# United States v. State

> District Court, N.D. Alabama · September 28, 2011 · 813 F. Supp. 2d 1282

URL: https://www.frixlaw.com/law-library/cases/2143922

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** September 28, 2011
- **Citations:** 813 F. Supp. 2d 1282
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Sharon Lovelace Blackburn
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2143922

## How later opinions describe it (automated extraction)

- rejecting Executive Branch statements and amicus filings in deciding that state tax law with international implications was not preempted

## Opinion text

813 F.Supp.2d 1282 (2011)
UNITED STATES of America, Plaintiff,
v.
STATE of Alabama; Governor Robert J. Bentley, Defendants.
Case No. 2:11-CV-2746-SLB.
United States District Court, N.D. Alabama, Southern Division.
September 28, 2011.
*1291 Joyce White Vance, Praveen Krishna, U.S. Attorney's Office, Birmingham, AL, C. Lee Reeves, II, Joshua Wilkenfeld, Varu Chilakamarri, United States Department of Justice, Washington, DC, for Plaintiff.
*1292 MEMORANDUM OPINION
SHARON LOVELACE BLACKBURN, Chief Judge.
I. SUMMARY
On June 2, 2011, the Alabama Legislature approved House Bill 56 (H.B. 56), the "Beason-Hammon Alabama Taxpayer and Citizen Protection Act," Ala. Laws Act 2011-535, hereinafter H.B. 56. On June 9, 2011, Governor Robert Bentley signed the Act into law, with the majority of its provisions to become effective on September 1, 2011. On August 29, 2011, this court temporarily enjoined the Act until September 29, 2011.
On August 1, 2011, the United States filed a Complaint against the State of Alabama and Governor Robert J. Bentley seeking declaratory and injunctive relief contending that various provisions of H.B. 56 are preempted by federal law, and, therefore, violate the Supremacy Clause of the United States Constitution. (Doc. 1.) [1] On the same date, the United States filed a Motion for Preliminary Injunction, (doc. 2), seeking to preliminarily enjoin the following sections of H.B. 56: 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30. The Act declares it "a compelling public interest to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws." H.B. 56 § 2. The term "alien" is defined in the Act as "[a]ny person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101 , et seq., and amendments thereto." H.B. 56 § 3.
H.B. 56 includes a severability provision, stating that "If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains." H.B. 56 § 33. Therefore, the court will address the challenges to H.B. 56 on a section-by-section basis. The following sections are challenged by the United States:
H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a) and is unlawfully present in the United States.
H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.
H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.
*1293 H.B. 56 § 18, which amends Ala.Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver's license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a "business transaction" with the State of Alabama or any political subdivision thereof.
As discussed more fully below, "[a] preliminary injunction is an extraordinary and drastic remedy." Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Florida, 896 F.2d 1283 , 1285 (11th Cir.1990) (citations omitted). Moreover, as the Eleventh Circuit has noted
When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government. Such a step can occasionally be justified by the Constitution (itself the highest product of democratic processes). Still, preliminary injunctions of legislative enactments—because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits—must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.
Id. (emphasis added).
Upon consideration of the Motion for Preliminary Injunction, the memoranda submitted in support of and in opposition to the Motion, the arguments of counsel, the Amici briefs accepted by the court, and the relevant law, the court is of the opinion, as more fully discussed below, that the United States has not met the requirements for a preliminary injunction on its claim that Sections 10, 12(a), 18, 27, 28, and 30 of H.B. 56 are preempted by federal law. Therefore, the motion for preliminary injunction as to these sections will be denied. However, the court is of the opinion, as more fully discussed below, that there is a substantial likelihood that the United States will succeed on the merits of its claim that Sections 11(a), 13, 16, and 17 of H.B. 56 are preempted by federal law. The court further finds that the United States will suffer irreparable harm if these sections of H.B. 56 are not enjoined, the balance of equities favors the entry of an injunction, and its entry would not be adverse to the public interest. Therefore, the Motion for Preliminary Injunction will be granted as to these sections.
*1294 II. PRELIMINARY INJUNCTION STANDARD
"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." [2] Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 , 101 S.Ct. 1830 , 68 L.Ed.2d 175 (1981). "A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 , 128 S.Ct. 2207 , 171 L.Ed.2d 1 (2008) (internal quotations and citations omitted). "In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 , 129 S.Ct. 365 , 172 L.Ed.2d 249 (2008)(internal quotations and citations omitted). In this Circuit—
In order to prevail on an application for a preliminary injunction, the plaintiff must clearly establish all of the following requirements:
(1) ... a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.2011)(quoting Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.2009)). "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter, 555 U.S. at 24 , 129 S.Ct. 365 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982)).
III. FEDERAL IMMIGRATION LAW
The Third Circuit in Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.2010), clearly set forth the current federal law regarding immigration and immigrants:
1. The Immigration and Nationality Act
The primary body of federal immigration law is contained in the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101-537 , enacted in 1952, and amended many times thereafter. The INA sets forth the criteria by which "aliens," defined as "any person not a citizen or a national of the United States," 8 U.S.C. § 1101 (a)(3), may enter, visit, and reside in this country.
Under the INA, there are three primary categories of aliens who may lawfully enter and/or spend time within the United States: (1) "nonimmigrants," who are persons admitted for a limited purpose and for a limited amount of time, such as visitors for pleasure, students, diplomats, and temporary workers, see 8 U.S.C. § 1101 (a)(15); (2) "immigrants," who are persons admitted as (or after admission, become) lawful permanent residents of the United States based on, inter alia, family, employment, or diversity characteristics, see 8 U.S.C. § 1151 ; and (3) "refugees" and "asylees," who are persons admitted to and permitted to stay for some time in the United States because of humanitarian concerns, see 8 U.S.C. §§ 1157-58 . Aliens wishing to be legally admitted into the United States must satisfy specific *1295 eligibility criteria in one of these categories, and also not be barred by other provisions of federal law that determine inadmissibility. Congress has determined that non-citizens who, inter alia, have certain health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States, are inadmissible, see 8 U.S.C. § 1182 , and if detained when attempting to enter or reenter the country, may be subject to expedited removal, see 8 U.S.C. § 1225 .
Despite the carefully designed system for lawful entry described above, persons lacking lawful immigration status are obviously still present in the United States. As the Supreme Court explained almost thirty years ago: "[s]heer incapability or lax enforcement of the laws barring entry into this country... has resulted in the creation of a substantial `shadow population'... within our borders." Plyler [ v. Doe ], 457 U.S. [202,] 218, 102 S.Ct. 2382 , 72 L.Ed.2d 786 [(1982)]. Such persons may lack lawful status because they entered the United States illegally, either by failing to register with immigration authorities or by failing to disclose information that would have rendered them inadmissible when they entered. See 8 U.S.C. § 1227 . In addition, aliens who entered legally may thereafter lose lawful status, either by failing to adhere to a condition of admission, or by committing prohibited acts (such as certain criminal offenses) after being admitted. See id.
Persons here unlawfully are subject to removal from the country. Removal proceedings are initiated at the discretion of the Department of Homeland Security ("DHS"). [footnote] See Juarez v. Holder, 599 F.3d 560, 566 (7th Cir. 2010)("[T]he decision when to initiate removal proceedings is committed to the discretion of immigration authorities." (citing Reno v. Am.-Arab Anti—Discrimination Comm., 525 U.S. 471, 489 , 119 S.Ct. 936 , 142 L.Ed.2d 940 (1999))). Although certain aliens are subject to more expedited removal proceedings, for all others, section 240 of the INA sets forth the "sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." 8 U.S.C. § 1229a(a)(3).
[Footnote:] Prior to 2003, the Immigration and Naturalization Service ("INS"), which operated under the Department of Justice, administrated both immigration services and immigration enforcement. On March 1, 2003, Congress abolished the INS. Pursuant to the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, that agency's functions were transferred to three separate agencies within the newly created Department of Homeland Security: U.S. Citizenship and Immigration Services ("USCIS"), which performs immigration and naturalization services, U.S. Immigration and Customs Enforcement ("ICE"), which enforces federal immigration and customs laws, and U.S. Customs and Border Protection ("CBP"), which monitors and secures the country's borders. Older documents may continue to refer to the pre—2003 administrative structure, and citations to them should be understood in that context.
Under section 240, an alien facing removal is entitled to a hearing before an immigration judge and is provided numerous procedural protections during that hearing, including notice, the opportunity to present and examine evidence, and the opportunity to be represented by counsel (at the alien's expense). See 8 U.S.C. § 1229a. At the conclusion of a *1296 removal hearing, the presiding immigration judge must decide, based on the evidence produced during the hearing, whether the alien is removable, see 8 U.S.C. § 1229a(c)(1)(A), and if so, whether s/he should be ordered removed, or should be afforded relief from removal. Such relief can include postponement of removal, cancellation of removal, or even adjustment of status to that of lawful permanent resident. See 8 U.S.C. §§ 1229a(c)(4), 1229b.
In sum, while any alien who is in the United States unlawfully faces the prospect of removal proceedings being initiated against her/him, whether s/he will actually be ordered removed is never a certainty until all legal proceedings have concluded. Moreover, even after an order of removal issues, the possibility remains that no country will accept the alien. Under such circumstances, the Constitution limits the government's authority to detain someone in anticipation of removal if there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 699 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001).
The INA, as amended, also prohibits the "harboring" of aliens lacking lawful immigration status. It provides that any person who "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection... such alien in any place, including any building or any means or transportation" shall be subject to criminal penalties. 8 U.S.C. § 1324 (a)(1)(A)(iii).
For decades, the INA contained no specific prohibition against the employment of aliens lacking legal status. Rather, regulation of the employment of aliens not lawfully present was at most a "peripheral concern." DeCanas v. Bica, 424 U.S. 351, 360 , 96 S.Ct. 933 , 47 L.Ed.2d 43 (1976). This changed in 1986, when Congress amended the INA through enactment of the Immigration Reform and Control Act ("IRCA"), Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). IRCA "forcefully made combating the employment of illegal aliens central to the policy of immigration law." Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147 , 122 S.Ct. 1275 , 152 L.Ed.2d 271 (2002) (internal quotation marks and alterations omitted).
2. The Immigration Reform and Control Act
IRCA regulates the employment of "unauthorized aliens," a term of art defined by the statute as those aliens neither "lawfully admitted for permanent residence" nor "authorized to be ... employed by this chapter or by the Attorney General." 8 U.S.C. § 1324a(h)(3). IRCA makes it unlawful to knowingly hire or continue to employ an unauthorized alien, or to hire anyone for employment without complying with the work authorization verification system created by the statute. 8 U.S.C. § 1324a(a)(1)-(2). This verification system, often referred to as the "I-9 process," requires that an employer examine certain documents that establish both identity and employment authorization for new employees. See 8 U.S.C. § 1324a(b). The employer must then fill out an I-9 form attesting that s/he reviewed these documents, that they reasonably appear to be genuine, and that to the best of the employer's knowledge, the employee is authorized to work in the United States. See id. Although employers are required to verify the work authorization of all employees, Congress did not extend this requirement to independent contractors. See 8 U.S.C. § 1324a(a)(1)(making unlawful *1297 the knowing "employment" of an unauthorized alien, and the hiring of an employee for "employment" without verifying the employee's work authorization); 8 C.F.R. § 274a.1(f)(specifically excluding "independent contractors" from the definition of "employee"); 8 C.F.R. § 274a.1(g) (specifically excluding a "person or entity using ... contract labor" from the definition of "employer").
The I-9 "verification system is critical to the IRCA regime." Hoffman Plastic Compounds, 535 U.S. at 147-48 , 122 S.Ct. 1275 . Not only is failure to use the system illegal, but use of the system provides an affirmative defense to a charge of knowingly employing an unauthorized alien. See 8 U.S.C. § 1324a(a)(3). Thus, employers who use the I-9 process in good faith to verify the work authorization of employees are presumed not to have knowingly employed someone unauthorized to work in this country. In enacting IRCA, Congress required the President to monitor the security and efficacy of this verification system. See 8 U.S.C. § 1324a(d). Congress also imposed limits on the President's ability to change it. Id.
In addition to relying on the I-9 verification system, IRCA uses public monitoring, prosecution, and sanctions to deter employment of unauthorized aliens. IRCA provides for the creation of procedures through which members of the public may file complaints about potential violations; it authorizes immigration officers to investigate these complaints; and it creates a comprehensive hearing and appeals process through which complaints are evaluated and adjudicated by administrative law judges. See 8 U.S.C. § 1324a(e)(1)-(3).
Under IRCA, an employer who knowingly hires an unauthorized alien shall be ordered to cease and desist the violation, and to pay between $250 and $2000 per unauthorized alien for a first offense, between $2000 and $5000 per unauthorized alien for a second offense, and between $3000 and $10,000 per unauthorized alien for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization of its employees can be ordered to pay between $100 and $1000 for each person whose authorization it failed to authenticate. 8 U.S.C. § 1324a(e)(5). Employers who engage in a "pattern or practice" of hiring unauthorized aliens shall be fined up to $3000 per unauthorized alien, imprisoned for not more than six months, or both. 8 U.S.C. § 1324a(f)(1).
IRCA expressly pre-empts states and localities from imposing additional "civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
Because of its concern that prohibiting the employment of unauthorized aliens might result in employment discrimination against authorized workers who appear to be foreign, Congress included significant anti-discrimination protections in IRCA. See 8 U.S.C. § 1324b. [Footnote] The statute provides that, with certain limited exceptions, it is an "unfair immigration-related employment practice" to discriminate in hiring on the basis of national origin or citizenship status. 8 U.S.C. § 1324b(a)(1). Congress put teeth into this provision by creating the office of a "Special Counsel" to investigate and prosecute such offenses, and it required that the President fill that position "with the advice and consent of the Senate." 8 U.S.C. § 1324b(c). Congress also authorized immigration judges to punish those who violate IRCA's anti-discrimination mandate by imposing civil fines equivalent in amount to those imposed for knowingly hiring unauthorized *1298 aliens. Compare 8 U.S.C. § 1324a(e)(4)(A)(i)-(iii) with 8 U.S.C. § 1324b(g)(2)(B)(iv)(I)-(III).
[Footnote:] 8 U.S.C. § 1324b provides in relevant part that:
[with certain limited exceptions, it] is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment— (A) because of such individual's national origin, or (B) in the case of a protected individual ... because of such individual's citizenship status.
8 U.S.C. § 1324b(a). Any person adversely-affected by an unfair immigration-related employment practice "may file a charge respecting such practice or violation." 8 U.S.C. § 1324b(b)(1).
3. The Illegal Immigration Reform and Immigrant Responsibility Act
In 1996, Congress again amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in various sections of 8 U.S.C.). In IIRIRA, Congress directed the Attorney General, and later the Secretary of Homeland Security, to conduct three "pilot programs of employment eligibility confirmation" in an attempt to improve upon the I-9 process. IIRIRA § 401(a), 110 Stat. 3009 -655. Congress mandated that these programs be conducted on a trial basis, for a limited time period, and in a limited number of states. See IIRIRA § 401(b)-(c), 110 Stat. XXXX-XXX-XX. Two of these trial systems were discontinued in 2003. However, the third—originally known as the "Basic Pilot Program" but since renamed "E-Verify"—was reauthorized and expanded to all fifty states in 2003. See Basic Pilot Program Extension and Expansion Act of 2003, Pub.L. No. 108-156, §§ 2, 3, 117 Stat. 1944 . It has been reauthorized several times since, and its current authorization will expire, absent congressional action, on September 30, 2012. See Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 547 , 123 Stat. 2177 ; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580 .
E-Verify allows an employer to actually authenticate applicable documents rather than merely visually scan them for genuineness. When using E-Verify, an employer enters information from an employee's documents into an internet-based computer program, and that information is then transmitted to the Social Security Administration and/or DHS for authentication. See IIRIRA, as amended, § 403(a)(3). These agencies confirm or tentatively nonconfirm whether the employee's documents are authentic, and whether the employee is authorized to work in the United States. See IIRIRA, as amended, § 403(a)(4). If a tentative nonconfirmation is issued, the employer must notify the employee, who may contest the result. See id. If an employee does not contest the tentative result within the statutorily prescribed period, the tentative nonconfirmation becomes a final nonconfirmation. See id. If the employee does contest it, the appropriate agencies undertake additional review and ultimately issue a final decision. See id. An employer may not take any adverse action against an employee until it receives a final nonconfirmation. See id. However, once a final nonconfirmation is received, an employer is expected *1299 to terminate the employee, or face sanctions.
With only a few exceptions, federal law makes the decision of whether to use E-Verify rather than the default I-9 process entirely voluntary. See IIRIRA, as amended, § 402(a). Federal government employers and certain employers previously found guilty of violating IRCA are currently required to use E-Verify; all other employers remain free to use the system of their choice. See IIRIRA, as amended, § 402(e). Significantly, in enacting IIRIRA, Congress specifically prohibited the Secretary of Homeland Security from requiring "any person or other entity to participate in [E-Verify]." See IIRIRA, as amended, § 402(a). Congress also directed the Secretary to publicize the "voluntary nature" of the program and to ensure that government representatives are available to "inform persons and other entities that seek information about [E-Verify] of [its] voluntary nature." IIRIRA, as amended, § 402(d).
Those employers who elect to use E-Verify and actually do use the system to confirm an employee's authorization to work are entitled to a rebuttable presumption that they did not hire that employee knowing that s/he lacks authorization to work in this country. See IIRIRA, as amended, § 402(b)(1). Employers who elect to use E-Verify, but in practice continue to use the I-9 process, are not entitled to the E-Verify rebuttable presumption, but can still claim the I-9 affirmative defense. See IIRIRA, as amended, § 402(b)(2).
Lozano v. City of Hazleton, 620 F.3d 170 , 196-201 and nn. 21, 24 (3d Cir.2010)(emphasis in original; footnotes omitted except where otherwise indicated, parallel Supreme Court citations omitted), cert. granted and judgment vacated, ___ U.S. ___, 131 S.Ct. 2958 , 180 L.Ed.2d 243 (2011) (Mem.).
IV. DISCUSSION
A. PREEMPTION AND THE SUPREMACY CLAUSE
The United States argues that Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28 and 30 of H.B. 56 are preempted under the Supremacy Clause of the United States Constitution and federal immigration law. (Doc. 1 ¶¶ 69-70, 72.) The Supremacy Clause of the U.S. Constitution provides that the Constitution, federal laws, and treaties are "the Supreme Law of the Land." U.S. CONST., art. VI, cl. 2. In certain instances, the Constitution—in its own right—can preempt state action in a field exclusively reserved for the federal government. DeCanas v. Bica, 424 U.S. 351, 354-56 , 96 S.Ct. 933 , 47 L.Ed.2d 43 (1976) ("[The constitutional] [p]ower to regulate immigration [3] is unquestionably exclusively a federal power."), superceded by statute as stated in Chamber of Commerce v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 1975 , 179 L.Ed.2d 1031 (2011). [4] The *1300 Supremacy Clause also "vests Congress with the power to preempt state law." Stephen v. Am. Brands, Inc., 825 F.2d 312, 313 (11th Cir.1987); see also Gibbons v. Ogden, 22 U.S. 1, 211 , 9 Wheat. 1 , 6 L.Ed. 23 (1824). [5]
Therefore, this court's analysis of preemption claims
must 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 preemption 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 Federal Act unless that was the clear and manifest purpose of Congress.
Wyeth v. Levine, 555 U.S. 555 , 129 S.Ct. 1187, 1194-95 , 173 L.Ed.2d 51 (2009)(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 , 116 S.Ct. 2240 , 135 L.Ed.2d 700 (1996))(internal quotations and citations omitted).
Preemption may be express or implied, Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 , 112 S.Ct. 2374 , 120 L.Ed.2d 73 (1992) (O'Connor, J., plurality opinion), and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525 , 97 S.Ct. 1305 , 51 L.Ed.2d 604 (1977). Express preemption occurs when the text of a federal law is explicit about its preemptive effects. Fla. State Conference of N.A.A. C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir.2008)("Express preemption occurs when Congress manifests its intent to displace a state law using the text of a federal statute.").
Implied preemption falls into two categories: field preemption and conflict preemption. Gade, 505 U.S. at 98 , 112 S.Ct. 2374 ; Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 , 120 S.Ct. 2288 , 147 L.Ed.2d 352 (2000)("Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances."); see Browning, 522 F.3d at 1167 ("Field and conflict preemption in turn have been considered under the umbrella term `implied preemption.'"). Field preemption exists when:
Congress' intent to supercede state law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it, because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be *1301 assumed to preclude enforcement of state laws on the same subject, or because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.
Pac. Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Commn., 461 U.S. 190, 203-04 , 103 S.Ct. 1713 , 75 L.Ed.2d 752 (1983)(internal quotations omitted). "Conflict preemption" occurs when "compliance with both federal and state regulations is a physical impossibility," Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 , 83 S.Ct. 1210 , 10 L.Ed.2d 248 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67 , 61 S.Ct. 399 , 85 L.Ed. 581 (1941). These "categories of preemption are not `rigidly distinct,'" however, as "field pre-emption may be understood as a species of conflict pre-emption." Crosby, 530 U.S. at 373 n. 6, 120 S.Ct. 2288 (quoting English v. Gen. Elec. Co., 496 U.S. 72 , 79-80 n. 5, 110 S.Ct. 2270 , 110 L.Ed.2d 65 (1990)).
In their Motion for Preliminary Injunction, the United States argues that some sections of H.B. 56 are due to be enjoined on the basis of express preemption by federal statutes and that other sections are due to be enjoined because the United States contends they are impliedly preempted by federal law.
B. SECTION 10
Section 10(a) of H.B. 56 states:
(a) In addition to any violation 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 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a), and the person is an alien unlawfully present in the United States.
H.B. 56 § 10(a). An "alien unlawfully present in the United States" who violates Section 10 is "guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail." Id. § 10(f). For the purposes of enforcing Section 10, "an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. § 1373 (c)." H.B. 56 § 10(b). Section 10 "does not apply to a person who maintains authorization from the federal government to be present in the United States." Id. § 10(d).
To understand H.B. 56 § 10, it is necessary to consult certain provisions of the INA, namely 8 U.S.C. §§ 1302 , 1304(e), and 1306(a). As with any question of statutory interpretation, the court "begin[s] by examining the text of the statute to determine whether its meaning is clear." United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir.2002) (quoting Lewis v. Barnhart, 285 F.3d 1329, 1331 (11th Cir.2002)). Section 1302 provides that "every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted. . ., and (3) remains in the United States for thirty days or longer" must "apply for registration and to be fingerprinted before the expiration of such thirty days." 8 U.S.C. § 1302 (a). Section 1302 also provides that "every parent or legal guardian of any alien now or hereafter in the United States, who (1) is less than fourteen years of age, (2) has not been registered . . ., and (3) remains in the United States for thirty days or longer" must "apply for the registration of such alien before the expiration of such thirty days." Id. (b). An alien described in Section 1302(b) who "attains his fourteenth birthday in the United States" must, "within thirty days thereafter, apply in *1302 person for registration and to be fingerprinted." Id.
Section 1304 provides that "[e]very alien in the United States who has been registered and fingerprinted . . . shall be issued a certificate of alien registration or an alien registration card. . . ." 8 U.S.C. § 1304 (d). Section 1304 also provides that "[e]very 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. . . ." Id. § 1304(e). An alien who violates Section 1304(e) is "guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both." Id. Section 1304(e) presupposes that the alien has registered pursuant to § 1302 and been provided documentation pursuant to Section 1304(d). An alien who has never registered or applied for a certificate of alien registration cannot, by the plain language of 8 U.S.C. § 1304 (a), be charged with a crime for failure to have in his or her personal possession any registration documents issued to him or her.
Section 1306 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" is "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.
8 U.S.C. § 1306 (a).
Essentially, H.B. 56 § 10 creates two Alabama state crimes related to the INA's alien registration scheme. The first state crime has two elements and arises when an alien is "unlawfully present in the United States" and "in violation of 8 U.S.C. § 1304 (e)." H.B. 56 § 10(a). The second state crime has two elements and arises when an alien is "unlawfully present in the United States" and "in violation of. . . 8 U.S.C. § 1306 (a)." Id. Although it is a federal crime to violate 8 U.S.C. § 1304 (e) and 8 U.S.C. § 1306 (a), the state crimes for violating H.B. 56 § 10 arise in a narrower set of circumstances than the federal crimes for violating either 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a). In other words, there may be circumstances when an alien would be in violation of 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a) but would not, under the same circumstances, be in violation of H.B. 56 § 10(a).
Section 1304(e) applies to "[e]very alien," whether lawfully present or not, who has registered under Section 1302 and been issued documentation under Section 1304(d) but who fails to carry the documentation as required by Section 1304(e). See, e.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 546 (6th Cir.2002)(citing 8 U.S.C. § 1304 (e))("Failure to carry one's green card on his or her person can subject a legal resident alien to criminal sanctions."); Etuk v. Slattery, 936 F.2d 1433, 1444 (2d Cir.1991) ("The INA mandates that the Attorney General provide [lawful permanent residents] who register with proof of their legal status." (citing 8 U.S.C. § 1304 (d))). Section 10(a) of H.B. 56, on the other hand, applies only to aliens who are "unlawfully present in the United States" and who fail to carry documentation as required by 8 U.S.C. § 1304 (e). Unlike 8 U.S.C. § 1304 (e), H.B. 56 § 10(a), by its plain language, does not apply to aliens lawfully present in the United States, such as legal permanent residents, who fail to carry their registration documents.
*1303 The same reasoning applies to the second state crime created by H.B. 56 § 10(a). Section 1306(a) applies to "any alien," whether lawfully present or not, who has failed to register or be fingerprinted as required by 8 U.S.C. § 1302 . Section 10(a) of H.B. 56, on the other hand, applies only to an alien who is "unlawfully present in the United States" and has failed to register and be fingerprinted in violation of 8 U.S.C. § 1306 (a). Unlike Section 1306(a), H.B. 56 § 10(a), by its plain language, does not apply to aliens lawfully present in the United States who fail to register or be fingerprinted in violation 8 U.S.C. § 1306 (a).
The United States argues that H.B. 56 § 10 is conflict preempted because it interferes with the federal alien registration scheme. (Doc. 2 at 28-31.) As noted, every preemption 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. (quoting Lohr, 518 U.S. at 485 , 116 S.Ct. 2240 .) The second is that a presumption against preemption applies when "Congress has legislated . . . in a field which the States have traditionally occupied." Id. Because the states have not traditionally occupied the field of alien registration, the court applies no presumption against preemption for H.B. 56 § 10.
The current federal registration system set forth in 8 U.S.C. §§ 1302 , 1304, and 1306, creates a comprehensive scheme for alien registration. See Hines, 312 U.S. at 74 , 61 S.Ct. 399 . The federal system requires aliens to register, 8 U.S.C. § 1302 , and requires registered aliens to obtain a certificate of alien registration or an alien registration card, 8 U.S.C. § 1304 (d). The INA provides criminal penalties for aliens who fail to carry a registration card or certificate, 8 U.S.C. § 1304 (e), and who willfully fail to register, notify the federal government of a change of address, make fraudulent statements, and produce counterfeit documents. 8 U.S.C. § 1306 (a)-(d).
The United States relies primarily on Hines to support its assertion that H.B. 56 § 10 is preempted. ( See doc. 2 at 28-30.) In Hines , the Supreme Court considered whether the federal Alien Registration Act, the precursor to the INA, preempted the Alien Registration Act adopted in Pennsylvania. Hines, 312 U.S. at 56 , 61 S.Ct. 399 . The subject of both the federal Act and the Pennsylvania Act was the registration of aliens. Id. at 61 , 61 S.Ct. 399 . The Court stated:
[W]here the federal government, in the exercise of its superior authority in [the] field [of immigration], 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.
Id. at 66-67 , 61 S.Ct. 399 (emphasis added). On that basis, the Court found that its "primary function" was "to determine whether . . . Pennsylvania's law [stood] as an obstacle to the accomplishment . . . of the full purposes and objectives of Congress" in enacting the federal Act. Id. at 67 , 61 S.Ct. 399 . Although compliance with both the Pennsylvania Act and the federal Act was not impossible, [6] the Court *1304 nonetheless found that the Pennsylvania Act could not be enforced because it stood "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 67, 71-74 , 61 S.Ct. 399 .
First, the Pennsylvania Act established a separate, state-specific alien registration scheme that was independent from the federal Act. Id. at 59-61 , 61 S.Ct. 399 . Pennsylvania's state-specific registration scheme stood in clear conflict with Congress's objective of having a "uniform national registration system," and "a standard for alien registration in a single integrated and all-embracing system" through the federal Act. Id. at 74 , 61 S.Ct. 399 . Second, the Pennsylvania Act created registration requirements that were different from those provided by Congress in the federal Alien Registration Act. Id. at 59-61 , 61 S.Ct. 399 . For example, the Pennsylvania Act required aliens to carry their registration cards with them at all times. Id. at 60-61 , 61 S.Ct. 399 . Congress had considered and rejected such a provision in the federal Act. Id. at 72-73 , 61 S.Ct. 399 . [7]
This case is distinguishable from Hines . As the State Defendants note "there was a clear conflict between Pennsylvania law and the federal scheme" in Hines and "[i]n contrast, no such conflict exists between Section 10 of [H.B. 56] and 8 U.S.C. §§ 1304 (e) and 1306(a)." (Doc. 38 at 65-66.) First, unlike the Pennsylvania Act in Hines , H.B. 56 § 10 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to the rights established by Congress in the INA. The standard for registration provided by Congress remains uniform. H.B. 56 § 10, consistent with the Court's recent decision in Chamber of Commerce v. Whiting , expressly defers to the federal alien registration scheme and federal immigration status determinations. See Whiting, 131 S.Ct. at 1981 . It does so by: (1) requiring that "an alien's immigration status . . . be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. § 1373 (c)," H.B. 56 § 10(b); (2) exempting "a person who maintains authorization from the federal government to be present in the United States," id. (d); and (3) providing penalties that closely track those provided by federal law, compare 8 U.S.C. § 1306 (a) (providing that a person who willfully fails to register is "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") and 8 U.S.C. § 1304 (e) (providing that a person who fails to carry his registration documents is "guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both") with H.B. 56 § 10(f) (providing that an alien unlawfully present in the United *1305 States and who is in violation of 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a) is "guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail"). Second, the current federal alien registration scheme requires that aliens carry their registration documents. See 8 U.S.C. § 1304 (e). In 1952, Congress amended the alien registration laws to require aliens to carry their registration documents. See 8 U.S.C. § 1304 (e). When Congress passed the 1952 law making an alien's failure to carry his registration documents a crime, it stated, "the provisions have been modified . . . to require . . . the registration . . . and fingerprinting of all aliens in the country and to assist in the enforcement of those provisions." See H.R. Rep. 82-1365, 2d Session, 1952, 1952 U.S.C.C.A.N. 1723. Congress explicitly recognized that the 1952 amendments to the scheme made it a crime for aliens not to carry their registration documents. See 98 Cong. Rec. 4432-33 (1952)("Alien registration cards are not new in the law, yet this is the first time where it becomes a necessity for an alien to carry the card with him and, if he does not, it becomes a crime." (statement of Rep. Chudoff)). As a result, H.B. 56 § 10 does not suffer the same obstacle preemption problem as the Pennsylvania Act.
Although the penalties provided by H.B. 56 § 10 "complement" the INA's registration provisions by making it a state crime for "alien[s] unlawfully present" to violate 8 U.S.C. §§ 1304 (e) or 1306(a), this "complement[ing]" is not "inconsistent[] with the purpose of Congress." See Hines, 312 U.S. at 66-67 , 61 S.Ct. 399 . The penalties provided by H.B. 56 § 10 apply in narrow circumstances that are completely encompassed by the federal scheme. It is already a crime under the federal alien registration scheme for an unlawfully present alien to violate 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a). Unless Congress has occupied the field through the INA—a conclusion the Supreme Court appears to have rejected, see DeCanas, 424 U.S. at 358 , 96 S.Ct. 933 ; United States v. Arizona, 703 F.Supp.2d 980, 999 (D.Ariz. 2010) ("[In DeCanas ] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens.")—it is not "inconsistent[] with the purpose of Congress" to do that which Congress has already done. See Hines, 312 U.S. at 66 , 61 S.Ct. 399 . The Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own `inherent sovereignty,' not from the Federal Government. Heath v. Alabama, 474 U.S. 82, 89 , 106 S.Ct. 433 , 88 L.Ed.2d 387 (1985). The fact that states can enact laws which impose state penalties for conduct that federal law also sanctions, without being preempted, is "too plain to need more than statement." Westfall v. United States, 274 U.S. 256, 258 , 47 S.Ct. 629 , 71 L.Ed. 1036 (1927).
The United States argues, "The federal alien registration scheme has been held by the Supreme Court to represent the quintessential example of a pervasive and comprehensive scheme of federal regulation that leaves no room for state legislation in this area," and, " Hines squarely held that Congress intended the federal government to exercise exclusive control over all issues related to alien registration." (Doc. 2 at 29.) However, it does not address whether the provisions of H.B. 56 § 10 are "inconsistent[] with the purpose of Congress." See Hines, 312 U.S. at 66 , 61 S.Ct. 399 . The court does not read Hines as holding that Congress has "occupied the field" of alien registration. Id. at 67 , 61 S.Ct. 399 ("Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania's *1306 law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.") (emphasis added); see also Wyeth, 129 S.Ct. at 1213 (Thomas, J., concurring). [8] The United States has not directed this court to any authority for the proposition that Congress intended exclusivity, rather than uniformity. "[S]ilence on the part of Congress alone is not only insufficient to demonstrate field preemption, it actually weighs in favor of holding that it was the intent of Congress not to occupy the field." Frank Bros., Inc. v. Wisconsin Dept. of Transp., 409 F.3d 880, 891 (7th Cir.2005)(emphasis added). Although the Hines Court "relied on the comprehensiveness of the federal regulatory scheme[] in finding" intent to preempt a state-specific alien registration scheme, see DeCanas, 424 U.S. at 362-63 , 96 S.Ct. 933 , this court does not interpret the comprehensiveness of the federal alien registration scheme as evidence of Congress's intent to preempt state laws that do not affect the uniformity of the national standard for alien registration. Consequently, the court sees no reason why Alabama, pursuant to its dual sovereignty, cannot, consistent with the purpose of Congress, make violations of 8 U.S.C. §§ 1304 (e) and 1306(a) by unlawfully present aliens, state crimes in Alabama. [9]
The United States contends, though not in certain terms, that the court should follow the recent decision in United States v. Arizona. (Doc. 2 at 29, 31 [citing United States v. Arizona, 641 F.3d 339, 354-57 (9th Cir.2011)].) In that case, the United States had challenged the constitutionality of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act in the United States District Court for the District of Arizona and moved to enjoin the Act. See Arizona, 703 F.Supp.2d 980 . Section 3 of the Arizona Act, A.R.S. § 13-1509(A), which is substantially similar to H.B. 56 § 10(a), was among the challenged provisions. Id. at 998-99. Section 3 of the Arizona Act provides: "In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person *1307 is in violation of 8 United States Code section 1304 (e) or 1306(a)." Id. at 998 . This section of the Arizona Act did not, as H.B. 56 § 10 does, apply only to those "unlawfully present." The district court preliminarily enjoined Section 3, reasoning that:
Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do "inconsistently with the purpose of Congress." Hines, 312 U.S. at 66-67 , 61 S.Ct. 399 ; see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67 , 61 S.Ct. 399 .
Arizona, 703 F.Supp.2d at 999 (parallel citations omitted). Arizona appealed. See Arizona, 641 F.3d at 354-57 .
On appeal, the Ninth Circuit affirmed the district court's decision to enjoin Section 3. Id. at 357 . The Ninth Circuit reasoned:
S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court's direction: "where the federal 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 , 61 S.Ct. 399 . In Hines , the Court considered the preemptive 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 possession 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 proscribed state action in this area— which includes "complement[ing]" and "enforc[ing] additional or auxiliary regulations." Id.
Arizona, 641 F.3d at 355-56 (alteration in original; footnote and parallel citations omitted).
This court is not persuaded by the decisions in the Arizona cases regarding Section 3 of the Arizona Act. The Arizona district court and the Ninth Circuit both found that "Section 3's state punishment for federal registration violations fits within the Supreme Court's very broad description of proscribed state action in this area—which includes `complement[ing]' and `enforc[ing] additional or auxiliary regulations.'" Arizona, 641 F.3d at 356 (quoting Hines, 312 U.S. at 66-67 , 61 S.Ct. 399 ); Arizona, 703 F.Supp.2d at 999 . Neither court, however, explained how the "additional or auxillary regulations" were "inconsistent[] with the purpose of Congress." See Hines, 312 U.S. at 66-67 , 61 S.Ct. 399 . As the Ninth Circuit noted, "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." Arizona, 641 F.3d at 355 (emphasis added). However, this lack of affirmative evidence that Congress intended the states to participate is not dispositive of the preemption issue. See Saleh v. Titan Corp., 580 F.3d *1308 1, 24 (D.C.Cir.2009)(" Wyeth v. Levine , the Supreme Court's most recent preemption case, further reflects the Court's unwillingness to read broad preemptive intent from congressional silence."). Affirmative evidence that Congress intended the states to participate would negate any inference of preemptive intent, [10] but the absence of such affirmative evidence does not, without more, support a finding of any inference of preemptive intent. The fact that "Congress provided very specific directions for state participation" in matters not relating to alien registration, Arizona, 641 F.3d at 355 (referring to 8 U.S.C. § 1357 ), "demonstrating that it knew how to ask for help where it wanted help," id., says very little about Congress's preemptive intent regarding state penalties for violations of the federal registration scheme. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 616 , 117 S.Ct. 1590 , 137 L.Ed.2d 852 (1997)("[E]ven where Congress has legislated in an area subject to its authority, our pre-emption jurisprudence explicitly rejects the notion that mere congressional silence on a particular issue may be read as preempting state law") (emphasis in original). The court declines to construe Congress's silence in this instance as evidence of its preemptive intent.
H.B. 56 § 10 creates Alabama state crimes for unlawfully present aliens who engage in conduct that constitutes existing federal crimes under the INA. Section 10 does not criminalize mere unlawful presence because it also requires a violation of 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a), both of which carry criminal penalties under federal law. Although "unlawful presence in the United States is not a federal crime," see Arizona, 703 F.Supp.2d at 988 , and criminalizing mere unlawful presence might impair or impede the United States foreign policy goals, ( see doc. 2-1 ¶¶ 9, 35), the Supreme Court has recognized that " entering or remaining unlawfully in this country is itself a crime." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984)(citing 8 U.S.C. §§ 1302 , 1306, and 1325) (emphasis added; citations omitted). That "there [is no] federal criminal statute making unlawful presence in the United States, alone, a federal crime," Martinez-Medina v. Holder, ___ F.3d ___, ___, 2011 WL 855791, *6 (9th Cir. Mar. 11, 2011), is of little moment here. As noted above, an alien in violation of 8 U.S.C. § 1304 (e) or 8 U.S.C. § 1306 (a) is not necessarily "unlawfully present" under federal law. Mere unlawful presence may subject an alien to civil removal, but not criminal penalties, in a narrow set of circumstances, such as where an "alien has overstayed a valid visa or otherwise remains in the country after the expiration of a period authorized by the Department of Homeland Security." Martinez-Medina , ___ F.3d at ___ n. 4, 2011 WL 855791 at *6 n. 4. Section 10 does not seek to alter those narrow circumstances. The court finds H.B. 56 § 10 does not stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67 , 61 S.Ct. 399 . For all these reasons, the court finds that the United States is not likely to succeed in showing that H.B. 56 § 10 is impliedly preempted.
*1309 The United States also argues that Section 10 is unlawful because it seeks to criminalize unlawful presence [11] and this creates an obstacle to the accomplishment of the foreign policy goals of the United States. (Doc. 2 at 31-33.) The court rejects this argument.
The United States argues that H.B. 56 inherently interferes with the Federal Government's foreign policy objectives concerning international diplomatic relations as well as the uniform enforcement of national immigration laws. ( See doc. 2 at 12-13, 18, 25, 33-34, 56, 81-83.) In support of this argument the United States submitted the Declaration of William J. Burns, Deputy Secretary of State, (doc. 2-1), who states that H.B. 56 threatens to disrupt "uniform foreign policy regarding the treatment of foreign nations" and "risks negative reciprocity of the treatment of U.S. citizens abroad, among other deleterious effects." (Doc. 2 at 32-33 [citing doc. 2-1 at ¶¶ 9, 35; quoting id. ¶ 35].) Legislation affecting the treatment and movement of another country's citizens living abroad necessarily touches the foreign relations between the visiting and the host nations; however, something more is required before the court can enjoin an otherwise valid state law on foreign policy grounds.
The United States has not cited the court to a specific conflict between Section 10, or any other Section of H.B. 56, and some Congressionally-granted Executive Branch authority directly relating to foreign policy. Nevertheless, it argues that H.B. 56 interferes with the Executive Branch's "fundamental authority to conduct foreign affairs." (Doc. 2 at 33.) However, Supreme Court cases that have found conflict preemption when a state law obstructs the Executive Branch's authority to conduct foreign affairs are limited to instances where the Executive Branch's action has been specifically authorized by Congress and is intended as a means of achieving key national foreign policy goals. See, e.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 420-25 , 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003); Crosby, 530 U.S. at 380-85 , 120 S.Ct. 2288 .
The Supreme Court has taken varying positions regarding the weight to be given statements of Executive Branch officials seeking to preempt a state law on the basis of foreign policy. Compare Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 328-31 , 114 S.Ct. 2268 , 129 L.Ed.2d 244 (1994) (rejecting Executive Branch statements and amicus filings in deciding that state tax law with international implications was not preempted), with Garamendi, 539 U.S. at 424-25 , 123 S.Ct. 2374 (considering letters from the Deputy Secretary of State as well as statements submitted by other foreign governments in the Court's decision to preempt a state law in conflict with executive agreements between the United States and European nations); and Crosby, 530 U.S. at 385-88 , 120 S.Ct. 2288 (distinguishing Barclays and finding statements by Executive Branch officials and foreign powers persuasive in deciding that a state law, which limited transactions with a foreign nation, was preempted by a conflicting federal statute). These decisions demonstrate that, in a conflict preemption analysis, the Supreme Court will rely on statements of Executive Branch officials to invalidate an otherwise valid state law based on preemption only when there is evidence that such statements demonstrate a national foreign relation policy. See Garamendi, 539 U.S. at 421 , 123 S.Ct. 2374 (noting preemption was properly grounded on the " national position, expressed unmistakably in the executive agreement" between the President *1310 of the United States and the German Chancellor). Statements from Executive Branch officials and other evidence of foreign discontent or threats of reprisal are insufficient to establish the national position. See Barclays, 512 U.S. at 327-28 , 114 S.Ct. 2268 . The evidence must show that the foreign policy concerns expressed by the Executive Branch are within "Congress's express command to the President to take the initiative for the United States among the international community," Crosby, 530 U.S. at 380-81 , 120 S.Ct. 2288 (emphasis added), as demonstrated by statements from Congress, ratified treaties, or international agreements. See Garamendi, 539 U.S. at 420 , 123 S.Ct. 2374 (emphasis added); see also Arizona, 641 F.3d at 381 (Bea, J., concurring in part and dissenting in part).
Thus, to base a finding of preemption of Section 10 based on Executive Branch foreign policy, the court must have some evidence of a national foreign policy—either some evidence of Congress's intent or a treaty or international agreement establishing the national position. This is the position raised in Judge Bea's dissent in Arizona, in which he noted:
Neither does the Supreme Court's preemption jurisprudence in the field of foreign relations change the conclusion that Section 2(B) is not preempted. . . . .
. . . . [A]s Crosby and Garamendi demonstrate, it is not simply any effect on foreign relations generally which leads to preemption, as the majority asserts. See Maj. Op. at 352-54. Instead, a state law is preempted because it conflicts with federal 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 Congress decided to allow with Burma, and the discretion explicitly given to the Executive to make trade decisions. In Garamendi, the state law imposed an investigatory and litigation burden inconsistent with the rules the Executive Agreement 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 spillover effects of the nation's immigration laws on foreign affairs." Maj. Op. at 354.
First, the majority fails to identify a federal foreign relation policy which establishes the United States must avoid "spillover effects," if that term is meant to describe displeasure by foreign countries with the United States' immigration policies. 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 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 federal policy; any negative effect on foreign relations caused by the free flow of immigration status information between Arizona 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 relations any more than could such a foreign relations *1311 claim override Congressional statutes 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.
Arizona, 641 F.3d at 380-82 (Bea, J., concurring in part and dissenting in part) (emphasis added).
There is no evidence before the court that Section 10, or any other provision of H.B. 56, conflicts with Congressional intent regarding national foreign policy goals or with an international agreement "identify[ing] a federal foreign relation policy". See id. at 381 (Bea, J., concurring in part and dissenting in part). The statement submitted in this case by the Deputy Secretary of State, alleging that foreign policy is hindered, is insufficient. Without evidence of Congressional intent, the United States must show specifically a national foreign policy "addressed in Executive Branch diplomacy and formalized in treaties and executive agreements." Garamendi, 539 U.S. at 421 , 123 S.Ct. 2374 . There is no such evidence before the court. Therefore, the court finds that the United States has not shown that it is likely to succeed on its claim that Section 10 is preempted due to interference with the nation's foreign relations policy.
Based on the foregoing, the court finds the United States has not established a likelihood of success on its claim that H.B. 56 § 10 is preempted by federal law.
C. SECTION 11(a)
Section 11(a) of H.B. 56 states:
It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.
H.B. 56 § 11(a). A person who violates Section 11 is "guilty of a Class C misdemeanor and subject to a fine of not more than five hundred dollars ($500)." Id. (h). For the purposes of enforcing Section 11, "an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. § 1373 (c)." Id. Section 11 "does not apply to a person who maintains authorization from the federal government to be employed in the United States." Id. (d). Also, Section 11 "shall be interpreted consistently with 8 U.S.C. § 1324a and any applicable federal rules and regulations." Id. (j).
The United States argues that Section 11(a) is conflict preempted because it seeks to override Congress's determination that criminal sanctions should not attach to the solicitation or performance of work by unlawfully present aliens. (Doc. 2 at 33.) As noted above, every preemption 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 presumption against preemption applies when "Congress has legislated. . . in a field which the States have traditionally occupied." Id. Because the power to regulate the employment of aliens not authorized to work is "within the mainstream" of the states' historic police power, a presumption against preemption applies. DeCanas, 424 U.S. at 356 , 96 S.Ct. 933 ; Arizona, 641 F.3d at 357 . Therefore, with respect to Section 11(a), the court "start[s] with the assumption that the historic police powers of [Alabama to regulate the employment of unauthorized aliens will not] be superseded . . . unless that [is] the clear and manifest purpose of Congress." Wyeth, 129 S.Ct. at 1194 -95 (quoting Lohr, 518 U.S. at 485 , 116 S.Ct. 2240 )(internal quotations and citations omitted).
In 1986, Congress amended the INA through enactment of the Immigration *1312 Reform and Control Act ("IRCA"), Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a to 1324b), which is "a comprehensive scheme prohibiting the employment of illegal aliens in the United States." Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147 , 122 S.Ct. 1275 , 152 L.Ed.2d 271 (2002). IRCA "was . . . designed to deter aliens from entering [the United States] illegally." Zheng, 306 F.3d at 1087 (internal citations and quotations omitted). IRCA "forcefully made combating the employment of illegal aliens central to the policy of immigration law." Hoffman Plastic Compounds, 535 U.S. at 147 , 122 S.Ct. 1275 (quoting INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 , and n. 8, 112 S.Ct. 551 , 116 L.Ed.2d 546 (1991))(internal quotations omitted). The Senate Report explained that "[t]he primary incentive for illegal immigration is the availability of U.S. employment," and that IRCA was "intended to increase control over illegal immigration." S.REP. NO. 99-132, 99th Cong., 1st Sess. 1 (1985).
IRCA makes it "unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien." 8 U.S.C. § 1324a(a)(1)(A); see also id. (a)(2) (making it unlawful for an employer to continue "to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment"); id. (a)(4) (making it unlawful for an employer to use a "contract, subcontract, or exchange . . . to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien . . . with respect to performing such labor"). An "unauthorized alien" is defined under IRCA as an alien who is not "lawfully admitted for permanent residence" or not otherwise authorized by the Attorney General to be employed in the United States. Id. (h)(3). IRCA requires employers to review documents establishing an employee's eligibility for employment. Id. (b). An employer can confirm an employee's authorization to work by reviewing, among other things, the employee's United States passport, resident alien card, alien registration card, or other document approved by the Attorney General. Id. (b)(1)(B)-(D). The employer must attest under penalty of perjury on Department of Homeland Security ["DHS"] Form I-9 that he "has verified that the individual is not an unauthorized alien" by reviewing these documents. Id. (b)(1)(A). The I-9 form itself "and any information contained in or appended to [it] . . . may not be used for purposes other than for enforcement of" IRCA and other specified provisions of federal law. Id. (b)(5).
The text of IRCA reflects a clear choice on the part of Congress to deter the employment of unauthorized aliens through a detailed scheme of civil and criminal sanctions against employers, not employees. See id. (e)(4)-(5), (f)(1); 8 C.F.R. § 274a.10. An employer who knowingly hires an unauthorized alien shall be ordered to "cease and desist from such violations," and to pay a civil penalty in an amount "not less than $250 and not more than $2,000 for each unauthorized alien" for a first offense, "not less than $2,000 and not more than $5,000 for each [unauthorized] alien" for a second offense, and "not less than $3,000 and not more than $10,000 for each [unauthorized] alien" for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization of its employees "shall [be required] to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred." Id. (e)(5). Employers who engage in a "pattern or practice" of hiring *1313 unauthorized aliens "shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both." Id. (f)(1).
Congress has demonstrated the sanctions that it deems appropriate for unauthorized aliens who perform work by providing only narrowly-tailored sanctions against such aliens, including deportation, and special sanctions for the presentation of false or fraudulent documents. See 8 U.S.C. § 1227 (a)(1)(C)(i) (making failure to maintain immigrant status is a deportable offense); 8 U.S.C. § 1324c (making it a civil violation to make or use a false document or to use a document belonging to another person, in the context of unlawful employment of an unauthorized alien); 8 C.F.R. § 214.1 (e) (prohibiting non-immigrant aliens from unauthorized employment and classifying such conduct as a failure to maintain status under the INA).
Other sections in IRCA that provide affirmative protections to unauthorized alien workers counsel against a finding that Congress intended to permit the criminalization of applying for, soliciting, or performing work by unauthorized aliens. Section 1324a(d)(2)(C) provides that "[a]ny personal 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." 8 U.S.C. § 1324a(d)(2)(C). This section would prohibit Alabama from using personal information in the verification system for the purpose of investigating or prosecuting violations of H.B. 56 § 11(a). Also, subsection (g)(1) provides, "It is unlawful for a person or other entity, in the hiring . . . of any individual, to require the individual 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." Id. (g)(1) Section 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). Id. (e). The penalty for a violation of (g)(1) 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." "Congress could have required that employers repay only authorized workers from whom they extracted a financial bond. Instead, Congress required employers to repay any employee including undocumented employees." Arizona, 641 F.3d at 359 (emphasis added).
The legislative history of IRCA reflects a deliberate decision on the part of Congress not to criminalize work by unauthorized alien. In Nat. Center for Immigrants' Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir.1990), rev'd on other grounds, 502 U.S. 183 , 112 S.Ct. 551 , 116 L.Ed.2d 546 (1991), the Ninth Circuit thoroughly reviewed IRCA's legislative history. The Ninth Circuit found that the determination to reduce or deter employment of unauthorized workers by sanctioning employers, rather than employees, was "a congressional policy choice clearly elaborated in IRCA." Id. at 1370.
The court stated:
While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals. Immigration Reform and Control Act of 1985: Hearings before the Senate Subcommittee on Immigration and Refugee Policy, 99th Cong., 1st Sess. (1985), S. Hrg. 99-273, at 56, 59 (In response to the proposal that aliens be fined or detained *1314 as a deterrence to illegal immigration, Senator Simpson, the Chairman of the Senate Judiciary Committee, stated that this was not a new recommendation, but one that had previously been suggested and rejected). See also 118 Cong. Rec. H30155 (daily ed. Sept. 12, 1972) (statement of Rep. Rodino) (the House Judiciary Committee decided not to impose any additional criminal sanctions or other penalties on employees, believing that such penalties "would serve no useful purpose"). Instead, it deliberately adopted sanctions with respect to the employer only. 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. During the extensive debates and hearings conducted during earlier attempts to enact similar legislation, the INS specifically agreed that employee sanctions, such as denying aliens employment pending deportation hearings or detaining aliens, should be rejected. James Hennessey, the Executive Assistant to the INS Commissioner, testified that the INS would not attempt to control employment during deportation proceedings:
Rep. Rodino: [During deportation proceedings] the fact that an illegal alien is a holder of a job or some employment, means that there is no such surveillance on the part of the Service or anybody that he won't be holding the job?
Mr. Hennessey: He will undoubtedly continue. In fact, having still the right to go before the Board [of Immigration Appeals], I don't think we could attempt or ask for any legislation that he not hold the job. We will not expect the individual to starve in the United States while he is exhausting both the administrative and judicial roads that the legislation gives him.
Illegal Aliens, Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, 92d Cong., Serial No. 13 pts. 1-5, pt. 1 at 46. Even an INS District Director for Detroit, Michigan who favored administrative action against illegal aliens who worked, explicitly rejected detention as a means of curtailing immigration:
Mr. Pederson: I believe that we ought to impose a penalty against the alien to help stop him [from working].
Rep. Rodino: What kind of penalty would you impose on the alien?
Mr. Pederson: Well, I do not feel that a fine or imprisonment is the answer but I do feel that there should be some form of sanction. It could be possible to deny administrative relief of some form.
Id., pt. 3 at 919. The House Judiciary Committee concluded at the end of this round of hearings that "[t]he illegal entrant should not be subject to additional penalties. . . ." Id., pt. 1, at 90.
Although some continued to argue for restraints against the employee, the approach of controlling employment through employer not employee sanctions was adjudged by Congress to provide the only realistic and appropriate solution. As stated in the final House report, employer sanctions, "coupled with improved border enforcement, is the only effective way to reduce illegal entry and in the Committee's judgment it is the most practical and cost-effective way to address this complex problem." H.R.Rep. No. 99-682(I), 99th Cong., 2nd Sess. 49, reprinted in 1986 U.S.Code Cong. & Admin. News. 5653 (emphasis added).
Nat'l Center for Immigrants' Rights, 913 F.2d at 1367-69 (footnote omitted; emphasis *1315 in original); see also H.R.Rep. No. 99-682(I), reprinted in 1986 U.S.C.C.A.N. 5650 ("The Committee remains convinced that legislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens.").
In United States v. Arizona , the United States challenged Section 5(C) of the Arizona Act, A.R.S. § 13-2928(C), which is similar to H.B. 56 § 11(a). See Arizona, 703 F.Supp.2d at 1001-02 . Section 5(C) of the Arizona Act 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." A.R.S. § 13-2928(C). The district court, relying on IRCA's text and the Ninth Circuit's interpretation of congressional intent set forth in National Center for Immigrants' Rights, found that the United States was likely to succeed on its claim that Arizona's new crime for working without authorization conflicts with a comprehensive federal scheme and is preempted. Id. at 1002. Arizona appealed.
On appeal, the Ninth Circuit affirmed the decision of the district court. Finding that it was bound by its holding regarding congressional intent in National Center for Immigrants' Rights, the Court of Appeals "conclude[d] 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 discouraging unauthorized immigrant employment, likely reflects Congress' clear and manifest purpose to supercede state authority in this context." Arizona, 641 F.3d at 359 .
This court agrees with the Ninth Circuit's holdings in National Center for Immigrants' Rights and its decision in Arizona. Based on IRCA's text and legislative history, this court concludes that the clear and manifest purpose of Congress was to supercede Alabama's authority to enact H.B. 56 § 11(a) sanctioning work by unauthorized aliens.
The State Defendants argue that IRCA's text and legislative history show "that Congress did not intend to preempt State laws that criminalized the solicitation and acceptance of work by unauthorized workers." (Doc. 38 at 71.) They maintain that the United States is "attempt[ing] to revive the discredited theory of `preemption by omission.'" ( Id. ) The court disagrees. The arguments advanced by the United States are not based solely on the inaction or omission of Congress. Rather, the arguments of the United States are based on "inaction joined with action." See Puerto Rico Dept't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 , 108 S.Ct. 1350 , 99 L.Ed.2d 582 (1988). In Isla Petroleum Corp., the Supreme Court explained:
[D]eliberate federal inaction could always imply preemption, which cannot be. There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn — not from federal inaction alone, but from inaction joined with action.
Id. at 503 , 108 S.Ct. 1350 .
Isla Petroleum Corp. involved an Energy Policy Conservation Act ("EPCA") provision that terminated the President's authority to implement federal price controls on petroleum products that had been granted under the older Emergency Petroleum Allocation Act ("EPAA"). Id. at 497-98 , 108 S.Ct. 1350 . After the President's regulatory authority terminated, Puerto Rico implemented price controls on *1316 petroleum products. Id. at 498-99 , 108 S.Ct. 1350 . Several oil companies filed suit, arguing that the price controls were preempted; they argued that the EPAA "evinced a federal intent to enter the field of petroleum allocation and price regulation, and that the EPCA never countermanded that intent." Id. at 500 , 108 S.Ct. 1350 . The oil companies argued that the EPCA simply changed the nature of the federal control of petroleum allocation and price regulation from "one of federal hands-on regulation to one of federally mandated free-market control." Id.
Justice Scalia, writing for the Court, rejected that argument, stating that, the preemption analysis must begin with the assumption that "the historic police powers of the States" are not to be pre-empted "unless that was the clear and manifest purpose of Congress." Id. at 500 , 108 S.Ct. 1350 . The Court determined that there was no text in "any extant federal regulation that might plausibly be thought to imply exclusivity." Id. at 501 , 108 S.Ct. 1350 . "Without a text that can . . . plausibly be interpreted as prescribing federal pre-emption it is impossible to find that a free market was mandated by federal law." Id. The Court further determined that, with the EPCA, Congress had "withdrawn from all substantial involvement in petroleum allocation and price regulation. There being no extant action that can create an inference of pre-emption in an unregulated segment of an otherwise regulated field, preemption, if it is intended, must be explicitly stated." Id. at 504 , 108 S.Ct. 1350 .
In Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U.S. 409 , 106 S.Ct. 709 , 88 L.Ed.2d 732 (1986), which was discussed at length in Isla Petroleum Corp., the Court considered whether the states could impose conditions on the first sale of natural gas which, by direct statutory exemption, was placed beyond regulation by the Federal Energy Regulatory Commission ("FERC"). Prior to 1978 regulation by FERC preempted any state regulation. See N. Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U.S. 84 , 83 S.Ct. 646 , 9 L.Ed.2d 601 (1963). In the Natural Gas Policy Act of 1978, Pub. L. 95-621, 92 Stat. 3351, Congress substantially restricted FERC's regulatory authority. The Transcontinental Court noted that a "decision to forego regulation in a given area may imply an authoritative federal determination that the area is best left un regulated, and in that event would have as much preemptive force as a decision to regulate." Transcontinental, 474 U.S. at 422 , 106 S.Ct. 709 (quoting Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 384 , 103 S.Ct. 1905 , 76 L.Ed.2d 1 (1983)). The Court refused to accept the argument that Congress "in revising a comprehensive federal regulatory scheme to give market forces a more significant role in determining the supply, the demand, and the price of natural gas, intended to give the States the power it had denied FERC." Id.
Here, unlike in Isla Petroleum Corp., there is "extant action that can create an inference of pre-emption in an unregulated segment of an otherwise regulated field." Isla Petroleum Corp., 485 U.S. at 504 , 108 S.Ct. 1350 . "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 criminalizing work." Arizona, 641 F.3d at 359 (emphasis added). Congress's "decision to forego" criminalizing unauthorized work, as revealed by IRCA's text and legislative history, implies "an authoritative federal determination that the area is best left un regulated," and that decision has "as much preemptive force as a decision to regulate." Transcontinental, 474 *1317 U.S. at 422, 106 S.Ct. 709 (citations omitted). "Far from the situation in Isla, Congress has not `withdrawn all substantial involvement' in preventing unauthorized 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." Arizona, 641 F.3d at 359-60 .
Alabama's decision, through Section 11(a) of H.B. 56, to criminalize work — which Congress explicitly chose not to do through IRCA and the INA — "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67 , 61 S.Ct. 399 . Section 11(a) is not saved from preemption simply because it may further the strong federal policy of prohibiting unauthorized aliens from seeking employment in the United States. As the Supreme Court recognized in Crosby , "[t]he fact of a common end hardly neutralizes conflicting means." Crosby, 530 U.S. at 379 , 120 S.Ct. 2288 ; cf. id. at 380 , 120 S.Ct. 2288 ("`[C]onflict is imminent' when `two separate remedies are brought to bear on the same activity'")(quoting Wis. Dept. of Indus. v. Gould, Inc., 475 U.S. 282, 286 , 106 S.Ct. 1057 , 89 L.Ed.2d 223 (1986)). For these reasons, the court finds that the United States is likely to succeed on its claim that Section 11(a) is preempted.
In addition to demonstrating a likelihood of success on the merits, the United States must also establish that it will suffer an irreparable injury if the injunction does not issue, that the threatened injury to the United States outweighs whatever damage the proposed injunction may cause the state defendants, and that, if issued, the preliminary injunction will not adversely effect the public's interest.
The United States must establish that it will suffer irreparable harm if the preliminary injunction is not granted. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000). "Even if the movant establishes a substantial likelihood of success on the merits, his failure to establish irreparable injury `would, standing alone, make preliminary injunctive relief improper.'" Windsor v. United States, 379 Fed.Appx. 912, 915-16 (11th Cir.2010)(quoting Siegel, 234 F.3d at 1176 ); see also Snook v. Trust Co. of Ga. Bank of Savannah, 909 F.2d 480 , 486-87 (11th Cir.1990)(although movants proved they would likely succeed on the merits, denying preliminary injunctive relief was proper due to failure to show irreparable injury); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983)("The Government's success in establishing a likelihood it will prevail on the merits does not obviate the necessity to show irreparable harm."). The harm at issue at this stage of the proceeding is the harm that will occur in the time between the filing of the action and a final judgment. Lambert, 695 F.2d at 540 . The focus of the court's inquiry is directed to whether this harm is irreparable. N.E. Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990). Whether an injury is irreparable may depend on whether it can "be undone through monetary remedies." Id. The availability of remedial measures, including monetary relief, only increases the burden of proving irreparable harm:
Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a [an injunction], are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
City of Jacksonville, 896 F.2d at 1285 (quoting Sampson v. Murray, 415 U.S. 61, 90 , 94 S.Ct. 937 , 39 L.Ed.2d 166 (1974)).
*1318 The court finds that the United States will endure irreparable harm during the pendency of this litigation if Section 11(a) is not preliminarily enjoined.
The United States argues that "H.B. 56 effects ongoing irreparable harm to the constitutional order" by disrupting the "Constitution's structural reservation of authority to the federal government to set immigration policy." (Doc. 2 at 77.) As a preliminary matter, the court notes that the Eleventh Circuit has clearly stated that not every alleged constitutional infringement per se constitutes irreparable harm. Siegel, 234 F.3d at 1177 ("Plaintiffs also contend that a violation of constitutional rights always constitutes irreparable harm. Our case law has not gone that far, however."); see also City of Jacksonville, 896 F.2d at 1285 ("No authority from the Supreme Court or the Eleventh Circuit has been cited to us for the proposition that the irreparable injury needed for a preliminary injunction can properly be presumed from a substantially likely equal protection violation."). Although in United States v. Lambert , the Eleventh Circuit found the United States suffered no irreparable injury stemming from the defendant's likely violation of the Clean Water Act, the decision to uphold denial of preliminary injunctive relief turned, in part, on the availability of environmental restoration and monetary relief following a trial on the merits. Lambert, 695 F.2d at 540 . The Lambert court was not satisfied that the harm was truly irreparable because the evidence indicated that any injury suffered in the interim would only "make restoration more difficult, more expensive, and more uncertain," but not impossible. Id. (internal quotations omitted).
By contrast, the injury United States alleges is definite and irreparable — it cannot be remediated or "undone through monetary remedies." City of Jacksonville, 896 F.2d at 1285 . The court finds that Section 11 is likely preempted by federal law and thus invalid. See U.S. CONST. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."); see also Altria Grp., Inc. v. Good, 555 U.S. 70, 76 , 129 S.Ct. 538 , 172 L.Ed.2d 398 (2008) ("state laws that conflict with federal law are `without effect'" (quoting Maryland v. Louisiana, 451 U.S. 725, 746 , 101 S.Ct. 2114 , 68 L.Ed.2d 576 (1981))). To allow Section 11(a) to take effect would be to allow a law of Alabama to be "supreme" over federal law; this is an irreparable constitutional injury.
A preliminary injunction is an extraordinary remedy, but because the court finds Section 11(a) is preempted, preliminary injunctive relief is warranted. The United States will be irreparably harmed if this section is enforced during the pendency of this action and the "public interest will perforce be served by enjoining the enforcement of the invalid provision of state law." Bank of America v. Sorrell, 248 F.Supp.2d 1196, 1200 (N.D.Ga.2002)(quoting Bank One, Utah v. Guttau, 190 F.3d 844, 848 (8th Cir.1999)); see also Guttau, 190 F.3d at 847-48 ("If [plaintiff] proves that the relevant provisions of the [state law] are preempted by the [federal law] and that it will suffer irreparable harm if the State is not enjoined from enforcing those provisions, then the question of harm to the State and the matter of the public interest drop from the case, for [plaintiff] will be entitled to injunctive relief no matter what the harm to the State, and the public interest will perforce be served by enjoining the enforcement of the invalid provisions of state law.")
*1319 Therefore, for these reasons, the court finds the United States has shown its entitlement to an injunction of Section 11(a) of H.B. 56 pending final judgment in this case. The United States's Motion for Preliminary Injunction as to Section 11(a) will be granted.
D. SECTION 12(a)
Section 12 of H.B. 56 sets forth circumstances under which state, county, and municipal law enforcement officers must attempt to verify the citizenship and immigration status of persons detained or arrested. Section 12(a) provides:
Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation.
Section 12(a) requires citizenship and immigration status determinations "be made by contacting the federal government pursuant to 8 U.S.C. § 1373 (c) and relying upon any verification provided by the federal government." [12] A person "is presumed not to be an alien who is unlawfully present in the United States" if the person provides to the law enforcement officer any one of six forms of identification. [13] Id. (d). In carrying out the requirements of Section 12, law enforcement officers are prohibited from considering "race, color, or national origin . . . except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901." Id. (c). "A law enforcement officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States." Id. "If an alien is determined by the federal government to be an alien who is unlawfully present in the United States pursuant to 8 U.S.C. § 1373 (c), the law enforcement agency shall cooperate in the transfer of the alien to the custody of the federal government, if the federal government so requests." Id. (e).
The United States claims that Section 12(a) is preempted by federal law because it "represent[s] a systematic effort by Alabama to inject itself into the enforcement of the federal government's own immigration laws in a manner that is non-cooperative with the Secretary, and therefore is impermissible." (Doc. 2 at 59.) Specifically, *1320 it contends that "Alabama's mandatory verification scheme promises to disrupt (i) federal control and discretion over immigration enforcement, (ii) the operation of DHS enforcement priorities generally, and (iii) the conditions of residence of lawfully present aliens." ( Id. at 60 .) As the United States correctly points out, Congress has provided for state assistance in enforcement of federal immigration law in limited circumstances. In the criminal context, state and local law enforcement are specifically authorized to arrest aliens who are unlawfully present in the United States and who have previously left the country or were deported after being convicted of a felony, 8 U.S.C. § 1252c, and to make arrests for violations of federal smuggling and harboring laws, 8 U.S.C. § 1324 (c). Federal law also authorizes the Attorney General to confer upon state or local law enforcement the powers of a federal immigration officer "[i]n the event the Attorney General determines that an actual or mass influx of aliens" arriving near a water or land border of the United States "presents urgent circumstances requiring an immediate Federal response." 8 U.S.C. § 1103 (a)(10). Aside from those provisions, federal law also provides certain circumstances under which state officers and employees can perform functions of federal immigration officers. 8 U.S.C. § 1357 (g).
Under section 1357(g), the Attorney General "may enter into a written agreement with a State . . . pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States. . ., may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law." Id. (g)(1). Named after section 287(g) of the Immigration and Nationality Act, such written agreements are known as "287(g) agreements". State officers performing an immigration function pursuant to such a written agreement with the Attorney General are required to "have knowledge of, and adhere to, Federal law relating to that function," id. (g)(2), and "shall be subject to the direction and supervision of the Attorney General," id. (g)(3). Further, "the specific powers and duties that may be, or are required to be, exercised or performed by the individual [who is authorized to perform a federal immigration function], the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision." Id. (g)(5). Subsection (g)(10) provides that no written agreement is required under section 1357(g) in order for any state officer or employee —
(A) to communicate with the Attorney General 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 Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
Id. (g)(10).
The aforementioned federal provisions allowing certain state involvement in federal immigration enforcement must be read in conjunction with 8 U.S.C. § 1373 (c). Section 1373(c) states that the INS (now Immigrations and Customs Enforcement or "ICE"), "shall respond" to inquiries from federal, state, or local governments "seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, *1321 by providing the requested verification or status information." 8 U.S.C. § 1373 (c) (emphasis added).
The United States argues that, in the absence of a written agreement under Section 1357(g)(1), states can only assist in the "`identification, apprehension, detention, or removal of aliens not lawfully present' in cooperation with the Attorney General under section 1357(g)(10)(B)." (Doc. 2 at 61.) According to the United States, the mandatory language regarding verification of immigration status contained in Section 12 of H.B. 56 would serve as an "obstacle... to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances in the particular case require." ( Id. at 64 .) The United States contends that it—
is not challenging Alabama's power to authorize its officers to assist federal officers in their enforcement of the immigration laws. However, the prospect of such authorization does not allow a state to systematically mandate enforcement of federal immigration law in particular circumstances. Any such state-dictated mandate would function as a parallel or contradictory direction, in competition with the Secretary's direction, as to how to enforce immigration law, thereby eroding the federal government's exclusive authority over immigration enforcement. It would also force the federal government to divert resources away from the enforcement priorities it has set.
( Id. at 65 n. 12.) The United States contends that the mandated submission of verification requests for individuals who violate even minor crimes would result in a "substantial uptick in verification requests [that] would interfere with federal operations," and place "real, impermissible burdens on the federal government." ( Id. at 69, 70 .) It further argues that Alabama's mandatory verification scheme impedes the enforcement discretion of the federal government and interferes with the federal government's priorities in enforcing immigration law by pursuing "[a]liens who pose a danger to national security or a risk to public safety." ( Id. at 68 [alteration in original; internal quotation and citation omitted].)
The State Defendants respond that 8 U.S.C. § 1357 (g)(10) reveals Congress's intent to allow states to assist in immigration enforcement without express authorization from Congress. They point to 8 U.S.C. § 1373 as evidence of Congressional intent to require ICE to respond to inquiries from the state seeking verification of the citizenship or immigration status of a person. Also, the State Defendants contend that a presumption against preemption should apply because Section 12 simply sets forth "stop-and-arrest protocols" that are "a fundamental attribute of internal law enforcement operations within a State." (Doc. 69 at 72.) They argue that an "arrest [under Sections 12 and 18] is an exercise of state authority to enforce state and local laws, " ( id. ); however, Section 12 reaches beyond arrest protocols into the field of identification of unlawfully present aliens. Identifying unlawfully present aliens is not "a field which the States have traditionally occupied." Wyeth, 129 S.Ct. at 1194 (internal quotations and citations omitted). Accordingly, there is no presumption against preemption of Section 12.
Nothing in the text of the INA expressly preempts states from legislating on the issue of verification of an individual's citizenship and immigration status. There is also nothing in the INA which reflects Congressional intent that the United States occupy the field as it pertains to the identification of persons unlawfully present in the United States. Therefore, *1322 the court must consider whether Section 12 is preempted because it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See Hines, 312 U.S. at 67 , 61 S.Ct. 399 . As noted above in the discussion of Section 10, in Arizona, the United States challenged the constitutionality of, and moved to preliminarily enjoin, Arizona's Support Our Law Enforcement and Safe Neighborhoods Act. See generally Arizona, 703 F.Supp.2d 980 . Section 2(B) of the Arizona Act, A.R.S. § 11-1051(B), which is nearly identical to Section 12(a) and (b), was among the challenged provisions. Id. at 993-98. As quoted by the Ninth Circuit in United States v. Arizona , Section 2(B) of Arizona S.B. 1070 provides:
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 person 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 persons 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 identification.
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.
641 F.3d at 346 n. 5.
As in the instant case, the United States had argued that this section was "preempted because it [would] result in the harassment of lawfully present aliens and [would] burden federal resources and impede federal enforcement and policy priorities." Arizona, 703 F.Supp.2d at 993 . The district court preliminarily enjoined Section 2(B), finding the United States had demonstrated a likelihood of success on its claim that the mandatory immigration verification requirements were preempted by federal law. Id. at 993-998 . The court reasoned in part as follows:
Federal resources will be taxed and diverted from the federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States. In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads to the inference of preemption.
Id. at 998 .
On appeal, the Ninth Circuit, in a 2-1 decision on this point, affirmed the district court's decision to enjoin Section 2(B). However, Judge Bea, the dissenting judge, noted the majority had affirmed the district court, not based on its findings, but on the majority's interpretation of 8 U.S.C. § 1357 (g), "which prescribes the process by which Congress intended state officers *1323 to play a role in the enforcement of federal immigration laws." Arizona, 641 F.3d at 372-73 (Bea, J., concurring in part and dissenting in part).
According to the Ninth Circuit majority, Section 1357(g) demonstrated that "Congress intended for state officers to systematically aid in the immigration enforcement only under the close supervision of the Attorney General—to whom Congress granted discretion in determining the precise conditions and direction of each state officer's assistance." Id. at 350 . Arizona had argued that 8 U.S.C. § 1373 (c), which requires the Department of Homeland Security "to respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual... for any purpose authorized by law," reflects the intent of Congress for states to assist in immigration enforcement. The majority rejected this argument, however, finding that a reading of all sections of the INA revealed a Congressional intent "that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General ... [and that] the mandatory nature of Section 2(B)'s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities." Arizona, 641 F.3d at 352 .
The reasoning of the majority in Arizona was followed in Georgia Latino Alliance for Human Rights v. Deal , Civil Action File No. 1:11-CV-1804-TWT, 793 F.Supp.2d 1317 , 2011 WL 2520752 (N.D.Ga. June 27, 2011), in which the court preliminarily enjoined Section 8 of a Georgia statute, which is similar to Section 12 of H.B. 56 and Section 2(B) of the Arizona Act. Section 8 of the Georgia Act provides in part—
[W]hen an officer has probable cause to believe that a suspect has committed a criminal violation, the officer shall be authorized to seek to verify such suspect's immigration status when the suspect is unable to provide one of five specified identity documents.
Id. at 1330 , at *9 (internal quotations and alterations omitted). The Georgia district court stated: "Section 8 attempts an end-run —not around federal criminal law-but around federal statutes defining the role of state and local officers in immigration enforcement." Id. at 1332 , at *11. It found:
8 U.S.C. § 1357 and § 1103 clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law. Indeed, Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state, ... or where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens.
Id. at 1331, at *10 (internal citations omitted). The court held, "Section 8 circumvents Congress' intention to allow the Attorney General to authorize and designate local law enforcement officers to enforce civil immigration law." Id. at 1333, at *11. Because Section 8 "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," the court held it was preempted by federal law. Id. (internal quotations omitted).
This court is not persuaded by these decisions on this point. It agrees that Congressional intent should be determined by the intent of Congress as found in 8 U.S.C. §§ 1357 and 1373(c). However, this court is of the opinion that the dissent in United States v. Arizona, 641 F.3d 339, 371-82 (Bea, J., concurring in part and *1324 dissenting in part), correctly analyzed the relationship between Federal law and State and local law enforcement. Judge Bea dissented from the majority's holding in Arizona that Section 2(B) of Arizona's S.B. 1070, containing a verification provision very similar to Section 12(a) of H.B. 56, was preempted by federal law. Focusing on the intent of Congress as expressed in 8 U.S.C. §§ 1357 and 1373, he rejected arguments in favor of preemption similar to those raised in this case and which the majority had accepted. Judge Bea wrote:
[T]his 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 Executive 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 government, "to communicate with the Attorney General regarding 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 authorities " 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 individual." Id. § 1373(c) ... Third, putting to one side communications from and responses to a state regarding an individual's immigration 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 detain certain illegal aliens. Id. § 1252c.
....
I dissent from the majority's determination that Section 2(B) of Arizona S.B. 1070 is preempted by federal law and 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 subsection shall be construed to require an agreement ... to communicate with the Attorney General regarding the immigration status of any individual" (emphasis added) to become " Everything in this subsection shall be construed to require an agreement."
....
.... 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 *1325 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") 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 Nationality 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. Indeed, as established by 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 Congress's clear intent for state police officials to communicate with federal immigration officials in the first step of immigration enforcement—identification of illegal aliens.
....
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 immigration officer functions by State officers and employees." Subsections (g)(1)-(9) provide the precise conditions under which the Attorney General may "deputize" state police officers (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 displaced, and § 1357(g)(7)-(8) describe the state officers' liability and immunity. Section 1357(g)(9) clarifies that no state or 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.... The majority's error is to read § 1357(g)(1)-(9), which provides 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.
....
To determine Congress's intent, we must attempt to read and interpret Congress's statutes on similar topics together.... In light of this, I submit that a more natural reading of § 1357(g)(10), together with § 1373(c), *1326 leads to a conclusion that Congress's intent was to provide an important role for state officers in the enforcement of immigration laws, especially as to the identification of illegal aliens.
....
I agree with the majority that "we must determine how the many provisions of [the] vastly complex [INA] function together." Maj. Op. at 351. However, the majority opinion's interpretation of § 1357(g)(10), which requires the Attorney General to "call upon" state officers in the absence of "necessity" 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 immigration 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 351. Indeed, "communicat[ions] with the Attorney General regarding the immigration status of any individual" were explicitly excluded from § 1357(g)'s requirement of an agreement with the Attorney General. 8 U.S.C. § 1357 (g)(10)(A). Congress intended the free flow of immigration status information 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."
....
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." Webster's New Twentieth Century Dictionary of the English Language 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 himself. 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 General to define the scope

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2143922. Public record. Not legal advice.