UNITED STATES OF AMERICA, Plaintiff-Appellant, v. STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California; XAVIER BECERRA, Attorney General of California, Defendants-Appellees.
No. 18-16496
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed April 18, 2019
Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.
D.C. No. 2:18-cv-00490-JAM-KJN. Argued and Submitted March 13, 2019, San Francisco, California.
OPINION
Opinion by Judge Milan D. Smith, Jr.
Immigration
In a case in which the United States sought to enjoin the enforcement of three laws California enacted expressly to protect its residents from federal immigration enforcement, the panel affirmed in part and reversed in part the district court’s denial in large part of the United States’ motion for a preliminary injunction.
The United States challenged three California laws: AB 450, which—as relevant to this appeal—requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.
The United States sought a preliminary injunction, arguing that these laws violated the doctrine of intergovernmental immunity and the doctrine of conflict preemption. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.
With respect to AB 450, which requires employers to alert employees before federal immigration inspections, the panel affirmed the district court’s denial of a preliminary
With respect to AB 103, which imposes inspection requirements on facilities that house civil immigration detainees, the panel affirmed the denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law and are imposed on state and local detention facilities.
However, the panel concluded that one subsection of AB 103—
With respect to SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities, the panel affirmed the district court’s denial of a preliminary injunction. The panel rejected the United States’ argument that the provisions violate the doctrine of obstacle preemption and the doctrine of intergovernmental immunity, concluding that the district court did not abuse its discretion when it concluded that any obstruction caused by SB 54 is consistent with California’s prerogatives under the
The panel also rejected the United States’ contention that SB 54’s information-sharing restrictions—which prohibit state and local law enforcement agencies from providing information regarding a person’s release date from incarceration or other personal information—conflict with
COUNSEL
Daniel Tenny (argued), Brad Hinshelwood, Laura Myron, Katherine Twomey Allen, Daniel Tenny, and Mark B. Stern, Appelate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; McGregor Scott, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Joshua S. Press, Francesca Genova, Joseph A. Darrow, and Lauren C. Bingham, Trial Attorneys; Erez Reuveni, Assistant Director; August Flentje, Special Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant.
Aimee Feinberg (argued), Deputy Solicitor General; Kristin Liska, Associate Deputy Solicitor General; Lee I. Sherman,
David L. Caceres, Assistant City Attorney; Lonnie J. Eldridge, City Attorney; Office of the City Attorney, Simi Valley, California; for Amicus Curiae City of Simi Valley.
Anthony S. Chavez, Daniel L. Richards, and Matthew E. Richardson, Best Best & Krieger LLP, Irvine, California, for Amicus Curiae City of Lake Forest.
Christopher J. Hajec, Elizabeth A. Hohenstein, and Mark S. Venezia, Immigration Reform Law Institute, Washington, D.C., for Amici Curiae National Law Enforcement Associations and Victims’ Organizations.
Kyle D. Hawkins, Solicitor General; Ari Cuenin and Eric A. White, Assistant Solicitors General; Jeffrey C. Mateer, First Assistant Attorney General; Ken Paxton, Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, and Governor Phil Bryant of the State of Mississippi.
Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, D.C.; Sarah R. Rehlberg and Dale L. Wilcox, Immigration Reform Law Institute, Washington, D.C.; for Amici Curiae Municipalities and Elected Officials.
Sara J. Eisenberg, Aileen M. McGrath, and Tara M. Steeley, Deputy City Attorneys; Yvonne R. Mere, Chief of Complex and Affirmative Litigation; Ronald P. Flynn, Chief Deputy City Attorney; Jesse C. Smith, Chief Assistant City Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Amicus Curiae City and County of San Francisco.
Benjamin G. Shatz, Michael G. Nordon, and Esra A. Hudson, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Faith-Based Organizations.
Harit U. Trivedi, Strefan Fauble, Valerie L. Flores, Deputy City Attorneys; James P. Clark, Chief Deputy City Attorneys; Leela A. Kapur, Chief of Staff; Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Amicus Curiae City of Los Angeles.
David M. Zionts, Ivano M. Ventresca, and Eric H. Holder Jr., Covington & Burling LLP, Washington, D.C.; Jessica R. Hanson and Daniel N. Shallman, Covington & Burling LLP, Los Angeles, California; for Amicus Curiae California State Senate.
Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois;
Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord, Institute for Constitutional Advocacy and Protection,
Fredrick S. Levin, Daniel R. Paluch, Ali M. Abughedia, and Michael A. Rome, Santa Monica, California, for Amicus Curiae American Jewish Committee.
Bradley S. Phillips and Gregory D. Phillips, Munger Tolles & Olson LLP, Los Angeles, California, for Amici Curiae Immigration, Labor and Employment Law Scholars re: AB 450.
Harry Sandick and Michael D. Schwartz, Patterson Belknap Webb & Tyler LLP, New York, New York; Kevin A. Calla, Law Office of Kevin A. Calla, Roseville, California; for Amici Curiae Administrative Law, Constitutional Law, Criminal Law and Immigration Law Scholars.
Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Erin Bernstein and Malia McPherson, Deputy City Attorneys, Maria Bee, Chief Assistant City Attorney; Barbara J. Parker, City Attorney; Office of the City Attorney, Oakland, California; Javier Serrano, Deputy County Counsel; Kavita Narayan, Lead Deputy County Counsel; Greta S. Hansen, Chief Assistant County Counsel; James R. Williams, County Counsel; Office of the County Counsel, San Jose, California; for Amici Curiae 29 California Counties, Cities, and Local Officials.
Abigail K. Coursolle, Ian McDonald, Joe McLean, and Sarah Grusin, National Health Law Program, Los Angeles, California, for Amici Curiae National Health Law Program, Asian Law Alliance; Bay Area Lawyers for Individual Freedom; California Center for Rural Policy; California
MacKenzie Fillow, John Moore, Noah Kazis, Aaron Bloom, and Richard Dearing, Of Counsel; Zachary W. Carter, Corporation Counsel; New York City Law Department, New York, New York, for Amici Curiae City of New York and 21 Local Governments.
M. SMITH, Circuit Judge:
Defendant-Appellee State of California (California) enacted three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. Plaintiff-Appellant United States of America (the United States) challenged these enactments under the Supremacy Clause and moved to enjoin their enforcement. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.
The district court did not abuse its discretion when it concluded that AB 450’s employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California’s prerogatives under the
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
We first review the relevant federal statutory framework before describing the three California laws at issue in this case.
A. Federal Statutory Framework
i. The INA
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States (Arizona II), 567 U.S. 387, 394 (2012); see also
“The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal,” which might include the “purchase or lease of [an] existing prison, jail, detention center, or other comparable facility suitable for such use.”
The United States asserts that “Congress contemplated cooperation between federal and state officials” when it allowed noncitizens to complete state criminal custody before removal, and points to “other provisions of the INA
ii. The IRCA
Congress enacted the Immigration Reform and Control Act of 1986 (IRCA) “as a comprehensive framework for ‘combating the employment of illegal aliens.’” Arizona II, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). Under the IRCA, employers may not knowingly hire or employ aliens without proper work authorization.
does not impose federal criminal sanctions on the employee side . . . . some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. Aliens also may be removed from the country for having engaged in unauthorized work. In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means.
Arizona II, 567 U.S. at 404–05 (citations omitted).
To ensure compliance with the IRCA, employers must verify the authorization statuses of prospective employees.
B. California’s Statutes
This case centers on three laws enacted by the California legislature with the express goal “of protecting immigrants from an expected increase in federal immigration enforcement actions.” Hearing on AB 450 Before the
i. Immigrant Worker Protection Act (AB 450)
AB 450 prohibits “public and private employers” from “provid[ing] voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant.”
In addition, AB 450 requires employers to “provide a notice to each current employee, by posting in the language the employer normally uses to communicate employment-related information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.”
ii. Inspection and Review of Facilities Housing Federal Detainees (AB 103)
AB 103 requires the California Attorney General to conduct “reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.”
iii. California Values Act (SB 54)
On March 6, 2018, the United States filed this action against California, alleging that AB 450, AB 103, and SB 54 are preempted and violate the Supremacy Clause. The United States moved to preliminarily enjoin the three laws.
The district court granted the motion for a preliminary injunction in part and denied it in part. United States v. California (California I), 314 F. Supp. 3d 1077, 1112 (E.D. Cal. 2018). It agreed that the United States was likely to succeed on the merits as to two provisions of AB 450—specifically, the restriction on employers’ voluntary consent to immigration enforcement officers, which the court concluded “impermissibly discriminates against those who choose to deal with the Federal Government,” and AB 450’s reverification provision, which it determined was likely preempted. Id. at 1096, 1098.4 However, the court found “no merit to [the United States’] Supremacy Clause claim as to” AB 450’s employee-notice provisions, reasoning, “Given IRCA’s focus on employers, the Court finds no indication—express or implied—that Congress intended for employees to be kept in the dark.” Id. at 1097. The notice provisions did not “violate the intergovernmental immunity doctrine,” the district court continued, because “[a]n employer is not punished for its choice to work with the Federal Government, but for its failure to communicate with its employees.” Id.
As to AB 103, the district court found “no indication in the cited portions of the INA that Congress intended for
AB 103’s review process does not purport to give California a role in determining whether an immigrant should be detained or removed from the country. The directive contemplates increased transparency and a report that may serve as a baseline for future state or local action. At this point, what that future action might be is subject to speculation and conjecture.
Id. at 1091. It further concluded that AB 103 was not invalid under the doctrine of intergovernmental immunity because “the burden placed upon the facilities is minimal,” and “even if AB 103 treats federal contractors differently than the State treats other detention facilities,” the United States had not demonstrated that California “treats other facilities better than those contractors.” Id. at 1093.
The district court also refused to enjoin the challenged provisions of SB 54, finding that California’s “decision not to assist federal immigration enforcement in its endeavors is not an ‘obstacle’ to that enforcement effort” because “refusing to help is not the same as impeding,” and thus the doctrine of obstacle preemption did not render the provisions unlawful. Id. at 1104–05. It also found that “Tenth Amendment and anticommandeering principles counsel against preemption,” and that
Subsequently, the district court ruled on California’s motion to dismiss, issuing an order consistent with its conclusions as to the preliminary injunction. United States v. California (California II), No. 2:18-cv-490-JAM-KJN, 2018 WL 3361055, at *1 (E.D. Cal. July 9, 2018). This timely appeal followed.
STANDARD OF REVIEW AND JURISDICTION
We review a district court’s denial of a preliminary injunction for abuse of discretion. Epona v. County of Ventura, 876 F.3d 1214, 1219 (9th Cir. 2017). “Our review is limited and deferential. The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We will therefore reverse a denial of a preliminary injunction if the district court “based [its decision] on an erroneous legal standard or a clearly erroneous finding of fact.” Associated Press v. Otter, 682 F.3d 821, 824 (9th Cir. 2012) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)).
ANALYSIS
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Here, as the United States observes, the district court‘s “sole basis for denying injunctive relief against the California laws at issue in this appeal was the court‘s assessment of the merits,” which, it further argues, “was erroneous because the district court adopted an unduly narrow view of two related doctrines, intergovernmental immunity and conflict preemption.”
The doctrine of intergovernmental immunity is derived from the Supremacy Clause,
Under the doctrine of conflict preemption, “state laws are preempted when they conflict with federal law. This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” Arizona II, 567 U.S. at 399 (citations omitted) (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); and then quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The latter instances constitute so-called “obstacle preemption,” and “[t]o determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our ‘judgment, to be informed by examining the
“Under these principles,” the United States contends, “the challenged provisions of California law are invalid and should have been enjoined.” We consider each statute in turn.
I. AB 450
AB 450, which imposes penalties on employers based on their interactions with federal immigration authorities, was partially enjoined by the district court; specifically, its provisions relating to employers who provide consent to federal investigations or reverify the employment eligibility of current employees. The district court did not, however, enjoin the provisions of AB 450 that establish employee-notice requirements. The United States maintains that “these provisions violate the intergovernmental immunity doctrine and are also subject to obstacle preemption.”
A. Intergovernmental Immunity
The United States contends that “AB 450‘s provisions impermissibly target and discriminate against federal immigration enforcement operations.” It reasons that “[i]f any other entity—such as a state or federal regulator, or a private entity—inspects an employer‘s records, the employer would have no obligation under AB 450 to notify its employees,” and thus that AB 450 impermissibly imposes a “unique regime” on the federal government.
This argument, however, extends intergovernmental immunity beyond its defined scope. The doctrine has been invoked, to give a few examples, to prevent a state from imposing more onerous clean-up standards on a federal hazardous waste site than a non-federal project, Boeing, 768 F.3d at 842–43; to preclude cities from banning only the U.S. military and its agents from recruiting minors, United States v. City of Arcata, 629 F.3d 986, 988, 990–92 (9th Cir. 2010); and to foreclose a state from taxing the lessees of federal property while exempting from the tax lessees of state property, Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 381–82, 387 (1960). Those cases dealt with laws that directly or indirectly affected the operation of a federal program or contract. The situation here is distinguishable—AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated. We agree with California: “The mere fact that those notices contain information about federal inspections does not convert them into a burden on those inspections.” Similarly, the mere fact that the actions of the federal government are incidentally targeted by AB 450 does not mean that they are incidentally burdened, and while the latter scenario might implicate intergovernmental immunity, the former does not. As the district court correctly recognized, to rule otherwise “would stretch the doctrine beyond its borders.” California I, 314 F. Supp. 3d at 1097.
The United States argues that the proposition that intergovernmental immunity is only implicated when federal activities are obstructed “is clearly wrong, because it would render the intergovernmental-immunity doctrine entirely redundant with the obstacle-preemption doctrine, which separately addresses the burdensome effect of non-discriminatory state laws.” We disagree. The United States does not accurately distinguish between the doctrines of intergovernmental immunity and obstacle preemption. Reviewing the case law in which these doctrines were developed yields the proper distinction: simply put, intergovernmental immunity attaches only to state laws that discriminate against the federal government and burden it in some way. Obstacle preemption, by contrast, attaches to any
Moreover, the United States’ position that no obstruction is required in intergovernmental immunity cases ignores the origins of the doctrine and the occasions in which it has been applied. “The doctrine of intergovernmental immunity arose from the Supreme Court‘s decision in M‘Culloch v. Maryland, which established that ‘the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.‘” City of Arcata, 629 F.3d at 991 (emphasis added) (citation omitted) (quoting M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819)); see also North Dakota, 495 U.S. at 437–38 (plurality opinion) (“The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government.” (emphasis added)); Washington v. United States, 460 U.S. 536, 544 (1983) (“The important consideration . . . is not whether the State differentiates in determining what entity shall bear the legal incidence of the tax, but whether the tax is discriminatory with regard to the economic burdens that result.” (emphasis added)); City of Arcata, 629 F.3d at 991 (applying the nondiscrimination rule to ordinances that ”specifically target and restrict the conduct of military recruiters” (emphasis added)).
Since the advent of the doctrine, intergovernmental immunity has attached where a state‘s discrimination negatively affected federal activities in some way. It is not implicated when a state merely references or even singles out federal activities in an otherwise innocuous enactment.
B. Preemption
The United States also contends that AB 450‘s employee-notice provisions are preempted because they seek “to alter the manner in which the federal government conducts inspections, by imposing requirements that neither Congress nor the implementing agency saw fit to impose.” We disagree. The cases to which the United States cites concerned either the disruption of a federal relationship or the undermining of a federal operation. Here, there is indisputably a federal relationship, but it is between federal immigration authorities and the employers they regulate6—not between employers and their employees. AB 450 impacts the latter relationship, not the former, and imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities. In Arizona II, the Supreme Court observed that a “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” 567 U.S. at 406
AB 450‘s employee-notice provisions do not permit employers to hire individuals without federally defined authorization, or impose sanctions inconsistent with federal law, either of which would impermissibly “frustrate[] the purpose of the national legislation or impair[] the efficiency of those agencies of the Federal government.” Nash v. Fla. Indus. Comm‘n, 389 U.S. 235, 240 (1967) (quoting Davis v. Elmira Sav. Bank, 161 U.S. 275, 283 (1896)). But “nothing in IRCA (or federal immigration policy generally) demands that employers, site owners, or general contractors be absolved from” a state‘s employee-protection efforts “whenever undocumented aliens provide labor.” Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 242 (2d Cir. 2006); see also id. at 241–42 (finding no preemption where “[t]here is no irreconcilable conflict between IRCA and [a state workplace-protection law] such that compliance with both the former‘s prohibition on the employment of undocumented workers and the latter‘s safe construction site obligation is physically impossible“). In the absence of irreconcilability, there is no conflict preemption, as the district court correctly recognized. See California I, 314 F. Supp. 3d at 1097.
II. AB 103
AB 103 authorizes the California Attorney General to inspect detention facilities that house civil immigration detainees. The United States contends that the law
A. Intergovernmental Immunity
Like AB 450, AB 103 relates exclusively to federal conduct, as it applies only to “facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.”
Prior to the enactment of AB 103, California law already required periodic inspections of prisons and detainment facilities. See
i. De Minimis Exception
We agree with the United States that Supreme Court case law compels the rejection of a de minimis exception to the doctrine of intergovernmental immunity.
The recent decision in Dawson v. Steager, 139 S. Ct. 698 (2019), supports this position. There, the Court suggested that any discriminatory burden on the federal government is impermissible, writing that “[s]ection 111 disallows any state tax that discriminates against a federal officer or employee.” Id. at 704 (citing
The parties do not dispute that the principles of the intergovernmental tax immunity doctrine apply to the general intergovernmental immunity doctrine. See North Dakota, 495 U.S. at 434–39 (plurality opinion). Accordingly, we are not prepared to recognize a de minimis exception to the doctrine of intergovernmental immunity. Any economic burden that is discriminatorily imposed on the federal government is unlawful.9 In relying on a de minimis exception, the district court applied incorrect law and therefore abused its discretion.
ii. Burdensome Provisions
That is not to say, however, that the United States is likely to succeed on the merits as to the entirety of AB 103. Only those provisions that impose an additional economic
California maintains that all of AB 103‘s requirements duplicate preexisting inspection demands imposed on state and local detention facilities. It points to regulations requiring its Board of State and Community Corrections (the Board) to inspect not only compliance with general health and safety standards—which are included in AB 103, see
In the context of this appeal from the denial of a preliminary injunction, we accept California‘s limited construction. We therefore conclude that AB 103‘s due process provision likely does not violate the doctrine of intergovernmental immunity, and that the district court‘s denial of a preliminary injunction as to this provision should be affirmed. We note, however, that a broader reading of the term “due process” might empower the California Attorney General to scrutinize, say, an immigration judge‘s analysis, the results of the Board of Immigration Appeals, or other related court proceedings—all of which are well outside the purview of a state attorney general, and not duplicative of the inspection requirements otherwise imposed on California‘s state and local detention facilities.
That is not the end of our inquiry, for as the United States observes, California “does not even attempt to identify any provision of the pre-existing inspection scheme analogous to the unique requirement for immigration detainees that inspectors must examine the circumstances surrounding their apprehension and transfer to the facility.” See
In light of this apparent factual error, and the district court‘s erroneous reliance on a de minimis exception to the doctrine of intergovernmental immunity, we reverse the district court‘s denial of a preliminary injunction as to
B. Preemption
The United States further argues that “even if AB 103‘s inspection regime had not discriminatorily targeted facilities holding federal immigration detainees, it still would be preempted by federal law.” We disagree.
The cases on which the United States relies involved a far clearer interference with federal activity than AB 103 creates. In Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 189–90 (1956) (per curiam), and Gartrell Construction Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991), states prevented the federal government from entering into agreements with its chosen contractors until the states’ own licensing standards were satisfied. In Tarble‘s Case, the Supreme Court rejected a state court‘s attempt to discharge a prisoner held “by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the National government.” 80 U.S. (13 Wall.) 397, 412 (1871). In In re Neagle, 135 U.S. 1, 62 (1890), the Court determined that a county sheriff could not hold a U.S. marshal on murder charges for actions taken on duty.
These cases evinced states’ active frustration of the federal government‘s ability to discharge its operations. Here, by contrast, AB 103 does not regulate whether or where an immigration detainee may be confined, require that federal detention decisions or removal proceedings conform to state law, or mandate that ICE contractors obtain a state license. The law might require some federal action to permit
In Arizona II, the Supreme Court noted that “[i]n preemption analysis, courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.‘” 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The United States does not dispute that California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders, and neither the provisions of the INA that permit the federal government to contract with states and localities for detention purposes, see
III. SB 54
We now reach the most contentious of the three challenged laws, SB 54, which, the United States contends, “seeks to impede the enforcement of federal immigration laws by manipulating the overlap between state criminal enforcement and federal immigration enforcement.”
A. Preemption
The United States argues that SB 54 unlawfully obstructs the enforcement of federal immigration laws. It focuses on a provision of the law that prohibits California law enforcement agencies from “[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination.”
We have no doubt that SB 54 makes the jobs of federal immigration authorities more difficult. The question, though, is whether that constitutes a “[c]onflict in technique” that is impermissible under the doctrine of obstacle preemption. Arizona II, 567 U.S. at 406 (alteration in original).
The United States relies in part on our opinion in Oregon Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228 (9th Cir. 2017), but that case is easily distinguished. There, a federal agency issued statutorily authorized subpoenas to a state agency, and the latter sought a declaration that it need not respond because of a state statute requiring “a valid court order” in all cases in which a subpoena is issued. Id. at 1231–32, 1236. We concluded that the state statute “stands as an obstacle to the full implementation of the [federal statute] because it ‘interferes with the methods by which the federal statute was designed to reach [its] goal.‘” Id. at 1236 (second alteration in original) (quoting Gade, 505 U.S. at 103 (plurality opinion)). Here, by contrast, neither an administrative warrant issued by federal authorities nor any other provision of law identified by the United States compels any action by a state or local official. With the exception of § 1373(a), discussed below, the various statutory provisions to which the United States points direct federal activities, not those of state or local governments. See
We cannot simply assume that Congress impliedly mandated that state and local governments would act in accordance with these statutes. Even if Congress had every expectation that they would, and opted not to codify its belief based on the presumption that states would conduct their law
[f]ederal law does not suggest the intent—let alone a “clear and manifest” one—to prevent states from regulating whether their localities cooperate in immigration enforcement. Section 1357 does not require cooperation at all. And the savings clause allowing cooperation without a 287(g) agreement indicates that some state and local regulation of cooperation is permissible.
City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th Cir. 2018) (citations omitted) (citing
But that does not resolve the lingering issue of obstacle preemption. The United States notes that SB 54 requires federal officers to, “in effect, stake out a jail and seek to make a public arrest. . . . Arrests of aliens in public settings generally require five officers and present risks to the arresting officer and the general public.” It contends that “Congress did not contemplate that, as a consequence of letting state detention proceed first, federal officers who sought to detain an alien for immigration purposes would need to race to the front of a local detention facility and seek to effectuate an arrest before the alien manages to escape.” Compounding the problem, the United States further claims, are provisions of SB 54 that preclude agencies from providing personal information and release dates to immigration authorities. See
The district court concluded that this frustration does not constitute obstacle preemption:
California‘s decision not to assist federal immigration enforcement in its endeavors is not an “obstacle” to that enforcement effort. [The United States‘] argument that SB 54 makes immigration enforcement far more
California I, 314 F. Supp. 3d at 1104.13 We agree. Even if SB 54 obstructs federal immigration enforcement, the United States position that such obstruction is unlawful runs directly afoul of the
B. The Tenth Amendment and Anticommandeering Rule
“The Constitution . . . ‘confers upon Congress the power to regulate individuals, not States.‘” Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018) (quoting New York v. United States, 505 U.S. 144, 166 (1992)). Under the
Ultimately, we conclude that the specter of the anticommandeering rule distinguishes the case before us from the preemption cases on which the United States relies. Those cases concerned state laws that affirmatively disrupted federal operations by mandating action (or inaction) contrary to the status quo.14 In each, a state statute
Here, by contrast, invalidating SB 54 would not prevent obstruction of the federal government‘s activities, because the INA does not require any particular action on the part of California or its political subdivisions. Federal law provides states and localities the option, not the requirement, of assisting federal immigration authorities. SB 54 simply makes that choice for California law enforcement agencies.
The United States’ primary argument against SB 54 is that it forces federal authorities to expend greater resources to enforce immigration laws, but that would be the case regardless of SB 54, since California would still retain the ability to “decline to administer the federal program.” New York, 505 U.S. at 177. As the Supreme Court recently rearticulated in Murphy, under the anticommandeering rule, “Congress cannot issue direct orders to state legislatures,” 138 S. Ct. at 1478, and the Court‘s earlier decision in New
Federal schemes are inevitably frustrated when states opt not to participate in federal programs or enforcement efforts. But the choice of a state to refrain from participation cannot be invalid under the doctrine of obstacle preemption where, as here, it retains the right of refusal. Extending conflict or obstacle preemption to SB 54 would, in effect, “dictate[] what a state legislature may and may not do,” Murphy, 138 S. Ct. at 1478, because it would imply that a state‘s otherwise lawful decision not to assist federal authorities is made unlawful when it is codified as state law.
We also find no constitutional infirmity in the specific provisions of SB 54 that govern the exchange of information with federal immigration authorities. See
The United States relies on Reno v. Condon, which upheld against Tenth Amendment attack a federal statute that “regulate[d] the disclosure and resale of personal information contained in the records of state DMVs” because it did “not require the States in their sovereign capacity to regulate their own citizens” and instead “regulate[d] the States as the owners of data bases.” 528 U.S. 141, 143, 151 (2000). But the Supreme Court recently explained,
The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.
That principle formed the basis for the Court‘s decision in Reno v. Condon, which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver‘s licenses. The law applied equally to state and private actors. It did not regulate
the States’ sovereign authority to “regulate their own citizens.”
Murphy, 138 S. Ct. at 1478-79 (citation omitted) (quoting Reno, 528 U.S. at 151). Here, by contrast, it is the state‘s responsibility to help enforce federal law, and not conduct engaged in by both state and private actors, that is at issue. We therefore conclude that Murphy‘s reading of Reno suggests that the latter is not applicable here.
SB 54 may well frustrate the federal government‘s immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The United States stresses that, in crafting the INA, Congress expected cooperation between states and federal immigration authorities. That is likely the case. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California‘s cooperation without running afoul of the
C. Intergovernmental Immunity
The Government also argues that SB 54 violates the doctrine of intergovernmental immunity.
The district court correctly rejected that argument. See California I, 314 F. Supp. 3d at 1110. In North Dakota, the Supreme Court endorsed “a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign‘s legislative authority and respectful of the primary role of Congress in resolving conflicts between the
D. Section 1373
Lastly, the United States contends that
We disagree. Although the United States contends that “whether a given alien may actually be removed or detained by federal immigration authorities is, at a minimum, information regarding that alien‘s immigration status,” the phrase “information regarding the citizenship or
Congress has used more expansive phrases in other provisions of Title 8 when intending to reach broader swaths of information. See, e.g.,
The United States also relies heavily on an Information Bulletin issued by the California Department of Justice in June 2014, which read in part that “law enforcement officials may provide information to ICE, including notification of the date that an individual will be released, as requested on an immigration detainer form. Federal law provides that state and local governments may not be prohibited from providing information to or receiving information from ICE.” The United States contends that California‘s “limited view of the scope of [
In summation, the district court correctly concluded that ”
IV. Winter Factors
California argues that the three other Winter factors—irreparable harm, the balance of the equities, and the public interest, 555 U.S. at 20—provide an alternative basis for affirming the district court‘s denial of a preliminary injunction. See Big Country Foods, Inc. v. Bd. of Educ., 868 F.2d 1085, 1088 (9th Cir. 1989) (concluding that a district court‘s denial of a motion for a preliminary injunction “may [be] affirm[ed] on any ground supported by the record“). Because we agree with the district court that the United States is unlikely to succeed on the merits of its challenges to AB 450‘s employee-notice provisions and SB 54, we consider these factors only as applied to the provision of AB 103 that imposes an impermissible burden on the federal government.
In granting the United States’ motion to enjoin the two invalidated provisions of AB 450, the district court “presume[d] that [the United States] will suffer irreparable harm based on the constitutional violations.” California I, 314 F. Supp. 3d at 1112. This conclusion was consistent with our previous recognition that preventing a violation of
Nevertheless, California argues that “[t]he balance of equities and public interest weigh strongly against enjoining [its] laws during the pendency of litigation” because “a preliminary injunction here would lead to significant, concrete harm to the public.” At the district court, California claimed that “the Legislature passed AB 103 in reaction to growing concerns of egregious conditions in facilities housing civil detainees,” California I, 314 F. Supp. 3d at 1090-91—a conclusion supported in detail by amici curiae, including the National Health Law Program and the Immigrant Legal Resource Center. Moreover, we note that California retains an historic—and, since the federal government‘s contracts with immigration detainee facilities explicitly contemplate the application of state regulations, undisputed—authority to regulate the conditions of detainees housed within its borders. By contrast, other than relying on general pronouncements that a Supremacy Clause violation alone constitutes sufficient harm to warrant an injunction, the United States did not present compelling evidence that AB 103 inspections conducted by the
We are not prepared, in the first instance, to affirm the district court‘s denial of a preliminary injunction as to
CONCLUSION
We conclude that the district court correctly determined that the United States was unlikely to succeed on the merits of its challenges to AB 450‘s employee-notice provisions and SB 54, and therefore AFFIRM its denial of a preliminary injunction as to these enactments. We also AFFIRM the denial as to those provisions of AB 103 that duplicate preexisting inspection requirements. But because we conclude that
Notes
[I]t‘s going to require yet another inspection that we think is unnecessary, because these are federal contracts, these are federal prisoners detained under federal authority. We have our own set of standards. We certainly don‘t believe there should be any inspections to talk about due process of people that are in federal custody, under federal authority, conditions of confinement when we have our own set of standards which is much higher than most states.
So there‘s this general feeling that this is—it‘s burdensome, that they‘re going to be required to pull resources to do these inspections, when we have numerous inspections already at these facilities from various different components.
So again, it‘s—it‘s talk of burdensomeness—right?—extra work, pulling people from their duties to host these things and gather documents and paperwork and making people available for interviews and so forth.