United States v. State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-16496

Plaintiff-Appellant,

D.C. No.

v. 2:18-cv-00490-

JAM-KJN

STATE OF CALIFORNIA; GAVIN

NEWSOM, Governor of California;

XAVIER BECERRA, Attorney General OPINION

of California,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted March 13, 2019

San Francisco, California

Filed April 18, 2019

Before: MILAN D. SMITH, JR., PAUL J. WATFORD,

and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2 UNITED STATES V. STATE OF CALIFORNIA

SUMMARY *

Immigration

In a case in which the United States sought to enjoin the

enforcement of three laws California enacted expressly to

protect its residents from federal immigration enforcement,

the panel affirmed in part and reversed in part the district

court’s denial in large part of the United States’ motion for a

preliminary injunction.

The United States challenged three California laws:

AB 450, which—as relevant to this appeal—requires

employers to alert employees before federal immigration

inspections; AB 103, which imposes inspection

requirements on facilities that house civil immigration

detainees; and SB 54, which limits the cooperation between

state and local law enforcement and federal immigration

authorities.

The United States sought a preliminary injunction,

arguing that these laws violated the doctrine of

intergovernmental immunity and the doctrine of conflict

preemption. The district court concluded that the United

States was unlikely to succeed on the merits of many of its

claims, and so denied in large part the motion for a

preliminary injunction.

With respect to AB 450, which requires employers to

alert employees before federal immigration inspections, the

panel affirmed the district court’s denial of a preliminary

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. STATE OF CALIFORNIA 3

injunction. The panel rejected the United States’ contention

that the provisions are invalid under the doctrine of

intergovernmental immunity and the doctrine of conflict

preemption, concluding that the district court did not abuse

its discretion when it concluded that AB 450’s employee-

notice provisions neither burden the federal government nor

conflict with federal activities.

With respect to AB 103, which imposes inspection

requirements on facilities that house civil immigration

detainees, the panel affirmed the denial of a preliminary

injunction as to those provisions of AB 103 that duplicate

inspection requirements otherwise mandated under

California law and are imposed on state and local detention

facilities.

However, the panel concluded that one subsection of

AB 103—California Government Code section

12532(b)(1)(C), which requires examination of the

circumstances surrounding the apprehension and transfer of

immigration detainees—discriminates against and

impermissibly burdens the federal government, and so is

unlawful under the doctrine of intergovernmental immunity.

Specifically, the panel concluded that the district court erred

by relying on a de minimis exception to the doctrine of

intergovernmental immunity in analyzing this provision.

The panel concluded that Supreme Court case law compels

the rejection of such a de minimis exception and held that

any economic burden that is discriminatorily imposed on the

federal government is unlawful. The panel also concluded

that the district court was incorrect in concluding that the

review required by the provision appeared no more

burdensome than reviews required under other California

provisions. Therefore, the panel reversed the district court’s

4 UNITED STATES V. STATE OF CALIFORNIA

denial of a preliminary injunction as to California

Government Code section 12532(b)(1)(C).

With respect to SB 54, which limits the cooperation

between state and local law enforcement and federal

immigration authorities, the panel affirmed the district

court’s denial of a preliminary injunction. The panel

rejected the United States’ argument that the provisions

violate the doctrine of obstacle preemption and the doctrine

of intergovernmental immunity, concluding that the district

court did not abuse its discretion when it concluded that that

any obstruction caused by SB 54 is consistent with

California’s prerogatives under the Tenth Amendment and

the anticommandeering rule.

The panel also rejected the United States’ contention that

SB 54’s information-sharing restrictions—which prohibit

state and local law enforcement agencies from providing

information regarding a person’s release date from

incarceration or other personal information—conflict with

8 U.S.C. § 1373, which provides that “a Federal, State, or

local government entity or official may not prohibit, or in

any way restrict, any government entity or official from

sending to, or receiving from, [the Department of Homeland

Security] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.”

Although SB 54 expressly permits the sharing of information

about immigration status, the United States argued that

section 1373 actually applies to more information than just

immigration status, and hence that SB 54’s prohibition on

sharing other information created a direct conflict. The

panel disagreed, explaining that the language of section 1373

is naturally understood as a reference to a person’s legal

classification under federal law.

UNITED STATES V. STATE OF CALIFORNIA 5

Finally, the panel addressed California’s argument that

the three other factors for determining whether to issue a

preliminary injunction—irreparable harm, the balance of the

equities, and the public interest—provide an alternative basis

for affirming the district court’s denial of a preliminary

injunction. Because the panel concluded that the United

States is unlikely to succeed on the merits of its challenges

to AB 450 and SB 54, the panel considered these factors only

as applied to the provision of AB 103 that imposes an

impermissible burden on the federal government. The panel

concluded it was not prepared, in the first instance, to affirm

the district court’s denial of a preliminary injunction as to

this provision based on equitable considerations. However,

the panel encouraged the district court, on remand, to

reexamine the equitable factors in light of the evidence in the

record.

COUNSEL

Daniel Tenny (argued), Brad Hinshelwood, Laura Myron,

Katherine Twomey Allen, Daniel Tenny, and Mark B. Stern,

Appelate Staff; Hashim M. Mooppan, Deputy Assistant

Attorney General; McGregor Scott, United States Attorney;

Joseph H. Hunt, Assistant Attorney General; Civil Division,

United States Department of Justice, Washington, D.C.;

Joshua S. Press, Francesca Genova, Joseph A. Darrow, and

Lauren C. Bingham, Trial Attorneys; Erez Reuveni,

Assistant Director; August Flentje, Special Counsel; Office

of Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Plaintiff-

Appellant.

Aimee Feinberg (argued), Deputy Solicitor General; Kristin

Liska, Associate Deputy Solicitor General; Lee I. Sherman,

6 UNITED STATES V. STATE OF CALIFORNIA

Maureen C. Onyeagbako, and Cherokii DM Melton, Deputy

Attorneys General; Christine Chuang, Anthony Hakl, and

Satoshi Yanai, Supervising Deputy Attorneys General;

Thomas S. Patterson, Senior Assistant Attorney General;

Edward C. DuMont, Solicitor General; Xavier Becerra,

Attorney General; Office of the Attorney General,

Sacramento, California; for Defendants-Appellees.

David L. Caceres, Assistant City Attorney; Lonnie J.

Eldridge, City Attorney; Office of the City Attorney, Simi

Valley, California; for Amicus Curiae City of Simi Valley.

Anthony S. Chavez, Daniel L. Richards, and Matthew E.

Richardson, Best Best & Krieger LLP, Irvine, California, for

Amicus Curiae City of Lake Forest.

Christopher J. Hajec, Elizabeth A. Hohenstein, and Mark S.

Venezia, Immigration Reform Law Institute, Washington,

D.C., for Amici Curiae National Law Enforcement

Associations and Victims’ Organizations.

Kyle D. Hawkins, Solicitor General; Ari Cuenin and Eric A.

White, Assistant Solicitors General; Jeffrey C. Mateer, First

Assistant Attorney General; Ken Paxton, Attorney General;

Office of the Attorney General, Austin, Texas; for Amici

Curiae States of Texas, Alabama, Arkansas, Florida,

Georgia, Indiana, Kansas, Louisiana, Nebraska, Nevada,

Ohio, Oklahoma, South Carolina, West Virginia, and

Governor Phil Bryant of the State of Mississippi.

Lawrence J. Joseph, Law Office of Lawrence J. Joseph,

Washington, D.C.; Sarah R. Rehlberg and Dale L. Wilcox,

Immigration Reform Law Institute, Washington, D.C.; for

Amici Curiae Municipalities and Elected Officials.

UNITED STATES V. STATE OF CALIFORNIA 7

John P. Cooley, Senior Deputy County Counsel; Thomas E.

Montgomery, County Counsel; Office of County Counsel,

San Diego, California; for Amicus Curiae County of San

Diego.

Sara J. Eisenberg, Aileen M. McGrath, and Tara M. Steeley,

Deputy City Attorneys; Yvonne R. Mere, Chief of Complex

and Affirmative Litigation; Ronald P. Flynn, Chief Deputy

City Attorney; Jesse C. Smith, Chief Assistant City

Attorney; Dennis J. Herrera, City Attorney; Office of the

City Attorney, San Francisco, California; for Amicus Curiae

City and County of San Francisco.

Benjamin G. Shatz, Michael G. Nordon, and Esra A.

Hudson, Manatt Phelps & Phillips LLP, Los Angeles,

California, for Amici Curiae Faith-Based Organizations.

Harit U. Trivedi, Strefan Fauble, Valerie L. Flores, Deputy

City Attorneys; James P. Clark, Chief Deputy City

Attorneys; Leela A. Kapur, Chief of Staff; Michael N. Feuer,

City Attorney; Office of the City Attorney, Los Angeles,

California; for Amicus Curiae City of Los Angeles.

David M. Zionts, Ivano M. Ventresca, and Eric H. Holder

Jr., Covington & Burling LLP, Washington, D.C.; Jessica R.

Hanson and Daniel N. Shallman, Covington & Burling LLP,

Los Angeles, California; for Amicus Curiae California State

Senate.

Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani,

Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois;

Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord,

Institute for Constitutional Advocacy and Protection,

8 UNITED STATES V. STATE OF CALIFORNIA

Washington, D.C.; for Amici Curiae Current and Former

Prosecutors and Law Enforcement Leaders.

Fredrick S. Levin, Daniel R. Paluch, Ali M. Abughedia, and

Michael A. Rome, Santa Monica, California, for Amicus

Curiae American Jewish Committee.

Bradley S. Phillips and Gregory D. Phillips, Munger Tolles

& Olson LLP, Los Angeles, California, for Amici Curiae

Immigration, Labor and Employment Law Scholars re:

AB 450.

Harry Sandick and Michael D. Schwartz, Patterson Belknap

Webb & Tyler LLP, New York, New York; Kevin A. Calla,

Law Office of Kevin A. Calla, Roseville, California; for

Amici Curiae Administrative Law, Constitutional Law,

Criminal Law and Immigration Law Scholars.

Margaret L. Carter and Daniel R. Suvor, O’Melveny &

Myers LLP, Los Angeles, California; Erin Bernstein and

Malia McPherson, Deputy City Attorneys, Maria Bee, Chief

Assistant City Attorney; Barbara J. Parker, City Attorney;

Office of the City Attorney, Oakland, California; Javier

Serrano, Deputy County Counsel; Kavita Narayan, Lead

Deputy County Counsel; Greta S. Hansen, Chief Assistant

County Counsel; James R. Williams, County Counsel;

Office of the County Counsel, San Jose, California; for

Amici Curiae 29 California Counties, Cities, and Local

Officials.

Abigail K. Coursolle, Ian McDonald, Joe McLean, and

Sarah Grusin, National Health Law Program, Los Angeles,

California, for Amici Curiae National Health Law Program,

Asian Law Alliance; Bay Area Lawyers for Individual

Freedom; California Center for Rural Policy; California

UNITED STATES V. STATE OF CALIFORNIA 9

National Organization for Women; Center for Civil Justice;

Center for Medicare Advocacy, Inc.; Citizens for Choice;

Community Legal Aid Society, Inc.; Congregation of Our

Lady of Charity of the Good Shepherd, US Provinces;

CWDA; Desert AIDS Project; Disability Rights California;

Disability Rights Education and Defense Fund; Disability

Rights Legal Center; Equality California; Florida Legal

Services, Inc.; In Our Own Voice: National Black Women's

Reproductive Justice Agenda; Kentucky Equal Justice

Center; Legal Aid Justice Center; Legal Aid Society of San

Mateo County; Legal Council for Health Justice; Maternal

and Child Health Access; Medical Students for Choice;

National Asian Pacific American Families Against

Substance Abuse; NARAL Pro-Choice California; National

Asian Pacific American Women's Forum; National Center

for Law and Economic Justice; National Hispanic Medical

Association; National Institute for Reproductive Health;

National Organization for Women Foundation; National

Women's Law Center; Northwest Health Law Advocates;

Physicians for Reproductive Health; Planned Parenthood

Affiliates of California; Positive Women's Network – USA;

Public Justice Center; The Children's Partnership; The New

York Immigration Coalition; The Praxis Project; The

Sargent Shriver National Center on Poverty Law; The

Southwest Women's Law Center; and Western Center on

Law & Poverty.

MacKenzie Fillow, John Moore, Noah Kazis, Aaron Bloom,

and Richard Dearing, Of Counsel; Zachary W. Carter,

Corporation Counsel; New York City Law Department,

New York, New York, for Amici Curiae City of New York

and 21 Local Governments.

10 UNITED STATES V. STATE OF CALIFORNIA

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellee State of California (California)

enacted three laws expressly designed to protect its residents

from federal immigration enforcement: AB 450, which

requires employers to alert employees before federal

immigration inspections; AB 103, which imposes inspection

requirements on facilities that house civil immigration

detainees; and SB 54, which limits the cooperation between

state and local law enforcement and federal immigration

authorities. Plaintiff-Appellant United States of America

(the United States) challenged these enactments under the

Supremacy Clause and moved to enjoin their enforcement.

The district court concluded that the United States was

unlikely to succeed on the merits of many of its claims, and

so denied in large part the motion for a preliminary

injunction.

The district court did not abuse its discretion when it

concluded that AB 450’s employee-notice provisions neither

burden the federal government nor conflict with federal

activities, and that any obstruction caused by SB 54 is

consistent with California’s prerogatives under the Tenth

Amendment and the anticommandeering rule. We therefore

affirm the district court’s denial of a preliminary injunction

as to these laws. We also affirm the denial of a preliminary

injunction as to those provisions of AB 103 that duplicate

inspection requirements otherwise mandated under

California law. But we conclude that one subsection of AB

103—codified at California Government Code section

12532(b)(1)(C)—discriminates against and impermissibly

burdens the federal government, and so is unlawful under the

doctrine of intergovernmental immunity. Because the

UNITED STATES V. STATE OF CALIFORNIA 11

district court relied on incorrect law in analyzing this

provision, we reverse its preliminary injunction order in part.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

We first review the relevant federal statutory framework

before describing the three California laws at issue in this

case.

A. Federal Statutory Framework

i. The INA

“The Government of the United States has broad,

undoubted power over the subject of immigration and the

status of aliens.” Arizona v. United States (Arizona II),

567 U.S. 387, 394 (2012); see also U.S. Const. art. I, § 8,

cl. 4 (granting Congress the power to “establish an uniform

Rule of Naturalization”); United States v. Curtiss-Wright

Exp. Corp., 299 U.S. 304, 315–18 (1936) (exploring the

federal government’s inherent sovereign powers in the realm

of foreign affairs). Congress exercises its authority to

regulate the entry, presence, and removal of noncitizens

through the Immigration and Nationality Act (INA) and

other related laws, and “has specified which aliens may be

removed from the United States and the procedures for doing

so.” Arizona II, 567 U.S. at 396. “A principal feature of the

removal system is the broad discretion exercised by

immigration officials.” Id. For example, “an alien may be

arrested and detained pending a decision on whether the

alien is to be removed from the United States,” and until that

decision, federal officials generally may either detain her or

release her on bond. 8 U.S.C. § 1226(a). Detention is

mandatory, however, for certain categories of noncitizens,

12 UNITED STATES V. STATE OF CALIFORNIA

including those who are inadmissible or removable due to

criminal convictions. Id. § 1226(c).

“The Attorney General shall arrange for appropriate

places of detention for aliens detained pending removal or a

decision on removal,” which might include the “purchase or

lease of [an] existing prison, jail, detention center, or other

comparable facility suitable for such use.” Id. § 1231(g); see

also id. § 1103(a)(11) (permitting agreements with states

and localities “for the necessary construction, physical

renovation, acquisition of equipment, supplies or materials

required to establish acceptable conditions of confinement

and detention”). The United States notes that the

Department of Homeland Security (DHS) “regularly uses

nine facilities in California to house civil immigration

detainees,” which collectively have a capacity of

approximately 5,700 detainees. The interplay between

federal and state authorities also manifests itself when

noncitizens subject to removal are also the targets of state or

local criminal enforcement. The INA requires that DHS

remove an alien who is subject to a final removal order

“within a period of 90 days” from “the date the alien is

released from [state or local] detention or confinement”;

however, it “may not remove an alien who is sentenced to

imprisonment until the alien is released from

imprisonment.” Id. § 1231(a)(1), (4) (emphasis added).

After release, federal authorities “shall detain the alien,” and

“[u]nder no circumstance during the removal period shall the

Attorney General release an alien who has been found

inadmissible . . . or deportable.” Id. § 1231(a)(2).

The United States asserts that “Congress contemplated

cooperation between federal and state officials” when it

allowed noncitizens to complete state criminal custody

before removal, and points to “other provisions of the INA

UNITED STATES V. STATE OF CALIFORNIA 13

[that] likewise reflect that expectation of collaboration.” For

example, the federal government is required to make

information available to state and local authorities indicating

“whether individuals arrested . . . for aggravated felonies are

aliens,” and to provide liaisons and computer resources in

connection with aliens charged with aggravated felonies. Id.

§ 1226(d)(1). Additionally, DHS must respond to inquiries

from state or local officials “seeking to verify or ascertain

the citizenship or immigration status of any individual.” Id.

§ 1373(c). In turn, “a Federal, State, or local government

entity or official may not prohibit, or in any way restrict, any

government entity or official from sending to, or receiving

from, [DHS] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.”

Id. § 1373(a). Additionally, “[f]ederal law specifies limited

circumstances in which state officers may perform the

functions of an immigration officer,” such as “when the

Attorney General has granted that authority to specific

officers in a formal agreement with a state or local

government.” Arizona II, 567 U.S. at 408 (citing 8 U.S.C.

§§ 1103(a)(10), 1252c, 1324(c), 1357(g)(1)). “State

officials can also assist the Federal Government by

responding to requests for information about when an alien

will be released from their custody.” Id. at 410.

ii. The IRCA

Congress enacted the Immigration Reform and Control

Act of 1986 (IRCA) “as a comprehensive framework for

‘combating the employment of illegal aliens.’” Arizona II,

567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc.

v. NLRB, 535 U.S. 137, 147 (2002)). Under the IRCA,

employers may not knowingly hire or employ aliens without

proper work authorization. 8 U.S.C. § 1324a(a)(1)–(2).

Employers in violation of the IRCA are subject to civil and,

14 UNITED STATES V. STATE OF CALIFORNIA

in cases of “a pattern or practice of violations,” criminal

penalties. Id. § 1324a(e)–(f). Although the IRCA

does not impose federal criminal sanctions on

the employee side . . . . some civil penalties

are imposed instead. With certain

exceptions, aliens who accept unlawful

employment are not eligible to have their

status adjusted to that of a lawful permanent

resident. Aliens also may be removed from

the country for having engaged in

unauthorized work. In addition to specifying

these civil consequences, federal law makes

it a crime for unauthorized workers to obtain

employment through fraudulent means.

Arizona II, 567 U.S. at 404–05 (citations omitted).

To ensure compliance with the IRCA, employers must

verify the authorization statuses of prospective employees.

8 U.S.C. § 1324a(a)(1)(B), (b). Verification is facilitated

through a uniform inspection process; employers are

required to retain documentary evidence of authorized

employment, to which “immigration officers and

administrative law judges [] have reasonable access.” Id.

§ 1324a(b), (e)(2)(A). The information and documentation

associated with the verification process may only be used to

enforce the IRCA and INA, as well as for prosecution under

certain criminal statutes. Id. § 1324a(b)(5), (d)(2)(F)–(G).

B. California’s Statutes

This case centers on three laws enacted by the California

legislature with the express goal “of protecting immigrants

from an expected increase in federal immigration

enforcement actions.” Hearing on AB 450 Before the

UNITED STATES V. STATE OF CALIFORNIA 15

Assemb. Comm. on Judiciary, 2017–18 Sess. 1 (Cal. 2017)

(synopsis).

i. Immigrant Worker Protection Act (AB 450)

AB 450 prohibits “public and private employers” from

“provid[ing] voluntary consent to an immigration

enforcement agent to enter any nonpublic areas of a place of

labor,” unless “the immigration enforcement agent provides

a judicial warrant.” Cal. Gov’t Code § 7285.1(a), (e). It

similarly prohibits employers from “provid[ing] voluntary

consent to an immigration enforcement agent to access,

review, or obtain the employer’s employee records without

a subpoena or judicial warrant.” Id. § 7285.2(a)(1). It also

limits employers’ ability to “reverify the employment

eligibility of a current employee at a time or in a manner not

required by” the IRCA. Cal. Lab. Code § 1019.2(a).

In addition, AB 450 requires employers to “provide a

notice to each current employee, by posting in the language

the employer normally uses to communicate employment-

related information to the employee, of any inspections of

I-9 Employment Eligibility Verification forms or other

employment records conducted by an immigration agency

within 72 hours of receiving notice of the inspection.” Id.

§ 90.2(a)(1). 1 If an employer receives “the written

immigration agency notice that provides the results of the

inspection,” then she must provide a copy to each “employee

identified by the immigration agency inspection results to be

an employee who may lack work authorization” and each

1

AB 450 “does not require a penalty to be imposed upon an

employer or person who fails to provide notice to an employee at the

express and specific direction or request of the federal government.”

Cal. Lab. Code § 90.2(c).

16 UNITED STATES V. STATE OF CALIFORNIA

“employee whose work authorization documents have been

identified by the immigration agency inspection to have

deficiencies.” Id. § 90.2(b)(1)–(2).

ii. Inspection and Review of Facilities Housing

Federal Detainees (AB 103)

AB 103 requires the California Attorney General to

conduct “reviews of county, local, or private locked

detention facilities in which noncitizens are being housed or

detained for purposes of civil immigration proceedings in

California.” Cal. Gov’t Code § 12532(a). 2 This includes

“any county, local, or private locked detention facility in

which an accompanied or unaccompanied minor is housed

or detained on behalf of, or pursuant to a contract with, the

federal Office of Refugee Resettlement or the United States

Immigration and Customs Enforcement.” Id. It requires the

California Attorney General to review “the conditions of

confinement,” “the standard of care and due process

provided,” and “the circumstances around [the]

apprehension” of civil immigration detainees, and then

prepare “a comprehensive report outlining the findings of the

review.” Id. § 12532(b). To facilitate this review, the

California Attorney General “shall be provided all necessary

access for the observations necessary to effectuate reviews

required pursuant to this section, including, but not limited

to, access to detainees, officials, personnel, and records.” Id.

§ 12532(c).

iii. California Values Act (SB 54)

2

California law generally requires biennial inspections of “local

detention facilities,” focusing on health and safety, fire suppression,

security, and rehabilitation efforts. Cal. Penal Code § 6031.1(a).

UNITED STATES V. STATE OF CALIFORNIA 17

SB 54 limits law enforcement’s “discretion to cooperate

with immigration authorities.” Id. § 7282.5(a). Among

other things, it prohibits state and local law enforcement

agencies from “[i]nquiring into an individual’s immigration

status”; “[d]etaining an individual on the basis of a hold

request”; “[p]roviding information regarding a person’s

release date or” other “personal information,” such as “the

individual’s home address or work address”; and “[a]ssisting

immigration authorities” in certain activities. Id.

§ 7284.6(a)(1). SB 54 contains some exceptions to these

prohibitions. For example, although agencies generally

cannot “[t]ransfer an individual to immigration authorities,”

such an undertaking is permissible if “authorized by a

judicial warrant or judicial probable cause determination,”

or if the individual has been convicted of certain enumerated

crimes. Id. §§ 7282.5(a), 7284.6(a)(4). Similarly, the

restrictions on sharing personal information are also relaxed

if the individual has been convicted of an enumerated crime,

or if the information is available to the public. Id.

§§ 7282.5(a), 7284.6(a)(1)(C)–(D). 3

3

California asserts that SB 54 was motivated by its “recogni[tion]

that victims and witnesses of crime are less likely to come forward if

they fear that an interaction with law enforcement will lead to their

removal or the removal of a family member,” and that the law built upon

prior legislative efforts. See Cal. Penal Code § 422.93 (“Whenever an

individual who is a victim of or witness to a hate crime . . . is not charged

with or convicted of committing any crime under state law, a peace

officer may not detain the individual exclusively for any actual or

suspected immigration violation or report or turn the individual over to

federal immigration authorities.”); see also Cal. Gov’t Code § 7284.2

(outlining the legislative findings undergirding SB 54 and reporting that

“immigrant community members fear approaching police” and

“[e]ntangling state and local agencies with federal immigration

enforcement programs diverts already limited resources and blurs the

lines of accountability between local, state, and federal governments”).

18 UNITED STATES V. STATE OF CALIFORNIA

II. Procedural Background

On March 6, 2018, the United States filed this action

against California, alleging that AB 450, AB 103, and SB 54

are preempted and violate the Supremacy Clause. The

United States moved to preliminarily enjoin the three laws.

The district court granted the motion for a preliminary

injunction in part and denied it in part. United States v.

California (California I), 314 F. Supp. 3d 1077, 1112 (E.D.

Cal. 2018). It agreed that the United States was likely to

succeed on the merits as to two provisions of AB 450—

specifically, the restriction on employers’ voluntary consent

to immigration enforcement officers, which the court

concluded “impermissibly discriminates against those who

choose to deal with the Federal Government,” and AB 450’s

reverification provision, which it determined was likely

preempted. Id. at 1096, 1098. 4 However, the court found

“no merit to [the United States’] Supremacy Clause claim as

to” AB 450’s employee-notice provisions, reasoning,

“Given IRCA’s focus on employers, the Court finds no

indication—express or implied—that Congress intended for

employees to be kept in the dark.” Id. at 1097. The notice

provisions did not “violate the intergovernmental immunity

doctrine,” the district court continued, because “[a]n

employer is not punished for its choice to work with the

Federal Government, but for its failure to communicate with

its employees.” Id.

As to AB 103, the district court found “no indication in

the cited portions of the INA that Congress intended for

4

California does not appeal the partial grant of the United States’

motion.

UNITED STATES V. STATE OF CALIFORNIA 19

States to have no oversight over detention facilities operating

within their borders,” noting that

AB 103’s review process does not purport to

give California a role in determining whether

an immigrant should be detained or removed

from the country. The directive contemplates

increased transparency and a report that may

serve as a baseline for future state or local

action. At this point, what that future action

might be is subject to speculation and

conjecture.

Id. at 1091. It further concluded that AB 103 was not invalid

under the doctrine of intergovernmental immunity because

“the burden placed upon the facilities is minimal,” and “even

if AB 103 treats federal contractors differently than the State

treats other detention facilities,” the United States had not

demonstrated that California “treats other facilities better

than those contractors.” Id. at 1093.

The district court also refused to enjoin the challenged

provisions of SB 54, finding that California’s “decision not

to assist federal immigration enforcement in its endeavors is

not an ‘obstacle’ to that enforcement effort” because

“refusing to help is not the same as impeding,” and thus the

doctrine of obstacle preemption did not render the provisions

unlawful. Id. at 1104–05. It also found that “Tenth

Amendment and anticommandeering principles counsel

against preemption,” and that 8 U.S.C. § 1373, which

governs the exchange of “information regarding []

immigration status,” did not change this conclusion because

the “plain meaning of Section 1373 limits its reach to

information strictly pertaining to immigration status (i.e.

what one’s immigration status is) and does not include

20 UNITED STATES V. STATE OF CALIFORNIA

information like release dates and addresses.” Id. at 1102,

1107. The district court determined that “a Congressional

mandate prohibiting states from restricting their law

enforcement agencies’ involvement in immigration

enforcement activities—apart from, perhaps, a narrowly

drawn information sharing provision—would likely violate

the Tenth Amendment.” Id. at 1109–10.

Subsequently, the district court ruled on California’s

motion to dismiss, issuing an order consistent with its

conclusions as to the preliminary injunction. United States

v. California (California II), No. 2:18-cv-490-JAM-KJN,

2018 WL 3361055, at *1 (E.D. Cal. July 9, 2018). This

timely appeal followed.

STANDARD OF REVIEW AND JURISDICTION

We review a district court’s denial of a preliminary

injunction for abuse of discretion. Epona v. County of

Ventura, 876 F.3d 1214, 1219 (9th Cir. 2017). “Our review

is limited and deferential. The district court’s interpretation

of the underlying legal principles, however, is subject to de

novo review and a district court abuses its discretion when it

makes an error of law.” Sw. Voter Registration Educ.

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en

banc) (per curiam). We will therefore reverse a denial of a

preliminary injunction if the district court “based [its

decision] on an erroneous legal standard or a clearly

erroneous finding of fact.” Associated Press v. Otter,

682 F.3d 821, 824 (9th Cir. 2012) (quoting Pimentel v.

Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)).

UNITED STATES V. STATE OF CALIFORNIA 21

We have jurisdiction over the United States’ appeal of

the denial of its motion for a preliminary injunction pursuant

to 28 U.S.C. § 1292. 5

ANALYSIS

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Winter

5

The United States’ notice of appeal is directed to both the district

court’s preliminary injunction order and its order granting in part and

denying in part California’s motion to dismiss. Although we have

appellate jurisdiction over appeal of the preliminary injunction order

pursuant to 28 U.S.C. § 1292(a)(1) (conferring jurisdiction over

“[i]nterlocutory orders of the district courts . . . granting, continuing,

modifying, refusing or dissolving injunctions”), we do not have

jurisdiction over an appeal of the dismissal order. Since the district court

did not grant California’s motion to dismiss in its entirety, that order was

not a “full adjudication of the issues” and did not “clearly evidence[] the

judge’s intention that it be the court’s final act in the matter,” Nat’l

Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir.

1997) (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir. 1990)), and

therefore was not final pursuant to 28 U.S.C. § 1291. See Prellwitz v.

Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (“[T]he district court’s order

was not final because it did not dispose of the action as to all claims

between the parties.”). Indeed, it is quite clear that the order was not the

court’s final act in the matter, since it subsequently granted the United

States’ motion to stay further proceedings pending the outcome of this

appeal. See United States v. California, No. 2:18-cv-00490-JAM-KJN,

2018 WL 5310675, at *1 (E.D. Cal. Oct. 19, 2018).

The district court did not certify the non-final dismissal order

pursuant to Federal Rule of Civil Procedure 54(b) or 28 U.S.C.

§ 1292(b), and no other apparent exceptions to the finality rule exist here.

We therefore DISMISS the appeal of the district court’s dismissal order

for want of appellate jurisdiction.

22 UNITED STATES V. STATE OF CALIFORNIA

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Here,

as the United States observes, the district court’s “sole basis

for denying injunctive relief against the California laws at

issue in this appeal was the court’s assessment of the merits,”

which, it further argues, “was erroneous because the district

court adopted an unduly narrow view of two related

doctrines, intergovernmental immunity and conflict

preemption.”

The doctrine of intergovernmental immunity is derived

from the Supremacy Clause, U.S. Const., art. VI, which

mandates that “the activities of the Federal Government are

free from regulation by any state.” Boeing Co. v.

Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (quoting

Mayo v. United States, 319 U.S. 441, 445 (1943)).

“Accordingly, state laws are invalid if they ‘regulate[] the

United States directly or discriminate[] against the Federal

Government or those with whom it deals.’” Id. (alterations

in original) (quoting North Dakota v. United States, 495 U.S.

423, 435 (1990) (plurality opinion)).

Under the doctrine of conflict preemption, “state laws

are preempted when they conflict with federal law. This

includes cases where ‘compliance with both federal and state

regulations is a physical impossibility,’ and those instances

where the challenged state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.’” Arizona II, 567 U.S. at 399

(citations omitted) (first quoting Fla. Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); and

then quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

The latter instances constitute so-called “obstacle

preemption,” and “[t]o determine whether obstacle

preemption exists, the Supreme Court has instructed that we

employ our ‘judgment, to be informed by examining the

UNITED STATES V. STATE OF CALIFORNIA 23

federal statute as a whole and identifying its purpose and

intended effects.’” United States v. Arizona (Arizona I),

641 F.3d 339, 345 (9th Cir. 2011) (quoting Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 373 (2000)), aff’d in

part, rev’d in part, 567 U.S. 387 (2012). The Court has

emphasized that “[i]mplied preemption analysis does not

justify a ‘freewheeling judicial inquiry into whether a state

statute is in tension with federal objectives’; such an

endeavor ‘would undercut the principle that it is Congress

rather than the courts that preempts state law.’ . . . [A] high

threshold must be met if a state law is to be preempted for

conflicting with the purposes of a federal Act.” Chamber of

Commerce of U.S. v. Whiting, 563 U.S. 582, 607 (2011)

(quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S.

88, 110–11 (1992) (Kennedy, J., concurring in part and

concurring in the judgment)).

“Under these principles,” the United States contends,

“the challenged provisions of California law are invalid and

should have been enjoined.” We consider each statute in

turn.

I. AB 450

AB 450, which imposes penalties on employers based on

their interactions with federal immigration authorities, was

partially enjoined by the district court; specifically, its

provisions relating to employers who provide consent to

federal investigations or reverify the employment eligibility

of current employees. The district court did not, however,

enjoin the provisions of AB 450 that establish employee-

notice requirements. The United States maintains that “these

provisions violate the intergovernmental immunity doctrine

and are also subject to obstacle preemption.”

24 UNITED STATES V. STATE OF CALIFORNIA

Congress enacted the IRCA to combat the employment

of unauthorized noncitizens. Arizona II, 567 U.S. at 404–

05. Employers are required to retain documentation

regarding employees’ work authorizations, and to make that

documentation available for inspection by federal officers.

8 U.S.C. § 1324a(b)(3). Such inspections must be preceded

by “at least three business days notice.” 8 C.F.R.

§ 274a.2(b)(2)(ii). The United States notes that “[n]either

the statute nor the regulations require any notice to

employees before their employers’ records are inspected, or

after an inspection is conducted.” AB 450, by contrast,

requires two forms of notice: first, employers must inform

their employees of upcoming inspections within 72 hours of

receiving notice, Cal. Lab. Code § 90.2(a)(1), and second,

employers must share any documents providing the results

of the inspection with any employees who might lack work

authorization, id. § 90.2(b)(1)–(2).

A. Intergovernmental Immunity

The United States contends that “AB 450’s provisions

impermissibly target and discriminate against federal

immigration enforcement operations.” It reasons that “[i]f

any other entity—such as a state or federal regulator, or a

private entity—inspects an employer’s records, the

employer would have no obligation under AB 450 to notify

its employees,” and thus that AB 450 impermissibly imposes

a “unique regime” on the federal government.

This argument, however, extends intergovernmental

immunity beyond its defined scope. The doctrine has been

invoked, to give a few examples, to prevent a state from

imposing more onerous clean-up standards on a federal

hazardous waste site than a non-federal project, Boeing,

768 F.3d at 842–43; to preclude cities from banning only the

U.S. military and its agents from recruiting minors, United

UNITED STATES V. STATE OF CALIFORNIA 25

States v. City of Arcata, 629 F.3d 986, 988, 990–92 (9th Cir.

2010); and to foreclose a state from taxing the lessees of

federal property while exempting from the tax lessees of

state property, Phillips Chem. Co. v. Dumas Indep. Sch.

Dist., 361 U.S. 376, 381–82, 387 (1960). Those cases dealt

with laws that directly or indirectly affected the operation of

a federal program or contract. The situation here is

distinguishable—AB 450 is directed at the conduct of

employers, not the United States or its agents, and no federal

activity is regulated. We agree with California: “The mere

fact that those notices contain information about federal

inspections does not convert them into a burden on those

inspections.” Similarly, the mere fact that the actions of the

federal government are incidentally targeted by AB 450

does not mean that they are incidentally burdened, and while

the latter scenario might implicate intergovernmental

immunity, the former does not. As the district court

correctly recognized, to rule otherwise “would stretch the

doctrine beyond its borders.” California I, 314 F. Supp. 3d

at 1097.

The United States argues that the proposition that

intergovernmental immunity is only implicated when federal

activities are obstructed “is clearly wrong, because it would

render the intergovernmental-immunity doctrine entirely

redundant with the obstacle-preemption doctrine, which

separately addresses the burdensome effect of non-

discriminatory state laws.” We disagree. The United States

does not accurately distinguish between the doctrines of

intergovernmental immunity and obstacle preemption.

Reviewing the case law in which these doctrines were

developed yields the proper distinction: simply put,

intergovernmental immunity attaches only to state laws that

discriminate against the federal government and burden it in

some way. Obstacle preemption, by contrast, attaches to any

26 UNITED STATES V. STATE OF CALIFORNIA

state law, regardless of whether it specifically targets the

federal government, but only if it imposes an obstructive,

not-insignificant burden on federal activities.

Moreover, the United States’ position that no obstruction

is required in intergovernmental immunity cases ignores the

origins of the doctrine and the occasions in which it has been

applied. “The doctrine of intergovernmental immunity arose

from the Supreme Court’s decision in M’Culloch v.

Maryland, which established that ‘the states have no power,

by taxation or otherwise, to retard, impede, burden, or in any

manner control, the operations of the constitutional laws

enacted by congress to carry into execution the powers

vested in the general government.’” City of Arcata, 629 F.3d

at 991 (emphasis added) (citation omitted) (quoting

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436

(1819)); see also North Dakota, 495 U.S. at 437–38

(plurality opinion) (“The nondiscrimination rule finds its

reason in the principle that the States may not directly

obstruct the activities of the Federal Government.”

(emphasis added)); Washington v. United States, 460 U.S.

536, 544 (1983) (“The important consideration . . . is not

whether the State differentiates in determining what entity

shall bear the legal incidence of the tax, but whether the tax

is discriminatory with regard to the economic burdens that

result.” (emphasis added)); City of Arcata, 629 F.3d at 991

(applying the nondiscrimination rule to ordinances that

“specifically target and restrict the conduct of military

recruiters” (emphasis added)).

Since the advent of the doctrine, intergovernmental

immunity has attached where a state’s discrimination

negatively affected federal activities in some way. It is not

implicated when a state merely references or even singles

out federal activities in an otherwise innocuous enactment.

UNITED STATES V. STATE OF CALIFORNIA 27

The Supreme Court has clarified that a state “does not

discriminate against the Federal Government and those with

whom it deals unless it treats someone else better than it

treats them.” Washington, 460 U.S. at 544–45. AB 450 does

not treat the federal government worse than anyone else;

indeed, it does not regulate federal operations at all.

Accordingly, the district court correctly concluded that

AB 450’s employee-notice provisions do not violate the

doctrine of intergovernmental immunity.

B. Preemption

The United States also contends that AB 450’s

employee-notice provisions are preempted because they

seek “to alter the manner in which the federal government

conducts inspections, by imposing requirements that neither

Congress nor the implementing agency saw fit to impose.”

We disagree. The cases to which the United States cites

concerned either the disruption of a federal relationship or

the undermining of a federal operation. Here, there is

indisputably a federal relationship, but it is between federal

immigration authorities and the employers they regulate 6—

not between employers and their employees. AB 450

impacts the latter relationship, not the former, and imposes

no additional or contrary obligations that undermine or

disrupt the activities of federal immigration authorities. In

Arizona II, the Supreme Court observed that a “[c]onflict in

technique can be fully as disruptive to the system Congress

erected as conflict in overt policy.” 567 U.S. at 406

6

Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347

(2001) (“[T]he relationship between a federal agency and the entity it

regulates is inherently federal in character because the relationship

originates from, is governed by, and terminates according to federal

law.”).

28 UNITED STATES V. STATE OF CALIFORNIA

(alteration in original) (quoting Amalgamated Ass’n of St.,

Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge,

403 U.S. 274, 287 (1971)); see also Crosby, 530 U.S. at

376–77 (finding preempted a state law “imposing a different,

state system” that “undermines the President’s intended

statutory authority”). Here, by contrast, there is no “conflict

in technique,” because federal activity is not regulated.

AB 450’s employee-notice provisions do not permit

employers to hire individuals without federally defined

authorization, or impose sanctions inconsistent with federal

law, either of which would impermissibly “frustrate[] the

purpose of the national legislation or impair[] the efficiency

of those agencies of the Federal government.” Nash v. Fla.

Indus. Comm’n, 389 U.S. 235, 240 (1967) (quoting Davis v.

Elmira Sav. Bank, 161 U.S. 275, 283 (1896)). But “nothing

in IRCA (or federal immigration policy generally) demands

that employers, site owners, or general contractors be

absolved from” a state’s employee-protection efforts

“whenever undocumented aliens provide labor.” Madeira v.

Affordable Hous. Found., Inc., 469 F.3d 219, 242 (2d Cir.

2006); see also id. at 241–42 (finding no preemption where

“[t]here is no irreconcilable conflict between IRCA and [a

state workplace-protection law] such that compliance with

both the former’s prohibition on the employment of

undocumented workers and the latter’s safe construction site

obligation is physically impossible”). In the absence of

irreconcilability, there is no conflict preemption, as the

district court correctly recognized. See California I, 314 F.

Supp. 3d at 1097.

II. AB 103

AB 103 authorizes the California Attorney General to

inspect detention facilities that house civil immigration

detainees. The United States contends that the law

UNITED STATES V. STATE OF CALIFORNIA 29

“impermissibly seeks to require facilities housing federal

immigration detainees to cooperate with broad

investigations that examine the due process provided to

detainees and the circumstances surrounding the detainee’s

apprehension and transfer to the facility.” Again, it invokes

intergovernmental immunity and obstacle preemption.

A. Intergovernmental Immunity

Like AB 450, AB 103 relates exclusively to federal

conduct, as it applies only to “facilities in which noncitizens

are being housed or detained for purposes of civil

immigration proceedings in California.” Cal. Gov’t Code

§ 12532(a). 7 Unlike AB 450, AB 103 imposes a specialized

burden on federal activity, as the district court recognized.

See California I, 314 F. Supp. 3d at 1093. That vital

7

To “arrange for appropriate places of detention for aliens detained

pending removal or a decision on removal,” 8 U.S.C. § 1231(g)(1), the

INA contemplates use of both federal facilities and nonfederal facilities

with which the federal government contracts. See id. § 1231(g)(2)

(requiring the federal government to “consider the availability for

purchase or lease of any existing prison, jail, detention center, or other

comparable facility suitable for” detainee detention); id. § 1103(a)(11)

(authorizing “payments” to and “cooperative agreement[s]” with states

and localities). For purposes of intergovernmental immunity, federal

contractors are treated the same as the federal government itself. See

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) (“[A]

federally owned facility performing a federal function is shielded from

direct state regulation, even though the federal function is carried out by

a private contractor, unless Congress clearly authorizes such

regulation.”); Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 438–41 (9th

Cir. 1991) (holding that state licensing requirements for construction

contractors were preempted to the extent that they applied to federal

contractors).

30 UNITED STATES V. STATE OF CALIFORNIA

distinction renders the burdensome provisions of AB 103

unlawful under the doctrine of intergovernmental immunity.

Prior to the enactment of AB 103, California law already

required periodic inspections of prisons and detainment

facilities. See Cal. Penal Code § 6031.1 (mandating biennial

inspections of “[h]ealth and safety,” “[f]ire suppression

preplanning,” “[s]ecurity, rehabilitation programs,

recreation, treatment of persons confined in the facilities,

and personnel training,” and visitation conditions, as well as

the completion of subsequent reports). AB 103, however,

does not merely replicate this inspection scheme; in addition

to requiring “[a] review of the conditions of confinement,”

the enactment also calls for reviews of the “standard of care

and due process provided to” detainees, and “the

circumstances around their apprehension and transfer to the

facility.” Cal. Gov’t Code § 12532(b)(1). These additional

requirements burden federal operations, and only federal

operations. 8

8

The statute requires that the California Attorney General “be

provided all necessary access for the observations necessary to effectuate

reviews required pursuant to this section, including, but not limited to,

access to detainees, officials, personnel, and records.” Cal. Gov’t Code

§ 12532(c). Immigration and Customs Enforcement (ICE) official

Thomas Homan claimed that “[t]hese inspections have caused the

facilities to expend resources otherwise necessary for ensuring the safety

and security of the detainees. Each inspection presents a burdensome

intrusion into facility operations and pulls scarce resources away from

other sensitive law enforcement tasks.” Homan also attested that “the

broad allowances made by AB 103 for the California [Attorney General]

to perform reviews of immigration detention facilities to include wide-

ranging access to facilities, individuals, and records, if enforced by the

state, will conflict with ICE’s ability to comply with other federal

information disclosure laws, regulations, and policies.”

UNITED STATES V. STATE OF CALIFORNIA 31

The district court addressed this burden as follows: “[The

United States] argues the law violates [the doctrine of

intergovernmental immunity] because it imposes a review

scheme on facilities contracting with the federal

government, only. This characterization is valid. However,

the burden placed upon the facilities is minimal and [the

United States’] evidence does not show otherwise.”

California I, 314 F. Supp. 3d at 1093. Instead of challenging

the factual conclusion regarding the severity of AB 103’s

burden, the United States questions the district court’s legal

conclusion, contending that “the application of the

intergovernmental immunity doctrine does not depend on

the size of the discriminatory burden imposed. Even a tax of

$1 imposed only on entities that contract with the federal

government would be unlawful.” In essence, the district

court applied a de minimis exception to the doctrine of

intergovernmental immunity, concluding that a

discriminatory enactment is lawful so long as the burden it

imposes on the federal government is minimal. But the court

cited no authority for this proposition. We must therefore

determine whether such an exception is cognizable.

i. De Minimis Exception

We agree with the United States that Supreme Court case

law compels the rejection of a de minimis exception to the

doctrine of intergovernmental immunity.

The recent decision in Dawson v. Steager, 139 S. Ct. 698

(2019), supports this position. There, the Court suggested

that any discriminatory burden on the federal government is

impermissible, writing that “[s]ection 111 disallows any

state tax that discriminates against a federal officer or

employee.” Id. at 704 (citing 4 U.S.C. § 111). The Court

had previously explained that the prohibition against

discriminatory taxes in § 111 “is coextensive with the

32 UNITED STATES V. STATE OF CALIFORNIA

prohibition against discriminatory taxes embodied in the

modern constitutional doctrine of intergovernmental tax

immunity.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803,

813 (1989).

The parties do not dispute that the principles of the

intergovernmental tax immunity doctrine apply to the

general intergovernmental immunity doctrine. See North

Dakota, 495 U.S. at 434–39 (plurality opinion).

Accordingly, we are not prepared to recognize a de minimis

exception to the doctrine of intergovernmental immunity.

Any economic burden that is discriminatorily imposed on the

federal government is unlawful. 9 In relying on a de minimis

exception, the district court applied incorrect law and

therefore abused its discretion.

ii. Burdensome Provisions

That is not to say, however, that the United States is

likely to succeed on the merits as to the entirety of AB 103.

Only those provisions that impose an additional economic

9

We note the practical merit of this conclusion. Rejecting a de

minimis exception permits a clearer distinction between

intergovernmental immunity and the related—but distinct—doctrine of

obstacle preemption. Intergovernmental immunity is implicated when

any burden is imposed exclusively on the federal government; obstacle

preemption is implicated when an obstructive burden is imposed,

regardless of its discriminatory nature. Our conclusion is also consistent

with M’Culloch, the seminal intergovernmental immunity decision.

There, the Supreme Court was loath to undertake the “perplexing

inquiry, so unfit for the judicial department, what degree of taxation is

the legitimate use, and what degree may amount to the abuse of the

power,” and opined that “[a] question of constitutional power can hardly

be made to depend on a question of more or less.” M’Culloch, 17 U.S.

(4 Wheat.) at 327, 430.

UNITED STATES V. STATE OF CALIFORNIA 33

burden exclusively on the federal government are invalid

under the doctrine of intergovernmental immunity.

California maintains that all of AB 103’s requirements

duplicate preexisting inspection demands imposed on state

and local detention facilities. It points to regulations

requiring its Board of State and Community Corrections (the

Board) to inspect not only compliance with general health

and safety standards—which are included in AB 103, see

Cal. Gov’t Code § 12532(b)(1)(A)–(B) (requiring review of

“the conditions of confinement” and “the standard of care”

of detainees)—but also the availability of legal reference

materials and confidential communications with counsel.

See Cal. Penal Code § 6031.1; Cal. Code Regs. tit. 15,

§§ 1063–64, 1068. California argues that AB 103’s

requirement that the California Attorney General review the

“due process provided to” civil immigration detainees, Cal.

Gov’t Code § 12532(b)(1)(B), is therefore duplicative, on

the assumption that “due process” refers to “conditions of

confinement that affect detainees’ ability to access courts—

such as the adequacy of the facility’s law library, the

availability of unmonitored communications with counsel,

and the ability to send and receive mail.” See Bounds v.

Smith, 430 U.S. 817, 828 (1977) (recognizing that “the

fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law”); Cornett v.

Donovan, 51 F.3d 894, 897–98 (9th Cir. 1995) (finding that

the Bounds right is “not limited to people who are committed

following criminal proceedings”). At oral argument,

California maintained that its Attorney General’s

interpretation of “due process” is indeed as limited as its

brief suggests, and thus does not compel any additional

34 UNITED STATES V. STATE OF CALIFORNIA

inspection requirements beyond those applied to other state

facilities.

In the context of this appeal from the denial of a

preliminary injunction, we accept California’s limited

construction. We therefore conclude that AB 103’s due

process provision likely does not violate the doctrine of

intergovernmental immunity, and that the district court’s

denial of a preliminary injunction as to this provision should

be affirmed. We note, however, that a broader reading of the

term “due process” might empower the California Attorney

General to scrutinize, say, an immigration judge’s analysis,

the results of the Board of Immigration Appeals, or other

related court proceedings—all of which are well outside the

purview of a state attorney general, and not duplicative of

the inspection requirements otherwise imposed on

California’s state and local detention facilities.

That is not the end of our inquiry, for as the United States

observes, California “does not even attempt to identify any

provision of the pre-existing inspection scheme analogous to

the unique requirement for immigration detainees that

inspectors must examine the circumstances surrounding

their apprehension and transfer to the facility.” See Cal.

Gov’t Code § 12532(b)(1)(C). This is a novel requirement,

apparently distinct from any other inspection requirements

imposed by California law. The district court was therefore

incorrect when it concluded that “the review appears no

more burdensome than reviews required under California

Penal Code §§ 6030, 6031.1.” California I, 314 F. Supp. 3d

at 1093.

In light of this apparent factual error, and the district

court’s erroneous reliance on a de minimis exception to the

doctrine of intergovernmental immunity, we reverse the

district court’s denial of a preliminary injunction as to

UNITED STATES V. STATE OF CALIFORNIA 35

California Government Code section 12532(b)(1)(C)—the

provision of AB 103 requiring examination of the

circumstances surrounding the apprehension and transfer of

immigration detainees.

B. Preemption

The United States further argues that “even if AB 103’s

inspection regime had not discriminatorily targeted facilities

holding federal immigration detainees, it still would be

preempted by federal law.” We disagree.

The cases on which the United States relies involved a

far clearer interference with federal activity than AB 103

creates. In Leslie Miller, Inc. v. Arkansas, 352 U.S. 187,

189–90 (1956) (per curiam), and Gartrell Construction Inc.

v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991), states prevented

the federal government from entering into agreements with

its chosen contractors until the states’ own licensing

standards were satisfied. In Tarble’s Case, the Supreme

Court rejected a state court’s attempt to discharge a prisoner

held “by an officer of the United States, under claim and

color of the authority of the United States, as an enlisted

soldier mustered into the military service of the National

government.” 80 U.S. (13 Wall.) 397, 412 (1871). In In re

Neagle, the Court determined that a county sheriff could not

hold a U.S. marshal on murder charges for actions taken on

duty. 135 U.S. 1, 62 (1890).

These cases evinced states’ active frustration of the

federal government’s ability to discharge its operations.

Here, by contrast, AB 103 does not regulate whether or

where an immigration detainee may be confined, require that

federal detention decisions or removal proceedings conform

to state law, or mandate that ICE contractors obtain a state

license. The law might require some federal action to permit

36 UNITED STATES V. STATE OF CALIFORNIA

inspections and produce data—a burden that, as discussed

above, implicates intergovernmental immunity—but as

California persuasively notes, “[M]ere collection of such

factual data does not (and cannot) disturb any federal arrest

or detention decision.”

In Arizona II, the Supreme Court noted that “[i]n

preemption analysis, courts should assume that ‘the historic

police powers of the States’ are not superseded ‘unless that

was the clear and manifest purpose of Congress.’” 567 U.S.

at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947)). The United States does not dispute that

California possesses the general authority to ensure the

health and welfare of inmates and detainees in facilities

within its borders, and neither the provisions of the INA that

permit the federal government to contract with states and

localities for detention purposes, see 8 U.S.C.

§§ 1103(a)(11), 1231(g), nor the contracts themselves, 10

10

The contracts included in the record require that immigration

facilities conform to California’s authority. One contract—between

DHS and the City of Holtville, California, for use of the Imperial

Regional Detention Facility—includes a provision requiring

“compl[iance] with all applicable ICE, federal, state and local laws,

statutes, regulations, and codes. In the event there is more than one

reference to a safety, health, or environment requirement . . . the most

stringent requirement shall apply.” Another agreement between the

Office of the Federal Detention Trustee and a private contractor,

Corrections Corporation of America, to house ICE detainees in San

Diego County similarly required that “[a]ll services and programs shall

comply with . . . all applicable federal, state and local laws and

regulations.” The district court correctly recognized these provisions,

writing, “The Court finds no indication in the cited portions of the INA

that Congress intended for States to have no oversight over detention

facilities operating within their borders. Indeed, the detention facility

contracts [California] provided to the Court expressly contemplate

compliance with state and local law.” California I, 314 F. Supp. 3d at

1091 (citations omitted).

UNITED STATES V. STATE OF CALIFORNIA 37

demonstrate any intent, let alone “clear and manifest,” that

Congress intended to supersede this authority. The district

court was correct when it concluded, “Given the Attorney

General’s power to conduct investigations related to state

law enforcement—a power which [the United States]

concedes—the Court does not find this directive in any way

constitutes an obstacle to the federal government’s

enforcement of its immigration laws or detention scheme.”

California I, 314 F. Supp. 3d at 1091–92 (citation omitted).

III. SB 54

We now reach the most contentious of the three

challenged laws, SB 54, which, the United States contends,

“seeks to impede the enforcement of federal immigration

laws by manipulating the overlap between state criminal

enforcement and federal immigration enforcement.”

A. Preemption

The United States argues that SB 54 unlawfully obstructs

the enforcement of federal immigration laws. It focuses on

a provision of the law that prohibits California law

enforcement agencies from “[t]ransfer[ring] an individual to

immigration authorities unless authorized by a judicial

warrant or judicial probable cause determination.” Cal.

Gov’t Code § 7284.6(a)(4). It notes that the INA provides

that “[o]n a warrant issued by the Attorney General, an alien

may be arrested and detained pending a decision on whether

the alien is to be removed from the United States.” 8 U.S.C.

§ 1226(a) (emphasis added). It therefore concludes that

“California has no authority to demand a judicial warrant

that Congress chose not to require. . . . By prohibiting

transfers of custody within secure areas of local jails in the

absence of a judicial warrant, California prevents federal

38 UNITED STATES V. STATE OF CALIFORNIA

officers from obtaining custody through a safe and peaceful

transfer.”

We have no doubt that SB 54 makes the jobs of federal

immigration authorities more difficult. The question,

though, is whether that constitutes a “[c]onflict in technique”

that is impermissible under the doctrine of obstacle

preemption. Arizona II, 567 U.S. at 406 (alteration in

original).

The United States relies in part on our opinion in Oregon

Prescription Drug Monitoring Program v. DEA, 860 F.3d

1228 (9th Cir. 2017), but that case is easily distinguished.

There, a federal agency issued statutorily authorized

subpoenas to a state agency, and the latter sought a

declaration that it need not respond because of a state statute

requiring “a valid court order” in all cases in which a

subpoena is issued. Id. at 1231–32, 1236. We concluded

that the state statute “stands as an obstacle to the full

implementation of the [federal statute] because it ‘interferes

with the methods by which the federal statute was designed

to reach [its] goal.’” Id. at 1236 (second alteration in

original) (quoting Gade, 505 U.S. at 103 (plurality opinion)).

Here, by contrast, neither an administrative warrant issued

by federal authorities nor any other provision of law

identified by the United States compels any action by a state

or local official. With the exception of § 1373(a), discussed

below, the various statutory provisions to which the United

States points direct federal activities, not those of state or

local governments. See 8 U.S.C. §§ 1226, 1231.

We cannot simply assume that Congress impliedly

mandated that state and local governments would act in

accordance with these statutes. Even if Congress had every

expectation that they would, and opted not to codify its belief

based on the presumption that states would conduct their law

UNITED STATES V. STATE OF CALIFORNIA 39

enforcement activities in concert with federal immigration

efforts, it is a state’s historic police power—not

preemption—that we must assume, unless clearly

superseded by federal statute. See Arizona II, 567 U.S. at

400. 11 As California notes, “There is [] nothing in the federal

regulatory scheme requiring States to alert federal agents

before releasing a state or local inmate.” The Fifth Circuit

has aptly noted that

[f]ederal law does not suggest the intent—let

alone a “clear and manifest” one—to prevent

states from regulating whether their localities

cooperate in immigration enforcement.

Section 1357 does not require cooperation at

all. And the savings clause allowing

cooperation without a 287(g) agreement

indicates that some state and local regulation

of cooperation is permissible.

City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th Cir. 2018)

(citations omitted) (citing 8 U.S.C. § 1357(g)(9)–(10)). 12

11

A state’s ability to regulate its internal law enforcement activities

is a quintessential police power. See United States v. Morrison, 529 U.S.

598, 618 (2000) (“[W]e can think of no better example of the police

power, which the Founders denied the National Government and reposed

in the States, than the suppression of violent crime and vindication of its

victims.”).

12

The United States points out that City of El Cenizo “upheld a state

enactment that merely required state and local officials to cooperate with

requests by federal officials,” as opposed to California’s efforts “to

disrupt the federal scheme.” But this distinction does not alter the Fifth

Circuit’s conclusion regarding the ability of states and localities to

regulate the extent to which they cooperate with federal immigration

authorities.

40 UNITED STATES V. STATE OF CALIFORNIA

In short, SB 54 does not directly conflict with any

obligations that the INA or other federal statutes impose on

state or local governments, because federal law does not

actually mandate any state action (again, with the exception

of § 1373, discussed below).

But that does not resolve the lingering issue of obstacle

preemption. The United States notes that SB 54 requires

federal officers to, “in effect, stake out a jail and seek to

make a public arrest. . . . Arrests of aliens in public settings

generally require five officers and present risks to the

arresting officer and the general public.” It contends that

“Congress did not contemplate that, as a consequence of

letting state detention proceed first, federal officers who

sought to detain an alien for immigration purposes would

need to race to the front of a local detention facility and seek

to effectuate an arrest before the alien manages to escape.”

Compounding the problem, the United States further claims,

are provisions of SB 54 that preclude agencies from

providing personal information and release dates to

immigration authorities. See Cal. Gov’t Code

§ 7284.6(a)(1)(C)–(D). “So not only would California

require DHS to stake out jails to detain aliens upon their

release,” the United States continues, “but California would

require DHS to do so indefinitely because the agency would

not otherwise know if and when any given alien would be

released.”

The district court concluded that this frustration does not

constitute obstacle preemption:

California’s decision not to assist federal

immigration enforcement in its endeavors is

not an “obstacle” to that enforcement effort.

[The United States’] argument that SB 54

makes immigration enforcement far more

UNITED STATES V. STATE OF CALIFORNIA 41

burdensome begs the question: more

burdensome than what? The laws make

enforcement more burdensome than it would

be if state and local law enforcement

provided immigration officers with their

assistance. But refusing to help is not the

same as impeding. If such were the rule,

obstacle preemption could be used to

commandeer state resources and subvert

Tenth Amendment principles.

California I, 314 F. Supp. 3d at 1104. 13 We agree. Even if

SB 54 obstructs federal immigration enforcement, the

United States’ position that such obstruction is unlawful runs

directly afoul of the Tenth Amendment and the

anticommandeering rule.

B. The Tenth Amendment and Anticommandeering

Rule

“The Constitution . . . ‘confers upon Congress the power

to regulate individuals, not States.’” Murphy v. NCAA,

138 S. Ct. 1461, 1476 (2018) (quoting New York v. United

States, 505 U.S. 144, 166 (1992)). Under the Tenth

Amendment and other provisions of the Constitution, “the

Federal Government may not compel the States to

13

The Seventh Circuit has conducted a similar analysis: “[T]he

Attorney General repeatedly characterizes the issue as whether localities

can be allowed to thwart federal law enforcement. That is a red herring.

. . . [N]othing in this case involves any affirmative interference with

federal law enforcement at all, nor is there any interference whatsoever

with federal immigration authorities.” City of Chicago v. Sessions,

888 F.3d 272, 282 (7th Cir. 2018), vacated in part on other grounds, No.

17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018).

42 UNITED STATES V. STATE OF CALIFORNIA

implement, by legislation or executive action, federal

regulatory programs.” Printz v. United States, 521 U.S. 898,

925 (1997).

Ultimately, we conclude that the specter of the

anticommandeering rule distinguishes the case before us

from the preemption cases on which the United States relies.

Those cases concerned state laws that affirmatively

disrupted federal operations by mandating action (or

inaction) contrary to the status quo. 14 In each, a state statute

14

See Arizona II, 567 U.S. at 393–94 (considering four provisions

of state law, including “[t]wo [that] create new state offenses” and two

that “give specific arrest authority and investigative duties with respect

to certain aliens to state and local law enforcement officers”); Crosby,

530 U.S. at 366 (“The issue is whether the Burma law of the

Commonwealth of Massachusetts, restricting the authority of its

agencies to purchase goods or services from companies doing business

with Burma, is invalid under the Supremacy Clause of the National

Constitution owing to its threat of frustrating federal statutory

objectives.” (footnote omitted)); Lockridge, 403 U.S. at 276 (exploring

“the extent to which the maintenance of a general federal law of labor

relations combined with a centralized administrative agency to

implement its provisions necessarily supplants the operation of the more

traditional legal processes in this field”); Nash, 389 U.S. at 236 (“The

crucial question presented here is whether a State can refuse to pay its

unemployment insurance to persons solely because they have preferred

unfair labor practice charges against their former employer.”); Paul,

373 U.S. at 133–34 (assessing a state statute that “gauge[d] the maturity

of avocados by oil content,” where federal law “gauge[d] the maturity of

avocados grown in Florida by standards which attribute no significance

to oil content”); Hines, 312 U.S. at 59 (“This case involves the validity

of an Alien Registration Act adopted by the Commonwealth of

Pennsylvania.”); Davis, 161 U.S. at 283 (determining that “an attempt,

by a State, to define [the] duties or control the conduct of [the] affairs [of

national banks] is absolutely void, wherever such attempted exercise of

authority expressly conflicts with the laws of the United States, and

either frustrates the purpose of the national legislation or impairs the

efficiency of these agencies of the Federal government to discharge the

UNITED STATES V. STATE OF CALIFORNIA 43

affirmatively instituted a regulatory scheme that conflicted

with federal law, either by commission (for example, by

applying differing standards or mandating affirmative action

irreconcilable with federal law) or omission (by demanding

inaction that directly conflicted with federal requirements).

The solution to avoid conflict preemption was the same:

invalidate the state enactment. In each case, the status quo

would return—either no future conflicting action would be

taken, or active compliance with federal law would

recommence—and federal activity would no longer be

obstructed.

Here, by contrast, invalidating SB 54 would not prevent

obstruction of the federal government’s activities, because

the INA does not require any particular action on the part of

California or its political subdivisions. Federal law provides

states and localities the option, not the requirement, of

assisting federal immigration authorities. SB 54 simply

makes that choice for California law enforcement agencies.

The United States’ primary argument against SB 54 is

that it forces federal authorities to expend greater resources

to enforce immigration laws, but that would be the case

regardless of SB 54, since California would still retain the

ability to “decline to administer the federal program.” New

York, 505 U.S. at 177. As the Supreme Court recently

rearticulated in Murphy, under the anticommandeering rule,

“Congress cannot issue direct orders to state legislatures,”

138 S. Ct. at 1478, and the Court’s earlier decision in New

duties, for the performance of which they were created”). Leslie Miller,

Gartrell Construction, Tarble’s Case, and Neagle featured similarly

affirmative disruptions of federal law; their specific facts are explored in

our discussion of AB 103 and preemption.

44 UNITED STATES V. STATE OF CALIFORNIA

York underscored that the rule also permits a state’s refusal

to adopt preferred federal policies. See 505 U.S. at 161–62.

Even in the absence of SB 54, Congress could not “impress

into its service—and at no cost to itself—the police officers

of the 50 States.” Printz, 521 U.S. at 922. 15

Federal schemes are inevitably frustrated when states opt

not to participate in federal programs or enforcement efforts.

But the choice of a state to refrain from participation cannot

be invalid under the doctrine of obstacle preemption where,

as here, it retains the right of refusal. Extending conflict or

obstacle preemption to SB 54 would, in effect, “dictate[]

what a state legislature may and may not do,” Murphy,

138 S. Ct. at 1478, because it would imply that a state’s

otherwise lawful decision not to assist federal authorities is

made unlawful when it is codified as state law.

We also find no constitutional infirmity in the specific

provisions of SB 54 that govern the exchange of information

with federal immigration authorities. See Cal. Gov’t Code

§ 7284.6(a)(1)(C)–(D) (prohibiting California law

enforcement agencies from “[p]roviding information

regarding a person’s release date or responding to requests

for notification by providing release dates or other

information unless that information is available to the

15

The United States suggests that these principles do not extend here

because “both sovereigns [are] regulat[ing] private individuals,” and the

Supreme Court has held that it “is incorrect” to “assume that the Tenth

Amendment limits congressional power to pre-empt or displace state

regulation of private activities affecting interstate commerce.” Hodel v.

Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 289–90 (1981).

But although the INA and SB 54 both implicate noncitizens—private

actors—SB 54 governs how California and its localities can interact with

the federal government, not the activities of private individuals, and so

Hodel is inapposite.

UNITED STATES V. STATE OF CALIFORNIA 45

public,” and “[p]roviding personal information . . . about an

individual, including, but not limited to, the individual’s

home address or work address unless that information is

available to the public”). These two subparts only concern

the exchange of information, and the Supreme Court has

implied the existence of a Tenth Amendment exception for

reporting requirements. See Printz, 521 U.S. at 917–18

(distinguishing between federal statutes that “require only

the provision of information to the Federal Government” and

those that “force[ the] participation of the States’ executive

in the actual administration of a federal program”).

The United States relies on Reno v. Condon, which

upheld against Tenth Amendment attack a federal statute

that “regulate[d] the disclosure and resale of personal

information contained in the records of state DMVs”

because it did “not require the States in their sovereign

capacity to regulate their own citizens” and instead

“regulate[d] the States as the owners of data bases.”

528 U.S. 141, 143, 151 (2000). But the Supreme Court

recently explained,

The anticommandeering doctrine does not

apply when Congress evenhandedly

regulates an activity in which both States and

private actors engage.

That principle formed the basis for the

Court’s decision in Reno v. Condon, which

concerned a federal law restricting the

disclosure and dissemination of personal

information provided in applications for

driver’s licenses. The law applied equally to

state and private actors. It did not regulate

46 UNITED STATES V. STATE OF CALIFORNIA

the States’ sovereign authority to “regulate

their own citizens.”

Murphy, 138 S. Ct. at 1478–79 (citation omitted) (quoting

Reno, 528 U.S. at 151). Here, by contrast, it is the state’s

responsibility to help enforce federal law, and not conduct

engaged in by both state and private actors, that is at issue.

We therefore conclude that Murphy’s reading of Reno

suggests that the latter is not applicable here.

SB 54 may well frustrate the federal government’s

immigration enforcement efforts. However, whatever the

wisdom of the underlying policy adopted by California, that

frustration is permissible, because California has the right,

pursuant to the anticommandeering rule, to refrain from

assisting with federal efforts. The United States stresses

that, in crafting the INA, Congress expected cooperation

between states and federal immigration authorities. That is

likely the case. But when questions of federalism are

involved, we must distinguish between expectations and

requirements. In this context, the federal government was

free to expect as much as it wanted, but it could not require

California’s cooperation without running afoul of the Tenth

Amendment.

C. Intergovernmental Immunity

The Government also argues that SB 54 violates the

doctrine of intergovernmental immunity.

The district court correctly rejected that argument. See

California I, 314 F. Supp. 3d at 1110. In North Dakota, the

Supreme Court endorsed “a functional approach to claims of

governmental immunity, accommodating of the full range of

each sovereign’s legislative authority and respectful of the

primary role of Congress in resolving conflicts between the

UNITED STATES V. STATE OF CALIFORNIA 47

National and State Governments.” 495 U.S. at 435 (plurality

opinion). A finding that SB 54 violates the doctrine of

intergovernmental immunity would imply that California

cannot choose to discriminate against federal immigration

authorities by refusing to assist their enforcement efforts—a

result that would be inconsistent with the Tenth Amendment

and the anticommandeering rule.

D. Section 1373

Lastly, the United States contends that 8 U.S.C. § 1373

directly prohibits SB 54’s information-sharing restrictions.

Section 1373 provides that “a Federal, State, or local

government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to,

or receiving from, [DHS] information regarding the

citizenship or immigration status, lawful or unlawful, of any

individual.” 8 U.S.C. § 1373(a). SB 54, in turn, expressly

permits the sharing of such information, and so does not

appear to conflict with § 1373. See Cal. Gov’t Code

§ 7284.6(e) (“This section does not prohibit or restrict any

government entity or official from sending to, or receiving

from, federal immigration authorities, information regarding

the citizenship or immigration status, lawful or unlawful, of

an individual . . . pursuant to Section[] 1373.”). But the

United States argues that § 1373 actually applies to more

information than just immigration status, and hence that

SB 54’s prohibition on sharing other information creates a

direct conflict.

We disagree. Although the United States contends that

“whether a given alien may actually be removed or detained

by federal immigration authorities is, at a minimum,

information regarding that alien’s immigration status,” the

phrase “information regarding the citizenship or

48 UNITED STATES V. STATE OF CALIFORNIA

immigration status, lawful or unlawful, of any individual” is

naturally understood as a reference to a person’s legal

classification under federal law, as the district court

concluded. See California I, 314 F. Supp. 3d at 1102 (“[T]he

plain meaning of Section 1373 limits its reach to information

strictly pertaining to immigration status (i.e. what one’s

immigration status is) and does not include information like

release dates and addresses.”). 16 Phrases like “regarding”

may generally have “a broadening effect, ensuring that the

scope of a provision covers not only its subject but also

matters relating to that subject,” Lamar, Archer & Cofrin,

LLP v. Appling, 138 S. Ct. 1752, 1759–60 (2018), but if the

term “regarding” were “taken to extend to the furthest stretch

of its indeterminacy, then for all practical purposes pre-

16

This is consistent with our decision in Steinle v. City and County

of San Francisco, in which we determined that “[t]he statutory text [of

§ 1373(a)] does not include release-date information. It includes only

‘information regarding’ ‘immigration status,’ and nothing in [§ 1373(a)]

addresses information concerning an inmate’s release date.” No.

17-16283, slip op. at 16 (9th Cir. Mar. 25, 2019). Several district courts

have reached similar conclusions regarding § 1373’s circumscribed

scope. See, e.g., City and County of San Francisco v. Sessions, 349 F.

Supp. 3d 924, 968 (N.D. Cal. 2018) (“Given my interpretation of Section

1373, limiting it to information relevant to citizenship or immigration

status not including release date information, it is clear [SB 54] complies

with Section 1373.”), appeal docketed, No. 18-17308 (9th Cir. Dec. 4,

2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 333 (E.D.

Pa. 2018) (“The phrase ‘citizenship or immigration status,’ plainly

means an individual’s category of presence in the United States—e.g.,

undocumented, refugee, lawful permanent resident, U.S. citizen, etc.—

and whether or not an individual is a U.S. citizen, and if not, of what

country. The phrase ‘information regarding’ includes only information

relevant to that inquiry. When an individual will be released from a

particular City facility, cannot be considered ‘information regarding’ his

immigration status.”), aff’d in part, vacated in part on other grounds sub

nom. City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).

UNITED STATES V. STATE OF CALIFORNIA 49

emption would never run its course, for ‘[r]eally,

universally, relations stop nowhere.’” N.Y. State Conference

of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645, 655 (1995) (alteration in original) (quoting H.

James, Roderick Hudson xli (New York ed., World’s

Classics 1980)). 17

Congress has used more expansive phrases in other

provisions of Title 8 when intending to reach broader swaths

of information. See, e.g., 8 U.S.C. § 1360(a) (mandating the

inclusion of “such other relevant information as the Attorney

General shall require as an aid” to the creation of a central

index of noncitizens entering the country); id. § 1360(b)

(“Any information in any records kept by any department or

agency of the Government as to the identity and location of

aliens in the United States shall be made available to the

Service upon request.”). The United States claims that

§ 1373(c) demonstrates the extensive reach of § 1373(a), as

unlike the latter, the former does not use the term

“regarding” but instead refers simply and explicitly to “the

citizenship or immigration status of any individual.” Id.

§ 1373(c). But the fact that subpart (c) only concerns itself

with immigration status suggests, given § 1373’s focus on

reciprocal communication between states and the federal

government, that immigration status is the extent of

subpart (a)’s reach as well. 18

17

Indeed, the range of facts that might have some connection to

federal removability or detention decisions is extraordinarily broad. See,

e.g., 8 U.S.C. § 1182 (listing various admissibility considerations,

including vaccination history, education, financial resources, and

membership in “the Communist or any other totalitarian party”).

18

We note that a congressional report concerning a statute with

similar language to § 1373 indicated that it “provides that no State or

50 UNITED STATES V. STATE OF CALIFORNIA

The United States also relies heavily on an Information

Bulletin issued by the California Department of Justice in

June 2014, which read in part that “law enforcement officials

may provide information to ICE, including notification of

the date that an individual will be released, as requested on

an immigration detainer form. Federal law provides that

state and local governments may not be prohibited from

providing information to or receiving information from

ICE.” The United States contends that California’s “limited

view of the scope of [§ 1373] contradicts the longstanding

views . . . of the California Attorney General.” But the

Information Bulletin attempted to summarize both federal

law and California’s then-governing TRUST Act, not the

laws at issue today. And at any rate, the previous

conclusions of the California Attorney General do not

change the plain text and meaning of § 1373; that the

California Department of Justice might have been incorrect

then does not mean that its revised interpretation is incorrect

now.

In summation, the district court correctly concluded that

“Section 1373 and the information sharing provisions of SB

local government entity shall prohibit, or in any way restrict, any entity

or official from sending to or receiving from the [federal government]

information regarding the immigration status of an alien or the presence,

whereabouts, or activities of illegal aliens.” H.R. Rep. No. 104-725, at

383 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2771.

But the fact that the report distinguished between the two categories—

“information regarding the immigration status of an alien or the

presence, whereabouts, or activities”—suggests that “information

regarding the immigration status” does not include “the presence,

whereabouts, or activities” of noncitizens. And in any event,

“Congress’s ‘authoritative statement is the statutory text, not the

legislative history.’” Whiting, 563 U.S. at 599 (quoting Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)).

UNITED STATES V. STATE OF CALIFORNIA 51

54 do not directly conflict.” California I, 314 F. Supp. 3d at

1104. 19

IV. Winter Factors

California argues that the three other Winter factors—

irreparable harm, the balance of the equities, and the public

interest, 555 U.S. at 20—provide an alternative basis for

affirming the district court’s denial of a preliminary

injunction. See Big Country Foods, Inc. v. Bd. of Educ.,

868 F.2d 1085, 1088 (9th Cir. 1989) (concluding that a

district court’s denial of a motion for a preliminary

injunction “may [be] affirm[ed] on any ground supported by

the record”). Because we agree with the district court that

the United States is unlikely to succeed on the merits of its

challenges to AB 450’s employee-notice provisions and

SB 54, we consider these factors only as applied to the

provision of AB 103 that imposes an impermissible burden

on the federal government.

In granting the United States’ motion to enjoin the two

invalidated provisions of AB 450, the district court

“presume[d] that [the United States] will suffer irreparable

harm based on the constitutional violations.” California I,

314 F. Supp. 3d at 1112. This conclusion was consistent

with our previous recognition that preventing a violation of

19

Because we agree with the district court’s conclusion, we need not

address whether § 1373 is itself unlawful, though we note that various

district courts have questioned its constitutionality. See, e.g., City and

County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 949–53 (N.D.

Cal. 2018), appeal docketed, No. 18-17308 (9th Cir. Dec. 4, 2018); City

of Chicago v. Sessions, 321 F. Supp. 3d 855, 873 (N.D. Ill. 2018); City

of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 329–31 (E.D. Pa.

2018), aff’d in part, vacated in part on other grounds sub nom. City of

Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).

52 UNITED STATES V. STATE OF CALIFORNIA

the Supremacy Clause serves the public interest. See, e.g.,

Arizona I, 641 F.3d at 366 (“We have found that ‘it is clear

that it would not be equitable or in the public’s interest to

allow the state . . . to violate the requirements of federal law,

especially when there are no adequate remedies

available. . . . In such circumstances, the interest of

preserving the Supremacy Clause is paramount.’”

(alterations in original) (quoting Cal. Pharmacists Ass’n v.

Maxwell-Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009))); Am.

Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046,

1059–60 (9th Cir. 2009) (determining that “the balance of

equities and the public interest [] weigh in favor of a

preliminary injunction” against a likely preempted

ordinance).

Nevertheless, California argues that “[t]he balance of

equities and public interest weigh strongly against enjoining

[its] laws during the pendency of litigation” because “a

preliminary injunction here would lead to significant,

concrete harm to the public.” At the district court, California

claimed that “the Legislature passed AB 103 in reaction to

growing concerns of egregious conditions in facilities

housing civil detainees,” California I, 314 F. Supp. 3d at

1090–91—a conclusion supported in detail by amici curiae,

including the National Health Law Program and the

Immigrant Legal Resource Center. Moreover, we note that

California retains an historic—and, since the federal

government’s contracts with immigration detainee facilities

explicitly contemplate the application of state regulations,

undisputed—authority to regulate the conditions of

detainees housed within its borders. By contrast, other than

relying on general pronouncements that a Supremacy Clause

violation alone constitutes sufficient harm to warrant an

injunction, the United States did not present compelling

evidence that AB 103 inspections conducted by the

UNITED STATES V. STATE OF CALIFORNIA 53

California Attorney General harmed facilities’ detention

operations. Rather, the only evidence of AB 103’s

burdensome effect is conclusory assertions made by a DHS

official in a declaration and deposition. 20 Neither he nor the

United States provided any indication, even an estimate, of

the actual costs imposed by AB 103 or the number of ICE

officers forced to assist in the extra inspection efforts, or any

quantification whatsoever of the enactment’s burden. The

United States’ complaint in this action did not even plead

that the statute imposes an economic or operational burden

on DHS or anyone else.

We are not prepared, in the first instance, to affirm the

district court’s denial of a preliminary injunction as to

20

The relevant deposition transcript reads as follows:

[I]t’s going to require yet another inspection that we

think is unnecessary, because these are federal

contracts, these are federal prisoners detained under

federal authority. We have our own set of standards.

We certainly don’t believe there should be any

inspections to talk about due process of people that are

in federal custody, under federal authority, conditions

of confinement when we have our own set of standards

which is much higher than most states.

So there’s this general feeling that this is—it’s

burdensome, that they’re going to be required to pull

resources to do these inspections, when we have

numerous inspections already at these facilities from

various different components.

So again, it’s—it’s talk of burdensomeness—right?—

extra work, pulling people from their duties to host

these things and gather documents and paperwork and

making people available for interviews and so forth.

54 UNITED STATES V. STATE OF CALIFORNIA

AB 103’s burdensome provision based on these

considerations. However, on remand, we encourage the

district court to reexamine the equitable Winter factors in

light of the evidence in the record.

CONCLUSION

We conclude that the district court correctly determined

that the United States was unlikely to succeed on the merits

of its challenges to AB 450’s employee-notice provisions

and SB 54, and therefore AFFIRM its denial of a preliminary

injunction as to these enactments. We also AFFIRM the

denial as to those provisions of AB 103 that duplicate

preexisting inspection requirements. But because we

conclude that California Government Code

section 12532(b)(1)(C) both discriminates against and

impermissibly burdens the federal government, we

REVERSE the district court’s denial of the United States’

motion as to this provision and REMAND for further

proceedings consistent with this opinion.21

21

Finally, we grant the State of Michigan’s motion to withdraw from

an amicus brief in support of the United States.