United States of America v. State of California et al

Filing 182

AMICI CURIAE BRIEF by California Partnership to End Domestic Violence and Coalition for Humane Immigrant Rights. (Amdur, Spencer) Modified on 6/13/2018 (Donati, J).

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SPENCER E. AMDUR (SBN 320069)
CODY H. WOFSY (SBN 294179)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

JULIA HARUMI MASS (SBN 189649)
ANGÉLICA H. SALCEDA (SBN 296152)
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

JESSICA KARP BANSAL (SBN 277347)
NATIONAL DAY LABORER
ORGANIZING NETWORK
674 South LaFayette Park Place
Los Angeles, CA 90057
Tel: [phone]
Fax: [phone]
Email: [e-mail]

MICHAEL KAUFMAN (SBN 254575)
JENNIFER PASQUARELLA (SBN 263241)
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Intervenor-Defendants
Additional counsel on next page

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IN THE UNITED STATES DISTRICT COURT
FOR EASTERN DISTRICT OF CALIFORNIA

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THE UNITED STATES OF AMERICA,

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Plaintiff,
v.

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THE STATE OF CALIFORNIA; EDMUND
GERALD BROWN JR., Governor of
California, in his official capacity; and
XAVIER BECERRA, Attorney General of
California, in his official capacity,
Defendants.

Case No. 2:18-cv-00490-JAM-KJN
Hon. John A. Mendez
BRIEF OF AMICI CURIAE
THE CALIFORNIA PARTNERSHIP TO
END DOMESTIC VIOLENCE AND THE
COALITION FOR HUMANE
IMMIGRANT RIGHTS
Date: June 5, 2018
Time: 1:30 p.m.
Dept: Courtroom 6, 14th Floor

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OMAR C. JADWAT (pro hac vice)
LEE GELERNT (pro hac vice)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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ANGELA CHAN (SBN 250138)
ASIAN AMERICANS ADVANCING JUSTICE ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, CA 94404
Tel: [phone]
Fax: [phone]
Email: [e-mail]
BARDIS VAKILI (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Tel: [phone]
Email: [e-mail]

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TABLE OF CONTENTS

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I.

Congress Cannot Preempt California’s Choice Not to Help Administer the Federal
Deportation Scheme. ................................................................................................................ 2

II.

Even If It Could, Congress Has Not Preempted the Values Act. .......................................... 10

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A. The United States Barely Defends Its Interpretation of 8 U.S.C. § 1373. ..................... 10

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B. Implied Preemption Is Foreclosed by Gregory. ............................................................. 10
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C. Even If It Could, Congress Has Not Impliedly Preempted the Values Act. .................. 11

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III.

The Values Act Does Not Violate Intergovernmental Immunity. ......................................... 14

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TABLE OF AUTHORITIES

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Cases

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Alden v. Maine, 527 U.S. 706 (1999) ............................................................................................. 4

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Arizona v. United States, 567 U.S. 387 (2012) ....................................................................... 11, 13

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Atay v. Cty. of Maui, 842 F.3d 688 (9th Cir. 2016) ................................................................ 12, 13

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Baggett v. Gates, 32 Cal.3d 128 (1982) .......................................................................................... 4

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Bond v. United States, 134 S. Ct. 2077 (2014) ................................................................... 6, 11, 13

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Chicanos Por La Causa v. Napolitano, 558 F.3d 856 (9th Cir. 2009) ......................................... 12

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Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015) ........................... 13, 14

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City of Abilene v. FCC, 164 F.3d 49 (D.C. Cir. 1999) ................................................................. 11

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Clark v. Rameker, 134 S. Ct. 2242 (2014) .................................................................................... 12

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Davis v. Michigan Dep’t of Treasury, 489 U.S. 803 (1989)......................................................... 15

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DeCanas v. Bica, 424 U.S. 351 (1976) ........................................................................................... 6

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FERC v. Mississippi, 456 U.S. 742 (1982) ................................................................................. 3, 5

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Freightliner Co. v. Myrick, 514 U.S. 280 (1995) ......................................................................... 12

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Freilich v. Upper Chesapeake Health, 313 F.3d 205 (4th Cir. 2002) ............................................ 9

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Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .......................................................................... 4

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Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) .................................................................. 12

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Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) ........................................................................ 9

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Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................................................................... 1, 10, 11

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Hodel v. Va. Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981) ............................................. 5, 6
In re Tax Liabilities of Does, 2011 WL 6302284 (E.D. Cal. Dec. 15, 2011) ................................. 9
Koog v. United States, 79 F.3d 452 (5th Cir. 1996)........................................................................ 4
Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215 (S. Ct. June 4, 2018)............................. 10
McDonnell v. United States, 136 S. Ct. 2355 (2016)...................................................................... 6
Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018) ...................................... passim
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................ 2, 3, 8, 15
New York v. United States, 505 U.S. 144 (1992) ................................................................... passim
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Nixon v. Missouri Mun. League, 541 U.S. 125 (2004) ................................................................. 10

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North Dakota v. U.S., 495 U.S. 423 (1990) .................................................................................. 15

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Oregon Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228 (9th Cir. 2017)............. 9

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Philadelphia v. Sessions, 2018 WL 2725503 (E.D. Pa. June 6, 2018) ............................. 2, 7, 8, 10

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Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016)......................................................................... 14

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Printz v. United States, 521 U.S. 898 (1997) ......................................................................... passim

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Reno v. Condon, 528 U.S. 141 (2000) ........................................................................................ 5, 7

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Roach v. Mail Handlers Ben. Plan, 298 F.3d 847 (9th Cir. 2002) ............................................... 10

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South Carolina v. Baker, 485 U.S. 505 (1988) ............................................................................... 5

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Standley v. Dep't of Justice, 835 F.2d 216 (9th Cir. 1987) ............................................................. 9

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Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) .......................... 10

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United States v. Brown, 2007 WL 4372829 (S.D.N.Y. Dec. 12, 2007) ......................................... 9

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United States v. Gomez, 911 F.2d 219 (9th Cir. 1990) ................................................................... 3

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United States v. Lewis Cty., 175 F.3d 671 (9th Cir. 1999) ........................................................... 15

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United States v. Lopez, 514 U.S. 549 (1995) .................................................................................. 6

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United States v. Morrison, 529 U.S. 598 (2000) ............................................................................ 6

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Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247 (2011) ......................................................... 4

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Wyeth v. Levine, 555 U.S. 555 (2009). ................................................................................... 11, 12

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Federal Statutes

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8 U.S.C. § 1103(a)(10). ................................................................................................................. 13

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8 U.S.C. § 1226(c) ............................................................................................................ 12, 13, 14

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8 U.S.C. § 1231(a) ............................................................................................................ 12, 13, 14

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8 U.S.C. § 1252c. .......................................................................................................................... 13

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8 U.S.C. § 1357(d) ............................................................................................................ 12, 13, 15

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8 U.S.C. § 1373 ...................................................................................................................... passim

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15 U.S.C. § 2224 ............................................................................................................................. 9

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20 U.S.C. § 4013 ............................................................................................................................. 8

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20 U.S.C. § 4014 ............................................................................................................................. 8
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34 U.S.C. § 41307 ........................................................................................................................... 9

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42 U.S.C. § 11133(b) ...................................................................................................................... 8

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42 U.S.C. § 14072(g)(4) ................................................................................................................. 8

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52 U.S.C. § 20701 ........................................................................................................................... 9

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17 Stat. 466 (1873).......................................................................................................................... 8

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54 Stat. 401 (1940) ......................................................................................................................... 8

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Pub. L. No. 91-452, § 806............................................................................................................... 8

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Pub. L. No. 102–559 ....................................................................................................................... 9

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State Constitution

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Cal. Const. art. IV ........................................................................................................................... 4

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State Statutes

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Cal. Gov’t Code § 7284.2 ......................................................................................................... 8, 15

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Cal. Gov’t Code § 7282.5 ............................................................................................................. 14

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Cal. Gov’t Code § 7284.4(a) ........................................................................................................... 3

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Cal. Gov’t Code § 7284.6(a) ..................................................................................................... 3, 12

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Legislative History

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H.R. 2278, 113 Cong. § 114 (2013).............................................................................................. 12

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H.R. 2964, 114 Cong. § 5 (2015). ................................................................................................. 12

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Other Authorities

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Dep't of Justice, Institutional Hearing Program (2018) ............................................................... 14

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Group Rallies Against Deportation in Front of Alameda County Building,
Mercury News, Nov. 19, 2015 ........................................................................................................ 8

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Faced with a wall of Supreme Court precedent guaranteeing California the prerogative to
decide whether its own agents will assist in federal deportation efforts, the government offers a
series of unfounded and outlandish arguments in support of its claims against the Values Act. 1
PI Reply 10-23, Dkt. 171. It posits, almost in passing, that States can only arrest and prosecute

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noncitizens for state criminal offenses if Congress decides to allow it—that Congress could
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essentially outlaw state criminal law enforcement as it has existed throughout our country’s
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history. That breathtaking claim to unlimited federal dominance is anathema to our system of
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dual sovereignty. Alternatively, it contends that Congress can issue any commands it wants to
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the States so long as the commands relate to information. No court has ever accepted that
sweeping assertion, which cannot be squared with the Constitution’s prohibition on federal
control of state government. At least where, as here, forced “information sharing” is integral to
the daily operation of a federal regulatory program, Congress cannot destroy state officials’
accountability to their own electorate and force them to participate.
Thus, because this case is about California’s clear prerogative to opt out of assisting with

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deportations, the preemption principles the government invokes have no application.
But even if Congress could require States to share release dates and addresses, it has not

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done so. The government attempts to rewrite the Immigration and Nationality Act (INA),

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warping provisions that expressly protect States’ choices into supposed commands. But the

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INA’s consistent, explicit solicitude for States’ independence does not carry some secret

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intention to conscript their officers. To the contrary, the one narrow provision where Congress

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did seek to limit States’ choices, 8 U.S.C. § 1373, is powerful evidence that, beyond its terms,

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Congress intended States to make their own decisions. The government thus falls far short of

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showing, as it must, that an intent to preempt the Values Act is “unmistakably clear in the

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language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

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Amici the California Partnership to End Domestic Violence and the Coalition for Humane
Immigrant Rights submit this brief in defense of the California Values Act pursuant to the
Court’s Order of June 5, Dkt. 164, at 12.
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Brief of Amici Curiae
the Partnership and CHIRLA

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I.

Congress Cannot Preempt California’s Choice Not to Help Administer the
Federal Deportation Scheme.
1. The Constitution gives Congress “the power to regulate individuals, not States.”

Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018) (quoting New York v.
United States, 505 U.S. 144, 166 (1992)).

That principle is fatal to both of the federal

government’s preemption claims (express and implied). As Murphy held, Congress may not
“issue orders directly to the States,” id. at 1475, including orders to “refrain from enacting state
law,” id. at 1478. That is exactly what 8 U.S.C. § 1373 does: It orders States not to enact
policies that withhold their own agents’ enforcement assistance. The government’s obstacle
preemption claim suffers the same defect, because if accepted, it would effectively order States
to refrain from enacting laws regulating their own agents. “A more direct affront to state

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sovereignty is not easy to imagine.” Id.; Philadelphia v. Sessions, 2018 WL 2725503, at *31-33

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(E.D. Pa. 2018) (holding that § 1373 is unconstitutional under Murphy).

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Murphy is the latest in a long line of Supreme Court cases making absolutely clear that

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the Constitution guarantees States the ability to “decline to administer [a] federal program.” New

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York, 505 U.S. at 176-77 ; see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 587

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(2012) (Tenth Amendment ensures that States “may choose not to participate” in a federal

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program); Printz v. United States, 521 U.S. 898, 909-10 (1997) (States may “refuse[] to comply

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with [a] request” to help administer federal law). Congress cannot interfere with this choice:

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States must retain the “prerogative to reject Congress’s desired policy, not merely in theory but

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in fact.” NFIB, 567 U.S. at 581. The government’s preemption theories would eliminate this

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“critical alternative.” New York, 505 U.S. at 176-77.

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Where, as here, the State exercises its anti-commandeering prerogative, there can be no

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preemption. Like the law in Murphy, § 1373 “does not confer any federal rights on private

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actors” or “impose any federal restrictions on private actors.” Id. at 1481. Instead, it regulates

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only the States’ own agents, by prohibiting them from opting out of the deportation system.

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Congress has no power to enact such a prohibition, either explicitly or implicitly. Nor does the

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state law in this case confer rights or impose restrictions on private actors; it too regulates only
Brief of Amici Curiae
the Partnership and CHIRLA

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the States’ own agents. Compare id. at 1480 (valid obstacle preemption where State “impose[s]
a duty” on private actors that conflicts with private actors’ federal rights or duties).

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The government ignores these holdings almost entirely. It complains repeatedly that the
Values Act “obstructs” immigration enforcement, Reply Br. 11, 13, 14, 15, 17, 25, but it does not

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and cannot deny that what it calls “obstruction” is simply the State’s decision to limit its own
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participation in the federal deportation scheme 2—a choice that is “essential” to the

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“[p]reservation of the States as independent political entities,” Printz, 521 U.S. at 919-19, and a
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“quintessential attribute of sovereignty,” FERC v. Mississippi, 456 U.S. 742, 761 (1982). The
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government’s complaint about California’s decision to opt out would have applied equally to the
sheriffs in Printz and the States in NFIB. 3
The government fails to meaningfully grapple with the accountability concerns at the

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heart of these cases. See NFIB, 567 U.S. at 578; Printz, 521 U.S. at 930; New York, 505 U.S. at
169. Accountability requires “elected state officials” to “regulate in accordance with the views
of the local electorate,” including, crucially, by withdrawing from federal programs when the
“State’s citizens view federal policy as sufficiently contrary to local interests”—exactly as
California’s citizens have chosen. Id. at 168-69. Yet the government believes it can deny
California’s citizens that choice and force them to volunteer their officers’ assistance. 4

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The challenged provisions of the Values Act only apply to “California law enforcement
agenc[ies].” Cal. Gov’t Code §§ 7284.4(a), 7284.6(a). Both state and local officers are “state
officers” for purposes of the Tenth Amendment. Printz, 521 U.S. at 905, 930-31. The
government does not claim otherwise.
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The government’s reliance on a 25-year-old California Attorney General opinion is misplaced,
PI Reply 1, 16, as it predates Printz (applying anti-commandeering to state and local officers),
NFIB, Arizona, and Murphy. And because it interpreted federal as opposed to state law, it is
entitled to “no special weight.” United States v. Gomez, 911 F.2d 219, 221 n.2 (9th Cir. 1990).
Nor can the government draw any support from the subsequent 2014 “Bulletin,” PI Reply 1, 16,
which is cursory, ambiguous, and contained no relevant analysis.
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The government tries to minimize these accountability concerns by claiming that “the Federal
Government retains full responsibility and accountability for its [immigration] actions.” PI
Reply 18. But Printz rejected a similar argument, citing major accountability problems even
where States were only given “discrete, ministerial tasks” within a program administered
principally by the federal government. 521 U.S. at 929-30.
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Brief of Amici Curiae
the Partnership and CHIRLA

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The government also cannot dispute that this suit seeks to override California’s
“distribution of power among its own agents.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
247, 263 (2011) (Kennedy, J., concurring). California law places control over state and local
police in the hands of the State Legislature, which exercised that power in enacting the Values

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Act. See Cal. Const. art. IV, § 1; Baggett v. Gates, 32 Cal.3d 128, 139 n.15 (1982). According
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to the government, however, Congress has displaced that arrangement and instead required the
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Legislature to delegate immigration enforcement decisions to thousands of line-level officers,
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who may now choose for themselves whether and when to help DHS deport state residents. But
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Congress cannot “displace a State’s allocation of governmental power” in this way. Alden v.
Maine, 527 U.S. 706, 752 (1999); see also Stewart, 563 U.S. at 263 (Kennedy, J., concurring)
(States “need not empower their officers” to participate in a federal scheme); Dkt. 73-2, at 5-6, 9.
The government fails to explain why it thinks Congress can make such an extreme “incursion
into state sovereignty.” Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996).
2. The government’s attempts to distinguish Murphy are deeply unpersuasive.
First, it claims Murphy is inapplicable here because the commands the government
purports to identify are “part of” a federal “scheme regulating” private parties (the INA), which
Murphy lacked. PI Reply 20-21. But Printz forecloses any suggestion that direct orders to States

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are permissible as “part of” a broader federal scheme. The invalid directive in Printz was

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attached to a broader federal scheme that regulated private handgun purchases. 521 U.S. at 902-

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03. The Court still invalidated the provision that dictated how state officers had to participate in

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the scheme’s information-gathering efforts. Those “same principles” applied in Murphy and

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apply here. 138 S. Ct. at 1477; see also Galarza v. Szalczyk, 745 F.3d 634, 644 (3d Cir. 2014)

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(applying anti-commandeering in the INA context).

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Straining to support this argument, the government suggests that Murphy approved of an

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earlier preemption provision because it was “part of” a federal scheme “regulating air carriers.”

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PI Reply 21. But that is not remotely what Murphy said. Murphy explains that the airline

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provision is valid because it effectively “confers on private entities (i.e., covered carriers) a
Brief of Amici Curiae
the Partnership and CHIRLA

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federal right to engage in certain conduct” free from state regulation. 138 S. Ct. at 1480.
Likewise, preemption of state alien registration laws is permissible not because it is “part of” a
federal registration scheme, but because it gives private actors “a federal right to be free from
any [state] registration requirements.” Id. at 1481. Here, in stark contrast, the government’s

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preemption theories would impose no private rights or restrictions.
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Second, the government makes the puzzling assertion that § 1373 is permissible because
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it “evenhandedly regulates an activity in which both States and private actors engage.” PI Reply
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21 (quoting Murphy, 138 S. Ct. at 1478). But § 1373 applies only to “a Federal, State, or local
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government entity or official.” 8 U.S.C. § 1373(a). It imposes no restrictions on private actors at
all, including those who know about a person’s citizenship or immigration status. Nor is it
somehow rendered generally applicable by the INA’s “registration rules” for noncitizens and
employers. PI Reply 21; see Printz, 521 U.S. at 902-03, 932 & n.17 (holding that provision was
not generally applicable even though the Brady Act imposed related, but different, requirements
on handgun buyers and sellers). To the extent “there is no private analog” for Congress to
regulate evenhandedly, PI Reply 22, that only confirms the commandeering problem. See Printz,
521 U.S. at 932 n.17 (striking down statute where “extension of th[e] statute to private citizens”
was “impossible”). By contrast, the law upheld in South Carolina v. Baker, 485 U.S. 505, 514

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(1988), “treat[ed] state bonds the same as private bonds.” Murphy, 138 S. Ct. at 1478 (emphasis

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added). And the law upheld in Reno v. Condon, 528 U.S. 141, 151 (2000), “applied equally to

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state and private actors,” regulating their dissemination of the same driver data. Murphy, 138 S.

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Ct. at 1479 (emphasis added).

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Third, grasping at straws in the aftermath of Murphy, the government offers a startling

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new assertion: that the orders it seeks to issue to the States are just conditions “for continued

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state activity in an otherwise pre-emptible field.” PI Reply 22-23 (quoting FERC, 456 U.S. at

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769, and Hodel v. Va. Surface Mining & Recl. Ass’n, 452 U.S. 264, 288 (1981)). Without

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specifying what “field” it means, the government appears to argue that Congress can demand

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Brief of Amici Curiae
the Partnership and CHIRLA

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whatever deportation assistance it wants, because it could have simply ordered States not to
arrest, prosecute, or imprison noncitizens who violate their criminal laws. MTD Opp. 13.

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Every facet of this argument—which the government did not make in its opening brief—
is wrong. As Murphy explains, under a valid “cooperative federalism” arrangement of this sort,

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Congress “comprehensively regulate[s]” the activity at issue, and then offers States “the choice
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of either implementing the federal scheme or else yielding to” federal administration. 138 S. Ct.
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at 1479 (quoting Hodel, 452 U.S. at 288). Nothing of the sort is even possible here. The
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government’s premise—that Congress could flatly prohibit States from arresting and prosecuting
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all (possible) noncitizens—is utterly at odds with our constitutional system, which gives States
“primary authority for defining and enforcing the criminal law.” United States v. Lopez, 514
U.S. 549, 561 n.3 (1995) (citations omitted); see Bond v. United States, 134 S. Ct. 2077, 2089
(2014). Indeed, Congress lacks the power to punish ordinary crimes—much less occupy that
field altogether. United States v. Morrison, 529 U.S. 598, 618-19 (2000) (“The Constitution
withholds from Congress a plenary police power.”) (quotation marks and alteration omitted); see
also DeCanas v. Bica, 424 U.S. 351, 355 (1976) (rejecting the notion that “every state enactment
which in any way deals with aliens is a regulation of immigration”). Congress simply could not
make the “unprecedented incursion into the criminal jurisdiction of the States” of barring the

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States from enforcing their criminal laws against a large segment their residents. McDonnell v.

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United States, 136 S. Ct. 2355, 2374 (2016) (citation omitted). 5 The government offers no

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reasoning to support this stunning assertion.

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In any event, the government is wrong that it can conscript the States simply by

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imagining a broad hypothetical statute Congress might have passed. New York, for instance,

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struck down a statute even though “Congress could, if it wished, pre-empt state radioactive waste

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regulation” altogether. 505 U.S. at 160. And it did so over Justice White’s dissent, which made

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The government’s suggestion that Congress could authorize DHS to forcibly pluck inmates out
of state prisons, PI Reply 22, is likewise inconsistent with federalism principles. That possibility
is also irrelevant, because it would not constitute congressional occupation of any “field,” so
Hodel would have no application.
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Brief of Amici Curiae
the Partnership and CHIRLA

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the same argument the government presses here. See id. at 204 (White, J., concurring in part and
dissenting in part). Likewise, in NFIB, Congress’s ability to preempt state healthcare laws did
not allow it to command state participation. By contrast, in Hodel, Congress actually had
“comprehensively regulated” the relevant field, and in FERC, Congress simply asked States to
“to consider” federal standards, which they were free to disregard. Murphy, 138 S. Ct. at 1479. 6

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3. The government maintains that Congress can compel the States to help administer
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immigration law, as long as the help involves sharing information. PI Reply 18-20. It claims
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that it order States to produce any information about their residents, any time, for any purpose, as
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often as it wants. That is wrong. Printz left open the possibility that some kinds of information
sharing might fall outside the anti-commandeering rule—specifically, information that does not
entail “the actual administration of a federal program.” Printz, 521 U.S. at 918. The Court thus
declined to resolve whether “purely ministerial reporting requirements” are constitutional. Id. at
936 (O’Connor, J., concurring). But there is no question that forced information sharing, where
it facilitates the on-the-ground, day-to-day administration of a federal program, runs afoul of the
anti-commandeering rule.

Indeed, Printz itself invalidated a law because it required state

officers “to provide information that belongs to the State.” Id. at 932 n.17. 7
Here, the information the government seeks would clearly facilitate the “administration

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19

of a federal program.” Printz, 521 U.S. at 918. The challenged provisions address whether state

20

officers can make physical transfers of custody and otherwise help DHS identify, locate, and

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22
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25
26
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28

6

The government cites ambiguous language in FERC that Congress can issue commands in a
field that is “pre-emptible.” PI Reply 23. Whatever FERC meant by that, New York made clear
that Congress cannot issue direct commands to States simply because it could have, but did not,
regulate private conduct. And Murphy counseled against applying FERC beyond its facts—
asking States to “consider” standards—highlighting that “FERC was decided well before our
decisions in New York and Printz.” 138 S. Ct. at 1479.
7
The government suggests that Reno v. Condon established a Tenth Amendment carve-out for
information mandates. PI Reply 18, 22. It is mistaken. Condon upheld a “generally applicable
law,” 518 U.S. at 150-51, because the law “evenhandedly regulate[d] an activity in which both
States and private actors engage[d],” Murphy, 138 S. Ct. at 1478-79 (“That principle formed the
basis for the Court’s decision . . . .”). The Court did not announce any rule about information
mandates, or even identify any mandate to send information to federal agents. See Philadelphia,
2018 WL 2725503, at *32 (rejecting the government’s identical argument about Condon).
7
Brief of Amici Curiae
the Partnership and CHIRLA

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2
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4

arrest noncitizens.

The government itself stresses the operational impact of these actions:

Transfer, release dates, and addresses help DHS “locate, detain, prosecute, and remove aliens,”
PI Mem. 33; they increase its “ability to identify and apprehend removable aliens,” id. at 35; and
they facilitate “ICE’s efforts to take these aliens into custody for removal purposes,” id.

5
That kind of conscription simply cannot be squared with anti-commandeering law. The
6
Constitution reflects a “fundamental structural decision” to entirely “withhold from Congress the
7
power to issue orders directly to the States,” a principle that leaves no room for systematic
8
demands for information. Murphy, 138 S. Ct. at 1475. Indeed, when Congress “compels the
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17

States” to help administer a program, “it blurs the lines of political accountability” regardless of
what form the involvement takes. NFIB, 567 U.S. at 678. Whether state officers are placing the
handcuffs or helping DHS do so, residents understand that their government is funneling people
to the deportation system. Indeed, California’s experience makes clear that when state officials
pave the way for deportations—including by sending information about state residents to DHS—
they incur serious political and financial costs. See Group Rallies Against Deportation in Front
of Alameda County Building, Mercury News, Nov. 19, 2015, https://bayareane.ws/2wbh6o4;
Dkt. 73-2, at 7 & n.7, 10; Cal. Gov’t Code 7284.2.
The government asserts that Congress “frequently calls on states to share relevant

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19

information,” PI Reply 19, but none of its examples remotely resembles a system of state officers

20

performing daily services for immigration agents. Many of the purported requirements it cites

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impose no obligations at all; States are free to decline to participate. 8 Others are in reality

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funding conditions, not direct orders. 9 Yet others serve academic and record-keeping goals.

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8

See, e.g., 54 Stat. 401 (1940) (directing federal government to collect data, without imposing
any state or local obligation); 17 Stat. 466 (1873) (same); 42 U.S.C. § 11133(b) (state medical
boards can opt out of reporting and be replaced by another agency); 42 U.S.C. § 14072(g)(4)
(repealed sex offender reporting requirement that States could avoid entirely by choosing not to
implement a qualifying registration program); Pub. L. No. 91-452, § 806 (“does not require
states to provide any information,” Philadelphia, 2018 WL 2725503, at *33 n.10).
9
See, e.g., Printz, 521 U.S. at 936 (O’Connor, J., concurring) (explaining that 23 U.S.C. § 402
“condition[s] States’ receipt of federal funds for highway safety program on compliance with
federal requirements”); 20 U.S.C. § 4013 (information submitted as part of application for
federal funds, see id. § 4014).
8
Brief of Amici Curiae
the Partnership and CHIRLA

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These are “purely ministerial” because they do not facilitate the federal government’s on-theground implementation of any federal regulatory program. Printz, 521 U.S. at 936 (O’Connor,
J., concurring). 10 As a result, they do not force state officials to “tak[e] the blame” for the
“defects” of any federal program. Id. at 930. The information in this case is clearly different. 11

5
Finally, the government suggests that a sweeping exception for information mandates
6
“makes sense,” because subpoenas involve information too. PI Reply 19. That is a nonsequitur.
7
Of course States, like everyone else, must comply with judicial subpoenas and other court orders.
8
See Standley v. DOJ, 835 F.2d 216, 218 (9th Cir. 1987) (“A grand jury is an arm of the judicial
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branch of government.”). In fact, the Supremacy Clause “presupposes” as much. New York, 505
U.S. at 179. But “[t]he Constitution contains no analogous grant of authority to Congress.” Id.
The government also suggests that it can issue administrative subpoenas to States, so it must be
able to demand systematic information sharing. PI Reply 19-20. But it offers no reason to think
an agency could lawfully use subpoenas to conscript States to participate in the ongoing
administration of a federal program, in a manner analogous to its preemption theories. 12
The Court should reject the suggestion that information mandates are categorically

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exempt from the anti-commandeering rule—something no court has ever held.
10

See 34 U.S.C. § 41307 (statistical data regarding missing children); 15 U.S.C. § 2224
(information collected for FEMA publication). The few cases upholding reporting requirements
have all addressed these kinds of purely ministerial duties to “forward[] . . . information to a
federal data bank.” Freilich v. Upper Chesapeake Health, 313 F.3d 205, 214 (4th Cir. 2002); see
United States v. Brown, 2007 WL 4372829, at *5 (S.D.N.Y. Dec. 12, 2007) (requirement to
forward information to “a national database”). In contrast to this case, 52 U.S.C. § 20701 et
seq.—which addresses records about federal elections—is an exercise of Congress’s “unique”
Elections Clause authority. Gonzalez v. Arizona, 677 F.3d 383, 391 (9th Cir. 2012) (en banc),
aff’d, 570 U.S. 1 (2013).
11
In any event, all of these statutes were enacted before Printz established that anticommandeering applied to state executive officers. Notably, the statute Murphy struck down
was passed in 1992, Pub. L. No. 102–559, during the same period when Congress enacted many
of the statutes the government cites here. Congress’s decision to enact a handful of informationsharing statutes in the “few decades” before Printz is simply not “probative” of their
constitutionality. Printz, 521 U.S. at 917-18.
12
The cursory analysis of In re Tax Liabilities of Does, 2011 WL 6302284, at *4 (E.D. Cal. Dec.
15, 2011), issued ex parte, does not address any of the anti-commandeering cases. In any event,
it addressed a one-time enforcement operation rather than an ongoing, indefinite reliance on state
officers to effectuate a federal program. And Oregon Prescription Drug Monitoring Program v.
DEA, 860 F.3d 1228, 1236 (9th Cir. 2017), addressed no Tenth Amendment argument at all.
9
Brief of Amici Curiae
the Partnership and CHIRLA

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II.

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Even If It Could, Congress Has Not Preempted the Values Act.
Even if Congress could bar states from opting out of the deportation regime, Congress

would have to make that intention “unmistakably clear in the language of the statute.” Gregory,
501 U.S. at 460. The government does not dispute that Gregory applies to its preemption

5
theories. See Dkt. 73-2, at 16. To satisfy Gregory, the government’s interpretation “must be
6
plain to anyone reading the Act.” Id. at 467. Where Gregory applies, it is typically “fatal.”
7
Nixon v. Missouri Mun. League, 541 U.S. 125, 141 (2004).
8
A. The United States Barely Defends Its Interpretation of 8 U.S.C. § 1373.
9
The government does not explain why its broad reading of § 1373 is not just plausible,

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but “unmistakably clear in the language of the statute.” 501 U.S. at 460. That omission is
striking, but not surprising.

interpretation “is simply impossible to square with the statutory text.” Philadelphia, 2018 WL
2725503, at *33-35; Steinle v. San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).
The government offers little in response. It does not deny that its interpretation of § 1373

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As multiple courts have now held, the government’s present

is virtually limitless, Cal. PI Opp. 13-14; Dkt. 112, at 4-7. It ignores the many statutes showing
that Congress knows how to refer to information beyond citizenship and immigration status
when it wants to, Cal. PI Opp. 12 & n.11; Dkt. 112, at 13-14. It does not address the many failed

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efforts to expand § 1373 to reach the information it seeks through this lawsuit, Dkt. 112, at 14.

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And it has no response to Roach v. Mail Handlers Ben. Plan, 298 F.3d 847, 850 (9th Cir. 2002)

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(interpreting “relate to” narrowly to preserve “the historic police powers of the States”). 13

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B. Implied Preemption Is Foreclosed by Gregory.

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Even if Congress could preempt a State from opting out of a federal program, it would

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have to do so explicitly. This is a dispositive basis to reject the obstacle preemption claim.

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13

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Unlike Roach, Appling did not involve preemption, and it had not occasion to consider the
impact of Gregory. PI Reply 16 (citing Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215
(S. Ct. June 4, 2018)). Appling is also consistent with California’s argument that § 1373 extends
beyond a person’s technical immigration status to include items that “indicate” a person’s status,
Appling, slip op. at 9—a narrow set of information such as verbal admissions, copies of
immigration documents, and the like. See Cal. PI Opp. 12-13; Dkt. 112, at 9; Dkt. 73-2, at 15.
In all events, Appling did not endorse any limitless interpretation like the government’s.
10
Brief of Amici Curiae
the Partnership and CHIRLA

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Implied preemption in this context would violate the rule that federal intrusions into core
state prerogatives require “unmistakably clear” textual statements. Gregory, 501 U.S. at 460.
Congress must be “explicit” if it wants to “readjust the balance of state and national authority.”
Bond, 134 S. Ct. at 2089 (quotation marks and alteration omitted). That principle forecloses the

5
argument that Congress can silently, through implication only, “alter[] the State’s governmental
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structure” and preempt States from exercising fundamental sovereign rights, like declining to
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help administer a federal program. City of Abilene v. FCC, 164 F.3d 49, 52 (D.C. Cir. 1999).
8
Courts do “not simply infer this sort of congressional intrusion.” Id. Indeed, Gregory usually
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forecloses applying even an express requirement to a core state function. Where Congress has
made no preemptive statement at all—as the government’s implied preemption theory
assumes—there is no assurance that Congress “has in fact faced” the gravity of interfering with
the “substantial sovereign powers” of the States. Gregory, 501 U.S. at 461 (citation omitted).
The government has not even mentioned Gregory.

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imposing obstacle preemption where Gregory applied. And it certainly has not found a case
applying obstacle preemption to a State’s policy limiting its own agents’ participation in a
federal program. 14 The Court should refuse to take that unprecedented step.
C. Even If It Could, Congress Has Not Impliedly Preempted the Values Act.

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Even if it could preempt the Values Act through implication only, Congress has not made

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any such intention “clear and manifest.” Wyeth v. Levine, 555 U.S. 555, 565 (2009).
1.

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It has not found a single case

The government has entirely ignored a dispositive reason to reject its implied

preemption claim: Congress has already determined what it deemed to be the proper scope of
preemption in § 1373. Cal. PI Opp. 22. An express preemption statute like § 1373 is “powerful
evidence” against implied preemption, because it shows that Congress has already decided which

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14

For instance, Gregory did not apply to the preemption claims in Arizona v. United States, 567
U.S. 387 (2012), because none of the challenged statutes exercised a State’s fundamental
prerogatives to structure its government or limit its participation in a federal program. Just the
opposite: The Court struck down three state laws that invaded federal prerogatives by enacting
the State’s “own immigration policy.” Id. at 408; see id. at 403 (alien registration requirement);
id. at 406-07 (alien employment prohibition); id. at 410 (authority to arrest immigrants).
11
Brief of Amici Curiae
the Partnership and CHIRLA

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state laws “posed an obstacle to its objectives.” Wyeth, 555 U.S. at 574-75 (rejecting obstacle
preemption on this basis). Fully cognizant of DHS’s statutory duties, Congress chose only to
preempt state policies that limit the sharing of “citizenship or immigration status” information. 8
U.S.C. § 1373(a). And Congress has consistently refused to go further, rejecting numerous
proposals to expand § 1373. 15 The case for implied preemption is therefore “particularly weak”

6
here. Wyeth, 555 U.S. at 575 (quotation marks omitted). Whatever its constitutionality, see
7
supra, § 1373’s intentional narrowness “creates a ‘reasonable inference’ that Congress did not
8
intend to preempt state . . . laws that do not fall within [its] scope.” Atay v. Cty. of Maui, 842
9
10

F.3d 688, 704 (9th Cir. 2016) (quoting Freightliner Co. v. Myrick, 514 U.S. 280, 288 (1995)). 16
Moreover, the government’s obstacle preemption claim would render § 1373 entirely

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unnecessary. If it were really true that the INA already implicitly preempted state policies that
“restrict[] state and local officials . . . from cooperating” with DHS, PI Mem. 25, there would
have been no need to enact § 1373, which singles out a small subset of those same policies for
preemption. The government’s theory thus “would render statutory text superfluous.” Clark v.
Rameker, 134 S. Ct. 2242, 2249 (2014). It makes no attempt to justify that result.
2. The statutes the government invokes confirm just how weak its obstacle preemption

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claim is. Its brief relies exclusively on statutes that direct DHS—but not the States—to detain

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and remove noncitizens after their release from criminal custody. E.g., 8 U.S.C. §§ 1226(c)(1),

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1231(a)(2), 1231(a)(4), 1357(d). Its basic theory is that DHS’s job would be easier if California

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volunteered its own resources to help DHS, and so the INA implicitly requires California to offer

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that assistance. 17 See, e.g., PI Mem. 35-36 (state assistance saves DHS “time and resources”); PI

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15

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See, e.g., H.R. 2964, 114 Cong. § 5 (2015); H.R. 2278, 113 Cong. § 114 (2013).
While § 1373 does not “foreclose[]”implied preemption principles, Geier v. Am. Honda Motor
Co., 529 U.S. 861, 872-73 (2000), it is strong evidence against implied preemption because it
shows that Congress “knew how” but did not “expressly forbid state laws” like the Values Act.
Chicanos Por La Causa v. Napolitano, 558 F.3d 856, 867 (9th Cir. 2009).
17
The government also criticizes an exception in the Values Act that allows transfers when DHS
obtains a judicial warrant. PI Reply 14; see Cal. Gov’t Code § 7284.6(a)(4). But that provision
simply conditions the State’s participation, which the State is free to withhold completely. If it
can decline altogether, surely it can also identify the circumstances in which it will participate.
12
Brief of Amici Curiae
the Partnership and CHIRLA
16

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Reply 13 (state assistance means “minimal effort by federal officials”). Those assertions are
plainly insufficient to overcome the presumption against preemption. “The Supreme Court has
warned that obstacle preemption analysis does ‘not justify a freewheeling judicial inquiry into
whether a state statute is in tension with federal objectives.’” Atay, 842 F.3d at 704.

5
None of the statutes remotely supports preemption. For instance, § 1357(d) directs DHS
6
to “take custody of the alien” after state criminal custody ends, and is the only place the INA
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mentions notification of release dates. See Arizona, 567 U.S. at 410 (explaining that § 1357(d)
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allows States to “respond[] to requests for information about when an alien will be released”).
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Critically, § 1357(d) lets States decide whether to “request[]” this form of cooperation. 8 U.S.C.
§ 1357(d)(3). Thus, the INA explicitly leaves notification of release dates to States’ discretion.
Deference to States’ choices is echoed in numerous other provisions throughout the INA,
which explicitly allow States to limit their participation in the deportation scheme. See, e.g., id.
§ 1357(g)(1) (allowing participation “to the extent consistent with State and local law”); id. §
1252c(a) (similar); id. § 1103(a)(10) (participation only “with the consent of” state officials); id.
§ 1226(d)(3) (federal “assistance” at the “request” of a State). These cooperative provisions
“undermine[] any inference of interference with Congress’s method.” Chinatown Neighborhood
Ass’n v. Harris, 794 F.3d 1136, 1143 (9th Cir. 2015) (rejecting obstacle preemption where “the
federal scheme is cooperative” and invites States to make their own choices).

20

Next, the government relies heavily on 8 U.S.C. § 1231(a)(4), which prohibits removal

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while a noncitizen is serving a criminal sentence. PI Reply 12-13; PI Mem. 24; MTD Opp. 11,

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13. But § 1231(a)(4) serves to protect States’ criminal justice systems from federal interference,

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in recognition of the States’ paramount authority over “the punishment of local criminal

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activity.” Bond, 134 S. Ct. at 2089. It exudes deference to the States, which are empowered to

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decide whether earlier removal is “in the best interest of the State.” 8 U.S.C. § 1231(a)(4)(B)(ii).

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The government’s theory would turn Congress’s solicitude on its head.

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Section 1231(a)(1) works the same way, directing DHS to pursue removal after criminal

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custody ends. 8 U.S.C. § 1231(a)(1)(B)(iii). Its function is to protect, not conscript, state criminal
Brief of Amici Curiae
the Partnership and CHIRLA

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justice systems. And it only imposes obligations on DHS, not the States. Moreover, even by its
terms it bears no relationship to most (if not all) releases from state detention: In virtually all
cases, a person’s “release date from state or local criminal custody” can only “trigger” the 90-day
removal period (PI Mem. 24) when the person received a final removal order while in state

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custody. Id. § 1231(a)(1)(B). Yet that rarely, if ever, happens in California jails. See DOJ, Inst.
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Hearing Prog., at 2 (2018) (showing no California jails with an in-custody removal program),
7
https://bit.ly/2rfubHM. The government itself has produced no evidence that there is anyone in
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California jails subject to the Values Act whose release date triggers a 90-day removal period.
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Similarly, § 1226(c) simply provides for DHS—not the States—to detain certain

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noncitizens when they are released from criminal custody. The Values Act, of course, leaves
DHS free to arrest, detain, and remove noncitizens, just without certain assistance from
California. The government argues that without state aid, some people will not be arrested by
DHS immediately upon release. PI Mem. 24, 27. But even if that happens, and DHS does not
arrest them until later, the only possible consequence is that they become eligible for a bond
hearing. 18 See Preap v. Johnson, 831 F.3d 1193, 1206 (9th Cir. 2016), cert. granted, 138 S. Ct.
1279; 8 U.S.C. § 1226(a) (providing bond hearings). The possibility of a bond hearing in some
cases is a slender reed on which to base the government’s preemption challenge. 19
III.

19

The Values Act Does Not Violate Intergovernmental Immunity.

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The immunity doctrine cannot, consistent with the Tenth Amendment, prevent a State

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from choosing not to administer a federal program. That would wipe out States’ most essential

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Tenth Amendment prerogative, and it would do so automatically, without any indication of

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The government disputes even that much. On appeal in Preap, it argues that mandatory
detention applies “regardless of when the arrest occurred,” U.S. Br., Nielsen v. Preap, No. 161363, at 9 (June 2018), in which case the Values Act would never impact mandatory detention.
19
Even that connection is minimal. Noncitizens are only subject to mandatory detention under §
1226(c) if they have committed an enumerated crime, and the exceptions in the Values Act allow
for transfer and notification based on long list of crimes. Cal. Gov’t Code § 7282.5. The
government’s § 1226(c) argument therefore only applies to the narrow set of people who have
committed crimes that trigger § 1226(c) but not a Values Act exception. Such occasional and
hypothetical scenarios do not establish preemption. See Harris, 794 F.3d at 1142 (no preemption
based on “the prospect of a ‘modest impediment’ to general federal purposes”) (citation omitted).
14
Brief of Amici Curiae
the Partnership and CHIRLA

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preemptive intent from Congress. Unsurprisingly, the government cannot find a single case that
applies the immunity doctrine to a State’s decision to opt out of a federal program.
The government argues that the Values Act violates intergovernmental immunity because
it “treat[s] federal immigration officials worse than other entities.” PI Mem. 31. But that is true

5
every time a State exercises its anti-commandeering prerogative. After Printz, for example, a
6
sheriff who refused Brady Act background checks would be treating ATF officials worse than
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others who asked for background checks. If the government were right, Congress could force
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States to administer programs simply by seeking assistance of the same sort that States provide
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to other entities. That does not square with Printz, New York, NFIB, or the “prerogative to reject
Congress’s desired policy” that they recognize. NFIB, 567 U.S. at 581; Dkt. 73-2, at 23-24.
Even if immunity could apply here, it would not bar the Values Act. First, Congress
retains “the primary role” in resolving immunity questions. North Dakota v. United States, 495
U.S. 423, 435 (1990) (plurality op.). And Congress has thoroughly addressed States’ role in the
deportation scheme. See, e.g., 8 U.S.C. §§ 1373, 1357(d), 1357(g). Where “Congress has made
its assessment of the federal interest” and allows the States leeway, its “action sufficiently
qualifies the intergovernmental immunity of the United States to permit the state to make the
distinction it has.” United States v. Lewis Cty., 175 F.3d 671, 676 (9th Cir. 1999). Second, there

19

are “significant differences” between immigration enforcement and criminal enforcement. Davis

20

v. Michigan Dep’t of Treasury, 489 U.S. 803, 816 (1989) (discrimination permissible under these

21

circumstances).

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residents in a way that finds no parallel in ordinary law enforcement. Cal. Gov’t Code § 7284.2

23

(listing its unique harms). Accordingly, the State’s decision to treat immigration differently

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would be fully “justified” even if intergovernmental immunity applied. Davis, 489 U.S. at 816

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(citation omitted).

Immigration enforcement instills fear and destroys cooperation with state

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Brief of Amici Curiae
the Partnership and CHIRLA

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Dated: June 12, 2018

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Julia Harumi Mass (SBN 189649)
Angelica H. Salceda (SBN 296152)
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Jessica Karp Bansal (SBN 277347)
NATIONAL DAY LABORER
ORGANIZING NETWORK
674 South LaFayette Park Place
Los Angeles, CA 90057
Tel: [phone]
Fax: [phone]
[e-mail]
Angela Chan (SBN 250138)
ASIAN AMERICANS ADVANCING
JUSTICE - ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, CA 94404
Tel: [phone]
[e-mail]
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Tel: [phone]
[e-mail]

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Brief of Amici Curiae
the Partnership and CHIRLA

Respectfully submitted,
/s/ Spencer E. Amdur
Spencer E. Amdur (SBN 320069)
Cody H. Wofsy (SBN 294179)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Omar C. Jadwat (pro hac vice)
Lee Gelernt (pro hac vice)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
[e-mail]
[e-mail]
Michael Kaufman (SBN 254575)
Jennifer Pasquarella (SBN 263241)
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Tel: [phone]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on June 12, 2018, I electronically filed the foregoing Brief of Amici
Curiae with the Clerk for the United States District Court for the Eastern District of California by
using the CM/ECF system. A true and correct copy of this brief has been served via the Court’s

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CM/ECF system on all counsel of record.
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7

/s/ Spencer E. Amdur
Spencer E. Amdur

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Brief of Amici Curiae
the Partnership and CHIRLA