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)

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Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 1 of 60 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THE UNITED STATES OF AMERICA, 12 No. 2:18-cv-490-JAM-KJN Plaintiff, 13 v. 14 STATE OF CALIFORNIA, et al., 15 ORDER RE: THE UNITED STATES OF AMERICA’S MOTION FOR PRELIMINARY INJUNCTION Defendants. 16 I. 17 INTRODUCTION Before this Court is the United States of America’s 18 19 (“Plaintiff” or “United States”) Motion for a Preliminary 20 Injunction (“Motion”). 21 enjoining enforcement of certain provisions of three laws enacted 22 by the State of California (“Defendant” or “California”)1 through 23 Assembly Bill 103 (“AB 103”), Assembly Bill 450 (“AB 450”) and 24 Senate Bill 54 (“SB 54”). 25 this Court preliminarily enjoin the following provisions of 26 27 28 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.” 1 1 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 2 of 60 1 California law: (1) California Government Code Section 12532 (as 2 added by AB 103); (2) California Government Code Sections 7285.1 3 and 7285.2 and California Labor Code Sections 90.2 and 1019.2 as 4 applied to private employers only (as added by AB 450); and (3) 5 California Government Code Sections 7284.6(a)(1)(C), 6 7284.6(a)(1)(D), and 7284.6(a)(4) (as added by SB 54). 7 claims that these statutes violate the Supremacy Clause of the 8 United States Constitution, Art. VI, cl.2, and are invalid. 9 Compl., ECF No. 1, ¶¶ 61, 63 & 65. Plaintiff Plaintiff argues that federal 10 law preempts each provision because, in the area of immigration 11 enforcement, California “lacks the authority to intentionally 12 interfere with private citizens’ [and state and local employees’] 13 ability to cooperate voluntarily with the United States or to 14 comply with federal obligations.” 15 Injunction (“Mot.”), ECF No. 2-1, at 2. Motion for Preliminary 16 Plaintiff also contends that California “has no authority to 17 target facilities holding federal detainees pursuant to a federal 18 contract for an inspection scheme to review the ‘due process’ 19 afforded during arrest and detention.” 20 Plaintiff implores this Court to enjoin these state law 21 provisions because they “stand as an obstacle to the 22 accomplishment and execution of the full purposes and objectives 23 of Congress and are therefore preempted by federal law.” 24 3 (citations omitted). Id. Accordingly, Id. at 25 Defendant vigorously opposes Plaintiff’s motion for a 26 preliminary injunction, see Opp’n, ECF No. 74, contending that 27 these three state laws properly “allocate the use of limited law- 28 enforcement resources, provide workplace protections, and protect 2 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 3 of 60 1 the rights of [California’s] residents.” 2 further argues that these statutes “are consistent with 3 applicable federal law and do not interfere with the federal 4 government’s responsibility over immigration.” 5 claims that it “acted squarely within its constitutional 6 authority when it enacted the law[s] [the United States seeks to 7 enjoin] here[.]” 8 Defendant, “conflict[] with federal law or undermine[] the 9 federal government’s authority or ability to undertake Id. Id. at 1. Id. Defendant Defendant None of the state laws, according to 10 immigration enforcement and all are consistent with the 11 legislative framework [of the immigration laws and regulations].” 12 Id. 13 This Motion presents unique and novel constitutional issues. 14 The Court must answer the complicated question of where the 15 United States’ enumerated power over immigration ends and 16 California’s reserved police power begins. 17 resolve the issue of whether state sovereignty includes the power 18 to forbid state agents and private citizens from voluntarily 19 complying with a federal program. 20 this Court to carefully examine the purposes and principles of 21 the federalist system–a system, established by the Constitution, 22 of dual sovereignty between the States and the Federal Government 23 whose principal benefit may be “a check on abuses of government 24 power.” 25 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 26 determine the proper balance between the twin powers of 27 California and the United States. 28 as the Federal Government is acting within the powers granted to 3 The law is clear that so long Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 4 of 60 1 it under the Constitution, Congress may impose its will on the 2 States. 3 interfere with the decision of the people of California, “it is 4 incumbent upon [this Court] to be certain of [Congress’s] intent 5 before finding that federal law overrides” the constitutional 6 balance of federal and state powers. 7 8 9 10 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]. 11 Id. at 460–61 (quoting Atascadero State Hosp. v. Scanlon, 473 12 U.S. 234, 242 (1985)) (quotation marks omitted). 13 Applying these well-established principles of law to the 14 present Motion, and as explained in detail below, this Court 15 finds that AB 103, SB 54, and the employee notice provision of AB 16 450 are permissible exercises of California’s sovereign power. 17 With respect to the other three challenged provisions of AB 450, 18 the Court finds that California has impermissibly infringed on 19 the sovereignty of the United States. 20 therefore denied in part and granted in part. 21 II. Plaintiff’s Motion is Legal Standards 22 A. Preliminary Injunction Standard 23 Plaintiff moves the Court to enjoin enforcement of the 24 challenged state laws. Before the Court can grant the requested 25 relief, Plaintiff must establish—as to each challenged law—that 26 it is likely to succeed on the merits of its claim, that it is 27 likely to suffer irreparable harm in the absence of preliminary 28 relief, that the balance of the equities tips in its favor, and 4 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 5 of 60 1 that an injunction is in the public interest. 2 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 3 Circuit, an injunction may also be proper “if there is a 4 likelihood of irreparable injury to plaintiff; there are serious 5 questions going to the merits; the balance of hardships tips 6 sharply in favor of the plaintiff; and the injunction is in the 7 public interest.” 8 2012). 9 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 10 Plaintiff’s burden. An order enjoining the enforcement of state 11 laws would alter the status quo and thus qualifies as a mandatory 12 injunction. 13 1182, 1194 (E.D. Cal. 2015). 14 law and facts clearly favor its position, not simply that it is 15 likely to succeed on its claims. 16 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 17 B. Supremacy Clause 18 In the United States, “both the National and State 19 Governments have elements of sovereignty the other is bound to 20 respect.” 21 The Constitution establishes the balance between these sovereign 22 powers and the Nation’s dual structure. 23 declares that the “Constitution, and the Laws of the United 24 States which shall be made in Pursuance thereof . . . shall be 25 the supreme Law of the Land; and the Judges in every State shall 26 be bound thereby[.]” 27 Amendment limits the powers of the United States to those which 28 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. 5 The Tenth Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 6 of 60 1 States. U.S. Const. amend. X (“The powers not delegated to the 2 United States by the Constitution, nor prohibited by it to the 3 States, are reserved to the States respectively, or to the 4 people.”). 5 legislate, Congress may only enact legislation under those powers 6 enumerated in the Constitution. 7 Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018) (“The Constitution 8 confers on Congress not plenary legislative power but only 9 certain enumerated powers.”); United States v. Morrison, 529 U.S. Thus, rather than wielding a plenary power to See Murphy v. Nat’l Collegiate 10 598, 607 (2000) (“Every law enacted by Congress must be based on 11 one or more of its powers enumerated in the Constitution.”). 12 The United States’ broad power over “the subject of 13 immigration and the status of aliens” is undisputed. 14 567 U.S. at 394.2 15 enactment which in any way deals with aliens is a regulation of 16 immigration and thus per se pre-empted by this constitutional 17 power, whether latent or exercised.” 18 351, 355 (1976) superseded by statute on other grounds as 19 recognized in Arizona, 567 U.S. at 404. 20 1. Arizona, “But the Court has never held that every state DeCanas v. Bica, 424 U.S. Obstacle Preemption 21 Where Congress has the power to enact legislation it has the 22 power to preempt state law, even in areas traditionally regulated 23 by the States. 24 at 460. 25 2 26 27 28 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.” 6 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 7 of 60 1 preemption, field preemption, and conflict preemption. 2 Plaintiff’s preemption argument is primarily premised on the most 3 enigmatic member of this doctrinal family, “obstacle” preemption— 4 a species of conflict preemption. 5 Conflict preemption is found in cases where it is physically 6 impossible to comply with both federal and state regulations or 7 in cases where the “challenged state law ‘stands as an obstacle 8 to the accomplishment and execution of the full purposes and 9 objectives of Congress.’ ” Arizona, 567 U.S. at 399–400 (quoting 10 Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “What is a 11 sufficient obstacle is a matter of judgment, to be informed by 12 examining the federal statute as a whole and identifying its 13 purpose and intended effects.” 14 Council, 530 U.S. 363, 373 (2000). 15 consider the entire scheme of the federal statute, including 16 those elements expressed and implied. 17 the act cannot otherwise be accomplished—if its operation within 18 its chosen field else must be frustrated and its provisions be 19 refused their natural effect—the state law must yield to the 20 regulation of Congress within the sphere of its delegated power.” 21 Id. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)). 22 There is a strong presumption against preemption when Crosby v. Nat’l Foreign Trade The Court must examine and Id. “If the purpose of 23 Congress legislates in an area traditionally occupied by the 24 States. 25 1141 (9th Cir. 2015). 26 powers of the States’ are not superseded ‘unless that was the 27 clear and manifest purpose of Congress.’ ” Arizona, 567 U.S. at 28 400 (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 7 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 8 of 60 1 (1947)); see Rice, 331 U.S. at 230 (When Congress legislates in a 2 “field which the States have traditionally occupied[,] [] we 3 start with the assumption that the historic police powers of the 4 States were not to be superseded by the Federal Act unless that 5 was the clear and manifest purpose of Congress.”). 6 must be “unmistakably clear in the language of the statute,” 7 Gregory, 501 U.S. at 460 (quoting Atascadero State Hosp. v. 8 Scanlon, 473 U.S. 234 (1985)), as must the presence of an 9 obstacle. Such purpose Chinatown Neighborhood Ass’n, 794 F.3d at 1141 (“[T]he 10 California statute cannot be set aside absent ‘clear evidence’ of 11 a conflict.”); see also Savage, 225 U.S. at 533 (1912) (“In other 12 words, [the intent to supersede the State’s exercise of its 13 police power] is not to be implied unless the act of Congress, 14 fairly interpreted, is in actual conflict with the law of the 15 state.”). 16 sufficient obstacle—the repugnance must be “so direct and 17 positive that the two acts cannot be reconciled or consistently 18 stand together.” 19 55 (1973) (quoting The Federalist No. 32, p. 243 (B. Wright ed. 20 1961)); Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 10 21 (1937). 22 “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 23 et seq., is “the comprehensive federal statutory scheme for 24 regulation of immigration and naturalization.” 25 at 353. 26 the years by passing statutes like the Immigration Reform and 27 Control Act (“IRCA”) and the Illegal Immigration Reform and 28 Immigrant Responsibility Act (“IIRIRA” or “IIRAIRA”), among DeCanas, 424 U.S. Congress has amended and supplemented the scheme over 8 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 9 of 60 1 others. 2 state laws challenged in this case. 3 Plaintiff argues that the INA, as amended, preempts the 2. Mot. at 2–3, 11–32. Intergovernmental Immunity 4 The Supremacy Clause gives rise to another doctrine 5 restricting States’ power: the doctrine of intergovernmental 6 immunity. 7 the United States directly or discriminate against the Federal 8 Government or those with whom it deals. 9 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 10 regulation imposed on one who deals with the Government has as 11 much potential to obstruct governmental functions as a regulation 12 imposed on the Government itself, the Court has required that the 13 regulation be one that is imposed on some basis unrelated to the 14 object’s status as a Government contractor or supplier, that is, 15 that it be imposed equally on other similarly situated 16 constituents of the State.” 17 The doctrine protects private entities and individuals even when 18 the burdens imposed upon them are not then passed on to the 19 Federal Government. 20 U.S. 803, 814–15, 817 (1989) (finding a state tax system that 21 favored state retirees over federal retirees violated 22 intergovernmental immunity even though the tax arguably did not 23 interfere with the Federal Government’s ability to perform its 24 governmental functions) (citing Phillips Chem. Co. v. Dumas 25 Indep. Sch. Dist., 361 U.S. 376, 387 (1960)). 26 doctrine finds its most comfortable repose in tax cases, courts 27 have extended its reach to other contexts. 28 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 10 of 60 1 regulations); Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir. 2 2014) (analyzing a California law governing cleanup of a federal 3 nuclear site); In re Nat’l Sec. Agency Telecomms. Records Litig., 4 633 F. Supp. 2d 892 (N.D. Cal. 2007) (analyzing state 5 investigations into telecommunication carriers that concerned the 6 alleged disclosures of customer records to the NSA). 7 A targeted regulation is not invalid simply because it 8 distinguishes between the two sovereigns. “The State does not 9 discriminate against the Federal Government and those with whom 10 it deals unless it treats someone else better than it treats 11 them.” 12 United States, 460 U.S. 536, 544–545 (1983)). 13 regulation should not be struck down unless it burdens the 14 Federal Government (or those dealing with the Federal Government) 15 more so than it does others. 16 (finding a regulatory regime that did not disfavor the Federal 17 Government could not be considered to discriminate against it). 18 Furthermore, a regulation will survive if significant differences 19 between the two classes justify the burden. 20 815–17. 21 treatment is directly related to, and justified by, significant 22 differences between the two classes.” 23 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 24 C. Tenth Amendment 25 The Tenth Amendment limits Congress’s legislative authority 26 to those powers enumerated in the Constitution. Absent from this 27 list of powers “is the power to issue direct orders to the 28 governments of the States.” Murphy, 138 S. Ct. at 1476. 10 Thus, Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 11 of 60 1 in addition to erecting a higher wall against preemption, the 2 Tenth Amendment restrains Congress’s ability to impose its will 3 upon the States directly. 4 The Supreme Court’s so-called “anticommandeering” doctrine 5 recognizes this check on Congressional power. Congress may not 6 directly compel States to enact a regulation or enforce a federal 7 regulatory program, conscript state officers for such purpose, or 8 prohibit a State from enacting laws. 9 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) 12 (“Today we hold that Congress cannot circumvent that prohibition 13 by conscripting the State’s officers directly.”); Murphy, 138 S. 14 Ct. at 1478 (“The PASPA provision at issue here—prohibiting state 15 authorization of sports gambling—violates the anticommandeering 16 rule. That provision unequivocally dictates what a state 17 legislature may and may not do.”). 18 to perform discrete, ministerial tasks violates the doctrine. 19 Printz, 521 U.S. at 929–30. 20 Even requiring state officers The reasons behind the anticommandeering doctrine are 21 several. See Murphy, 138 S. Ct. at 1477 (Part III-B). 22 the rule reflects “the Constitution’s structural protections of 23 liberty.” 24 the sovereigns, it prevents the accumulation of excessive power 25 and “reduce[s] the risk of tyranny and abuse from either front.” 26 Gregory, 501 U.S. at 458. 27 from passing the costs and burdens of implementing a federal 28 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 12 of 60 1 doctrine promotes accountability; it ensures that blame for a 2 federal program’s burdens and defects falls on the responsible 3 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. 11 “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.” 14 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 18 State on June 27, 2017, Assembly Bill 103 added Section 12532 to 19 the California Government Code and directs the Attorney General 20 to review and report on county, local, and private locked 21 detention facilities in which noncitizens are housed or detained 22 for purposes of civil immigration proceedings in California. 23 Cal. Gov’t Code § 12532. 24 conduct a review of such facilities by March 1, 2019. 25 Code § 12532(b). 26 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 13 of 60 1 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, 8 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 11 interferes with the Federal Government’s exclusive authority in 12 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 14 of 60 1 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 17 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 20 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, Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 15 of 60 1 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 7 437 (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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 31 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 33 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 34 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 37 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 39 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 40 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 41 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 43 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 44 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 45 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 46 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 47 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 48 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 49 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 50 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 51 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 54 of 60 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 Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 55 of 60 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 11 state’s nonenforcement of invalid legislation.”). 12 therefore enjoins enforcement of these provisions as to private 13 employers, as set forth in the Order below. The Court 14 C. Conclusion 15 This Court has gone to great lengths to explain the legal 16 grounds for its opinion. 17 through a political lens and this Court expresses no views on the 18 soundness of the policies or statutes involved in this lawsuit. 19 There is no place for politics in our judicial system and this 20 one opinion will neither define nor solve the complicated 21 immigration issues currently facing our Nation. 22 This Order hopefully will not be viewed As noted in the Introduction to this Order, this case is 23 about the proper application of constitutional principles to a 24 specific factual situation. 25 after a careful and considered application of legal precedent. 26 The Court did so without concern for any possible political 27 consequences. 28 other two branches of government do not share. The Court reached its decision only It is a luxury, of course, that members of the 59 But if there is Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 60 of 60 1 going to be a long-term solution to the problems our country 2 faces with respect to immigration policy, it can only come from 3 our legislative and executive branches. 4 come from piecemeal opinions issued by the judicial branch. 5 Accordingly, this Court joins the ever-growing chorus of Federal 6 Judges in urging our elected officials to set aside the partisan 7 and polarizing politics dominating the current immigration debate 8 and work in a cooperative and bi-partisan fashion toward drafting 9 and passing legislation that addresses this critical political 10 issue. Our Nation deserves it. 11 12 13 14 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 15 Government Code Sections 12532, 7284.6(a)(1)(C) & (D), and 16 7284.6(a)(4), and California Labor Code Section 90.2. 17 The Court GRANTS Plaintiff’s Motion and preliminarily 18 enjoins the State of California, Governor Brown, and Attorney 19 General Becerra from enforcing California Government Code 20 Sections 7285.1 and 7285.2 and California Labor Code Section 21 1019.2(a)&(b) as applied to private employers. 22 23 IT IS SO ORDERED. Dated: July 4, 2018 24 25 26 27 28 60

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