CONTACT: Fritz Chaleff with Bilbray

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202-246-3666 (Mobile)

CONTACT: Bethany Haley with Franks

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CONTACT: Jamie Zuieback with Smith

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WASHINGTON, D.C.— Congressman Trent Franks (AZ-02), a member of the Immigration Reform Caucus, Congressman Brian Bilbray (CA-50), Chairman of the Immigration Reform Caucus, and Congressman Lamar Smith (TX-21), Ranking Member on the Judiciary Committee, have filed an Amicus Curiae, or Friend of the Court Brief, with the United States District Court in Arizona in regards to the Obama Administration’s lawsuit US v. Arizona. The brief supports Arizona and was filed on behalf of the bipartisan Immigration Reform Caucus, 76 Members of the House of Representatives and five U.S. Senators. The brief explains how the Obama Administration’s claim that Arizona’s law, SB 1070, preempts federal immigration law is without merit.

Congressman Franks stated, "President Obama is going to end up having to sue several states, including Rhode Island and others, if the Administration wants to sue everyone who tries to enforce immigration law. This is in addition to the numerous other states who have either introduced legislation similar to Arizona's (such as Michigan, South Carolina, Minnesota, and Pennsylvania,) and as many as 15 others have expressed a desire to pass a law similar to SB 1070. The American people want an effective, enforced federal immigration policy and secure borders. The last thing this ridiculous lawsuit is doing is making our laws more clear or our border more secure, and President Obama must continue to hear that the Members who signed this brief, along with the American people, strongly oppose the ongoing politicization of this serious national security and federal immigration issue."

"Arizona has every right to defend itself against illegal immigration," said Congressman Bilbray. "The federal government has failed to live up to its responsibility to enforce federal law concerning immigration, and Arizona's law does not preempt federal statutes. It is time to stop playing politics, roll up our sleeves and get to work on a bipartisan immigration bill that addresses America's border security, goes after employers who exploit illegal immigrants and reduces identity theft."

Bilbray continued, "I stand by my claim: the bipartisan Immigration Reform Caucus is ready and willing to meet with President Obama to address bipartisan and meaningful immigration reform."

Ranking Member on the Committee on the Judiciary Lamar Smith said, "The Obama administration is wrong to sue the State of Arizona. The Arizona law is favored by a majority of Arizonans and Americans. Also the Arizona law mirrors federal law and is only necessary because the Obama administration has failed to do its job. Instead of suing Arizona, the Obama administration should stand up for citizens and legal immigrants, enforce our immigration laws and secure the border."

The text of the brief follows, and is included as an attachment. The Federation for American Immigration Reform and the American Center for Law and Justice have come out in support of the Immigration Reform Caucus’ brief.

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The following Members of the House and Senate have signed onto the brief:

1)         Congressman Trent Franks

2)        Congressman Brian Bilbray

3)        Congressman John Campbell

4)        Congressman Gary Miller

5)         Congresswoman Marsha Blackburn

6)        Congresswoman Michele Bachmann

7)         Congressman Duncan Hunter

8)        Congressman Bill Posey

9)        Congressman Ted Poe

10)      Congressman Howard Coble

11)       Congressman Todd Tiahrt

12)       Congressman Rodney Alexander

13)       Congressman John Sullivan

14)       Congresswoman Virginia Foxx

15)       Congressman John Fleming

16)       Congressman Jerry Moran

17)       Congressman Steve King

18)      Congresswoman Sue Myrick

19)       Congressman John Duncan

20)      Congressman Jeff Miller

21)       Congressman Mike Simpson

22)      Congressman Scott Garrett

23)      Congressman Mike Coffman

24)      Congressman Jim Jordan

25)      Congressman Thaddeus McCotter

26)      Congressman Walter Jones

27)      Congressman Paul Broun

28)      Congressman John Culberson

29)      Congressman John Boozman

30)      Congressman Ed Royce

31)       Congressman Jack Kingston

32)      Congressman J. Gresham Barrett

33)      Congressman Pete Hoekstra

34)      Congressman John Carter

35)      Congressman Tom McClintock

36)      Congressman Ed Whitfield

37)      Congressman Patrick McHenry

38)      Congresswoman Jean Schmidt

39)      Congressman Robert Aderholt

40)      Congressman John Kline

41)       Congressman Phil Gingrey

42)      Congressman Joe Pitts

43)      Congresswoman Cynthia Lummis

44)      Congressman John Shadegg

45)      Congressman Michael Burgess

46)      Congressman Spencer Bachus

47)      Congressman Lamar Smith

48)      Congressman Kevin Brady

49)      Congressman Todd Platts

50)      Congressman Jason Chaffetz

51)       Congressman Robert Latta

52)      Congressman Phil Roe

53)      Congressman Mike Rogers

54)      Congressman Rob Wittman

55)       Congressman Dana Rohrabacher

56)      Congressman Elton Gallegly

57)       Congresswoman Ginny Brown-Waite

58)      Congressman Louie Gohmert

59)      Congressman Wally Herger

60)      Congressman Gene Taylor

61)       Congressman Geoff Davis

62)      Congressman Tom Graves

63)      Congressman Tom Price

64)      Congressman Cliff Stearns

65)      Congressman Jerry Lewis

66)      Congressman Gus Bilirakis

67)      Congresswoman Lynn Jenkins

68)      Congressman Tim Murphy

69)      Congressman Randy Neugebauer

70)      Congressman Doug Lamborn

71)       Congressman Bob Goodlatte

72)      Congressman Ken Calvert

73)      Congressman Michael McCaul

74)      Congressman David Dreier

75)       Congressman Rob Bishop

76)      Congressman J. Randy Forbes

77)       Senator Roger Wicker

78)      Senator Jim DeMint

79)      Senator David Vitter

80)      Senator James Inhofe

81)      Senator John Barrasso

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*Not admitted in this jurisdiction

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_______________________________

United States of America,                        )

                                                                        )

Plaintiff                     )

v.                                                                     )

                                                                        )                       CASE NO. CV-10-1413-SRB

The State of Arizona; and                        )

Janice K. Brewer, Governor                    )

of the State of Arizona, in her                 )                      

Official Capacity,                                       )

                                    Defendant.               )

______________________________              )

BRIEF OF AMICUS CURIAE, MEMBERS OF THE UNITED STATES CONGRESS [INSERT MEMBERS’ AND SENATORS’ NAMES] IN SUPPORT OF DEFENDANTS STATE OF ARIZONA AND GOVERNOR OF ARIZONA JAN BREWER AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION[1]

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ii

INTEREST OF AMICI. 1

ARGUMENT. 1

I.    CONGRESS HAS PLENARY POWER OVER IMMIGRATION, AND Plaintiff’s CLAIM THAT ITS AUTHORITY TO ENFORCE THE LAW PREEMPTs  S.B. 1070 IS MERITLESS. 1

II.   SB 1070 IS FULLY CONSONANT WITH FEDERAL IMMIGRATION POLICY that PROMOTes INCREASINGLY GREATER ROLES FOR THE STATE IN ENFORCING IMMIGRATION LAW. 5

TABLE OF AUTHORITIES

Cases

INTEREST OF AMICI

Amici, the above captioned United States Representatives and Senators, are currently serving in the One Hundred Eleventh Congress.  Amici are committed to the constitutional principles of federalism and to separation of powers, both of which are jeopardized by the Plaintiff’s attack against Arizona.  

ARGUMENT

CONGRESS HAS PLENARY POWER OVER IMMIGRATION, AND Plaintiff’s CLAIM THAT ITS AUTHORITY TO ENFORCE THE LAW PREEMPTs  S.B. 1070 IS MERITLESS.

Congress has plenary power over immigration law, INS v. Chadha, 462 U.S. 919, 940 (1983), and as Plaintiff notes, the laws Congress has passed reflect national and foreign policy goals. Cmpl. ¶ 19.  SB 1070 does not interfere with U.S. foreign policy goals as prescribed by Congress.

Plaintiff argues that “S.B. 1070 is independently preempted because it impermissibly conflicts with U.S. foreign policy.” Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Supp. Thereof (“Pl. Br.”) at 22.  Plaintiff claims that “S.B. 1070 is preempted under these principles because it undermines the ability of the United States to speak with one voice . . . and wrests primacy over immigration enforcement away from the federal government.”  Id. at 24.  Plaintiff states that S.B. 1070 infringes on the Executive’s “broad authority over foreign affairs” to ensure immigration law has minimal impact on U.S. foreign policy.  Cmpl. ¶ 16; see also 2, 4, 19, 22, 36-39, 42, 62, 65.  Plaintiff imagines that this “broad authority” comes from a congressional grant of “discretion” in the immigration laws” to balance “multiple interests as appropriate,” such as humanitarian and foreign policy interests.  Cmpl. ¶¶ 17, 19. Plaintiff fundamentally misapprehends the nature of its authority to enforce immigration law.

While it is true that the Executive has power to conduct United States foreign policy, the Constitution assigned to Congress plenary power to prescribe the immigration laws.  Chadha, 462 U.S. at 940  (“The plenary authority of Congress over aliens . . . is not open to question”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1893) (identifying numerous authorities for Congressional power over aliens). Where Congress has prescribed those laws, the Executive must follow Congress’s direction.  See, e.g., Zadvydas v. Davis, 533 U.S. 678, at 696-99 (2001) (Holding the Attorney General had no power to detain aliens indefinitely because that power conflicted with 8 U.S.C. § 1231(a)(6)); Jama v. ICE, 543 U.S. 335, 368 (Souter, J., dissenting) (noting in the case that “Congress itself . . . significantly limited Executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens.”). [2]

 As Plaintiff notes, “[t]he Supreme Court has recognized the ‘Nation’s need to “speak with one voice” in immigration matters.’”  Pl. Br. at 23 (citing Zadvydas v. Davis, 533 U.S. 678, 700 (2001); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003).  Plaintiff also recognizes that, “[i]n crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests,” including foreign policy.  Cmpt. ¶19; see Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to [among other things] the conduct of foreign relations.”).  The immigration laws, some of which grant discretion to the Executive, balance these concerns primarily within the constraints of each statute’s text, not Executive officials’ exercise of prosecutorial discretion. C.f., Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339-40 (1909) (Congressional authority over aliens “embraces every conceivable aspect of that subject”); Jama, 543 U.S. at 368 (Souter, J. dissenting) (“Talk of judicial deference to the Executive in matters of foreign affairs,  then, obscures the nature of our task here, which is to say not how much discretion we think the Executive ought to have, but how much discretion Congress has chosen to give it.”).  Where Congress exercises plenary power to prescribe laws, Executive Officers must work within those constraints.  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”).

            Federal agency regulation only preempts state law, when the agency is acting within the scope of its congressionally delegated authority.  Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986).  The Department of Homeland Security (“DHS”) has no formal regulations expressly preempting SB 1070.  Instead, Plaintiff relies on a novel claim that a general implied “prosecutorial discretion” to not impose federal sanctions on an alien violator, based on complex political policy considerations, can preempt in lieu of actual regulations.  Pl. Br. at 4, 24. However, where agency preemption is only implied, the presumption against preemption is at its strongest:

“[A]s a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence.”

Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 717 (1985).  As for the scope of the agency’s delegated authority, the Court may not, “simply . . . accept an argument that the [agency] may . . . take action which it thinks will best effectuate federal policy” because “an agency may not confer power upon itself.” Louisiana Public Serv. Com, 476 U.S. at 374.  “To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress.” Id. at 374-75.

            The Executive’s power to enforce federal immigration law does not confer the power to preempt state immigration enforcement by choosing, for foreign policy or other reasons, to selectively enforce the laws. Only the “clear and manifest purpose” of Congress preempts state laws.  Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).  As Section II describes below, S.B. 1070 is not preempted because it is fully consonant and integrated with federal immigration laws.

SB 1070 IS FULLY CONSONANT WITH FEDERAL IMMIGRATION POLICY that PROMOTes INCREASINGLY GREATER ROLES FOR THE STATE IN ENFORCING IMMIGRATION LAW.

As discussed in Section I, Acts of Congress express federal immigration policy, not the Executive’s enforcement authority, or for that matter, the current Administration’s political views.  Congress has passed numerous acts that welcome state involvement in immigration control. Congress expressed its intent by (1) expressly reserving inherent state authority in immigration law enforcement (8 U.S.C. § 1357(g)(10)), (2) banning sanctuary policies that interfere with exercising that authority (8 U.S.C. §§ 1373(a)-(b), 1644), (3) requiring federal official to respond to state inquiries (8 U.S.C. § 1373(c)), (4) simplifying the process for making such inquiries (Law Enforcement Support Center “LESC”), (5) deputizing some officers as immigration agents (8 U.S.C. § 1357(g)(7)), and (6) compensating states that assist (8 U.S.C. §§ 1103(a)(11); 1231(i)).  This body of law illustrates that it was not Congress’s “clear and manifest purpose” to preempt state laws such as SB 1070.  See Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).

In recognizing and encouraging through congressional enactments cooperative enforcement of immigration law, Congress took care not to use its plenary power to restrict longstanding enforcement activity by police. See Peoria v. City of Gonzales, 722 F.2d 468, 474 (9th Cir. 1983); United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (officers have “general investigatory authority to inquire into possible immigration violations.”).  But despite recognizing state assistance, Congress worried that “perceived federal limitations” could “tie[] the hands of…law enforcement officers.”  United States v. Vasquez-Alvarez, 176 F.3d 1294, 1299 (10th Cir. 1999) (quoting 142 Cong. Rec. 4619 (1996)).  Congress enacted 8 U.S.C. § 1252c[3] to clarify that state and local police could arrest an illegally present alien convicted of a felony and or