United States of America v. State of California et al

Filing 44

AMICI CURIAE BRIEF by Phil Bryant, Paul Lepage, State Of Nevada, State of Alabama, State of Arkansas, State of Florida, State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Michigan, State of Missouri, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, State of West Virginia in Support of 2 Motion for Preliminary Injunction. (Donati, J)

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KEN PAXTON
Attorney General of Texas
JEFFERY C. MATEER
First Assistant Attorney General
BRANTLEY D. STARR
Deputy First Assistant Attorney General
SCOTT A. KELLER
Solicitor General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
DAVID J. HACKER (CA Bar No. 249272; TX Bar No. 24103323)*
Special Counsel for Civil Litigation
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Telephone: [phone]
Facsimile: [phone]

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Counsel for Proposed Amici Curiae
Texas, Alabama, Arkansas, Florida, Georgia, Indiana,
Kansas, Louisiana, Michigan, Missouri, Nebraska,
Nevada, Ohio, Oklahoma, South Carolina, West Virginia,
Governor Phil Bryant of the State of Mississippi, and
Paul R. LePage, Governor of Maine
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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THE UNITED STATES OF AMERICA,
Plaintiff,

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v.
STATE OF CALIFORNIA, et al.,

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Defendants.

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Case No.: 2:18-cv-00490-JAM-KJN
BRIEF OF AMICI CURIAE
THE STATES OF TEXAS, ALABAMA,
ARKANSAS, FLORIDA, GEORGIA,
INDIANA, KANSAS, LOUISIANA,
MICHIGAN, MISSOURI, NEBRASKA,
NEVADA, OHIO, OKLAHOMA,
SOUTH CAROLINA,
WEST VIRGINIA, GOVERNOR PHIL
BRYANT OF THE STATE OF
MISSISSIPPI, AND PAUL R. LEPAGE,
GOVERNOR OF MAINE, IN SUPPORT
OF PLAINTIFFS’ MOTION FOR A
PRELIMINARY INJUNCTION
Date: No hearing per Min. Order,
ECF No. 17
Judge: Hon. John A. Mendez

*Designated Counsel for Service.
BRIEF OF AMICI CURIAE TEXAS ET AL.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES ............................................................................................................... ii
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INTEREST OF AMICI CURIAE ........................................................................................................1

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ARGUMENT .......................................................................................................................................1

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I.

California’s AB450 is preempted, under Arizona v. United States,
as an obstacle to the “careful balance struck by Congress with respect
to the unauthorized employment of aliens.” .............................................................................2

II.

AB103 is obstacle-preempted under Arizona v. United States, because
it seeks to give state officials the “unilateral” power to second guess
federal determinations about which aliens warrant removal.. ..................................................3

III.

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SB54’s judicial-warrant requirement is also obstacle-preempted under
Arizona v. United States, because it undermines Congress’s criminal-alien
detention scheme. .....................................................................................................................5

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CONCLUSION ....................................................................................................................................8

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PROOF OF SERVICE .......................................................................................................................10

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BRIEF OF AMICI CURIAE TEXAS ET AL. - i

TABLE OF AUTHORITIES

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Page(s)

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Federal Cases

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Abel v. United States,
362 U.S. 217 (1960) ...................................................................................................................5, 6

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

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Demore v. Kim,
538 U.S. 510 (2003) .......................................................................................................................7
Jennings v. Rodriguez,
138 S. Ct. 830 (2018) .....................................................................................................................7
Johnson v. Maryland,
254 U.S. 51 (1920) .........................................................................................................................4
Roy v. Cty. of L.A.,
No. 2:12-cv-09012, 2017 WL 2559616 (C.D. Cal. June 12, 2017) ...............................................5
Sherman v. U.S. Parole Comm’n,
502 F.3d 869 (9th Cir. 2007) ..........................................................................................................6
United States v. Tejada,
255 F.3d 1 (1st Cir. 2001) ..............................................................................................................6
Zadvydas v. Davis,
533 U.S. 678 (2001) .......................................................................................................................7

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Federal Statutes

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8 U.S.C.:
§ 1182(a)(2) ....................................................................................................................................7
§ 1182(a)(2)(B)...............................................................................................................................7
§ 1226(a).........................................................................................................................................5
§ 1226(a)(1) ....................................................................................................................................5
§ 1226(c).........................................................................................................................................7
§ 1226(c)(1)(A) ..............................................................................................................................7
§ 1227(a)(2) ....................................................................................................................................7
§ 1231(a).........................................................................................................................................5
§ 1231(g)(1) ....................................................................................................................................5
§ 1357(a)(1) ....................................................................................................................................3
§ 1357(e).........................................................................................................................................3

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BRIEF OF AMICI CURIAE TEXAS ET AL. - ii

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Federal Regulation

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8 C.F.R. § 236.6 ...................................................................................................................................5

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California Statutes

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Cal. Gov’t Code:
§ 7282.5(a)......................................................................................................................................5
§ 7282.5(a)(1)-(2) ...........................................................................................................................7
§ 7282.5(a)(3) .................................................................................................................................7
§ 7282.5(a)(3)(A)-(AE) ..................................................................................................................7
§ 7282.5(a)(4)-(5) ...........................................................................................................................7
§ 7284.6(a)(4) .................................................................................................................................5
§ 7285.1(a)......................................................................................................................................2
§ 7285.2(a)(1) .................................................................................................................................2
§ 12532(a).......................................................................................................................................4
§ 12532(b)(1) ..................................................................................................................................4
§ 12532(c).......................................................................................................................................4

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Cal. Lab. Code:
§ 90.2(a)(1) .....................................................................................................................................3
§ 90.2(b)(1) .....................................................................................................................................3

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Other Authorities

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Assem. B. 103 ............................................................................................................................ passim

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Assem. B. 450 ............................................................................................................................ passim
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Cal. S.B. 54................................................................................................................................. passim

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BRIEF OF AMICI CURIAE TEXAS ET AL. - iii

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INTEREST OF AMICI CURIAE

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Amici are the States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana,

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Michigan, Missouri, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, Governor Phil

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Bryant of the State of Mississippi, and Paul R. LePage, Governor of Maine. The States “bear[] many of

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the consequences of unlawful immigration” but must rely on Congress and the INA to regulate which

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aliens may be present and work in their borders. Arizona v. United States, 567 U.S. 387, 397 (2012).

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Sanctuary laws and policies can cause harm to neighboring States by making it easier for people who are

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not lawfully in this country and have committed civil or criminal offenses to evade law enforcement and

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travel out-of-state. The States thus have an interest in the federal government’s ability to enforce federal

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immigration law. California, however, has attempted to override that enforcement—by prohibiting

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private employers from voluntarily giving information to federal immigration officers (AB450), by

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overseeing through investigations the immigration enforcement activities of federal agents (AB103), and

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by limiting the scenarios in which State or local law-enforcement agencies may transfer a detained

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individual to the custody of federal immigration authorities (SB54).

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California may disagree with federal immigration policy—just as Arizona disagreed with federal

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immigration policy in Arizona v. United States. But if various Arizona laws designed to enforce federal

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immigration law were preempted in Arizona (as the Supreme Court held), then California’s laws designed

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to interfere with or block federal immigration enforcement are equally preempted.

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ARGUMENT

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California’s AB450, AB103, and the detainee-transfer provisions of SB54 are preempted under

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Arizona v. United States. Arizona held that various Arizona laws designed to enforce federal immigration

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laws were preempted. Under the rationale of Arizona, this is an even easier case as California’s laws

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designed to interfere with or block federal immigration enforcement must also preempted. Arizona cannot

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stand for the proposition that state laws are preempted when they seek additional enforcement of federal

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immigration laws, but state laws are somehow valid when they seek to decrease enforcement of federal

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immigration laws.

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In fact, California recognized this when it joined an amicus brief in the Arizona case in the
Supreme Court, representing:

BRIEF OF AMICI CURIAE TEXAS ET AL. - 1

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“Amici States have a strong interest in recognizing that the singular question of whether

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and how to remove undocumented immigrants is one that is committed to the federal

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government.”

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Br. for the States of New York, California, et al., Arizona, No. 11-182 (U.S.), 2012 WL 1054493, at *1.1

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The central point of that brief was that the federal government has control over whether and how to

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remove unlawfully-present aliens. As the amici including California explained:

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“Congress has carefully regulated not only who may be removed from the United States,

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but how such individuals should be identified, apprehended, and detained.”

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Id. at *3 (emphasis in original).

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With a new presidential administration, however, California has changed its tune. While

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California no longer agrees with the level of federal enforcement of immigration laws, the preemption

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principles California advanced in Arizona were adopted by the Supreme Court. California is free to argue

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that Arizona’s findings of preemption should be overruled. Unless they are overruled, however, Arizona

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binds the States of California and Arizona alike. And under the principles articulated in Arizona,

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California cannot now impede the federal government’s enforcement of immigration laws.

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I.

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CALIFORNIA’S AB450 IS PREEMPTED, UNDER ARIZONA V. UNITED STATES, AS
AN OBSTACLE TO THE “CAREFUL BALANCE STRUCK BY CONGRESS WITH
RESPECT TO THE UNAUTHORIZED EMPLOYMENT OF ALIENS.”

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California’s Assembly Bill 450 (“AB450”) obstructs federal enforcement of the “comprehensive

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framework for combating the employment of illegal aliens” that Congress enacted in the Immigration

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Reform and Control Act of 1986. Arizona, 567 U.S. at 404. In fact, the stated purpose of AB450 is to

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interfere with this comprehensive federal work-authorization framework. Assembly Bill No. 450,

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Legislative Counsel’s Digest (stating law’s purpose to regulate employers who might be subject to

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“immigration worksite enforcement actions” by the federal government).

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AB450 commands that employers cannot give consent to federal immigration enforcement agents

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entering the employer’s workplace, Cal. Gov’t Code §§ 7285.1(a), 7285.2(a)(1), and that employers must

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Available at https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/
briefs/11-182_respondentamcu11states.authcheckdam.pdf

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give employees 72-hour notice of any federal immigration inspections that are permitted in the workplace

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without the employer’s consent, Cal. Lab. Code § 90.2(a)(1), (b)(1).

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This law is preempted for substantially the same reason that Arizona’s work-authorization law

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was preempted in Arizona. See 567 U.S. at 403-07. There, Arizona enacted a state criminal prohibition

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on an alien working in violation of federal law, even though “no federal counterpart exists.” Id. at 403.

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In finding Arizona’s law preempted despite the absence of a federal criminal prohibition, the Court relied

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on the “careful balance struck by Congress with respect to unauthorized employment of aliens,” in the

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Immigration Reform and Control Act of 1986 (“IRCA”). Id. at 406. Arizona recognized that Arizona

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could have enacted its criminal penalty before IRCA. Id. at 404. But Congress later enacted a

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comprehensive framework striking a careful balance about methods of enforcement, which the Supreme

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Court held create a “conflict in technique” with Arizona’s state-law approach to enforcement. Id. at 406

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(alteration marks omitted).

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If Arizona’s law tipped the “careful balance” struck by Congress too far in favor of enforcing

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federal immigration laws, then California’s law tips that balance too far in the other direction of impeding

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enforcement of federal immigration laws. Congress chose not to require immigration officials to obtain

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a judicial warrant before entering workplaces to enforce federal immigration law. See 8 U.S.C.

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§ 1357(a)(1), (e). But California law now requires just that. Cal. Gov’t Code § 7285.1(a). Congress and

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California have therefore each selected a different “method of enforcement.” Arizona, 567 U.S. at 406.

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Under the Supremacy Clause as interpreted in Arizona, Congress’s commands control. Because

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California’s law “is an obstacle to the regulatory system Congress chose,” id., it is preempted under

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Arizona.

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II.

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AB103 IS OBSTACLE-PREEMPTED UNDER ARIZONA V. UNITED STATES,
BECAUSE IT SEEKS TO GIVE STATE OFFICIALS THE “UNILATERAL” POWER
TO SECOND GUESS FEDERAL DETERMINATIONS ABOUT WHICH ALIENS
WARRANT REMOVAL.

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Arizona holds that States cannot make “unilateral” determinations about the removability of

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aliens wholly separate from federal officials, and that any attempt to do so “creates an obstacle to the full

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purposes and objectives of Congress.” Id. at 410. California’s Assembly Bill 103 (“AB103”) falls within

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that prohibition for the same reason that § 6 of Arizona’s S.B. 1070 did.

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Section 6 of Arizona’s law “attempt[ed] to provide state officers even greater authority to arrest

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aliens on the basis of possible removability than Congress has given to trained federal immigration

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officers.” Id. at 408. Specifically, state police who witnessed what they believed was a public offense

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that made an alien removable could arrest the alien. Id. Hence, “the unilateral decision of state officers”

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about which aliens were unlawfully present under federal immigration law would, under Arizona’s law,

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allow detention. The Supreme Court held this law preempted because Congress created a system for state

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officers to unilaterally make immigration arrests, but that system did not allow state officers the unilateral

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power conferred by Arizona’s law. Id. at 409-10 (describing the federal program that ensures training

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and ensures that removability decisions are “made with one voice”).

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California’s AB103 likewise purports to allow state officers to unilaterally review what federal

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law makes the exclusive work of federal officials. Specifically, AB103 establishes a heightened

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inspection scheme for facilities where “noncitizens are being housed or detained for purposes of civil

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immigration proceedings,” Cal. Gov’t Code § 12532(a), and directs the California Attorney General to

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examine and report on the “due process provided” to detainees and “the circumstances around their

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apprehension and transfer to the facility.” Id. § 12532(b)(1).2 This directly parallels section 6 of Arizona’s

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law, which purported to allow state officials to unilaterally decide that an alien should be held for removal

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and thus arrest the alien. Likewise, California’s AB103 authorizes state officials to declare that an alien

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should not be held for removal in a certain facility because of a purported violation of due process or the

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underlying circumstances of the apprehension and transfer to the detention facility—all determined

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unilaterally by those state officials. The valence of the respective state laws may be different, but their

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prohibited mechanism of operation is the same. Just as Arizona’s law was held obstacle-preempted under

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Arizona, so must California’s SB103 be held preempted. Federal law gives state detention facilities no

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unilateral role in overriding the federal government’s detention of aliens for civil immigration violations.

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See, e.g., 8 U.S.C. § 1231(g)(1); 8 C.F.R. § 236.6.

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To effectuate that immigration-specific scheme, AB103 authorizes the California Attorney General to
interrogate federal immigration officials and inspect federal immigration records. Id. § 12532(c). This
likely violates the doctrine of intergovernmental immunity, under which a State cannot regulate federal
officers in the performance of their duties. See Johnson v. Maryland, 254 U.S. 51, 56-57 (1920).

BRIEF OF AMICI CURIAE TEXAS ET AL. - 4

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SB54’S JUDICIAL-WARRANT REQUIREMENT IS ALSO OBSTACLE-PREEMPTED
UNDER ARIZONA V. UNITED STATES, BECAUSE IT UNDERMINES CONGRESS’S
CRIMINAL-ALIEN-DETENTION SCHEME.

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Under part of California’s Senate Bill 54 (“SB54”), state and local law enforcement agencies may

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“[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial warrant

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or judicial probable cause determination,” or the individual in question has been convicted of one of a

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limited set of enumerated felonies or other serious crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a).

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These provisions are preempted because they stand as an obstacle to Congress’s immigration-

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enforcement scheme.

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III.

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First, SB54’s provision requiring a judicial warrant or judicial finding of probable cause cannot

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be squared with Congress’s immigration-enforcement scheme. Congress, through the INA, established a

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system of civil administrative warrants as the basis for immigration arrest and removal, and Congress

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does not require or contemplate use of a judicial warrant for civil immigration enforcement. See 8 U.S.C.

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§§ 1226(a), 1231(a). Thus, immigration enforcement arrests based on federal officials’ determinations of

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removability need not be supported by judicial warrants. See, e.g., Roy v. Cty. of L.A., No. 2:12-cv-09012,

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2017 WL 2559616, at *6-10 (C.D. Cal. June 12, 2017) (“No court has held to the contrary.”). Rather,

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“the executive and the Legislature have the authority to permit executive—rather than judicial—officers

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to make probable cause determinations regarding an individual’s deportability.” Id. at *8. Federal

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immigration authorities are indeed vested with that power: The INA provides that civil immigration

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enforcement is premised on administrative “warrant[s] issued by” DHS and that “an alien may be arrested

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and detained” based on such a warrant “pending a decision on whether the alien is to be removed from

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the United States.” 8 U.S.C. § 1226(a)(1).

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That authority was clearly delegated to the Executive by Congress in the INA. See Abel v. United

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States, 362 U.S. 217, 232 (1960) (noting that the INA gave “authority to the Attorney General or his

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delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial

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warrant within the scope of the Fourth Amendment.”). And even before Congress passed the INA, there

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was “impressive historical evidence of acceptance of the validity of statutes providing for administrative

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deportation arrest from almost the beginning of the Nation.” Id. at 234. Unsurprisingly, multiple courts

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of appeals have rejected claims that judicial warrants or judicial probable-cause determinations are

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required for civil immigration detention. See Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 876–80

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(9th Cir. 2007) (stating that an executive officer can constitutionally make the necessary probable-cause

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determination to warrant arrest of an alien “outside the scope of the Fourth Amendment’s Warrant

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Clause,” without presentment to a judicial officer); United States v. Tejada, 255 F.3d 1, 3 (1st Cir. 2001)

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(“[T]o comply with the applicable [detention] statute, the arresting authorities needed to bring appellant

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to an [ICE] examining officer, not a magistrate, ‘without unnecessary delay.’”).

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To be sure, California may retain prerogatives about when to voluntarily comply with requests to

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itself detain aliens at the requests of federal officials, as the federal government is subject to limits on

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commandeering state resources for federal programs. But when federal officials show up at a state

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detention facility seeking merely to transfer an alien already in state custody into the custody of federal

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officials, they are not asking the State of California or its political subdivisions to detain the alien. Instead,

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federal officials are asserting their federal primacy in enforcing immigration law by demanding federal

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custody of a person already in state detention. This does not commandeer California to take any additional

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action, as it has already detained the individual before the federal government requested a transfer to

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federal custody. And Congress has determined that taking federal custody for civil immigration detention

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requires no more than an administrative warrant. Accordingly, California’s law requiring DHS to go

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further and procure a judicial warrant upsets the scheme that Congress carefully established and is

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obstacle-preempted under Arizona. E.g., Arizona, 567 U.S. at 402, 406, 408.

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SB54’s exception for aliens convicted of certain offenses does not save the statute from

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preemption, because the statute remains in its other applications an obstacle to Congress’s criminal-alien-

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detention scheme. Moreover, SB54’s specific exemptions themselves effectively create priorities for

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federal detention that conflict with Congress’s choices.

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Section 7284.6 references a narrow list of exceptions on prohibiting the transfer of an individual

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to immigration authorities. That list reflects instances in which the State of California considers federal

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detention and removal of an alien to be a priority. These scenarios include where an individual has been

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convicted of certain “serious or violent” felonies or felonies punishable by imprisonment in California

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state prison, Cal. Gov’t Code § 7282.5(a)(1)-(2), as well as where an individual has been convicted of

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one of thirty-one types of offenses within the past five years if a misdemeanor or within the past fifteen

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years if a felony, id. § 7282.5(a)(3)(A)-(AE). Inclusion on California’s Sex and Arson Registry and

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conviction of a federal crime that is an aggravated felony under the INA, as well as being the subject of

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an outstanding felony arrest warrant by ICE, also trigger the exception. Id. § 7282.5(a)(4)-(5).

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This limited subset of criminal violations, however, is narrower than those provided by Congress

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that render an alien inadmissible or removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Nor does SB54’s

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list match the set of criminal offenses that require the federal government to detain such aliens upon their

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release from state or local custody. Id. § 1226(c). For example, entirely absent from California’s list of

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exceptions is any provision for aliens who are inadmissible on the grounds that they were convicted of

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multiple criminal convictions for which the aggregate sentences were five years or more. See id.

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§ 1182(a)(2)(B). Such an alien could be subject to detention under 8 U.S.C. § 1226(c)(1)(A), regardless

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of whether the convictions were in the past five or fifteen years, see Cal. Gov’t Code § 7282.5(a)(3).

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Ultimately, immigration enforcement necessarily contemplates removal, and civil removal

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proceedings contemplate the necessity of detention. See, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003)

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(stating, regarding no-bail detention: “this Court has recognized detention during deportation proceedings

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as a constitutionally valid aspect of the deportation process”); Zadvydas v. Davis, 533 U.S. 678, 697

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(2001) (distinguishing “detention pending a determination of removability” from the question of

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authority to detain indefinitely). Similarly, the INA contemplates that DHS will be able to take custody

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of removable criminal aliens; that detention “must continue pending a decision on whether the alien is to

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be removed from the United States” and “may end prior to the conclusion of removal proceedings ‘only

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if’ the alien is released for witness-protection purposes.” Jennings v. Rodriguez, 138 S. Ct. 830, 846–47

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(2018) (some quotation marks and citations omitted). California’s law frustrates that scheme because it

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readily affords an alien released from state or local custody the opportunity to abscond, not only

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increasing burdens on officials tasked with tracking down those aliens but also potentially endangering

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law-enforcement officers or members of the public. Cf. Demore, 538 U.S. at 528 (“[R]elease of aliens

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pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their

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hearings and remaining at large in the United States unlawfully”). SB54 impermissibly allows California

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to “achieve its own immigration policy” by deciding to transfer certain aliens to federal-immigration

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custody on the theory that some immigration-enforcement cooperation with federal officials should be

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ignored in favor of the State’s other policy goals. But that approach reflects the sorts of “unilateral

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decisions” regarding immigration enforcement that the Supreme Court rejected in Arizona. 567 U.S. at

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408, 410.

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*

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If California prefers different immigration policies, it is free to voice those concerns to Congress.

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But, as California itself said in Arizona, “Amici States may have differing views about precisely what

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removal priorities and enforcement practices would be optimal, but they agree that, where removal is

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concerned, Congress and the Executive Branch are the appropriate bodies for determining these national

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policies.” Br. for the States of New York, California, et al., Arizona, at *2. Under that rationale advanced

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by California and adopted by the Supreme Court in Arizona, California’s AB450, AB103, and the

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detainee-transfer provisions of SB54 are preempted.

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CONCLUSION
The Court should grant the Plaintiffs’ motion for a preliminary injunction.

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Dated: March 26, 2018.

Respectfully submitted,
/s/David J. Hacker
David J. Hacker
Special Counsel for Civil Litigation
CA Bar No. 249273
TX Bar No. 24103323
Attorney for Proposed Amici

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STEVEN T. MARSHALL
Attorney General of Alabama

KEN PAXTON
Attorney General of Texas

LESLIE RUTLEDGE
Attorney General of Arkansas

JEFFERY C. MATEER
First Assistant Attorney General

PAMELA JO BONDI
Attorney General of Florida

BRANTLEY D. STARR
Deputy First Assistant Attorney General

CHRISTOPHER M. CARR
Attorney General of Georgia

SCOTT A. KELLER
Solicitor General

CURTIS T. HILL, JR.
Attorney General of Indiana

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DEREK SCHMIDT
Attorney General of Kansas

DAVID J. HACKER (CA Bar No. 249272;
TX Bar No. 24103323)*
Special Counsel for Civil Litigation

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JEFF LANDRY
Attorney General of Louisiana
BILL SCHUETTE
Attorney General of Michigan

OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 009)
Austin, Texas 78711-2548
Telephone: [phone]
Facsimile: [phone]

JOSH HAWLEY
Attorney General of Missouri
DOUG PETERSON
Attorney General of Nebraska
ADAM PAUL LAXALT
Attorney General of Nevada
MICHAEL DEWINE
Attorney General of Ohio
MIKE HUNTER
Attorney General of Oklahoma
ALAN WILSON
Attorney General of South Carolina
PATRICK MORRISEY
Attorney General of West Virginia
PAUL R. LEPAGE
Governor of Maine
PHIL BRYANT
Governor of Mississippi

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BRIEF OF AMICI CURIAE TEXAS ET AL. - 9

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PROOF OF SERVICE

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I hereby certify that on March 26, 2018, I filed the foregoing document with the Clerk of the

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Court via CM/ECF, which automatically sends notice of the filing to all counsel of record. I declare

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under 28 U.S.C. § 1746 that the above is true and correct.

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Executed on March 26, 2018 at Austin, Texas.

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/s/David J. Hacker
David J. Hacker
Special Counsel for Civil Litigation
CA Bar No. 249273
TX Bar No. 24103323
Attorney for Proposed Amici

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BRIEF OF AMICI CURIAE TEXAS ET AL. - 10