Today I signed an amicus brief in support of the State of Arizona in the lawsuit the Obama Administration has brought against it regarding the State’s new immigration law.  The brief states that the Arizona law “is fully consonant with federal immigration policy that promotes increasingly greater roles for the state in enforcing immigration law.”  The amicus brief is below:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_______________________________

CASE NO. CV-10-1413-SRB

United States of America,

Plaintiff

v.

The State of Arizona; and

Janice K. Brewer, Governor

of the State of Arizona, in her

Official Capacity,

Defendant.

______________________________

BRIEF OF AMICUS CURIAE, MEMBERS OF THE UNITED STATES CONGRESS IN SUPPORT OF DEFENDANTS STATE OF ARIZONA AND GOVERNOR OF ARIZONA JAN BREWER AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION[1]

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ii

INTEREST OF AMICI. 1

ARGUMENT.. 1

I.     CONGRESS HAS PLENARY POWER OVER IMMIGRATION, AND Plaintiff’s CLAIM THAT ITS AUTHORITY TO ENFORCE THE LAW PREEMPTs  S.B. 1070 IS MERITLESS. 1

II.    SB 1070 IS FULLY CONSONANT WITH FEDERAL IMMIGRATION POLICY that PROMOTes INCREASINGLY GREATER ROLES FOR THE STATE IN ENFORCING IMMIGRATION LAW. 5

TABLE OF AUTHORITIES

Cases

INTEREST OF AMICI

Amici, the above captioned United States Representatives and Senators, are currently serving in the One Hundred Eleventh Congress.  Amici are committed to the constitutional principles of federalism and to separation of powers, both of which are jeopardized by the Plaintiff’s attack against Arizona.

ARGUMENT

I.            CONGRESS HAS PLENARY POWER OVER IMMIGRATION, AND PLAINTIFF’S CLAIM THAT ITS AUTHORITY TO ENFORCE THE LAW PREEMPTs  S.B. 1070 IS MERITLESS.

Congress has plenary power over immigration law, INS v. Chadha, 462 U.S. 919, 940 (1983), and as Plaintiff notes, the laws Congress has passed reflect national and foreign policy goals. Cmpl. ¶ 19.  SB 1070 does not interfere with U.S. foreign policy goals as prescribed by Congress.

Plaintiff argues that “S.B. 1070 is independently preempted because it impermissibly conflicts with U.S. foreign policy.” Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Supp. Thereof (“Pl. Br.”) at 22.  Plaintiff claims that “S.B. 1070 is preempted under these principles because it undermines the ability of the United States to speak with one voice . . . and wrests primacy over immigration enforcement away from the federal government.”  Id. at 24.  Plaintiff states that S.B. 1070 infringes on the Executive’s “broad authority over foreign affairs” to ensure immigration law has minimal impact on U.S. foreign policy.  Cmpl. ¶ 16; see also 2, 4, 19, 22, 36-39, 42, 62, 65.  Plaintiff imagines that this “broad authority” comes from a congressional grant of “discretion” in the immigration laws” to balance “multiple interests as appropriate,” such as humanitarian and foreign policy interests.  Cmpl. ¶¶ 17, 19. Plaintiff fundamentally misapprehends the nature of its authority to enforce immigration law.

While it is true that the Executive has power to conduct United States foreign policy, the Constitution assigned to Congress plenary power to prescribe the immigration laws.  Chadha, 462 U.S. at 940  (“The plenary authority of Congress over aliens . . . is not open to question”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1893) (identifying numerous authorities for Congressional power over aliens). Where Congress has prescribed those laws, the Executive must follow Congress’s direction.  See, e.g., Zadvydas v. Davis, 533 U.S. 678, at 696-99 (2001) (Holding the Attorney General had no power to detain aliens indefinitely because that power conflicted with 8 U.S.C. § 1231(a)(6)); Jama v. ICE, 543 U.S. 335, 368 (Souter, J., dissenting) (noting in the case that “Congress itself . . . significantly limited Executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens.”). [2]

As Plaintiff notes, “[t]he Supreme Court has recognized the ‘Nation’s need to “speak with one voice” in immigration matters.’”  Pl. Br. at 23 (citing Zadvydas v. Davis, 533 U.S. 678, 700 (2001); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003).  Plaintiff also recognizes that, “[i]n crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests,” including foreign policy.  Cmpt. ¶19; see Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to [among other things] the conduct of foreign relations.”).  The immigration laws, some of which grant discretion to the Executive, balance these concerns primarily within the constraints of each statute’s text, not Executive officials’ exercise of prosecutorial discretion. C.f., Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339-40 (1909) (Congressional authority over aliens “embraces every conceivable aspect of that subject”); Jama, 543 U.S. at 368 (Souter, J. dissenting) (“Talk of judicial deference to the Executive in matters of foreign affairs,  then, obscures the nature of our task here, which is to say not how much discretion we think the Executive ought to have, but how much discretion Congress has chosen to give it.”).  Where Congress exercises plenary power to prescribe laws, Executive Officers must work within those constraints.  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”).

Federal agency regulation only preempts state law, when the agency is acting within the scope of its congressionally delegated authority.  Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986).  The Department of Homeland Security (“DHS”) has no formal regulations expressly preempting SB 1070.  Instead, Plaintiff relies on a novel claim that a general implied “prosecutorial discretion” to not impose federal sanctions on an alien violator, based on complex political policy considerations, can preempt in lieu of actual regulations.  Pl. Br. at 4, 24. However, where agency preemption is only implied, the presumption against preemption is at its strongest:

“[A]s a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence.”

Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 717 (1985).  As for the scope of the agency’s delegated authority, the Court may not, “simply . . . accept an argument that the [agency] may . . . take action which it thinks will best effectuate federal policy” because “an agency may not confer power upon itself.” Louisiana Public Serv. Com, 476 U.S. at 374.  “To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress.” Id. at 374-75.

The Executive’s power to enforce federal immigration law does not confer the power to preempt state immigration enforcement by choosing, for foreign policy or other reasons, to selectively enforce the laws. Only the “clear and manifest purpose” of Congress preempts state laws.  Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).  As Section II describes below, S.B. 1070 is not preempted because it is fully consonant and integrated with federal immigration laws.

II.            SB 1070 IS FULLY CONSONANT WITH FEDERAL IMMIGRATION POLICY that PROMOTes INCREASINGLY GREATER ROLES FOR THE STATE IN ENFORCING IMMIGRATION LAW.

As discussed in Section I, Acts of Congress express federal immigration policy, not the Executive’s enforcement authority, or for that matter, the current Administration’s political views.  Congress has passed numerous acts that welcome state involvement in immigration control. Congress expressed its intent by (1) expressly reserving inherent state authority in immigration law enforcement (8 U.S.C. § 1357(g)(10)), (2) banning sanctuary policies that interfere with exercising that authority (8 U.S.C. §§ 1373(a)-(b), 1644), (3) requiring federal official to respond to state inquiries (8 U.S.C. § 1373(c)), (4) simplifying the process for making such inquiries (Law Enforcement Support Center “LESC”), (5) deputizing some officers as immigration agents (8 U.S.C. § 1357(g)(7)), and (6) compensating states that assist (8 U.S.C. §§ 1103(a)(11); 1231(i)).  This body of law illustrates that it was not Congress’s “clear and manifest purpose” to preempt state laws such as SB 1070.  See Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).

In recognizing and encouraging through congressional enactments cooperative enforcement of immigration law, Congress took care not to use its plenary power to restrict longstanding enforcement activity by police. See Peoria v. City of Gonzales, 722 F.2d 468, 474 (9th Cir. 1983); United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (officers have “general investigatory authority to inquire into possible immigration violations.”).  But despite recognizing state assistance, Congress worried that “perceived federal limitations” could “tie[] the hands of…law enforcement officers.”  United States v. Vasquez-Alvarez, 176 F.3d 1294, 1299 (10th Cir. 1999) (quoting 142 Cong. Rec. 4619 (1996)).  Congress enacted 8 U.S.C. § 1252c[3] to clarify that state and local police could arrest an illegally present alien convicted of a felony and ordered deported.  Section 1252c did not preempt states from assisting in immigration enforcement outside of those preconditions, as Plaintiff implies, Pl. Br. at 6, but instead “displace[d any] perceived federal limitation [on] state and local officers to arrest [unlawfully present] aliens.”  Id. at 1298-99.

Congress was also concerned that cities were prohibiting officers from contacting the then-INS about possible immigration violations.  See, e.g., City of New York v. United States, 179 F.3d 29, 31-32 (2d Cir. 1999).  In response, Congress passed two statutes in 1996 to ban such “sanctuary policies.”[4] 8 U.S.C. § 1644 forbids state or local official actions that “prohibit[] or in any way restrict[]” a state or local government entity’s ability to “send[] to or receiv[e] , , , information regarding the immigration status, lawful or unlawful, of an alien in the United States”,[5] and 8 U.S.C. § 1373(a)-(b) expands preemption of sanctuary policies to those that forbid “official[s]” from sending or receiving information regarding “citizenship or immigration status” and also preempts laws that prohibit or restrict immigration status information sharing.[6] Arizona integrated Congress’s preemption of sanctuary policies into SB 1070.  See, e.g., SB 1070, Section 2.

To ensure cooperation by federal officials, Congress required immigration authorities to respond to state and local inquiries seeking to “verify or ascertain the citizenship or immigration status . . .” 8 U.S.C. § 1373(c).  Congress had already begun allocating funds to create the Law Enforcement Support Center (“LESC”), which is now the primary point of contact between state officers and federal immigration agents for verifying immigration status.  See Pl. Br. at 6.  Citing § 1373(c), Arizona incorporated Congress’s intent that DHS must respond to such inquiries.  See S.B. 1070, Section 2(B),(D).  Plaintiff appears to refuse to comply with this mandate by claiming that Section 2 distracts DHS from other “priorities.”  See Pl. Br. 19-20, 30-32 (DHS will have to divert resources to answer more local inquiries).  But, when Congress tells an agency to act, the agency must comply.  See Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (agency cannot refuse to obey statutory commands to pursue its own priorities).

In 1996 Congress also enacted 8 U.S.C. § 1357(g)(7) which allows state and local officers can be deputized as immigration agents.  This congressionally-delegated authority is distinct from officers’ inherent authority to inquire into immigration status and arrest for immigration violations.[7] But Congress reaffirmed that each state’s inherent authority to enforce federal immigration law was not restricted and that states could continue to assist in immigration enforcement.  8 U.S.C. § 1375(g)(10).  In claiming preemption, Plaintiff ignores Congress’s intent expressed in 8 U.S.C. § 1375(g)(10).  See Pl. Br. p. 6, 12.

Congress also directs state motor vehicle departments to verify lawful presence of alien applicants for state licenses. The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302.  Thus, Congress encouraged states to verify immigration status and further ensured that states are not safe-havens for illegal aliens to hide.  Finally, Congress has expressed support for cooperative immigration enforcement through its spending powers.  See Art. I. Sec. 8, Cl. 1. Congress has appropriated federal funds for state and local governments that assist in enforcing immigration laws.  See 8 U.S.C. §§ 1103(a)(11); 1231(i).

Plaintiff’s lawsuit also ignores the Executive’s fourteen-year recognition that Congress encourages states to enforce immigration laws. Since 2001, the Department of Justice (“DOJ”) has entered warrants (“detainers”) for civil immigration violations into the National Crime Information Center database (“NCIC”), which is available nationally to state and local officers.[8] In 1996, the DOJ’s Office of Legal Counsel (“OLC”) supported the authority of state and local police to enforce criminal immigration provisions, and also concluded that they could arrest aliens for registration law violations. 1996 OLC LEXIS 76, 4, 10 (1996).[9] In 2002, the OLC issued a revised opinion that dropped limitations allowing state officers to enforce only the INA’s “criminal” provisions, and thoroughly reviewed statutes and cases expressing congressional intent to allow concurrent state enforcement.[10] See 2002 OLC Op. at 5-8.

Because SB 1070 integrates this body of federal law it is not preempted. Section 2 directs officers to verify immigration status through a statute that requires the federal response, regardless of the number of inquiries (8 U.S.C. §1373(c)).[11] Section 3 mirrors the federal alien registration laws by relying on federal requirements and procedures, not creating its own state system (8 U.S.C. §§ 1304(e), 1306(a)).  Section 4, prohibiting the smuggling of illegal aliens, reinforces federal laws criminalizing the same conduct (8 U.S.C. § 1324(a)).  Section 5 promotes federal laws that penalize employing illegal aliens (8 U.S.C. §§ 1324a(a)-(c)) and recognizes that Congress only preempted sanctions on employers employing unauthorized aliens, not unauthorized aliens’ acceptance of employment.  (8 U.S.C. § 1324a(h)(3)).[12] Section 5 also mirrors the federal “harboring” statutes (8 U.S.C. § 1324(a)(A)(ii)-(iv)) by prohibiting the same conduct.  Section 6 is consistent with federal law reserving states’ authority to arrest individuals for immigration violations.  Salinas-Calderon, 728 F.2d at 1301 n.3 (validated a warrantless arrest for a violation of immigration law and held that officers have “general investigatory authority to inquire into possible immigration violations.”).  Finally, Section 12 clarifies that Arizona complied with federal immigration laws in enacting SB 1070. Complete integration between SB 1070 and federal law is not only possible, it is virtually guaranteed. See Michigan Canners & Freezers v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469 (1984) (conflict preemption exists only if it is impossible to comply with both state and federal law).  Because SB 1070 and federal law do not conflict, dual sovereignty allows them to coexist.  De Canas v. Bica, 424 U.S. 351, 358 n5 (1976) ; State v. Reyes, 2008 La. App. LEXIS 270 (2008)..

CONCLUSION

Congress has plenary authority to regulate aliens.  Congress has continuously encouraged states to assist in enforcing federal immigration law.  SB 1070 is consistent with that intent. Therefore, this Court should deny Plaintiff’s motion.

Respectfully submitted this 20th day of July, 2010,

CERTIFICATE OF SERVICE

I hereby certify that on July 20, 2010, I electronically filed a copy of the foregoing Brief Amici Curiae using the ECF System for the District of Arizona which will send notification of that filing to all counsel of record in this litigation.

Dated July 20, 2010

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[1] This brief is filed upon Motion to the Court. No counsel for any party authored in whole or in part this brief and no monetary contribution to the preparation of this brief was received from any person or entity other than amici curiae.

[2] United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), is not contrary to this principle.  One issue in Knauff was whether Congress unconstitutionally delegated legislative power to the President.  The Court found that it had not, noting that “[t]he exclusion of aliens is a fundamental act of sovereignty” that “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”  Id. at 542.  Thus, “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power . . . .”  But,the Court continued, “Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent” and while it is “not necessary that Congress supply [them] a specific formula,” if Congress does so, any discretion must be “read in the light of the conditions to which they are applied.”  Id. at 543.  Knauff thus presupposes that the Executive must act in accord with Congress’s wishes.

[3] Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214.

[4] Although Plaintiff claims to be concerned that the “Nation speak with one voice,” see Pl. Br. at 22, it has not sued any cities with sanctuary policies.

[5] Public Responsibility and Work Opportunity Act of 1996, P.L. 104-193, 110 Stat. 2105.

[6] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 3009-546).

[7] Kris W. Kobach, Reinforcing the Rule of Law:  What States Can and Should Do to Reduce Illegal Immigration, Geo. Imm. L.J. 478 (2008).

[8] The FBI:  A Comprehensive Reference Guide 160, 199, 221 (Atahn G. Theoharis et al. eds., 1999).

[9] Courts also recognize state and local authority to arrest aliens for violating alien registration laws.  Martinez-Medina v. Holder, 2010 U.S. App. LEXIS 10663, 2-4 (9th Cir. 2010 (unpub.)); Estrada v. Rhode Island, 594 F.3d 56, 65 (1st Cir. 2010).  It is unclear how a state can permissibly enforce alien registration laws but cannot create state crimes using those same federal laws.

[10] Mem. for the Attorney General, Re: Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations, (Apr. 3, 2002); attached as Exhibit A; available at http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf.

[11] Section 2 codifies an officer’s judicially recognized power to detain and contact ICE on reasonable suspicion of unlawful status.  See e.g. Vasquez-Alvarez, 176 F.3d at 1297-99; United States v. Soriano-Jarquin; 492 F.3d 495, 501 (4th Cir. 2007).

[12] The express preemption clause (8 U.S.C. § 1324(a)(h)(2)) shows that Congress could have, but did not, preempt sanctions against unauthorized alien employees.