United States v. State of Arizona

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 10-16645
v.
STATE OF ARIZONA; JANICE K.  D.C. No.
2:10-cv-01413-SRB
BREWER, Governor of the State of
OPINION
Arizona, in her official capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
November 1, 2010—San Francisco, California
Filed April 11, 2011
Before: John T. Noonan, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Paez;
Concurrence by Judge Noonan;
Partial Concurrence and Partial Dissent by Judge Bea
4805
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UNITED STATES v. STATE OF ARIZONA 4809
COUNSEL
John J. Bouma, Robert A. Henry, Joseph G. Adams, Joseph
A. Kanefield, Office of Governor Janice K. Brewer, for
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4810 UNITED STATES v. STATE OF ARIZONA
defendants-appellants State of Arizona, and Janice K. Brewer,
Governor of the State of Arizona.
Edwin Kneedler, Deputy United States Solicitor General,
Tony West, Assistant Attorney General, Dennis K. Burke,
United States Attorney, Beth S. Brinkmann, Deputy Assistant
Attorney General, Mark B. Stern, Thomas M. Bondy, Michael
P. Abate, Daniel Tenny, Attorneys, Appellate Staff Civil
Division, Department of Justice, for plaintiff-appellee United
States of America.
OPINION
PAEZ, Circuit Judge:
In April 2010, in response to a serious problem of unautho-
rized immigration along the Arizona-Mexico border, the State
of Arizona enacted its own immigration law enforcement pol-
icy. Support Our Law Enforcement and Safe Neighborhoods
Act, as amended by H.B. 2162 (“S.B. 1070”), “make[s] attri-
tion through enforcement the public policy of all state and
local government agencies in Arizona.” S.B. 1070 § 1. The
provisions of S.B. 1070 are distinct from federal immigration
laws. To achieve this policy of attrition, S.B. 1070 establishes
a variety of immigration-related state offenses and defines the
immigration-enforcement authority of Arizona’s state and
local law enforcement officers.
Before Arizona’s new immigration law went into effect, the
United States sued the State of Arizona in federal district
court alleging that S.B. 1070 violated the Supremacy Clause
on the grounds that it was preempted by the Immigration and
Nationality Act (“INA”), and that it violated the Commerce
Clause. Along with its complaint, the United States filed a
motion for injunctive relief seeking to enjoin implementation
of S.B. 1070 in its entirety until a final decision is made about
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UNITED STATES v. STATE OF ARIZONA 4811
its constitutionality. Although the United States requested that
the law be enjoined in its entirety, it specifically argued facial
challenges to only six select provisions of the law. United
States v. Arizona, 703 F. Supp. 2d 980, 992 (D. Ariz. 2010).
The district court granted the United States’ motion for a
preliminary injunction in part, enjoining enforcement of S.B.
1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal
law likely preempts these provisions. Id. at 1008. Arizona
appealed the grant of injunctive relief, arguing that these four
sections are not likely preempted; the United States did not
cross-appeal the partial denial of injunctive relief. Thus, the
United States’ likelihood of success on its federal preemption
argument against these four sections is the central issue this
appeal presents.1
We have jurisdiction to review the district court’s order
under 28 U.S.C. § 1292(a)(1). We hold that the district court
did not abuse its discretion by enjoining S.B. 1070 Sections
2(B), 3, 5(C), and 6. Therefore, we affirm the district court’s
preliminary injunction order enjoining these certain provi-
sions of S.B. 1070.
Standard of Review
We review the district court’s grant of a preliminary injunc-
tion for abuse of discretion. Sw. Voter Registration Educ.
Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en
banc). A preliminary injunction “should be reversed if the dis-
trict court based ‘its decision on an erroneous legal standard
or on clearly erroneous findings of fact.’ ” Stormans, Inc. v.
1
A party seeking a preliminary injunction has the burden to demonstrate
that (1) it is likely to succeed on the merits of the claim, (2) it will suffer
irreparable harm absent injunctive relief, and (3) that the balance of the
equities and the public interest favor granting the injunction. Winter v.
Natural Res. Def. Council Inc., 129 S. Ct. 365, 374 (2008). Our analysis
here begins and focuses on the critical issue of the United States’ likeli-
hood of success on the merits of its preemption claim.
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4812 UNITED STATES v. STATE OF ARIZONA
Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (quoting FTC v.
Enforma Natural Prods., Inc., 362 F.3d 1204, 1211-12 (9th
Cir. 2004)). We review de novo the district court’s conclu-
sions on issues of law, including “the district court’s decision
regarding preemption and its interpretation and construction
of a federal statute.” Am. Trucking Ass’ns, Inc. v. Los Angeles,
559 F.3d 1046, 1052 (9th Cir. 2009).
Discussion
I. General Preemption Principles
[1] The federal preemption doctrine stems from the
Supremacy Clause, U.S. Const. art. VI, cl. 2, and the “funda-
mental principle of the Constitution [ ] that Congress has the
power to preempt state law.” Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 372 (2000). Our analysis of a preemp-
tion claim
[M]ust be guided by two cornerstones of [the
Supreme Court’s] pre-emption jurisprudence. First,
the purpose of Congress is the ultimate touchstone in
every pre-emption case. . . . Second, [i]n all pre-
emption cases, and particularly in those in which
Congress has legislated . . . in a field which the
States have traditionally occupied, . . . [courts] start
with the assumption that the historic police powers
of the States were not to be superseded by the Fed-
eral Act unless that was the clear and manifest pur-
pose of Congress.
Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (internal
quotation marks and citations omitted) (quoting Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
[2] Even if Congress has not explicitly provided for pre-
emption in a given statute, the Supreme Court “ha[s] found
that state law must yield to a congressional Act in at least two
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UNITED STATES v. STATE OF ARIZONA 4813
circumstances.” Crosby, 530 U.S. at 372. First, “[w]hen Con-
gress intends federal law to ‘occupy the field,’ state law in
that area is preempted.” Id. (quoting California v. ARC Amer-
ica Corp., 490 U.S. 93, 100 (1989)). Second, “even if Con-
gress has not occupied the field, state law is naturally
preempted to the extent of any conflict with a federal statute.”
Id. Conflict preemption, in turn, has two forms: impossibility
and obstacle preemption. Id. at 372-373. Impossibility pre-
emption exists “where it is impossible for a private party to
comply with both state and federal law.” Id. Obstacle preemp-
tion exists “where ‘under the circumstances of [a] particular
case, [the challenged state law] stands as an obstacle to the
accomplishment and execution of the full purposes and objec-
tives of Congress.’ ” Id. at 373 (quoting Hines v. Davidowitz,
312 U.S. 52, 67 (1941)). To determine whether obstacle pre-
emption exists, the Supreme Court has instructed that we
employ our “judgment, to be informed by examining the fed-
eral statute as a whole and identifying its purpose and
intended effects.” Id.2
We recently applied the facial challenge standard from
United States v. Salerno, 481 U.S. 739 (1987), to a facial pre-
emption case. Sprint Telephony PCS, L.P. v. County of San
Diego, 543 F.3d 571, 579-80 (9th Cir. 2008) (en banc). In
Sprint, the appellant argued that a federal law “preclud[ing]
state and local governments from enacting ordinances that
prohibit or have the effect of prohibiting the ability of any
entity to provide any interstate or intrastate telecommunica-
tions service” facially preempted a San Diego ordinance that
imposed specific requirements on applications for wireless
facilities. Id. at 573-74. We explained in Sprint that “[t]he
Supreme Court and this court have called into question the
continuing validity of the Salerno rule in the context of First
Amendment challenges. . . . In cases involving federal pre-
2
The Supreme Court has recognized “that the categories of preemption
are not “rigidly distinct.” Crosby, 530 U.S. at 372 n.6 (quoting English v.
Gen. Elec., Co., 496 U.S. 72, 79 n.5 (1990)).
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4814 UNITED STATES v. STATE OF ARIZONA
emption of a local statute, however, the rule applies with full
force.” Id. at 579, n.3.3
[3] Thus, under Salerno, “the challenger must establish
that no set of circumstances exists under which the Act would
be valid.” Sprint, 543 F.3d at 579 (quoting Salerno, 481 U.S.
at 745). We stress that the question before us is not, as Ari-
zona has portrayed, whether state and local law enforcement
officials can apply the statute in a constitutional way. Arizo-
na’s framing of the Salerno issue assumes that S.B. 1070 is
not preempted on its face, and then points out allegedly per-
missible applications of it. This formulation misses the point:
there can be no constitutional application of a statute that, on
its face, conflicts with Congressional intent and therefore is
preempted by the Supremacy Clause.4
II. Section 2(B)5
3
Although we use the Salerno standard in a preemption analysis, it is
not entirely clear from relevant Supreme Court cases the extent to which
the Salerno doctrine applies to a facial preemption challenge. Crosby, 530
U.S. 363, and American Insurance Association v. Garamendi, 539 U.S.
396 (2003) are both facial preemption cases decided after Salerno and—
on this point—are the most analogous Supreme Court cases available to
guide our review here. Neither case cites Salerno nor mentions its standard
in the opinions, concurrences, or dissents. Indeed, the only Supreme Court
preemption case that we have found which references the Salerno standard
is Anderson v. Edwards, 514 U.S. 143 (1995), which we cited in Sprint.
But Edwards does not cite Salerno in the preemption section of the opin-
ion. Rather, the Court references Salerno in the section of the Edwards
opinion holding that “the California Rule does not violate any of the three
federal regulations on which the Court of Appeals relied.” 514 U.S. at 155(emphasis added). Edwards continues on, in another section, to hold that
the California regulation at issue is also not preempted by federal law; this
analysis includes no mention of the Salerno standard.
4
Here, we conclude that the relevant provisions of S.B. 1070 facially
conflict with Congressional intent as expressed in provisions of the INA.
If that were not the case, as in Sprint, we would have next considered
whether the statute could be applied in a constitutional manner.
5
Section 2(B) of Arizona’s law provides:
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UNITED STATES v. STATE OF ARIZONA 4815
S.B. 1070 Section 2(B) provides, in the first sentence, that
when officers have reasonable suspicion that someone they
have lawfully stopped, detained, or arrested is an unautho-
rized immigrant, they “shall” make “a reasonable attempt . . .
when practicable, to determine the immigration status” of the
person. Ariz. Rev. Stat. Ann. § 11-1051(B) (2010). Section
2(B)’s second and third sentences provide that “[a]ny person
who is arrested shall have the person’s immigration status
determined before the person is released,” and “[t]he person’s
immigration status shall be verified with the federal govern-
ment.” Id. The Section’s fifth sentence states that a “person is
presumed to not be an alien who is unlawfully present in the
For any lawful stop, detention or arrest made by [an Arizona] law
enforcement official or a law enforcement agency . . . in the
enforcement of any other law or ordinance of a county, city or
town [of] this state where reasonable suspicion exists that the per-
son is an alien and is unlawfully present in the United States, a
reasonable attempt shall be made, when practicable, to determine
the immigration status of the person, except if the determination
may hinder or obstruct an investigation. Any person who is
arrested shall have the person’s immigration status determined
before the person is released. The person’s immigration status
shall be verified with the federal government pursuant to 8
United States Code section 1373(c) . . . A person is presumed to
not be an alien who is unlawfully present in the United States if
the person provides to the law enforcement officer or agency any
of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal iden-
tification.
4. If the entity requires proof of legal presence in the United
States before issuance, any valid United States federal, state
or local government issued identification.
Ariz. Rev. Stat. Ann. § 11-1051(B) (2010).
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4816 UNITED STATES v. STATE OF ARIZONA
United States if the person provides” a form of identification
included in a prescribed list.6
A. Interpretation of Section 2(B)
To review the district court’s preliminary injunction of Sec-
tion 2(B), we must first determine how the Section’s sen-
tences relate to each other. Arizona argues that Section 2(B)
does not require its officers to determine the immigration sta-
tus of every person who is arrested. Arizona maintains that
the language in the second sentence, “[a]ny person who is
arrested shall have the person’s immigration status deter-
mined,” should be read in conjunction with the first sentence
requiring officers to make “a reasonable attempt . . . when
practicable, to determine the immigration status” of a person
they have stopped, detained, or arrested, if there is reasonable
suspicion the person is an unauthorized immigrant. That is,
Arizona argues that its officers are only required to verify the
immigration status of an arrested person before release if rea-
sonable suspicion exists that the person lacks proper docu-
mentation.
On its face, the text does not support Arizona’s reading of
Section 2(B). The second sentence is unambiguous: “Any per-
son who is arrested shall have the person’s immigration status
determined before the person is released.” Ariz. Rev. Stat.
Ann. § 11-1051(B) (2010) (emphasis added). The all-
encompassing “any person,” the mandatory “shall,” and the
definite “determined,” make this provision incompatible with
the first sentence’s qualified “reasonable attempt . . . when
practicable,” and qualified “reasonable suspicion.”
6
We have carefully considered the dissent and we respond to its argu-
ments as appropriate. We do not, however, respond where the dissent has
resorted to fairy tale quotes and other superfluous and distracting rhetoric.
These devices make light of the seriousness of the issues before this court
and distract from the legitimate judicial disagreements that separate the
majority and dissent.
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UNITED STATES v. STATE OF ARIZONA 4817
In addition, Arizona’s reading creates irreconcilable confu-
sion as to the meaning of the third and fifth sentences. The
third sentence, which follows the requirement of determining
status prior to an arrestee being released, provides that “[t]he
person’s immigration status shall be verified with the federal
government.” The fifth sentence enumerates several forms of
identification that will provide a presumption that a person is
lawfully documented. These two sentences must apply to
different—and unrelated—status-checking requirements since
one mandates contact with the federal government and a defi-
nite verification of status, while the other permits a mere
unverified presumption of status, assuming the presumption is
not rebutted by other facts. Arizona’s reading would give law
enforcement officers conflicting direction. That is, under Ari-
zona’s reading, if an officer arrests a person and reasonably
suspects that the arrestee is undocumented, but the arrestee
provides a valid Arizona driver’s license, is the officer no lon-
ger bound by the third sentence’s requirement that he or she
“shall” verify the arrestee’s status with the federal govern-
ment?
[4] We agree with the district court that the reasonable sus-
picion requirement in the first sentence does not modify the
plain meaning of the second sentence. Thus, Section 2(B)
requires officers to verify—with the federal government—the
immigration status of all arrestees before they are released,
regardless of whether or not reasonable suspicion exists that
the arrestee is an undocumented immigrant. Our interpretation
gives effect to “arrest” in the first sentence and “arrest” in the
second sentence. The first and second sentences apply to dif-
ferent points in the sequential process of effecting an arrest,
and at some later point, releasing the arrestee. The mandate
imposed in the first sentence applies at the initial stage of an
encounter or arrest, which is evident by the fact that the
status-checking requirement does not override an officer’s
need to attend to an ongoing and immediate situation: “a rea-
sonable attempt shall be made, when practicable, to determine
the immigration status of the person, except if the determina-
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4818 UNITED STATES v. STATE OF ARIZONA
tion may hinder or obstruct an investigation.” (emphasis
added). The mandatory directive in the second sentence
applies at the end of the process: an arrestee’s immigration
status “shall . . . [be] determined before the person is released.”7
B. Preemption of Section 2(B)
As the Supreme Court recently instructed, every preemp-
tion analysis “must be guided by two cornerstones.” Wyeth,
129 S. Ct. at 1194. The first is that “the purpose of Congress
is the ultimate touchstone.” Id. The second is that a presump-
tion against preemption applies when “Congress has legis-
lated . . . in a field which the States have traditionally
occupied.” Id. The states have not traditionally occupied the
field of identifying immigration violations so we apply no
presumption against preemption for Section 2(B).
We begin with “the purpose of Congress” by examining the
text of 8 U.S.C. § 1357(g). In this section of the INA, titled
“Performance of immigration officer functions by State offi-
cers and employees,” Congress has instructed under what
conditions state officials are permitted to assist the Executive
in the enforcement of immigration laws. Congress has pro-
vided that the Attorney General “may enter into a written
agreement with a State . . . pursuant to which an officer or
employee of the State . . . who is determined by the Attorney
General to be qualified to perform a function of an immigra-
tion officer in relation to the investigation, apprehension, or
7
The dissent claims that Section 2(B) “merely requires Arizona officers
to inquire into the immigration status of suspected” undocumented immi-
grants; that “simply informing federal authorities of the presence of an
[undocumented immigrant]. . . represents the full extent of Section 2(B)’s
limited scope.” Dissent at 4873-74. Section 2(B) requires much more than
mere inquires—it requires that people be detained until those inquiries are
settled, and in the event of an arrest, the person may not be released until
the arresting agency obtains verification of the person’s immigration sta-
tus. Detention, whether intended or not, is an unavoidable consequence of
Section 2(B)’s mandate.
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UNITED STATES v. STATE OF ARIZONA 4819
detention of aliens in the United States . . . may carry out such
function.” 8 U.S.C. § 1357(g)(1). Subsection (g)(3) provides
that “[i]n performing a function under this subsection, an offi-
cer . . . of a State . . . shall be subject to the direction and
supervision of the Attorney General.” 8 U.S.C. § 1357(g)(3).
Subsection (g)(5) requires that the written agreement must
specify “the specific powers and duties that may be, or are
required to be, exercised or performed by the individual, the
duration of the authority of the individual, and the position of
the agency of the Attorney General who is required to super-
vise and direct the individual.” 8 U.S.C. § 1357(g)(5).
These provisions demonstrate that Congress intended for
states to be involved in the enforcement of immigration laws
under the Attorney General’s close supervision. Not only
must the Attorney General approve of each individual state
officer, he or she must delineate which functions each individ-
ual officer is permitted to perform, as evidenced by the dis-
junctive “or” in subsection (g)(1)’s list of “investigation,
apprehension, or detention,” and by subsection (g)(5). An
officer might be permitted to help with investigation, appre-
hension and detention; or, an officer might be permitted to
help only with one or two of these functions. Subsection
(g)(5) also evidences Congress’ intent for the Attorney Gen-
eral to have the discretion to make a state officer’s help with
a certain function permissive or mandatory. In subsection
(g)(3), Congress explicitly required that in enforcing federal
immigration law, state and local officers “shall” be directed
by the Attorney General. This mandate forecloses any argu-
ment that state or local officers can enforce federal immigra-
tion law as directed by a mandatory state law.
We note that in subsection (g)(10), Congress qualified its
other § 1357(g) directives:
Nothing in this subsection shall be construed to
require an agreement . . . in order for any officer or
employee of a State . . . (A) to communicate with the
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4820 UNITED STATES v. STATE OF ARIZONA
Attorney General regarding the immigration status of
any individual . . . or (B) otherwise to cooperate with
the Attorney General in the identification, apprehen-
sion, detention, or removal of aliens not lawfully
present.
8 U.S.C. § 1357(g)(10). Although this language, read alone,
is broad, we must interpret Congress’ intent in adopting sub-
section (g)(10) in light of the rest of § 1357(g). Giving sub-
section (g)(10) the breadth of its isolated meaning would
completely nullify the rest of § 1357(g), which demonstrates
that Congress intended for state officers to aid in federal
immigration enforcement only under particular conditions,
including the Attorney General’s supervision. Subsection
(g)(10) does not operate as a broad alternative grant of author-
ity for state officers to systematically enforce the INA outside
of the restrictions set forth in subsections (g)(1)-(9).
The inclusion of the word “removal” in subsection
(g)(10)(B) supports our narrow interpretation of subsection
(g)(10). Even state and local officers authorized under
§ 1357(g) to investigate, apprehend, or detain immigrants do
not have the authority to remove immigrants; removal is
exclusively the purview of the federal government. By includ-
ing “removal” in § 1357(g)(10)(B), we do not believe that
Congress intended to grant states the authority to remove
immigrants. Therefore, the inclusion of “removal” in the list
of ways that a state may “otherwise [ ] cooperate with the
Attorney General,” indicates that subsection (g)(10) does not
permit states to opt out of subsections (g)(1)-(9) and systemat-
ically enforce the INA in a manner dictated by state law,
rather than by the Attorney General. We therefore interpret
subsection (g)(10)(B) to mean that when the Attorney General
calls upon state and local law enforcement officers—or such
officers are confronted with the necessity—to cooperate with
federal immigration enforcement on an incidental and as
needed basis, state and local officers are permitted to provide
this cooperative help without the written agreements that are
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UNITED STATES v. STATE OF ARIZONA 4821
required for systematic and routine cooperation.8 Similarly,
we interpret subsection (g)(10)(A) to mean that state officers
can communicate with the Attorney General about immigra-
tion status information that they obtain or need in the perfor-
mance of their regular state duties. But subsection (g)(10)(A)
does not permit states to adopt laws dictating how and when
state and local officers must communicate with the Attorney
General regarding the immigration status of an individual.
Subsection (g)(10) does not exist in a vacuum; Congress
enacted it alongside subsections (g)(1)-(9) and we therefore
interpret subsection (g)(10) as part of a whole, not as an iso-
lated provision with a meaning that is unencumbered by the
other constituent parts of § 1357(g).9
[5] In sum, 8 U.S.C. § 1357(g) demonstrates that Congress
intended for state officers to systematically aid in immigration
enforcement only under the close supervision of the Attorney
8
In a footnote, the dissent constructs an imaginary scenario where offi-
cers in the Pima County Sheriff’s Office are confused by our holding that
they must have a § 1357(g) agreement to cooperate with federal officials
in immigration enforcement on a systematic and routine basis. Dissent at
4866, n.9. We trust that law enforcement officers will make good faith
efforts to comply with our interpretation of federal law and will carry out
their duties accordingly.
9
Our interpretation of subsection (g)(10) is also supported by 8 U.S.C.
§ 1103(a)(10), which states that “[i]n the event the Attorney General deter-
mines that an actual or imminent mass influx of aliens arriving off the
coast of the United States, or near a land border, presents urgent circum-
stances requiring an immediate Federal response, the Attorney General
may authorize any State or local law enforcement officer, with the consent
of the head of the department, agency, or establishment under whose juris-
diction the individual is serving, to perform or exercise any of the powers,
privileges, or duties conferred or imposed by this chapter or regulations
issued thereunder upon officers or employees of the Service.” If subsec-
tion (g)(10) meant that state and local officers could routinely perform the
functions of DHS officers outside the supervision of the Attorney General,
there would be no need for Congress to give the Attorney General the abil-
ity, in § 1103(a)(10), to declare an “actual or imminent mass influx of
aliens,” and to authorize “any State or local law enforcement officer” to
perform the functions of a DHS officer.
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4822 UNITED STATES v. STATE OF ARIZONA
General—to whom Congress granted discretion in determin-
ing the precise conditions and direction of each state officer’s
assistance. We find it particularly significant for the purposes
of the present case that this discretion includes the Attorney
General’s ability to make an individual officer’s immigration-
enforcement duties permissive or mandatory. 8 U.S.C.
§ 1357(g)(5). Section 2(B) sidesteps Congress’ scheme for
permitting the states to assist the federal government with
immigration enforcement. Through Section 2(B), Arizona has
enacted a mandatory and systematic scheme that conflicts
with Congress’ explicit requirement that in the
“[p]erformance of immigration officer functions by State offi-
cers and employees,” such officers “shall be subject to the
direction and supervision of the Attorney General.” 8 U.S.C.
§ 1357(g)(3). Section 2(B) therefore interferes with Congress’
scheme because Arizona has assumed a role in directing its
officers how to enforce the INA. We are not aware of any
INA provision demonstrating that Congress intended to per-
mit states to usurp the Attorney General’s role in directing
state enforcement of federal immigration laws.
Arizona argues that in another INA provision, “Congress
has expressed a clear intent to encourage the assistance from
state and local law enforcement officers,” citing 8 U.S.C.
§ 1373(c). Section 1373(c) creates an obligation, on the part
of the Department of Homeland Security (“DHS”), to “re-
spond to an inquiry by a Federal, State, or local government
agency, seeking to verify or ascertain the citizenship or immi-
gration status of any individual . . . for any purpose authorized
by law.”
We agree that § 1373(c) demonstrates that Congress con-
templated state assistance in the identification of undocu-
mented immigrants.10 We add, however, that Congress
10
We also agree with the dissent that “Congress envisioned, intended,
and encouraged inter-governmental cooperation between state and federal
agencies, at least as to information regarding a person’s immigration sta-
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UNITED STATES v. STATE OF ARIZONA 4823
contemplated this assistance within the boundaries established
in § 1357(g), not in a manner dictated by a state law that fur-
thers a state immigration policy. Congress passed § 1373(c) at
the same time that it added subsection (g) to § 1357. See
Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104-
208, §§ 133, 642 (1996). Thus, Congress directed the appro-
priate federal agency to respond to state inquiries about immi-
gration status at the same time that it authorized the Attorney
General to enter into § 1357(g) agreements with states. Ari-
zona and the dissent urge a very broad interpretation of
§ 1373(c): because DHS is obligated to respond to identity
inquiries from state and local officers, they argue, Arizona
must be permitted to direct its officers how and when to
enforce federal immigration law in furtherance of the state’s
own immigration policy of attrition. This interpretation would
result in one provision swallowing all ten subsections of
§ 1357(g), among other INA sections. Our task, however, is
not to identify one INA provision and conclude that its text
alone holds the answer to the question before us. Rather, we
must determine how the many provisions of a vastly complex
statutory scheme function together. Because our task is to
interpret the meaning of many INA provisions as a whole, not
§ 1373(c) and § 1357(g)(10) at the expense of all others, we
are not persuaded by the dissent’s argument, which considers
these provisions in stark isolation from the rest of the statute.11
tus.” Dissent at 4879. We are convinced, however, that this cooperation
is to occur on the federal government’s terms, not on those mandated by
Arizona. In light of the dissent’s extensive discussion of the word “cooper-
ate,” we note what would seem to be fairly obvious: given that the United
States has had to sue the State of Arizona to stop it from enforcing S.B.
1070, it is quite clear that Arizona is not “cooperating” with the federal
government in any sense of the word. Arizona does not seek inter-
governmental cooperation—it seeks to pursue its own policy of “attrition
through enforcement.” S.B. 1070 § 1.
11
Arizona also cites 8 U.S.C. §§ 1373(a) and 1644 in support of its argu-
ment that “Congress has expressed a clear intent to encourage the assis-
tance from state and local law enforcement officers.” These sections are
anti-sanctuary provisions. That the federal government prohibits States
from impeding the enforcement of federal immigration laws does not con-
stitute an invitation for states to affirmatively enforce immigration laws
outside Congress’ carefully constructed § 1357(g) system.
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4824 UNITED STATES v. STATE OF ARIZONA
In addition to providing the Attorney General wide discre-
tion in the contents of each § 1357(g) agreement with a state,
Congress provided the Executive with a fair amount of discre-
tion to determine how federal officers enforce immigration
law. The majority of § 1357 grants powers to DHS officers
and employees to be exercised within the confines of the
Attorney General’s regulations; this section contains few
mandatory directives from Congress to the Attorney General
or DHS. The Executive Associate Director for Management
and Administration at U.S. Immigration and Customs
Enforcement within DHS has explained the purpose of this
Congressionally-granted discretion: “DHS exercises a large
degree of discretion in determining how best to carry out its
enforcement responsibilities” which “necessitates prioritiza-
tion to ensure ICE expends resources most efficiently to
advance the goals of protecting national security, protecting
public safety, and securing the border.”
[6] By imposing mandatory obligations on state and local
officers, Arizona interferes with the federal government’s
authority to implement its priorities and strategies in law
enforcement, turning Arizona officers into state-directed DHS
agents. As a result, Section 2(B) interferes with Congress’
delegation of discretion to the Executive branch in enforcing
the INA. To assess the impact of this interference in our pre-
emption analysis, we are guided by the Supreme Court’s deci-
sions in Crosby, 530 U.S. 363, and Buckman Co. v. Plaintiffs’
Legal Comm., 531 U.S. 341 (2001). In Crosby, where the
Court found that a state law was preempted because it posed
an obstacle to Congress’ intent, the Court observed that “Con-
gress clearly intended the federal Act to provide the President
with flexible and effective authority,” and that the state law’s
“unyielding application undermines the President’s intended
statutory authority.” 530 U.S. at 374, 377. In Buckman, the
Court found that state fraud-on-the-Food And Drug Adminis-
tration claims conflicted with the relevant federal statute and
were preempted, in part because “flexibility is a critical com-
ponent of the statutory and regulatory framework” of the fed-
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UNITED STATES v. STATE OF ARIZONA 4825
eral law, and the preempted state claims would have disrupted
that flexibility. 531 U.S. at 349. The Court observed that
“[t]his flexibility is a critical component of the statutory and
regulatory framework under which the FDA pursues difficult
(and often competing) objectives.” Id.[7] In light of this guidance, Section 2(B)’s interference
with Congressionally-granted Executive discretion weighs in
favor of preemption. Section 2(B)’s ‘unyielding” mandatory
directives to Arizona law enforcement officers “undermine[ ]
the President’s intended statutory authority” to establish
immigration enforcement priorities and strategies. Crosby,
530 U.S. at 377. Furthermore, “flexibility is a critical compo-
nent of the statutory and regulatory framework under which
the” Executive “pursues [the] difficult (and often competing)
objectives,” Buckman, 531 U.S. at 349, of—according to ICE
—”advanc[ing] the goals of protecting national security, pro-
tecting public safety, and securing the border.” Through Sec-
tion 2(B), Arizona has attempted to hijack a discretionary role
that Congress delegated to the Executive.
In light of the above, S.B. 1070 Section 2(B) “stands as an
obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress” as expressed in the afore-
mentioned INA provisions. Hines, 312 U.S. at 67. The law
subverts Congress’ intent that systematic state immigration
enforcement will occur under the direction and close supervi-
sion of the Attorney General. Furthermore, the mandatory
nature of Section 2(B)’s immigration status checks is incon-
sistent with the discretion Congress vested in the Attorney
General to supervise and direct State officers in their immi-
gration work according to federally-determined priorities. 8
U.S.C. § 1357(g)(3).
[8] In addition to Section 2(B) standing as an obstacle to
Congress’ statutorily expressed intent, the record unmistak-
ably demonstrates that S.B. 1070 has had a deleterious effect
on the United States’ foreign relations, which weighs in favor
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4826 UNITED STATES v. STATE OF ARIZONA
of preemption. See generally Garamendi, 539 U.S. 396 (find-
ing obstacle preemption where a State law impinged on the
Executive’s authority to singularly control foreign affairs);
Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated
that “even . . . the likelihood that state legislation will produce
something more than incidental effect in conflict with express
foreign policy of the National Government would require pre-
emption of the state law.” 539 U.S. at 420 (emphasis added).12
[9] The record before this court demonstrates that S.B.
1070 does not threaten a “likelihood . . . [of] produc[ing]
something more than incidental effect;” rather, Arizona’s law
has created actual foreign policy problems of a magnitude far
greater than incidental. Garamendi, 539 U.S. at 419 (empha-
sis added). Thus far, the following foreign leaders and bodies
have publicly criticized Arizona’s law: The Presidents of
Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the
governments of Brazil, Colombia, Honduras, and Nicaragua;
the national assemblies in Ecuador and Nicaragua and the
Central American Parliament; six human rights experts at the
United Nations; the Secretary General and many permanent
representatives of the Organization of American States; the
Inter-American Commission on Human Rights; and the Union
of South American Nations.
In addition to criticizing S.B. 1070, Mexico has taken affir-
mative steps to protest it. As a direct result of the Arizona
law, at least five of the six Mexican Governors invited to
travel to Phoenix to participate in the September 8-10, 2010
12
The Court’s decision in Hines, 312 U.S. 52, demonstrates that the
Court has long been wary of state statutes which may interfere with for-
eign relations. In Hines, the Court considered whether Pennsylvania’s
1939 Alien Registration Act survived the 1940 passage of the federal
Alien Registration Act. Id. at 59-60. The Court found that the Pennsylva-
nia Act could not stand because Congress “plainly manifested a purpose
. . . to leave [law-abiding immigrants] free from the possibility of inquisi-
torial practices and police surveillance that might . . . affect our interna-
tional relations.” Id. at 74.
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UNITED STATES v. STATE OF ARIZONA 4827
U.S.-Mexico Border Governors’ Conference declined the
invitation. The Mexican Senate has postponed review of a
U.S.-Mexico agreement on emergency management coopera-
tion to deal with natural disasters.
In Crosby, the Supreme Court gave weight to the fact that
the Assistant Secretary of State said that the state law at issue
“has complicated its dealings with foreign sovereigns.” 530
U.S. at 383-84. Similarly, the current Deputy Secretary of
State, James B. Steinberg, has attested that S.B. 1070 “threat-
ens at least three different serious harms to U.S. foreign rela-
tions.”13 In addition, the Deputy Assistant Secretary for
International Policy and Acting Assistant Secretary for Inter-
national Affairs at DHS has attested that Arizona’s immigra-
tion law “is affecting DHS’s ongoing efforts to secure
international cooperation in carrying out its mission to safe-
guard America’s people, borders, and infrastructure.” The
Supreme Court’s direction about the proper use of such evi-
dence is unambiguous: “statements of foreign powers neces-
sarily involved[,] . . . indications of concrete disputes with
those powers, and opinions of senior National Government
officials are competent and direct evidence of the frustration
of congressional objectives by the state Act.” Crosby, 530
U.S. at 385.14 Here, we are presented with statements attribut-
13
Arizona submitted a declaration from Otto Reich, who served in pre-
vious Administrations as, among other things, the U.S. Ambassador to
Venezuela, former Assistant Administrator of USAID, and the Assistant
Secretary of State for Western Hemisphere Affairs. Mr. Reich currently
works in the private sector, and as a result, the district court could properly
give little weight to his rebuttal of Mr. Steinberg’s assertions about the
impact of S.B. 1070 on current foreign affairs.
14
Thus, Arizona’s extensive criticism of this court for permitting foreign
governments to file Amicus Curiae briefs is misguided. These briefs are
relevant to our decision-making in this case insofar as they demonstrate
the factual effects of Arizona’s law on U.S. foreign affairs, an issue that
the Supreme Court has directed us to consider in preemption cases.
Similarly, the dissent asserts that our reasoning grants a “heckler’s
veto” to foreign ministries and argues that a “foreign nation may not cause
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4828 UNITED STATES v. STATE OF ARIZONA
able to foreign governments necessarily involved and opin-
ions of senior United States’ officials: together, these factors
persuade us that Section 2(B) thwarts the Executive’s ability
to singularly manage the spillover effects of the nation’s
immigration laws on foreign affairs.
[10] Finally, the threat of 50 states layering their own
immigration enforcement rules on top of the INA also weighs
in favor of preemption. In Wis. Dep’t of Indus., Labor and
Human Relations v. Gould Inc., 475 U.S. 282, 288 (1986),
where the Court found conflict preemption, the Court
explained that “[e]ach additional [state] statute incrementally
diminishes the [agency’s] control over enforcement of the
[federal statute] and thus further detracts from the integrated
scheme of regulation created by Congress.” (internal citations
a state law to be preempted simply by complaining about the law’s effects
on foreign relations generally.” Dissent at 4880. As a preliminary matter,
we disagree with the dissent’s characterization of our opinion, as we do
not conclude that a foreign government’s complaints alone require pre-
emption. Our consideration of this evidence is consistent with the
Supreme Court’s concern that we not disregard or minimize the impor-
tance of such evidence. Garamendi, 539 U.S. at 419; Crosby, 530 U.S. at
385-86. Moreover, the dissent implies that S.B. 1070 is merely an internal
affair, which is contrary to the Supreme Court’s opinion in Hines. In strik-
ing down the Pennsylvania 1939 Alien Registration Act, the Court stated
that:
The Federal Government, representing as it does the collective
interests of the forty-eight states, is entrusted with full and exclu-
sive responsibility for the conduct of affairs with foreign sover-
eignties. “For local interests the several states of the Union exist,
but for national purposes, embracing our relations with foreign
nations, we are but one people, one nation, one power.” Our sys-
tem of government is such that the interest of the cities, counties
and states, no less than the interest of the people of the whole
nation, imperatively requires that federal power in the field
affecting foreign relations be left entirely free from local interfer-
ence.
Hines, 312 U.S. at 62 (quoting The Chinese Exclusion Cases (Chae Chan
Ping v. United States), 130 U.S. 581, 606 (1889)).
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UNITED STATES v. STATE OF ARIZONA 4829
omitted). See also Buckman, 531 U.S. at 350 (“[a]s a practical
matter, complying with the [federal law’s] detailed regulatory
regime in the shadow of 50 States’ tort regimes will dramati-
cally increase the burdens facing potential applicants-burdens
not contemplated by Congress in enacting the [federal
laws]”).
[11] In light of the foregoing, we conclude that the United
States has met its burden to show that there is likely no set of
circumstances under which S.B. 1070 Section 2(B) would be
valid, and it is likely to succeed on the merits of its challenge.
The district court did not abuse its discretion by concluding
the same.
III. Section 3
[12] S.B. 1070 Section 3 provides: “In addition to any vio-
lation of federal law, a person is guilty of willful failure to
complete or carry an alien registration document if the person
is in violation of 8 United States Code section 1304(e) or
1306(a).”15 Ariz. Rev. Stat. Ann. § 13-1509(A) (2010). The
penalty for violating Section 3 is a maximum fine of one hun-
dred dollars, a maximum of twenty days in jail for a first vio-
15
8 U.S.C. § 1304(e) provides: “Every alien, eighteen years of age and
over, shall at all times carry with him and have in his personal possession
any certificate of alien registration or alien registration receipt card issued
to him pursuant to subsection (d) of this section. Any alien who fails to
comply with the provisions of this subsection shall be guilty of a misde-
meanor and shall upon conviction for each offense be fined not to exceed
$100 or be imprisoned not more than thirty days, or both.”
8 U.S.C. § 1306(a) further provides: “Any alien required to apply for
registration and to be fingerprinted in the United States who willfully fails
or refuses to make such application or to be fingerprinted, and any parent
or legal guardian required to apply for the registration of any alien who
willfully fails or refuses to file application for the registration of such alien
shall be guilty of a misdemeanor and shall, upon conviction thereof, be
fined not to exceed $1,000 or be imprisoned not more than six months, or
both.”
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4830 UNITED STATES v. STATE OF ARIZONA
lation, and a maximum of thirty days in jail for subsequent
violations. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3
“does not apply to a person who maintains authorization from
the federal government to remain in the United States.” Ariz.
Rev. Stat. Ann. § 13-1509(F) (2010). Section 3 essentially
makes it a state crime for unauthorized immigrants to violate
federal registration laws.
Starting with the touchstones of preemption, punishing
unauthorized immigrants for their failure to comply with fed-
eral registration laws is not a field that states have “tradition-
ally occupied.” Wyeth, 129 S. Ct. at 1194 (internal quotations
and citations omitted); see generally Hines, 312 U.S. 52.
Therefore, we conclude that there is no presumption against
preemption of Section 3.
[13] Determining Congress’ purpose, and whether Section
3 poses an obstacle to it, first requires that we evaluate the
text of the federal registration requirements in 8 U.S.C.
§§ 1304 and 1306. These sections create a comprehensive
scheme for immigrant registration, including penalties for
failure to carry one’s registration document at all times, 8
U.S.C. § 1304(e), and penalties for willful failure to register,
failure to notify change of address, fraudulent statements, and
counterfeiting. 8 U.S.C. § 1306 (a)-(d). These provisions
include no mention of state participation in the registration
scheme. By contrast, Congress provided very specific direc-
tions for state participation in 8 U.S.C. § 1357, demonstrating
that it knew how to ask for help where it wanted help; it did
not do so in the registration scheme.
Arizona argues that Section 3 is not preempted because
Congress has “invited states to reinforce federal alien classifi-
cations.” Attempting to support this argument, Arizona cites
INA sections outside the registration scheme where Congress
has expressly indicated how and under what conditions states
should help the federal government in immigration regulation.
See 8 U.S.C. §§ 1621-25, 1324a(h)(2). The sections Arizona
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UNITED STATES v. STATE OF ARIZONA 4831
cites authorize states to limit certain immigrants’ eligibility
for benefits and to impose sanctions on employers who
employ unauthorized immigrants. We are not persuaded by
Arizona’s argument. An authorization from one section does
not—without more—carry over to other sections. Nothing in
the text of the INA’s registration provisions indicates that
Congress intended for states to participate in the enforcement
or punishment of federal immigration registration rules.
[14] In addition, S.B. 1070 Section 3 plainly stands in
opposition to the Supreme Court’s direction: “where the fed-
eral government, in the exercise of its superior authority in
this field, has enacted a complete scheme of regulation and
has therein provided a standard for the registration of aliens,
states cannot, inconsistently with the purpose of Congress,
conflict or interfere with, curtail or complement, the federal
law, or enforce additional or auxiliary regulations.” Hines,
312 U.S. at 66-67. In Hines, the Court considered the preemp-
tive effect of a precursor to the INA, but the Court’s language
speaks in general terms about “a complete scheme of
regulation,”—as to registration, documentation, and posses-
sion of proof thereof— which the INA certainly contains.
Section 3’s state punishment for federal registration violations
fits within the Supreme Court’s very broad description of pro-
scribed state action in this area—which includes “comple-
ment[ing]” and “enforc[ing] additional or auxiliary
regulations.”16 Id.16
We are also unpersuaded by Arizona’s contention that our decision in
Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation &
Dev. Comm’n, 410 F.3d 492 (9th Cir. 2005), permits the State to impose
a requirement that is the same as the federal standard. In Air Conditioning,
we considered the effect of an express preemption provision in a federal
statute that regulated activity in an area “where there is no history of sig-
nificant federal presence.” Id. at 494-96. Therefore, we applied a presump-
tion against preemption which required us to give the express preemption
provision “a narrow interpretation.” Id. at 496. By contrast, there is a “his-
tory of significant federal presence” in immigration registration, so there
is no presumption against preemption of Section 3. Moreover, there is no
express preemption provision in the federal registration scheme for this
court to interpret—narrowly or otherwise. Therefore, our decision in Air
Conditioning is not relevant here.
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4832 UNITED STATES v. STATE OF ARIZONA
The Supreme Court’s more recent preemption decisions
involving comprehensive federal statutory schemes also indi-
cate that federal law preempts S.B. 1070 Section 3. In Buck-
man, the Supreme Court held that the Food Drug and
Cosmetics Act (“FDCA”) conflict preempted a state law fraud
claim against defendants who allegedly made misrepresenta-
tions to the Food and Drug Administration (“FDA”). 531 U.S.
at 343. The Court explained that private parties could not
assert state-fraud on the FDA claims because, “the existence
of the[ ] federal enactments is a critical element in their case.”
Id. at 353. The same principle applies here to S.B. 1070 Sec-
tion 3, which makes the substantive INA registration require-
ments “a critical element” of the state law.
By contrast, the Supreme Court found that state law claims
were not preempted in Medtronic, Inc. v. Lohr, 518 U.S. 470(1996) (holding that an express preemption provision in the
federal Medical Device Amendments to the FDCA did not
preclude a state common law negligence action against the
manufacturer of an allegedly defective medical device), Altria
Grp., Inc. v. Good, 129 S. Ct. 538 (2008) (holding that the
federal Labeling Act did not expressly preempt plaintiffs’
claims under the Maine Unfair Trade Practices Act alleging
that Altria’s advertising of light cigarettes was fraudulent), or
Wyeth, 129 S. Ct. at 1193 (holding that the FDA’s drug label-
ing judgments pursuant to the FDCA did not obstacle preempt
state law products liability claims). In these cases, the state
laws’ “generality le[ft] them outside the category of require-
ments that [the federal statute] envisioned.” Medtronic, 518
U.S. at 502. The state law claim in Medtronic was negligence,
518 U.S. at 502, the state statute in Altria was unfair business
practices, 129 S. Ct. at 541, and the state law claim in Wyeth
was products liability, 129 S. Ct. at 1193. All of the state laws
at issue in these cases had significantly wider applications
than the federal statutes that the Court found did not preempt
them. Here, however, Section 3’s “generality” has no wider
application than the INA.
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UNITED STATES v. STATE OF ARIZONA 4833
In addition, as detailed with respect to Section 2(B) above,
S.B. 1070’s detrimental effect on foreign affairs, and its
potential to lead to 50 different state immigration schemes pil-
ing on top of the federal scheme, weigh in favor of the pre-
emption of Section 3.
[15] In light of the foregoing, we conclude that the United
States has met its burden to show that there is likely no set of
circumstances under which S.B. 1070 Section 3 would be
valid, and it is likely to succeed on the merits of its challenge.
The district court did not abuse its discretion by concluding
the same.
IV. Section 5(C)
[16] S.B. 1070 Section 5(C) provides that it “is unlawful
for a person who is unlawfully present in the United States
and who is an unauthorized alien to knowingly apply for
work, solicit work in a public place or perform work as an
employee or independent contractor in this state.” Ariz. Rev.
Stat. Ann. § 13-2928(C) (2010). Violation of this provision is
a class 1 misdemeanor, which carries a six month maximum
term of imprisonment. Ariz. Rev. Stat. Ann. §§ 13-2928(F),
13-707(A)(1) (2010). Thus, Section 5(C) criminalizes unau-
thorized work and attempts to secure such work.
We have previously found that “because the power to regu-
late the employment of unauthorized aliens remains within the
states’ historic police powers, an assumption of non-
preemption applies here.” Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted,
Chamber of Commerce of the U.S. v. Candelaria, 130 S. Ct.
3498 (2010). Therefore, with respect to S.B. 1070 Section
5(C), we “start with the assumption that the historic police
powers of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of Con-
gress.” Wyeth, 129 S. Ct. at 1194 (internal quotations and cita-
tions omitted) (quoting Medtronic, 518 U.S. at 485).
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4834 UNITED STATES v. STATE OF ARIZONA
Within the INA, Congress first tackled the problem of
unauthorized immigrant employment in the Immigration
Reform and Control Act of 1986 (“IRCA”). We have previ-
ously reviewed IRCA’s legislative history and Congress’
decision not to criminalize unauthorized work. See Nat’l Ctr.
for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir.
1990), rev’d on other grounds, 502 U.S. 183 (1991). In this
case, we are bound by our holding in National Center regard-
ing Congressional intent.
[17] In National Center, we considered whether the INA,
through 8 U.S.C. § 1252(a), authorized the Immigration and
Naturalization Service (“INS”) to promulgate regulations
which “imposed a condition against employment in appear-
ance and delivery bonds of aliens awaiting deportation hear-
ings.” Id. at 1351. To decide this question, we carefully
reviewed the history of employment-related provisions in the
INA’s legislative scheme—including the legislative history of
the IRCA amendments. Id. at 1364-70. We concluded that
“[w]hile Congress initially discussed the merits of fining,
detaining or adopting criminal sanctions against the employee,
it ultimately rejected all such proposals . . . Congress quite
clearly was willing to deter illegal immigration by making
jobs less available to illegal aliens but not by incarcerating or
fining aliens who succeeded in obtaining work.”17 Id. at 1367-
68.
[18] At oral argument, Arizona asserted that National Cen-
ter does not control our analysis of Section 5(C) because it
addressed the limited issue of whether the INS could require
a condition against working in appearance and delivery
bonds, which—according to Arizona—has no application to
17
We find it particularly relevant here that during the hearings which
shaped IRCA, the Executive Assistant to the INS Commissioner stated
that the INS did “not expect the individual to starve in the United States
while he is exhausting both the administrative and judicial roads that the
[INA] gives him.” National Center, 913 F.2d at 1368.
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UNITED STATES v. STATE OF ARIZONA 4835
whether a state statute can criminalize unauthorized work. We
agree that the ultimate legal question before us in National
Center was distinct from the present dispute. Nonetheless, we
do not believe that we can revisit our previous conclusion
about Congress’ intent simply because we are considering the
effect of that intent on a different legal question. See Over-
street v. United Bhd. of Carpenters and Joiners of America,
Local Union No. 1506, 409 F.3d 1199, 1205 n.8 (9th Cir.
2005) (“Ordinarily, a three-judge panel ‘may not overrule a
prior decision of the court.’ ” (quoting Miller v. Gammie, 335
F.3d 889, 899 (9th Cir. 2003) (en banc)). Therefore, our deci-
sion in National Center requires us to conclude that federal
law likely preempts S.B. 1070 Section 5(C), since the state
law conflicts with what we have found was Congress’ IRCA
intent.
[19] The text of the relevant IRCA statutory provision—8
U.S.C. § 1324a—also supports this conclusion. Section 1324a
establishes a complex scheme to discourage the employment
of unauthorized immigrants—primarily by penalizing
employers who knowingly or negligently hire them. The stat-
ute creates a system through which employers are obligated
to verify work authorization.18 8 U.S.C. § 1324a(b). The veri-
18
In Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir.
2009), cert. granted sub nom., Chamber of Commerce of the U.S. v.
Candelaria, 130 S. Ct. 3498 (2010), we held that IRCA did not preempt
the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq.
IRCA contains an express preemption provision, as well as a savings
clause: “The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing and sim-
ilar laws) upon those who employ . . . unauthorized aliens.” 8 U.S.C.
§ 1324a(h)(2). In Chicanos, we held that the Legal Arizona Workers Act
—which targets employers who hire undocumented immigrants and
revokes their state business licenses—fits within Congress’ intended
meaning of “licensing” law in IRCA’s savings clause and is therefore not
preempted. 558 F.3d at 864-66. We also held that the INA, which makes
the use of E-Verify voluntary, does not impliedly preempt Arizona from
mandating that employers use the E-Verify system. Id. at 866-67.
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4836 UNITED STATES v. STATE OF ARIZONA
fication process includes a requirement that potential employ-
ees officially attest that they are authorized to work. 8 U.S.C.
§ 1324a(b)(2). The statute provides that the forms potential
employees use to make this attestation “may not be used for
purposes other than for enforcement of this chapter and” 18
U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C.
§ 1324a(b)(5). These sections of Title 18 criminalize know-
ingly making a fraudulent statement or writing; knowingly
making or using a false or stolen identification document;
forging or falsifying an immigration document; and commit-
ting perjury by knowingly making a false statement after tak-
ing an oath in a document or proceeding to tell the truth. This
is the exclusive punitive provision against unauthorized work-
ers in 8 U.S.C § 1324a. All other penalties in the scheme are
exacted on employers, reflecting Congress’ choice to exert the
vast majority of pressure on the employer side.
In addition, other provisions in 8 U.S.C. § 1324a provide
affirmative protections to unauthorized workers, demonstrat-
ing that Congress did not intend to permit the criminalization
of work. Subsection 1324a(d)(2)(C) provides that “[a]ny per-
sonal information utilized by the [authorization verification]
system may not be made available to Government agencies,
employers, and other persons except to the extent necessary
to verify that an individual is not an unauthorized alien.” This
provision would prohibit Arizona from using personal infor-
mation in the verification system for the purpose of investi-
gating or prosecuting violations of S.B. 1070 Section 5(C).
Subsection 1324a(d)(2)(F) provides in even clearer language
that “[t]he [verification] system may not be used for law
enforcement purposes, other than for enforcement of this
chapter or” the aforementioned Title 18 fraud sections.
Although Chicanos and the present case both broadly concern the preemp-
tive effect of IRCA, the specific issues in these cases do not overlap. The
scope of “licensing” law in the savings clause of the express preemption
provision in IRCA has no bearing on whether IRCA impliedly preempts
Arizona from enacting sanctions against undocumented workers.
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UNITED STATES v. STATE OF ARIZONA 4837
Subsection 1324a(g)(1) demonstrates Congress’ intent to
protect unauthorized immigrant workers from financial
exploitation—a burden less severe than incarceration. This
section provides that “[i]t is unlawful for a person or other
entity, in the hiring . . . of any individual, to require the indi-
vidual to post a bond or security, to pay or agree to pay an
amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this
section relating to such hiring . . . of the individual.” Subsec-
tion 1324a(e) provides for a system of complaints, investiga-
tion, and adjudication by administrative judges for employers
who violate subsection (g)(1). The penalty for a violation is
“$1,000 for each violation” and “an administrative order
requiring the return of any amounts received . . . to the
employee or, if the employee cannot be located, to the general
fund of the Treasury.” 8 U.S.C. § 1324a(g)(2). Here, Con-
gress could have required that employers repay only autho-
rized workers from whom they extracted a financial bond.
Instead, Congress required employers to repay any employee
—including undocumented employees. Where Congress did
not require undocumented workers to forfeit their bonds, we
do not believe Congress would sanction the criminalization of
work.
We therefore conclude that the text of 8 U.S.C. § 1324a,
combined with legislative history demonstrating Congress’
affirmative choice not to criminalize work as a method of dis-
couraging unauthorized immigrant employment, likely
reflects Congress’ clear and manifest purpose to supercede
state authority in this context. We are further guided by the
Supreme Court’s decision in Puerto Rico Dep’t of Consumer
Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988). There,
the Court explained:
[D]eliberate federal inaction could always imply pre-
emption, which cannot be. There is no federal pre-
emption in vacuo, without a constitutional text or a
federal statute to assert it. Where a comprehensive
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4838 UNITED STATES v. STATE OF ARIZONA
federal scheme intentionally leaves a portion of the
regulated field without controls, then the pre-
emptive inference can be drawn—not from federal
inaction alone, but from inaction joined with action.
Id. at 503. Given the facts in Isla, the Court could not draw
this preemptive inference because “Congress ha[d] withdrawn
from all substantial involvement in petroleum allocation and
price regulation.” Id. at 504.
The present case, however, presents facts likely to support
the kind of preemptive inference that the Supreme Court
endorsed, but did not find, in Isla. Here, Congress’ inaction
in not criminalizing work, joined with its action of making it
illegal to hire unauthorized workers, justifies a preemptive
inference that Congress intended to prohibit states from crimi-
nalizing work. Far from the situation in Isla, Congress has not
“withdrawn all substantial involvement” in preventing unau-
thorized immigrants from working in the United States. It has
simply chosen to do so in a way that purposefully leaves part
of the field unregulated.
We are also guided by the Supreme Court’s recognition,
even before IRCA, that a “primary purpose in restricting
immigration is to preserve jobs for American workers.” Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). As Arizona
states, “Section 5(C) clearly furthers the strong federal policy
of prohibiting illegal aliens from seeking employment in the
United States.” The Supreme Court has cautioned, however,
that “conflict in technique can be fully as disruptive to the
system Congress erected as conflict in overt policy.” Gould,
475 U.S. at 286 (quoting Motor Coach Emps. v. Lockridge,
403 U.S. 274, 287 (1971)). In Crosby, the Court explained
that “a common end hardly neutralizes conflicting means.”
530 U.S. at 379-80. Similarly, in Garamendi, the Court
explained that a state law was preempted because “[t]he basic
fact is that California seeks to use an iron fist where the Presi-
dent has consistently chosen kid gloves.” 539 U.S. at 427. The
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UNITED STATES v. STATE OF ARIZONA 4839
problem with a state adopting a different technique in pursuit
of the same goal as a federal law, is that “[s]anctions are
drawn not only to bar what they prohibit but to allow what
they permit, and the inconsistency of sanctions . . . under-
mines the congressional calibration of force.” Crosby, 530
U.S. at 380.
In the context of unauthorized immigrant employment,
Congress has deliberately crafted a very particular calibration
of force which does not include the criminalization of work.
By criminalizing work, S.B. 1070 Section 5(C) constitutes a
substantial departure from the approach Congress has chosen
to battle this particular problem. Therefore, Arizona’s asser-
tion that this provision “furthers the strong federal policy”
does not advance its argument against preemption. Sharing a
goal with the United States does not permit Arizona to “pull[ ]
levers of influence that the federal Act does not reach.”
Crosby, 530 U.S. at 376. By pulling the lever of criminalizing
work—which Congress specifically chose not to pull in the
INA—Section 5(C) “stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress.” Hines, 312 U.S. at 67. It is therefore likely that
federal law preempts Section 5(C).
In addition, as detailed with respect to Section 2(B) above,
S.B. 1070’s detrimental effect on foreign affairs, and its
potential to lead to 50 different state immigration schemes pil-
ing on top of the federal scheme, weigh in favor of the pre-
emption of Section 5(C).
[20] In light of the foregoing, we conclude that the United
States has met its burden to show that there is likely no set of
circumstances under which S.B. 1070 Section 5(C) would not
be preempted, and it is likely to succeed on the merits of its
challenge. The district court did not abuse its discretion by
concluding the same.
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4840 UNITED STATES v. STATE OF ARIZONA
V. Section 6
S.B. 1070 Section 6 provides that “[a] peace officer, with-
out a warrant, may arrest a person if the officer has probable
cause to believe . . . [t]he person to be arrested has committed
any public offense that makes the person removable from the
United States.”19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5)
(2010).
[21] We first address the meaning of this Section. S.B.
1070 Section 6 added only subsection 5 to Ariz. Rev. Stat.
Ann. § 13-3883(A), which authorizes warrantless arrests. Sec-
tion 13-3883(A) already allowed for warrantless arrests for
felonies, misdemeanors, petty offenses, and certain traffic-
related criminal violations. Therefore, to comply with Arizona
case law that “[e]ach word, phrase, clause, and sentence . . .
must be given meaning so that no part will be void, inert,
redundant, or trivial,” Williams v. Thude, 934 P.2d 1349,
1351 (Ariz. 1997) (internal quotations omitted), we conclude,
as the district court did, that Section 6 “provides for the war-
rantless arrest of a person where there is probable cause to
believe the person committed a crime in another state that
would be considered a crime if it had been committed in Ari-
zona and that would subject the person to removal from the
United States.” 703 F. Supp. 2d at 1005 (emphasis in origi-
nal). Section 6 also allows for warrantless arrests when there
is probable cause to believe that an individual committed a
removable offense in Arizona, served his or her time for the
criminal conduct, and was released; and when there is proba-
ble cause to believe that an individual was arrested for a
removable offense but was not prosecuted.
19
Arizona law defines “public offense” as “conduct for which a sentence
to a term of imprisonment or of a fine is provided by any law of the state
in which it occurred or by any law, regulation or ordinance of a political
subdivision of that state and, if the act occurred in a state other than this
state, it would be so punishable under the laws, regulations or ordinances
of this state or of a political subdivision of this state if the act had occurred
in this state.” Ariz. Rev. Stat. Ann. § 13-105(26) (2009).
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UNITED STATES v. STATE OF ARIZONA 4841
Thus, the question we must decide is whether federal law
likely preempts Arizona from allowing its officers to effect
warrantless arrests based on probable cause of removability.
Because arresting immigrants for civil immigration violations
is not a “field which the States have traditionally occupied,”
we do not start with a presumption against preemption of Sec-
tion 6. Wyeth, 129 S. Ct. at 1194.
[22] We first turn to whether Section 6 is consistent with
Congressional intent. As authorized by 8 U.S.C. § 1252c,
state and local officers may, “to the extent permitted by rele-
vant State . . . law,” arrest and detain an individual who:
(1) is an alien illegally present in the United States;
and
(2) has previously been convicted of a felony in the
United States and deported or left the United States
after such conviction, but only after the State or local
law enforcement officials obtain appropriate confir-
mation from the Immigration and Naturalization Ser-
vice of the status of such individual.
8 U.S.C. § 1252c (emphasis added). Nothing in this provision
permits warrantless arrests, and the authority is conditioned
on compliance with a mandatory obligation to confirm an
individual’s status with the federal government prior to arrest.
Moreover, this provision only confers state or local arrest
authority where the immigrant has been convicted of a felony.
Section 6, by contrast, permits warrantless arrests if there is
probable cause that a person has “committed any public
offense that makes the person removable.” Misdemeanors, not
just felonies, can result in removablility. See generally
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)
(en banc). Thus, Section 6 authorizes state and local officers
to effectuate more intrusive arrests than Congress has permit-
ted in Section 1252c.20 Moreover, none of the circumstances
20
Arizona argues that we should “construe[ ] section 6 so as to require
officers to confirm with federal authorities that an alien has committed a
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4842 UNITED STATES v. STATE OF ARIZONA
in which Congress has permitted federal DHS officers to
arrest immigrants without a warrant are as broad as Section 6.
Absent a federal officer actually viewing an immigration vio-
lation, warrantless arrests under 8 U.S.C. § 1357(a) require a
likelihood that the immigrant will escape before a warrant can
be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6
contains no such requirement and we are not aware of any
INA provision indicating that Congress intended state and
local law enforcement officers to enjoy greater authority to
effectuate a warrantless arrest than federal immigration offi-
cials.
Thus, Section 6 significantly expands the circumstances in
which Congress has allowed state and local officers to arrest
immigrants. Federal law does not allow these officers to con-
duct warrantless arrests based on probable cause of civil
removability, but Section 6 does. Therefore, Section 6 inter-
feres with the carefully calibrated scheme of immigration
enforcement that Congress has adopted, and it appears to be
preempted. Arizona suggests, however, that it has the inherent
authority to enforce federal civil removability without federal
authorization, and therefore that the United States will not
ultimately prevail on the merits. We do not agree. Contrary to
the State’s view, we simply are not persuaded that Arizona
has the authority to unilaterally transform state and local law
enforcement officers into a state-controlled DHS force to
carry out its declared policy of attrition.
public offense that makes the alien removable before making a warrantless
arrest under section 6.” Even if we interpreted Section 6 as Arizona sug-
gests, the provision would still permit more intrusive state arrests than
Congress has sanctioned, because it permits arrests on the basis of misde-
meanor removability, which Congress has not provided for in 8 U.S.C.
§ 1252c. Further, even if a law enforcement officer confirmed with the
federal government that an individual had been convicted of murder—a
felony that would clearly result in removability, see 8 U.S.C.
§ 1227(a)(2)(A)(iii)—Section 6 would still expand the scope of § 1252c
by permitting warrantless arrests.
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UNITED STATES v. STATE OF ARIZONA 4843
[23] We have previously suggested that states do not have
the inherent authority to enforce the civil provisions of federal
immigration law. In Gonzales v. City of Peoria, 722 F.2d 468,
475 (9th Cir. 1983), overruled on other grounds by Hodgers-
Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999), we held
that “federal law does not preclude local enforcement of the
criminal provisions of the [INA].” (Emphasis added). There,
we “assume[d] that the civil provisions of the [INA] regulat-
ing authorized entry, length of stay, residence status, and
deportation, constitute such a pervasive regulatory scheme, as
would be consistent with the exclusive federal power over
immigration.” Id. at 474-75 (emphasis added). We are not
aware of any binding authority holding that states possess the
inherent authority to enforce the civil provisions of federal
immigration law—we now hold that states do not have such
inherent authority.21
The Sixth Circuit has come to the same conclusion. United
States v. Urrieta, 520 F.3d 569 (6th Cir. 2008).22 In Urrieta,
21
The dissent argues that “the Supreme Court explicitly recognized—in
one of our California cases—that state police officers have authority to
question a suspect regarding his or her immigration status.” Dissent at
4887 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). The dissent mis-
characterizes the issue in Mena and the facts of the case in order to make
it appear relevant to the case before us now. The Court explained that “[a]s
the Court of Appeals did not hold that the detention was prolonged by the
questioning, there was no additional seizure within the meaning of the
Fourth Amendment. Hence, the officers did not need reasonable suspicion
to ask Mena for her name, date and place of birth, or immigration status.”
Id. at 101. In summarizing the facts of the case, the Court explained that,
“[a]ware that the West Side Locos gang was composed primarily of illegal
immigrants, the officers had notified the Immigration and Naturalization
Service (INS) that they would be conducting the search, and an INS offi-
cer accompanied the officers executing the warrant. During their detention
in the garage, an officer asked for each detainee’s name, date of birth,
place of birth, and immigration status. The INS officer later asked the
detainees for their immigration documentation.” Id. at 96. Thus, contrary
to the dissent’s contention, Mena did not recognize that state officers can
enforce federal civil immigration law with no federal supervision or
involvement.
22
The dissent’s characterization of our discussion of Urrieta is inaccu-
rate. See Dissent at 4884-85. We do not “rely” on Urrieta to conclude that
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4844 UNITED STATES v. STATE OF ARIZONA
the court explained that “[i]n its response to Urrieta’s motion
to suppress evidence, the government originally argued that
Urrieta’s extended detention was justified on the grounds that
. . . [county] Deputy Young had reason to suspect that Urrieta
was an undocumented immigrant. The government withdrew
th[is] argument, however, after conceding that [it] misstated
the law.” Id. at 574. The Sixth Circuit cited 8 U.S.C.
§ 1357(g), which it summarized as “stating that local law
enforcement officers cannot enforce completed violations of
civil immigration law (i.e., illegal presence) unless specifi-
cally authorized to do so by the Attorney General under spe-
cial conditions.” Id. Therefore, the court required that “[t]o
justify Urrieta’s extended detention [ ] the government must
point to specific facts demonstrating that Deputy Young had
a reasonable suspicion that Urrieta was engaged in some
nonimmigration-related illegal activity.” Id.states do not have the inherent authority to enforce the civil provisions of
federal immigration law. We cite this case in laying out the existing legal
landscape on this issue.
In addition, the dissent states that we “ignore clear Supreme Court pre-
cedent” in concluding states do not possess this inherent authority. Dissent
at 4886. The dissent cites three Supreme Court cases dealing with state
officers enforcing federal criminal laws. These cases are inapposite, as
Section 6 concerns state enforcement of federal civil immigration laws.
Although the dissent conflates federal criminal and civil immigration laws
in this matter, this court has long recognized the distinction. See Martinez-
Medina v. Holder, ___ F.3d ___, 2011 WL 855791 *6 (9th Cir. 2011)
(“Nor is there any other federal criminal statute making unlawful presence
in the United States, alone, a federal crime, although an alien’s willful fail-
ure to register his presence in the United States when required to do so is
a crime . . . and other criminal statutes may be applicable in a particular
circumstance. Therefore, Gonzales’s observation that ‘an alien who is ille-
gally present in the United States . . . [commits] only a civil violation,’ and
its holding that an alien’s ‘admission of illegal presence . . . does not,
without more, provide probable cause of the criminal violation of illegal
entry,’ always were, and remain, the law of the circuit, binding on law
enforcement officers.”) (quoting Gonzales, 722 F.2d at 476-77 (9th Cir.
1983).
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UNITED STATES v. STATE OF ARIZONA 4845
We recognize that our view conflicts with the Tenth Cir-
cuit’s. See United States v. Vasquez-Alvarez, 176 F.3d 1294(10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit
affirmed the denial of a motion to suppress where the defen-
dant’s “arrest was based solely on the fact that Vasquez was
an illegal alien.” Id. at 1295. The arrest did not comply with
the requirements of 8 U.S.C. § 1252c, and the defendant
argued that the evidence found as a result of that arrest should
be suppressed. The Tenth Circuit disagreed, holding that
§ 1252c “does not limit or displace the preexisting general
authority of state or local police officers to investigate and
make arrests for violations of federal laws, including immi-
gration laws.” Id. at 1295. The Tenth Circuit based its conclu-
sion on “§ 1252c’s legislative history and [ ] subsequent
Congressional enactments providing additional nonexclusive
sources of authority for state and local officers to enforce fed-
eral immigration laws.” Id. at 1299. The legislative history to
which the court refers consists of the comments of § 1252c’s
sponsor, Representative Doolittle. As the court recounts, Doo-
little stated:
With such a threat to our public safety posed by
criminal aliens, one would think that we would give
law enforcement all the tools it needs to remove
these criminals from our streets, but unfortunately
just the opposite is true. In fact, the Federal Govern-
ment has tied the hands of our State and local law
enforcement officials by actually prohibiting them
from doing their job of protecting public safety. I
was dismayed to learn that the current Federal law
prohibits State and local law enforcement officials
from arresting and detaining criminal aliens whom
they encountered through their routine duties
...
My amendment would also permit State and local
law enforcement officials to assist the INS by grant-
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4846 UNITED STATES v. STATE OF ARIZONA
ing them the authority in their normal course of duty
to arrest and detain criminal aliens until the INS can
properly take them into Federal custody.
...
My amendment is supported by our local law
enforcement because they know that fighting illegal
immigration can no longer be left solely to Federal
agencies. Let us untie the hands of those we ask to
protect us and include my amendment in H.R. 2703
today.
Id. at 1298 (citing 142 Cong. Rec. 4619 (1996) (comments of
Rep. Doolittle)). Interpreting these comments, the Tenth Cir-
cuit stated: “As discussed at length above, § 1252c’s legisla-
tive history demonstrates that the purpose of the provision
was to eliminate perceived federal limitations . . . There is
simply no indication whatsoever in the legislative history to
§ 1252c that Congress intended to displace preexisting state
or local authority to arrest individuals violating federal immi-
gration laws.” Id. at 1299-1300.23
The Tenth Circuit’s interpretation of this legislative history
is not persuasive. Section 1252c was intended to grant author-
ity to state officers to aid in federal immigration enforcement
because Congress thought state officers lacked that authority.
The Tenth Circuit’s conclusion is nonsensical: we perceive no
reason why Congress would display an intent “to displace
preexisting . . . authority” when its purpose in passing the law
23
The dissent alleges that we have improperly focused on a single Rep-
resentative’s comment in assessing the meaning of § 1252c. Dissent at
4889-90. The dissent argues that we ought to follow the Tenth Circuit’s
example in Vasquez-Alvarez and hold that § 1252c has no preemptive
effect on a state’s inherent ability to enforce the civil provisions of federal
immigration law. Dissent at 4889-91. We note that the Tenth Circuit went
to great lengths assessing and relying on the very legislative history that
the dissent now chastises us for evaluating.
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UNITED STATES v. STATE OF ARIZONA 4847
was to grant authority it believed was otherwise lacking. Id.
at 1300.
Vasquez-Alvarez also cited “subsequent Congressional
enactments providing additional nonexclusive sources of
authority for state and local officers to enforce federal immi-
gration laws” in support of its conclusion that § 1252c does
not prevent state officers from making civil immigration-
based arrests pursuant to state law. Id. at 1299. The court
noted that “in the months following the enactment of § 1252c,
Congress passed a series of provisions designed to encourage
cooperation between the federal government and the states in
the enforcement of federal immigration laws.” Id. at 1300
(citing § 1357(g)). The court interpreted § 1357(g)(10) to
mean that “formal agreement [pursuant to § 1357(g) (1)-(9)]
is not necessary for state and local officers ‘to cooperate with
the Attorney General in identification, apprehension, deten-
tion, or removal of aliens.’ ” Id. at 1300 (quoting 8 U.S.C.
§ 1357(g)(10)(B)). To reason that the enactment of § 1357(g)
means that Congress did not intend to limit state and local
officers’ alleged inherent authority to make civil immigration
arrests in § 1252c, requires a broad reading of § 1357(g)(10);
we explain above in II.B. the reasons why we reject such a
broad reading of this provision.
Subsection (g)(10) neither grants, nor assumes the preexis-
tence of, inherent state authority to enforce civil immigration
laws in the absence of federal supervision. If such authority
existed, all of 8 U.S.C. § 1357(g)—and § 1252c for that
matter—would be superfluous, and we do not believe that
Congress spends its time passing unnecessary laws.24
24
The U.S. Department of Justice’s Office of Legal Counsel (“OLC”)
issued a memorandum in 2002—at which time OLC was headed by then
Associate Attorney General Jay C. Bybee, now a United States Circuit
Judge, as Arizona emphasizes—concluding that (1) the authority to arrest
for violation of federal law inheres in the states, subject only to preemp-
tion by federal law; (2) a 1996 OLC memo incorrectly concluded that state
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4848 UNITED STATES v. STATE OF ARIZONA
[24] In sum, we are not persuaded that Arizona has the
inherent authority to enforce the civil provisions of federal
immigration law. Therefore, Arizona must be federally-
authorized to conduct such enforcement. Congress has created
a comprehensive and carefully calibrated scheme—and has
authorized the Executive to promulgate extensive regulations
—for adjudicating and enforcing civil removability. S.B. 1070
Section 6 exceeds the scope of federal authorization for Ari-
zona’s state and local officers to enforce the civil provisions
of federal immigration law. Section 6 interferes with the fed-
eral government’s prerogative to make removability determi-
nations and set priorities with regard to the enforcement of
civil immigration laws. Accordingly, Section 6 stands as an
obstacle to the full purposes and objectives of Congress.
police lack the authority to arrest immigrants on the basis of civil deporta-
bility; and (3) 8 U.S.C. § 1252c does not preempt state arrest authority. To
conclude that § 1252c does not preempt inherent state arrest authority, the
OLC memo relies entirely on the Tenth Circuit’s decision in Vasquez-
Alvarez—the logic of which we have already rejected.
The dissent quotes from the 2002 OLC memo in claiming that § 1252c
is not made superfluous by interpreting it to have no preemptive effect.
Dissent at 4893. We are neither persuaded, nor bound by the arguments
in this memo. It is an axiomatic separation of powers principle that legal
opinions of Executive lawyers are not binding on federal courts. The OLC
memo itself demonstrates why this is: the OLC’s conclusion about the
issue in the 2002 memo was different in 1996 under the direction of Presi-
dent Clinton, and was different in 1989, under the direction of President
George H.W. Bush.
The dissent also claims that “Congress has authority to enact legislation
which is designed merely to clarify, without affecting the distribution of
power.” Dissent at 4893. The dissent cites language from the
Reaffirmation—Reference to One Nation Under God in the Pledge of
Allegiance, stating, “An Act to reaffirm the reference to one Nation under
God.” Pub. L. No. 107-293 (2002). The dissent’s argument is unavailing,
as § 1252c contains no reference to anything remotely related to a “reaffir-
mation” of a state’s alleged inherent authority to enforce the civil provi-
sions of federal immigration law.
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UNITED STATES v. STATE OF ARIZONA 4849
In addition, as detailed with respect to Section 2(B) above,
S.B. 1070’s detrimental effect on foreign affairs, and its
potential to lead to 50 different state immigration schemes pil-
ing on top of the federal scheme, weigh in favor of the pre-
emption of Section 6.
[25] In light of the foregoing, we conclude that the United
States has met its burden to show that there is likely no set of
circumstances under which S.B. 1070 Section 6 would be
valid, and it is likely to succeed on the merits of its challenge.
The district court did not abuse its discretion by concluding
the same.
VI. Equitable Factors
Once a party moving for a preliminary injunction has dem-
onstrated that it is likely to succeed on the merits, courts must
consider whether the party will suffer irreparable harm absent
injunctive relief, and whether the balance of the equities and
the public interest favor granting an injunction. Winter v. Nat-
ural Res. Def. Council Inc., 129 S. Ct. 365, 374 (2008).
We have “stated that an alleged constitutional infringement
will often alone constitute irreparable harm.” Assoc. Gen.
Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412
(9th Cir. 1991) (internal quotation marks omitted). We have
found that “it is clear that it would not be equitable or in the
public’s interest to allow the state . . . to violate the require-
ments of federal law, especially when there are no adequate
remedies available . . . . In such circumstances, the interest of
preserving the Supremacy Clause is paramount.” Cal. Phar-
macists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th
Cir. 2009) (emphasis added); see also Am. Trucking Ass’ns,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1059-60 (9th Cir.
2009) (recognizing that the balance of equities and the public
interest weighed in favor of granting a preliminary injunction
against a likely-preempted local ordinance).
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4850 UNITED STATES v. STATE OF ARIZONA
[26] Accordingly, we find that as to the S.B. 1070 Sections
on which the United States is likely to prevail, the district
court did not abuse its discretion in finding that the United
States demonstrated that it faced irreparable harm and that
granting the preliminary injunction properly balanced the
equities and was in the public interest.
Conclusion
For the foregoing reasons, we AFFIRM the preliminary
injunction enjoining enforcement of S.B. 1070 Sections 2(B),
3, 5(C), and 6.
AFFIRMED; REMANDED.
NOONAN, Circuit Judge, concurring:
I concur in the opinion of the court. I write separately to
emphasize the intent of the statute and its incompatibility with
federal foreign policy.
Consideration of the constitutionality of the statute begins
with Section 1 of the law, which in entirety, reads as follows:
Sec. 1. Intent
The legislature finds that there is a compelling inter-
est in the cooperative enforcement of federal immi-
gration laws throughout all of Arizona. The
legislature declares that the intent of this act is to
make attrition through enforcement the public policy
of all state and local government agencies in Ari-
zona. The provisions of this act are intended to work
together to discourage and deter the unlawful entry
and presence of aliens and economic activity by per-
sons unlawfully present in the United States.
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UNITED STATES v. STATE OF ARIZONA 4851
This section of the act constitutes an authoritative statement
of the legislative purpose. The purpose is “attrition,” a noun
which is unmodified but which can only refer to the attrition
of the population of immigrants unlawfully in the state. The
purpose is to be accomplished by “enforcement,” also unmod-
ified but in context referring to enforcement of law by the
agencies of Arizona. The provisions of the act are “intended
to work together.” Working together, the sections of the stat-
ute are meant “to discourage and deter the unlawful entry and
presence of aliens and economic activity by persons unlaw-
fully present in the United States.”
It would be difficult to set out more explicitly the policy of
a state in regard to aliens unlawfully present not only in the
state but in the United States. The presence of these persons
is to be discouraged and deterred. Their number is to be
diminished. Without qualification, Arizona establishes its pol-
icy on immigration.
As Section 1 requires, each section of the statute must be
read with its stated purpose in mind. Section 2 might, in isola-
tion from Section 1, be read as requiring information only.
Such a reading would ignore the intent established in Section
1, to secure attrition through enforcement. As the United
States observes, Arizona already had the capability of obtain-
ing information on immigrants by consulting the federal data-
base maintained by the federal government. Section 2 of the
statute provides for more — for the detention of immigrants
to achieve the purpose of the statute. Section 2 is not intended
as a means of acquiring information. It is intended to work
with the other provisions of the act to achieve enforcement.
As the opinion of the court makes clear, Sections 3, 5 and
6 are unconstitutional. Section 2 is equally unconstitutional in
its function as their support.
Section 1’s profession of “cooperative” enforcement of fed-
eral immigration laws does not alter Arizona’s enactment of
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4852 UNITED STATES v. STATE OF ARIZONA
its own immigration policy distinct from the immigration pol-
icy and the broader foreign policy of the United States.
Federal foreign policy is a pleonasm. What foreign policy
can a federal nation have except a national policy? That fifty
individual states or one individual state should have a foreign
policy is absurdity too gross to be entertained. In matters
affecting the intercourse of the federal nation with other
nations, the federal nation must speak with one voice.
That immigration policy is a subset of foreign policy fol-
lows from its subject: the admission, regulation and control of
foreigners within the United States. By its subject, immigra-
tion policy determines the domestication of aliens as Ameri-
can citizens. It affects the nation’s interactions with foreign
populations and foreign nations. It affects the travel of for-
eigners here and the trade conducted by foreigners here. It
equally and reciprocally bears on the travel and trade of
Americans abroad. As the declarations of several countries or
governmental bodies demonstrate in this case, what is done to
foreigners here has a bearing on how Americans will be
regarded and treated abroad.
That the movement of the people of one nation into the
boundaries of another nation is a matter of national security
is scarcely a doubtful or debatable matter. Almost everyone
is familiar with how the movement of the Angles and the Sax-
ons into Roman Britain transformed that country. The situa-
tion of the United States is less precarious. Nonetheless, an
estimated 10.8 million foreigners have illegally taken up resi-
dence in our country. U.S. Dept. of Homeland Sec., Office of
Immigration Statistics, Estimates of the Unauthorized Immi-
grant Population Residing in the United States: January 2010
at 2. True, at the maximum, their number is less than 4% of
our population. They are not about to outnumber our citizens.
Still, in individual towns and areas those illegally present can
be a substantial presence. In the state of Arizona, their esti-
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UNITED STATES v. STATE OF ARIZONA 4853
mated number is 470,000, or seven percent of the population
of the state. Id. at 4.
The local impact appears to call for local response. Yet
ineluctably the issue is national. The people of other nations
are entering our nation and settling within its borders contrary
to our nation’s stated requirements. We must deal with people
of other nations and so must deal with other nations. The
problems are local but our whole nation is affected. Reason-
ably, the nation has made enforcement of criminal sanctions
against aliens criminally present in the United States the top
priority of the federal government. United States Sentencing
Commission, Overview of Federal Criminal Cases Fiscal
Year 2009 at 1.
Against this background, the following propositions are
clear:
The foreign policy of the United States preempts the field
entered by Arizona. Foreign policy is not and cannot be deter-
mined by the several states. Foreign policy is determined by
the nation as the nation interacts with other nations. Whatever
in any substantial degree attempts to express a policy by a sin-
gle state or by several states toward other nations enters an
exclusively federal field.
Federal foreign policy is determined by Congress when
Congress exercises the power to declare war conferred upon
it by Article I, Section 8 of the Constitution. Foreign policy
is also determined by the Senate when it exercises the power
to ratify a treaty, the power conferred upon it by Article II,
Section 2. Congress also determines foreign policy when it
lays excise taxes upon foreign imports under Article I, Section
8. Congress further determines foreign policy when it autho-
rizes sanctions against a nation, e.g., Crosby v. National For-
eign Trade Council, 530 U.S. 363 (2000).
The foreign policy of the nation consists in more than a
declaration of war, the making of a treaty, the imposition of
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4854 UNITED STATES v. STATE OF ARIZONA
a tax, and the imposition of sanctions. The foreign policy of
the nation is also established by acts of executive power —
among others, executive agreements with foreign nations; the
appointment of ambassadors to foreign nations; the exchange
of information with foreign governments; the encouragement
of trade with foreign countries; and the facilitation of the
travel abroad of Americans and of travel within the United
States by foreigners. In these several ways a federal foreign
policy is forged that is as palpable and durable as that
expressed by a particular act of legislation or by the ratifica-
tion of a particular treaty.
Less than eight years ago the Supreme Court reviewed and
reaffirmed the position of the Executive Branch in forming
foreign policy preemptive of legislation by a state. Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396 (2003). Strong humanitar-
ian considerations supported California’s legislation to pro-
vide a remedy against insurance companies that had profited
from the Nazi treatment of Jewish victims of the Holocaust.
Recognizing that “the iron fist” of California might be more
effective than the gentler approach taken by the Executive
Branch, the Supreme Court assembled cases showing the
President’s “unique responsibility” for the conduct of foreign
policy. Id. at 415. Noting that no express text in the Constitu-
tion conferred this authority, the Court quoted both Hamilton
and Madison in The Federalist on the structure of the nation
being designed. Structure was stronger than text. The
Supreme Court demonstrated that strength in an unbroken line
of decisions acknowledging presidential leadership in foreign
affairs. Id. at 413-415. Presidential power to preempt states
from acting in matters of foreign policy is beyond question.
To take one example from our relations to our nearest
neighbor to the South, it is an expression of federal foreign
policy that the State Department issues passports by whose
use approximately twenty million American citizens enter
Mexico annually, while the State Department annually issues
approximately one million visas which enable citizens of
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UNITED STATES v. STATE OF ARIZONA 4855
Mexico to enter this country. U.S. Dep’t of Commerce, Int’l
Trade Admin., 2009 United States Resident Travel Abroad 3
(2010); U.S. Dep’t of State, Report of the Visa Office 2010 at
Table XVII (2011).
The foreign policy of the United States is further estab-
lished by trade agreements made between this country and
Mexico manifesting the desire to permit the importation of a
variety of goods from Mexico and the desire to export goods
from the United States into Mexico.
An objective assessment of the foreign policy of the United
States toward Mexico would pronounce that policy to be one
of cordiality, friendship and cooperation. The tangible expres-
sion of this policy is the export of $14.8 billion in goods in
January 2011 and the importation of $19.7 billion in goods
from Mexico in the same month. News Release, U.S. Census
Bureau, U.S. Bureau of Economic Analysis, U.S. Int’l Trade
in Goods and Services 16 (March 10, 2011).
Understandably, the United States finds such a policy pre-
emptive of a single state’s uninvited effort to enter the field
of immigration law.
The Arizona statute before us has become a symbol. For
those sympathetic to immigrants to the United States, it is a
challenge and a chilling foretaste of what other states might
attempt. For those burdened by unlawful immigration, it sug-
gests how a state could tackle that problem. It is not our func-
tion, however, to evaluate the statute as a symbol. We are
asked to assess the constitutionality of five sections on their
face integrated by the intent stated in Section 1. If we read
Section 1 of the statute, the statute states the purpose of pro-
viding a solution to illegal immigration into the United States.
So read, the statute is a singular entry into the foreign policy
of the United States by a single state. The district court prop-
erly enjoined implementation of the four sections of the stat-
ute.
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4856 UNITED STATES v. STATE OF ARIZONA
BEA, Circuit Judge, concurring in part and dissenting in part:
I quite agree with the majority that “[t]he purpose of Con-
gress is the ultimate touchstone” in determining whether Ari-
zona’s S.B. 1070 is preempted under the Supremacy Clause.
Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963).
Thus, this court is tasked with determining whether Congress
intended to fence off the states from any involvement in the
enforcement of federal immigration law. It is Congress’s
intent we must value and apply, not the intent of the Execu-
tive Department, the Department of Justice, or the United
States Immigration and Customs Enforcement. Moreover, it is
the enforcement of immigration laws that this case is about,
not whether a state can decree who can come into the country,
what an alien may do while here, or how long an alien can
stay in this country.
By its very enactment of statutes, Congress has provided
important roles for state and local officials to play in the
enforcement of federal immigration law. First, the states are
free, even without an explicit agreement with the federal gov-
ernment, “to communicate with the Attorney General regard-
ing the immigration status of any individual.” 8 U.S.C.
§ 1357(g)(10)(A). Second, to emphasize the importance of a
state’s involvement in determining the immigration status of
an individual, Congress has commanded that federal authori-
ties “shall respond to an inquiry by a Federal, State, or local
government agency, seeking to verify or ascertain the citizen-
ship or immigration status of any individual.” Id. § 1373(c)
(emphasis added). Third, putting to one side communications
from and responses to a state regarding an individual’s immi-
gration status, no agreement with the federal government is
necessary for states “otherwise [than through communications
regarding an individual’s immigration status] to cooperate
with the Attorney General in the identification, apprehension,
detention, or removal of aliens not lawfully present in the
United States.” Id. § 1357(g)(10)(B). Finally, Congress has
even provided that state officers are authorized to arrest and
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UNITED STATES v. STATE OF ARIZONA 4857
detain certain illegal aliens. Id. § 1252c. Recognizing the
important role of states in enforcing immigration law, the
record shows that the federal government has welcomed
efforts by New Jersey1 and Rhode Island,2 efforts which Ari-
zona attempts to mirror with S.B. 1070. The record is bereft
of any evidence that New Jersey’s or Rhode Island’s efforts
have in any way interfered with federal immigration enforce-
ment. To the contrary, the federal government embraced such
programs and increased the number of removal officers to
handle the increased workload.
Nonetheless, the United States has here challenged Arizona
S.B. 1070 before it went into effect and, thus, made a facial
challenge to the legislation. “A facial challenge to a legisla-
tive Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987). As the
Supreme Court stated:
1
In August 2007, the attorney general of New Jersey issued a directive
which stated:
When a local, county, or State law enforcement officer makes an
arrest for any indictable crime, or for driving while intoxicated,
the arresting officer or a designated officer, as part of the booking
process, shall inquire about the arrestee’s citizenship, nationality
and immigration status. If the officer has reason to believe that
the person may not be lawfully present in the United States, the
officer shall notify [ICE] during the arrest booking process.
Anne Milgram, Attorney General Law Enforcement Directive No. 2007-3.
2
Rhode Island Executive Order 08-01, “Illegal Immigration Control
Order,” issued March 27, 2008, states at paragraph 6:
It is urged that all law enforcement officials, including state and
local law enforcement agencies take steps to support the enforce-
ment of federal immigration laws by investigating and determin-
ing the immigration status of all non-citizens taken into custody,
incarcerated, or under investigation for any crime and notifying
federal authorities of all illegal immigrants discovered as a result
of such investigations.
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4858 UNITED STATES v. STATE OF ARIZONA
In determining whether a law is facially invalid, we
must be careful not to go beyond the statute’s facial
requirements and speculate about “hypothetical” or
“imaginary” cases. . . . Exercising judicial restraint
in a facial challenge frees the Court not only from
unnecessary pronouncement on constitutional issues,
but also from premature interpretations of statutes in
areas where their constitutional application might be
cloudy.
Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449-50 (2008). Further:
Facial challenges are disfavored for several reasons.
Claims of facial invalidity often rest on speculation.
As a consequence, they raise the risk of premature
interpretation of statutes on the basis of factually
barebones records. Facial challenges also run con-
trary to the fundamental principle of judicial restraint
that courts should neither anticipate a question of
constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law
broader than is required by the precise facts to which
it is to be applied. Finally, facial challenges threaten
to short circuit the democratic process by preventing
laws embodying the will of the people from being
implemented in a manner consistent with the Consti-
tution. We must keep in mind that [a] ruling of
unconstitutionality frustrates the intent of the elected
representatives of the people.
Id. at 450-51 (internal quotation marks and citations omitted).3
3
“While some Members of the [Supreme] Court have criticized the
Salerno formulation, all agree that a facial challenge must fail where the
statute has a ‘plainly legitimate sweep.’ ” Wash. State Grange, 552 U.S.
at 449 (quoting Wash. v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (Ste-
vens, J., concurring in judgments)). The high facial challenge standard was
reaffirmed just last term. See United States v. Stevens, 130 S. Ct. 1577,
1587 (2010).
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UNITED STATES v. STATE OF ARIZONA 4859
Our task, then, is—or should be—to examine the Arizona
legislation and relevant federal statutes to determine whether,
under the United States’ facial challenge, S.B. 1070 has appli-
cations that do not conflict with Congress’s intent. I respect-
fully dissent from the majority opinion as to Sections 2(B)
(entitled “Cooperation and assistance in enforcement of immi-
gration laws; indemnification”) and 6 (entitled “Arrest by
officer without warrant”), finding their reasoning as to Con-
gress’s intent without support in the relevant statutes and case
law. As to Sections 3 and 5(C), I concur in the result and the
majority of the reasoning, although I dissent to the portion of
the majority’s reasoning which allows complaining foreign
countries to preempt a state law. I address S.B. 1070’s sec-
tions in numerical order, as the majority did.
I. Section 2(B)
I dissent from the majority’s determination that Section
2(B) of Arizona S.B. 10704 is preempted by federal law and
4
Section 2(B) of S.B. 1070 provides in relevant part:
For any lawful stop, detention or arrest made by [an Arizona] law
enforcement official or a law enforcement agency . . . in the
enforcement of any other law or ordinance of a county, city or
town or this state where reasonable suspicion exists that the per-
son is an alien and is unlawfully present in the United States, a
reasonable attempt shall be made, when practicable, to determine
the immigration status of the person, except if the determination
may hinder or obstruct an investigation. Any person who is
arrested shall have the person’s immigration status determined
before the person is released. The person’s immigration status
shall be verified with the federal government pursuant to 8
United States Code section 1373(c) . . . A person is presumed to
not be an alien who is unlawfully present in the United States if
the person provides to the law enforcement officer or agency any
of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
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4860 UNITED STATES v. STATE OF ARIZONA
therefore is unconstitutional on its face. As I see it, Congress
has clearly expressed its intention that state officials should
assist federal officials in checking the immigration status of
aliens, see 8 U.S.C. § 1373(c), and in the “identification,
apprehension, detention, or removal of aliens not lawfully
present in the United States,” 8 U.S.C. § 1357(g)(10)(B). The
majority comes to a different conclusion by minimizing the
importance of § 1373(c) and by interpreting § 1357(g)(10)
precisely to invert its plain meaning “Nothing in this subsec-
tion shall be construed to require an agreement . . . to commu-
nicate with the Attorney General regarding the immigration
status of any individual” (emphasis added) to become “Every-
thing in this subsection shall be construed to require an agree-
ment.”5 Further, the majority mischaracterizes the limited
3. A valid tribal enrollment card or other form of tribal
identification.
4. If the entity requires proof of legal presence in the
United States before issuance, any valid United States fed-
eral, state or local government issued identification.
Ariz. Rev. Stat. Ann. § 11-1051(B) (2010).
5
The majority has apparently mastered its Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—
till I tell you. I meant ‘there’s a nice knock-down argument for
you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument,’ ” Alice
objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful
tone, “it means just what I choose it to mean—neither more nor
less.”
“The question is,” said Alice, “whether you can make words
mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master
—that’s all.”
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UNITED STATES v. STATE OF ARIZONA 4861
scope of Section 2(B), misinterprets the Supreme Court’s
cases on foreign relations preemption to allow any complain-
ing foreign country to preempt a state law, and holds that the
prospect of all 50 states assisting the federal government in
identifying illegal aliens is—to Congress—an unwanted bur-
den. I discuss each one of these errors in turn below.
The district court found that Section 2(B) resulted in an
unconstitutional invasion of the province of federal immigra-
tion law for a variety of reasons. But there seems little point
to examine and rebut the district court’s findings, because the
majority opinion does not adopt any of them.6 Rather, the
Lewis Carroll, Through the Looking Glass and What Alice Found There,
in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Mar-
tin Gardner ed., Norton Publishers) (2000).
I am disappointed the majority does not take Lewis Carroll’s humorous
example of word traducing seriously to explain how the majority’s use of
“nothing” in 8 U.S.C. § 1357(g)(10) could be made to mean “everything.”
‘Twas the saying of an ancient sage that humour was the only test
of gravity, and gravity of humour. For a subject which would not
bear raillery was suspicious; and a jest which would not bear a
serious examination was certainly false wit.
Anthony Cooper, Earl of Shaftesbury, Essay on the Freedom of Wit and
Humour, sec. 5 (1709).
However, it is not accurate to imply that recourse to the estimable
Humpty-Dumpty is to slip the bounds of judicial argument. A quick
Westlaw search shows six mentions in Supreme Court opinions of Hum-
pty Dumpty’s views as to how the meanings of words can be changed, and
another dozen in this court—including one case in which the author of the
majority here concurred. See Scribner v. Worldcom, Inc., 249 F.3d 902(9th Cir. 2001).
6
It is curious the majority opinion spends as much time as it does inter-
preting the language of Section 2(B) to be a mandate of immigration status
checks of every arrestee, regardless whether there is reasonable suspicion
he is an illegal alien—contrary to Arizona’s interpretation of its own stat-
ute. Maj. Op. at 4816-18. That interpretation was used by the district court
to conclude state actions would result in invasion of the federal province
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4862 UNITED STATES v. STATE OF ARIZONA
majority opinion rests its case solely on its inverted reading
of § 1357(g), which prescribes the process by which Congress
intended state officers to play a role in the enforcement of
federal immigration laws.
A. 8 U.S.C. § 1373(c)
As noted above, Congress has clearly stated its intention to
have state and local agents assist in the enforcement of federal
immigration law, at least as to the identification of illegal
aliens, in two federal code sections. First is 8 U.S.C.
§ 1373(c), which reads:
The Immigration and Naturalization Service shall
respond to an inquiry by a Federal, State, or local
government agency, seeking to verify or ascertain
the citizenship or immigration status of any individ-
ual within the jurisdiction of the agency for any pur-
pose authorized by law, by providing the requested
verification or status information.
of immigration enforcement, by over-burdening federal immigration status
checking resources. The majority adopts the district court’s statutory anal-
ysis of Section 2(B)—violating a slew of canons of statutory construction
along the way—but fails to arrive at the district court’s findings, findings
thought necessary by the district court to conclude Section 2(B) was pre-
empted. The district court incorrectly analyzed the Arizona statute to make
its incorrect point that immigration inquiries will overburden federal
resources. But at least it made a point. The majority trudges the same ana-
lytical trail, but goes nowhere. It rather gives the impression that a portion
of the majority opinion has been left at the printer.
Of course, it is awkward indeed to argue that immigration status inqui-
ries by state officials can “overburden” federal officials when 8 U.S.C.
§ 1373(c) reads so plainly (“The Immigration and Naturalization Service
shall respond . . . .” (emphasis added)). Had Congress wanted to give fed-
eral immigration officers discretion as to whether to answer such inqui-
ries, it could have used “may” rather than “shall,” as it does in 8 U.S.C.
§ 1357(g)(1) regarding federal officials’ discretion to enter into written
agreements with the states regarding enforcement of immigration laws.
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UNITED STATES v. STATE OF ARIZONA 4863
8 U.S.C. § 1373(c). The title of § 1373(c) is “Obligation to
respond to inquiries.” Thus, § 1373(c) requires that United
States Immigration and Customs Enforcement (“ICE”)7
respond to an inquiry by any federal, state, or local agency
seeking the immigration status of any person. The Report of
the Senate Judiciary Committee accompanying the Senate Bill
explained that the “acquisition, maintenance, and exchange of
immigration-related information by State and local agencies
is consistent with, and potentially of considerable assistance
to, the Federal regulation of immigration and the achieving of
the purposes and objectives of the Immigration and National-
ity Act.” S. Rep. No. 104-249, at 19-20 (1996) (emphasis
added).
Section 1373(c) does not limit the number of inquiries that
state officials can make, limit the circumstances under which
a state official may inquire, nor allow federal officials to limit
their responses to the state officials.8 Indeed, as established by
7
The statute has not been amended to reflect that the Immigration and
Naturalization Service ceased to exist in 2003. ICE, an agency within the
Department of Homeland Security, now performs the immigration-related
functions.
8
Another example of federal authorization for state inquiries into an
alien’s immigration status is 8 U.S.C. § 1644, part of the 1996 Welfare
Reform Act. This section states “Notwithstanding any other provision of
Federal, State, or local law, no State or local government entity may be
prohibited, or in any way restricted, from sending to or receiving from
[ICE] information regarding the immigration status, lawful or unlawful, of
an alien in the United States.” 8 U.S.C. § 1644. The House Conference
Report accompanying the Welfare Reform Act explained: “The conferees
intend to give State and local officials the authority to communicate with
the INS regarding the presence, whereabouts, or activities of illegal aliens
. . . . The conferees believe that immigration law enforcement is as high
a priority as other aspects of Federal law enforcement, and that illegal
aliens do not have the right to remain in the United States undetected and
unapprehended.” H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted
in 1996 U.S.C.C.A.N. 2183, 2649, 2771. The title and placement of the
statute seems to have more to do with helping states administer benefits
than to achieve removals of illegal aliens. But the statute does reflect Con-
gress’s repeatedly stated intention to provide for the free flow of immigra-
tion status information between the states and the federal immigration
establishment.
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4864 UNITED STATES v. STATE OF ARIZONA
the declaration of the United States’ own Unit Chief for the
Law Enforcement Support Center (“LESC”), the LESC was
established “to provide alien status determination support to
federal, state, and local law enforcement on a 24-hours-a-day,
seven-days-a-week basis.” Section 1373(c) demonstrates Con-
gress’s clear intent for state police officials to communicate
with federal immigration officials in the first step of immigra-
tion enforcement—identification of illegal aliens.
The majority misstates my interpretation of § 1373(c)’s
scope. Neither I, nor Arizona, claim § 1373(c) allows Arizona
to pursue its “own immigration policy.” Maj. Op. at 4823.
Instead, § 1373(c) demonstrates Congress’s intent for Arizona
to help enforce Congress’s immigration policy, but in a way
with which the Executive cannot interfere. Congress has
required that the federal government respond to state and
local inquires into a person’s immigration status, 8 U.S.C.
§ 1373(c), which allows states to “cooperate with the Attor-
ney General in the identification, apprehension, detention, or
removal of [illegal] aliens,” id. § 1357(g)(10)(B).
B. 8 U.S.C. § 1357(g)
The second federal code section which states Congress’s
intention to have state authorities assist in identifying illegal
aliens is 8 U.S.C. § 1357(g), entitled “Performance of immi-
gration officer functions by State officers and employees.”
Subsections (g)(1)-(9) provide the precise conditions under
which the Attorney General may “deputize” state police offi-
cers (creating, in the vernacular of the immigration field,
“287(g) officers”) for immigration enforcement pursuant to an
explicit written agreement. For example, § 1357(g)(1) defines
the scope of any such agreement, § 1357(g)(3) provides that
the Attorney General shall direct and supervise the deputized
officers, § 1357(g)(6) prohibits the Attorney General from
deputizing state officers if a federal employee would be dis-
placed, and § 1357(g)(7)-(8) describe the state officers’ liabil-
ity and immunity. Section 1357(g)(9) clarifies that no state or
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UNITED STATES v. STATE OF ARIZONA 4865
locality shall be required to enter into such an agreement with
the Attorney General. Finally, § 1357(g)(10) explains what
happens if no such agreement is entered into: it recognizes the
validity of certain conduct by state and local officers, and
explicitly excepts such conduct from a requirement there be
a written agreement between the state and federal authorities:
Nothing in this subsection shall be construed to
require an agreement under this subsection in order
for any officer or employee of a State or political
subdivision of a State—
(A) to communicate with the Attorney Gen-
eral regarding the immigration status of any
individual, including reporting knowledge
that a particular alien is not lawfully present
in the United States; or
(B) otherwise to cooperate with the Attor-
ney General in the identification, apprehen-
sion, detention, or removal of aliens not
lawfully present in the United States.
8 U.S.C. § 1357(g)(10).
The majority’s error is to read § 1357(g)(1)-(9), which pro-
vides the precise conditions under which the Attorney General
may enter into written agreements to “deputize” officers, as
the exclusive authority which Congress intended state officials
to have in the field of immigration enforcement. That reading
is made somewhat awkward in view of § 1357(g)(10), which
explicitly carves out certain immigration activities by state
and local officials as not requiring a written agreement. But,
the majority opinion reasons that since state officials cannot
themselves remove illegal aliens, the natural reading of
§ 1357(g)(10) is that state officials cannot act at all in immi-
gration enforcement matters, absent an explicit written agree-
ment, unless:
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4866 UNITED STATES v. STATE OF ARIZONA
1. They are “called upon” by the Attorney General;
OR
2. There is a “necessity”; AND
3. Such cooperation is “incidental,” rather than “sys-
tematic and routine.”
Maj. Op. at 4820-21. I concede the majority’s insertion of the
quoted terms into § 1357(g)(10) is quite original, which per-
haps explains why no legal basis is cited for any of it. Neither
does the majority opinion give us any clue from statute, regu-
lations, or case authority as to the genesis of the key condi-
tioning phrases “calls upon,” “necessity,” “routine,” or
“systematic,” which—in their opinion—would legitimate
agreement-less state intervention. Needless to say, anyone
who actually reads § 1357(g)(10) will observe that none of the
quoted words appear in that statute, nor indeed in any part of
the Immigration and Naturalization Act (“INA”).9 8 U.S.C.
9
We strive to read Congress’s enactments in a reasonable manner. Am.
Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“Statutes should be
interpreted to avoid untenable distinctions and unreasonable results when-
ever possible.”). Is the majority’s reading of § 1357(g)(10) reasonable?
Imagine, for a moment, its implementation. Morning dawns at the Pima
County (Tucson) Sheriff’s Office. The watch commander assembles the
deputies: “Officers, in your patrols and arrests today, please remember the
Ninth Circuit has told us that if you encounter aliens you suspect are ille-
gally present in this country, you may check their immigration status with
federal immigration officers, and cooperate with federal agents in their
identification, apprehension, detention and removal, but only (1) if called
upon by the federal authorities to assist, or (2) absent such request, where
necessary, but (3) then only on an incidental basis, and (4) not in a routine
or systematic basis.” Officer Smith responds: “Commander, does that
mean that, unless asked by the federal officers, we cannot determine
immigration status of suspected illegal aliens from federal immigration
officers or cooperate to help in their removal in each case in which we
have reasonable suspicion, but, on the other hand, that we can do so when
necessary, but then only once in a while? When will it be ‘necessary’?
Second, for every ten suspicious persons we run across, in how many
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UNITED STATES v. STATE OF ARIZONA 4867
§ 1101 et seq. Alas, the majority opinion does not point us
where to look.10
To determine Congress’s intent, we must attempt to read
and interpret Congress’s statutes on similar topics together.
Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006)
(“[U]nder the in pari materia canon of statutory construction,
statutes addressing the same subject matter generally should
be read as if they were one law.” (internal quotations omit-
ted)). In light of this, I submit that a more natural reading of
§ 1357(g)(10), together with § 1373(c), leads to a conclusion
cases are we allowed to request immigration checks and cooperate with
the federal authorities without our immigration checks becoming ‘system-
atic’ and ‘routine,’ rather than merely ‘incidental’?”
Rather than explain the content of the conditions which it invents—
“called upon,” “necessity,” “systematic,” and “routine”—the majority
turns up its nose at a scenario made all-too-probable by its vague limita-
tions; limitations themselves bereft of structure for lack of citation of
authority. As in the case of its refusal to refute its traducing of statutory
language (see footnote 5, supra). the majority declaims the impropriety of
my criticisms, rather than discuss why they are wrong. But that does not
shed any light on the question likely to be asked by the Sheriff’s Deputy:
“When can I detain a suspect to check his immigration status?”
10
The majority contends its interpretation of § 1357(g)(10) is supported
by 8 U.S.C. § 1103(a)(10). Section 1103(a)(10) empowers the Attorney
General, in the event of a mass influx of aliens, to authorize state and local
officers “to perform or exercise any of the powers, privileges, or duties”
of a federal immigration officer. 8 U.S.C. § 1103(a)(10) (emphasis added).
That the Attorney General may designate state officers to exercise the full
scope of federal immigration authority in such emergency situa-
tions—alone and not in cooperation with federal immigration officials—
does not affect or limit state officers’ otherwise inherent authority under
non-emergency circumstances “to cooperate with the Attorney General in
the identification, apprehension, detention, or removal of [illegal] aliens,”
8 U.S.C. § 1357(g)(10)(B), especially by seeking immigration status infor-
mation which federal authorities are obligated to provide, 8 U.S.C.
§ 1373(c). Nothing in the text of § 1357(g)(10), nor of § 1373(c), requires
a prior “mass influx of aliens” to allow state officers to act. No case
authority is cited for this peculiar instance of statutory interpretation.
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4868 UNITED STATES v. STATE OF ARIZONA
that Congress’s intent was to provide an important role for
state officers in the enforcement of immigration laws, espe-
cially as to the identification of illegal aliens.
Unless the state officers are subject to a written agreement
described in § 1357(g)(1)-(9), which would otherwise control
their actions, the state officers are independently authorized
by Congressional statute “to communicate with the Attorney
General regarding the immigration status of any individual.”
8 U.S.C. § 1357(g)(10)(A). Moreover, state officers are
authorized “to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens
not lawfully present in the United States.” Id.§ 1357(g)(10)(B) (emphasis added).11 Of course, the majority
is correct that state officers cannot themselves remove illegal
aliens from the United States. The majority would read that
inability as evidence of congressional intent that state officers
cannot act at all with respect to other aspects of immigration
enforcement that lead to removal, save on the orders of fed-
eral officers pursuant to the provisions of written agreements
as set forth in 1357(g)(1)-(9). Maj. Op. at 4820. Were that so,
§ 1357(g)(10) would be redundant and a dead letter, save for
the vague and uncertain powers which the majority limits by
its newly-crafted terms “calls upon,” “necessity,” “systemat-
ic” and “routine.” We must interpret statutes in a manner to
give each part of the statute meaning, if at all reasonable. See,
e.g., U.S. v. Lopez, 514 U.S. 549, 589 (1995) (“An interpreta-
tion of [the Commerce Clause] that makes the rest of [Article
I,] § 8 superfluous simply cannot be correct.”); see also Wil-
liams v. Thude, 188 P.2d 1349, 1351 (Ariz. 1997) (“Each
word, phrase, clause, and sentence [of a statute] must be given
11
It is ironic that while construing Section 2(B) so as to make the second
sentence thereof an independent mandate to run immigration checks on all
arrestees, the majority does not apply the same canon to make
§ 1357(g)(10) independent, especially since § 1357(g)(10) begins with the
classic language of a stand-alone, independent provision: “Nothing in this
subsection shall be construed to require an agreement . . . .”
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UNITED STATES v. STATE OF ARIZONA 4869
meaning so that no part will be void, inert, redundant, or trivi-
al.” (internal quotation marks omitted, alteration and empha-
sis in original)).
Further, “the meaning of a statute must, in the first
instance, be sought in the language in which the act is framed,
and if that is plain, and if the law is within the constitutional
authority of the lawmaking body which passed it, the sole
function of the courts is to enforce it according to its terms.”
Caminetti v. United States, 242 U.S. 470, 485 (1917). Section
1357(g)(10) need not be interpreted at all—its plain language
states that “Nothing in this subsection [8 U.S.C. § 1357(g)]
shall be construed to require an agreement under this subsec-
tion in order for any officer . . . to communicate with the
Attorney General regarding the immigration status of any
individual.” There is no need to place restrictions on this
meaning, through terms such as “calls upon,” “necessity,”
“systematic,” and “routine,” because the statute’s meaning is
clear and includes no such limitations.
I agree with the majority that “we must determine how the
many provisions of [the] vastly complex [INA] function
together.” Maj. Op. at 4823. However, the majority opinion’s
interpretation of § 1357(g)(10), which requires the Attorney
General to “call upon” state officers in the absence of “neces-
sity” for state officers to have any immigration authority,
makes § 1373(c) a dead letter. Congress would have little
need to obligate federal authorities to respond to state immi-
gration status requests if it is those very same federal officials
who must call upon state officers to identify illegal aliens.
Further, there is no authority for the majority’s assertion that
§ 1357(g) establishes the “boundaries” within which state
cooperation pursuant to § 1373(c) must occur. Maj. Op. at
4822-23. Indeed, “communicat[ions] with the Attorney Gen-
eral regarding the immigration status of any individual” were
explicitly excluded from § 1357(g)’s requirement of an agree-
ment with the Attorney General. 8 U.S.C. § 1357(g)(10)(A).
Congress intended the free flow of immigration status infor-
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4870 UNITED STATES v. STATE OF ARIZONA
mation to continue despite the passage of § 1357(g), and so
provided in subsection (g)(10). The majority’s interpretation
turns § 1357(g)(10) and § 1373(c) into: “Don’t call us, we’ll
call you,” when what Congress enacted was “When the state
and local officers ask, give them the information.”
The majority’s attempt to straight-jacket local and state
inquiries as to immigration status to what “terms” the “federal
government” dictates reveals the fundamental divide in our
views. The majority finds the intent of “the government” deci-
sive; I look to Congress’s intent—as required by Supreme
Court preemption law.
Further, to “cooperate” means, I submit, “to act or operate
jointly, with another or others, to the same end; to work or
labor with mutual efforts to promote the same object.” Web-
ster’s New Twentieth Century Dictionary of the English Lan-
guage Unabridged (Jean L. McKechnie ed., 1979). It does not
mean that each person cooperating need be capable of doing
all portions of the common task by himself. We often speak
of a prosecution’s “cooperating witness,” but it doesn’t occur
to anyone that the witness himself cannot be “cooperating”
unless he is able to prosecute and convict the defendant him-
self. Hence, the inability of a state police officer to “remove”
an alien from the United States does not imply the officer is
unable to cooperate with the federal authorities to achieve the
alien’s removal.
The provision of authority whereby the Attorney General
may “deputize” state police officers allows the Attorney Gen-
eral to define the scope and duration of the state officers’
authority, as well as “direct[ ] and supervis[e]” the state offi-
cers in performing immigration functions. 8 U.S.C.
§ 1357(g)(1)-(9). However, this is merely one of two forms of
state participation in federal immigration enforcement pro-
vided for by Congress in § 1357(g). Congress provided for
another form of state participation, for which no agreement is
required—states are free “to communicate with the Attorney
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UNITED STATES v. STATE OF ARIZONA 4871
General regarding the immigration status of any individual,”
id. § 1357(g)(10)(A), and are also free “otherwise [than by
communication] to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens
not lawfully present in the United States,” id.
§ 1357(g)(10)(B).
This conclusion is confirmed by a close comparison of the
language in each part of § 1357(g). As to the authority of the
Attorney General to enter explicit written agreements, these
agreements are limited to deputizing state officers to perform
immigration-related functions “in relation to the investigation,
apprehension, or detention of aliens in the United States.” Id.
§ 1357(g)(1). Notably absent from this list of functions is the
“identification” of illegal aliens. However, Congress recog-
nized state officers’ authority even in the absence of a written
agreement with federal authorities both “to communicate with
the Attorney General regarding the immigration status of any
individual” and “to cooperate with the Attorney General in
the identification . . . of aliens not lawfully present in the
United States.” Id. § 1357(g)(10) (emphasis added). “We nor-
mally presume that, where words differ as they differ here,
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 63 (2006). The exclusion of illegal alien
identification from the restraints of explicit written agree-
ments under § 1357(g)(1)-(9), and the inclusion of this identi-
fication function in the state’s unrestrained rights under
§ 1357(g)(10), leads to the conclusion that Congress intended
that state officers be free to inquire of the federal officers into
the immigration status of any person, without any direction or
supervision of such federal officers—and the federal officers
“shall respond” to any such inquiry. 8 U.S.C. § 1373(c)
(emphasis added).
Another limitation of authority inferred by the majority
from § 1357(g)(10) seems to be that state authorities cannot
order their officers to enforce immigration laws in every case
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4872 UNITED STATES v. STATE OF ARIZONA
where they have reasonable suspicion to believe the laws are
being violated. The argument seems to be that while “inciden-
tal” investigation—motivated solely by the individual offi-
cer’s discretion—might be permissible and not an invasion of
federal immigration turf, any systematic and mandatory order
to identify illegal aliens would be an incursion into a pre-
empted area. See Maj. Op. at 4020-21; see also Oral Argu-
ment at 46:15-46:35 (“[T]he mandatory application [of
Section 2(B)] is impermissible, because it takes away the dis-
cretion of the local law enforcement officer to decide whether
to pursue a particular line of inquiry rather than mandated.”).
This reading of the statute is as original, and therefore, prob-
lematic as is utilizing the words “calls upon,” “necessity,”
“systematic,” and “routine” to circumscribe an otherwise clear
statute. First, by what authority can the federal government
tell a state government what orders it is to give state police
officers as to the intensity with which they should investigate
breaches of federal immigration law? Other than pursuant to
the provisions of written agreements, 8 U.S.C.
§ 1357(g)(1)-(9), I see no statutory basis for allowing the fed-
eral government to limit the effort the state can command of
its officers. Rather, Congress intended the Attorney General
to cooperate with state officers, 8 U.S.C. § 1357(g), and com-
manded him to answer their requests for immigration status
checks, 8 U.S.C. § 1373(c). Second, how practical is it for a
watch commander to instruct his deputies that it is up to their
whims as to when they can enforce federal immigration law?
C. Section 2(B)’s limited scope
Next, the majority seems to believe that when a state offi-
cer (1) initiates the identification of an illegal alien by check-
ing the alien’s immigration status with federal officials
pursuant to § 1373(c), and (2) has the alien identified to him
by federal authorities, the state officer has somehow usurped
the federal role of immigration enforcement. Maj. Op. at
4821-22. Section 2(B)’s scope, however, is not so expansive.
Section 2(B) does not purport to authorize Arizona officers to
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UNITED STATES v. STATE OF ARIZONA 4873
remove illegal aliens from the United States—Section 2(B)
merely requires Arizona officers to inquire into the immigra-
tion status of suspected illegal aliens during an otherwise law-
ful encounter. See Section 2(B). Section 2(B) does not govern
any other action taken by Arizona officers once they discover
an alien is illegally present in the United States. Further, Sec-
tion 2(B) does not require that ICE accept custody or initiate
removal of the illegal alien from the United States. Federal
authorities are merely obligated to respond to the immigration
status inquiry pursuant to § 1373(c). Once this occurs, federal
authorities are free to refuse additional cooperation offered by
the state officers, and frankly to state their lack of interest in
removing the illegal alien. The federal authorities can stop the
illegal alien removal process at any point after responding to
the state immigration status request.12
Although it is true that Section 2(B) requires Arizona offi-
cers to detain an arrestee suspected of being an illegal alien
before releasing the alien, this does little to broaden Section
2(B)’s scope. First, because this is a facial challenge, we must
assume that Arizona police officers will comply with federal
law and the Constitution in executing Section 2(B). Second,
Arizona has built a safeguard into Section 2 which requires
that Section 2(B)’s immigration status checking mechanisms
be executed in a manner consistent with federal law. See Sec-
tion 2(L) (“This section shall be implemented in a manner
consistent with federal laws regulating immigration, protect-
ing the civil rights of all persons and respecting the privileges
and immunities of United States citizens.”). Finally, it would
be absurd to assume that Congress would permit states to
12
Of course, were the federal authorities to do just that—turn away the
cooperation of state officials—they might be subject to criticism for not
enforcing federal immigration law by failing to remove identified illegal
aliens. Worse, since police departments tend to keep pesky records of
communications, the exact amount of refusals of state assistance, and the
future consequences of failing to remove illegal aliens, might make it into
the Press, with perhaps embarrassing or impolitic results. These consider-
ations, of course, should not affect the preemption analysis.
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4874 UNITED STATES v. STATE OF ARIZONA
check a person’s immigration status, see 8 U.S.C. § 1373(c),
but would not allow the state to hold the suspected illegal
alien until a response were received.
The majority also finds that state officers reporting illegal
aliens to federal officers, Arizona would interfere with ICE’s
“priorities and strategies.” Maj. Op. at 4824. It is only by
speaking in such important-sounding abstractions—“priorities
and strategies”—that such an argument can be made palatable
to the unquestioning. How can simply informing federal
authorities of the presence of an illegal alien, which represents
the full extent of Section 2(B)’s limited scope of state-federal
interaction, possibly interfere with federal priorities and
strategies—unless such priorities and strategies are to avoid
learning of the presence of illegal aliens? What would we say
to a fire station which told its community not to report fires
because such information would interfere with the fire sta-
tion’s “priorities and strategies” for detecting and extinguish-
ing fires?
The internal policies of ICE do not and cannot change this
result. The power to preempt lies with Congress, not with the
Executive; as such, an agency such as ICE can preempt state
law only when such power has been delegated to it by Con-
gress. See North Dakota v. United States, 495 U.S. 423, 442
(1990) (“It is Congress—not the [Department of Defense]—
that has the power to pre-empt otherwise valid state laws
. . . .”). Otherwise, evolving changes in federal “priorities and
strategies” from year to year and from administration to
administration would have the power to preempt state law,
despite there being no new Congressional action. Courts
would be required to analyze statutes anew to determine
whether they conflict with the newest Executive policy.
Although Congress did grant some discretion to the Attorney
General in entering into agreements pursuant to § 1357(g),
Congress explicitly withheld any discretion as to immigration
status inquiries by “obligat[ing]” the federal government to
respond to state and local inquiries pursuant to § 1373(c) and
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UNITED STATES v. STATE OF ARIZONA 4875
by excepting communication regarding immigration status
from the scope of the explicit written agreements created pur-
suant to § 1357(g)(10). Congress’s statutes provide for calls
and order the calls be returned.
D. Supreme Court preemption cases
The Supreme Court’s decisions in Crosby v. National For-
eign Trade Council, 530 U.S. 363 (2000), and Buckman Co.
v. Plaintiff’s Legal Committee, 531 U.S. 341 (2001), are in
accord with the view that Section 2(B) is not preempted by
federal law. As the majority points out, in each of those cases,
the Supreme Court concluded that Congress intended to pro-
vide the Executive with flexibility when it enacted federal
law, and that state law encroached on that flexibility. That is
not the situation we face here. The majority errs by reading
the flexibility Congress provided to the Attorney General in
entering agreements pursuant to § 1357(g) as providing uni-
versal flexibility as to all immigration matters. Congress did
just the opposite. As discussed above, Congress explicitly
withheld administrative discretion and flexibility as to
responses to state officers’ immigration status inquiries in
both § 1373(c) and § 1357(g)(10). Federal authorities have no
discretion whether they may respond to immigration status
inquiries from state officials. 8 U.S.C. § 1373(c). State offi-
cials need not enter into a written agreement to communicate
with the Attorney General regarding the immigration status of
any individual. 8 U.S.C. § 1357(g)(10). Section 2(B) does not
encroach on federal flexibility because Congress did not
intend federal authorities to have any flexibility in providing
states with properly requested immigration status information.
Neither does the Supreme Court’s preemption jurispru-
dence in the field of foreign relations change the conclusion
that Section 2(B) is not preempted. In Crosby, Massachusetts
passed a law which restricted state entities from buying goods
or services from those doing business with Burma. 530 U.S.
at 366-68. Three months later, Congress passed a statute
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4876 UNITED STATES v. STATE OF ARIZONA
imposing a set of mandatory and conditional sanctions on
Burma. Id. at 368. The Court found that the Massachusetts
law conflicted with several identified Congressional objec-
tives. “First, Congress clearly intended the federal Act to pro-
vide the President with flexible and effective authority over
economic sanctions against Burma.” Id. at 374. Second,
“Congress manifestly intended to limit economic pressure
against the Burmese Government to a specific range.” Id. at
377. “Finally, . . . the President’s intended authority to speak
for the United States among the world’s nations in developing
a ‘comprehensive, multilateral strategy to bring democracy to
and improve human rights practices and the quality of life in
Burma.’ ” Id. at 380. Thus, the Court concluded:
Because the state Act’s provisions conflict with Con-
gress’s specific delegation to the President of flexi-
ble discretion, with limitation of sanctions to a
limited scope of actions and actors, and with direc-
tion to develop a comprehensive, multilateral strat-
egy under the federal Act, it is preempted, and its
application is unconstitutional, under the Supremacy
Clause.
Id. at 388.
In American Insurance Ass’n v. Garamendi, 539 U.S. 396(2003), President Clinton entered into an agreement with the
German Chancellor in which Germany agreed to establish a
foundation to compensate victims of German National Social-
ist companies. Id. at 405. In exchange, the U.S. government
agreed to discourage Holocaust-era claims in American courts
and encourage state and local governments to respect the
foundation as the exclusive mechanism for resolving these
claims. Id. at 405-06. Meanwhile, California passed legisla-
tion which required insurance companies doing business in
the state to disclose the details of insurance policies issued to
people in Europe between 1920 and 1945. Id. at 409. The
Court explained that “even . . . the likelihood that state legis-
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UNITED STATES v. STATE OF ARIZONA 4877
lation will produce something more than incidental effect in
conflict with express foreign policy of the National Govern-
ment would require preemption of the state law.” Id. at 420.
The Court held California’s law was preempted: “[T]he evi-
dence here is ‘more than sufficient to demonstrate that the
state Act stands in the way of [the President’s] diplomatic
objectives.’ ” Id. at 427 (quoting Crosby, 530 U.S. at 386).
That is, California’s law conflicted with specific foreign-
relations objectives of the Executive, as “addressed in Execu-
tive Branch diplomacy and formalized in treaties and execu-
tive agreements over the last half century.” Id. at 421.
Thus, as Crosby and Garamendi demonstrate, it is not sim-
ply any effect on foreign relations generally which leads to
preemption, as the majority asserts. See Maj. Op. at 4825-28.
Instead, a state law is preempted because it conflicts with fed-
eral law only when the state law’s effect on foreign relations
conflicts with federally established foreign relations goals. In
Crosby, the state law conflicted with the degree of trade Con-
gress decided to allow with Burma, and the discretion explic-
itly given to the Executive to make trade decisions. In
Garamendi, the state law imposed an investigatory and litiga-
tion burden inconsistent with the rules the Executive Agree-
ment had created. Here, however, there is no established
foreign relations policy goal with which Section 2(B) may be
claimed to conflict. The majority contends that Section 2(B)
“thwarts the Executive’s ability to singularly manage the spil-
lover effects of the nation’s immigration laws on foreign
affairs.” Maj. Op. at 4828.
First, the majority fails to identify a federal foreign relation
policy which establishes the United States must avoid “spil-
lover effects,” if that term is meant to describe displeasure by
foreign countries with the United States’ immigration poli-
cies. The majority would have us believe that Congress has
provided the Executive with the power to veto any state law
which happens to have some effect on foreign relations, as if
Congress had not weighed that possible effect in enacting
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4878 UNITED STATES v. STATE OF ARIZONA
laws permitting state intervention in the immigration field. To
the contrary, here Congress has established—through its
enactment of statutes such as 8 U.S.C. §§ 1357(g)(10),
1373(c), and 1644—a policy which encourages the free flow
of immigration status information between federal and local
governments. Arizona’s law embraces and furthers this fed-
eral policy; any negative effect on foreign relations caused by
the free flow of immigration status information between Ari-
zona and federal officials is due not to Arizona’s law, but to
the laws of Congress. Second, the Executive’s desire to
appease foreign governments’ complaints cannot override
Congressionally-mandated provisions—as to the free flow of
immigration status information between states and federal
authorities—on grounds of a claimed effect on foreign rela-
tions any more than could such a foreign relations claim over-
ride Congressional statues for (1) who qualifies to acquire
residency in the United States, 8 U.S.C. § 1154, or (2) who
qualifies to become a United States citizen, 8 U.S.C. § 1421et seq.
Finally, the majority errs in finding that the threat of all 50
states layering their own immigration rules on top of federal
law weighs in favor of preemption. In Buckman, the Supreme
Court stated: “As a practical matter, complying with the
FDA’s detailed regulatory regime in the shadow of 50 States’
tort regimes will dramatically increase the burdens facing
potential applicants burdens not contemplated by Congress in
enacting the FDCA and the MDA.” 531 U.S. at 350 (emphasis
added). I fail to see how Congress could have failed to con-
template that states would make use of the very statutory
framework that Congress itself enacted. Congress created the
Law Enforcement Support Center “to provide alien status
determination support to federal, state, and local law enforce-
ment on a 24-hours-a-day, seven-days-a-week basis.” Con-
gress also obligated ICE to respond to all immigration status
inquiries from state and local authorities. 8 U.S.C. § 1373(c).
In light of this, all 50 states enacting laws for inquiring into
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UNITED STATES v. STATE OF ARIZONA 4879
the immigration status of suspected illegal aliens is desired by
Congress, and weighs against preemption.
Conclusion
As demonstrated above, Congress envisioned, intended,
and encouraged inter-governmental cooperation between state
and federal agencies, at least as to information regarding a
person’s immigration status, for the proper and efficient
enforcement of federal immigration law. While
§ 1357(g)(1)-(9) grants the Attorney General discretion to
enter into written agreements deputizing and supervising state
officers, § 1357(g)(10) explicitly recognizes an alternative to
that regime, so as to encourage and facilitate the free flow of
immigration status information provided for in § 1373(c). The
majority’s arguments regarding how any of the state officers’
actions spelled out in Section 2(B) could interfere with federal
immigration enforcement is consistent with only one premise:
the complaining federal authorities do not want to enforce the
immigration laws regarding the presence of illegal aliens, and
do not want any help from the state of Arizona that would
pressure federal officers to have to enforce those immigration
laws. With respect, regardless what may be the intent of the
Executive, I cannot accept this premise as accurately express-
ing the intent of Congress.
II. Sections 3 and 5(C)
I concur with the majority that Section 3, which penalizes
an alien’s failure to carry documentation as required by fed-
eral immigration statutes, impermissibly infringes on the fed-
eral government’s uniform, integrated, and comprehensive
system of registration which leaves no room for its enforce-
ment by the state. I also concur with the majority that Section
5(C), which penalizes an illegal alien for working or seeking
work, conflicts with Congress’s intent to focus on employer
penalties, an intent determined by this court in National Cen-
ter for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th
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4880 UNITED STATES v. STATE OF ARIZONA
Cir. 1990), rev’d on other grounds, 502 U.S. 183 (1991). As
a three-judge panel, we may not re-examine the conclusions
reached in National Center. Miller v. Gammie, 335 F.3d 889(9th Cir. 2003) (en banc); see also Newdow v. Lefevre, 598
F.3d 638, 644 (9th Cir. 2010) (holding that Establishment
Clause challenge to the placement of “In God We Trust” on
coins and currency was foreclosed by Aronow v. United
States, 432 F.2d 242 (9th Cir. 1970)).
However, for the reasons discussed above as to Section 2,
I disagree with the majority’s foreign-relations rationale. The
majority fails to identify a foreign relations policy, established
by Congress, with which Sections 3 and 5 conflict; a foreign
nation may not cause a state law to be preempted simply by
complaining about the law’s effects on foreign relations gen-
erally. We do not grant other nations’ foreign ministries a
“heckler’s veto.”
III. Section 6
The majority’s analysis of S.B. 1070 Section 613 will come
as a surprise to all parties involved in this case. It ignores the
contentions in the filings before the district court, the district
court’s rationale, the briefs filed in this court, and what was
said by the well-prepared counsel, questioned at our oral argu-
ment. Indeed, it is an argument and conclusion volunteered by
the majority, but carefully avoided by the United States—
probably because it conflicts with the present policy of the
Department of Justice’s Office of Legal Counsel. First, let us
examine what I thought the parties put before us for decision.
The only contention made by the United States in this liti-
13
S.B. 1070 Section 6 provides that “[a] peace officer, without a war-
rant, may arrest a person if the officer has probable cause to believe . . .
[t]he person to be arrested has committed any public offense that makes
the person removable from the United States.” Ariz. Rev. Stat. Ann. § 13-
3883(A)(5) (2010).
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UNITED STATES v. STATE OF ARIZONA 4881
gation with respect to Section 6 is that, due to the complexity
inherent in determining whether a specific crime makes an
alien removable, Arizona police officers will ineluctably bur-
den legal aliens through erroneous warrantless arrests. Not a
very strong contention at that, since counsel for the United
States all but conceded this argument’s flaw as to this facial
challenge at oral argument by admitting that Arizona police
officers could very easily determine that some crimes, such as
murder, would make an alien removable. Thus, the analysis
of this section should have been simple—Section 6 was
facially constitutional because a “set of circumstances”
existed under which no “complexity” existed: an Arizona
police officer comes across an alien convicted of murder; he
is removable; he can be lawfully arrested. See Salerno, 481
U.S. at 745. So, Section 6 was not preempted. End of story.
Instead, the majority misrepresents Arizona’s attempt to
assist the federal government as “unilaterally transform[ing]
state and local law enforcement officers into a state-controlled
DHS force to carry out its declared policy of attrition.” Maj.
Op. at 4842. Section 6 is not, and could not, be so broad.
Instead, Section 6 merely authorizes Arizona police officers
to make warrantless arrests when they cooperate in the
enforcement of federal immigration law—as invited to do by
Congress. See 8 U.S.C. § 1357(g)(10).
For its newly-minted-but-not-argued position, the majority
relies extensively on 8 U.S.C. § 1252c—a code section not
cited in support by the United States14—misinterpreting its
meaning and putting this circuit in direct conflict with the
Tenth Circuit. The majority also ignores clear Supreme Court
precedent and concludes that 8 U.S.C. § 1357(a)’s limitations
as to federal warrantless arrest power implies a limitation on
14
Indeed, the total treatment of § 1252c in the briefs consists of a one-
sentence citation in Arizona’s brief arguing against Section 6’s preemp-
tion, and the United States’ citation, without argument, in a string cite in
its statement of facts.
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4882 UNITED STATES v. STATE OF ARIZONA
state officers. As I discuss below, the majority erred in con-
cluding that state police officers have no authority to enforce
the civil provisions of federal immigration law.
As noted by the majority opinion, Section 6 applies to three
different scenarios: (1) when there is probable cause to
believe a person committed a removable offense in a state
other than Arizona; (2) when there is probable cause to
believe that an individual committed a removable offense in
Arizona, served his or her time for the crime, and was
released; and (3) when there is probable cause to believe an
individual committed a removable offense, but was not prose-
cuted. The question before us is whether warrantless arrests
by state police officers in these three scenarios conflict with
Congress’s intent.
A. Inherent authority of state officers to enforce federal
immigration law
As an initial matter, it is notable that the United States
never once asserted, either at oral argument or in its briefs,
that Arizona officers are without the power to enforce the
civil provisions of immigration law. Indeed, counsel for the
United States at oral argument actually confirmed state offi-
cers’ authority to arrest aliens on the basis of civil removabil-
ity. See Oral Argument at 58:40-59:40 (stating that Section 6
would be constitutional if it required Arizona officers to con-
tact ICE regarding whether a crime renders an alien remov-
able).15 The United States’ argument against Section 6’s
15
Actual text from oral argument:
DEPUTY SOLICITOR GENERAL KNEEDLER: No, I think
[Section 6] continues to present the problems that the [District]
Court identified because there’s no requirement in Section 6 that
the state or local officer contact ICE in order to find whether an
offense is removable. The individual with, the officer would have
to make a judgment as to whether the public offense in the other
state was also a public offense in Arizona, and then determine
whether it would in turn lead to a removal—
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UNITED STATES v. STATE OF ARIZONA 4883
constitutionality was limited to the “burden” that would be
imposed on wrongfully arrested legal aliens due to the com-
plexity of determining whether a certain crime makes an alien
eligible for removal. Indeed, as the 2002 Department of Jus-
tice’s Office of Legal Counsel Opinion (“2002 OLC Opin-
ion”) concludes, “the authority to arrest for violation of
federal law inheres in the state, subject only to preemption by
federal law.” See also Marsh v. United States, 29 F.2d 172(2d Cir. 1928) (“[I]t would be unreasonable to suppose that
[the United States’] purpose was to deny to itself any help that
the states may allow.”).16
The majority rejects the existence of this inherent state
authority by citing one case from this court in which we “as-
sumed” states lacked such authority. In Gonzales v. City of
Peoria, this court held state police officers could enforce
JUDGE NOONAN: But the response is like Judge Paez sug-
gested earlier, second-degree murder is the crime.
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, in some,
in that situation, it would probably, you know, it would probably
be possible to make that determination.
JUDGE NOONAN: Then why, so it doesn’t, you have a Salerno
problem with respect to Section 6?
DEPUTY SOLICITOR GENERAL KNEEDLER: Well, I don’t
think so because there’s no requirement to check with ICE, first
of all, and the INA, that’s that responsibility for making remov-
ability determinations in the Federal Government. There may be
some situations in which something could be done otherwise.
(emphases added).
16
The United States likely did not adopt the majority’s § 1252c argu-
ment because the Department of Justice is required to comply with Opin-
ions from the Office of Legal Counsel. Congressional Research Service,
Authority of State and Local Police to Enforce Federal Immigration Law,
Sept. 17, 2010, available at http://www.ilw.com/immigrationdaily/news/
2010,1104-crs.pdf (“[Office of Legal Counsel] opinions are generally
viewed as providing binding interpretive guidance for executive agencies
and reflecting the legal position of the executive branch . . . .”).
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4884 UNITED STATES v. STATE OF ARIZONA
criminal provisions of the INA. 722 F.2d 468, 475 (9th Cir.
1983), rev’d on other grounds, Hodgers-Durgin v. de la Vina,
199 F.3d 1037 (9th Cir. 1999) (en banc). During its analysis,
this court stated in dicta:
We assume that the civil provisions of the Act regu-
lating authorized entry, length of stay, residence sta-
tus, and deportation, constitute such a pervasive
regulatory scheme, as would be consistent with the
exclusive federal power over immigration. However,
this case does not concern that broad scheme, but
only a narrow and distinct element of it—the regula-
tion of criminal immigration activity by aliens.
Id. at 474-75 (emphasis added). The majority erred in simply
accepting Gonzales’s assumption, in dicta, without perform-
ing any additional inquiry into whether it was indeed correct.17
The majority also missteps in relying on an abbreviated
analysis in United States v. Urrieta, 520 F.3d 569 (6th Cir.
2008). There, Urrieta moved to suppress items found in his
car during an extended search by local police. Id. 572-73.
Urrieta had been detained by a local police officer following
17
Gonzales‘ dicta is not binding on this panel. In United States v. John-
son, 256 F.3d 895 (9th Cir. 2001) (en banc), this court stated:
Where it is clear that a statement is made casually and without
analysis, where the statement is uttered in passing without due
consideration of the alternatives, or where it is merely a prelude
to another legal issue that commands the panel’s full attention, it
may be appropriate to re-visit the issue in a later case.
Id. at 915. Here, the Gonzales panel’s statement regarding the civil provi-
sions was “made casually and without analysis”; indeed, the panel even
admitted they “assume[d]” the conclusion. It takes no analysis to assume.
Further, the statement on INA’s civil provisions was “merely a prelude to
another legal issue.” Immediately after making the statement, the panel
noted that the “case d[id] not concern” the civil provisions. Therefore, this
panel is not bound by the Gonzales court’s assumption, in dicta, regarding
the INA’s civil provisions.
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UNITED STATES v. STATE OF ARIZONA 4885
the issuance of a traffic citation. Id. at 571-72. During the
detention related to the traffic violation, the police officer
attempted to determine whether Urrieta was an illegal alien.
Id. The court concluded that suspicion of Urrieta’s illegal
presence was insufficient to extend Urrieta’s detention. Id. at
574. In doing so, the court characterized 8 U.S.C. § 1357(g)
as “stating that local law enforcement officers cannot enforce
completed violations of civil immigration law (i.e., illegal
presence) unless specifically authorized to do so by the Attor-
ney General under special conditions that are not applicable
in the present case.” Id.This conclusion, however, completely ignored the existence
and effect of § 1357(g)(10). As discussed fully throughout
this dissent, subsection (g)(10) envisions state cooperation in
the enforcement of federal immigration law outside the con-
text of a specific agreement with the Attorney General by
“identification, apprehension, detention, or removal” in coop-
eration with federal immigration authorities. Further,
§ 1357(g)(10) makes no distinction between criminal and civil
provisions—indeed, it refers to “aliens not lawfully present in
the United States.” 8 U.S.C. § 1357(g)(10)(B). The Sixth Cir-
cuit’s truncated conclusion may be based on the fact that the
government withdrew the argument that Urrieta’s extended
detention was justified on suspicion that he was an “undocu-
mented immigrant” as “misstat[ing] the law.” Id. Thus, the
majority should not have relied on the Sixth Circuit’s lan-
guage in concluding that state officers lack inherent authority
to enforce the civil provisions of immigration law any more
than it should have relied on the language in Gonzales, and
for the same reason: the issue whether a state officer had
inherent authority to arrest a person for violation of a federal
civil violation was simply not before either court.
Moreover, the majority ignores clear Supreme Court prece-
dent in concluding that state officers cannot make warrantless
arrests because federal immigration officers cannot make war-
rantless arrests under the same circumstances pursuant to 8
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4886 UNITED STATES v. STATE OF ARIZONA
U.S.C. § 1357(a). Maj. Op. at 4842. In United States v. Di Re,
332 U.S. 581 (1948), state officers arrested Di Re for know-
ingly possessing counterfeit gasoline ration coupons in viola-
tion of § 301 of the Second War Powers Act of 1942, a
federal law. Id. at 582. Di Re challenged the search incident
to the arrest. Id. The Supreme Court upheld the arrest, stating
“that in absence of an applicable federal statute the law of the
state where an arrest without warrant takes place determines
its validity.” Id. at 589; accord Miller v. United States, 357
U.S. 301, 305 (1958) (holding that when state peace officers
arrest a person for violation of federal narcotics law, “the law-
fulness of the arrest without warrant is to be determined by
reference to state law”); Johnson v. United States, 333 U.S.
10, 15 n.5 (1948) (holding that when state peace officers
arrest a person for violation of federal narcotics law, “[s]tate
law determines the validity of arrests without warrant”). Thus,
the authority of states to authorize warrantless arrests for vio-
lations of federal law is well established.18
The conclusion that state police officers have the inherent
authority to enforce the civil provisions of federal immigra-
tion law is supported by Mena v. City of Simi Valley, 332 F.3d
1255 (9th Cir. 2003). There, a police officer questioned a
woman about her immigration status. Id. at 1262. This court
stated that “it [was] doubtful that the police officer had any
authority to question Mena regarding her citizenship.” Id. at
1165 n.15. The Supreme Court overruled this court and
stated:
18
Although it is true that the federal laws in these cases were criminal,
rather than civil, the Supreme Court was careful to couch its holdings in
terms of “federal laws” generally, without reference to whether such laws
were criminal in nature. This court’s holding in Gonzales that illegal pres-
ence, alone, is not a crime—recently reaffirmed by this court in Martinez-
Medina v. Holder, ___ F.3d ___, 2011 WL 855791, at *6 (9th Cir. 2011)
—is inapposite. As discussed above, the question whether state and local
officers could enforce civil immigration laws was not before the court in
Gonzales, and therefore its “distinction” between criminal and civil immi-
gration laws is inexistent. See Maj. Op. at 4843-44 n.22.
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UNITED STATES v. STATE OF ARIZONA 4887
As the Court of Appeals did not hold that the deten-
tion was prolonged by the questioning, there was no
additional seizure within the meaning of the Fourth
Amendment. Hence, the officers did not need rea-
sonable suspicion to ask Mena for her name, date
and place of birth, or immigration status.
Muehler v. Mena, 544 U.S. 93, 101 (2005) (emphasis added).
Thus, the Supreme Court explicitly recognized—in one of our
California cases—that state police officers have authority to
question a suspect regarding his or her immigration status,
directly contradicting the majority’s conclusion that state offi-
cers possess no inherent authority to enforce the civil provi-
sions of immigration law.19
B. Non-preemption of states’ inherent enforcement
authority
Next, the majority errs in finding that 8 U.S.C. § 1252c pre-
empts this inherent state arrest authority. Despite § 1252c’s
lack of any language which indicates an intent to limit state
powers, the majority holds that § 1252c represents the full
extent of the arrest power Congress intended—a contention
the Tenth Circuit previously rejected. See United States v.
19
The majority contends “Mena did not recognize that state officers can
enforce federal civil immigration law with no federal supervision or
involvement.” Maj. Op. at 4843 n.21. It is true that an INS officer was
present when the state and local officers questioned Mena regarding her
immigration status. However, the actions of the INS officer were not
before the Court; it was the conduct of the state and local officers which
the Court scrutinized. See Mena, 544 U.S. at 100-01. Moreover, the
Supreme Court did not state that the presence of an INS officer was
required for the state and local officers to question Mena regarding her
immigration status. Indeed, the Court in Mena did not even mention the
presence of the INS officer in the portion of the opinion recognizing the
state and local officers’ questioning was permissible. See id. So, the offi-
cer conduct the Court approved was the state and local officer conduct.
For aught that appears, the federal officer was a bystander, not one who
“called upon” the state officers for help. See supra pages 4865-69.
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4888 UNITED STATES v. STATE OF ARIZONA
Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999), cert.
denied, 528 U.S. 913 (1999); see also United States v.
Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001). 8
U.S.C. § 1252c provides, in relevant part:
Notwithstanding any other provision of law, to the
extent permitted by relevant State and local law,
State and local law enforcement officials are autho-
rized to arrest and detain an individual who—
(1) is an alien illegally present in the United
States; and
(2) has previously been convicted of a fel-
ony in the United States and deported or
left the United States after such conviction,
but only after the State or local law enforcement
officials obtain appropriate confirmation from the
Immigration and Naturalization Service of the status
of such individual and only for such period of time
as may be required for the Service to take the indi-
vidual into Federal custody for purposes of deporting
or removing the alien from the United States.
8 U.S.C. § 1252c(a). The majority concludes that because
Section 6 would allow warrantless arrests in a broader set of
circumstances than described in § 1252c, it therefore conflicts
with Congress’s intent.
The Tenth Circuit persuasively rejected this contention
over a decade ago. In United States v. Vasquez-Alvarez,
“Vasquez claimed that 8 U.S.C. § 1252c limit[ed] the author-
ity of state and local police officers, allowing such an officer
to arrest an illegal alien only when the INS has confirmed,
before the arrest, that the alien has previously been convicted
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UNITED STATES v. STATE OF ARIZONA 4889
of a felony and has, since that conviction, been deported or
left the United States.” 176 F.3d at 1295.20
Unable to cite any text in § 1252c which would expressly
or impliedly state an intention that § 1252c was meant to be
the only authority for state police to arrest an alien for his
unlawful presence in this country, nor any canon of statutory
interpretation that would come to its aid—and ignoring a later
statute’s recognition of the authority to detain (1357(g)(10))
—the majority appeals to legislative history. As noted by the
majority, the only legislative history as to § 1252c is the floor
debate that accompanied Representative Doolittle’s introduc-
tion of § 1252c. The Tenth Circuit analyzed the plain lan-
guage of § 1252c as well as this legislative history, and
rejected Vasquez’s claim:
This legislative history does not contain the slightest
indication that Congress intended to displace any
preexisting enforcement powers already in the hands
of state and local officers. Accordingly, neither the
text of the statute nor its legislative history support
Vasquez’s claim that § 1252c expressly preempts
state law.
Id. at 1299.
The majority takes a single Representative’s comment—
that states lacked the authority to arrest illegal aliens and that
§ 1252c was needed to authorize such arrests—to conclude
that Congress as a whole intended § 1252c to represent the
limit of state arrest authority. Like the Tenth Circuit, however,
I cannot conclude that Congress intended § 1252c to represent
the outer bounds of state officers’ authority to arrest illegal
aliens based solely on the comments of one Representative.
As stated by the Tenth Circuit:
20
Again, Vasquez claimed that in his case. The United States has made
no such claim here. See supra footnote 14.
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4890 UNITED STATES v. STATE OF ARIZONA
Representative Doolittle did not identify which “cur-
rent Federal law” prohibited “State and local law
enforcement officials from arresting and detaining
criminal aliens.” Neither the United States nor
Vasquez has identified any such preexisting law.
Furthermore, this court has not been able to identify
any pre-§ 1252c limitations on the powers of state
and local officers to enforce federal law.
Id. at 1299 n.4; see also United States v. Anderson, 895 F.2d
641, 647 (9th Cir. 1990) (Kozinski, J., dissenting)
(“[Legislative] history . . . is seldom, if ever, even seen by
most of the legislators at the time they cast their votes.”).21
Further supporting this conclusion is the text of § 1252c,
which does not provide even the slightest indication that Con-
gress intended to preempt otherwise inherent state arrest pow-
ers.
The Tenth Circuit went on to note that Congress subse-
quently “passed a series of provisions designed to encourage
cooperation between the federal government and the states in
the enforcement of federal immigration laws.” Vasquez-
Alvarez, 176 F.3d at 1300. Notably, Congress passed 8 U.S.C.
§ 1357(g), discussed at length above, just five months later.22
21
The majority contends it is hypocritical that I criticize the majority’s
reliance on a single representative’s comments while supporting the Tenth
Circuit’s approach in Vasquez-Alvarez—which also relied on this repre-
sentative’s comments. To the extent the Tenth Circuit relied affirmatively
on Rep. Doolittle’s comments, I agree with the majority that such reliance
was misguided. Nonetheless, the Tenth Circuit also noted what the legisla-
tive history failed to demonstrate: an intent to displace preexisting state
arrest authority. See Vasquez-Alvarez, 176 F.3d at 1299 & n.4. Conflict
preemption requires a determination that Congress’s intent conflicts with
the state law in question. This requires, first, determining Congress’s
intent. Was it Congress’s intent not to remove aliens illegally present in
this country? The inability to discern an incompatible intent is fatal to the
United States’ preemption claim.
22
8 U.S.C. § 1644 was passed four months after § 1252c, and one month
before § 1357(g). Section 1373(c) was passed at the same time as
§ 1357(g).
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UNITED STATES v. STATE OF ARIZONA 4891
The Tenth Circuit found this code section “evince[d] a clear
invitation from Congress for state and local agencies to partic-
ipate in the process of enforcing federal immigration laws.”
Id. The majority states that the Tenth Circuit erred in “inter-
pret[ing] § 1357(g)(10) to mean that [a] ‘formal agreement
[pursuant to § 1357(g)(1)-(9)] is not necessary for state and
local officers “to cooperate with the Attorney General in iden-
tification, apprehension, detention, or removal of aliens.” ’ ”
Maj. Op. at 4847 (emphasis added). It is no wonder that the
Tenth Circuit so “interpreted” § 1357(g)(10), when that is
what the statute explicitly says:
Nothing in this subsection [1357(g)] shall be con-
strued to require an agreement under this subsection
in order for any officer or employee of a State or
political subdivision of a State . . . otherwise to
cooperate with the Attorney General in the identifi-
cation, apprehension, detention, or removal of aliens
not lawfully present in the United States.
8 U.S.C. § 1357(g)(10)(B) (emphasis added). I cannot join the
majority in criticizing the Tenth Circuit for merely reading the
statute’s words.23
The majority contends that § 1357(g)(10) “neither grants,
nor assumes the preexistence of, inherent state authority to
enforce civil immigration laws in the absence of federal
supervision.” Maj. Op. at 4847. What, then, does
§ 1357(g)(10) do? We must read 1357(g)(10) in context of
§ 1357(g) as a whole. Section 1357(g) created, for the first
time, the authority of the Attorney General to enter into agree-
23
But I can criticize the majority for initiating a needless circuit split
between our court and the Tenth Circuit, contrary to our own declared
preference to avoid such circuit splits. See, e.g., United States v. Alexan-
der, 287 F.3d 811 (9th Cir. 2002) (“[A]bsent a strong reason to do so, we
will not create a direct conflict with other circuits.” (quoting United States
v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987))).
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4892 UNITED STATES v. STATE OF ARIZONA
ments with states and localities to deputize their officers as
287(g) immigration officers. Subsections (g)(1)-(9) set out the
specifics of the explicit written agreements—state officers are
paid by the state, trained by the federal government, super-
vised by the Attorney General, and should be treated as fed-
eral employees for purposes of liability and immunity.
However, § 1357(g)(10) states clearly that this new method of
state involvement—287(g) deputized officers—is not the only
way state officers may cooperate in the enforcement of fed-
eral immigration law. Subsection (g)(10) preserves the preex-
isting authority of state officers to participate in enforcing
immigration law, without the requirement of any formal, writ-
ten agreement as envisioned by § 1357(g)(1)-(9).
Absent subsection (g)(10), one might argue that the author-
ity created by § 1357(g)(1)-(9) to deputize state officers repre-
sents the full extent of state officer immigration enforcement.24
Instead, (g)(10) makes clear that state officers’ authority “oth-
erwise to cooperate” in enforcing federal immigration law
remained intact after the creation of the new “deputy track”
of enforcement. This reading does not make § 1357(g) super-
fluous, as the majority contends. See Maj. Op. at 4847.
Indeed, this interpretation makes each part of § 1357(g)
necessary—subsections (g)(1)-(9) are necessary to authorize
the Attorney General to deputize 287(g) officers, and subsec-
tion (g)(10) is necessary to preserve state officers’ preexisting
communication and arrest authority. The majority cannot
explain how state officers may “otherwise cooperate” pursu-
ant to § 1357(g)(10)—in such concrete areas as the “identifi-
cation, apprehension, detention, [and] removal” of suspects—
if they possess no inherent authority to enforce civil immigra-
tion law. The reason for this inconsistency is the majority’s
antecedent error—finding state officers lack such inherent
authority.
24
Indeed, this is what the majority does even with the presence of
§ 1357(g)(10).
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UNITED STATES v. STATE OF ARIZONA 4893
Neither does this interpretation render § 1252c superfluous,
as the majority contends. See Maj. Op. at 4847. Section
1252c’s “notwithstanding” language acts as a safeguard
against other provisions of federal law, preventing any other
provision from being construed to preempt state arrest author-
ity to arrest certain illegal aliens. As stated by the 2002 OLC
Opinion:
If, for example, a court were otherwise inclined (per
the Ninth Circuit’s dicta in Gonzales[ v. City of Peo-
ria, 722 F.2d 468 (9th Cir. 1983)]) to misconstrue
the provisions of the INA as preempting state author-
ity to arrest for civil deportability, section 1252c
would operate to ensure that state police at least
retained the authority to make such arrests of aliens
who had previously been convicted of a felony and
had been deported or had left the United States after
such conviction.
2002 OLC Opinion at 11. Moreover, Congress has authority
to enact legislation which is designed merely to clarify, with-
out affecting the distribution of power. See, e.g.,
Reaffirmation—Reference to One Nation Under God in the
Pledge of Allegiance, Pub L. No. 107-293 (2002) (“An Act
To reaffirm the reference to one Nation under God in the
Pledge of Allegiance.” (emphasis added)). Thus, § 1252c does
not become “superfluous” merely because it does not enlarge
or shrink the arrest power provided to state police officers.25
25
The majority criticizes my use of the 2002 OLC Opinion. Maj. Op. at
4847 n.24. I agree with the majority’s assertion that the OLC Opinion does
not bind this court. I quote it, however, not for its authority, but to rebut
the majority’s contention that § 1252c is superfluous.
The majority is correct that the legislative history accompanying
§ 1252c does not contain reaffirming language like that found in
Reaffirmation—Reference to One Nation Under God in the Pledge of
Allegiance, Pub L. No. 107-293 (2002). Indeed, § 1252c’s legislative his-
tory contains nothing more than the floor debate discussed previously.
Again, the point of this citation is simply to demonstrate the various, non-
superfluous motivations for Congressional action which do not explicitly
alter the status quo.
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4894 UNITED STATES v. STATE OF ARIZONA
Conclusion
In conclusion, Section 6 is not preempted and is constitu-
tional. The United States all but conceded the only argument
it made in this court and the court below. On the merits of the
majority’s sua sponte suggestion that state officers can act in
the immigration enforcement field pursuant only to 8 U.S.C.
§ 1252c, familiar principles of dual sovereignty, as recognized
by the Supreme Court, provide states with the inherent author-
ity to enforce federal immigration law. In passing 8 U.S.C.
§ 1252c, a statement by the bill’s sponsor of what he thought
was the preexisting state of the law is insufficient to establish
that Congress as a whole intended to displace this preexisting
authority vested in the states. Finally, 8 U.S.C. § 1357(g)(10),
enacted after § 1252c, explicitly recognizes an authority
reserved to the states to enforce federal immigration law out-
side the confines of a written agreement with the Attorney
General. Section 6 does not conflict with the intent of Con-
gress, and thus is not conflict preempted.
IV. Conclusion
The majority misreads the meaning of the relevant federal
statutes to ignore what is plain in the statutes—Congress
intended state and local police officers to participate in the
enforcement of federal immigration law. Sections 2 and 6 do
not conflict with this intent, and thus are constitutional.