United States v. Arizona

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

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

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

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.

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

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)).

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:

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).

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.

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-

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.

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

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

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.

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-

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.

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-

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

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.

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

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)).

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.”

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

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.

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.

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).

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.

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.

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.

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

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

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.

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).

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

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.

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

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).

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-

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.

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

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.

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).

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.

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

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-

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

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

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.

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

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.

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).

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.

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.”

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

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.

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.

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

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:

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

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.

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 . . . .”

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-

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

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

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

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.

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

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

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-

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

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. § 1421

et 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

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

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).

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.

4882

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