In The Supreme Court of the United States

No. 11-182 In The Supreme Court of the United States STATE OF ARIZONA and JANICE K. BREWER, Governor of the State of Arizona, in her official capacity, Petitioners, v. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari to the U.S. Court of Appeals for the Ninth Circuit BRIEF OF U.S. REPS. LAMAR SMITH, BRIAN BILBRAY, DAN BURTON, TRENT FRANKS, WALLY HERGER, DUNCAN HUNTER, STEVE KING, TOM MCCLINTOCK, TED POE, DANA ROHRABACHER, ED ROYCE, AND DAVID SCHWEIKERT, WASHINGTON LEGAL FOUNDATION, AND ALLIED EDUCATIONAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF PETITIONERS Date: February 13, 2011 Daniel J. Popeo Richard A. Samp (Counsel of Record) Washington Legal Foundation 2009 Mass. Ave, NW Washington, DC 20036 (202) 588-0302 rsamp@wlf.org

QUESTION PRESENTED Amici address the following issues only: (1) Whether 5(C) of SB 1070, Ariz. Rev. Stat. 13-2928(C) which imposes criminal penalties on unauthorized aliens who solicit or perform work is facially unconstitutional on the ground that it conflicts with federal immigration law. (2) Whether 2(B) of SB 1070, Ariz. Rev. Stat. 11-1051(B) which requires Arizona law enforcement personnel to check the immigration status of certain individuals they stop, detain, or arrest is facially unconstitutional on the ground that it conflicts with federal immigration law.

iii TABLE OF CONTENTS Page TABLE OF AUTHORITIES... v INTERESTS OF AMICI CURIAE... 1 STATEMENT OF THE CASE... 3 SUMMARY OF ARGUMENT... 8 ARGUMENT... 11 I. THE UNITED STATES HAS FAILED TO DEMONSTRATE A LIKELIHOOD OF SUCCESS ON THE MERITS OF ITS PREEMPTION CLAIM AGAINST SB 1070 S EMPLOYEE SANCTION PROVISION... 11 A. In Asserting that 5(C) Is Preempted, the United States Has Misconstrued Both Field Preemption and Conflict Preemption... 11 B. State Regulation of the Employment of Unauthorized Aliens Was Permissible Prior to IRCA, and That Statute Cannot Reasonably Be Understood To Have Decreased State Authority to Regulate Employment of Unauthorized Aliens... 20

iv II. THE UNITED STATES HAS FAILED TO DEMONSTRATE THAT 2(B) INTERFERES WITH ENFORCEMENT OF IMMIGRATION LAW... 24 A. Section 1357(g) Was Not Adopted for the Purpose of Restricting the Authority of States to Assist with Immigration Law Enforcement... 26 B. Section 1373(c) Confirms That the Verification Procedures Mandated by 2(B) Do Not Conflict With Federal Immigration Law... 31 CONCLUSION... 33

Cases: v TABLE OF AUTHORITIES Page(s) Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25 (1986)... 12 Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011)... 8, 15, 16 Chicanos Por La Causa, Inc. v. Napolitano, 588 F.3d 856 (9th Cir. 2009), aff d sub nom., Chamber of Commerce v. Whiting, 131 S. Ct. 1968(2011)... 21, 22 De Canas v. Bica, 424 U.S. 351 (1976)... 12, 20 Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)... 13 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)... 9, 16, 17, 18, 19, 21 INS v. Nat l Ctr. for Immigrants Rights, Inc., 502 U.S. 183 (1991)... 16, 21 Jones v. Rath Packing Co., 430 U.S. 519 (1977)... 12 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)... 11 Nat l Ctr. for Immigrants Rights v. INS [ NCIR ], 913 F.3d 1350 (9th Cir. 1990), rev d 502 U.S. 183 (1991)... 6, 19 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)... 13, 14 Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)... 19 Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011)... 19

vi Page(s) Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)... 11 Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991)... 13, 14, 15 Wyeth v. Levine, 555 U.S. 555 (2009)... 12 Statutes and Constitutional Provisions: U.S. Const., Art. I, 8, cl. 4... 17 Federal Boat Safety Act of 1971, 46 U.S.C. 4301 et seq.... 19 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 135-136y... 15 Immigration Reform and Control Act of 1986 ( IRCA )... passim Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104-208 (1996)... 26 8 U.S.C. 1103(a)... 22

vii Page(s) 8 U.S.C. 1324a... 14 8 U.S.C. 1324a(d)(2)(C)... 18 8 U.S.C. 1324a(e)(4)(A)... 17 8 U.S.C. 1324a(f)(1)... 17 8 U.S.C. 1324a(h)(2)... 22 8 U.S.C. 1324c... 6, 14, 22 8 U.S.C. 1324c(a)... 17 8 U.S.C. 1324c(a)(1)-(3)... 17 8 U.S.C. 1252c... 22 8 U.S.C. 1357(g)... passim 1357(g)(1)... 26, 27, 30 1357(g)(2)... 26 1357(g)(3)... 26, 27 1357(g)(5)... 27 1357(g)(6)... 27 1357(g)(10)... 3, 7, 8, 10, 28, 29, 30 1357(g)(10)(B)... 29 8 U.S.C. 1373(c)... 5, 10, 23, 24, 26, 28, 31, 32 8 U.S.C. 1611... 22 8 U.S.C. 1621... 22 8 U.S.C. 1644... 22 18 U.S.C. 1546(b)... 17 42 U.S.C. 611a... 22

viii Page(s) Arizona Senate Bill 1070, 49th Leg., 2nd Reg. Sess., Ch. 113 (Az. 2010) ( SB 1070 )... passim 2(B)... passim 5... 2 5(C)... passim Arizona House Bill 2162, 49th Leg., 2nd Reg. Sess., Ch. 211 (Az. 2010)... 3 A.R.S. 11-1051(B)... 24 A.R.S. 13-2928(C)... 4 A.R.S. 13-2928(E)... 4, 23 A.R.S. 13-2928(F)... 4 Calif. Lab. Code 2805(a) (West 1976)... 20 Miscellaneous: H.R. Rep. No. 99-682(I), 99th Cong., 2nd Sess. 49 (1986)... 19 8 C.F.R. 287.5(a) - (e)... 30

INTERESTS OF AMICUS CURIAE U.S. Rep. Lamar Smith represents Texas s 21st congressional district and is Chairman of the House Judiciary Committee. 1 U.S. Rep. Brian Bilbray represents California s 50th district and serves of the Energy and Commerce Committee; he is Chairman of the Immigration Reform Caucus. U.S. Rep. Dan Burton represents Indiana s 5th district and serves on the Foreign Affairs and Oversight and Government Reform Committees. U.S. Rep. Trent Franks represents Arizona s 2nd district and serves on the Judiciary and Armed Services Committees. U.S. Rep. Wally Herger represents California s 2nd district and serves on the Ways and Means Committee. U.S. Rep. Duncan Hunter represents California s 52nd district and serves on the Armed Services, Education and the Workforce, and Transportation and Infrastructure Committees. U.S. Rep. Steve King represents Iowa s 5th district; his committee assignments include the Judiciary Committee, where he serves as Chairman of the Subcommittee on Immigration Policy and Enforcement. U.S. Rep. Tom McClintock represents California s 4th district and serves on the Budget and Natural Resources Committees. U.S. Rep. Ted Poe represents Texas s 2nd district and serves on the Judiciary and Foreign Affairs Committees. U.S. Rep. Dana Rohrabacher represents California s 46th district and serves on the Foreign Affairs Committee. U.S. Rep. Ed Royce represents California s 40th district and serves on the Financial 1 Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a party authored this brief in whole or in part; and that no person or entity, other than amici and their counsel, made a monetary contribution intended to fund the preparation and submission of this brief. All parties have consented to the filing of this brief; letters of consent have been lodged with the clerk.

2 Services and Foreign Affairs Committees. U.S. Rep. David Schweikert represents Arizona s 5th district and serves on the Financial Services Committee. All believe that Congress has never sought to bar state and local governments from adopting immigration-related enforcement legislation. The Washington Legal Foundation (WLF) is a public interest law and policy center with supporters in all 50 States. WLF devotes a substantial portion of its resources to defending free enterprise, individual rights, and a limited and accountable government. The Allied Educational Foundation (AEF) is a non-profit charitable foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study, such as law and public policy, and has appeared as amicus curiae in this Court on a number of occasions. While amici agree with Petitioners that the United States has failed to demonstrate that it is likely to succeed on the merits of any of the four claims at issue here, amici are filing separately to focus on two of the four provisions of SB 1070 that were preliminarily enjoined by the district court: (1) SB 1070's employment provision, the first portion of 5 of SB 1070 (referred to herein as 5(C) ); and (2) 2(B) of SB 1070, which requires Arizona law enforcement personnel to check the immigration status of certain individuals they stop, detain, or arrest. Contrary to the United States s claim, 5(C) and 2(B) are designed to assist with implementation of the immigration policies established by Congress, and nothing in the legislation stands as an obstacle to the accomplishment and execution of the full

3 purposes and objectives of Congress. Amici are particularly concerned that the United States s preemption claims ignore the fact that Congress has adopted legislation establishing, as the clear policy of the United States, that those who are not authorized to be present in the United States should not seek or undertake employment in this country. Section 5(C), by criminalizing the solicitation and/or performance of employment by such individuals, directly advances that policy. Amici are also concerned that the preemption challenge to 2(B) ignores a savings clause, 8 U.S.C. 1357(g)(10), adopted by Congress for the explicit purpose of preserving the right of States to cooperate in the enforcement of the immigration laws by assisting in the identification of aliens not lawfully present. The activities authorized by 2(B) are precisely the sort of activities Congress intended to protect when it adopted the savings clause. Several of the congressional amici were Members of Congress when 1357(g) was adopted in 1996, were strong supporters of the legislation, and are dismayed that the Executive Branch is advancing an interpretation of 1357(g) that turns the statute on its head. STATEMENT OF THE CASE This case is a facial challenge to Arizona Senate Bill 1070, 49th Leg., 2nd Reg. Sess., Ch. 113 (Az. 2010), as amended by Arizona House Bill 2162, 49th Leg., 2nd Reg. Sess., Ch. 211 (Az. 2010) ( SB 1070 ). The legislation is a multi-faceted effort to assist federal authorities in implementing several well-established

4 federal policies: removing illegal aliens from the United States and eliminating incentives that cause many such aliens to seek to remain here. On July 6, 2010, the United States filed suit against the State of Arizona and Governor Janice K. Brewer (collectively, Arizona ), challenging SB 1070 on its face. The U.S. s principal argument is that SB 1070 conflicts with and thus is preempted by federal immigration statutes. The United States moved to enjoin enforcement of SB 1070 even before it was scheduled to take effect on July 29, 2010. This amicus brief focuses on two provisions of SB 1070: 5(C) and 2(B). Section 5(C) makes it a crime for illegal immigrants to seek or perform employment within the State of Arizona; specifically, it creates a new statutory provision, A.R.S. 13-2928(C), which provides as follows: 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. The statute goes on to define who may determine an alien s immigration status, A.R.S. 13-2928(E), and provides that a violation of the statute is a misdemeanor. A.R.S. 13-2928(F). Section 2(B) creates a new statutory provision, A.R.S. 11-1051(B), that requires Arizona law enforcement personnel to check the immigration status of certain individuals they stop, detain, or arrest. Its

5 purpose is to ensure that federal officials are notified whenever someone stopped by Arizona law enforcement personnel turns out to be an unauthorized alien. Among the steps required by 2(B): where a reasonable suspicion exists that the person [stopped, detained, or arrested] 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. The provision requires that, in certain instances, law enforcement personnel must verify the person s immigration status with the federal government pursuant to 8 U.S.C. 1373(c). The provision lists several forms of documentation (e.g., an Arizona driver s license) which, if supplied by the person, establish a presumption that he is not an unauthorized alien. In July 2010, the district court issued a preliminary injunction against enforcement of four provisions of SB 1070, including both 5(C) and 2(B). Pet. App. 116a-169a. Citing various provisions of the Immigration Reform and Control Act of 1986 (IRCA), the district court concluded that Congress has comprehensively regulated in the field of employment of unauthorized aliens. Id. 115a-156a. Based on what it perceived as the comprehensiveness of the federal regulation, the district court further concluded that Congress intended to preclude regulation by state and local governments in this field. Id. Because 5(C) seeks to regulate solicitation and performance of employment by unauthorized aliens, the district court concluded that 5(C) was impliedly preempted by IRCA. Id. The district court also determined that the United

6 States was likely to prevail in its conflict preemption challenge to the immigration-status checks required both by the first sentence of 2B (applicable to any lawful stop, detention, or arrest ) and by the second sentence of 2(B) (applicable to arrests). Id. 136a-147a. The court based its conflict determinations on its findings that the status checks would: (1) impose greater burdens on legally-present aliens than authorized by Congress; and (2) impermissibly burden federal resources and redirect federal agencies away from their preferred enforcement priorities, by requiring them to respond to requests for verification of citizenship or immigration status. Id. 141a-142a, 146a. A divided Ninth Circuit affirmed. Pet. App. 1a- 116a. The appeals court unanimously determined that the Ninth Circuit s prior decision in Nat l Ctr for Immigrants Rights, Inc. v. INS [ NCIR ], 913 F.2d 1350 (9th Cir. 1990), rev d, 502 U.S. 183 (1991), required a finding that 5(C) was conflict preempted. Id. 35a. NCIR (according to court) held that while Congress adopted IRCA to deter illegal immigration by making jobs less available to unauthorized aliens, Congress sought to preclude any sanctioning of unauthorized aliens who sought or obtained employment. Id. 34a. The court said that its conclusion was buttressed by what it viewed as 8 U.S.C. 1324c s affirmative protections to unauthorized workers, including limitations on the use of the information that IRCA requires job applicants to supply to prospective employers. Id. 36a-37a. The appeals court majority also held that 2(B) conflicted with federal immigration law and thus was impliedly preempted. Pet. App. 12a-27a. The court

7 based that conclusion primarily on its reading of 8 U.S.C. 1357(g), which authorizes the United States to enter into agreements with State or local governments whereby local law enforcement personnel can be authorized to perform the functions of federal immigration officers. According to the court, 1357(g) demonstrated that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General s close supervision, and to bar any involvement in the absence of such a written agreement. Id. 13a. The court concluded that 2(B) was conflict preempted because it sought to turn Arizona officers into state-directed DHS agents, without submitting to the federal government supervision required in 1357(g) agreements. Id. 20a. The court said that 1357(g)(10), which serves as 1357(g) s savings clause, 2 must be read narrowly so as not to be interpreted as sanctioning laws such as 2(B), because otherwise it would completely nullify the rest of 1357(g). Id. 14a-15a. The court also based its conflict preemption holding on 2(B) s allegedly deleterious effects on the Nation s foreign relations, id. 23a, and on its conclusion that upholding 2(B) would raise the threat of 50 states layering their own immigration enforcement rules on top of the INA. Id. 26a. Judge Bea dissented from the majority s 2(B) 2 Section 1357(g)(10) states that nothing in 1357(g) should be construed as requiring an agreement with the Attorney General in order for State officials to communicate with the Attorney General regarding the immigration status of any individual or otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present.

8 preemption analysis. Pet. App. 67a-94a. He concluded that nothing in 1373(g) indicates that Congress intended to bar States from acting in immigration enforcement matters absent a federal-state agreement authorizing such actions. Id. 76a. He stated that the majority s contrary interpretation rendered the 1357(g)(10) savings clause redundant and a dead letter. Id. 79a. Judge Bea concluded that Arizona was doing nothing to interfere with DHS s enforcement priorities because it was proposing to do no more than seek immigration-status information and then, if it determined that a person in detention was an unauthorized alien, to inform DHS of that fact. Id. 87a. He also faulted the majority s conclusion that 2(B) was preempted because it was having a negative effect on U.S. foreign relations. He argued that foreign relations conflict preemption exists only when the state law s effect on foreign relations conflicts with federally established foreign relations goals, and that no such conflict existed here. Id. 91a-92a. SUMMARY OF ARGUMENT The United States has failed to demonstrate a likelihood of success in its challenge to 5(C). The appeals court s conflict preemption holding was based to a large degree on its conclusion that, in adopting IRCA, Congress intended to strike a balance between discouraging illegal immigration (by imposing penalties on employers who hire unauthorized aliens) and respecting the rights of unauthorized aliens who enter the workplace. The text of IRCA does not support that strike-a-balance theory, and the theory was largely rejected by the Court in Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).

9 The United States has not demonstrated that 5(C) conflicts with any federal law. It attempts to read into IRCA a congressional determination that unauthorized aliens should never be subject to criminal penalties for soliciting or performing work. Remarkably, however, the United States cannot point to any statutory language that supports its interpretation of IRCA. Moreover, 5(C) is fully consistent with federal immigration policy. The Supreme Court has recognized that IRCA forcefully made combating the employment of illegal aliens central to the policy of immigration law. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). Although 5(C) imposes sanctions on illegal aliens above and beyond those imposed by IRCA, those sanctions create no conflict with federal law because they serve simply to further congressional policy by reducing the likelihood that illegal aliens will be employed in this country. Nor has the United States demonstrated that 2(B) interferes in any way with the federal government s enforcement of immigration law. The Ninth Circuit s conclusion that 2(B) conflicted with federal immigration law was based largely on its interpretation of 8 U.S.C. 1357(g). Amici, whose numbers include several individuals who were Members of Congress when 1357(g) was adopted in 1996, respectfully submit that the Executive Branch has seriously misconstrued the meaning of that statute. Section 1357(g) was adopted for the purpose of increasing the level of assistance with immigration law enforcement by State and local government officials. Congress adopted other statutes in the same time frame with a similar purpose in mind. In light of that purpose, under no plausible construction can 1357(g) be

10 interpreted as an effort by Congress to restrict the preexisting authority of States to assist with immigration law enforcement. That construction which was adopted by the Ninth Circuit is rendered all the more implausible by 1357(g)(10), which expressly preserves the authority of States 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 and otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. The activity authorized by Section 2(B) falls squarely within the 1357(g)(10) savings clause. Section 2(B) requires that, under certain circumstances, Arizona law enforcement officials should take steps to verify the immigration status of those stopped, detained, or arrested in the State up to, and including, requesting verification of immigration status from the federal government pursuant to 8 U.S.C. 1373(c). But 2(B) stops well short of authorizing Arizona law enforcement personnel to act as immigration officers. For example, it does not authorize them to determine immigration status on their own. Nor does it permit them to detain anyone longer than it takes to determine immigration status and then, if federal officials declare that the detainee is an unauthorized alien, to offer to turn the individual over to federal custody. If the federal government declines to take custody, 2(B) does not authorize continued detention based on immigration status. Section 2(B) cannot be deemed to interfere with federal immigration enforcement given that Arizona s assistance ends once federal officials either agree or

11 decline to take custody of the individual they have identified as an unauthorized alien. ARGUMENT I. THE UNITED STATES HAS FAILED TO DEMONSTRATE A LIKELIHOOD OF SUCCESS ON THE MERITS OF ITS PREEMPTION CLAIM AGAINST SB 1070 S EMPLOYEE SANCTION PROVISION The United States is not entitled to a preliminary injunction in the absence of a showing that it is likely to succeed on the merits of its claims. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). It has failed to demonstrate such a likelihood with respect to its challenge to 5(C) of SB 1070. A. In Asserting that 5(C) Is Preempted, the United States Has Misconstrued Both Field Preemption and Conflict Preemption In determining whether a federal law preempts a challenged State law, the Supreme Court has established two guiding principles. First, the purpose of Congress is the ultimate touchstone in every pre-emption case. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). Thus, in the absence of evidence that the federal government intended to displace State law, there can be no preemption. Such congressional intent primarily is discerned from the language of the pre-emption statute and the statutory framework surrounding it. Id. at 486 (citation omitted). The United States s inability to

12 point to any federal statute containing preemptive language severely weakens its case. The second guiding principle is that courts have long presumed that the federal government does not cavalierly pre-empt State law because of its recognition that the States are independent sovereigns in our federal system. Id. at 485. This presumption against preemption is particularly strong when States are acting to protect the health and safety of their citizens, because the States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, health, comfort, and quiet of all persons. Id. at 475. In all pre-emption cases, a court must 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. Id. at 485 (emphasis added); Wyeth v. Levine, 555 U.S. 555, 565 (2009). The Court has held explicitly that the presumption against preemption applies even when the state law at issue touches upon immigration matters. De Canas v. Bica, 424 U.S. 351, 355 (1976). In seeking to ascertain congressional intent regarding preemption, the courts initially determine whether the federal statute at issue contains language that expressly preempts some portion of State law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30 (1986). If the express language does not directly answer the question at issue, courts must consider whether the federal statute s structure and purpose, or nonspecific statutory language, nonetheless reveal a clear, but implicit, preemptive intent. Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

13 Findings of such clear, but implicit, preemptive intent have generally been grouped into two categories: (1) field preemption; and (2) conflict preemption. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Field preemption is said to occur: [I]f a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, if the Act of Congress... touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991). Conflict preemption is said to occur: [T]o the extent that state and federal law actually conflict. Such a conflict arises when compliance with both federal and state regulation is a physical impossibility, or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. (citations omitted). The United States does not contend that 5(C) (or any other provision of SB 1070) is explicitly preempted by either federal statute or any provision of the Consti-

14 tution. Rather, it asserted below that 5(C) is impliedly preempted, both under both a field preemption theory and under a conflict preemption theory. The district court accepted the U.S. s field preemption argument, stating, Congress has comprehensively regulated in the field of employment of unauthorized aliens and inferring from the comprehensiveness of the regulation that Congress intended to preclude additional regulation by the States. Pet. App. 155a-156a. That mode of analysis misapprehends the field preemption doctrine. A decision by Congress to regulate a given field extensively does not by itself give rise to an inference that it intended to occupy the field and thereby preclude parallel state regulation. Rather, that inference arises only when Congress s regulation is so pervasive as to make reasonable the inference that Congress left no room for States to supplement it. Mortier, 501 U.S. at 605 (quoting Rice, 331 U.S. at 230). No such inference can be drawn from Congress s adoption of IRCA in 1986 with respect to the field identified by the district court: the field of employment of unauthorized aliens. Pet. App. 155a-156a. As noted by the district court, IRCA (1) provides for penalties for employers who knowingly hire or continue to employ an alien without work authorization; (2) requires employers to comply with an employment verification system designed to prevent the employment of illegal aliens; and (3) provides for penalties for unauthorized aliens who use false documents for the purpose obtaining employment. Id. 153a-155a (citing 8 U.S.C. 1324a, 1324c). Those provisions do not begin to approach anything akin to pervasive regulation of the field of employment of unauthorized aliens. IRCA is

15 silent regarding numerous employment issues that are routinely regulated under state law, such as: (1) minimum wages; (2) overtime pay; (3) maximum hours; and (4) employment discrimination based on such factors as race, national original, religion, sex, age, and disability. Unless one is willing to conclude that Congress left no room for States to regulate these and the numerous other aspects of the employment relationship between an employer and an unauthorized alien, the United States s assertion that Congress intended to occupy the field of employment of unauthorized aliens is without merit. See also Whiting, 131 S. Ct. at 1984 (IRCA allocated regulatory authority over the employment of unauthorized aliens between the federal government and the States, preserving to the States such functions as the use of licensing authority to sanction employers who knowingly hire unauthorized aliens). The Court has declined to preempt state laws under a field preemption rationale whenever, as here, the federal statute leaves ample room for States and localities to supplement federal [regulatory] efforts. Mortier, 501 U.S. at 613. For example, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 135-136y, addresses numerous aspects of pesticide control in considerable detail. Id. But because FIFRA left substantial portions of the field vacant, including the area at issue in this case, Mortier concluded that Congress s creation of a comprehensive regulatory scheme for pesticides did not by itself create an inference that Congress intended to preempt State regulation of pesticides. Id. Similarly, IRCA s failure to regulate numerous aspects of the employment relationship between employers and their unauthorized-

16 alien employees precludes a field preemption finding in this case. The United States argued alternatively that Section 5(C) is preempted because it conflicts with federal law. It argued that the INA strikes a careful balance between enforcement and protecting employees rights, and provides affirmative protections to unauthorized workers. U.S. Opp. Br. 23 (quoting Pet. App. 36a). It asserted that allowing States to impose sanctions on unauthorized aliens who seek or obtain employment would upset that balance and thus that courts should infer Congress affirmatively precluded States from adding their own penalties to the mixture. Id. at 24. The Ninth Circuit agreed, concluding that Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. Pet. App. 40. The Ninth Circuit s calibration-of-force argument finds no support in the text or legislative history of IRCA. Recognizing that illegal immigration is spurred to a significant degree by the availability of employment in the United States, Congress adopted IRCA for the purpose of preventing the employment of illegal aliens and thereby reducing the incentive for illegal entry into the country. As the Court has repeatedly recognized, IRCA forcefully made combating the employment of illegal aliens central to [t]he policy of immigration law. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (quoting INS v. Nat l Ctr. for Immigrants Rights, Inc., 502 U.S. 183, 194 & n.8 (1991)). See also Whiting, 131 S. Ct. at 1983-84 (rejecting plaintiffs claims that a separate Arizona immigration statute upset the balance (supposedly

17 mandated by IRCA) between immigration enforcement and avoiding burdens on employers). While the Ninth Circuit s approach may be the approach preferred by the current Administration, it is not the approach adopted by Congress. See U.S. Const., Art. I, 8, cl. 4 (assigning to Congress the primary responsibility for establishing immigration policy). As Hoffman Plastic explained, IRCA adopted a combination of restrictions upon employers (a requirement that they verify the work eligibility of all job applicants) and employees (criminal prohibitions against the submission of fraudulent work-eligibility papers) designed to ensure that no unauthorized aliens would be employed in this country: Employers who violate IRCA are punished by civil fines, [8 U.S.C.] 1324a(e)(4)(A), and may be subject to criminal prosecution, 1324a(f)(1). IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents, 1324c(a). It thus prohibits aliens from using or attempting to use any forged, counterfeit, altered, or falsely made document or any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States. 1324c(a)(1)- (3). Aliens who use or attempt to use such documents are subject to fines and criminal prosecution. 18 U.S.C. 1546(b). There is no dispute that [the illegal-alien plaintiff s] use of false documents to obtain employment with Hoffman violated these provisions. Under the IRCA regime, it is impossible for an

18 undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA s enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations. Hoffman Plastic, 535 U.S. at 148. There is no conflict between the policy established by IRCA (preventing all employment of unauthorized aliens) and 5(C) of SB 1070. Although 5(C) imposes sanctions on illegal aliens above and beyond those imposed by IRCA, those sanctions create no conflict because they serve simply to further the existing congressional policy. Because Congress sought forcefully to combat all employment of illegal aliens, a state law that makes it that much more difficult for illegal aliens to find employment cannot reasonably be understood as being in conflict with federal policy. 3 3 In finding Congress did not intend to permit the criminalization of work, the Ninth Circuit relied in part on privacy provisions in IRCA. Pet. App. 36a (citing 8 U.S.C. 1324a(d)(2)(C), which limits dissemination of information submitted by employees to their employers to demonstrate work eligibility). The text of IRCA suggests that that provision was adopted to protect the privacy of all job applicants, not to provide special protections for unauthorized aliens. The Ninth Circuit asserted, This provision would prohibit Arizona from using personal information in the verification system for the purpose of investigating violations of 5(C). Id. 37a. There is no merit to the assertion that such a prohibition is evidence that Congress sought to prevent

19 The Ninth Circuit s reliance on NCIR, a decision that was reversed by this Court, was misplaced. NCIR s analysis of IRCA is unpersuasive, particularly in light of the Supreme Court s conflicting analysis of IRCA in Hoffman Plastic. 4 criminalization of work ; for one thing, it is highly unlikely that documentation submitted by an employee for the purpose of demonstrating work eligibility would contain evidence that the employee was in violation of 5(C). 4 NCIR cited a 1986 House report that asserted that IRCA s approach to employment sanctions was the most practical and cost-effective way to address this complex problem. Id. at 1369 (quoting H.R. Rep. No. 99-682(I), 99th Cong., 2nd Sess. 49 (1986)). But even if that report accurately reflected the views of the entire Congress, a congressional determination that it would not be costeffective for federal authorities to pursue criminal sanctions against illegal immigrants who seek or perform employment is a far cry from a determination that Congress sought to prevent States from doing so on their own. Indeed, in Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), the Court rejected preemption claims under analogous facts. The Court held that even though the Coast Guard had invoked a cost-effectiveness rationale in declining to adopt regulations pursuant to the Federal Boat Safety Act of 1971, 46 U.S.C. 4301 et seq. requiring propeller guards on motor boats, an Illinois rule requiring propeller guards did not conflict with the federal regulatory scheme. Id. at 66-67. Accord, Williamson v. Mazda Motors of America, Inc., 131 S. Ct. 1131, 1139 (2011) (although the U.S. Department of Transportation decided not to require lap/shoulder seatbelts in the rear seats of minivans because it deemed such seatbelts not to be cost-effective, a state rule requiring such seatbelts was not preempted based on implied conflict preemption).

20 B. State Regulation of the Employment of Unauthorized Aliens Was Permissible Prior to IRCA, and That Statute Cannot Reasonably Be Understood To Have Decreased State Authority to Regulate Employment of Unauthorized Aliens Prior to adoption of IRCA in 1986, Congress had not adopted any restrictions on either employers or employees regarding the employment of illegal aliens. The Court determined in 1976 in De Canas that Congress had not intended thereby to preclude States from adopting restrictions of their own. De Canas v. Bica, 424 U.S. 351, 356-63 (1976). The Court rejected a preemption challenge to a California criminal statute providing that [n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States. California Lab. Code 2805(a) (West 1976). Id. The Court concluded that nothing in federal immigration law indicated that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular. Id. at 358. 5 Although 5(C) of SB 1070 would have been constitutionally unassailable if enacted before adoption of IRCA, the United States argues that Congress when it adopted IRCA in 1986 intended to deprive States of the authority they possessed pre-1986 to regulate efforts 5 The quoted language made plain that States were free to regulate employment of illegal aliens by imposing requirements on either employers or employees.

21 by unauthorized aliens to solicit and perform employment. Nothing in IRCA s statutory language supports that conclusion. It is simply inconceivable that a statute adopted for the purpose of making combating the employment of illegal aliens central to the policy of immigration law, Hoffman Plastic, 535 U.S. at 147, was also intended to deprive States of existing authority to engage in that same combat. See also INS v. Nat l Ctr. for Immigration Rights, 502 U.S. 183, 194 (1991) ( A primary purpose in restricting immigration is to preserve jobs for American workers. ). At the same time that it imposed restrictions on employers regarding their hiring of unauthorized aliens, IRCA adopted an express preemption provision that limited the authority of States to impose additional restrictions on employers. See 8 U.S.C. 1324a(h)(2). But IRCA does not include a provision that expressly preempts States from imposing restrictions on unauthorized aliens solicitation or performance of employment. The absence of such an express preemption provision speaks volumes. The Ninth Circuit held in a separate case, Chicanos Por La Causa, Inc. v. Napolitano [ CPLC ], 588 F.3d 856 (9th Cir. 2009), aff d sub nom., Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), that Congress s adoption of 1324a(h)(2) without adopting a similar restriction on state requirements regarding employer participation in the E- Verify system was strong evidence that Congress did not intend preemption in the latter situation. The appeals court explained, Congress could have, but did not, expressly forbid state laws from requiring E-Verify participation. It certainly knew how to do so because, at the same time, it did expressly preempt state laws of the sort set forth in 1324a(h)(2). CPLC, 558 F.3d at 867.

22 By similar logic, Congress s failure to expressly preempt States from imposing restrictions on solicitation or performance of employment by illegal aliens indicates that it did not intend to preempt such restrictions. Congress subsequently adopted legislation requiring States to adopt practices designed to reduce the incentives for illegal aliens to remain in the country. See, e.g., 8 U.S.C. 1611, 1621 (prohibiting States with very few exceptions from paying public benefits to illegal aliens, regardless whether funding for the benefits derives from federal or state sources). It also adopted numerous statutory provisions encouraging state and local governments (and their employees) to cooperate with federal authorities in enforcing the immigration laws. See, e.g., 8 U.S.C. 1103(a), 1252c, 1357(g), 1373(a)-(c), & 1644; 42 U.S.C. 611a (requiring a State receiving certain federal grants to report to ICE at least four times annually the names and addresses of those known to the State to be unlawfully in the United States). It defies logic to suggest that Congress demands that States ferret out illegal aliens to ensure that they are not receiving welfare benefits and actively solicits their cooperation in enforcing immigration laws, yet simultaneously prohibits them from taking steps to prevent illegal aliens from seeking employment. Certainly, nothing in IRCA s statutory language provides clear and manifest evidence that that was Congress s intent. The court below also based its implied conflict preemption decision on a fear that 5(C) had the potential to lead to 50 different state immigration schemes piling on top of the federal scheme. Pet. App. 41a. But the court pointed to no evidence that Congress

23 sought precise nationwide uniformity in the degree to which the ban on employment of unauthorized aliens is being carried out. Congress obviously anticipated some degree of non-uniformity, because it encouraged (but did not require) State and local law governments to enter into formal agreements to assist with immigration enforcement. 8 U.S.C. 1357(g). In any event, there is no evidence that state enforcement schemes such as SB 1070 diverge in any material respects from federal immigration law. SB 1070 and similar legislation adopted in other States share the precise goal of federal immigration law: preventing employment of all unauthorized aliens. Moreover, rather than establishing its own criteria for who is authorized to work, 5(C) looks to federal officials to make that determination. See A.R.S. 13-2928(E) (providing that for purposes of enforcing 5(C), the only individuals eligible to determine an alien s immigration status are federal officials acting pursuant to 8 U.S.C. 1373(c) or a law enforcement officer who is authorized by the federal government to make such determinations). Accordingly, any individual regardless of his or her immigration status who has been authorized to work by federal immigration officials will not be subject to prosecution under 5(C). Under those circumstances, it is highly unlikely that 5(C) could ever interfere with efforts by federal officials to enforce federal immigration law. In the absence of evidence that Congress intended to occupy the field of the employment of unauthorized aliens, or that 5(C) stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, the United States has failed to demonstrate a likelihood of success on its claim that

24 5(C) is impliedly preempted. II. THE UNITED STATES HAS FAILED TO DEMONSTRATE THAT 2(B) INTERFERES WITH ENFORCEMENT OF IMMIGRATION LAW The United States has failed to demonstrate that 2(B) of SB 1070 interferes in any way with the federal government s enforcement of immigration law. In the absence of such evidence, there is no reason to infer that Congress intended to preempt 2(B). In addressing the conflict preemption issue, it is important to recognize just how limited is the scope of 2(B). It does not authorize Arizona law enforcement personnel to determine on their own that a detainee is an unauthorized alien; they must look to federal officials for such determinations. A.R.S. 11-1051(B) (requiring that any verification be undertaken with federal officials pursuant to 8 U.S.C. 1373(c)). Nor does 2(B) authorize them to detain an individual based on suspicion regarding his immigration status; 2(B) only applies after the individual has been detained pursuant to a lawful stop, detention, or arrest. Id. Moreover, the verification process contemplated by 2(B) is shortterm in nature. Once that process is completed, Arizona officials are no longer authorized to continue detention based on the individual s immigration status. If Arizona officials determine on their own that there are insufficient grounds to suspect that the individual is an unauthorized alien (e.g., the individual possesses a valid Arizona driver s license), or if federal officials declare that the individual is not an unauthorized alien, any

25 further detention ceases. Id. Even if federal officials declare that the detainee is an unauthorized alien, the immigration enforcement assistance authorized by 2(B) comes to an end. At that point, Arizona officials may either: (1) continue to detain the individual on grounds unrelated to his immigration status; or (2) offer to turn the individual over to federal custody and if the offer is refused, to release the individual. As Judge Bea queried in his dissenting opinion, which concluded that 2(B) is not preempted: How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B) s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station s priorities and strategies for detecting and extinguishing fires? Pet. App. 87a (Bea, J., dissenting). A. Section 1357(g) Was Not Adopted for the Purpose of Restricting the Authority of States to Assist with Immigration Law Enforcement The Ninth Circuit s conclusion that 2(B) conflicted with federal immigration law was based largely on its interpretation of 8 U.S.C. 1357(g). Amici, whose numbers include several individuals who were

26 Members of Congress when 1357(g) was adopted in 1996, respectfully submit that the Executive Branch has seriously misconstrued the meaning of that statute. Section 1357(g) was adopted for the purpose of increasing the level of assistance with immigration law enforcement by State and local government officials. Congress adopted other statutes in the same time frame with a similar purpose in mind. In light of that purpose, under no plausible construction can 1357(g) be interpreted as an effort by Congress to restrict the preexisting authority of States to assist with immigration law enforcement. Congress adopted 1357(g) in 1996, at the same time that it adopted 8 U.S.C. 1373(c). See Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104-208, 133, 642 (1996). It explicitly authorizes the Attorney General to enter into written agreements with state and local governments, whereby local law enforcement personnel would be explicitly authorized to perform the functions of an immigration officer regarding the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across state lines to detention centers). 8 U.S.C. 1357(g)(1). The subsection goes on to set forth certain provisions that must be made part of such agreements, including that the local law enforcement personnel operating under such agreements must receive training regarding federal immigration law, 1357(g)(2); that they be subject to the direction and supervision of the Attorney General, 1357(g)(3); that they not be used to displace any Federal employee, 1357(g)(6); and that their specific powers and duties be set forth in the written agreements. 1357(g)(5).

27 No language in 1357(g) expressly preempts the authority of local law enforcement personnel to assist with immigration law enforcement. The Ninth Circuit nonetheless discerned preemptive intent from the overall structure of 1357(g), and in particular, from the language in 1357(g)(5) that granted the Attorney General authority to make an individual officer s immigration enforcement duties permissive or mandatory. Pet. App. 17a. The court concluded: Id. In sum, 8 U.S.C. 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General. The Ninth Circuit s conclusion was based on a misreading of the statute. The language of 1357(g)(3) and (g)(5) relied on by the court does not purport to grant the Attorney General authority to direct the activities of all local law enforcement personnel providing assistance with immigration law enforcement; rather, the Attorney General s authority is limited to those personnel who are providing assistance pursuant to a written agreement of the sort authorized by 1357(g)(1). Nothing in the statute supplies clear and manifest evidence (or evidence of any sort) that Congress adopted 1357(g) for the purpose of restricting the States pre-existing authority to assist with the enforcement of immigration laws. Any doubt on that score is eliminated by 8 U.S.C. 1357(g)(10), the subsection s savings clause. It

28 provides: Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State (A) (B) 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 otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. 1357(g)(10). The activities authorized by 2(B) of SB 1070 fall comfortably within the language of the savings clause. Arizona has done no more than to require Arizona law enforcement personnel to seek to ascertain the immigration status of all those they stop, detain, or arrest including, in some instances, to request from federal authorities verification of immigration status pursuant to 1373(c). Section 1357(g)(10) could not be more plain that Congress did not intend anything in 1357(g) to be interpreted as restricting the authority of state and local officials to engage in such activity. While acknowledging that the language of 1357(g)(10) is broad, the Ninth Circuit argued that