United States of America v. State of California et al

Filing 168

MOTION for LEAVE to file Amici Curiae Brief by City of Aliso Viejo, City of Escondido, City of Glendora, City of Laguna Niguel, City of Yorba Linda, Rebecca Jones, Mike Spence . Attorney Joseph, Lawrence John added. (Attachments: # 1 Proposed Order, # 2 Updated Corporate Disclosure, # 3 Proposed Amici Curiae Brief)(Joseph, Lawrence) Modified on 6/11/2018 (Donati, J).

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Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Dale L. Wilcox*
Sarah R. Rehberg*
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
* Not admitted in this jurisdiction
Counsel for Prospective Amici Curiae: MUNICIPALITIES AND ELECTED OFFICIALS

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

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_____________________________________

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CASE No. 2:18-cv-00490-JAM-KJN
MUNICIPALITIES & ELECTED
OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO MOTION TO
DISMISS
Complaint filed: March 6, 2018
Honorable John A. Mendez

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MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

TABLE OF CONTENTS

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Table of Contents ............................................................................................................................. i
Table of Authorities ........................................................................................................................ ii
Identity and Interest of Amici Curiae.............................................................................................. 1

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Argument ........................................................................................................................................ 1

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I.

Commandeering under Murphy is inapposite to Section 1373. ............................................... 2

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A. Notwithstanding Murphy, Section 1373(a) remains a “Necessary and Proper”
application of powers entrusted to Congress. ................................................................... 4

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B. Section 1373(a) qualifies as “necessary” under the Necessary and Proper Clause. ......... 4

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C. Section 1373(a) qualifies as “proper” under the Necessary and Proper Clause
because it does not violate any of the Murphy tenets of federalism. ................................ 4

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II. INA’s preemptive scope survives Murphy. ............................................................................. 5

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Conclusion ...................................................................................................................................... 5

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IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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TABLE OF AUTHORITIES
CASES

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Arizona v. United States,
567 U.S. 387 (2012) ................................................................................................................5

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DeCanas v. Bica,
424 U.S. 351 (1976) ................................................................................................................4

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Gonzales v. Raich,
545 U.S. 1 (2005) ....................................................................................................................4

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Murphy v. NCAA,
200 L.Ed.2d 854 (2018) ................................................................................................ passim

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United States v. Comstock,
560 U.S. 126 (2010) ................................................................................................................4

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United States v. Johnson,
319 U.S. 503 (1943) ................................................................................................................3

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Univ. of Texas v. Camenisch,
451 U.S. 390 (1981) ................................................................................................................1
STATUTES
U.S. CONST, art. I, §8, cl. 18 ........................................................................................................2, 4
U.S. CONST. amend. I ...................................................................................................................2, 5

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U.S. CONST. amend. X .....................................................................................................................1

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Immigration and Naturalization Act,
8 U.S.C. §§1101-1537 ..................................................................................................... 1-3, 5

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8 U.S.C. §1324(a)(1)(A) ..................................................................................................................2

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8 U.S.C. §1324(a)(1)(A)(iii) ............................................................................................................3

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8 U.S.C. §1324(a)(1)(A)(v) .............................................................................................................3

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8 U.S.C. §1373 ....................................................................................................................... passim
8 U.S.C. §1373(a) ........................................................................................................................ 3-4
Professional and Amateur Sports Protection Act,
28 U.S.C. §§3701-3704 ....................................................................................................... 2-3

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MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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IDENTITY AND INTEREST OF AMICI CURIAE
As set forth in more detail in the accompanying motion for leave to file, the amici curiae

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identified in the Addendum are California municipalities and elected officials (“Amici”). In that

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capacity, Amici are or represent political subdivisions of not only plaintiff United States but also

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defendant California and feel compelled to support the federal sovereign over the state sovereign

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in this dispute over California’s attempt to usurp the federal government’s exclusive and plenary

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power over immigration and to deny Amici and their constituents their right to support the federal
government in the exercise of that power. Amici’s coalition previously sought and was granted
leave to file an amici brief (“Amici Memo.,” ECF #057) in support of the federal government’s
motion for a preliminary injunction (ECF #002), but now file this amici brief in support of the

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federal government’s opposition (ECF #166) to the California defendants’ motion to dismiss (ECF

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#077) in order to address the impact of the subsequent Supreme Court decision in Murphy v.

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NCAA, 200 L.Ed.2d 854 (2018), on 8 U.S.C. §1373 (“Section 1373”).

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ARGUMENT
At the outset, amici concur with the Court that the issues presented in California’s motion
to dismiss overlap with the merits issues raised in the United States’ motion for a preliminary

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injunction. Minute Order (May 7, 2018) (ECF #079). Although a likelihood of prevailing on the
merits is not the same as prevailing on the merits, Univ. of Texas v. Camenisch, 451 U.S. 390, 395

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(1981), preemption under the Immigration and Naturalization Act, 8 U.S.C. §§1101-1537 (“INA”),

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and commandeering under the Tenth Amendment, U.S. CONST. amend. X, present purely legal

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issues that the Court will decide either in California’s favor for dismissal or in the United States’

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favor in support of a preliminary injunction. In addressing the subsequent Murphy decision here,

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Amici incorporate by reference the following arguments from their prior amici filing:

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MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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First Amendment. Not only private citizens but also state and local employees and

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officials have a First Amendment right to work with federal immigration officials, which

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the challenged California laws seek to infringe. Amici Memo. at 6, 12.

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Shielding and Harboring. In protecting illegal aliens from apprehension, the challenged

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California laws violate INA’s criminal prohibition against concealing, harboring, or

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shielding from detection under INA §274(a)(1)(A). Id. at 9-11.

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Necessary and Proper. Given the foregoing First Amendment and INA issues, Section

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1373 would fall within Congress’s power under the Necessary and Proper Clause, U.S.

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CONST, art. I, §8, cl. 18, even assuming arguendo that it exceeded Congress’s enumerated

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powers. Amici Memo. at 14-15.

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Field Preemption. Circuit precedent holds that INA field preempts the issue of concealing,

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harboring, and shielding illegal aliens, leaving California no room to act. Id. at 6-7.

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With that background, Amici now explain why Murphy cannot aid California here.
I.

COMMANDEERING UNDER MURPHY IS INAPPOSITE TO SECTION 1373.
In Murphy, the Supreme Court held that the Professional and Amateur Sports Protection

Act (“PASPA”) impermissibly commandeered New Jersey’s legislature by prohibiting repeal of

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New Jersey’s prohibition against sports gambling. As the Court noted at the outset and the end of

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its decision, “PASPA does not make sports gambling a federal crime,” and “Congress can regulate

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sports gambling directly.” 200 L.Ed.2d at 866, 882 (Slip Op. 5, 31). Also, the object of PASPA’s

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regulation was state legislation, not conduct, by purporting to prohibit New Jersey from repealing

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its own state-law ban on sports gambling. 200 L.Ed.2d at 872-73 (Slip Op. 14-17); id. at 873
(Congress cannot “command a state government to enact state regulation”) (interior quotation

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marks omitted, emphasis in original) (Slip Op. 16). Viewed in that light, PASPA and Murphy have

MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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little to do with INA and Section 1373 because INA indeed makes it a federal crime to conceal,

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harbor, or shield illegal aliens, 8 U.S.C. §1324(a)(1)(A)(iii), (v), and Section 1373 is indifferent to

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the California’s Legislature’s enactments, regulating instead the conduct of California’s state and

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local executive officers and entities:

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Notwithstanding any other provision of Federal, State, or local law,
a Federal, State, or local government entity or official may not
prohibit, or in any way restrict, any government entity or official
from sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.

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8 U.S.C. §1373(a) (emphasis added). California’s Legislature remains free to legislate as it wishes,

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but the laws that the Legislature enacts cannot authorize violation of federal law. In the gambling

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context from Murphy, “[t]he nub of the matter [would be] that they aided and abetted if they
consciously were parties to the concealment of [illegal activity] in these gambling clubs.” United

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States v. Johnson, 319 U.S. 503, 518 (1943). As signaled by the Supreme Court’s emphasizing
that Congress has not regulated sports gambling, Murphy would have come out differently if

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PASPA — analogously to INA, here — had criminalized sports gambling and prohibited state and

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local officers from aiding illegal activity by helping to shield or conceal it.

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Simply, “[t]he anti-commandeering doctrine does not apply when Congress evenhandedly

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regulates an activity in which both States and private actors engage.” Murphy, 200 L.Ed.2d at 875

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(Slip Op. 20). As explained, INA’s prohibition on shielding illegal aliens from detection applies
equally to traffickers and church groups, and state officials are in no better a place than church
groups. Amici Memo. at 10 & n.5. All that Section 1373(a) does is provide a civil-law basis to
direct compliance with the criminal law, which is well within congressional power. Whether as

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permissible regulation of immigration in its own right or as a necessary and proper extension of

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that congressional power, see Section I.A, supra, Section 1373 provides a civil-law variant to the
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IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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extant — and unchallenged — criminal prohibition against shielding illegal aliens.
A.

Notwithstanding Murphy, Section 1373(a) remains a “Necessary and Proper”
application of powers entrusted to Congress.

In their prior amici brief, Amici posited that “California cannot seriously dispute the federal
authority to create the crime of concealing, harboring, and shielding from detection illegal aliens
as necessary and proper to federal control of immigration.” Amici Memo. at 15. Now it is official:

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California’s subsequent motion to dismiss indeed did not make that argument, which is a fatal

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omission here. Even assuming arguendo that Congress could not enact Section 1373 directly under

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its exclusive and plenary power over immigration, DeCanas v. Bica, 424 U.S. 351, 354 (1976),

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the Necessary and Proper Clause extends those powers to include measures “‘rationally related to

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the implementation of a constitutionally enumerated power.’” Amici Memo. at 14 (quoting United
States v. Comstock, 560 U.S. 126, 134 (2010)). The Clause “‘empowers Congress to enact laws in

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effectuation of its enumerated powers that are not within its authority to enact in isolation.’” Id. at
14-15 (quoting Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., concurring in the judgment)).
Thus, as long as it is both necessary and proper, Section 1373 falls with congressional powers.
B.

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Section 1373(a) qualifies as “necessary” under the Necessary and Proper
Clause.

As explained, Courts are deferential to Congress under the Necessary and Proper Clause
on issues such as necessity, efficacy, and the fit between the means chosen and the constitutional

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end. Amici Memo. at 15 (citing Comstock, 560 U.S. at 135). Neither California nor its officials can

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complain that Congress enacted Section 1373 as an alternative to having the Department of Justice

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prosecute California officials. Indeed, California’s actions prove that Section 1373 is necessary.

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C.

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Section 1373(a) qualifies as “proper” under the Necessary and Proper Clause
because it does not violate any of the Murphy tenets of federalism.

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Nor is Section 1373 improper under the three tenets of federalism cited in Murphy, 200
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IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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L.Ed.2d at 874 (Slip Op. 17-18). First, Section 1373 reflects a healthy federal-state balance

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consistent with the federal government’s exclusive power over immigration and avoiding “the risk

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of tyranny and abuse” from California’s seeking to suppress First Amendment rights and evade

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federalism by nullifying federal law. Second, Section 1373 does not blur authority, given both the

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exclusivity of federal immigration authority and the voluntariness of any officer’s actions taken

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under Section 1373. Third, Section 1373 does not shift any costs of immigration compliance, given
the unlawfulness of shielding aliens from detection and the voluntariness of any officer’s actions

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taken under Section 1373. In sum, Section 1373 is a proper exercise of congressional power.
II.

INA’S PREEMPTIVE SCOPE SURVIVES MURPHY.
Murphy posits that “every form of preemption is based on a federal law that regulates the

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conduct of private actors, not the States,” 200 L.Ed.2d at 878 (Slip Op. 23-24), but did not have

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occasion to tease out that private-actor-versus-State dichotomy to individual officers who are state

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or local employees (i.e., arguably neither “private actors” nor States). Since individual officers are

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not sovereign States, they either qualify as “private actors” when exercising their First Amendment
right to contact the federal government under Section 1373 or there is a third category of actors to
consider. Either way, Murphy shows how to understand a statute’s true effect, “regardless of the
language sometimes used by Congress.” Id. Specifically, just as the INA in Arizona v. United

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States, 567 U. S. 387, 401 (2012), could be reframed to confer individual rights, Murphy, 200

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L.Ed.2d at 877-78 (Slip Op. 23), Section 1373 permissibly protects First Amendment rights,

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protects state and local officers from inadvertently joining the Legislature’s unlawful scheme to

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shield illegal aliens, and protects American workers from illegal aliens’ unlawful competition.

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CONCLUSION
For the foregoing reasons, the Court should deny California’s motion to dismiss.

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MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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Dated: June 8, 2018

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Dale L. Wilcox
Sarah R. Rehberg
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Respectfully submitted,
/s/ Lawrence J. Joseph
Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amici Curiae

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MUNICIPALITIES & ELECTED OFFICIALS’ AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Dale L. Wilcox*
Sarah R. Rehberg*
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
* Not admitted in this jurisdiction
Counsel for Prospective Amici Curiae: MUNICIPALITIES AND ELECTED OFFICIALS

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

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_____________________________________

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CASE No. 2:18-cv-00490-JAM-KJN
ADDENDUM TO MUNICIPALITIES
& ELECTED OFFICIALS’ AMICI
CURIAE BRIEF IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO
MOTION TO DISMISS
Complaint filed: March 6, 2018
Honorable John A. Mendez

The following California municipalities and elected officials have joined the foregoing

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amici curiae brief:

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ADDENDUM TO MUNICIPALITIES & ELECTED OFFICIALS’ AMICI BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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The City of Yorba Linda; the City of Escondido; the City of Aliso Viejo; the City of

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Glendora; and the City of Laguna Niguel.

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The Hon. Mike Spence, City of West Covina Councilman, and and the Hon. Rebecca

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Jones, Vice-Mayor of the City of San Marcos, in their respective individual capacities.

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This list reflects that two members — the City of Laguna Niguel and the City of Glendora — have
joined the amici coalition since the filing of the amici brief (ECF #057) in support of the United
States’ motion for a preliminary injunction on April 6, 2018.
Dated: June 8, 2018

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Dale L. Wilcox
Sarah R. Rehberg
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Respectfully submitted,
/s/ Lawrence J. Joseph
Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amici Curiae

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ADDENDUM TO MUNICIPALITIES & ELECTED OFFICIALS’ AMICI BRIEF
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

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