Georgia Latino Alliance for Human Rights et al v. Deal et al

Filing 78

AMICUS BRIEF in Support of 47 MOTION to Dismiss Defendants, Nathan Deal, Samuel Olens, Clyde Reese and Mike Beatty filed by Rightmarch.com, Joshua Clark, Brett Harrell. (Attachments: # 1 Certificate of Service)(dr)

FILED IN CLERK'S OF ICE
U,S,D,C, - Atlanta

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JUN 17 Z011

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF GEORGIA

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ATLANTA DIVISION

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Georgia Latino Alliance for Human Rights; Service
)No. 1:11-CV-1804
Employees International Union; Southern Regional Joint
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Board of Workers' United; DREAM Activistorg; Task Force )
for the Homeless; Asian American Legal Advocacy Center;
)AMICUS BRIEF OF
Alterna; Coalition of Latino Leaders; Instituto de Mexico, Inc, )RIGHTMARCH.COM, JOSHUA
of Atlanta; Coalition for the People's Agenda; Paul Bridges;
) CLARK, AND BRETT HARRELL IN
Benjamin Speight; Everitt Howe; Paul J. Edwards; Sharon
) SUPPORT OF DEFENDANTS'
Gruner; Jane Doe # I; Jaypaul Singh; Ernesto Pinon; John Doe ) MOTION TO DISMISS
# I; John Doe # 2; and Jane Doe # 2,
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Plaintiffs,)

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v.
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Nathan Deal, Governor of the State of Georgia, in his official )
capacity; Samuel S. Olens, Attorney General of the State of )
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Georgia, in his official capacity; Clyde L. Reese, III,
Commissioner of the Department of Human Services of the
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State of Georgia, in his official capacity; Mike Beatty
Commissioner of the Department of Community Affairs of the )
State of Georgia, in his official capacity; and Falecia Stewart, )
Executive Director of the Housing Authority of Fulton County )
Georgia, in her official capacity,
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Defendants.)

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AMICUS BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

Amicus curiae, Rightmarch.com, Joshua Clark, and Brett Harrell respectfully move for leave of

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Court to file the acmmpanying brief. Notice has been given by amicus curiae to each party of the

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intention to file this brief, but no consent to the filing ofthis brief has been obtained.

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STATEMENT OF INTEREST

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Rightmarch.com is a nonprotit, donor-supported, civil liberties organization dedicated to helping

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give patriotic Americans a collective voice. Thousands of donors to Rightmarch.com arc Georgia

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residents and citizens of the United States who feel they do not have a voice other than to join together

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through this one organization to speak for them.

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Representative Joshua Clark is a resident of Gwinnett County, Georgia and State Representative

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of House District 98, The legislation in the above-styled matter directly affects the constituents of Mr.

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Clark and Mr. Clark personally as Gwinnett County has become a corridor for illegal dmg trafficking as

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well as other crimes from illegal immigrants. The life, liberty and property ofMr, Clark, his family and

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his mnstituents are continually at risk since the Federal government has not properly enforced its

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immigration laws.

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Representative Brett Harrell is a resident of Gwinnett County, Georgia and State Representative

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of House District 106. . The legislation in the above-styled matter directly affects the constituents of Mr.

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Harrell and Mr. Harrell personally as Gwinnett County has bemme a corridor for illegal drug trafficking

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as well as other crimes from illegal immigrants. The health, safety and welfare of Mr. Harrell, his family

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and his c{)nstituents are continually at risk since the Federal government has not properly enforced its

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immigration laws.

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AMICUS BRlEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

For these reasons, amicus curiae respectfully requests that the Court grant leave to file this brief

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June 17,201 L
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Respectfully Submitted,

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(J,

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NATHANIEL J. OLESON
lINITED STATES JUSTICE FOCNDATION

JASON THOMPSON

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Counsel for Amicus
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BRIEF OF AJ\\ICUS CURIAE

&VlICUS BRIEF IN SUPPORT OF DEFENDANTS' MOnON TO DISMISS

IN SUPPORT OF DEFENDANTS' MOTIO~ TO DISMISS'

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LEGAL DISCUSSION

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PREEMPTION DOCTRINE

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Plaintiffs initially filed suit against Defendants on the grounds that any state legislation passed

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concerning illegal immigration is preempted by Federal law and would likely cause unnecessary and long

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detentions ofthose illegal immigrants apprehended by local law enforcement, If the duty to enforce any

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law even remotely connected to immigration is exclusively the jurisdiction of the Federal government, as

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Plaintifls suggest, then Georgia should be permitted to bring an action to compel the appropriate Federal

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agencies to enforce the immigration laws, However, as the United States Supreme Court discussed in the

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case of New Jersey v. United States, "no prccedent suggests that inaction by Congress or the Executive

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Branch constitutes the kind of coercion that violates the Tenth Amendment. As defendants succinctly

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state in their hrief: 'the Tenth Amendment provides a shield against the federal exercise of powers

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reserved to the states, not a sword to compel federal action.' " (New Jersey v. United States, 91 F3d 463

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(1996)), Plaintiffs point out that the Georgia legislature disagreed with the immigration policy ()fthe

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Obama administration and passed the underlying immigration law because ofthis disagreement.

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Plaintifl's did not argue that the underlying Georgia law was contrary to Federal immigration law, only

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contrary to the current policy of enforcement. If the current policy ofthe Federal immigration

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enforcement agencies is to disregard many established Federal immigration laws, why should Georgia be

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prevenJed from taking steps to enforce similar laws given that the Federal government refuses to do so?

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Plaintiffs are unable to demonstrate why disagreement with a current Federal policy precludes a State

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from acting contrary to that policy in areas where the State has a right and the authority to legislaJe.

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1 No counsel for a party authored this briefin whole or in part, and no counselor party made a monetary
contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its
members, or its counsel made a monetary contribution to ijs preparation or submission.

AMICUS BRIEF TN SUPPORT OF DEFENDANTS' MOTTON TO DlSMISS

The general rule with regard to the preemption doctrine is that no act of Congress is presumed to
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preempt State law unless Congress has made such an intention "clear and manifest:"

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" "[B]ecause the States are independent sovereigns in our federal system, we have long presumed

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that Congress does not cavalierly pre-empt state-law causes of action." Jo.1edtronic, Inc. v. I.ohr,

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518 e.S., at 485, 135 L. Ed. 2d 700, 116 S. Ct. 2240. In areas of traditional state regulation, we

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assume that a federal statute has not supplanted state law unless Congress has made such an

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intention '''clear and manifest.''' New York State Co'!ierence olBlue Cross & Blue Shield Plans v.

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Travelers Ins. Co., 514 U.S. 645, 655, 131 L. Ed. 2d 695, 115 S. Ct. 1671 (1995)(quoting Rice v.

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Santa Fe Elevator Corp., 331 \j.S. 218,230,91 L. Ed. 1447, 67 S. Ct. 1146 (1947)); See also

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Medtronic, Inc. v. I.ohr, 518 U.S., at 485, 135 L. Ed. 2d 700, 116 S. Ct. 2240. "

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Bates v. Dow Agrosciences I..I..c.. 544 U.S. 431.

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Plaintiffs' have alleged, with regard to the enforcement of immigration laws, that Congress has

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intended for Federal immigration laws to preempt State laws and that any attempt by Georgia, or any

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other State, to tlnd a means to deal with the growing and continuing problem of illegal immigration

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would be interference with the Federal government's plan of enforcement. However, the Federal

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agencies responsible for enforcement of Federal immigration laws have neglected to so enforce the law in

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Georgia, which has caused the State of Georgia to attempt to control the after effects of this non­

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enforcement of immigration laws at great expense to the State and its taxpayers.

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SOVERIGN STATE POLICE POWERS
No State can compel the Federal government to act where the Federal government, through law

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or current policy of a particular President, has not acted in a particular manner or to deal with a particular

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problem. (New Jersey v. United States, 91 F.3d 463 (1996». In a similar manner, the Federal

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government cannot compel a State to follow the dictates or instructions of the Federal government or to

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involuntarily act as an agent of the Federal government. (Printz v. United States, 521 U.S. 898,912

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(1996)). However, when the Federal government has failed to act, or has refused to act in any particular
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AMICUS BRIEF IN SUPPORT OF DEFENDANTS' MOnON TO DISMISS

area, the Federal government cannot claim to have preempted the field against State action in that
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particular area unless Congress expressly intended to do so:

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"There is no federal pre-emption in vacuo, without a constitutional text or a federal statute to

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assert it Where a comprehensive federal scheme intentionally leaves a portion ofthe regulated

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field without controls, then the pre-emptive inference can be drawn -- not from federal inaction

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alone, but from inaction joined with action."

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Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988).

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Plaintiffs have alleged that any action that Georgia takes to deal with problems resulting from illegal

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immigrant activities in the State would be an interference with the immigration policy ofthe Federal

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government. Since this Federal policy seems to be to ignore the problem of illegal immigration, rather

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tban taking steps to enforce existing law, then the argument of the Plaintiffs should be read as where

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there is inaction on the part of the Federal government the States may not act. Laws are meaningless if

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the government agencies responsible for the enforcement of those laws refuse to do so. The Tenth

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Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by

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it to the States, arc reserved to the States respectively, or to the people." (United States Constitution,

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Tenth Amendment). As discussed above. unless Congress makes a "clear and manifest" intention to fully

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regulate an area oflaw, States are not prevented from doing so. Contrary to Plaintiffs unsupported

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allegation that there is long-settled law giving the Federal government an exclusive role in regulating

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immigration, recent Supreme Court decisions would suggest that the contrary is true (see Chamber of

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Commerce v. Whiting. 09-115 (2011»), and, since the Federal government seems intent on pursuing a

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policy of non-enforcement of immigration laws, Georgia is left with no option but to address the problem

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directly. The immigration status law passed by the State of Georgia. which is the basis of the underlying

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complaint, should be found by the Court to be a valid State action under the Tenth Amendment, because

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Congress has not prohibited the State from so acting and because the State of Georgia has a compelling

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interest in protecting the health, safely, and welfare of all those who are lawfully within its borders.
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AMICUS BRIEF I" SUPPORT OF DEFENDA:'-;TS' MOTION TO DISMISS

DIFFICULTY IN MAKING DETERMINATIONS OF LEGAL STATUS BASED ON FEDERAL

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LAW DOES NOT PREVENT STATES FROM PASSING LAWS REGARDING ILLEGAL

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IMMIGRATION

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The plaintiffs frequently refer to the difficulty of making determinations of immigration stalus,

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extending to the Federal agencies that are supposed to be experts making such determinations. The mere

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fact that Congress has written laws that are immensely complicated, even for those whose responsibility it

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is to enforce said laws, should not require that Georgia refrain from attempting to do anything about the

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problem of illegal immigration in the State. Likewise, it is not the problem of the State of Georgia that

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the Federal immigration database requires an average of 80 minutes to conduct a search. Tfthe Federal

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government needs to upgrade their databases, it should do so, but whether the Federal government does s

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should not prevent Georgia from attempting to take control over the problems that illegal immigration

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cause to the State of Georgia, and its citizens, as that is something that the police powers of the State

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allow the State to deal with.

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Tn addition, Plaintiffs, allege throughout their complaint, that ordinary law enforcement officials

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in Georgia lack the training and expertise to make determinations with regard to a person's immigration

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status, specifically pointing to the fact that the Federal government only authorizes certain approved law

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enforcement agencies in Georgia to work with the Federal government in this regard. However, the

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voluntary partnership that some Georgia counties have entered into with the Federal government does not

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preclude Georgia from independently taking action to address problems that exist within the State's

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borders.

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Finally, Plaintiffs cited several cases where injunctions were issued to stay the immigration laws

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of several States pending resolution of the cases. However, Plaintiffs failed to cite the recent Supreme

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Court ofthe United States decision in Chamber o/Commerce v. Whiling, 09-115 (2011), where the

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Supreme Court upheld an Arizona law that punished businesses that hire illegal immigrants. At the very

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least, this case shows that there is no settled case law that exclusively reserves to the Federal government
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AMICUS BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DlSMISS

any law relating to immigration, as alleged by Plaintiffs. Whiting, instead, demonstrates that the U. S.
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Supreme Court recognizes that the various States of the United States have the right to legislate issues
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related to illegal immigration within their state borders without running afoul of Federal law. All states,

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Georgia included, have the right, as recognized by the Tenth Amendment, to exercise its police powers

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over the health, safety and welfare of the citizens of the State, unless Congress has expressly intended to

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preempt such State laws. Apart from Plaintiffs' mere allegation of this "intent" of Congress, the State of

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Georgia has the right, and the authority, to defend its citizens from unlawful activity, even in the arena of

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illegal immigration.

CONCLUSION

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For these reasons, Amicus respectfully requests that the Court grant leave to file this briefin
support of Defendants' motion to dismiss.

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Respectfully Submitted,
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C-­

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G. Jason Thompson (GA SBN 709789)
THE THOMPSON LAW FIRM, PC
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200 East Crogan Street
Suite 101
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Lawrenceville, GA 30046
Tel: [phone]
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email: [e-mail]
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NATHANIEL J. OLESON' (CA SBN 276695)

UNITED STATES JUSTICE FOUNDATION

932 "D" Street, Suite 3

Ramona, California 92065

Tel: [phone]

Fax: [phone]

email: [e-mail]

email: [e-mail]

Attorney for Amicus Rightmarch.com, Joshua
Clark, and Brett Harrell

Attorneys for Amicus Rightmarch.com, Joshua
Clark, and Brett Harrell

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• Application for admission pro hac vice forthcoming

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AMICUS BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS