreign policy when it lays excise taxes upon foreign imports under Article I, Section 8. Congress further determines foreign policy when it authorizes sanctions against a nation, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).
The foreign policy of the nation consists in more than a declaration of war, the making of a treaty, the imposition of a tax, and the imposition of sanctions. The foreign policy of the nation is also established by acts оf executive power—among others, executive agreements with foreign nations; the appointment of ambassadors to foreign nations; the exchange of information with foreign governments; the encouragement of trade with foreign countries; and the facilitation of the travel abroad of Americans and of travel within the United States by foreigners. In these several ways a federal foreign policy is forged that is as palpable and durable as that expressed by a particular act of legislation or by the ratification of a particular treaty.
Less than eight years ago the Supreme Court reviewed and reaffirmed the position of the Executive Branch in forming foreign policy preemptive of legislation by a state. Am. Ins. Ass‘n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). Strong humanitarian considerations supported California‘s legislation to provide a remedy against insurance companies that had profited from the Nazi treatment of Jewish victims of the Holocaust. Recognizing that “the iron fist” of California might be more effective than the gentler approach taken by the Executive Branch, the Supreme Court assembled cases showing the President‘s “unique responsibility” for the conduct of foreign policy. Id. at 415, 123 S.Ct. 2374. Noting that no express text in the Constitution conferred this authority, the Court quoted both Hamilton and Madison in The Federalist on the structure of the nation being designed. Structure was stronger than text. The Supreme Court demonstrated that strength in an unbroken line of decisions acknowledging presidential leader
To take one example from our relations to our nearest neighbor to the South, it is an expression of federal foreign policy that the State Department issues passports by whose use approximately twenty million American citizens enter Mexico annually, while the State Department annually issues approximately one million visas which enable citizens of Mexico to enter this country. U.S. Dep‘t of Commerce, Int‘l Trade Admin., 2009 United States Resident Travel Abroad 3 (2010); U.S. Dep‘t of State, Report of the Visa Office 2010 at Table XVII (2011).
The foreign policy of the United States is further established by trade agreements made between this country and Mexico manifesting the desire to permit the importation of a variety of goods from Mexico and the desire to export goods from the United States into Mexico.
An objective assessment of the foreign policy of the United States toward Mexico would pronounce that policy to be one of cordiality, friendship and cooperation. The tangible expression of this policy is the export of $14.8 billion in goods in January 2011 and the importation of $19.7 billion in goods from Mexico in the same month. News Release, U.S. Census Bureau, U.S. Bureau of Economic Analysis, U.S. Int‘l Trade in Goods and Services 16 (March 10, 2011).
Understandably, the United States finds such a policy preemptive of a single state‘s uninvited effort to enter the field of immigration law.
The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute.
BEA, Circuit Judge, concurring in part and dissenting in part:
I quite agree with the majority that “[t]he purpose of Congress is the ultimate touchstone” in determining whether Arizona‘s S.B. 1070 is preempted under the Supremacy Clause. Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). Thus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law. It is Congress‘s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country.
By its very enactment of statutes, Congress has provided important roles for state and local officials to play in the enforcement of federal immigration law. First, the states are free, even without an explicit agreement with the
Nonetheless, the United States has here challenged Arizona S.B. 1070 before it went into effect and, thus, made a facial challenge to the legislation. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). As the Supreme Court stated:
In determining whethеr a law is facially invalid, we must be careful not to go beyond the statute‘s facial requirements and speculate about “hypothetical” or “imaginary” cases. . . . Exercising judicial restraint in a facial challenge frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.
Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.
Id. at 450-51, 128 S.Ct. 1184 (internal quotation marks and citations omitted).
Our task, then, is—or should be—to examine the Arizona legislation and relevant federal statutes to determine whether, under the United States’ facial challenge, S.B. 1070 has applications that do not conflict with Congress‘s intent. I respectfully dissent from the majority opinion as to Sections 2(B) (entitled “Cooperation and assistance in enforcement of immigration laws; indemnification“) and 6 (entitled “Arrest by officer without warrant“), finding their reasoning as to Congress‘s intent without support in the relevant statutes and case law. As to Sections 3 and 5(C), I concur in the result and the majority of the reasoning, although I dissent to the portion of the majority‘s reasoning which allows complaining foreign countries to preempt a state law. I address S.B. 1070‘s sections in numerical order, as the majority did.
I. Section 2(B)
I dissent from the majority‘s determination that Section 2(B) of Arizona S.B. 1070
The district court found that Section 2(B) resulted in an unconstitutional invasion of the province of federal immigration law for a variety of reasons. But there seems little point to examine and rebut the district court‘s findings, because the majority opinion does not adopt any of them.
A. 8 U.S.C. § 1373(c)
As noted above, Congress has clearly stated its intention to have state and local agents assist in the enforcement of federal immigration law, at least as to the identification of illegal aliens, in two federal code sections. First is
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.
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.
The majority misstates my interpretation of
B. 8 U.S.C. § 1357(g)
The second federal code section which states Congress‘s intention to have state authorities assist in identifying illegal aliens is
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.
The majority‘s error is to read
- They are “called upon” by the Attorney General; OR
- There is a “necessity“; AND
- Such cooperation is “incidental,” rather than “systematic and routine.”
Maj. Op. at 349-50. I concede the majority‘s insertion of the quoted terms into
We strive to read Congress‘s enactments in a reasonable manner. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) (“Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.“). Is the majority‘s reading of
Rather than explain the content of the conditions which it invents—“called upon,” “necessity,” “systematic,” and “routine“—the majority turns up its nose at a scenario made all-too-probable by its vague limitations; limitations themselves bereft of structure for lack of citation of authority. As in the case of its refusal to refute its traducing of statutory language (see footnote 5, supra), the majority declaims the impropriety of my criticisms, rather than discuss why they are wrong. But that does not shed any light on the question likely to be asked by the Sheriff‘s Deputy: “When can I detain a suspect to check his immigration status?”
Unless the state officers are subject to a written agreement described in
Further, “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is
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
The majority‘s attempt to straight-jacket local and state inquiries as to immigration status to what “terms” the “federal government” dictates reveals the fundamental divide in our views. The majority finds the intent of “the government” decisive; I look to Congress‘s intent—as required by Supreme Court preemption law.
Further, to “cooperate” means, I submit, “to act or operate jointly, with another or others, to the same end; to work or labor with mutual efforts to promote the same object.” Webster‘s New Twentieth Century Dictionary of the English Language Unabridged (Jean L. McKechnie ed., 1979). It does not mean that each person cooperating need be capable of doing all portions of the common task by himself. We often speak of a prosecution‘s “cooperating witness,” but it doesn‘t occur to anyone that the witness himself cannot be “cooperating” unless he is able to prosecute and convict the defendant himself. Hence, the inability of a state police officer to “remove” an alien from the United States does not imply the officer is unable to cooperate with the federal authorities to achieve the alien‘s removal.
The provision of authority whereby the Attorney General may “deputize” state police officers allows the Attorney General to define the scope and duration of the state officers’ authority, as well as “direct[ ] and supervis[e]” the state officers in performing immigration functions.
This conclusion is confirmed by a close comparison of the language in each part of
Another limitation of authority inferred by the majority from
C. Section 2(B)‘s limited scope
Next, the majority seems to believe that when a state officer (1) initiates the identification of an illegal alien by checking the alien‘s immigration status with federal officials pursuant to
Although it is true that Section 2(B) requires Arizona officers to detain an arrestee suspected of being an illegal alien before releasing the alien, this does little to broaden Section 2(B)‘s scope. First, because this is a facial challenge, we must assume that Arizona police officers will comply with federal law and the Constitution in executing Section 2(B). Second, Arizona has built a safeguard into Section 2 which requires that Section 2(B)‘s immigration status checking mechanisms be executed in a manner consistent with federal law. See Section 2(L) (“This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.“). Finally, it would be аbsurd to assume that Congress would permit states to check a person‘s immigration status, see
The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE‘s “priorities and strategies.” Maj. Op. at 351. 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
The internal policies of ICE do not and cannot change this result. The power to preempt lies with Congress, not with the Executive; as such, an agency such as ICE can preempt state law only when such power has been delegated to it by Congress. See North Dakota v. United States, 495 U.S. 423, 442, 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
D. Supreme Court preemption cases
The Supreme Court‘s decisions in Crosby v. National Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000), and Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), are in accord with the view that Section 2(B) is not preempted by federal law. As the majority points out, in each of those cases, the Supreme Court concluded that Congress intended to provide the Executive with flexibility when it enacted federal law, and that state law encroached on that flexibility. That is not the situation we face here. The majority errs by reading the flexibility Congress provided to the Attorney General in entering agreements pursuant to
Neither does the Supreme Court‘s preemption jurisprudence in the field of foreign relations change the conclusion that Section 2(B) is not preempted. In Crosby, Massachusetts passed a law which restricted state entities from buying goods or services from those doing business with Burma. 530 U.S. at 366-68, 120 S.Ct. 2288. Three months later, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. Id. at 368, 120 S.Ct. 2288. The Court found that the Massachusetts law conflicted with several identified Congressional objectives. “First, Congress clearly intended the federal Act to provide the Pres
Because the state Act‘s provisions conflict with Congress‘s specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.
Id. at 388, 120 S.Ct. 2288.
In American Insurance Ass‘n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003), President Clinton entered into an agreement with the German Chancellor in which Germany agreed to establish a foundation to compensate victims of German National Socialist companies. Id. at 405, 123 S.Ct. 2374. In exchange, the U.S. government agreed to discourage Holocaust-era claims in American courts and encourage state and local governments to respect the foundation as the exclusive mechanism for resolving these claims. Id. at 405-06, 123 S.Ct. 2374. Meanwhile, California passed legislation which required insurance companies doing business in the state to disclose the details of insurance policies issued to people in Europe between 1920 and 1945. Id. at 409, 123 S.Ct. 2374. The Court explained that “even ... the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law.” Id. at 420, 123 S.Ct. 2374. The Court held California‘s law was preempted: “[T]he evidence here is ‘more than sufficient to demonstrate that the state Act stands in the way of [the President‘s] diplomatic objectives.‘” Id. at 427, 123 S.Ct. 2374 (quoting Crosby, 530 U.S. at 386, 120 S.Ct. 2288). That is, California‘s law conflicted with specific foreign relations objectives of the Executive, as “addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century.” Id. at 421, 120 S.Ct. 2288.
Thus, as Crosby and Garamendi demonstrate, it is not simply any effect on foreign relations generally which leads to preemption, as the majority asserts. See Maj. Op. at 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 “spill
Finally, the majority errs in finding that the threat of all 50 states layering their own immigration rules on top of federal law weighs in favor of preemption. In Buckman, the Supreme Court stated: “As a practical matter, complying with the FDA‘s detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants burdens not contemplated by Congress in enacting the FDCA and the MDA.” 531 U.S. at 350, 121 S.Ct. 1012 (emphasis added). I fail to see how Congress could have failed to contemplate that states would make use of the very statutory framework that Congress itself enacted. Congress created the Law Enforcement Support Center “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis.” Congress also obligated ICE to respond to all immigration status inquiries from state and local authorities.
Conclusion
As demonstrated above, Congress envisioned, intended, and encouraged intergovernmental cooperation between state and federal agencies, at least as to information regarding a person‘s immigration status, for the proper and efficient enforcement of federal immigration law. While
I concur with the majority that Section 3, which penalizes an alien‘s failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government‘s uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section 5(C), which penalizes an illegal alien for working or seeking work, conflicts with Congress‘s intent to focus on employer penalties, an intent determined by this court in National Center for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir.1990), rev‘d on other grounds, 502 U.S. 183, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991). As a three-judge panel, we may not re-examine the conclusions reached in National Center. Miller v. Gammie, 335 F.3d 889 (9th Cir.2003) (en banc); see also Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir.2010) (holding that Establishment Clause challenge to the placement of “In God We Trust” on coins and currency was foreclosed by Aronow v. United States, 432 F.2d 242 (9th Cir.1970)).
However, for the reasons discussed above as to Section 2, I disagree with the majority‘s foreign-relations rationale. The majority fails to identify a foreign relations policy, established by Congress, with which Sections 3 and 5 conflict; a foreign nation may not cause a state law to be preempted simply by complaining about the law‘s effects on foreign relations generally. We do not grant other nations’ foreign ministries a “heckler‘s veto.”
III. Section 6
The majority‘s analysis of S.B. 1070 Section 613 will come as a surprise to all parties involved in this case. It ignores the contentions in the filings before the district court, the district court‘s rationale, the briefs filed in this court, and what was said by the well-prepared counsel, questioned at our oral argument. Indeed, it is an argument and conclusion volunteered by the majority, but carefully avoided by the United States—probably because it conflicts with the present policy of the Department of Justice‘s Office of Legal Counsel. First, let us examine what I thought the parties put before us for decision.
The only contention made by the United States in this litigation with respect to Section 6 is that, due to the complexity inherent in determining whether a specific crime makes an alien removable, Arizona police officers will ineluctably burden legal aliens through erroneous warrantless arrests. Not a very strong contention at that, since counsel for the United States all but conceded this argument‘s flaw as to this facial challenge at oral argument by admitting that Arizona police officers could very easily determine that some crimes, such as murder, would make an alien removable. Thus, the analysis of this section should have been simple—Section 6 was facially constitutional because a “set of circumstances” existed under which no “complexity” existed: an Arizona police officer comes across an alien convicted of murder; he is removable; he can be lawfully arrested. See Salerno, 481 U.S. at 745, 107 S.Ct. 2095. So, Section 6 was not preempted. End of story.
Instead, the majority misrepresents Arizona‘s attempt to assist the federal government as “unilaterally transform[ing] state
For its newly-minted-but-not-argued position, the majority relies extensively on
As noted by the majority opinion, Section 6 applies to three different scenarios: (1) when there is probable cause to believe a person committed a removable offense in a state other than Arizona; (2) when there is probable cause to believe that an individual committed a removable offense in Arizona, served his or her time for the crime, and was released; and (3) when there is probable cause to believe an individual committed a removable offense, but was not prosecuted. The question before us is whether warrantless arrests by state police officers in these three scenarios conflict with Congress‘s intent.
A. Inherent authority of state officers to enforce federal immigration law
As an initial matter, it is notable that the United States never once asserted, either at oral argument or in its briefs, that Arizona officers are without the power to enforce the civil provisions of immigration law. Indeed, counsel for the United States at oral argument actually confirmed state officers’ authority to arrest aliens on the basis of civil removability. See Oral Argument at 58:40-59:40 (stating that Section 6 would be constitutional if it required Arizona officers to contact ICE regarding whether a crime renders an alien removable).15 The United States’ argument against Section 6‘s constitutionality was
The majority rejects the existence of this inherent state authority by citing one case from this court in which we “assumed” states lacked such authority. In Gonzales v. City of Peoria, this court held state police officers could enforce criminal provisions of the INA. 722 F.2d 468, 475 (9th Cir.1983), rev‘d on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). During its analysis, this court stated in dicta:
We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration. However, this case does not concern that broad scheme, but only a narrow and distinct element of it—the regulation of criminal immigration activity by aliens.
Id. at 474-75 (emphasis added). The majority erred in simply accepting Gonzales‘s assumption, in dicta, without performing any additional inquiry into whether it was indeed correct.17
The majority also missteps in relying on an abbreviated analysis in United States v. Urrieta, 520 F.3d 569 (6th Cir.2008). There, Urrieta moved to suppress items found in his car during an extended search by local police. Id. 572-73. Urrieta had been detained by a local police officer following the issuance of a traffic citation. Id. at 571-72. During the detention related to the traffic violation, the police officer attempted to determine whether Urrieta was an illegal alien. Id. The court concluded that suspicion of Urrieta‘s illegal presence was insufficient to extend Urrieta‘s detention. Id. at 574. In doing so, the court characterized
This conclusion, however, completely ignored the existence and effect of
Moreover, the majority ignores clear Supreme Court precedent in concluding that state officers cannot make warrantless arrests because federal immigration officers cannot make warrantless arrests under the same circumstances pursuant to
The conclusion that state police officers have the inherent authority to enforce the civil provisions of federal immigration law is supported by Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir.2003). There, a police officer questioned a woman
As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.
Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (emphasis added). Thus, the Supreme Court explicitly recognized—in one of our California cases—that state police officers have authority to question a suspect regarding his or her immigration status, directly contradicting the majority‘s conclusion that state officers possess no inherent authority to enforce the civil provisions of immigration law.19
B. Non-preemption of states’ inherent enforcement authority
Next, the majority errs in finding that
Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
Unable to cite any text in
This legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers. Accordingly, neither the text of the statute nor its legislative history support Vasquez‘s claim that
§ 1252c expressly preempts state law.
The majority takes a single Representative‘s comment that states lacked the authority to arrest illegal aliens and that
Representative Doolittle did not identify which “current Federal law” prohibited “State and local law enforcement officials from arresting and detaining criminal aliens.” Neither the United States nor Vasquez has identified any such preexisting law. Furthermore, this court has not been able to identify any pre-
§ 1252c limitations on the powers of state and local officers to enforce federal law.
Id. at 1299 n. 4; see also United States v. Anderson, 895 F.2d 641, 647 (9th Cir.1990) (Kozinski, J., dissenting) (“[Legislative] history ... is seldom, if ever, even seen by most of the legislators at the time they cast their votes.“).21 Further supporting
The Tenth Circuit went on to note that Congress subsequently “passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws.” Vasquez-Alvarez, 176 F.3d at 1300. Notably, Congress passed
Nothing in this subsection [1357(g)] shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State ... otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
The majority contends that
Absent subsection (g)(10), one might argue that the authority created by
Neither does this interpretation render
If, for example, a court were otherwise inclined (per the Ninth Circuit‘s dicta in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983)) to misconstrue the provisions of the INA as preempting state authority to arrest for civil deportability, section 1252c would operate to ensure that state police at least retained the authority to make such arrests of aliens who had previously been convicted of a felony and had been deported or had left the United States after such conviction.
2002 OLC Opinion at 11.25 Moreover, Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power. See, e.g., Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance,
Conclusion
In conclusion, Section 6 is not preempted and is constitutional. The United States all but conceded the only argument it made in this court and the court below. On the merits of the majority‘s sua sponte suggestion that state officers can act in the immigration enforcement field pursuant
IV. Conclusion
The majority misreads the meaning of the relevant federal statutes to ignore what is plain in the statutes—Congress intended state and local police officers to participate in the enforcement of federal immigration law. Sections 2 and 6 do not conflict with this intent, and thus are constitutional.
Notes
When a local, county, or State law enforcement officer makes an arrest for any indictable crime, or for driving while intoxicated, the arresting officer or a designated officer, as part of the booking process, shall inquire about the arrestee‘s citizenship, nationality and immigration status. If the officer has reason to believe that the person may not be lawfully present in the United States, the officer shall notify [ICE] during the arrest booking process.Anne Milgram, Attorney General Law Enforcement Directive No.2007-3.
It is urged that all law enforcement officials, including state and local law enforcement agencies take steps to support the enforcement of federal immigration laws by investigating and determining the immigration status of all non-citizens taken into custody, incarcerated, or under investigation for any crime and notifying federal authorities of all illegal immigrants discovered as a result of such investigations.
For any lawful stop, detention or arrest made by[an Arizona] law enforcement official or a law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person‘s immigration status determined before the person is released. The person‘s immigration status shall be verified with the federal government pursuant to8 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:
- A valid Arizona driver license.
- A valid Arizona nonoperating identification license.
- A valid tribal enrollment card or other form of tribal identification.
- 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.
For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or a law enforcement agency in the enforcement of any other law or ordinance of a county, city or town [of] this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person‘s immigration status determined before the person is released. The person‘s immigration status shall be verified with the federal government pursuant to
8 United States Code section 1373(c) .... A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following: 1. A valid Arizona driver license. 2. A valid Arizona nonoperating identification liсense. 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.
“I don‘t know what you mean by ‘glory,‘” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don‘t—till I tell you. I meant ‘there‘s a nice knock-down argument for you!‘” “But ‘glory’ doesn‘t mean ‘a nice knock-down argument,‘” Alice objected. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that‘s all.”Lewis Carroll, Through the Looking Glass and What Alice Found There, in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner ed., Norton Publishers) (2000). I am disappointed the majority does not take Lewis Carroll‘s humorous example of word traducing seriously to explain how the majority‘s use of “nothing” in
DEPUTY SOLICITOR GENERAL KNEEDLER: No, I think [Section 6] continues to present the problems that the [District] Court identified because there‘s no requirement in Section 6 that the state or local officer contact ICE in order to find whether an offense is removable. The individual with, the officer would have to make a judgment as to whether the public offense in the other state was also a public offense in Arizona, and then determine whether it would in turn lead to a removal—
JUDGE NOONAN: But the response is like Judge Paez suggested earlier, second-degree murder is the crime.
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, in some, in that situation, it would probably, you know, it would probably be possible to make that determination.
JUDGE NOONAN: Then why, so it doesn‘t, you have a Salerno problem with respect to Section 6?
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, I don‘t think so because there‘s no requirement to check with ICE, first of all, and the INA, that‘s that responsibility for making removability determinations in the Federal Government. There may be some situations in which something could be done otherwise. (emphases added).
Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel‘s full attention, it may be appropriate to re-visit the issue in a later case.
Id. at 915. Here, the Gonzales panel‘s statement regarding the civil provisions was “made casually and without analysis“; indeed, the panel even admitted they “assume[d]” the conclusion. It takes no analysis to assume. Further, the statement on INA‘s civil provisions was “merely a prelude to another legal issue.” Immediately after making the statement, the panel noted that the “case d[id] not concern” the civil provisions. Therefore, this panel is not bound by the Gonzales court‘s assumption, in dicta, regarding the INA‘s civil provisions.