ARIZONA, et al., UNITED STATES, No In The Supreme Court of the United States

Transcription

1 No In The Supreme Court of the United States ARIZONA, et al., v. UNITED STATES, Petitioners, Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF JOSEPH M. ARPAIO, MARICOPA COUNTY SHERIFF AS AMICI CURIAE IN SUPPORT OF PETITIONER Thomas P. Liddy Counsel of Record Peter Muthig MARICOPA COUNTY ATTORNEY S OFFICE 222 North Central Avenue, Suite 1100 Phoenix, Arizona (602) liddyt@mcao.maricopa.gov muthigk@mcao.maricopa.gov Counsel for Amici Curiae Joseph M. Arpaio, Maricopa County Sheriff Dated: February 13, 2012 THE LEX GROUP DC 1825 K Street N.W. Suite 103 Washington, D.C (202) (800) 856- Fax: (202)

2 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 5 I. SB 1070 HAS VALID APPLICATIONS THAT DO NOT CONFLICT WITH FEDERAL LAW AND THE STATUTE THEREFORE CANNOT BE FACIALLY PREEMPTED UNDER AN IMPLIED PREEMPTION ANALYSIS... 5 A. Congress Intended That States and Local Governments Assist With the Federal Government s Enforcement of Immigration Laws... 8 B. SB 1070 Has Constitutionally Valid Applications Section 2(B) of SB Section 3 of SB Section 6 of SB Section 5(C) of SB

3 ii II. FOREIGN RELATIONS CONCERNS SHOULD NOT INFORM THE COURT S PREEMPTION ANALYSIS AS THEY HAVE NO PREEMPTIVE EFFECT HERE CONCLUSION... 22

4 iii TABLE OF AUTHORITIES Page(s) CASES Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982)... 10, 14 American Insurance Ass n v. Garamendi, 539 U.S. 396 (2003) Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) DeCanas v. Bica, 424 U.S. 351 (1976)... 11, 19 Gonzalez v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) INS v. Lopez-Mendoza, 468 U.S (1984) Muehler v. Mena, 544 U.S. 93 (2005)... 17, 18 People of the State of California v. Zook, 336 U.S. 725 (1949) Plyler v. Doe, 457 U.S. 202 (1982) Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963)... 7

5 iv United States v. Lopez, 514 U.S. 549 (1995) United States v. Salerno, 481 U.S. 739 (1987)... 6, 11, 14 United States v. Stevens, 130 S. Ct (2010)... 6 United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999), cert. denied, 528 U.S. 913 (1999) Wachovia Bank v. Schmidt, 546 U.S. 303 (2006) Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)... 6, 11, 14 CONSTITUTIONAL PROVISIONS U.S. CONST. art. I U.S. CONST. art. II U.S. CONST. art. III STATUTES 8 U.S.C. 1252c... 9, 18 8 U.S.C. 1252c(a) U.S.C. 1304(e)... 15, 20

6 v 8 U.S.C. 1306(a) U.S.C. 1357(g)... 13, 20 8 U.S.C. 1357(g)(1)-(9)... 10, 13 8 U.S.C. 1357(g)(10)... 10, 13 8 U.S.C. 1357(g)(10)(A) , 12 8 U.S.C. 1357(g)(10)(B)... 9, 12, 17 8 U.S.C. 1373(c)... 9, 10, 12 8 U.S.C A.R.S (B)... 6 A.R.S A.R.S (A)(2)... 1 A.R.S (C)... 6 A.R.S (A)(5)... 6, 15 SB passim SB SB SB (B)... 4, 11, 12, 14 SB , 6, 11, 15

7 vi SB SB (C)... 4, 5, 11, 18 SB passim RULE Sup. Ct. R OTHER AUTHORITY Robert Frost, Mending Wall (1914)... 20

8 1 INTEREST OF AMICUS CURIAE 1 Sheriff Joseph M. Arpaio is the Sheriff of Maricopa County, by far the largest county in Arizona both in land area and population. He is serving his fifth elected term as Sheriff. Since 1992, when Sheriff Arpaio was elected to his first term, he has actively sought to serve the interests of his constituents regarding crime as it pertains to illegal immigration and related issues, including human and drug smuggling. Maricopa County is the destination for the human smuggling corridor through the border counties and Tucson. No person is more familiar with law enforcement procedures related to illegal immigration and the law enforcement procedures that will be followed if SB 1070 is implemented and enforced than Sheriff Arpaio. Sheriff Arpaio has a statutory duty to enforce the laws of the State of Arizona. See A.R.S (A)(2) (the county sheriff shall arrest and take before the nearest magistrate for examination all persons who attempt to commit or have committed a public offense ). Accordingly, Sheriff Arpaio is charged with the duty of enforcing SB 1070 and ensuring that it is applied justly and within constitutional directives. This is a particularly challenging task in Maricopa County. According to 1 The parties have consented to the filing of this brief. Pursuant to Supreme Court Rule 37.6, amicus states that no counsel for a party wrote this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person or entity other than amicus or its counsel has made a monetary contribution to the brief s preparation or submission.

9 2 the U.S. Census Bureau, as of July 2008, the population of Maricopa County was 3,954,598, which ranks fourth among the nation s counties and is greater than the population of 24 states. Maricopa County contains more than half of the state s residents and contains the state s largest city and capital, Phoenix. Greater Phoenix is the destination of the human smuggling corridor, and is the location of the drop houses for human smugglers. Phoenix has been reported to be the kidnapping capital of the United States, and number two in the world, second only to Mexico City. Because of Sheriff Arpaio s strong desire to control crime related to illegal immigration, he has an equally strong interest in seeing SB 1070 upheld. SUMMARY OF ARGUMENT This case poses the question whether a law passed by the State of Arizona relating to state enforcement of immigration law may be preempted because it violates the Supremacy Clause of the United States Constitution, where that law has not yet taken effect, does not conflict with federal law, and has constitutionally valid applications. The law in question is Arizona s Support Our Law Enforcement and Safe Neighborhoods Act, otherwise known as SB Its stated purpose is to encourage the cooperative enforcement of federal immigration laws throughout all of Arizona. SB 1070, 1. True to its purpose of cooperative enforcement the law was written to mirror the federal law and expressly adopts federal immigration standards, primarily so that there would be no conflict with the federal law. The court

10 3 below upheld the preliminary injunction of four provisions of SB 1070 that had been requested by Respondent United States, finding that they were likely preempted by federal law. The United States challenge of SB 1070 is a facial challenge, which is generally disfavored and places a heavy burden on the challenging party. Part of that burden consists of showing that the challenged statute is unconstitutional in all of its applications and/or that no set of circumstances exists under which the law would be valid. In evaluating the validity of a statute pursuant to a facial challenge, the factors that must be examined are (1) the intent of Congress in legislating in the relevant field (here, immigration law), (2) whether there are any constitutionally valid applications of the statute or circumstances under which its application would be valid, and (3) whether the statute in question actually conflicts with federal law. Here, all three factors support the conclusion that SB 1070 should not be preempted. Congress has clearly and explicitly stated its intention that state and local governments and officials should assist the federal government in the enforcement of federal immigration law. Based on applicable statutory provisions, it is clear that Congress intended that state and local authorities should assist federal authorities in determining the immigration status of aliens, detaining those who are illegally present, and generally assisting the federal government in its enforcement of the immigration laws. In short, Congress did not intend to occupy the field of immigration law to the

11 4 complete exclusion of state participation. SB 1070 is fully consistent with Congress s purpose of encouraging cooperation and assistance among federal and local governments in enforcing our Nation s immigration laws. This is evidenced in part by the fact that SB 1070 was written to adopt the federal rule as its own so that it would not conflict with the federal law. A review of the preliminarily enjoined sections of SB 1070 demonstrates that they all have applications that are constitutionally valid and are, in fact, entirely consistent with federal law. For example, if an Arizona official detains a suspected illegal alien and verifies that alien s unlawful presence by checking with the federal government (SB 1070 Section 2(B)), that official has enforced the Arizona law while also furthering the interests of the federal government. This is a valid application of the law. In addition, federal statutes generally give state officials the authority to communicate and cooperate with the federal government in the identification, apprehension, detention, or removal of unlawfully present aliens, which is the ultimate purpose of SB Sections 3 and 6 of SB 1070 operate to similar effect. Section 3 essentially adopts federal law and provides for its enforcement under Arizona law. Section 6 of SB 1070 expands upon Arizona law enforcement s existing authority to make warrantless arrests by authorizing warrantless arrests of persons who commit public offenses which makes them removable from the United States. Neither Sections 3 nor 6 are in conflict with federal law and both have constitutionally valid applications. Section 5(C) of

12 5 SB 1070 differs from the other relevant sections because its subject matter makes it presumptively valid. Section 5(C) essentially regulates the employment of illegal aliens in an area not covered by federal law, making it a constitutionally valid application not in conflict with federal law. Finally, any analysis of preemption of a state law under the Supremacy Clause should not be guided by foreign nations or foreign leaders criticism of that law. This is a matter internal to the United States and its citizens. Further, case law supports the proposition that foreign relations concerns should play no part in a preemption analysis where there is no established foreign relations policy goal with which the provisions of challenged statute conflict. SB 1070 is consistent with the United States policy on immigration, which seeks to minimize the presence of unauthorized aliens in this country. ARGUMENT I. SB 1070 HAS VALID APPLICATIONS THAT DO NOT CONFLICT WITH FEDERAL LAW AND THE STATUTE THEREFORE CANNOT BE FACIALLY PREEMPTED UNDER AN IMPLIED PREEMPTION ANALYSIS Simply stated, this case concerns the federal government s desire to preemptively invalidate an Arizona statute dealing with state level enforcement of federal immigration law, before that law has even been implemented. Respondent United States

13 6 initially sought to have SB 1070 declared unconstitutional in its entirety. The United States District Court for the District of Arizona granted relief, in part, and issued a partial preliminary injunction enjoining the enforcement of the portions of Section 2 of SB 1070 creating A.R.S (B), Section 3 creating A.R.S , section 5 creating A.R.S (C), and Section 6 creating A.R.S (A)(5). The Ninth Circuit Court of Appeals affirmed the District Court s ruling. Significantly, because SB 1070 had not gone into effect at the time of the United States challenge, Arizona has not had the benefit of having the validity of the statute s various provisions tested in real life applications of the law. As such, the United States is facially challenging the statute, arguing that its very terms render it unconstitutional. Such a facial challenge is typically disfavored and places a heavy burden on the party seeking to have the law in question declared unconstitutional. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). The difficulty lies in the fact that, in order to succeed on a facial challenge, the United States must show that [SB 1070] is unconstitutional in all of its applications and/or that no set of circumstances exists under which [SB 1070] would be valid. Id. See also United States v. Salerno, 481 U.S. 739, 745 (1987); United States v. Stevens, 130 S. Ct. 1577, 1587 (2010). Thus, if the law has applications that are constitutional, or there exist circumstances where the law can be constitutionally applied, SB 1070 should be deemed valid.

14 7 In evaluating the merits of this facial challenge, three relatively straightforward, simple and determinative factors lead inescapably to the conclusion that the challenged portions of SB 1070 are valid. The first of these factors is the purpose or intent of Congress in legislating in the context of enforcement of federal immigration laws, and whether that purpose included the involvement and cooperation of local and state governments with the federal government to achieve enforcement goals. It has been said that the purpose of Congress is the ultimate touchstone in determining whether a statute is preempted under the Supremacy Clause. Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963). Here, the clear language of several federal statutes dealing with immigration enforcement demonstrates that Congress unequivocally intended this type of involvement and cooperation between federal and local governments. This factor is discussed in greater detail in Section A, which follows. The second factor concerns the fact that SB 1070 is being facially challenged, and asks the question whether there are any applications of the statute or circumstances under which its application would be constitutionally valid. Since a facial challenge involves a statute whose provisions have not yet been evaluated in the context of actual controversies regarding its application, if it can be shown that there are any constitutionally valid applications of the law, it should not be preempted. As will be shown, SB 1070 has such applications, some of which were even recognized by the Ninth Circuit in its ruling. This factor is discussed in greater detail in Section B below.

15 8 Closely related to the above two factors, the third factor looks at whether the state law conflicts with the relevant federal law, or with the intent of Congress. In analyzing this factor, the Court should compare the state law with the federal immigration law as written in statute, passed by Congress and signed into law by the president of the United States. Consistent with this, in making its preemption analysis, the Court should not be influenced by the discretionary policy of the current chief executive or a particular administration, which may or may not choose to aggressively enforce the federal law. For example, the fact that the United States has adopted a policy of ignoring some provisions of U.S. immigration law, which in turn creates a conflict with the state law that seeks to aggressively enforce the federal law, does not create the type of conflict sufficient to warrant preemption. Critical to the conflict analysis in this case is the fact that SB 1070 was written to mirror provisions of the federal immigration laws. Since there is no conflict between SB 1070 and the federal law, there can be no preemption. This factor is discussed in both Sections A and B below. A. Congress Intended That States and Local Governments Assist With the Federal Government s Enforcement of Immigration Laws In numerous statutes, Congress has clearly and explicitly stated its intention that state and local governments and officials should assist the federal government in the enforcement of federal immigration law. For example, 8 U.S.C.

16 9 1357(g)(10)(A) allows state authorities to communicate with the Attorney General regarding the immigration status of any individual and 8 U.S.C. 1357(g)(10)(B) allows state authorities otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. Further, 8 U.S.C assures that no state or local government is prohibited or restricted from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States. The plain language of these statutes tells us that state and local authorities should communicate freely with the federal government as to the immigration status of suspected individuals and, if illegal status is confirmed, perform whatever tasks are necessary to assist with the apprehension, detention or ultimate removal of such individuals. In addition, Congress has given the federal government the affirmative duty to cooperate with state and local officials by mandating that federal authorities shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual. 8 U.S.C. 1373(c). Thus, the federal government must cooperate with local governments in their efforts to identify illegal aliens. Further, 8 U.S.C. 1252c authorizes state and local law enforcement officials to arrest aliens illegally present in the United States under certain circumstances.

17 10 If the foregoing statutory sections are given their plain meaning, it is clear that Congress intended that state and local authorities should assist federal authorities in determining the immigration status of aliens, detaining those who are illegally present, and generally assisting the federal government in its enforcement of the immigration laws. The panel majority of the Ninth Circuit reviewed the statutory scheme but gave it an embellished interpretation that was not in accord with the plain meaning of its various terms. For example, as dissenting Judge Bea pointed out, the majority s error is to read 1357(g)(1)-(9), which provides the precise conditions under which the Attorney General may enter into written agreements to deputize officers, as the exclusive authority which Congress intended state officials to have in the field of immigration enforcement. That reading is made somewhat awkward in view of 1357(g)(10), which explicitly carves out certain immigration activities by state and local officials as not requiring a written agreement. App. 75a. As the dissent correctly concluded, the more natural reading of 1357(g)(10), together with 1373(c), leads to a conclusion that Congress s intent was to provide an important role for state officers in the enforcement of immigration laws, especially as to the identification of illegal aliens. App. 78a. It is no coincidence that the identification of illegal aliens is one of the primary functions of SB Giving the foregoing statutes a reasonable interpretation so as to avoid untenable distinctions and unreasonable results, 2 there can be little 2 Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982).

18 11 argument that Congress did not intend to occupy the field of immigration law to the complete exclusion of state participation, at least not with respect to enforcement. As such, a fair reading of SB 1070 demonstrates that it is fully consistent with Congress s purpose of encouraging cooperation and assistance among federal and local governments in the daunting task of enforcing our Nation s immigration laws. Part of this consistency stems from the undeniable fact that SB 1070 was written to adopt the federal rule as its own so that it would not conflict with the federal law. In the absence of such conflict, and given the fact that states have the authority to regulate illegal aliens so long as that regulation is harmonious with federal regulation, 3 SB 1070 is not preempted by federal immigration law. B. SB 1070 Has Constitutionally Valid Applications The District Court issued a partial preliminary injunction enjoining the enforcement of Sections 2(B), 3, 5(C), and 6 of SB As noted above, this was in response to a facial challenge, where Arizona has not had the benefit of having a fully implemented law be interpreted by its own courts in the context of actual disputes. As such, the United States can only succeed in its challenge of SB 1070 by establish[ing] that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications. Wash. State Grange, 552 U.S. at 449 (citing Salerno, 481 U.S. at 745). Accordingly, the Court s task 3 DeCanas v. Bica, 424 U.S. 351, 356 (1976). See also Plyler v. Doe, 457 U.S. 202, 225 (1982).

19 12 should be to determine whether SB 1070 has applications that do not conflict with Congress s intent, which intent amicus has shown includes cooperation between federal and local authorities in the enforcement of federal immigration laws. A review of the preliminarily enjoined sections demonstrates that they all have applications that are constitutionally valid and are, in fact, entirely consistent with the federal law. 1. Section 2(B) of SB 1070 Section 2(B) of SB 1070 provides generally that, where reasonable suspicion exists that a person is an alien and is unlawfully present in the United States, an Arizona law enforcement official may make a reasonable attempt to determine that person s immigration status. Significantly, by the terms of the state statute, that status is to be verified with the federal government pursuant to 8 U.S.C. 1373(c). As detailed above, Congress has clearly expressed its intention that local government officials should cooperate with and assist federal officials by communicating with the U.S. Attorney General and verifying the immigration status of aliens, as well as in the identification, apprehension, detention, or removal of unlawfully present aliens. 8 U.S.C. 1373(c), 1357(g)(10)(A) and (B). Given the federal statutory mandates, and the plain language of SB 1070, it is difficult to see how Section 2(B) runs afoul of any federal enforcement scheme such that it should be preempted. Indeed, it seems reasonably clear that this section of the statute does not require any immigration status verification that is not also approved, and encouraged, under federal law. Thus,

20 13 if an Arizona law enforcement official detains a suspected illegal alien and verifies that alien s unlawful presence in the United States by checking with the federal government, that official has enforced the Arizona law while also furthering the interests of the federal government in a manner fully sanctioned by federal law. This is a valid application of the law. The Ninth Circuit majority erroneously read another portion of 8 U.S.C. 1357(g), i.e., sections (1) through (9), to require formal agreements between Arizona and the U.S. Attorney General in order for Arizona law enforcement personnel to act in the field of immigration law enforcement. But a fair reading of all of that statute s sections shows that Congress intended to give local authorities the power to aid in the enforcement of federal immigration laws even absent any formal agreement with the federal government. Indeed, nothing in [8 U.S.C. 1357(g)] shall be construed to require an agreement under this subsection for any local authority to communicate with the Attorney General regarding the immigration status of any individual or to cooperate with the Attorney General in other specified immigration enforcement activities. 8 U.S.C. 1357(g)(10). By not acknowledging that state and local law enforcement officials have broad general authority, even without a formal agreement, to communicate and cooperate with the federal government in the enforcement of immigration laws, the majority below essentially reads section 1357(g)(10) out of the statute. This could not have been Congress s intent.

21 14 The Courts must give the statutory language its plain meaning and read it so that it is in harmony with the statutory sections that accompany it. U.S. v. Lopez, 514 U.S. 549, 589 (1995); see also Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006), Am. Tobacco, 456 U.S. at 71. Such a reading leads to the conclusion that Arizona law enforcement authorities are entitled to communicate with federal authorities on the subject of immigration status, and also take such actions as are necessary to cooperate with the federal government in enforcing federal immigration law. In fact, even the Ninth Circuit majority conceded that Section 2(B) had applications related to communication and cooperation with the federal government that were not preempted. Specifically, the majority agreed that Arizona officials were free to communicate with the Attorney General about the immigration status of suspected aliens, and also to cooperate with federal immigration authorities without written agreements, even if only on an incidental and as needed basis. App. 15a-16a. These actions, according to the Appellate Panel, would be valid and consistent with federal immigration law. This comes as no surprise since SB 1070 was written so that it would not conflict with federal law. In addition, since the United States is facially challenging SB 1070, the Court should assume that Arizona law enforcement officials will comply with federal law in executing Section 2(B). In any event, Section 2(B) has constitutional applications and, therefore, is valid under Salerno and Wash. State Grange.

22 15 2. Section 3 of SB 1070 Section 3 of SB 1070 provides that a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a) (requiring alien registration and carrying of registration papers). Section 3, therefore, merely prohibits at the state level the same conduct that is already forbidden by federal law. states are allowed to legislate in this fashion if there is no conflict between their law and the federal statutes. People of the State of California v. Zook, 336 U.S. 725, 735 (1949). This is, of course, a favorable practice since the states assistance can be a valuable and welcome asset in aiding the federal government in policing areas of obvious national importance, such as illegal immigration. Section 3 essentially adopts federal law and provides for its enforcement under Arizona law. Absent a conflict or interference with the federal law, which Section 3 lacks, that portion of SB 1070 has valid applications as well and should not be preempted. 3. Section 6 of SB 1070 Section 6 of SB 1070 expands upon Arizona law enforcement s existing authority to make warrantless arrests for most crimes by authorizing officers to make warrantless arrests of persons committing a public offense, which offense makes the person removable from the United States. A.R.S (A)(5). It appears the only difficulty that a local law enforcement officer might encounter in enforcing this law would be in determining

23 16 whether a specific crime makes an alien removable. However, we must remember that we are evaluating SB 1070 in the context of a facial challenge, so if a local officer is able to ascertain in some instances that an alien is removable by virtue of having committed an obvious crime, then the law has a constitutionally valid application and should not be preempted. Judge Bea s dissent recognized this when he wrote:... Arizona police officers could very easily determine that some crimes, such as murder, would make an alien removable. Thus, the analysis of this section should have been simple-section 6 was facially constitutional because a set of circumstances existed under which no complexity existed: an Arizona police officer comes across an alien convicted of murder; he is removable; he can be lawfully arrested. See Salerno, 481 U.S. at 745. So, Section 6 was not preempted. End of story. App. 96a. Judge Bea s analysis correctly relies on the very important principle that, in a facial challenge to a statute, if the statute is found to have constitutional applications, it should not be invalidated. Here, a simple example was given showing that Section 6 has a constitutionally valid application. Furthermore, because this is a facial challenge, and because valid applications of the statute have been shown to exist, the better practice is to allow local authorities to exercise their

24 17 discretion and assume that Arizona law enforcement officials will comply with federal law in executing Section 6. For these reasons, SB 1070 Section 6 should not be preempted. The Ninth Circuit majority made another error in its analysis of SB 1070 Section 6 that requires attention. The majority pointed out that it had previously suggested that the states do not have inherent authority to enforce the civil provisions of federal immigration law, citing to Gonzalez v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983). App. 45a. The majority then went on to state it was unaware of any binding authority granting states such inherent authority and formally held that states do not, in fact, possess such inherent authority (App. 45a-46a), although it is unclear what prompted the Court to delve into this analysis in the first place. 4 In any event, legal precedent coupled with the previously cited federal statutes relating to immigration law enforcement compels the opposite result. To begin with, 8 U.S.C. 1357(g)(10)(B) provides for state cooperation in the enforcement of federal immigration law. Significantly, that statute makes no distinction between criminal and civil provisions of immigration law, but refers generally to aliens not lawfully present in the United States. In addition, the states inherent authority is supported by Muehler v. Mena, 544 U.S. 93 (2005). 4 As Judge Bea states in his dissent, 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. App. 98a.

25 18 In that case, this Court overruled a Ninth Circuit holding that a local police officer had no authority to question Mena regarding her citizenship, thereby recognizing that local officers have the authority to question suspects regarding their immigration status. Id. at 101. The Tenth Circuit is in accord as shown by United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999), cert. denied, 528 U.S. 913 (1999). There the court rejected the contention that a federal statute (8 U.S.C. 1252c) limited the authority of local law enforcement in immigration matters, finding instead no indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers. Id. at In light of the foregoing authority, the Court should overrule the Ninth Circuit s holding that states do not possess the inherent authority to enforce the civil provisions of federal immigration law. 4. Section 5(C) of SB 1070 Section 5(C) of SB 1070 differs from the other relevant sections because it concerns state regulation of employment law, a proper area for state legislation. Section 5(C) is, therefore, presumptively valid. Section 5(C) expands upon existing federal law, which makes it illegal for employers to hire illegal aliens, by also making it illegal for anyone unlawfully present in the United States to apply for, solicit or perform work as an employee or independent contractor in Arizona. Existing federal law does not penalize this type of activity so the presumption against preemption is strengthened. Indeed, the Ninth Circuit agreed that

26 19 the presumption against preemption applied to Section 5(C). App. 33a. In addition, this Court has held in the immigration context that we will not presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship in a manner consistent with pertinent federal laws. DeCanas, 424 U.S. at 357. Thus, absent a conflict with federal law, Section 5(C) has constitutionally valid applications and should not be preempted. II. FOREIGN RELATIONS CONCERNS SHOULD NOT INFORM THE COURT S PREEMPTION ANALYSIS AS THEY HAVE NO PREEMPTIVE EFFECT HERE The Ninth Circuit s preemption analysis relied significantly on what it characterized as SB 1070 s deleterious effect on the United States foreign relations, which weighs in favor of preemption. App. 22a. In support of this, the Appellate Court noted that a number of foreign leaders and bodies have publicly criticized Arizona s law. This reliance on foreign opinions in a preemption analysis was misplaced and inappropriate. The root of the dispute in this litigation is whether the people of Arizona have the freedom to enact a statute under which their residents and guests may live and whether that statute is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution. This is a dispute among Americans, family members, so to speak. A good neighbor may have his or her opinion, but he should

27 20 not involve himself in the internal affairs of his neighbor. Good fences make good neighbors. 5 The very perception that the federal court is considering the interests of foreign nations over the interests of U.S. citizens is damaging. SB 1070 is a law duly enacted by the freely elected legislature comprised of representatives of the citizens of Arizona. This particular statute mirrors federal immigration law. 8 U.S.C. 1252c(a), 1304(e) and 1357(g). However, there are some Americans who believe there is a conflict and, therefore, the federal law should preempt SB Our federal courts are granted the power to oversee the resolution of any dispute arising out of the enforcement of SB 1070 by the consent of the governed under Articles I and III of the United States Constitution. Those whom have entrusted the federal courts with such power, agree to live by their decisions. No foreign government has a place at this table. If a foreign power influences our Article III court ever so slightly, the resulting law will not be solely authored by those Americans who seek political autonomy; thus, the social compact is disrupted. The authority of, and confidence in, the court and the law diminishes. While a foreign power s concerns for the welfare of its citizenry outside its borders is legitimate, the appropriate vehicle to address those concerns is the United States Department of State, the Article II power. In addition, there is no applicable legal precedent that supports the Ninth Circuit s view that foreign relations concerns should influence the preemption analysis in this case. The Ninth Circuit 5 Frost, Robert, Mending Wall.

28 21 cited to Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) and American Insurance Ass n v. Garamendi, 539 U.S. 396 (2003) in support of its position that a state law s impingement of United States foreign affairs supports preemption of that law. Both cases are distinguishable. The cited cases stand for the proposition that a state law may be preempted where it conflicts with a specific foreign relations objective or an established foreign relations goal. In the case now before the Court, there is no established foreign relations policy goal with which the provisions of SB 1070 conflict. In fact, it seems that just the opposite is true. The policy of the United States as it pertains to immigration law has been characterized as an express public policy against an alien s unregistered presence in this country. INS v. Lopez-Mendoza, 468 U.S. 1032, 1047 (1984). Further, the federal statutes cited herein also confirm a federal government policy that encourages cooperation between the federal and local governments in an effort to police immigration violations. SB 1070 is consistent with both of these policies. It appears that, if foreign nations and/or their leaders have criticisms of SB 1070, their true discontent is with the immigration laws of the United States as a whole, which do not allow unimpeded access to our country by any foreign national who simply crosses over our borders. SB 1070 simply seeks to further the federal government s own objectives in enforcing the immigration laws. As far as preemption of the state law goes, foreign entities should have no influence.

29 22 CONCLUSION For the foregoing reasons, the Judgment of the Ninth Circuit Court of Appeals should be reversed. Respectfully Submitted, Thomas P. Liddy Counsel of Record Peter Muthig MARICOPA COUNTY ATTORNEY S OFFICE 222 North Central Avenue, Suite 1100 Phoenix, Arizona (602) liddyt@mcao.maricopa.gov muthigk@mcao.maricopa.gov Counsel for Amici Curiae Joseph M. Arpaio, Maricopa County Sheriff