United States of America v. State of California et al

Filing 193

ORDER signed by District Judge John A. Mendez on 7/4/2018 DENYING-IN-PART and GRANTING-IN-PART 2 Motion for Preliminary Injunction. The Court DENIES Plaintiff's Motion to enjoin California Government Code Sections 12532, 7284.6(a)(1)(C) & (D), and 7284.6(a)(4), and California Labor Code Section 90.2. The Court GRANTS Plaintiff's Motion and PRELIMINARILY ENJOINS the State of California, Governor Brown, and Attorney General Becerra from enforcing California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. (Donati, J)

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 1 of 60
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE UNITED STATES OF AMERICA,

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No.

2:18-cv-490-JAM-KJN

Plaintiff,

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v.

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STATE OF CALIFORNIA, et al.,

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ORDER RE: THE UNITED STATES OF
AMERICA’S MOTION FOR PRELIMINARY
INJUNCTION

Defendants.

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I.

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INTRODUCTION

Before this Court is the United States of America’s

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(“Plaintiff” or “United States”) Motion for a Preliminary

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Injunction (“Motion”).

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enjoining enforcement of certain provisions of three laws enacted

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by the State of California (“Defendant” or “California”)1 through

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Assembly Bill 103 (“AB 103”), Assembly Bill 450 (“AB 450”) and

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Senate Bill 54 (“SB 54”).

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this Court preliminarily enjoin the following provisions of

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Plaintiff seeks an Order from this Court

Specifically, Plaintiff requests that

Because Edmund Gerald Brown Jr., Governor of California, and
Xavier Becerra, Attorney General of California, are sued in their
official capacities only, the Court will address all three named
defendants as “California” or “Defendant.”
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California law: (1) California Government Code Section 12532 (as

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added by AB 103); (2) California Government Code Sections 7285.1

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and 7285.2 and California Labor Code Sections 90.2 and 1019.2 as

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applied to private employers only (as added by AB 450); and (3)

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California Government Code Sections 7284.6(a)(1)(C),

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7284.6(a)(1)(D), and 7284.6(a)(4) (as added by SB 54).

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claims that these statutes violate the Supremacy Clause of the

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United States Constitution, Art. VI, cl.2, and are invalid.

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Compl., ECF No. 1, ¶¶ 61, 63 & 65.

Plaintiff

Plaintiff argues that federal

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law preempts each provision because, in the area of immigration

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enforcement, California “lacks the authority to intentionally

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interfere with private citizens’ [and state and local employees’]

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ability to cooperate voluntarily with the United States or to

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comply with federal obligations.”

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Injunction (“Mot.”), ECF No. 2-1, at 2.

Motion for Preliminary

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Plaintiff also contends that California “has no authority to

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target facilities holding federal detainees pursuant to a federal

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contract for an inspection scheme to review the ‘due process’

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afforded during arrest and detention.”

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Plaintiff implores this Court to enjoin these state law

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provisions because they “stand as an obstacle to the

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accomplishment and execution of the full purposes and objectives

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of Congress and are therefore preempted by federal law.”

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3 (citations omitted).

Id.

Accordingly,

Id. at

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Defendant vigorously opposes Plaintiff’s motion for a

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preliminary injunction, see Opp’n, ECF No. 74, contending that

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these three state laws properly “allocate the use of limited law-

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enforcement resources, provide workplace protections, and protect
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the rights of [California’s] residents.”

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further argues that these statutes “are consistent with

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applicable federal law and do not interfere with the federal

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government’s responsibility over immigration.”

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claims that it “acted squarely within its constitutional

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authority when it enacted the law[s] [the United States seeks to

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enjoin] here[.]”

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Defendant, “conflict[] with federal law or undermine[] the

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federal government’s authority or ability to undertake

Id.

Id. at 1.

Id.

Defendant

Defendant

None of the state laws, according to

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immigration enforcement and all are consistent with the

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legislative framework [of the immigration laws and regulations].”

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Id.

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This Motion presents unique and novel constitutional issues.

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The Court must answer the complicated question of where the

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United States’ enumerated power over immigration ends and

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California’s reserved police power begins.

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resolve the issue of whether state sovereignty includes the power

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to forbid state agents and private citizens from voluntarily

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complying with a federal program.

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this Court to carefully examine the purposes and principles of

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the federalist system–a system, established by the Constitution,

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of dual sovereignty between the States and the Federal Government

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whose principal benefit may be “a check on abuses of government

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power.”

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The Court must also

Plaintiff’s Motion requires

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

Deciding these critical issues requires this Court to

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determine the proper balance between the twin powers of

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California and the United States.

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as the Federal Government is acting within the powers granted to
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The law is clear that so long

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it under the Constitution, Congress may impose its will on the

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States.

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interfere with the decision of the people of California, “it is

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incumbent upon [this Court] to be certain of [Congress’s] intent

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before finding that federal law overrides” the constitutional

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balance of federal and state powers.

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Id. at 460.

However, if Congress is going to preempt or

Id. (citation omitted).

If Congress intends to alter the usual constitutional
balance between the States and Federal Government it
must make its intention to do so unmistakably clear in
the language of the statute. . . . Congress should make
its intention clear and manifest if it intends to preempt the historic powers of [the State].

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Id. at 460–61 (quoting Atascadero State Hosp. v. Scanlon, 473

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U.S. 234, 242 (1985)) (quotation marks omitted).

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Applying these well-established principles of law to the

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present Motion, and as explained in detail below, this Court

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finds that AB 103, SB 54, and the employee notice provision of AB

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450 are permissible exercises of California’s sovereign power.

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With respect to the other three challenged provisions of AB 450,

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the Court finds that California has impermissibly infringed on

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the sovereignty of the United States.

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therefore denied in part and granted in part.

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II.

Plaintiff’s Motion is

Legal Standards

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A.

Preliminary Injunction Standard

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Plaintiff moves the Court to enjoin enforcement of the

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challenged state laws.

Before the Court can grant the requested

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relief, Plaintiff must establish—as to each challenged law—that

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it is likely to succeed on the merits of its claim, that it is

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likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of the equities tips in its favor, and
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that an injunction is in the public interest.

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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Circuit, an injunction may also be proper “if there is a

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likelihood of irreparable injury to plaintiff; there are serious

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questions going to the merits; the balance of hardships tips

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sharply in favor of the plaintiff; and the injunction is in the

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public interest.”

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2012).

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Winter v. Nat.
In the Ninth

M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir.

Here, however, the nature of the requested relief increases

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Plaintiff’s burden.

An order enjoining the enforcement of state

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laws would alter the status quo and thus qualifies as a mandatory

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injunction.

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1182, 1194 (E.D. Cal. 2015).

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law and facts clearly favor its position, not simply that it is

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likely to succeed on its claims.

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F.3d 733, 740 (9th Cir. 2015).

Tracy Rifle & Pistol LLC v. Harris, 118 F. Supp. 3d
Plaintiff must establish that the

See Garcia v. Google, Inc., 786

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B.

Supremacy Clause

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In the United States, “both the National and State

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Governments have elements of sovereignty the other is bound to

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respect.”

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The Constitution establishes the balance between these sovereign

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powers and the Nation’s dual structure.

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declares that the “Constitution, and the Laws of the United

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States which shall be made in Pursuance thereof . . . shall be

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the supreme Law of the Land; and the Judges in every State shall

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be bound thereby[.]”

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Amendment limits the powers of the United States to those which

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the Constitution delegates, reserving the remaining powers to the

Arizona v. United States, 567 U.S. 387, 398 (2012).

The Supremacy Clause

U.S. Const. Art. VI, cl. 2.

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The Tenth

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States.

U.S. Const. amend. X (“The powers not delegated to the

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United States by the Constitution, nor prohibited by it to the

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States, are reserved to the States respectively, or to the

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people.”).

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legislate, Congress may only enact legislation under those powers

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enumerated in the Constitution.

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Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018) (“The Constitution

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confers on Congress not plenary legislative power but only

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certain enumerated powers.”); United States v. Morrison, 529 U.S.

Thus, rather than wielding a plenary power to

See Murphy v. Nat’l Collegiate

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598, 607 (2000) (“Every law enacted by Congress must be based on

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one or more of its powers enumerated in the Constitution.”).

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The United States’ broad power over “the subject of

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immigration and the status of aliens” is undisputed.

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567 U.S. at 394.2

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enactment which in any way deals with aliens is a regulation of

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immigration and thus per se pre-empted by this constitutional

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power, whether latent or exercised.”

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351, 355 (1976) superseded by statute on other grounds as

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recognized in Arizona, 567 U.S. at 404.

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1.

Arizona,

“But the Court has never held that every state

DeCanas v. Bica, 424 U.S.

Obstacle Preemption

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Where Congress has the power to enact legislation it has the

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power to preempt state law, even in areas traditionally regulated

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by the States.

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at 460.

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2

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27
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See Arizona, 567 U.S. at 399; Gregory, 501 U.S.

Courts recognize three types of preemption: express

Unless quoting from another source, this Court will use the
term “immigrant” when referring to “any person not a citizen or
national of the United States.” Cf. 8 U.S.C § 1101(a)(3)
(defining “alien”). For persons who have not obtained lawful
immigration or citizenship status, the Court will use the term
“undocumented immigrants.”
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preemption, field preemption, and conflict preemption.

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Plaintiff’s preemption argument is primarily premised on the most

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enigmatic member of this doctrinal family, “obstacle” preemption—

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a species of conflict preemption.

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Conflict preemption is found in cases where it is physically

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impossible to comply with both federal and state regulations or

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in cases where the “challenged state law ‘stands as an obstacle

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to the accomplishment and execution of the full purposes and

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objectives of Congress.’ ”

Arizona, 567 U.S. at 399–400 (quoting

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Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

“What is a

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sufficient obstacle is a matter of judgment, to be informed by

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examining the federal statute as a whole and identifying its

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purpose and intended effects.”

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Council, 530 U.S. 363, 373 (2000).

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consider the entire scheme of the federal statute, including

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those elements expressed and implied.

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the act cannot otherwise be accomplished—if its operation within

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its chosen field else must be frustrated and its provisions be

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refused their natural effect—the state law must yield to the

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regulation of Congress within the sphere of its delegated power.”

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Id. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)).

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There is a strong presumption against preemption when

Crosby v. Nat’l Foreign Trade
The Court must examine and

Id.

“If the purpose of

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Congress legislates in an area traditionally occupied by the

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States.

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1141 (9th Cir. 2015).

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powers of the States’ are not superseded ‘unless that was the

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clear and manifest purpose of Congress.’ ” Arizona, 567 U.S. at

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400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136,
The Court presumes “ ‘the historic police

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(1947)); see Rice, 331 U.S. at 230 (When Congress legislates in a

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“field which the States have traditionally occupied[,] [] we

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start with the assumption that the historic police powers of the

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States were not to be superseded by the Federal Act unless that

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was the clear and manifest purpose of Congress.”).

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must be “unmistakably clear in the language of the statute,”

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Gregory, 501 U.S. at 460 (quoting Atascadero State Hosp. v.

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Scanlon, 473 U.S. 234 (1985)), as must the presence of an

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obstacle.

Such purpose

Chinatown Neighborhood Ass’n, 794 F.3d at 1141 (“[T]he

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California statute cannot be set aside absent ‘clear evidence’ of

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a conflict.”); see also Savage, 225 U.S. at 533 (1912) (“In other

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words, [the intent to supersede the State’s exercise of its

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police power] is not to be implied unless the act of Congress,

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fairly interpreted, is in actual conflict with the law of the

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state.”).

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sufficient obstacle—the repugnance must be “so direct and

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positive that the two acts cannot be reconciled or consistently

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stand together.”

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55 (1973) (quoting The Federalist No. 32, p. 243 (B. Wright ed.

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1961)); Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 10

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(1937).

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“Mere possibility of inconvenience” is not a

See Goldstein v. California, 412 U.S. 546, 554–

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101

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et seq., is “the comprehensive federal statutory scheme for

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regulation of immigration and naturalization.”

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at 353.

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the years by passing statutes like the Immigration Reform and

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Control Act (“IRCA”) and the Illegal Immigration Reform and

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Immigrant Responsibility Act (“IIRIRA” or “IIRAIRA”), among

DeCanas, 424 U.S.

Congress has amended and supplemented the scheme over

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others.

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state laws challenged in this case.

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Plaintiff argues that the INA, as amended, preempts the

2.

Mot. at 2–3, 11–32.

Intergovernmental Immunity

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The Supremacy Clause gives rise to another doctrine

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restricting States’ power: the doctrine of intergovernmental

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immunity.

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the United States directly or discriminate against the Federal

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Government or those with whom it deals.

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States, 495 U.S. 423, 435 (1990) (plurality op.).

Under this line of precedent, a State may not regulate

North Dakota v. United
“Since a

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regulation imposed on one who deals with the Government has as

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much potential to obstruct governmental functions as a regulation

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imposed on the Government itself, the Court has required that the

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regulation be one that is imposed on some basis unrelated to the

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object’s status as a Government contractor or supplier, that is,

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that it be imposed equally on other similarly situated

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constituents of the State.”

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The doctrine protects private entities and individuals even when

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the burdens imposed upon them are not then passed on to the

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Federal Government.

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U.S. 803, 814–15, 817 (1989) (finding a state tax system that

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favored state retirees over federal retirees violated

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intergovernmental immunity even though the tax arguably did not

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interfere with the Federal Government’s ability to perform its

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governmental functions) (citing Phillips Chem. Co. v. Dumas

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Indep. Sch. Dist., 361 U.S. 376, 387 (1960)).

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doctrine finds its most comfortable repose in tax cases, courts

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have extended its reach to other contexts.

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Dakota, 495 U.S. 423 (analyzing North Dakota’s liquor control

North Dakota, 495 U.S. at 437–38.

See Davis v. Michigan Dep’t of Treasury, 489

9

Though the

See, e.g., North

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regulations); Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir.

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2014) (analyzing a California law governing cleanup of a federal

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nuclear site); In re Nat’l Sec. Agency Telecomms. Records Litig.,

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633 F. Supp. 2d 892 (N.D. Cal. 2007) (analyzing state

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investigations into telecommunication carriers that concerned the

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alleged disclosures of customer records to the NSA).

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A targeted regulation is not invalid simply because it

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distinguishes between the two sovereigns.

“The State does not

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discriminate against the Federal Government and those with whom

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it deals unless it treats someone else better than it treats

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them.”

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United States, 460 U.S. 536, 544–545 (1983)).

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regulation should not be struck down unless it burdens the

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Federal Government (or those dealing with the Federal Government)

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more so than it does others.

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(finding a regulatory regime that did not disfavor the Federal

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Government could not be considered to discriminate against it).

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Furthermore, a regulation will survive if significant differences

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between the two classes justify the burden.

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815–17.

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treatment is directly related to, and justified by, significant

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differences between the two classes.”

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quotation marks omitted).

North Dakota, 495 U.S. at 437–38 (quoting Washington v.
Accordingly, a

North Dakota, 495 U.S. at 439

Davis, 489 U.S. at

“The relevant inquiry is whether the inconsistent []

Id. at 816 (citation and

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C.

Tenth Amendment

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The Tenth Amendment limits Congress’s legislative authority

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to those powers enumerated in the Constitution.

Absent from this

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list of powers “is the power to issue direct orders to the

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governments of the States.”

Murphy, 138 S. Ct. at 1476.
10

Thus,

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in addition to erecting a higher wall against preemption, the

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Tenth Amendment restrains Congress’s ability to impose its will

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upon the States directly.

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The Supreme Court’s so-called “anticommandeering” doctrine

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recognizes this check on Congressional power.

Congress may not

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directly compel States to enact a regulation or enforce a federal

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regulatory program, conscript state officers for such purpose, or

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prohibit a State from enacting laws.

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States, 505 U.S. 144, 188 (1992) (“The Federal Government may not

See New York v. United

10

compel the States to enact or administer a federal regulatory

11

program.”); Printz v. United States, 521 U.S. 898, 935 (1997)

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(“Today we hold that Congress cannot circumvent that prohibition

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by conscripting the State’s officers directly.”); Murphy, 138 S.

14

Ct. at 1478 (“The PASPA provision at issue here—prohibiting state

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authorization of sports gambling—violates the anticommandeering

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rule. That provision unequivocally dictates what a state

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legislature may and may not do.”).

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to perform discrete, ministerial tasks violates the doctrine.

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Printz, 521 U.S. at 929–30.

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Even requiring state officers

The reasons behind the anticommandeering doctrine are

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several.

See Murphy, 138 S. Ct. at 1477 (Part III-B).

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the rule reflects “the Constitution’s structural protections of

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liberty.”

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the sovereigns, it prevents the accumulation of excessive power

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and “reduce[s] the risk of tyranny and abuse from either front.”

26

Gregory, 501 U.S. at 458.

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from passing the costs and burdens of implementing a federal

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program onto the States.

Printz, 521 U.S. at 921.

First,

By balancing power between

Second, the doctrine prevents Congress

Printz, 521 U.S. at 930.
11

Third, the

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doctrine promotes accountability; it ensures that blame for a

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federal program’s burdens and defects falls on the responsible

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government.

4

enforcement officers], not some federal official, who will be

5

blamed for any error (even one in the designated federal

6

database) that causes a purchaser to be mistakenly rejected.”).

7

These reasons, among others, counsel that courts must adhere to

8

the strictures of the rule even where a Congressional act serves

9

important purposes, is most efficiently effectuated through state

Id. (“And it will likely be the [state chief law

10

officers, or places a minimal burden upon the State.

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“It is the very principle of separate state sovereignty that such

12

a law offends, and no comparative assessment of the various

13

interests can overcome that fundamental defect.”

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15
16
17

III.
A.

Id. at 932.

Id.

OPINION

Likelihood of Success on the Merits
1.

Assembly Bill 103

Approved by the Governor and filed with the Secretary of

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State on June 27, 2017, Assembly Bill 103 added Section 12532 to

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the California Government Code and directs the Attorney General

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to review and report on county, local, and private locked

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detention facilities in which noncitizens are housed or detained

22

for purposes of civil immigration proceedings in California.

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Cal. Gov’t Code § 12532.

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conduct a review of such facilities by March 1, 2019.

25

Code § 12532(b).

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conditions of confinement, the standard of care and due process

27

provided to the individuals housed or detained in the facilities,

28

and the circumstances around their apprehension and transfer to

It directs the Attorney General to
Cal. Gov’t

This review must include a review of the

12

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the facility.

2

the same deadline—the Attorney General must provide a

3

comprehensive report of his findings to the Legislature, the

4

Governor, and the public.

5

furtherance of this objective, the Attorney General “shall be

6

provided all necessary access for the observations necessary to

7

effectuate [these] reviews . . . , including, but not limited to,

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access to detainees, officials, personnel, and records.”

9

Gov’t Code § 12532(c).

10

Cal. Gov’t Code § 12532(b)(1).

Additionally—by

Cal. Gov’t Code § 12532(b)(2).

In

Cal.

Plaintiff argues that this review and reporting requirement

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interferes with the Federal Government’s exclusive authority in

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the area of immigrant detention.

13

decision whether to pursue removal is entrusted to the Federal

14

Government’s discretion, California’s efforts to assess the

15

process afforded to immigrant detainees poses an obstacle,

16

Plaintiff contends, to administering the federal immigration

17

scheme.

18

contemplate any role for the facility itself, or for states and

19

localities, in determining which aliens are properly subject to

20

detention or the terms and conditions of that detention.”

21

18.

22

Id. at 19–20.

Mot. at 18–19.

Because the

“Federal law,” it argues, “does not

Id. at

Defendant responds that the Legislature passed AB 103 in

23

reaction to growing concerns of egregious conditions in

24

facilities housing civil detainees.

25

Holly Cooper and Def. RFJN, Exh. K (Office of Inspector General,

26

Management Alert on Issues Requiring Immediate Action at the Theo

27

Lacy Facility in Orange, California, OIG-17-43-MA, March 6,

28

2017)).

Opp’n at 6 (citing Decl. of

Several amici echo these concerns.
13

See See Br. for

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Nat’l Health Law Program, et al., as Amici Curiae, ECF No. 104;

2

Br. for Immigrant Legal Res. Ctr., et al., as Amici Curiae, ECF

3

No. 126; Br. for Nat’l Immigr. Law Ctr., et al., as Amici Curiae,

4

ECF No. 136.

5

requires fall well within the Attorney General’s broad

6

constitutional powers to enforce state laws and conduct

7

investigations relating to subjects under his jurisdiction.

8

Opp’n at 6 (citing Cal. Const. art. V, § 13; Cal. Gov’t Code

9

§ 11180).

Defendant argues the review and reporting AB 103

Rather than enacting a new regulatory scheme or

10

imposing substantive requirements, AB 103 “simply authorizes

11

funding” to address issues the Attorney General already has the

12

authority to review in response to increased concerns in this

13

area.

14

(“Trans.”), ECF No. 189, at 25:2–13.

Id. at 7, 30; June 20, 2018, Hearing Transcript

15

The Court finds no indication in the cited portions of the

16

INA that Congress intended for States to have no oversight over

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detention facilities operating within their borders.

18

U.S.C. § 1231(g)(1)-(2); 8 U.S.C. § 1103(a)(11).

19

detention facility contracts Defendant provided to the Court

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expressly contemplate compliance with state and local law.

21

Melton Decl., Exhs. M–S (filed under seal), ECF No. 81.

22

contracts demonstrate that California retains some authority over

23

the detention facilities.

24

characterization, AB 103’s review process does not purport to

25

give California a role in determining whether an immigrant should

26

be detained or removed from the country.

27

contemplates increased transparency and a report that may serve

28

as a baseline for future state or local action.

See 8

Indeed, the

These

Contrary to Plaintiff’s

14

The directive

At this point,

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what that future action might be is subject to speculation and

2

conjecture.

3

The review and reporting requirement contemplated in AB 103

4

is different from the state licensing requirements struck down in

5

Leslie Miller and Gartrell.

6

352 U.S. 187, 190 (1956); Gartrell Const. Inc. v. Aubry, 940 F.2d

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437 (9th Cir. 1991).

8

that an Arkansas statute imposing licensing requirements on a

9

federal contractor interfered with the federal government’s power

See Leslie Miller, Inc. v. Arkansas,

In Leslie Miller, the Supreme Court held

10

to select contractors and schedule construction, and therefore

11

conflicted with the federal law regulating procurement.

12

at 190.

13

injunction of a similar licensing requirement as applied to a

14

federal contractor in California.

15

found that the Federal Government already considered many of the

16

factors involved in the State’s licensing determination during

17

its own “responsibility” determination and held that, under

18

Leslie Miller, the licensing requirement was preempted.

19

438–41.

20

made a direct determination of Gartrell’s responsibility,

21

California may not exercise a power of review by requiring

22

Gartrell to obtain state licenses.”

23

352 U.S.

Thirty-five years later, the Ninth Circuit upheld an

Gartrell, 940 F.2d at 438.

It

Id. at

The Circuit reasoned: “Because the federal government

Id. at 441.

Unlike state licensing regulations, AB 103 does not impose

24

any substantive requirements upon detention facilities.

For all

25

its bark, the law has no real bite.

26

General to channel an authority he already wields to an issue of

27

recent State interest.

28

these reviews, which is of little or no consequence.

It directs the Attorney

The facility need only provide access for

15

Given the

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 16 of 60
1

Attorney General’s power to conduct investigations related to

2

state law enforcement—a power which Plaintiff concedes, Trans. at

3

15:11–16:5—the Court does not find this directive in any way

4

constitutes an obstacle to the federal government’s enforcement

5

of its immigration laws or detention scheme.

6

There is, however, one federal regulation that might

7

directly conflict with Government Code Section 12532(c).

8

C.F.R. § 236.6, no one—including state or local government

9

entities or any privately operated detention facility—who obtains

10

information relating to any detainee, “shall disclose or

11

otherwise permit to be made public the name of, or other

12

information relating to, such detainee.”

Under 8

13
14
15
16
17
18
19
20

It continues:

Such information shall be under the control of the
Service and shall be subject to public disclosure only
pursuant to the provisions of applicable federal laws,
regulations and executive orders. Insofar as any
documents or other records contain such information,
such documents shall not be public records. This
section applies to all persons and information
identified or described in it, regardless of when such
persons obtained such information, and applies to all
requests for public disclosure of such information,
including requests that are the subject of proceedings
pending as of April 17, 2002.
8 C.F.R. § 236.6 (Information regarding detainees).

21

According to Plaintiff, this regulation establishes that

22

information regarding detainees belongs solely to the Federal

23

Government and that facilities violate the regulation by turning

24

such information over to the Attorney General.

25

at 9.

26

information published with the rule in the Federal Register,

27

wherein the Immigration and Naturalization Service explained that

28

“the rule guarantees that information regarding federal detainees

Mot. at 22; Reply

For additional support, Plaintiff quotes the supplementary

16

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 17 of 60
1

will be released under a uniform federal scheme rather than the

2

varying laws of the fifty states.”

3

29, 2003).

4

68 Fed. Reg. 4364, 4366 (Jan.

Defendant counters that there is no conflict because the

5

regulation prohibits only the public disclosure of information

6

about detainees, not disclosure to other government entities.

7

Opp’n at 30–31.

8

reviews in his capacity as the chief law officer of the State,”

9

and “not as a member of the public,” Defendant maintains there is

Because the Attorney General “conducts these

10

no conflict.

11

does not provide for disclosure of detainee information to the

12

public.

13

if not all” of the information in question remains confidential

14

under state law.

15

Id.

Id.

Defendant points out that AB 103, on its face,

Further, such disclosure is unlikely because “much

Id.

The Court agrees with Defendant that there is no conflict

16

apparent on the face of Section 12532(c).

The federal regulation

17

at issue is most naturally read to prohibit public disclosures of

18

information, not the provision of information to other

19

governmental entities or law enforcement.

20

information published in the Federal Register supports this

21

interpretation.

22

rule governs the public disclosure . . . of the name and other

23

information relating to any immigration detainee[.]”), 4365

24

(“These provisions plainly authorize the Attorney General . . .

25

to provide by regulation that persons housing INS detainees on

26

behalf of the federal government shall not publicly disclose the

27

names and other information regarding those detainees.”), 4367

28

(“Executive Order 13132[:] . . . This rule merely pertains to the

8 C.F.R. § 236.6.

The

68 Fed. Reg. 4364 , 4364 (“Summary: This final

17

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 18 of 60
1

public disclosure of information concerning Service detainees

2

. . . .

3

government entities of responsibility for the public release of

4

information relating to any immigration detainee being housed or

5

otherwise maintained or provided service on behalf of the

6

Service.

7

Service with regard to all Service detainees.”).

8

cited cases do not broaden the scope of the rule; each case

9

concerned public disclosure of detainee information, not the

In effect, the rule will relieve state or local

Instead, the rule reserves that responsibility to the
Plaintiff’s

10

provision of information to another government entity.

11

De La Frontera, Inc. v. Clarke, 373 Wis. 2d 348 (2017) (finding

12

records concerning detainees statutorily exempt from disclosure

13

under Wisconsin’s public records law); Comm’r of Corr. v. Freedom

14

of Info. Comm’n, 307 Conn. 53 (2012) (finding former detainee’s

15

records exempt from Connecticut’s Freedom of Information Act);

16

ACLU of New Jersey v. Cnty. of Hudson, 352 N.J. Super. 44 (2002)

17

(finding § 236.6 preempts New Jersey’s Right-to-Know Law to the

18

extent it requires public disclosure of information regarding INS

19

detainees).

20

See Voces

Plaintiff nevertheless contends that California’s Attorney

21

General is a member of the public as contemplated by the

22

regulation.

23

unaware of, any judicial decision interpreting the regulation to

24

restrict information sharing with government entities or law

25

enforcement.

26

would fall into the hands of state and local government entities

27

through their contractual relationships with the federal

28

government.

But Plaintiff did not identify, and the Court is

The regulation contemplates that such information

In light of the California Attorney General’s role
18

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 19 of 60
1

in state law enforcement, and without any authority to the

2

contrary, the Court does not find a conflict, express or implied,

3

between the access required under Government Code Section

4

12532(c) and 8 C.F.R. § 236.6.

5

Finally, the Court finds AB 103 is not invalid under the

6

doctrine of intergovernmental immunity.

Plaintiff argues the law

7

violates this doctrine because it imposes a review scheme on

8

facilities contracting with the federal government, only.

9

characterization is valid.

This

However, the burden placed upon the

10

facilities is minimal and Plaintiff’s evidence does not show

11

otherwise.

12

inspections are burdensome).

13

more burdensome than reviews required under California Penal Code

14

§§ 6030, 6031.1.

15

differently than the State treats other detention facilities,

16

Plaintiff has not shown the State treats other facilities better

17

than those contractors.

18

State does not discriminate against the Federal Government and

19

those with whom it deals unless it treats someone else better

20

than it treats them.”).

21

See Homan Decl. at ¶ 60 (summarily stating that the
Importantly, the review appears no

Thus, even if AB 103 treats federal contractors

North Dakota, 495 U.S. at 437–38 (“The

Plaintiff is not likely to succeed on the merits of this

22

claim. Its motion for a preliminary injunction as to AB 103 is

23

denied.

24

2.

25

Assembly Bill 450

The regulation of employment traditionally falls within the

26

States’ police power:

27

///

28

///
19

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 20 of 60
1

States possess broad authority under their police
powers to regulate the employment relationship to
protect workers within the State. Child labor laws,
minimum and other wage laws, laws affecting
occupational health and safety, and workmen’s
compensation laws are only a few examples.

2
3
4
5

DeCanas v. Bica, 424 U.S. 351, 356 (1976) (decision superseded by

6

statute).
AB 450 imposes various requirements on public and private

7
8

employers with respect to immigration worksite enforcement

9

actions.

2017 Cal. Stat., ch. 492 (A.B. 450).

It prohibits

10

employers from providing voluntary consent to an immigration

11

enforcement agent to enter nonpublic areas of a place of labor or

12

to access, review, or obtain the employer’s employee records.

13

Cal. Gov’t Code §§ 7285.1, 7285.2.

14

provide notice to their employees of any impending I-9 (or other

15

employment record) inspection within 72 hours of receiving notice

16

of that inspection.

17

prohibits employers from reverifying the employment eligibility

18

of current employees when not required by federal law.

19

Code § 1019.2.

20

severable.

It requires employers to

Cal. Lab. Code § 90.2.

Lastly, AB 450

Cal. Lab.

As passed, AB 450 states that its provisions are

2017 Cal. Stat., ch. 492, Sec. 6 (A.B. 450).

Plaintiff challenges AB 450 as applied to private employers

21
22

only,

23

above-noted additions to state law pose an obstacle to

24

immigration enforcement objectives under the Immigration Reform

25

and Control Act (“IRCA”) and the INA.

26

Compl. ¶¶ 35, 61, Trans. at 10:2–19, arguing that the

“Congress enacted IRCA as a comprehensive framework for

27

‘combatting the employment of illegal aliens.’ ”

28

U.S. at 404.

Arizona, 567

IRCA imposes criminal sanctions on employers who
20

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 21 of 60
1

knowingly hire, recruit, refer, or continue to employ

2

unauthorized workers, but does not impose criminal sanctions on

3

employees.

4

correct instruction to draw from the text, structure, and history

5

of IRCA is that Congress decided it would be inappropriate to

6

impose criminal penalties on aliens who seek or engage in

7

unauthorized employment.”).

8

General to establish procedures for complaints and

9

investigations.

8 U.S.C. § 1324a; Arizona, 567 U.S. at 404–07 (“The

The statute authorizes the Attorney

8 U.S.C. § 1324a(e)(1).

It also confers

10

authority upon immigration officers and administrative law judges

11

to be given “reasonable access to examine evidence of any person

12

or entity being investigated” and to compel by subpoena the

13

attendance of witnesses and the production of evidence.

14

§ 1324a(e)(2).

15

8 U.S.C.

The Supreme Court has found IRCA preempts additional

16

penalties on employers (via express preemption) and criminal

17

sanctions on unauthorized workers for seeking or performing work

18

(via conflict preemption).

19

held IRCA does not preempt: a provision of Arizona law allowing

20

suspension and revocation of businesses licenses based on

21

employing unauthorized workers, Chamber of Commerce of U.S. v.

22

Whiting, 563 U.S. 582 (2011); an Arizona law requiring that every

23

employer verify the employment eligibility of hired employees

24

through the E-Verify system, id. (as amended by IIRIRA); and

25

various labor protections, with some limits on the damages an

26

unlawfully employed immigrant is entitled to receive, see, e.g.,

27

Salas v. Sierra Chem. Co., 59 Cal.4th 407 (2014) (holding the

28

State’s extension of employee protections to all workers

Arizona, 567 U.S. 387.

21

Courts have

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 22 of 60
1

regardless of immigration status is preempted only to the extent

2

it authorizes lost pay awards for any period after an employer

3

discovers the employee’s ineligibility to work in the United

4

States).

5
6

a.

Prohibitions on Consent

The Court finds AB 450’s prohibitions on consent, Cal. Gov’t

7

Code §§ 7285.1, 7285.2., troubling due to the precarious

8

situation in which it places employers.

9

Despite that concern, the question before the Court is limited to

Trans. at 92:9–18.

10

Plaintiff’s Supremacy Clause claim and the relationship between

11

the State and the Federal Government.

12

Plaintiff’s preemption argument rests on the notion that

13

Congress presumed immigration enforcement officers could gain

14

access to worksites by consent of the employer.

15

Plaintiff contends the entire enforcement scheme is premised on

16

this authority.

Mot. at 11–13.

Id.

17

Defendant does not dispute that immigration enforcement

18

agents could, prior to AB 450, gain access to nonpublic areas of

19

a worksite through employer consent.

20

state legislators acknowledged that immigration officers could do

21

so under existing law.

22

Committee Report), ECF No. 171-10.

23

entry and access provisions do not conflict with IRCA because

24

“IRCA was not intended to diminish states’ labor protections.”

25

Opp’n at 26.

26

judicial warrant (or subpoena, for documents), or when otherwise

27

required by federal law, Defendant claims the law does not deny

28

the “reasonable access to examine evidence” required under IRCA.

In enacting AB 450, the

See Pl. Exh. J (Senate Judiciary
But, Defendant argues, the

Because AB 450 permits entry and access pursuant to

22

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 23 of 60
1

See 8 U.S.C. § 1324a(e)(2).

2

The arguments are wanting on both sides.

By attempting to

3

narrow the Court’s focus to the criminal penalties at issue under

4

IRCA, Defendant fails to acknowledge that immigration enforcement

5

officers might also seek to investigate civil violations of the

6

immigration laws or pursue investigative activities outside of

7

IRCA’s provisions.

8

2018, hearing on its Motion, Trans. at 114:20–115:11, IRCA added

9

new sections to the already existing law governing immigration

10

enforcement activities; Defendant did not address any of these

11

other grants of power.

12

its proposition that AB 450’s judicial warrant requirement and

13

savings clause together constitute “reasonable access” under

14

IRCA.

15

workers, the Court finds that the warrant requirement may impede

16

immigration enforcement’s investigation of employers or other

17

matters within their authority to investigate.

18

As Plaintiff pointed out at the June 20,

Further, Defendant cites no authority for

Irrespective of the State’s interest in protecting

Even though these two subsections of AB 450 interfere with

19

immigration enforcement’s historical practices, the Court

20

hesitates to find the statutes preempted.

21

analysis, the Court presumes “ ‘the historic police powers of the

22

States’ are not superseded ‘unless that was the clear and

23

manifest purpose of Congress.’ ” Arizona, 567 U.S. at 400.

24

governing labor relations and the workplace generally fall within

25

the States’ police powers.

26

immigration officers to enter places of labor upon employer

27

consent, nor has Congress authorized immigration enforcement

28

officers to wield authority coextensive with the Fourth

In preemption

Laws

Congress has not expressly authorized

23

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 24 of 60
1

Amendment.

Although Plaintiff’s cited cases show instances of

2

immigration enforcement lawfully exercising its investigative

3

authority in accordance with the Fourth Amendment, none of these

4

cases establish that Congress has expressly or impliedly granted

5

immigration enforcement agents such authority.

6

Delgado, 466 U.S. 210 (1984) (noting that the federal immigration

7

officers were lawfully present at a worksite because they

8

obtained either a warrant or the employer’s consent to their

9

entry); Zepeda v. I.N.S., 753 F.2d 719, 725 (9th Cir. 1983)

See I.N.S. v.

10

(explaining that Congress, by authorizing the INS “to interrogate

11

any alien or person believed to be an alien as to his right to be

12

or to remain in the United States” without a warrant, authorized

13

the INS “to question aliens to the fullest extent permissible

14

under the [F]ourth [A]mendment”) (citing 8 U.S.C. § 1357(a)(1));

15

Int’l Molders & Allied Workers’ Local Union No. 164 v. Nelson,

16

799 F.2d 547 (9th Cir. 1986) (striking part of an injunction

17

order that required every INS warrant to “contain a specific

18

description of each suspect to be questioned and be based on

19

‘probable cause to believe that such person is an illegal

20

alien’ ” because it misstated the standard for non-detentive

21

questioning”).

22

essential pillar of the enforcement regime.

23

preemption may be “implied,” but precedent counsels against

24

reading Congressional “presumptions” or “assumptions” into the

25

statutes without a more robust record than that presently before

26

the Court.

27
28

Nor do these cases show consent to be an
Certainly, obstacle

Ultimately, however, the Court need not resolve the
preemption issue because Plaintiff is likely to succeed on its
24

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 25 of 60
1

Supremacy Clause claim under the intergovernmental immunity

2

doctrine.

3

though the laws regulate employers and not the Federal Government

4

directly.

5

361 U.S. at 387 (holding that state taxes imposed on lessees of

6

federal land were invalid where those taxes were more burdensome

7

than taxes imposed on lessees of state land).

8

employers who choose to allow immigration enforcement agents to

9

enter or access documents, AB 450 imposes significant and

The doctrine applies in these circumstances even

See Davis, 489 U.S. at 814, 817; Phillips Chem. Co.,

For those

10

escalating fines.

11

employers to a fine of $2,000 to $5,000 for a first violation and

12

$5,000 to $10,000 for each subsequent violation); Cal. Gov’t Code

13

§ 7285.2(b) (same).

14

employers who acquiesce in a federal investigation but not on

15

those who do not.

16

See Cal. Gov’t Code § 7285.1(b) (subjecting

These fines inflict a burden on those

Defendant argues the application of the doctrine in these

17

circumstances would expand its reach.

18

intergovernmental immunity cases evaluating indirect

19

discrimination have typically concerned laws that imposed burdens

20

on entities contracting with, or supplying something to, the

21

Federal Government, thus “dealing” with the United States in an

22

economic sense.

23

It notes that the

Trans. at 93:1–95:6.

The Court is not convinced that the term “deal” is

24

circumscribed in the manner Defendant suggests.

25

intergovernmental immunity cases, the imposition of civil fines

26

(like the imposition of taxes) turns on whether an employer

27

chooses to work with federal immigration enforcement.

28

fines are a clear attempt to “meddl[e] with federal government
25

As in other

These

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 26 of 60
1

activities indirectly by singling out for regulation those who

2

deal with the government.”

3

903.

4

is neutral convincing.

5

“any person or entity seeking to enforce the civil immigration

6

laws, whether federal, state, or local”).

7

enforcement is the province of the Federal Government, it demands

8

no stretch of reason to see that Government Code Sections 7285.1

9

and 7285.2, in effect, target the operations of federal

10

See In re NSA, 633 F. Supp. 2d at

The Court does not find Defendant’s argument that the law
Opp’n at 29 (arguing the law applies to

Given that immigration

immigration enforcement.

11

The Court finds that a law which imposes monetary penalties

12

on an employer solely because that employer voluntarily consents

13

to federal immigration enforcement’s entry into nonpublic areas

14

of their place of business or access to their employment records

15

impermissibly discriminates against those who choose to deal with

16

the Federal Government.

17

Plaintiff’s claim as to these two subsections and Plaintiff is

18

likely to succeed on the merits.

19

b.

20

The law and facts clearly support

Notice Requirement

AB 450 also added a provision to the California Labor Code

21

requiring employers to provide notice to their employees “of any

22

inspections of I-9 Employment Eligibility Verification forms or

23

other employment records conducted by an immigration agency

24

within 72 hours of receiving notice of the inspection.”

25

Lab. Code § 90.2(a)(1).

26

requisite notice and instructs employers to provide a copy of the

27

inspection notice to any employee upon reasonable request.

28

§ 90.2(a)(1)–(3).

Cal.

It specifies the contents of the

26

Id.

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 27 of 60
1

Labor Code Section 90.2 also requires employers to provide

2

each current, affected employee with the results of the

3

inspection within 72 hours of receipt, including any obligations

4

of the employer and affected employee arising from the results.

5

Id. § 90.2(b).

6

employee identified by the immigration agency inspection results

7

to be an employee who may lack work authorization, or an employee

8

whose work authorization documents have been identified by the

9

immigration agency inspection to have deficiencies.”

The statute defines an “affected employee” as “an

Id.

10

§ 90.2(b)(2).

11

violations, except that the section “does not require a penalty

12

to be imposed upon an employer or person who fails to provide

13

notice to an employee at the express and specific direction or

14

request of the federal government.”

15

Employers are subject to civil penalties for

Id. § 90.2(c).

Plaintiff argues that this notice provision stands as an

16

obstacle to the implementation of federal law by aiming to thwart

17

immigration regulation.

18

investigations “will be less effective if the targets of the

19

investigations are warned ahead of time and kept abreast of the

20

status of the United States’ enforcement efforts.”

21

Reply at 5.

“Obviously,” it argues,

Mot. at 17.

This argument convolutes the purposes of IRCA enforcement

22

actions.

IRCA primarily imposes obligations and penalties on

23

employers, not employees.

24

California Labor Code section only requires employers to provide

25

notice to employees if the employer itself has received notice of

26

an impending inspection.

27

thus already been “warned.”

28

employers are to be given at least three business days’ notice

See 8 U.S.C. § 1324a.

The new

The “targets” of the investigation have
Pursuant to federal regulations,

27

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 28 of 60
1

prior to an I-9 inspection.

2

The state law merely extends this prior notice to employees.

3

Given IRCA’s focus on employers, the Court finds no indication—

4

express or implied—that Congress intended for employees to be

5

kept in the dark.

6

See 8 C.F.R. § 274a.2(b)(2)(ii).

The Court declines to adopt Plaintiff’s cynical view of the

7

law.

As amici point out, notice provides employees with an

8

opportunity to cure any deficiencies in their paperwork or

9

employment eligibility.

See Br. for Cal. Labor Fed’n, et al., as

10

Amici Curiae, ECF No. 134.

11

to employers; the Court does not view an extension of that

12

courtesy to employees as an attempt to thwart IRCA’s goals.

13

Federal law affords such a courtesy

The notice provision also does not violate the

14

intergovernmental immunity doctrine.

15

consent, violations of this provision do not turn on the

16

employer’s choice to “deal with” (i.e., consent to) federal law

17

enforcement.

18

with the Federal Government, but for its failure to communicate

19

with its employees.

20

the contours of the intergovernmental immunity doctrine and

21

application would stretch the doctrine beyond its borders.

22

Court thus finds no merit to Plaintiff’s Supremacy Clause claim

23

as to California Labor Code Section 90.2.

24

a preliminary injunction as to this subdivision of AB 450 is

25

denied.

26
27
28

Unlike the prohibitions on

An employer is not punished for its choice to work

c.

This requirement does not readily fit into

The

Plaintiff’s motion for

Reverification Prohibition

California Labor Code Section 1019.2 limits an employer’s
ability to reverify an employee’s employment eligibility when not
28

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 29 of 60
1

required by law:

2

Except as otherwise required by federal law, a public
or private employer, or a person acting on behalf of a
public or private employer, shall not reverify the
employment eligibility of a current employee at a time
or in a manner not required by Section 1324a(b) of
Title 8 of the United States Code.

3
4
5
6

Cal. Lab. Code § 1019.2(a).

7

subsection is subject to a civil penalty of up to $10,000.

8

§ 1019.2(b)(1).

9

or applied to restrict or limit an employer’s compliance with a

10

memorandum of understanding governing the use of the federal E-

11

Verify system.”

12

An employer that violates this
Id.

The law should not be “interpreted, construed,

Id. § 1019.2(c).

Under IRCA, an employer faces liability for continuing to

13

employ an immigrant in the United States knowing that the

14

immigrant is (or has become) unauthorized with respect to such

15

employment.

16

continuing obligation to avoid knowingly employing an

17

unauthorized immigrant worker conflicts with California’s

18

prohibition on reverification.

19

Sausage Co., Inc. v. I.N.S., 925 F.2d 1153 (9th Cir. 1991)).

20

Defendant responds that there is no obstacle because the state

21

law contains an express savings clause for instances where

22

reverification is required by federal law and does not limit an

23

employer’s compliance with a memorandum of understanding

24

governing the use of the federal E-Verify system.

25

28.

26

8 U.S.C. § 1324a(2).

Plaintiff argues that this

Mot. at 17–18 (citing New El Rey

Opp’n at 26–

The Court finds Plaintiff is likely to succeed on the merits

27

of this claim, with the caveat that a more complete evidentiary

28

record could impact the Court’s analysis at a later stage of this
29

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 30 of 60
1

litigation.

2

information on how the verification system currently works in

3

practice and how the new law does or does not change those

4

practices.

5

prohibition on reverification appears to stand as an obstacle to

6

the accomplishment of Congress’s purpose in enacting IRCA.

7

Arizona, 567 U.S. at 399–400.

8

employer liability to instances when an employer fails to verify

9

employment eligibility when required to do so by federal law.

10

Instead, Congress broadened liability to encompass situations

11

when an employer knows one of its immigrant employees is or has

12

become unauthorized to work and continues to employ them.

13

single act, Congress premised criminal sanction on an employer’s

14

subjective knowledge and established a system through which

15

employers could verify compliance with the law.

16

Circuit explained in New El Rey Sausage Co.:

17
18
19
20
21
22

Neither party provided the Court with much

Based on a plain reading of the statutes, the

See

Congress could have chosen to tie

In a

As the Ninth

The inclusion in the statute of section 1324a(b)’s
verification system demonstrates that employers, far
from being allowed to employ anyone except those whom
the government had shown to be unauthorized, have an
affirmative duty to determine that their employees are
authorized. This verification is done through the
inspection of documents. Notice that these documents
are incorrect places the employer in the position it
would have been if the alien had failed to produce the
documents in the first place: it has failed to
adequately ensure that the alien is authorized.

23

925 F.2d at 1158.

Prohibiting employers from reverifying

24

employment eligibility complicates the subjective element of the

25

crime; e.g., could an employer who might otherwise be found to

26

“know” that one of its employees lacks authorization find shelter

27

behind the state law because it could not confirm its suspicion?

28

The law frustrates the system of accountability that Congress
30

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1

designed.

2

Based on the authority and evidence before the Court at this

3

juncture, which clearly support Plaintiff’s claim, the Court

4

finds Plaintiff is likely to succeed on the merits of its

5

Supremacy Clause claim against California Labor Code Section

6

1019.2(a).

7

3.

8
9

Senate Bill 54

SB 54 added several subsections to the California Government
Code.

Plaintiff seeks to enjoin three of these subsections.

The

10

first two challenged by Plaintiff prohibit state law enforcement

11

agencies from sharing

12

enforcement purposes:

certain information for immigration

13

(a) California law enforcement agencies shall not:

14

(1) Use agency or department moneys or personnel to
investigate, interrogate, detain, detect, or arrest
persons for immigration enforcement purposes, including
any of the following:

15
16
17
18
19
20
21
22
23
24
25

. . .
(C) Providing information regarding a person’s release
date or responding to requests for notification by
providing release dates or other information unless
that information is available to the public, or is in
response to a notification request from immigration
authorities in accordance with Section 7282.5.
Responses are never required, but are permitted under
this subdivision, provided that they do not violate any
local law or policy.
(D) Providing personal information, as defined in
Section 1798.3 of the Civil Code, about an individual,
including, but not limited to, the individual's home
address or work address unless that information is
available to the public.

26

Cal. Gov’t Code § 7284.6(a)(1)(C) & (D).

27

a savings clause expressly exempting the exchange of information

28

pursuant to 8 U.S.C. §§ 1373 and 1644.
31

Subsection (e) contains

Cal. Gov’t Code

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 32 of 60
1

§ 7284.6(e).

2
3

Plaintiff also challenges the subsection limiting transfers
of individuals to immigration authorities:

4

(a) California law enforcement agencies shall not:

5

. . .

6

(4) Transfer an individual to immigration authorities
unless authorized by a judicial warrant or judicial
probable cause determination, or in accordance with
Section 7282.5.

7
8
9

Cal. Gov’t Code § 7284.6(a)(4).

California Government Code

10

Section 7282.5 defines the circumstances in which law enforcement

11

officials have discretion to cooperate with immigration

12

authorities as referenced in subparagraphs (a)(1)(C) and (a)(4)

13

above, i.e., convictions for certain offenses.

14

a.

15

Direct Conflict with Section 1373

The primary, and most direct, conflict Plaintiff identifies

16

is that between the information sharing provisions and 8 U.S.C.

17

§ 1373 (“Section 1373”).3

18

prohibiting, or in any way restricting, “any government entity or

19

official from sending to, or receiving from, the Immigration and

20

Naturalization Service information regarding the citizenship or

21

immigration status, lawful or unlawful, of any individual.”

22

(emphasis added).

23

phrase “information regarding the citizenship or immigration

24

status, lawful or unlawful, of any individual,” Plaintiff

25

contends the prohibitions on sharing release dates and home and

Section 1373(a) bars States from

Arguing for a broad interpretation of the

26
27
28

In its Complaint, Plaintiff identifies another statute, 8
U.S.C. § 1644, that contains the same prohibition as Section
1373(a). Plaintiff does not discuss Section 1644 in its Motion.
32
3

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1
2

work addresses violates Section 1373.
Defendant argues that Section 1373 is unconstitutional under

3

the Supreme Court’s recent holding in Murphy.

138 S. Ct. 1461

4

(2018); see Supp. Br., ECF No. 156.

5

that Congress cannot dictate what a state legislature may and may

6

not do, “as if federal officers were installed in state

7

legislative chambers and were armed with the authority to stop

8

legislators from voting on any offending proposals.”

9

1482.

The Court in Murphy held

Id. at

The decision clarified that the Court’s anticommandeering

10

precedent extends to prohibitions on state legislative action.

11

Section 1373 does just what Murphy proscribes: it tells States

12

they may not prohibit (i.e., through legislation) the sharing of

13

information regarding immigration status with the INS or other

14

government entities.

15

Plaintiff argues that Murphy’s holding—and the

16

anticommandeering rule generally—does not reach statutes

17

requiring information sharing between government entities.

18

at 17–22.

19

require States to convey information to the Federal Government.

20

Reply at 19 n.14.

21

Condon for the principle that a regulation on States as the

22

owners of databases does not violate the Tenth Amendment.

23

at 18; 528 U.S. 141 (2000).

24

opinion distinguished federal laws regulating the provision of

25

information to the federal government from regulations requiring

26

forced participation of the States in administering a federal

27

program.

28

Reply

Plaintiff points to a number of federal statutes that

For additional support, it cites Reno v.

Reply

Plaintiff also notes that the Printz

Reno v. Condon involved a constitutional challenge to the
33

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1

Driver’s Privacy Protection Act (“DPPA”), which bars States from

2

disclosing a driver’s personal information without the driver’s

3

consent.

4

department of motor vehicles, and any officer, employee, or

5

contractor thereof, shall not knowingly disclose or otherwise

6

make available to any person or entity personal information . . .

7

about any individual obtained by the department in connection

8

with a motor vehicle record[.]”).

9

provision does not run afoul of the Tenth Amendment:

10
11
12
13
14
15

528 U.S. 141 (2000); see 18 U.S.C. § 2721(a) (“A State

The Supreme Court held the

[T]he DPPA does not require the States in their
sovereign capacity to regulate their own citizens. The
DPPA regulates the States as the owners of data bases.
It does not require the South Carolina Legislature to
enact any laws or regulations, and it does not require
state officials to assist in the enforcement of federal
statutes regulating private individuals. We
accordingly conclude that the DPPA is consistent with
the constitutional principles enunciated in New York
and Printz.

16

Id. at 150.

17

the DPPA is unconstitutional for its exclusive regulation of the

18

States, finding the Act to be generally applicable but not

19

deciding whether general applicability is required to survive

20

constitutional scrutiny.

21

The Court rejected South Carolina’s argument that

Id.

Plaintiff’s second source of support is dicta from Printz.

22

521 U.S. 898 (1997).

23

statute that required state law enforcement officers to assist in

24

administering a federal regulatory scheme.

25

issues to be resolved, Justice Scalia wrote:

26
27
28

The Printz Court evaluated a federal

In describing the

The Government points to a number of federal statutes
enacted within the past few decades that require the
participation of state or local officials in
implementing federal regulatory schemes. . . . [Some of
these statutes], which require only the provision of
34

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 35 of 60
1

information to the Federal Government, do not involve
the precise issue before us here, which is the forced
participation of the States’ executive in the actual
administration of a federal program.

2
3
4

Id. at 918.

Justice Scalia expressly distinguished the laws

5

under consideration in Printz from laws that require the

6

provision of information to the Federal Government.

7

left open the question of whether required information sharing

8

could constitute commandeering.

Thus, Printz

Defendant would have this Court follow the lead of the

9
10

district court in City of Philadelphia v. Sessions.

11

2018 WL 2725503 (E.D. Pa. June 6, 2018).

12

Plaintiff’s same—or substantially similar—arguments and found

13

Section 1373 unconstitutional under Murphy.

14

held that “on their face, [Section 1373(a) and (b)] regulate

15

state and local government entities and officials, which is fatal

16

to their constitutionality under the Tenth Amendment.”

17

*32.

18

did not involve a “statute that commanded state legislatures to

19

enact or refrain from enacting state law.”

20

Murphy Court’s discussion of Reno).

21

weight in the cited dicta from Printz, finding that Printz’s

22

holding supports the court’s conclusion as to Section 1373.

23

No. 17-3894,

That court rejected

Id. at *28-33.

It

Id. at

The district court distinguished Reno, explaining that Reno

Id. (noting the

It also refused to put much

The Court finds the constitutionality of Section 1373 highly

24

suspect.

Like the district court in City of Philadelphia, the

25

Court reads Section 1373 to dictate what states may and may not

26

do, in contravention of the Tenth Amendment.

27

question, however, is whether required information sharing

28

constitutes commandeering at all.
35

The more critical

Printz left this question

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 36 of 60
1
2

open.
One view, which amici, the California Partnership to End

3

Domestic Violence and the Coalition for Humane Immigrant Rights,

4

articulate, is that the context of the information sharing

5

affects the commandeering inquiry.

6

End Domestic Violence and the Coal. for Humane Immigrant Rights,

7

as Amici Curiae, ECF No. 182.

8

reporting requirements” might not constitute commandeering, but

9

“forced information sharing, where it facilitates the on-the-

See Br. for Cal. P’ship to

Amici argue “purely ministerial

10

ground, day-to-day administration of a federal program, runs

11

afoul of the anti-commandeering rule.”

12

that “none of [the] examples [Plaintiff cites to show that

13

Congress frequently calls on states to share relevant

14

information] remotely resembles a system of state officers

15

performing daily services for immigration agents.”

16

The Court agrees—cautiously, because these other provisions were

17

not heavily briefed—that the information sharing provisions cited

18

in footnote 14 of Plaintiff’s Reply do not appear to approximate

19

the level of state and local law enforcement integration into

20

federal immigration enforcement operations seen in this context.

21

Id. at 7.

They argue

Id. at 8.

Whether the constitutionality of an information sharing

22

requirement is absolute or whether it turns on how much the

23

requirement effectively integrates state law enforcement into a

24

federal regime is an interesting, and seemingly open,

25

constitutional question that may prove dispositive in another

26

case.

27

answer because the Court finds no direct conflict between SB 54

28

and Section 1373.

Here, however, the Court need not reach a definitive

36

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1

The state statute expressly permits information sharing in

2

accordance with Section 1373.

3

functionality of this clause depends on whether Section 1373 is

4

construed broadly to encompass information such as release dates

5

and addresses or narrowly to include only one’s immigration

6

status or citizenship (i.e., category of presence in the United

7

States, and whether an individual is a U.S. citizen, and if not,

8

the country of citizenship).

9

2725503, at *35.

10

Cal. Gov’t Code § 7284.6(e).

The

See City of Philadelphia, 2018 WL

Two district courts have held that Section 1373 must be

11

interpreted narrowly.

12

Francisco, the district court explained:

13
14
15
16
17
18
19
20
21
22

In Steinle v. City & Cnty. of San

Nothing in 8 U.S.C. § 1373(a) addresses information
concerning an inmate’s release date. The statute, by
its terms, governs only “information regarding the
citizenship or immigration status, lawful or unlawful,
of any individual.” 8 U.S.C. § 1373(a). If the
Congress that enacted the Omnibus Consolidated
Appropriations Act of 1997 (which included § 1373(a))
had intended to bar all restriction of communication
between local law enforcement and federal immigration
authorities, or specifically to bar restrictions of
sharing inmates’ release dates, it could have included
such language in the statute. It did not, and no
plausible reading of “information regarding . . .
citizenship or immigration status” encompasses the
release date of an undocumented inmate. Because the
plain language of the statute is clear on this point,
the Court has no occasion to consult legislative
history.

23

230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).

Plaintiff urges the

24

Court to limit its reliance on Steinle, which involved a

25

negligence claim and in which the United States did not appear as

26

a party.

27

in which the United States did appear—agreed with the Steinle

28

court’s analysis and concluded that the United States’ broad

But, the district court in City of Philadelphia—a case

37

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 38 of 60
1

interpretation “is simply impossible to square with the statutory

2

text.”

3

2018 WL 2725503, at *34.

Both district courts rejected the analysis in Bologna v.

4

City & Cnty. of San Francisco, the principal case Plaintiff cites

5

for persuasive value.

6

2011).

7

in Steinle, the California Appellate Court characterized Section

8

1373 as invalidating “all restrictions on the voluntary exchange

9

of immigration information between federal, state and local

192 Cal. App. 4th 429, 438–40 (Ct. App.

In analyzing a tort claim similar to the claim at issue

10

government entities and officials and federal immigration

11

authorities.”

12

this interpretation:

13
14
15
16
17
18
19
20
21
22
23
24
25

Id. at 438.

The Steinle court expressly disavowed

This Court is not bound by the state court’s
interpretation of federal law, and respectfully
disagrees with the Bologna court’s characterization of
the scope of § 1373(a). “As [the Supreme Court has]
repeatedly held, the authoritative statement is the
statutory text, not the legislative history or any
other extrinsic material. Extrinsic materials have a
role in statutory interpretation only to the extent
they shed a reliable light on the enacting
Legislature’s understanding of otherwise ambiguous
terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 568 (2005). The Ninth Circuit has
explained in some detail why the Constitution does not
permit giving legislative effect to language found only
in congressional reports that is not consistent with
the language of a statute itself: The principle that
committee report language has no binding legal effect
is grounded in the text of the Constitution and in the
structure of separated powers the Constitution created.
. . . Treating legislative reports as binding law also
undermines our constitutional structure of separated
powers, because legislative reports do not come with
the traditional and constitutionally-mandated political
safeguards of legislation.

26

Steinle, 230 F. Supp. 3d at 1014–15; see City of Philadelphia,

27

2018 WL 2725503, at *35 (disagreeing with Bologna).

28

The Court agrees with its fellow district courts that the
38

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1

plain meaning of Section 1373 limits its reach to information

2

strictly pertaining to immigration status (i.e. what one’s

3

immigration status is) and does not include information like

4

release dates and addresses.

5

Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001) (“It is

6

elementary that the meaning of a statute must, in the first

7

instance, be sought in the language in which the act is framed,

8

and if that is plain, . . . the sole function of the courts is to

9

enforce it according to its terms.”) (citation omitted).

10

A contrary interpretation would know no bounds.

See Carson Harbor Vill., Ltd. v.

The phrase

11

could conceivably mean “everything in a person’s life.”

See Br.

12

for City & Cnty. of San Francisco, as Amicus Curiae, ECF No. 112;

13

see also State ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015,

14

1035 (N.D. Cal. 2018) (“Under the INA, almost every bit of

15

information about an individual could be relevant to status,

16

particularly with respect to the right to asylum or as a defense

17

to removal.”).

18

broadly, it could have used broader language or included a list

19

to define the statute’s scope.

20

(prohibiting immigration enforcement officers from “permit[ting]

21

the use by or disclosure to anyone . . . of any information which

22

relates to an alien who is the beneficiary of an application for

23

relief under [certain sections of the INA]”).

24

naturally read “information regarding immigration status” to

25

include the types of information Plaintiff now seeks to

26

incorporate.

27

might assist immigration enforcement officers in their endeavors,

28

neither of these pieces of information have any bearing on one’s

If Congress intended the statute to sweep so

See, e.g., 8 U.S.C. § 1367(a)(2)

One cannot

While an immigrant’s release date or home address

39

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1
2

immigration or citizenship status.
The parties offer competing precedent to aid the Court in

3

interpreting the term “regarding.”

4

cautioned courts to refrain from interpreting the words “relate

5

to,” in an express preemption provision, too broadly.

6

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

7

Circuit explained:

8
9
10
11
12
13
14

In Roach, the Ninth Circuit

Roach v.
The

[I]n the context of a similarly worded preemption
provision in the Employee Retirement Income Security
Act (ERISA), the Supreme Court has explained that the
words “relate to” cannot be taken too literally. “If
‘relate to’ were taken to extend to the furthest
stretch of its indeterminacy, then for all practical
purposes pre-emption would never run its course, for
‘really, universally, relations stop nowhere.’ ”
Instead, “relates to” must be read in the context of
the presumption that in fields of traditional state
regulation “the historic police powers of the States
[are] not to be superseded by [a] Federal Act unless
that was the clear and manifest purpose of Congress.”

15

Id. at 849–50 (citations omitted).

16

instead, focus on the Supreme Court’s more recent interpretation

17

of the term “respecting” in Lamar, Archer & Cofrin, LLP v.

18

Appling. 138 S. Ct. 1752 (2018) (interpreting a provision in the

19

Bankruptcy Code excepting debts obtained by fraud from

20

discharge); Reply at 16.

21

“respecting” to have a broadening effect, instructing the Court

22

to read the relevant text expansively.

23

Court also observed that a limiting construction would

24

effectively read the term “respecting” out of the statute.

25

at 1761.

26

Plaintiff urges the Court to,

In Appling, the Court read the word

Id. at 1760.

The Supreme

Id.

The Court finds the law in Appling sufficiently distinct

27

from the law at issue here to limit the decision’s instructional

28

value.

The Appling Court was not called upon to determine the
40

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1

preemptive effect of a federal statute and thus did not have

2

presumptions against preemption to factor into its analysis.

3

Further, the Appling Court held that “a statement about a single

4

asset can be a ‘statement respecting the debtor’s financial

5

condition.’ ”

6

direct relation to and impact on aggregate financial condition,

7

so a statement about a single asset bears on a debtor’s overall

8

financial condition[.]”

9

above, a person’s address or release date has no direct relation

10
11

Id. at 1757.

It reasoned, “[a] single asset has a

Id. at 1761.

In contrast, as noted

to one’s immigration or citizenship status.
Unlike the law in Appling, a narrow reading of the phrase

12

“regarding immigration status” does not read “regarding” out of

13

the statute.

14

omission of the term “regarding” in Section 1373(c) as compared

15

to subsection (a).

16

obligation of federal immigration authorities in responding to

17

inquiries from other government entities, and an official record

18

of a person’s citizenship or immigration status is presumably

19

within their control.

20

San Francisco, as Amicus Curiae, at 9.

21

directed toward government entities and their officers, who might

22

possess information pertaining to an individual’s immigration

23

status but not hold an official record.

24

regarding” thus serves a purpose even when the statute is read

25

narrowly.

26

Plaintiff makes a similar argument by noting the

Mot. at 28.

Section 1373(c) governs the

Opp’n at 12–13; Br. for City and Cnty. of
Subsection (a) is

The phrase “information

In any event, neither Roach nor Appling involved a provision

27

like the one at issue in this case.

28

based on the analysis above, that “information regarding
41

The Court is convinced,

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 42 of 60
1

immigration or citizenship status” does not include an

2

immigrant’s release date or home and work addresses.

3

1373 and the information sharing provisions of SB 54 do not

4

directly conflict.

5

b.

6

Section

Obstacle Preemption

Apart from any direct conflict with Section 1373, Plaintiff

7

argues that “the structure of the INA makes clear that states and

8

localities are required to allow a basic level of information

9

sharing” and cooperation with immigration enforcement.

Mot. at

10

24.

11

requires “mandatory detention” for certain immigrants after their

12

release from criminal custody.

13

which instructs the Attorney General to remove an immigrant

14

within a period of 90 days after the immigrant has been ordered

15

removed.

16

detention during the removal period is mandatory.

17

1231(a)(2).

18

remove an [immigrant] who is sentenced to imprisonment until the

19

[immigrant] is released from imprisonment.

20

release, probation, or possibility of arrest or further

21

imprisonment is not a reason to defer removal.”

22

1231(a)(4)(A).

23

Plaintiff points to 8 U.S.C. § 1226(c)(1), a law that

It also cites 8 U.S.C. § 1231,

8 U.S.C. § 1231(a)(1)(A).

For certain immigrants,
8 U.S.C. §

With some exceptions “the Attorney General may not

Parole, supervised

8 U.S.C. §

Plaintiff argues that SB 54 undermines the system Congress

24

designed.

Mot. at 25.

The limits on information sharing and

25

transfers prevent or impede immigration enforcement from

26

fulfilling its responsibilities regarding detention and removal

27

because officers cannot arrest an immigrant upon the immigrant’s

28

release from custody and have a more difficult time finding
42

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1

immigrants after the fact without access to address information.

2

Id. at 25–27.

3

requests affords undocumented immigrants an opportunity to

4

abscond.

5

which SB 54 permits cooperation do not match the crimes under

6

federal law that may serve as the predicate for removability or

7

crimes for which detention is mandatory.

8

Additionally, it argues that requiring a judicial warrant or

9

judicial finding of probable cause is irreconcilable with the

It contends that limiting adherence to transfer

Plaintiff also points out that the subset of crimes for

Id. at 26.

10

INA, which establishes a system of civil administrative warrants

11

as the basis for immigration arrest and removal.

12

Id. at 30.

The Court disagrees and instead finds that California’s

13

decision not to assist federal immigration enforcement in its

14

endeavors is not an “obstacle” to that enforcement effort.

15

Plaintiff’s argument that SB 54 makes immigration enforcement far

16

more burdensome begs the question: more burdensome than what?

17

The laws make enforcement more burdensome than it would be if

18

state and local law enforcement provided immigration officers

19

with their assistance.

20

impeding.

21

used to commandeer state resources and subvert Tenth Amendment

22

principles.

23

states offer to assist federal efforts.

24

to assist in those activities will always make the federal object

25

more difficult to attain than it would be otherwise.

26

aside does not equate to standing in the way.

But refusing to help is not the same as

If such were the rule, obstacle preemption could be

Federal objectives will always be furthered if
A state’s decision not

Standing

27

Though not analyzing an obstacle preemption claim, the

28

Seventh Circuit recently expressed a similar view with respect to
43

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1

decisions to withhold assistance.

2

Sessions, 888 F.3d 272 (7th Cir. 2018).

3
4
5
6
7
8
9
10
11
12
13

See City of Chicago v.
The Circuit explained:

[T]he Attorney General repeatedly characterizes the
issue as whether localities can be allowed to thwart
federal law enforcement. That is a red herring.
First, nothing in this case involves any affirmative
interference with federal law enforcement at all, nor
is there any interference whatsoever with federal
immigration authorities. The only conduct at issue here
is the refusal of the local law enforcement to aid in
civil immigration enforcement through informing the
federal authorities when persons are in their custody
and providing access to those persons at the local law
enforcement facility. Some localities might choose to
cooperate with federal immigration efforts, and others
may see such cooperation as impeding the community
relationships necessary to identify and solve crimes.
The choice as to how to devote law enforcement
resources—including whether or not to use such
resources to aid in federal immigration efforts—would
traditionally be one left to state and local
authorities.

14

City of Chicago, 888 F.3d at 282 (analyzing conditions imposed on

15

federal grants).

16

adopting Plaintiff’s perspective of the laws.

17

This common-sense distinction militates against

The Court is also wary of finding preemption in the absence

18

of a “clear and manifest purpose of Congress” to supersede the

19

States’ police powers.

20

has not crossed over into the exclusively federal realm of

21

determining who may enter and remain within the United States.

22

SB 54 only governs the activities of the State’s own law

23

enforcement agencies.

24

immigration laws to exclusively regulate the subject of

25

immigration and the activities of federal immigration enforcement

26

officers, the Court sees no clear indication that Congress

27

intended to displace the States’ regulation of their own law

28

enforcement agencies.

See Arizona, 567 U.S. at 400.

California

Although Congress clearly intends its

44

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1

Despite Plaintiff’s urgings, this case does not mirror

2

Arizona v. United States.

567 U.S. 387 (2012).

Arizona sought

3

to impose additional rules and penalties upon individuals whom

4

Congress had already imposed extensive, and exclusive,

5

regulations.

6

restrictions upon immigrants.

7

remain subject to removal.

8

activities of state law enforcement, which Congress has not

9

purported to regulate.

SB 54 does not add or subtract any rights or
Immigrants subject to removal

SB 54, instead, directs the

Preemption is inappropriate here.

10

The Court’s reluctance to glean such a purpose from the

11

cited statutes is amplified because Congress indicated awareness

12

that state law might be in tension with federal objectives and

13

decided to tolerate those competing interests.

14

Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166–67 (1989)

15

(“The case for federal pre-emption is particularly weak where

16

Congress has indicated its awareness of the operation of state

17

law in a field of federal interest, and has nonetheless decided

18

to stand by both concepts and to tolerate whatever tension there

19

is between them.”) (citation and quotation marks omitted); see

20

also Wyeth v. Levine, 555 U.S. 555, 575 (2009) (quoting Bonito

21

Boats and finding that a plaintiff’s failure-to-warn claims were

22

not preempted by federal law).

23

See Bonito Boats,

First, in the portions of the INA where Congress provided

24

for cooperation between state and federal officials, it

25

conditioned cooperation on compliance with state law.

26

instance, 8 U.S.C. § 1252c(a) authorizes state and local law

27

enforcement officials to arrest and detain certain immigrants “to

28

the extent permitted by relevant State and local law.”
45

For

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1

Subsection (b) imposes an obligation on the Attorney General to

2

cooperate with states in providing information that would assist

3

state and local law enforcement, but does not impose any

4

corollary obligations on state or local law enforcement.

5

Similarly, 8 U.S.C. § 1357(g) authorizes the Attorney General to

6

enter into agreements with the State to perform immigration

7

officer functions, but only “to the extent consistent with State

8

and local law.”

9

Congress did not intend to preempt state law in this area.

10

These conditions on cooperation indicate that

Second, the primary mechanism—a “detainer”—by which

11

immigration enforcement agents solicit release dates, transfers,

12

and detention is a “request.”

13

25 (“To effectuate the INA’s provisions, DHS issues an

14

‘immigration detainer[.]’ ”).

15

“temporary detention” have been found to be a non-mandatory

16

“request,” despite the use of the word “shall” in the governing

17

provision.

18

F.3d 634, 640 (3d Cir. 2014) (“[N]o provisions of the [INA]

19

authorize federal officials to command local or state officials

20

to detain suspected aliens subject to removal.”); see also

21

Miranda-Olivares v. Clackamas Cnty., No. 3:12-CV-02317-ST, 2014

22

WL 1414305, at *7 (D. Or. Apr. 11, 2014) (following Galarza and

23

noting that the Ninth Circuit has interpreted detainer letters,

24

in the habeas corpus context, to be advisory in nature, not

25

imposing—or even allowing—a warden to hold a detainee at the end

26

of his term of imprisonment) (citing Garcia v. Taylor, 40 F.3d

27

299 (9th Cir. 1994)).

28

these requests demonstrates that the federal government has not

See 8 C.F.R. § 287.7(a); Mot. at

Even detainers soliciting

8 C.F.R. § 287.7(d); see Galarza v. Szalczyk, 745

The voluntary nature of any response to

46

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1
2

supplanted state discretion in this area.
Congress’s deliberate decision to condition enforcement

3

cooperation on consistency with state law, and the primary

4

mechanism by which immigration officials seek law enforcement

5

assistance being merely a “request,” counsels against implied

6

preemption in this area.

7

state law is absent from these provisions.

8

A clear and manifest purpose to preempt

Plaintiff argues that “Congress could have authorized the

9

federal government to take custody of aliens immediately, without

10

regard to the status of state criminal enforcement,” Reply at 22–

11

23, and that because it did not, the Court can infer that

12

Congress intended states to cooperate with immigration law

13

enforcement.

14

The Court can just as readily infer that Congress recognized the

15

States’ sovereign power to enforce their criminal laws and

16

thought interference would upset the balance in powers.

17

Reply to MTD at 1 (“It is not Congress that offers California the

18

‘opportunity’ to enforce state criminal laws[;] it is a right

19

inherent in California’s sovereignty.”).

20

often the case that an immigrant is not deemed removable or

21

inadmissible until after they have been convicted of a crime.

22

these cases, state process is a predicate to federal action.

23

The Ninth Circuit’s holding in Preap does not require a

The Court does not find such inference warranted.

See Def.

Furthermore, it is

24

different outcome.

25

2016) cert. granted sub nom. Nielsen v. Preap, 138 S. Ct. 1279

26

(2018).

27

provision only applies in cases when immigrants are “promptly”

28

detained after being released from custody.

In

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

The Preap court held that the INA’s mandatory detention

47

Id. at 1197.

Preap

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1

does not, however, require contemporaneous transfer for the

2

mandatory detention provision to apply.

3

securing custody does not preclude detention. It just makes

4

detention a discretionary decision rather than a mandatory

5

obligation.

6

that the operational challenges immigration enforcement agencies

7

may have faced following the Preap decision do not alter the

8

Court’s conclusions with respect to Congress’s clear and manifest

9

purpose.

10

And, a longer delay in

See id. at 1201; 8 U.S.C. § 1226.

The Court finds

The Court further finds that Tenth Amendment and

11

anticommandeering principles counsel against preemption.

Though

12

responding to requests for information and transferring

13

individuals to federal custody may demand relatively little from

14

state law enforcement, “[t]he issue of commandeering is not one

15

of degree[.]”

16

932 (“But where, as here, it is the whole object of the law to

17

direct the functioning of the state executive, and hence to

18

compromise the structural framework of dual sovereignty, such a

19

‘balancing’ analysis is inappropriate.

20

of separate state sovereignty that such a law offends, and no

21

comparative assessment of the various interests can overcome that

22

fundamental defect.”).

23

officers to perform discrete, ministerial tasks constitutes

24

commandeering.

25

have made responses to requests seeking information and/or

26

transfers of custody mandatory.

27

Trump, 250 F. Supp. 3d 497, 534 (N.D. Cal. 2017), (“The Executive

28

Order uses coercive means in an attempt to force states and local

Galarza, 745 F.3d at 644; see Printz, 521 U.S. at

It is the very principle

Under Printz, even enlisting state

Thus, it is highly unlikely that Congress could

See Cnty. of Santa Clara v.

48

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1

jurisdictions to honor civil detainer requests, which are

2

voluntary ‘requests’ precisely because the federal government

3

cannot command states to comply with them under the Tenth

4

Amendment.”) (focusing on requests for detention).

5

The Printz Court outlined several reasons why commandeering

6

is problematic, which parallel California’s concerns in enacting

7

SB 54.

8

program implementation from the Federal Government to the states.

9

Printz, 521 U.S. at 930.

The Court noted that commandeering shifts the costs of

The California Legislature enacted SB

10

54, in part, to divert California’s resources away from

11

supporting the Federal Government’s enforcement efforts.

12

stated:

13
14
15
16
17
18
19

It

(d) Entangling state and local agencies with federal
immigration enforcement programs diverts already
limited resources and blurs the lines of accountability
between local, state, and federal governments.
. . .
(f) This chapter seeks to ensure effective policing, to
protect the safety, well-being, and constitutional
rights of the people of California, and to direct the
state’s limited resources to matters of greatest
concern to state and local governments.

20

Cal. Gov’t Code § 7284.2 (Legislative findings and declarations).

21

Defendant contends that working with immigration enforcement

22

diverts resources from the States’ priorities.

23

see e.g., Hart Decl., ECF No. 75-3, at 4 (“[W]e are often faced

24

with staffing shortages that make even processing the additional

25

paperwork related to detainers difficult.”).

26

Opp’n at 15–16;

The Printz Court also explained that “even when States are

27

not forced to absorb the costs of implementing a federal program,

28

they are still put in the position of taking the blame for its
49

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1

burdensomeness and for its defects.”

2

will likely be the CLEO, not some federal official, who will be

3

blamed for any error (even one in the designated federal

4

database) that causes a purchaser to be mistakenly rejected.”).

5

521 U.S. at 930 (“And it

Here, when California assists federal immigration

6

enforcement in finding and taking custody of immigrants, it risks

7

being blamed for a federal agency’s mistakes, errors, and

8

discretionary decisions to pursue particular individuals or

9

engage in particular enforcement practices.

Under such a regime,

10

federal priorities dictate state action, which affects the

11

State’s relationship with its constituency and that

12

constituency’s perception of its state government and law

13

enforcement.

14

these perceptions have on the community’s relationship with local

15

law enforcement. See Cal. Gov’t Code § 7284.2 (“This trust is

16

threatened when state and local agencies are entangled with

17

federal immigration enforcement, with the result that immigrant

18

community members fear approaching police when they are victims

19

of, and witnesses to, crimes, seeking basic health services, or

20

attending school, to the detriment of public safety and the well-

21

being of all Californians.”); Br. for Current and Former

22

Prosecutors and Law Enforcement Leaders, as Amici Curiae, ECF No.

23

127; Br. for City of Los Angeles, as Amicus Curiae, ECF No. 128;

24

Br. for Cnty. of Los Angeles, et al., as Amici Curiae, ECF No.

25

129.

26

Indeed, Defendant and amici highlight the impact

Plaintiff discounts Defendant’s interest in extracting

27

itself from immigration enforcement, but fails to confront

28

California’s primary concern: the impact that state law
50

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1

enforcement’s entanglement in immigration enforcement has on

2

public safety.

3

the suppression of violent crime and preservation of community

4

safety.

5

influence the relationship between state law enforcement and the

6

community it serves.

7

the police underscores the delicate nature of this relationship.

8

Even perceived collaboration with immigration enforcement could

9

upset the balance California aims to achieve.

The historic police powers of the State include

In this power inheres the authority to structure and

The ebb of tensions between communities and

It is therefore

10

entirely reasonable for the State to determine that assisting

11

immigration enforcement in any way, even in purportedly passive

12

ways like releasing information and transferring custody, is a

13

detrimental use of state law enforcement resources.

14

However, because Congress has not required states to assist

15

in immigration enforcement—and has merely made the option

16

available to them—this case presents a unique situation.

17

Judge Orrick observed in State ex rel. Becerra v. Sessions: “No

18

cited authority holds that the scope of state sovereignty

19

includes the power to forbid state or local employees from

20

voluntarily complying with a federal program.”

21

1015, 1035 (N.D. Cal. 2018).

22

York concluded a state could not do so.

23

United States, 179 F.3d 29, 35 (2nd Cir. 1999) (“We therefore

24

hold that states do not retain under the Tenth Amendment an

25

untrammeled right to forbid all voluntary cooperation by state or

26

local officials with particular federal programs.”).

27

Nevertheless, the Supreme Court’s holding in Murphy undercuts

28

portions of the Second Circuit’s reasoning and calls its

As

284 F. Supp. 3d

The Second Circuit in City of New

51

City of New York v.

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 52 of 60
1

conclusion into question.

2

35 (distinguishing Section 1373 from the laws in Printz and New

3

York because the Section does not compel state and local

4

governments to enact or administer any federal regulatory program

5

or conscript them into federal service) with Murphy, 138 S. Ct.

6

at 1478 (holding the anticommandeering rule applies to

7

Congressional prohibitions on state actions in addition to

8

commands to take affirmative actions).

9

Circuit’s broad proclamations may be limited to the specific City

10

Executive Order at issue, procedural posture, and record in that

11

case.

12

Scholars, as Amici Curiae, ECF No. 132, at 13 (distinguishing

13

City of New York).

14

not binding on this Court.

15

Compare City of New York, 179 F.3d at

Further, the Second

See Br. for Admin. L., Const. L., Crim. L., and Immigr. L.

Regardless, the City of New York holding is

The Court finds that a Congressional mandate prohibiting

16

states from restricting their law enforcement agencies’

17

involvement in immigration enforcement activities—apart from,

18

perhaps, a narrowly drawn information sharing provision—would

19

likely violate the Tenth Amendment.

20

Sessions, 888 F.3d 272, 282 (7th Cir. 2018) (stating, in dicta:

21

“The choice as to how to devote law enforcement resources—

22

including whether or not to use such resources to aid in federal

23

immigration efforts—would traditionally be one left to state and

24

local authorities.”); Koog v. United States, 79 F.3d 452, 460

25

(5th Cir. 1996) (“Whatever the outer limits of state sovereignty

26

may be, it surely encompasses the right to set the duties of

27

office for state-created officials and to regulate the internal

28

affairs of governmental bodies.”).
52

See City of Chicago v.

The Tenth Amendment analysis

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 53 of 60
1

in Murphy supports this conclusion.

Murphy, 138 S. Ct. at 1478

2

(a prohibition on state legislation violates the

3

anticommandeering rule), 1481 (“[P]reemption is based on a

4

federal law that regulates the conduct of private actors, not

5

States.”); see New York, 505 U.S. at 166 (“[T]he Framers

6

explicitly chose a Constitution that confers upon Congress the

7

power to regulate individuals, not States.”).

8

the authority to direct state action in this manner, then

9

preemption cannot and should not be used to achieve the same

If Congress lacks

10

result.

The Supremacy Clause requires courts to hold federal law

11

supreme when Congress acts pursuant to one of its enumerated

12

powers; those powers do not include the authority to dictate a

13

state’s law enforcement policies.

14

Having concluded that California may restrict the assistance

15

its law enforcement agencies provide immigration enforcement, the

16

Court finds California’s choice to cooperate in certain

17

circumstances permissible.

18

(allowing California law enforcement agencies to provide

19

information regarding a person’s release date when that person

20

has been convicted of certain crimes), § 7284(a)(4) (permitting

21

California law enforcement agencies to transfer individuals to

22

immigration authorities when authorized by a judicial warrant or

23

judicial probable cause determination, or when the individual has

24

been convicted of certain crimes).

25

explained:

26
27
28

See Cal. Gov’t Code § 7284.6(a)(1)(C)

As the Seventh Circuit

[F]or the persons most likely to present a threat to
the community, City law enforcement authorities will
cooperate with ICE officials even in “sanctuary”
cities. The decision to coordinate in such
circumstances, and to refuse such coordination where
53

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1
2
3

the threat posed by the individual is lesser, reflects
the decision by the state and local authorities as how
best to further the law enforcement objectives of their
communities with the resources at their disposal.

4

City of Chicago, 888 F.3d at 281.

While the Court, again,

5

acknowledges that City of Chicago involved different claims than

6

those presented here, the Court agrees with the assessment.

7

as the State may restrict the assistance its law enforcement

8

officers provide immigration enforcement, the State may choose to

9

outline exceptions to that rule in accordance with its own law

Just

10

enforcement priorities and concerns.

11

concerned with the monetary liability law enforcement agencies

12

may face if they maintain custody of an individual for purposes

13

of transfer without a judicial warrant or probable cause

14

determination justifying that custody.

15

Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773, at *22–24

16

(C.D. Cal. Feb. 7, 2018) (“The LASD officers have no authority to

17

arrest individuals for civil immigration offenses, and thus,

18

detaining individuals beyond their date for release violated the

19

individuals’ Fourth Amendment rights.”); Br. for States and the

20

District of Columbia, as Amici Curiae, ECF No. 139 (“SB 54’s

21

[warrant requirement] is a reasonable way to protect the state

22

and its law enforcement agencies from monetary liability for

23

unlawfully detaining individuals requested to be transferred to

24

federal immigration authorities after their period of state

25

custody expires.”).

26

concern when it passed SB 54:

27
28

For example, California is

See Roy v. Cnty. of Los

The California Legislature expressed this

State and local participation in federal immigration
enforcement programs also raises constitutional
concerns, including the prospect that California
54

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1
2
3
4
5
6
7

residents could be detained in violation of the Fourth
Amendment to the United States Constitution, targeted
on the basis of race or ethnicity in violation of the
Equal Protection Clause, or denied access to education
based on immigration status. See Sanchez Ochoa v.
Campbell, et al. (E.D. Wash. 2017) 2017 WL 3476777;
Trujillo Santoya v. United States, et al. (W.D. Tex.
2017) 2017 WL 2896021; Moreno v. Napolitano (N.D. Ill.
2016) 213 F. Supp. 3d 999; Morales v. Chadbourne (1st
Cir. 2015) 793 F.3d 208; Miranda-Olivares v. Clackamas
County (D. Or. 2014) 2014 WL 1414305; Galarza v.
Szalczyk (3d Cir. 2014) 745 F.3d 634.

8

Cal. Gov’t Code § 7284.2(e).

Because California’s directive to

9

its law enforcement agencies is not preempted, the Court finds

10

its determination to make certain exceptions to the rule also

11

survives preemption analysis.
c.

12
13

Intergovernmental Immunity

The intergovernmental immunity doctrine has no clear

14

application to SB 54.

15

does not directly regulate federal immigration authorities.

16

SB 54 regulates state law enforcement; it

Plaintiff argues the information sharing and transfer

17

restrictions “apply only to requests made by federal entities[.]”

18

Mot. at 31.

19

‘immigration authorities’ to include, in addition to federal

20

officers, ‘state, or local officers, employees or persons

21

performing immigration enforcement functions,’ it also defines

22

‘immigration enforcement’ to mean ‘any and all efforts to

23

investigate, enforce, or assist in the investigation or

24

enforcement of any federal civil immigration law, and also

25

includes any and all efforts to investigate, enforce, or assist

26

in the investigation or enforcement of any federal criminal

27

immigration law that penalizes a person’s presence in, entry, or

28

reentry to, or employment in, the United States.’ ”

It claims that although “the statute defines

55

Id. (citing

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 56 of 60
1
2

the definitions in Cal. Gov’t Code § 7284.4).
The Court is not convinced that the intergovernmental

3

immunity doctrine extends to the State’s regulation over the

4

activities of its own law enforcement and decision to restrict

5

assistance with some federal endeavors.

6

in the parties’ briefs involve an analogous regulation.

7

preemption analysis above thus counsels against expanding the

8

doctrine to the present situation.

9

States, 495 U.S. 423, 435 (1990) (“The Court has more recently

None of the cases cited
The

North Dakota v. United

10

adopted a functional approach to claims of governmental immunity,

11

accommodating of the full range of each sovereign’s legislative

12

authority and respectful of the primary role of Congress in

13

resolving conflicts between the National and State

14

Governments.”).

15

Even if the doctrine might arguably apply to this situation,

16

Plaintiff has not shown it is likely to succeed on this claim.

17

First, Plaintiff has not shown that the laws uniquely burden

18

federal immigration authorities.

19

provisions permit sharing when the information is available to

20

the public.

21

has not identified any examples of similarly situated authorities

22

(i.e., civil law enforcement agencies) that the State treats

23

better than it does federal immigration authorities.

24

the Court agrees with Plaintiff that “federal, state, or local

25

officer[s] . . . performing immigration enforcement functions”

26

boils down to federal immigration enforcement, see Cal. Gov’t

27

Code § 7284.4, the Court finds the discrimination—if any—is

28

justified by California’s choice to divert its resources away

The information sharing

Cal. Gov’t Code § 7284.6(a)(1)(C)-(D).

56

Plaintiff

And while

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 57 of 60
1

from assisting immigration enforcement efforts.

As explained in

2

detail above, the purported “burden” here is California’s

3

decision not to help the Federal government implement its

4

immigration enforcement regime.

5

make this choice and the concerns that led California to adopt

6

this policy justify any differential treatment that results.

The State retains the power to

7

For all of the reasons set forth in Part III.A.3 of this

8

Order, the Court finds that Plaintiff is not likely to succeed on

9

the merits of its SB 54 claim and its motion for a preliminary

10

injunction as to this statute is denied.

11

B.

12

Each party submitted evidence showing hardships to their

13

sovereign interests and their constituencies should the Court

14

fail to decide this Motion in their favor.

15

Reply, ECF Nos. 2-2–5, 46, 171-1–25, 173, 178; Exhs. to Opp’n,

16

ECF Nos. 75, 78, 81, 83.

17

identified harms that would befall themselves or their

18

constituencies because of this Court’s Order.

19

interests largely hang in balance, each seeking to vindicate what

20

it—and its supporters—view as critical public policy objectives.

21

These harms are not susceptible to remediation through damages;

22

each side faces much more than mere economic loss.

23

Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014)

24

(“Irreparable harm is traditionally defined as harm for which

25

there is no adequate legal remedy, such as an award of

26

damages.”).

27
28

Preliminary Injunction Equitable Factors

See Exhs. to Mot. and

Many of the amici curiae also

The parties’

See Ariz.

“[A]n alleged constitutional infringement will often alone
constitute irreparable harm.”

United States v. Arizona, 641 F.3d
57

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 58 of 60
1

339, 366 (9th Cir. 2011) (citation omitted), rev’d in part on

2

other grounds, 567 U.S. 387 (2012).

3

not be equitable or in the public’s interest to allow the state

4

to violate the requirements of federal law . . . . In such

5

circumstances, the interest of preserving the Supremacy Clause is

6

paramount.”

7

Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009)); see Am. Trucking

8

Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059–60 (9th

9

Cir. 2009) (“Similarly, while we do not denigrate the public

“It is clear that it would

Id. (quoting Cal. Pharmacists Ass’n v. Maxwell-

10

interest represented by the Ports, that must be balanced against

11

the public interest represented in [Congress’s] decision to

12

deregulate the motor carrier industry, and the Constitution’s

13

declaration that federal law is to be supreme.”).

14

For the state laws which the Court found no likelihood that

15

Plaintiff will succeed on its claims—California Government Code

16

Sections 12532 (AB 103), 7284.6(a)(1)(C) & (D), and 7284.6(a)(4)

17

(SB 54), and California Labor Code Section 90.2 (AB 450)—no

18

injunction will issue.

19

a plaintiff has failed to show the likelihood of success on the

20

merits, [the Court] need not consider the remaining three

21

Winter elements.”

22

Cir. 2015) (citation and quotation marks omitted).

23

will not find an irreparable injury where it has not found an

24

underlying constitutional infringement.

25

Inc. v. Super. Ct. of Cal., 739 F.2d 466, 472 (9th Cir. 1984)

26

(“In this case, however, the constitutional claim is too tenuous

27

to support our affirmance on [the] basis [of irreparable

28

harm].”).

“Because it is a threshold inquiry, when

Garcia v. Google, Inc., 786 F.3d 733, 740 (9th

58

The Court

See Goldie’s Bookstore,

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 59 of 60
1

As to California Government Code Sections 7285.1 and 7285.2

2

and California Labor Code Section 1019.2, the Court presumes that

3

Plaintiff will suffer irreparable harm based on the

4

constitutional violations identified above.

5

considerations favor an injunction in such circumstances.

6

United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012)

7

(“The United States suffers injury when its valid laws in a

8

domain of federal authority are undermined by impermissible state

9

regulations.

The equitable
See

Frustration of federal statutes and prerogatives

10

are not in the public interest, and we discern no harm from the

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state’s nonenforcement of invalid legislation.”).

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therefore enjoins enforcement of these provisions as to private

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employers, as set forth in the Order below.

The Court

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C.

Conclusion

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This Court has gone to great lengths to explain the legal

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grounds for its opinion.

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through a political lens and this Court expresses no views on the

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soundness of the policies or statutes involved in this lawsuit.

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There is no place for politics in our judicial system and this

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one opinion will neither define nor solve the complicated

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immigration issues currently facing our Nation.

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This Order hopefully will not be viewed

As noted in the Introduction to this Order, this case is

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about the proper application of constitutional principles to a

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specific factual situation.

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after a careful and considered application of legal precedent.

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The Court did so without concern for any possible political

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consequences.

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other two branches of government do not share.

The Court reached its decision only

It is a luxury, of course, that members of the

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But if there is

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 60 of 60
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going to be a long-term solution to the problems our country

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faces with respect to immigration policy, it can only come from

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our legislative and executive branches.

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come from piecemeal opinions issued by the judicial branch.

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Accordingly, this Court joins the ever-growing chorus of Federal

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Judges in urging our elected officials to set aside the partisan

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and polarizing politics dominating the current immigration debate

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and work in a cooperative and bi-partisan fashion toward drafting

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and passing legislation that addresses this critical political

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issue.

Our Nation deserves it.

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IV.

It cannot and will not

Our Constitution demands it.
ORDER

For the reasons set forth above, the Court DENIES IN PART
AND GRANTS IN PART Plaintiff’s Motion for Preliminary Injunction.
The Court DENIES Plaintiff’s Motion to enjoin California

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Government Code Sections 12532, 7284.6(a)(1)(C) & (D), and

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7284.6(a)(4), and California Labor Code Section 90.2.

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The Court GRANTS Plaintiff’s Motion and preliminarily

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enjoins the State of California, Governor Brown, and Attorney

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General Becerra from enforcing California Government Code

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Sections 7285.1 and 7285.2 and California Labor Code Section

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1019.2(a)&(b) as applied to private employers.

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IT IS SO ORDERED.
Dated: July 4, 2018

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