United States of America v. State of California et al

Filing 122

MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Annie Lai, Kathleen Kim, Emily Robinson (and associated parties). (Attachments: # 1 Appendix A - Motion for Leave, # 2 Proposed Amici Curiae Brief, # 3 Appendix A - Proposed Amici Curiae, # 4 Proposed Order)(Phillips, Bradley) Modified on 5/21/2018 (Benson, A.).

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BRADLEY S. PHILLIPS (State Bar No. 85263)
[e-mail]
GREGORY D. PHILLIPS (State Bar No. 118151)
[e-mail]
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
T: [phone]
F: [phone]
[e-mail]

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Counsel for Amici Curiae
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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UNITED STATES OF AMERICA,
Plaintiff,

PROPOSED BRIEF OF AMICI CURIAE
OF IMMIGRATION, LABOR AND
vs.
EMPLOYMENT LAW SCHOLARS IN
THE STATE OF CALIFORNIA, EDMUND SUPPORT OF DEFENDANTS’
OPPOSITION TO PLAINTIFF’S
GERALD BROWN JR., Governor of
MOTION FOR PRELIMINARY
California, in his official capacity; and
XAVIER BECERRA, Attorney General of INJUNCTION RE: AB 450
the State of California, in his official
capacity,

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Case No. 2:18-cv-00490-JAM-KJN

Defendants.

Date: None
Time: None
Judge: Hon. John A. Mendez
Complaint Filed:

March 6, 2018

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TABLE OF CONTENTS

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Page
IDENTITY AND INTERESTS OF AMICI ......................................................................... 1 

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SUMMARY OF ARGUMENT ............................................................................................ 1 

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ARGUMENT........................................................................................................................ 2 

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I. 

The United States’ Presentation of the Legislative Purposes and Objectives of IRCA
Is Incomplete ................................................................................................................. 2 

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II.  AB 450 Is Not Conflict Preempted ............................................................................... 5 

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A.  AB 450’s Purpose Is to Ensure Workers Are Aware of Their Rights and Feel Safe
Exercising Them........................................................................................................ 6 

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B.  California Possesses Expansive Authority to Regulate the Employment
Relationship to Protect Workers................................................................................ 8 

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C.  AB 450 Does Not Pose an Obstacle to IRCA ......................................................... 10 

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1.  IRCA Provides Immigration Authorities with a Comprehensive Set of
Investigatory Tools and Does Not Rely on Voluntary Access to Implement the
Federal Scheme .................................................................................................... 10 

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2.  Limiting Voluntary Access Will Help Ensure Bona Fide Investigations and
Reduce Retaliation ............................................................................................... 12 

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III.  AB 450 Is Not Barred by the Intergovernmental Immunity Doctrine ........................ 13 

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CONCLUSION .................................................................................................................. 15 

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TABLE OF AUTHORITIES
Page(s)

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FEDERAL CASES

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Arizona v. United States,
567 U.S. 387 (2012) ........................................................................................... 2, passim

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Baker & Drake, Inc. v. Pub. Serv. Comm’n of Nev. (In re Baker & Drake,
Inc.),
35 F.3d 1348 (9th Cir. 1994) ...................................................................................... 2, 6
Boeing Co. v. Movassaghi,
768 F.3d 832 (9th Cir. 2014) ........................................................................................ 14
Chamber of Commerce v. Whiting,
563 U.S. 582 (2011) ........................................................................................................ 9
DeCanas v. Bica,
424 U.S. 351 (1976) ........................................................................................................ 8

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Does I thru XXIII v. Advanced Textile Corp.,
214 F.3d 1058 (9th Cir. 2000) ........................................................................................ 7
Goldstein v. California,
412 U.S. 546 (1973) .................................................................................................... 2, 6
Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137 (2002) ........................................................................................................ 3
I.N.S. v. Delgado,
466 U.S. 210 (1984) ................................................................................................ 11, 12

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Illinois v. Rodriguez,
497 U.S. 177 (1990) ...................................................................................................... 13
Int’l Molders’ Allied Workers’ Local Union No. 164 v. Nelson,
799 F.2d 547 (9th Cir. 1986) ........................................................................................ 11
Mazurek v. Armstrong,
520 U.S. 968 (1997) (per curiam) ................................................................................... 2
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ........................................................................................................ 8

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Nat’l Ctr. for Immigrants’ Rights v. I.N.S.,
913 F.2d 1350 (9th Cir. 1990), rev’d on other grounds, 502 U.S. 183
(1991) .......................................................................................................................... 1, 5
North Dakota v. United States,
495 U.S. 423 (1990) ...................................................................................................... 14
Puente Ariz. v. Arpaio,
No. CV-14-01356-PHX-DGC, 2017 WL 1133012 (D. Ariz. Mar. 27,
2017) ............................................................................................................................... 5

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Puente Ariz. v. Arpaio,
Nos. 15-15211, 15-15213, 15-215, 2016 WL 1181917 (9th Cir. filed
Mar. 2, 2016) ................................................................................................................... 4
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) .................................................................................................... 5, 8
Rivera v. NIBCO, Inc.,
364 F.3d 1057 (9th Cir. 2004) ........................................................................................ 7
Silkwood v. Kerr–McGee Corp.,
464 U.S. 238 (1984) ........................................................................................................ 6
Sure-Tan, Inc. v. NLRB,
467 U.S.884 (1984) ......................................................................................................... 8
Total TV v. Palmer Commc’ns, Inc.,
69 F.3d 298 (9th Cir.1995) ............................................................................................. 6
United States v. City of Arcata,
629 F.3d 986 (9th Cir. 2009) ........................................................................................ 14
United States v. Matlock,
415 U.S. 164 (1974) ...................................................................................................... 13

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Wyeth v. Levine,
555 U.S. 555 (2009) ........................................................................................................ 1

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STATE CASES

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Del. Valley Field Servs. v. Ramirez,
105 A.3d 396 (Del. Super. Ct. 2012), aff’d sub nom. Del. Valley Field
Servs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013) ...................................................... 9

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Grocers Supply, Inc. v. Cabello,
390 S.W.3d 707 (Tex. App. 2012) .................................................................................. 9
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Salas v. Sierra Chemical Co.,
59 Cal. 4th 407 (2014) ................................................................................................ 8, 9
Sanchez v. Dahlke Trailer Sales, Inc.,
897 N.W.2d 267 (Minn. 2017)........................................................................................ 9

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FEDERAL STATUTES
8 U.S.C. § 1324a(e)-(f) ......................................................................................................... 3

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8 U.S.C. § 1324a(h)(2) ......................................................................................................... 9

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8 U.S.C. § 1357 .................................................................................................................. 12

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IRCA, Pub. L. No. 99-603 § 111(d) ........................................................................ 1, passim

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STATE STATUTES
Cal. Gov’t Code § 7285.1(a) .............................................................................................. 13
Cal. Gov’t Code § 7285.2(a)(2) .......................................................................................... 11

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Cal. Lab. Code § 90.2 ......................................................................................................... 11
Cal. Lab. Code §§ 1019-1019.1............................................................................................ 6

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FEDERAL REGULATIONS

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8 C.F.R. § 274.2 .................................................................................................................. 11

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LEGISLATIVE MATERIALS

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H.R. Rep. No. 99-682, pt. 1, at 8-9 (1986) ........................................................................... 5

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H.R. Rep. No. 99-682, pt. 1, at 46 (1986) ........................................................................ 5, 9
H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986) ....................................................................... 1, 4

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S. Rep. No. 99-132, at 8 (1985) ............................................................................................ 5
S. Rep. No. 99-132, at 18-26 (1985) .................................................................................... 3

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S. Rep. No. 99-132, at 108 (1985) ........................................................................................ 4

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TREATISES

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11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 2948
(2d ed. 1995) ................................................................................................................... 2

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OTHER AUTHORITIES

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Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have
Them Deported, L.A. Times (Jan. 3, 2018),
http://www.latimes.com/business/la-fi-immigration-retaliation20180102-story.html ....................................................................................................... 7

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Bernard Bell, United States v. California: A Preliminary Assessment of the
Challenge to California’s “Immigrant Worker Protection Act,” Yale J.
on Reg. Notice & Comment Blog (Mar. 31, 2018),
http://yalejreg.com/nc/united-states-v-california-a-preliminaryassessment-of-the-challenge-to-californias-immigrant-workerprotection-act-by-bernard-w-bell/ ................................................................................. 13
Catherine Fisk, The Anti-Subordination Principle of Labor and Employment
Law Preemption, 5 Harv. L. & Pol’y Rev. 17, 19 (2011)............................................. 10
Gillian E. Metzger, Federalism and Federal Agency Reform, 111 Colum. L.
Rev. 1, 57 (2011) ........................................................................................................... 14
ICE Administrative Removal Warrants (MP3), Fed. Law Enforcement
Training Ctr., https://www.fletc.gov/audio/ice-administrative-removalwarrants-mp3 (last visited May 15, 2018) .................................................................... 12
I-9 Central: Inspections, U.S. Citizenship & Immigration Services,
https://www.uscis.gov/i-9-central/retain-store-form-i9/inspection/inspections (last visited May 14, 2018).................................................... 11
Inspection Process, U.S. Immigration and Customs Enforcement (Jan. 8,
2018), https://www.ice.gov/factsheets/i9-inspection .................................................... 11
Justin Miller, Trump’s Immigration Crackdown Is Dangerous for Workers
(Not Just Immigrants), Am. Prospect (Jan. 31, 2017),
http://prospect.org/article/trump%E2%80%99s-immigration-crackdowndangerous-workers-not-just-immigrants ......................................................................... 7
Kathleen Kim, The Trafficked Worker as Private Attorney General: A
Model for Enforcing the Civil Rights of Undocumented Workers .................................. 7
Kati L. Griffith, The Power of a Presumption: California as a Laboratory
for Unauthorized Immigrant Workers’ Rights, 50 U.C. Davis L. Rev.
1279 (2017) ..................................................................................................................... 8

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Kati L. Griffith, When Federal Immigration Exclusion Meets Subfederal
Workplace Inclusion: A Forensic Approach to Legislative History, 17 N.
Y.U. J..................................................................................................................... 4, 8, 10
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Lawrence Tribe, Intergovernmental Immunities in Litigation, Taxation and
Regulation: Separation of Powers Issues in Controversies about
Federalism, 89 Harv. L. Rev. 682, 682, 701-11 (1976) ................................................ 15
Memorandum of John Kelly, Sec’y, U.S. Dep’t of Homeland Security,
Enforcement of the Immigration Laws to Serve the National Interest 2
(Feb. 20, 2017),
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforc
ement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf............................. 5
Memorandum of John Morton, Dir., U.S. Immigration and Customs
Enforcement on Prosecutorial Discretion: Certain Victims, Witnesses,
and Plaintiffs (June 17, 2011), https://www.ice.gov/doclib/securecommunities/pdf/domestic-violence.pdf ......................................................................... 5
Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa.
J. Lab. & Emp. L. 497 (2004) ....................................................................................... 10
Revised Memorandum of Understanding Between the Departments of
Homeland Security and Labor Concerning Enforcement Activities at
Worksites (Dec. 7, 2017), https://www.dol.gov/asp/media/reports/DHSDOL-MOU.pdf ............................................................................................................... 5
Statement of President Reagan Upon Signing S. 1200, Nov. 10, 1986,
reprinted in 1986 U.S.C.C.A.N. 5856-1, 5856-1 ............................................................ 3

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IDENTITY AND INTERESTS OF AMICI

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Amici curiae are 26 scholars of immigration, labor and/or employment law who

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have an interest in the proper construction of federal immigration law and its interaction

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with labor and employment law. Amici, who are listed in Appendix A, respectfully submit

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this brief to address critical issues of statutory interpretation and the resolution of alleged

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conflicts between federal immigration law and state and local efforts to protect workers.

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SUMMARY OF ARGUMENT
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Policymakers today face significant challenges balancing the demands of a
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changing economy with the promotion of the health, safety and security of a diverse
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workforce. State and local governments have long been regulatory pioneers in this area,
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to the benefit of the nation. In California, where immigrants comprise one-third of the
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labor force, legislators have enacted AB 450 (the “Immigrant Worker Protection Act”)
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out of a concern that employer participation in anticipated immigration round-ups would
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unacceptably threaten the State’s ability to realize its labor and employment goals.
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Though the specific provisions of AB 450 are far from radical, they have drawn the ire of
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the current administration. Alleging that AB 450 offends the Supremacy Clause, the
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United States has moved this Court to preliminarily enjoin California’s new law.
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The “touchtone in every pre-emption case” is Congress’s purpose, Wyeth v.
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Levine, 555 U.S. 555, 565 (2009) (citation omitted), not that of the Executive Branch. In
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this brief, amici have compiled important information about the purposes and objectives
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of the Immigration Reform and Control Act of (1986) (“IRCA”). Our research shows that
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IRCA was a “carefully crafted political compromise,” Nat’l Ctr. for Immigrants’ Rights
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v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990), rev’d on other grounds, 502 U.S. 183
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(1991), designed to balance a range of interests, including the protection of
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undocumented workers, whose exploitation up to that point had had a “depressing effect
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on working conditions” for all, H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986).
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By reducing the power disparity between employers and employees when it comes

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to dealing with immigration authorities, AB 450 ensures that immigrant workers are

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better able to enforce their labor rights. In this way, AB 450’s provisions are not

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anathema to Congress’s objectives, but rather reconcilable with them.

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To prevail on a claim of conflict preemption, the United States must do more than

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suggest that AB 450 makes the job of immigration authorities “more difficult.” Baker &

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Drake, Inc. v. Pub. Serv. Comm’n of Nev. (In re Baker & Drake, Inc.), 35 F.3d 1348,

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1354 (9th Cir. 1994). Preemption is found only in “those situations where conflicts will

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necessarily arise.” Goldstein v. California, 412 U.S. 546, 554 (1973). AB 450 is a

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legitimate exercise of California’s police powers. The federal scheme does not rely on

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immigration authorities having voluntary access to workplaces. The Court should find

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that the United States has not met its burden to show a likelihood of success on its

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preemption claim.

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Further, the Court should not expand the doctrine of intergovernmental immunity

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in the way the United States requests. States need room to innovate to meet the labor and

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employment challenges of our time. A preliminary injunction is an “extraordinary and

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drastic remedy, one that should not be granted unless the movant, by a clear showing,

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carries the burden of persuasion,” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per

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curiam) (quoting 11A C. quoting 11A C. Wright, A. Miller & M. Kane, Federal Practice

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and Procedure 2948 (2d ed. 1995)). The Court should deny the United States’ motion.

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ARGUMENT
I.

The United States’ Presentation of the Legislative Purposes and Objectives of
IRCA Is Incomplete

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In order to succeed on a claim that AB 450 is preempted because it conflicts with

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federal law, the United States must show that it “stands as an obstacle to the

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accomplishment and execution of the full purposes and objectives of Congress.” Arizona

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v. United States, 567 U.S. 387, 399-400 (2012) (citation omitted). The United States

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would have the Court believe that IRCA’s purpose—like that of the current
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administration’s—is singularly focused on maximizing immigration enforcement in the

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workplace. Mot. for Prelim. Inj. 11-2, ECF No. 2-1 (“PI Motion”). However, as amici

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explain below, Congress’s purpose in enacting IRCA was far more nuanced than the

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United States suggests, reflecting a balance of a range of interests. Arizona, 567 U.S. at

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405. Notably, Congress focused its sanctions on employers and deliberately did not

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impose additional penalties on employees; it recognized that marginalizing

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undocumented workers “who already face the possibility of employer exploitation”

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would incentivize employers to hire them and depress working conditions generally,

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thereby undermining IRCA’s success. Id. at 399. To evaluate the United States’ claim

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properly, the Court must assess these “purposes and objectives of Congress” by engaging

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in an examination of IRCA’s text and legislative history. Id. at 399 (citation omitted).

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Congress enacted IRCA in 1986 to “combat[] the employment of [unauthorized

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immigrants][.]” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

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The measure was the product of a lengthy legislative process dating back to 1971. S. Rep.

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No. 99-132, at 18-26 (1985) (discussing the 15-year history of IRCA). Upon signing the

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bill, President Reagan described IRCA as “one of the longest and most difficult

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legislative undertakings of recent memory.” Statement of President Reagan Upon

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Signing S. 1200, Nov. 10, 1986, reprinted in 1986 U.S.C.C.A.N. 5856-1, 5856-1.

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A primary goal of IRCA was to reduce the economic incentives for employers to

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hire undocumented workers. One way in which IRCA sought to achieve this goal was to

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impose a graduated series of civil and criminal sanctions on employers who knowingly

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employ undocumented workers. See 8 U.S.C. § 1324a(e)-(f). Congress also believed,

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however, that it was important to allocate funds to vigorous enforcement of labor

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standards in workplaces where undocumented workers were employed. IRCA, Pub. L.

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No. 99-603 § 111(d) (appropriating funds for enforcement activities of Department of

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Labor’s Wage and Hour Division to “deter the employment of unauthorized [immigrants]

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and remove the economic incentive for employers to exploit and use such

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[immigrants]”). Congress made clear that it was also not displacing state and federal
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power “to remedy unfair practices committed against undocumented employees for . . .

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engaging in [protected] activit[y].” H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986).

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An empirical analysis of IRCA’s legislative history by an amicus confirms that

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labor concerns were at the center of the debate. See Kati L. Griffith, When Federal

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Immigration Exclusion Meets Subfederal Workplace Inclusion: A Forensic Approach to

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Legislative History, 17 N.Y.U. J. Legis. & Pub. Pol’y 881, 909-14 (2014) (finding that a

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“systematic review of IRCA’s legislative history supports the . . . view that labor

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concerns were a main tenet of IRCA’s purposes”). Legislators had concerns about the

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impact of unauthorized migration on authorized workers as well as about the treatment of

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unauthorized workers. Id. They “more often than not linked the treatment of unauthorized

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workers with their concern for authorized workers,” id. at 910, noting the harmful effects

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of the existence of an “exploitable underclass . . . fearful of reporting job-related abuse

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and who have virtually nowhere to turn,” id. at 915 (quoting S. Rep. No. 99-132, at 108

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(1985)).

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Consistent with this understanding, when designing the federal scheme, Congress

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deliberately chose not to impose additional penalties on workers for unauthorized work

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or commit to unyielding enforcement of the immigration laws against workers.

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Congress’s decision not to impose criminal penalties on undocumented workers

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“reflect[ed] a considered judgment that making criminals out of [noncitizens] . . . who

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already face the possibility of employer exploitation because of their removable status”

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would exacerbate their weak bargaining position and “be inconsistent with federal policy

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and objectives.” Arizona, 567 U.S. at 405. Congress also made the federal scheme

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versatile, allowing for the exercise of prosecutorial discretion to accommodate, among

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other interests, the legislative goals of IRCA. See Amicus Brief of the United States in

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Puente Ariz. v. Arpaio, Nos. 15-15211, 15-15213, 15-215, 2016 WL 1181917, at *19 (9th

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Cir. filed Mar. 2, 2016).1 Finally, Congress limited the uses to which the new system of

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For example, in 2011, the Department of Homeland Security entered into a
Memorandum of Understanding (MOU) with the U.S. Department of Labor to reduce the
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employment verification could be put, to prevent the verification system from being

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utilized as a “paper trail . . . for the purpose of apprehending undocumented

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[immigrants].” Puente Ariz. v. Arpaio, No. CV-14-01356-PHX-DGC, 2017 WL 1133012,

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at *6-8 (D. Ariz. Mar. 27, 2017) (quoting H.R. Rep. No. 99-682, pt. 1, at 8-9 (1986)).

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Congress intended through IRCA to “balance[] specifically chosen measures

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discouraging illegal employment with measures to protect those who might be adversely

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affected.” Nat’l Ctr. for Immigrants’ Rights, 913 F.2d at 1366. Congress adopted this

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approach in lieu of a “massive increase[] in enforcement—in neighborhoods and work

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places,” an approach legislators believed would be unacceptably “intrusive[.]” S. Rep.

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No. 99-132, at 8 (1985); see also H.R. Rep. No. 99-682, pt. 1, at 46 (1986) (employer

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sanctions “most humane, credible and effective way to respond”). IRCA is a “political

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compromise . . . at every level.” Nat’l Ctr. for Immigrants’ Rights, 913 F.2d at 1366.

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II.

AB 450 Is Not Conflict Preempted

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AB 450 was enacted to promote the health, safety, and well-being of workers,

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particularly those at the margins of the economy. In this way, its provisions can be

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harmonized with the objectives of IRCA. Moreover, because AB 450 is an exercise of

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California’s historic police powers, the Court should hesitate to disturb it. See Rice v.

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Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Even if the Court finds some tension

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risk that unscrupulous employers could inappropriately use immigration enforcement to
undermine efforts to enforce labor standards. Revised Memorandum of Understanding
Between the Departments of Homeland Security and Labor Concerning Enforcement
Activities at Worksites (Dec. 7, 2017), https://www.dol.gov/asp/media/reports/DHSDOL-MOU.pdf. A separate memorandum from 2011 provided that immigrants engaged in
a protected activity to vindicate labor rights or who “may be in a non-frivolous dispute
with an employer” would be considered for the favorable exercise of prosecutorial
discretion. Memorandum of John Morton, Dir., U.S. Immigration and Customs
Enforcement on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June
17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf.
That memorandum has been revoked by the current administration. Memorandum of John
Kelly, Sec’y, U.S. Dep’t of Homeland Security, Enforcement of the Immigration Laws to
Serve
the
National
Interest
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(Feb.
20,
2017),
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf (rescinding all prior existing
conflicting directives, memoranda or field guidance re: prosecutorial discretion).
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between AB 450 and federal law, that is not a sufficient basis to invalidate the measure.

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Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 256 (1984); In re Baker & Drake, 35 F.3d

3

at 1354 (conflict preemption requires more than showing that state law makes realization

4

of federal objectives “more difficult”). Rather, the United States must show that AB 450

5

actually obstructs the legislative purposes of IRCA. See Arizona, 567 U.S. at 399-400;

6

Goldstein, 412 U.S. at 554 (preemption only available in “those situations where

7

conflicts will necessarily arise”); Total TV v. Palmer Commc’ns, Inc., 69 F.3d 298, 304

8

(9th Cir.1995) (“hypothetical conflict is not a sufficient basis for preemption”). Because

9

the United States has not demonstrated that AB 450 obstructs the operation of federal law

10
11
12

or IRCA’s purposes, its preemption challenge should fail.
A.

AB 450’s Purpose Is to Ensure Workers Are Aware of Their Rights
and Feel Safe Exercising Them

13

AB 450’s purpose is “to ensure that all California workers, regardless of

14

immigration status, enjoy the protections afforded them under state law[.]” Assembly

15

Committee on Appropriations, Analysis of AB 450 (May 17, 2017), Request for Judicial

16

Notice (“RJN”) Ex. I, ECF No. 78. When enacting AB 450, legislators were aware that

17

California law extends labor protections, rights and remedies to all workers in the State,

18

regardless of immigration status. See Senate Committee on Labor and Industrial

19

Relations, Analysis of AB 450 (June 28, 3017), RJN Ex. J. At the time, California law

20

also prohibited employers from engaging in unfair immigration-related practices, such as

21

contacting immigration authorities about workers in retaliation for exercising their labor

22

rights or re-verifying their employment authorization. Cal. Lab. Code §§ 1019-1019.1.

23

Concerned about reports of recent worksite immigration round-ups and their impact on

24

undocumented workers’ practical ability to enforce their labor rights, California sought to

25

fortify its regime by introducing greater parity in the relationship between employers and

26

employees when dealing with immigration authorities and ensuring that “affected

27

workers . . . [are] cognizant of their rights during [federal enforcement] actions.”

28

Assembly Committee on Appropriations, Analysis of AB 450, RJN Ex. I.
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It is not a new revelation that the specter of immigration enforcement against

2

workers can severely undercut the integrity of labor and employment laws. As one of the

3

amici has explained, undocumented workers “play an important role [as private attorneys

4

general] in the furtherance of substantive legal norms and societal values.” Kathleen

5

Kim, The Trafficked Worker as Private Attorney General: A Model for Enforcing the

6

Civil Rights of Undocumented Workers, 2009 U. Chi. Legal F. 247, 300-04 (2009)

7

(describing cases in which undocumented workers have come forward to report

8

violations of workplace laws to the benefit of the broader public). Courts have recognized

9

the in terrorem effect that the exposure to immigration enforcement action can have on

10

noncitizen workers’ willingness to play this role. See, e.g., Rivera v. NIBCO, Inc., 364

11

F.3d 1057, 1064-66 (9th Cir. 2004) (upholding protective order prohibiting discovery

12

into plaintiffs’ immigration status on grounds that such discovery would undermine the

13

“public interest in enforcing Title VII and [the California Fair Employment and Housing

14

Act]”); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69, 1073 (9th

15

Cir. 2000) (permitting plaintiffs to proceed anonymously and recognizing the public

16

interest in plaintiffs enforcing their statutory rights). Nevertheless, recent shifts in federal

17

policy have increased the vulnerability of undocumented workers at the workplace.2

18

Reports of retaliation by employers against workers on the basis of their immigration

19

status are on the rise.3 In enacting AB 450, California has attempted to alleviate some of

20

the in terrorem effect of worksite immigration operations and reduce the ability of

21

employers to use immigration enforcement as a tool for retaliation by working within the

22

confines of the law to insist that employers not affirmatively facilitate the arrest and

23

detention of their employees while they are at work.

24
25
26
27
28

2

See Justin Miller, Trump’s Immigration Crackdown Is Dangerous for Workers
(Not Just Immigrants), Am. Prospect (Jan. 31, 2017),
http://prospect.org/article/trump%E2%80%99s-immigration-crackdown-dangerousworkers-not-just-immigrants.
3
See, e.g., Andrew Khouri, More Workers Say Their Bosses Are Threatening to
Have Them Deported, L.A. Times (Jan. 3, 2018), http://www.latimes.com/business/la-fiimmigration-retaliation-20180102-story.html.
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B.

California Possesses Expansive Authority to Regulate the Employment
Relationship to Protect Workers

2
3

As the Supreme Court observed before the enactment of IRCA in DeCanas v.

4

Bica, 424 U.S. 351 (1976), there is a strong tradition of states acting within their police

5

powers to “regulate the employment relationship to protect workers within the state.” Id.

6

at 356. California’s “interest in reducing immigration status effects on state [] workplace

7

protections undoubtedly emanates” from these historic police powers. Kati L. Griffith,

8

The Power of a Presumption: California as a Laboratory for Unauthorized Immigrant

9

Workers’ Rights, 50 U.C. Davis L. Rev. 1279, 1295-96 (2017) (considering preemption

10

dimensions of California measures that seek to protect unauthorized immigrant workers,

11

among others). In preemption cases, courts “start with the assumption that the historic

12

police powers of the States were not to be superseded by the Federal Act unless that was

13

the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

14

(1996) (quoting Rice, 331 U.S. at 230). This is particularly true where, as here, the

15

“field” at issue is one “which the States have traditionally occupied.” Id.

16

Even after the passage of IRCA, numerous courts have rejected the claim that

17

federal law preempts state labor and employment laws that offer protections to

18

unauthorized workers. See Griffith, A Forensic Approach to Legislative History, at 890

19

(identifying 21 cases where judges did not find any conflict between subfederal

20

workplace protections and IRCA). For example, in Salas v. Sierra Chemical Co., 59 Cal.

21

4th 407 (2014), the California Supreme Court upheld a state statute extending employee

22

protections to unauthorized workers, including lost pay compensation for the period

23

predating an employer’s discovery of an employee’s ineligibility to work. Addressing the

24

issue of obstacle preemption, the court found that permitting unauthorized workers to

25

enjoy the protections of state law was in keeping with IRCA’s purpose of “eliminating

26

employers’ economic incentives to hire such workers.” Id. at 425-26 (citing Sure-Tan,

27

Inc. v. NLRB, 467 U.S.884 (1984)). In the court’s judgment, “[i]t would frustrate rather

28

than advance the policies underlying federal immigration law to leave unauthorized
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workers so bereft of state labor law protections that employers have a strong incentive to

2

‘look the other way’ and exploit a black market for illegal labor.” Id. at 426.

3

In the workers’ compensation context, “courts have exhaustively discussed the

4

interplay of their jurisdiction’s workers’ compensation laws and IRCA” and found, based

5

on similar reasoning, that IRCA does not bar unauthorized workers from receiving

6

benefits. Del. Valley Field Servs. v. Ramirez, 105 A.3d 396, 405 (Del. Super. Ct. 2012),

7

aff’d sub nom. Del. Valley Field Servs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013). The

8

Minnesota Supreme Court thus observed that compliance with a workers’ compensation

9

anti-retaliation statute would not obstruct federal law since “IRCA is premised on the

10

conclusion that ‘[e]mployment is the magnet that attracts [immigrants] here illegally’”

11

and “enforcing labor laws . . . furthers . . . IRCA’s goal of discouraging employers from

12

hiring unauthorized [immigrants].” Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d

13

267, 277 (Minn. 2017) (quoting H.R. Rep. No. 99-682, pt. 1, at 46 (1986)) (emphasis in

14

original). Similarly, Delaware Superior Court explained in Ramirez, workers’

15

compensation or other labor and employment protections could not be considered

16

prohibited “sanction[s]” under 8 U.S.C. § 1324a(h)(2) simply because they extended to

17

undocumented workers. Ramirez, 105 A.3d at 406.4

18

In sum, courts are hesitant to find that state laws protecting workers are preempted

19

by IRCA, even where they apply to or are specifically designed to protect undocumented

20

workers. See Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 718-24 (Tex. App. 2012)

21

(“To conclude otherwise . . . would be a ‘freewheeling’ judicial inquiry that would

22

undercut the principle that it is Congress . . . that preempts state law.”) (quoting Chamber

23

of Commerce v. Whiting, 563 U.S. 582, 607 (2011)). The main situations in which courts

24

have found state action to be in conflict with IRCA have involved employee

25
26
27
28

4

According to the court, “[t]o construe [the statute] . . . otherwise” would have
absurd results, precluding “state and local officials [from even] being []able to impose
even a traffic fine upon a person who has employed an undocumented [immigrant].” Id.
For a penalty “to fall within the purview of § 1324a(h)(2), the benefits must have been
awarded . . . as a means of penalizing employers for employing [undocumented
immigrants].” Id. (emphasis in original).
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reinstatement or lost pay compensation for the period after an employer has discovered a

2

worker’s unauthorized status, see Griffith, A Forensic Approach to Legislative History, at

3

889; Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa. J. Lab. &

4

Emp. L. 497, 505 (2004), or state law attempts to impose penalties on workers for

5

unauthorized work, see Arizona, 567 U.S. at 402-06.

6

There is another reason why state and local efforts to protect undocumented

7

workers should be given special solicitude on a preemption challenge. As an amicus has

8

argued, the “employee-protective purpose” of local laws that extend to immigrant

9

workers “should restrain courts from deciding that federal law preempts local laws[.]”

10

Catherine Fisk, The Anti-Subordination Principle of Labor and Employment Law

11

Preemption, 5 Harv. L. & Pol’y Rev. 17, 19 (2011). This is because IRCA does not

12

operate in a vacuum, but against a backdrop of protective labor legislation, including at

13

the federal level. Thus, any preemption analysis should consider not only federal

14

immigration law, but the policies reflected in federal labor law as well. Id. at 625-27.

15
16
17

C.

AB 450 Does Not Pose an Obstacle to IRCA
1.

IRCA Provides Immigration Authorities with a Comprehensive Set
of Investigatory Tools and Does Not Rely on Voluntary Access to
Implement the Federal Scheme

18

In its motion, the United States makes an unsupported claim that Congress

19

designed a federal scheme for immigration enforcement, “including in the context of

20

worksite inspections, that is premised on the private property owner’s ability to consent

21

to inspections of their property and employee records.” PI Motion at 11-12 (emphasis

22

added). There is a vast difference between stating that immigration agents are permitted

23

to rely on consent to access private property and records and suggesting that the federal

24

scheme needs or is based on such consent. A closer examination of the federal scheme

25

reveals that voluntary consent is in fact not necessary; Congress’s full intent can be

26

realized through the many tools that immigration authorities have been given.

27

As discussed above, IRCA’s primary regulatory focus was on employers, not

28

employees. With respect to employers, IRCA requires employers to verify the
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employment eligibility of employees and to maintain a record of the Form I-9 and related

2

documents for a specified period of time. See, e.g., 8 C.F.R. § 274.2. When federal

3

authorities conduct an inspection, they typically do so by serving a Notice of Inspection

4

(NOI).5 AB 450 contains no restriction on employers providing I-9 and other documents

5

in response to a NOI—in fact, AB 450 specifically exempts such documents from its

6

subpoena or warrant requirement. Cal. Gov’t Code § 7285.2(a)(2). AB 450 simply

7

requires employers to provide notice to employees of a NOI—something that employers

8

have always been authorized to do—and provide employees for whom a deficiency has

9

been identified an opportunity to correct the deficiency. Cal. Lab. Code § 90.2.6

10

When immigration authorities need to conduct an inspection of a place of business

11

unrelated to I-9 documents and without prior notice, they may seek a subpoena or

12

warrant. The United States claims that the Immigration and Nationality Act (INA)

13

provides no procedure for procuring a judicial warrant, PI Motion at 13, but federal law

14

actually does allow immigration authorities to obtain a judicial warrant for a worksite

15

operation. In fact, to obtain a warrant, immigration authorities need not even meet the

16

relatively more stringent requirements for obtaining a search warrant in the criminal law

17

context. They can obtain a judicial warrant by meeting a more relaxed “hybrid standard

18

of probable cause.” Int’l Molders’ Allied Workers’ Local Union No. 164 v. Nelson, 799

19

F.2d 547, 552 (9th Cir. 1986) (describing standard for “Blackie’s warrant”). In the main

20

case cited by the United States for the proposition that immigration authorities should be

21

able to obtain unfettered access to worksites without a warrant, the INS had a warrant.

22

See I.N.S. v. Delgado, 466 U.S. 210, 212 (1984) (stating that worksite surveys INS

23
24
25
26
27
28

5

I-9 Central: Inspections, U.S. Citizenship & Immigration Services,
https://www.uscis.gov/i-9-central/retain-store-form-i-9/inspection/inspections (last
visited May 14, 2018). Alternatively, they may utilize subpoenas or warrants to inspect
documents without providing three-days notice. Id.
6
With respect to employees for whom a deficiency has been identified, ICE
already instructs employers to provide them with notice and an opportunity to respond.
See Form I-9 Inspection Process, U.S. Immigration and Customs Enforcement (Jan. 8,
2018), https://www.ice.gov/factsheets/i9-inspection (“The employer should provide the
employee with a copy of the notice, and give the employee an opportunity to present ICE
with additional documentation to establish their work eligibility.”).
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conducted in January and September 1977 were conducted “pursuant to two warrants”).

2

That federal authorities would prefer not to have to make the necessary showing to get a

3

warrant before descending upon a business is unsurprising. But there is no doubt that

4

they can obtain warrants with relative ease.

5

2.

6

Limiting Voluntary Access Will Help Ensure Bona Fide
Investigations and Reduce Retaliation

7

The United States appears to be less concerned with AB 450’s impact on its ability

8

to investigate employers and more concerned with maximizing its ability to enter

9

worksites so that it can engage in routine immigration enforcement against workers. PI

10

Motion at 11-12 (citing 8 U.S.C. § 1357 and citing Delgado and Zepeda, both pre-IRCA

11

cases). Those activities fall under a different part of the INA that regulates immigration

12

officers and agents, not employers or their employees. See, e.g., 8 U.S.C. § 1357.

13

When immigration authorities enter workplaces to apprehend workers, they

14

sometimes do so with non-judicial administrative warrants or no warrant at all. Unlike a

15

judicial warrant, an administrative warrant does not authorize immigration officials to

16

enter non-public parts of a business. See, e.g., ICE Administrative Removal Warrants

17

(MP3),

18

administrative-removal-warrants-mp3 (last visited May 15, 2018) (“primary difference”

19

between criminal warrant and administration warrant “is that, unlike a criminal warrant . .

20

., a removal warrant does not authorize the ICE officer to enter . . . an REP [reasonable

21

expectation of privacy] area to execute the warrant”). However, administrative warrants

22

can be confused with criminal warrants. AB 450 helps to ensure that employers do not

23

provide voluntary access to authorities in the mistaken belief that an administrative

24

warrant authorizes them to enter nonpublic areas of a business.

Fed.

Law

Enforcement

Training

Ctr.,

https://www.fletc.gov/audio/ice-

25

When immigration officials have no warrant, commentators have observed that

26

the consent doctrine may be “insufficiently protective” because individuals from whom

27

consent is sought, such as the front desk clerk at a business, may lack knowledge of the

28

ability to refuse the request. Bernard Bell, United States v. California: A Preliminary
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Assessment of the Challenge to California’s “Immigrant Worker Protection Act,” Yale J.

2

on Reg. Notice & Comment Blog (Mar. 31, 2018), http://yalejreg.com/nc/united-states-v-

3

california-a-preliminary-assessment-of-the-challenge-to-californias-immigrant-worker-

4

protection-act-by-bernard-w-bell/. “Consent doctrine is even more problematic [where, as

5

here] the person who consents is not the target of the search.” Id. (citing Illinois v.

6

Rodriguez, 497 U.S. 177, 181, 186 (1990) and United States v. Matlock, 415 U.S. 164,

7

171 (1974)). Employers “may have no interest in ensuring that the government has an

8

adequate justification for conducting a search . . . confident that any untoward effects will

9

not be directed at the company.” Id.

10

By extending its protections to all “places of labor,”7 AB 450 benefits some of the

11

most vulnerable workers in the state, i.e., those whose employers would not otherwise be

12

aware of their procedural rights or be inclined to exercise them.8 It ensures that

13

investigations by immigration authorities have adequate justification and reduces the in

14

terrorem effect of exploitative or haphazard immigration enforcement on the

15

enforcement of labor and employment laws in the state.

16

III.

AB 450 Is Not Barred by the Intergovernmental Immunity Doctrine

17

The United States also argues that AB 450 violates the doctrine of

18

intergovernmental immunity. PI Motion at 14-18. This Court should decline the United

19

States’ invitation to expand intergovernmental immunity beyond conventional

20

understandings of its reach.

21
22
7

23
24
25
26
27
28

The United States suggests that “places of labor” could be read to include
locations within 25 miles of the international border, where immigration authorities can
have access to “private lands, but not dwellings, for the purpose of patrolling the border,”
or locations that authorities must be able to enter in the event of exigent circumstances.
ECF No. 2-1 at 14 n.8. But in both of those cases, authorities need neither a warrant nor
“voluntary consent” to enter. Cal. Gov’t Code § 7285.1(a). AB 450 is therefore irrelevant.
8
The United States’ argument that AB 450 will impede investigations into human
smuggling or trafficking, PI Motion at 16-17, is misplaced. Those involved in smuggling
or trafficking are unlikely to consent to a search even without AB 450, and to the extent
that authorities learn of criminal activity, they may enter private property with a search
warrant.
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In the modern era, “[t]he Court has . . . adopted a functional approach to claims of

2

governmental immunity, accommodating of the full range of each sovereign’s legislative

3

authority and respectful of the primary role of Congress in resolving conflicts between

4

the National and State governments.” North Dakota v. United States, 495 U.S. 423, 435

5

(1990). The federal government can assert immunity only from regulation that

6

discriminates against the federal government directly or, in the case of contractors or

7

suppliers, indirectly through those “with whom [the federal government] deals.” Id. at

8

435-38. AB 450 plainly does not regulate the federal government directly. Cf. United

9

States v. City of Arcata, 629 F.3d 986 (9th Cir. 2009). AB 450 also does not regulate the

10

federal government indirectly. Employers subject to AB 450 are not being regulated

11

because of their status as government contractors or suppliers, North Dakota, 495 U.S. at

12

438; they are being regulated because of California’s desire to improve the condition of

13

all workers, which necessarily implicates all employers in the state. Cf. Boeing Co. v.

14

Movassaghi, 768 F.3d 832 (9th Cir. 2014).9

15

“Claims to any further degree of immunity must be resolved under principles of

16

congressional pre-emption.” North Dakota, 495 U.S. at 435. That is because it is

17

Congress, not the courts, that plays the “primary role” in deciding whether the

18

accomplishment of federal purposes requires displacing state law today. Id.; Gillian E.

19

Metzger, Federalism and Federal Agency Reform, 111 Colum. L. Rev. 1, 57 (2011)

20

(“Much of the resultant doctrine of federal intergovernmental immunity has been cut

21

back over time, with such concerns now addressed largely under the aegis of

22

preemption.”). Since Congress was well aware of how to preempt state law and chose not

23
9

24
25
26
27
28

The United States suggests that employers subject to AB 450 are like the
contractor in Boeing Co. because AB 450 “imposes penalties on private employers . . . to
the extent they voluntarily cooperate with the United States,” and therefore,
intergovernmental immunity should extend to them. PI Motion at 14-15. But AB 450
clearly applies to all employers. Compliance with AB 450 imposes no special hardship
on them. Even those who would prefer not to follow AB 450 cannot be compared to
government contractors or suppliers because, unlike contractors or suppliers, they have
no legal relationship to or obligation to perform functions for the federal government
absent a NOI, subpoena, or warrant.
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to do so here, no further elaboration of the implications of the Supremacy Clause is

2

necessary. See generally Lawrence Tribe, Intergovernmental Immunities in Litigation,

3

Taxation and Regulation: Separation of Powers Issues in Controversies about

4

Federalism, 89 Harv. L. Rev. 682, 682, 701-11 (1976) (expressing doubt about judicial

5

branch’s ability to determine when a tax or regulation is “really” a burden on a federal

6

instrumentality and calling for “attention to the question of who should decide”—to

7

which he answers: Congress).

8

CONCLUSION

9

AB 450 was crafted to promote the well-being of workers in California without

10

conflicting with federal law. Amici urge the Court to decline the United States’ request

11

for a preliminary injunction.

12
13

Dated: May 18, 2018

MUNGER, TOLLES & OLSON LLP

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By: __/s/ Bradley S. Phillips______________
Bradley S. Phillips
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
T: [phone]
F: [phone]
[e-mail]
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of May, 2018, I electronically transmitted the
foregoing document to the Clerk's Office using the CM/ECF System for filing. Notice of
this filing will be sent by e-mail to all parties by operation of the Court's electronic filing
system or by mail as indicated on the Notice of Electronic Filing.

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7

Dated: May 18, 2018
Los Angeles, CA

/s/ Bradley S. Phillips
Bradley S. Phillips

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