USA v. State of Arizona, et al

Filing 85

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Constitutional Accountability Center. Date of service: 09/30/2010. [7491995] (EBW)

USA v. State of Arizona, et al

Doc. 85

No. 10-16645
IN THE

United States Court of Appeals for the Ninth Circuit
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STATE OF ARIZONA; and JANICE K. BREWER, GOVERNOR OF THE STATE OF ARIZONA, IN HER OFFICIAL CAPACITY, Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Case No. CV 10-1413-PHX-SRB

BRIEF OF AMICUS CURIAE CONSTITUTIONAL ACCOUNTABILITY CENTER IN SUPPORT OF THE UNITED STATES Elizabeth B. Wydra Douglas T. Kendall David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W. Suite 1002 Washington, D.C. 20036 [phone] [e-mail] Counsel for Amicus Curiae

Dockets.Justia.com

STATEMENT REGARDING CONSENT TO FILE Appellants and Appellees have given amicus consent to file this brief.

i

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus states it is not a publicly-held corporation, does not issue stock, and has no parent corporation.

ii

TABLE OF CONTENTS Statement Regarding Consent to File ....................................................... i Corporate Disclosure Statement ............................................................... ii Table of Contents .....................................................................................iii Table of Authorities .................................................................................. iv Interest of the Amicus Curiae ................................................................... 1 Summary of Argument .............................................................................. 2 Argument ................................................................................................... 3 THE UNITED STATES IS LIKELY TO SUCCEED ON THE MERITS BECAUSE S.B. 1070 IS PREEMPTED UNDER THE CONSTITUTION'S SUPREMACY CLAUSE.............................3 A. The Constitution Vests Congress With The Power To Make Uniform Rules Concerning The Admission Of Immigrants And The Conditions Under Which They Remain In The Country...... ...................................... 8 B. The Text And History Of The Fourteenth Amendment Affirm That The Power To Confer National Citizenship And Regulate Immigration And Naturalization Rests With Congress, Not The States...................................13 C. The Enjoined Provisions Of S.B. 1070 Directly Conflict With The Constitution's Exclusive Grant Of Authority Over Immigration To The Federal Government............20 Conclusion ............................................................................................... 26 Certificate of Compliance ........................................................................ 27 Certificate of Service ............................................................................... 28

iii

TABLE OF AUTHORITIES Cases Page

Arver v. United States, 245 U.S. 366 (1918) .......................................... 14 Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union Local 54, 468 U.S. 491 (1984) ......................................................................... 3 DeCanas v. Bica, 424 U.S. 351 (1976)........................................... 8, 11, 12 Hines v. Davidowitz, 312 U.S. 52 (1941)......................................... passim Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879) ....................... 19 In re Ah Fong, 1 F. Cas. 213 (C.C.D. Cal. 1874) ............................... 18, 20 Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) ........... 7, 11, 19 Toll v. Moreno, 458 U.S. 1 (1982) ........................................................ 8, 11 Truax v. Raich, 239 U.S. 33 (1915) ........................................................ 19 United States v. Locke, 529 U.S. 89 (2000) ............................................... 7 Wyeth v. Levine, 129 S. Ct. 1187 (2009) .................................................... 6 Constitutional Provisions U.S. CONST. art. I, § 8, cl. 3 ..................................................................... 11 U.S. CONST. art. I, § 8, cl. 4 ................................................................... 5, 8 U.S. CONST. art. I, § 8, cl. 11 ................................................................... 11 U.S. CONST. art. II, § 2, cl. 2 .................................................................... 11 U.S. CONST. art. VI, cl. 2 ........................................................................... 3 U.S. CONST. amend. XIV ................................................................... 15, 17 iv

TABLE OF AUTHORITIES (continued) Statutes 14 Stat. 27 (1866) ................................................................................... 14 8 U.S.C. § 1158 ........................................................................................ 24 8 U.S.C. § 1182(d)(5)(A) .......................................................................... 24 8 U.S.C. § 1201 ........................................................................................ 21 8 U.S.C. § 1227(a)(1)(E)(iii) .................................................................... 24 8 U.S.C. § 1229a(a)(3) ............................................................................. 24 8 U.S.C. § 1254a ...................................................................................... 24 8 U.S.C. § 1301 ........................................................................................ 21 8 U.S.C. § 1302 ........................................................................................ 21 8 U.S.C. § 1304(e) ............................................................................. 20, 21 8 U.S.C. § 1306(a) .............................................................................. 20, 21 8 U.S.C. § 1324a(e)(4) ............................................................................. 22 8 U.S.C. § 1324a(f) .................................................................................. 22 Ariz. Rev. Stat. § 11-1051(B) ................................................................... 22 Ariz. Rev. Stat. § 13-1509........................................................................ 21 Ariz. Rev. Stat. § 13-1509(F) .................................................................. 21 Ariz. Rev. Stat. § 13-2928(C) ................................................................... 21 Ariz. Rev. Stat. § 13-3883(A)(5) .............................................................. 24 S.B. 1070 .......................................................................................... passim

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TABLE OF AUTHORITIES (continued) Legislative Materials H.R. Rep. No. 99-682, pt. 1 at 46 (1986) ................................................ 22 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand, ed.) (1911)............................................................................................... 9, 10 Cong. Globe: 39th Cong., 1st Sess. (1866): p. 475 ............................................................................................... 15 p. 1075 ............................................................................................. 15 p. 1756 ............................................................................................. 15 p. 1832 ............................................................................................. 15 p. 2890 ............................................................................................. 16 p. 2891 ........................................................................................ 16-17 p. 2892 ............................................................................................. 17 p. 2896 ............................................................................................. 16 p. 3032 ............................................................................................. 16 41st Cong., 2nd Sess. (1870): p. 1536 ........................................................................................ 17-18 p. 3658 ............................................................................................. 18

vi

TABLE OF AUTHORITIES (continued) Other Authorities James Madison, Vices of the Political System of the United States (Apr. 1787) in 9 PAPERS OF JAMES MADISON (Robert A. Rutland & William M.E. Rachal eds., 1975). ....................................................................... 4 2 MEMOIR, CORRESPONDENCE AND MISCELLANIES FROM THE PAPERS OF THOMAS JEFFERSON (1829) (Letter to Mr. Wythe). ............................ 4-5 THE FEDERALIST PAPERS (Clinton Rossiter ed., 1961). ............... 4, 5, 9, 10

vii

INTEREST OF THE AMICUS CURIAE Constitutional Accountability Center (CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution's text and history. CAC works in our courts, through our government, and with legal scholars to improve understanding of the Constitution and to preserve the rights and freedoms it guarantees. CAC seeks to preserve the careful balance of state and federal power established by the Constitution, including its Amendments. CAC filed an amicus brief in Wyeth v. Levine, 129 S. Ct. 1187 (2009), and Williamson v. Mazda Motor of America, Inc. (No. 08-1314), currently pending in the Supreme Court, arguing for an approach to preemption that is consonant with the Constitution's text and history. CAC also has an interest in ensuring that the Constitution's protections for all persons, including resident aliens and undocumented immigrants, are secured by both the states and the federal government, as demonstrated by its amicus brief in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). CAC thus has a strong interest in this case and the development of preemption and immigration law generally. 1

SUMMARY OF ARGUMENT The Constitution gives the federal government exclusive authority to regulate immigration in a uniform fashion across the country. By specifying that Congress has the power to establish a "uniform" rule of naturalization, the Constitution's text makes clear that states do not have concurrent authority to regulate immigration and naturalization. In addition, the Fourteenth Amendment gives Congress exclusive authority over decisions to admit foreigners to national and state citizenship as well as broad enforcement power to protect the constitutional rights of immigrants residing in the United States. Arizona's S.B. 1070 runs directly up against these constitutionally delegated federal powers. Through the imposition of criminal penalties on undocumented immigrants and the introduction of police measures that threaten to lead to harassment and unjust detention of both legal and non-legal U.S. residents, S.B. 1070 contradicts federal immigration law. Because the Constitution's Supremacy Clause displaces state laws that directly conflict with federal law, S.B. 1070 is preempted. Accordingly, the district court was correct to find that the United States

2

was likely to prevail on the merits of its claim and appropriately enjoined several provisions of S.B. 1070. ARGUMENT THE UNITED STATES IS LIKELY TO SUCCEED ON THE MERITS BECAUSE S.B. 1070 IS PREEMPTED UNDER THE CONSTITUTION'S SUPREMACY CLAUSE The Constitution declares that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. The

Supreme Court has applied the Supremacy Clause to preempt state laws that conflict with federal law. E.g., Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union Local 54, 468 U.S. 491, 501 (1984) (explaining that federal preemption occurs "by direct operation of the Supremacy Clause.") The Framers intended the Supremacy Clause to serve an important function in establishing the relationship between the federal government and the individual states in our Constitution's new 3

federalist system. As James Madison noted, because the Articles of Confederation lacked a federal supremacy rule, "`[w]henever a law of a State happened to be repugnant to an act of Congress,' it `will be at least questionable' which law should take priority, `particularly when the latter is of posterior date to the former.'" James Madison, Vices of the Political System of the United States (Apr. 1787) in 9 PAPERS
OF

JAMES MADISON 345, 352 (Robert A. Rutland & William M.E. Rachal eds., 1975). Alexander Hamilton explained how this rule of federal

supremacy would work under the proposed Constitution, and to what extent the states would retain certain powers not "delegated to the United States": This exclusive delegation . . . would exist in only three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant. Federalist No. 32, 194 (Alexander Hamilton) in THE FEDERALIST PAPERS (Clinton Rossiter ed., 1961) (emphasis in original). See also 2 MEMOIR, CORRESPONDENCE
AND

MISCELLANIES 4

FROM THE

PAPERS

OF

THOMAS

JEFFERSON (1829) 230 (Letter to Mr. Wythe) (writing that "the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State, or any foreign nation, should be made a part of the federal sovereignty"). Hamilton actually used the federal power over immigration to illustrate a constitutional authority granted to the federal government that would be "repugnant" if exercised in a contradictory fashion by a state. As an example of his third category of preemption, Hamilton singled out the clause which declares that Congress shall have power "to establish an UNIFORM RULE of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE. Federalist No. 32, 195 (emphasis in original). The Constitution's grant of power to Congress to establish a "uniform Rule of Naturalization," U.S. CONST. art. I, § 8, cl. 4, was thus set forth at the Founding as an example of an area of law where the federal government's authority would directly conflict with assertions of state authority. In this way, from our Constitution's very beginnings, it was understood that the federal government's power over immigration

5

would preempt efforts by the states to regulate immigration and naturalization. While the Supreme Court has appropriately declined to preempt state law under the Commerce Clause pursuant to a broad implied preemption theory, instead applying a "presumption against

preemption" in contexts where states have long held concurrent authority to regulate, e.g., Wyeth v. Levine, 129 S. Ct. 1187 (2009), such precedents are inapplicable here. See Hines v. Davidowitz, 312 U.S. 52, 68 & n.22 (1941) (distinguishing between the more robust preemption of state regulation regarding the rights and liberties of aliens, where power has been exclusively granted to the federal government under the Constitution, and state regulation in areas "where the Constitution does not of itself prohibit state action, as in matters related to interstate commerce," such as "state pure food laws regulating the labels on cans"). The presumption against preemption asserted by Arizona, see Arizona Br. at 16, 21-22, does not apply to this case because, as illustrated by the text and history presented below, the Constitution specifies that Congress has power to create a "uniform" rule for naturalization and immigration and states thus do not have concurrent 6

authority in this area. Accord United States v. Locke, 529 U.S. 89, 108 (2000) (noting that because "[t]he state laws now in question bear upon national and international maritime commerce . . . in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers"). As the Supreme Court held in

Takahashi v. Fish & Game Commission: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid. 334 U.S. 410, 419 (1948) (citation omitted). Because there is no

assumption of concurrent constitutional authority in matters of immigration, the Constitution puts its thumb on the scale of preemption rather than against preemption, as is often the case in other contexts. 7

Rather than looking for evidence that Congress has clearly displaced state law, in the immigration context courts must look for affirmative evidence that Congress has allowed the states to exercise concurrent jurisdiction. See DeCanas v. Bica, 424 U.S. 351, 363 (1976) (finding that the state's regulation of aliens and employment was not preempted because there was "affirmative evidence . . . that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law"); Toll v. Moreno, 458 U.S. 1, 17 (1982) (finding discriminatory state tuition policy preempted in the absence of evidence that "Congress ever contemplated that a State . . . might impose discriminatory tuition charges and fees solely on account of the federal immigration classification"). A. The Constitution Vests Congress With The Power To Make Uniform Rules Concerning The Admission Of Immigrants And The Conditions Under Which They Remain In The Country.

As noted above, the Constitution provides that "Congress shall have Power To . . . . establish an uniform Rule of Naturalization . . . throughout the United States." U.S. CONST. art. I., § 8, cl. 4. As James

8

Madison explained, this provision was included in the Constitution to improve upon the flawed Articles of Confederation: The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. . . . The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. Federalist No. 42, 265-66, 267 (James Madison). The Constitutional Convention proceedings suggest that the Framers agreed that uniform naturalization laws were required and that the federal legislature should control them. It was clear that the Confederation's weak central government "could not check the quarrels between states . . . not having constitutional power nor means to interpose according to the exigency: that there were many advantages, which the U.S. might acquire, which were not attainable under the confederation." May 29, 1787, THE RECORDS CONVENTION
OF OF THE

FEDERAL

1787 (Max Farrand, ed.) (1911).

The resolution of

uniform naturalization rules was proposed by Edmund J. Randolph on 9

May 29 and on several occasions subsequently. Id.; id., June 15, 1787; id., Aug. 6, 1787; id., Sep. 12, 1787. See also id., June 16, 1787. Other delegates to the Convention acknowledged that "the [National Legislature] is to have the right of regulating naturalization." Id., Aug. 9, 1787 (statement of James Madison); see also id., Aug. 13, 1787 (statement of Alexander Hamilton) ("The right of determining the rule of naturalization will then leave a discretion [sic] to the Legislature on this subject which will answer every purpose.") The decision to write the Naturalization Clause the way it appears in the Constitution-- specifying a "uniform" rule--necessitates preemption of state authority over immigration. As Alexander Hamilton put it so succinctly, the

power "must necessarily be exclusive; because if each state had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE." Federalist No. 32, 195 (emphasis in original). The structure of federal power under the Constitution further requires that immigration law be uniform and under exclusive federal control. The Supreme Court has interpreted the authority to regulate noncitizens as necessary to Congress's power under the Constitution's Naturalization Clause. In Hines v. Davidowitz, which involved 10

Pennsylvania's alien registration act, Justice Hugo Black stated that "specialized regulation of the conduct of an alien before naturalization is a matter which Congress must consider in discharging its constitutional duty `To establish an Uniform Rule of Naturalization....'" 312 U.S. at 66. Accord Toll, 458 U.S. at 11; Takahashi, 334 U.S. at 419. Furthermore, because immigration laws affect noncitizens they are also a component of foreign affairs. Congress has authority to "regulate

Commerce with foreign Nations" under the Commerce Clause, U.S. CONST. art. I, § 8, cl. 3, and broad power under the Foreign Affairs Clauses.1 If states make immigration law, they upset the federal government's authority to carry out its enumerated powers. The Supreme Court has upheld the federal government's power over immigration law as exclusive. In DeCanas v. Bica, the Court held that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." 424 U.S. at 354. The Court has described this power as "broad" and including authority over who "shall be admitted," the

These clauses include the power to declare war, found in Article I, Section 8, Clause 11, the Senate's power to advise and consent to the appointment of ambassadors, found in Article II, Section 2, Clause 2, and, finally, the presidential power to make treaties with the advice and consent of the Senate, found in Article II, Section 2, Clause 2.
1

11

"period they may remain," "regulation of their conduct before naturalization," and the "conditions of their naturalization." Id. at 358 n.6 (quoting Takahashi, 334 U.S. at 419). Perhaps most important for the instant case, the Supreme Court also made clear that "[u]nder the Constitution the states are granted no such powers." Id. States can make a law affecting undocumented persons within their borders, as long as the statute does not encroach upon immigration law, which is "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355. This power is understandably limited because state laws that impose "distinct, unusual and extraordinary burdens and obligations upon aliens . . . bear[] an inseparable relationship to the welfare and tranquillity of all the states, and not merely to the welfare and tranquillity of one." Hines, 312 U.S. at 65-66. The immigration laws of the United States take precedence over state laws under the Supremacy Clause of the Constitution. U.S.

CONST. art. VI, cl. 2. "[T]he supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution," its 12

history, and Court precedent. Hines, 312 U.S. at 62 & n.9 (noting how "[t]he importance of national power in all matters relating to foreign affairs and the inherent danger of state action in this field are clearly developed in Federalist papers No. 3, 4, 5, 42 and 80.") "When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations, or burdens of aliens," then "the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute." Id. at 62-63. If a state promulgates immigration law that is inconsistent with or not affirmatively allowed by the federal government, it is necessarily abridging the federal government's constitutionally-granted supreme power over immigration. B. The Text And History Of The Fourteenth Amendment Affirm That The Power To Confer National Citizenship And Regulate Immigration And Naturalization Rests With Congress, Not The States.

The changes made to the Constitution in the Fourteenth Amendment underscore Congress's exclusive power over immigration, naturalization, and citizenship. Drafted in 1866 and ratified in 1868, the Fourteenth Amendment made national and state citizenship a right 13

of all persons born or naturalized in the United States and extended to all persons residing in the United States guarantees of equal protection of the laws and due process of law. Making United States citizenship "paramount and dominant instead of being subordinate and derivative," Arver v. United States, 245 U.S. 366, 389 (1918), the Amendment gave Congress exclusive authority over national and state citizenship as well as broad enforcement power to protect the constitutional rights of immigrants residing in the United States. Even before the ratification of the Fourteenth Amendment, the framers of that Amendment understood that Congress had the exclusive authority under the Naturalization Clause to confer national citizenship on persons residing in the United States. In 1866, contemporaneous with the drafting and debates on the Fourteenth Amendment, the 39th Congress enacted the Civil Rights Act of 1866, using its Naturalization Clause authority to make the newly freed slaves American citizens. The Act's broad guarantee of birthright citizenship extended citizenship to "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed . . . ." 14 Stat. 27 (1866).

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During the debates over the Act, the Reconstruction Framers recognized that the Naturalization Clause gave Congress the exclusive power and control over the transition from the status of resident to citizen. Senator Trumbull, the Act's sponsor, explained that "[w]e all know that no State has authority to make a citizen of the United States. The Constitution . . . vests in Congress the sole power of naturalization, and it may make a citizen of a foreigner . . . ." Cong. Globe, 39th Cong., 1st Sess. 1756 (1866). The power to admit foreigners into the

community of United States citizens, Senator Trumbull explained, is "vested in Congress, and nowhere else." Id. at 475; see also id. at 1075 (Sen. Nye) (noting "[t]he exclusive power of Congress over the subject of citizenship and naturalization"); id. at 1832 (Rep. Lawrence) ("The whole power over citizenship is intrusted to the national

Government...."). The Fourteenth Amendment wrote the guarantee of national and state citizenship into the Constitution, providing that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside . . . ." As the framers recognized during the debates, the 15

Fourteenth Amendment made citizenship--whether by birth or naturalization--a constitutional right, denying states the ability to decide who shall be citizens of the United States, or of their respective states. The Fourteenth Amendment made all United States citizens, by law, citizens of the state in which they reside. Senator Howard, one of the primary drafters of the Fourteenth Amendment, explained that the Citizenship Clause "settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States," putting the "question of citizenship . . . beyond the legislative power . . . ." Cong. Globe, 39th Cong., 1st Sess. 2890, 2896 (1866). Operating in tandem with the

Naturalization Clause, the Fourteenth Amendment took away the power of states to decide whether persons--either native or foreignborn--would become citizens. "The States, after the adoption, could no longer naturalize. This power, by the Constitution, was given to

Congress. But now upon the moment of naturalization the foreigner becomes a citizen of the United States, and . . . any one of the States by the same residence . . . ." Id. at 3032 (Rep. Henderson).

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Opponents

of

the

Fourteenth

Amendment

attacked

the

Citizenship Clause's guarantee, complaining that the new Amendment would interfere with state authority to restrict immigration. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2891 (1866) (Sen. Cowan) ("I am unwilling, on the part of my State, to give up the right . . . of expelling a certain number of people who invade her borders In

. . . . Are the States to lose control over this immigration?").

response, the Fourteenth Amendment's supporters pointed out that, even before the Amendment had been proposed, the courts had consistently recognized that state efforts to restrict immigration were inconsistent with Congress's express constitutional powers. Id. at 2892 (Sen. Conness); see also id. (Sen. Howard) (approving these decisions as "very just and constitutional"). Other aspects of the Fourteenth Amendment, too, extended Congress's power over immigration at the expense of the states. The Fourteenth Amendment specifically grants Congress the power to enforce its guarantees. U.S. CONST. amend. XIV, § 5 ("The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.") Within two years of the Amendment's 17

ratification, Congress used its enforcement power to protect the constitutional rights of resident aliens, rejecting charges that Congress was improperly "strik[ing] entirely at the police power of the States over the subject of immigration." Cong. Globe, 41st Cong., 2nd Sess. 1536 (1870) (Sen. Casserly). The Enforcement Act of 1870 banned discrimination against aliens in the exercise of civil rights and taxation, specifically limiting taxes that states could impose on persons immigrating to the country. As Senator William Stewart explained, "we will protect Chinese aliens or any other aliens whom we allow to come here . . .; let them be protected by all the laws and the same laws that other men are." Cong. Globe, 41st Cong., 2nd Sess. 3658 (1870). While Senator Stewart

recognized that Congress had the authority to enact legislation "to prevent anybody from bringing them," id., once present in the country, it was Congress's duty "to see that they have the equal protection of the laws." Id. States could not use their police power "to rob" immigrants "of their ordinary civil rights." Id. See also In re Ah Fong, 1 F. Cas. 213, 218 (C.C.D. Cal. 1874) (holding California statute regulating

18

arrival of Chinese immigrants preempted by the federal Enforcement Act of 1870) (opinion of Field, J.). Consistent with this text and history, it is settled law that the Fourteenth Amendment guarantees "equality of protection . . . to every one whilst within the United States, from whatever country he may have come from," Ho Ah Kow v. Nunan, 12 F. Cas. 252, 256 (C.C.D. Cal. 1879) (opinion of Field, J.), and sharply limits the authority of states to "deny [aliens] entrance and abode." Truax v. Raich, 239 U.S. 33, 42 (1915). The Supreme Court's cases interpreting the Fourteenth

Amendment have long recognized the fundamental difference between the authority of state and federal governments over immigration. The Court explained more than half a century ago that "[t]he Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. . . . the states are granted no such powers." Takahashi, 334 U.S. at 419, 420. Accordingly, "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits." Id.; Truax, 239 U.S. at 42 ("Reasonable 19

classification implies action consistent with the legitimate interests of the state, and . . . cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control

immigration--to admit or exclude aliens--is vested solely in the Federal government."). See also Ah Fong, 1 F. Cas. at 217 ("If their further immigration is to be stopped, recourse must be had to the federal government, where the whole power over this subject lies. The state cannot exclude them arbitrarily . . . ."). C. The Enjoined Provisions Of S.B. 1070 Directly Conflict With The Constitution's Exclusive Grant Of Authority Over Immigration To The Federal Government.

As explained in the brief of the United States, "Congress has established a comprehensive framework that governs entrance and admission into the United States by foreign nationals, the consequences of illegal entry, and the procedures for removal and deportation of aliens from this country." U.S. Br. at 5; see also id. at 6-14 (describing current federal immigration law). Arizona attempts to further its own interests with respect to immigration in several ways that directly

20

conflict with this federal framework and are clearly preempted under the Constitution. First, S.B. 1070 adds criminal penalties under state law for an immigrant's failure to register with the federal government, as required by 8 U.S.C. §§ 1304(e), 1306(a), and carry federal registration documents. S.B. 1070, § 3, codified at Ariz. Rev. Stat. § 13-1509.

Federal law requires certain aliens to register and carry proof of such registration, and has set the failure to follow these requirements as a misdemeanor. See 8 U.S.C. §§ 1201, 1301, 1302, 1304(e), 1306(a).

Unlike the federal law, however, Arizona's law is targeted specifically at illegal immigrants--S.B. 1070 § 3 is inapplicable to lawfully present aliens. Ariz. Rev. Stat. § 13-1509(F). It thus does not simply duplicate federal penalties for failure to register, it creates a new category of state crime that is applicable only to those immigrants who are unlawfully present. The federal government has never criminalized a person's

mere presence in the United States, U.S. Br. at 9, and Arizona's attempt to create a new category of criminal punishment for illegal immigrants conflicts with the federal government's authority.

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Second,

S.B.

1070

allows

for

criminal

punishment

of

undocumented immigrants who seek to work in Arizona. S.B. 1070, § 5, codified at Ariz. Rev. Stat. § 13-2928(C). This directly conflicts with the federal government's chosen means of ensuring that employers hire only authorized workers: under federal law, employers face a range of civil and criminal sanctions for hiring unauthorized employees. 8

U.S.C. §§ 1324a(e)(4), 1324a(f). The federal government has elected not to impose criminal penalties on undocumented immigrants who seek or obtain employment in this country. See U.S. Br. at 9. Congress

recognized that "many who enter illegally do so for the best of motives-- to seek a better life for themselves and their families," and that "legislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens." H.R. Rep. No. 99-682, pt. 1 at 46 (1986). Third, S.B. 1070 requires state and local law enforcement officers to determine the immigration status of any person whom they stop or detain whenever "reasonable suspicion" exists that the person might be an illegal alien. S.B. 1070, § 2, codified at Ariz. Rev. Stat. § 11-1051(B). As the United States observes, this nondiscretionary directive applies 22

even in the most innocuous of stops--for jaywalking, not having one's dog on a leash, or riding a bicycle on the sidewalk. U.S. Br. at 43. In addition, any person who is arrested can only be released after state or local law enforcement officers verify the person's immigration status to their satisfaction. 1051(B). S.B. 1070, § 2, codified at Ariz. Rev. Stat. § 11-

These provisions unquestionably conflict with Congress's

manifest purpose to create a uniform system of regulation that leaves immigrants "free from the possibility of inquisitorial practices and police surveillance." Hines, 312 U.S. at 74. Furthermore, the requirement that arrestees prove their immigration status to the satisfaction of state authorities raises the specter of lawfully present immigrants and U.S. citizens detained for unspecified amounts of time while their status is checked. This is hardly consistent with the

Supreme Court's reasoning in Hines that immigration law is intended to avoid imposing burdens on lawfully-present aliens. Id. at 73-74. See also id. at 70 ("Opposition to laws permitting invasion of the personal liberties of law-abiding individuals, or singling out aliens as particularly dangerous and undesirable groups, is deep-seated in this

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country.

Hostility to such legislation in America stems back to our

colonial history."). Fourth, and finally, S.B. 1070 authorizes a state officer to arrest a person without a warrant if the officer has probable cause to believe that the person--including a person who is lawfully present in the United States--has previously committed a public offense that would render the person removable from the United States. S.B. 1070, § 6, codified at Ariz. Rev. Stat. § 13-3883(A)(5). As a threshold matter, it is difficult to see how Arizona's state and law enforcement officers will be able to accurately navigate the often complicated world of immigration law to determine when another state's public offense qualifies a person for removal; federal law specifies certain federal proceedings, generally before an immigration judge, as the "sole and exclusive procedure for determining whether an alien . . . may be . . . removed from the United States." 8 U.S.C. § 1229a(a)(3). Moreover, a person who is present in

the United States unlawfully may seek relief from removal, asking for asylum for example. Id. § 1158. Unlike Arizona's law, federal law

recognizes that officials charged with enforcing immigration law can and should exercise discretion with respect to removal based on 24

humanitarian concerns.

E.g., 8 U.S.C. §§ 1158, 1254a (providing

protection from removal for fear of persecution or ongoing armed conflict in the alien's home country); id. § 1182(d)(5)(A) (authorizing parole for "urgent humanitarian reasons or significant public benefit"); id. § 1227(a)(1)(E)(iii) (providing for a waiver of removal to preserve family unity). This reflects the federal government's "desire to ensure aliens in the system are treated fairly and with appropriate respect given their individual circumstances." SER 112 (Ragsdale Decl. ¶ 19). Such concerns are absent from Arizona's strict, nondiscretionary enforcement regime, which provides for a private right of action and severe penalties if S.B. 1070 is not enforced to its letter. And again, this provision is contrary to Congress's desire to avoid imposing burdens on lawfully-present aliens and keep U.S. residents "free from the possibility of inquisitorial practices and police surveillance." Hines, 312 U.S. at 74. Arizona's law directly conflicts with federal immigration policy promulgated pursuant to express and exclusive constitutional

authority. The district court properly enjoined provisions of S.B. 1070

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because the United States is likely to prevail in its argument that those provisions are preempted by federal law. CONCLUSION For the foregoing reasons, amicus respectfully requests that the Court affirm the preliminary injunction issued by the District Court. Respectfully submitted,

__/s/ Elizabeth B. Wydra___ Elizabeth B. Wydra Douglas T. Kendall David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W. Suite 1002 Washington, D.C. 20036 [phone] [e-mail] Counsel for Amicus Curiae Dated: September 30, 2010

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,913 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that the attached amicus brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 14-point Century Schoolbook font. Executed this 30th day of September, 2010. /s/ Elizabeth B. Wydra___ Elizabeth B. Wydra Counsel for amicus curiae Constitutional Accountability Center

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on September 30, 2010. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Executed this 30th day of September, 2010. /s/ Elizabeth B. Wydra___ Elizabeth B. Wydra Counsel for amicus curiae Constitutional Accountability Center

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