Amicus Curiae Brief — United States, Petitioner v. California, et al.

No. 19-532

In the

Supreme Court of the United States

__________________

UNITED STATES OF AMERICA,

Petitioner,

v.

STATE OF CALIFORNIA, et al.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

BRIEF FOR AMICUS CURIAE

THE NATIONAL SHERIFFS’ ASSOCIATION

IN SUPPORT OF PETITIONER

__________________

CHRISTOPHER J. HAJEC*

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

*Counsel of Record

Counsel for Amicus Curiae

November 22, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. SB 54 Is An Obstacle . . . . . . . . . . . . . . . . . . . . . . 4

II. SB 54 Is Obstacle Preempted . . . . . . . . . . . . . . . . 9

A. The Ninth Circuit misunderstood the Tenth

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. No presumption against preemption protects

SB 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

TABLE OF AUTHORITIES

CASES

Arizona v. United States,

567 U.S. 387 (2012). . . . . . . . . . . . . . . . . . . 5, 6, 12

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001). . . . . . . . . . . . . . . . . . . . . . . 12

City of New York v. United States,

179 F.3d 29 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . 7

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000). . . . . . . . . . . . . . . . . . . 5, 6, 12

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992). . . . . . . . . . . . . . . . . . . . . . . . . 5

Hines v. Davidowitz,

312 U.S. 52 (1941). . . . . . . . . . . . . . . . . . . . . . . . . 6

Lozano v. City of Hazleton,

724 F.3d 297 (3d Cir. 2013) . . . . . . . . . . . . . . . . . 5

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996). . . . . . . . . . . . . . . . . . . . . . . 11

Murphy v. NCAA,

138 S. Ct. 1461 (2018). . . . . . . . . . . . . . . . . . . . . 10

New York v. United States,

505 U.S. 144 (1992). . . . . . . . . . . . . . . . . . . . . . . 10

Printz v. United States,

521 U.S. 898 (1997). . . . . . . . . . . . . . . . . . . . . . . 10

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947). . . . . . . . . . . . . . . . . . . . 11, 12

iii

Savage v. Jones,

225 U.S. 501 (1912). . . . . . . . . . . . . . . . . . . . . . . . 6

Toll v. Moreno,

458 U.S. 1 (1982). . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. California,

314 F. Supp. 3d (E.D. Cal. 2018) . . . . . . . . . . . . . 7

United States v. Locke,

529 U.S. 89 (2000). . . . . . . . . . . . . . . . . . . . . . . . 12

CONSTITUTION AND STATUTES

U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. X . . . . . . . . . . . . . . . . . . . . passim

Cal. Gov’t Code § 7282.5(a) . . . . . . . . . . . . . . . . . . 4, 5

Cal. Gov’t Code § 7284.6(a)(1)(C). . . . . . . . . . . . . . . . 4

Cal. Gov’t Code § 7284.6(a)(1)(D) . . . . . . . . . . . . . . . 4

Cal. Gov’t Code § 7284.6(a)(4) . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITIES

California Senate Bill 54 . . . . . . . . . . . . . . . . . passim

Committee on the Judiciary Report (Senate), July

10, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

Hearing on SB 54 before the Senate Standing

Comm. on Public Safety (Jan. 31, 2017)

(statement of Sen. Scott Wiener) . . . . . . . . . . . 4, 8

1

INTEREST OF AMICUS CURIAE1

Formed in 1940, the National Sheriffs’ Association

(NSA) seeks to promote the fair and efficient

administration of criminal justice throughout the

United States, and in particular to advance and protect

the Office of Sheriff throughout the United States.

NSA has over 20,000 members, and is the advocate for

over 3,000 sheriffs across the country. NSA supports

the enforcement of the nation’s immigration laws,

which California Senate Bill 54 (SB 54) frustrates.

SUMMARY OF THE ARGUMENT

The power to make laws that frustrate Congress’s

purposes in federal laws is prohibited to the states by

the U.S. Constitution. In neglecting this implication of

the Constitution’s Supremacy Clause, the U.S. Court of

Appeals for the Ninth Circuit applied the Tenth

Amendment to the Constitution in a way that is

profoundly mistaken, so much so that it cries out for

correction by this Court.

It is not difficult to show that SB 54 stands as an

obstacle to the purposes Congress sought to achieve in

federal immigration laws. SB 54 prohibits state and

local officers from sharing the release dates of aliens,

and their personal information, with U.S. Immigration

1

After receiving more than ten days’ written notice, the parties

have consented in writing to the filing of this amicus curiae brief

in this case. No counsel for a party in this case authored this brief

in whole or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation of this brief. No

person other than amicus curiae, its members, or its counsel made

a monetary contribution to its preparation or submission.

2

and Customs Enforcement (“ICE”), and forbids such

officers to transfer custody of aliens to ICE. In these

prohibitions, California compels many state and local

officers who would cooperate with federal enforcement

not to cooperate with that enforcement. This chokingoff of cooperation that would otherwise take place is an

obstacle to that enforcement, and to the congressional

purpose that criminal aliens, after they have served

their sentences, be detained by federal authorities and

deported.

The attempt by a panel of the U.S. Court of Appeals

for the Ninth Circuit to say otherwise, on the ground

that, in SB 54, California merely adopts an inactive

stance, declining to involve itself in immigration law

enforcement, is belied by the active nature of

California’s response—the passage of a law—and by

the (intended) crippling effect that law has on the

fulfillment of federal aims. If California had truly

chosen to be inactive, it would have passed no law

governing the cooperation of its officers with federal

immigration law enforcement, either to command such

cooperation or to prohibit it. Of course, that truly

inactive stance would not have violated the Supremacy

Clause, under which laws, but not the absence of laws,

can be preempted.

The Ninth Circuit went further than to argue that

SB 54 is not an obstacle. It also reached the

remarkable holding that, even if SB 54 is an obstacle,

the Tenth Amendment prevents it from being

preempted.

3

This holding by the Ninth Circuit betrays a

profound misunderstanding of this Court’s federalism

jurisprudence, and of the relation between the

Supremacy Clause and the Tenth Amendment. The

Tenth Amendment sets forth a method of determining

whether given powers are reserved to the states (or the

people) by the Constitution. According to the Tenth

Amendment, if a given power is not delegated to the

federal government by the Constitution, nor prohibited

to the states by the Constitution, then it is so reserved.

The Ninth Circuit did not follow the method spelled

out in the Tenth Amendment when deciding that that

amendment blocked SB 54 from being obstacle

preempted. If it had, it would have asked whether a

power to make laws that stand as obstacles to the

purposes of federal laws is prohibited to the states.

The Supremacy Clause and this Court’s doctrine of

obstacle preemption provide the ready, affirmative

answer—and that answer implies that the power to

make SB 54, on the Ninth Circuit’s assumption that it

is an obstacle to federal aims, is not reserved to the

states by the Tenth Amendment.

The Ninth Circuit’s analysis notwithstanding,

absent a sustained and robust presumption against

preemption founded in Tenth Amendment-related

sensitivities, SB 54, being an obstacle to federal aims,

is obstacle preempted under the Supremacy Clause.

And no presumption designed to protect states’

legitimate prerogatives applies here, given the plenary

federal power, and the lack of any traditional state

power, over immigration.

4

ARGUMENT

The Ninth Circuit held that, even if SB 54 stands as

an obstacle to congressional purposes in federal

immigration law, the Tenth Amendment prevents it

from being obstacle preempted. This Court should

grant review to reverse this deeply mistaken holding,

and to find that SB 54 is, indeed, an obstacle, and thus

preempted under the Supremacy Clause.

I. SB 54 Is An Obstacle

SB 54 was enacted to “counterbalance” federal

immigration enforcement efforts in California. Hearing

on SB 54 before the Senate Standing Comm. on Public

Safety (Jan. 31, 2017) (statement of Sen. Scott Wiener);

Committee on the Judiciary Report (Senate), July 10,

2017, at 1.

To this end, SB 54 prohibits state and local law

enforcement from “[p]roviding information regarding a

person’s release date or responding to requests for

notification by providing release dates or other

information” to immigration authorities, unless that

information is already publicly available or the

individual has been convicted of certain enumerated

crimes. Cal. Gov’t Code §§ 7284.6(a)(1)(C), 7282.5(a).

SB 54 further prohibits state and local law enforcement

from providing “personal information” about aliens,

such as a work or home address, to federal immigration

authorities, unless such information is already publicly

available. Cal. Gov’t Code § 7284.6(a)(1)(D). Also,

under SB 54, state and local law enforcement may

“[t]ransfer an individual to immigration authorities”

only if the United States presents a “judicial warrant

5

or judicial probable cause determination” or if the

individual has been convicted of certain enumerated

crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a).

Thus, under SB 54, in many cases, if a federal

immigration officers asks when an alien in local

custody will be released, or that alien’s home or work

address, local officials who otherwise would be perfectly

willing to provide that information may not provide it.

In many cases, if a federal immigration officer seeks to

assume custody of an alien from local officials, local

officials who otherwise would be perfectly willing to

transfer custody may not do so.

The Supremacy Clause provides that federal law

“shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. Under this

clause, Congress has the power to preempt state and

local laws. Arizona v. United States, 567 U.S. 387, 399

(2012) (citing Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363, 372 (2000)).

Preemption may be either express or implied, and

implied preemption includes both field preemption and

conflict preemption. Lozano v. City of Hazleton, 724

F.3d 297, 302 (3d Cir. 2013) (citing Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)). Conflict

preemption can occur in one of two ways: where

“compliance with both federal and state regulations is

a physical impossibility,” or “where the challenged

state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress.” Lozano, 724 F.3d at 303 (citing Arizona,

6

567 U.S. at 399) (internal quotation marks and

citations omitted). “If the purpose of the act cannot

otherwise be accomplished—if its operation within its

chosen field else must be frustrated and its provisions

be refused their natural effect—the state law must

yield to the regulation of Congress within the sphere of

its delegated power.” Savage v. Jones, 225 U.S. 501,

533 (1912), quoted in Hines v. Davidowitz, 312 U.S. 52,

67 n.20 (1941). The judgment of courts about what

constitutes an unconstitutional impediment to federal

law is “informed by examining the federal statute as a

whole and identifying its purpose and intended effects.”

Crosby, 530 U.S. at 373.

Underlying the doctrine of obstacle preemption is

the necessity of cooperation between state and federal

sovereignties for our federal system to function

properly. As the U.S. Court of Appeals for the Second

Circuit has explained:

A system of dual sovereignties cannot work

without informed, extensive, and cooperative

interaction of a voluntary nature between

sovereign systems for the mutual benefit of each

system. The operation of dual sovereigns thus

involves mutual dependencies as well as

differing political and policy goals. Without the

Constitution, each sovereign could, to a degree,

hold the other hostage by selectively withholding

voluntary cooperation as to a particular

program(s). The potential for deadlock thus

inheres in dual sovereignties, but the

Constitution has resolved that problem in the

Supremacy Clause, which bars states from

7

taking actions that frustrate federal laws and

regulatory schemes.

City of New York v. United States, 179 F.3d 29, 35 (2d

Cir. 1999) (internal citations omitted).

As Petitioner shows, one purpose of federal

immigration law is that criminal aliens, after serving

their sentences, be detained by federal authorities and

deported. Pet. 3-4. By design, SB 54 frustrates this

federal purpose.

It is therefore an obstacle to

Congress’s purposes in federal immigration law

according to this Court’s precedents.

Nevertheless, the Ninth Circuit denied that SB 54

is such an obstacle, “agree[ing]” with the district court

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.’” Pet.

App. 34a (quoting United States v. California, 314

F. Supp. 3d 1077, 1104 (E.D. Cal. 2018)).

The flaw in the Ninth Circuit’s conclusion is readily

apparent: the court misread SB 54 as a refusal of

California to assist the federal government. In fact, SB

54 is a prohibition on California cities, counties, and

state and local law enforcement officers, ordering them

not to assist the federal government. The question is

whether this prohibition raises an obstacle to federal

enforcement of immigration laws.

It certainly does. Many cities and officials would

assist the federal government, as shown by the

submission of an amici curiae brief in this case by

8

numerous California municipalities and elected

officials in support of the United States, were they not

blocked from doing so by SB 54. Had these officers

been allowed to cooperate, Congress’s purposes would

have been achieved much more fully than they have

been. Thus, SB 54, operating as a but-for cause, has

lessened the achievement of Congress’s purposes.

Saying that it has so acted is no different than saying

that it has “frustrated” or is an “obstacle” to the

achievement of those purposes.

True, federal law cannot preempt inaction by a

state. But, in SB 54, California has taken a step as

active as it could take—the passage of a state law. Had

California truly decided to be inactive, it would have

passed no law to control cooperation by its officers,

either to compel or to forbid it. California did not adopt

this passive course. Instead, it chose to exert itself,

through SB 54, to “counterbalance” federal immigration

enforcement efforts in California. Hearing on SB 54

before the Senate Standing Comm. on Public Safety

(Jan. 31, 2017) (statement of Sen. Scott Wiener);

Committee on the Judiciary Report (Senate), July 10,

2017, at 1. It cannot now claim merely to be holding

itself aloof.

9

II. SB 54 Is Obstacle Preempted

The Ninth Circuit held that, even if SB 54 is an

obstacle to federal aims, the Tenth Amendment

prevents it from being preempted. Pet. App. 34a-39a.

This remarkable holding—which contradicts the letter

of this Court’s well-established obstacle-preemption

cases—implies that the Tenth Amendment reserves to

the states a power to make laws that, through

controlling the level of state officers’ cooperation with

federal immigration law enforcement, determine or

influence what happens to criminal aliens after they

are released from state custody. This holding is a

sharp departure from this Court’s carefully-wrought

federalism jurisprudence.

A. The Ninth Circuit misunderstood the Tenth

Amendment

The Ninth Circuit failed to appreciate the relation

between the Supremacy Clause and the Tenth

Amendment, and even to understand the Tenth

Amendment itself. The Tenth Amendment sets forth

a method of determining whether given powers are

reserved to the states (or the people) by the

Constitution:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.

U.S. Const. amend. X.

Thus, under the Tenth Amendment, before it can be

decided that a given power is reserved to the states, it

10

must be determined whether that power is delegated to

the federal government by the Constitution, and

whether it is prohibited to the states by the

Constitution. Only if the answer to both questions is in

the negative does the Tenth Amendment reserve that

power to the states.

This Court has proceeded consistently with this

rubric in its commandeering cases. First, it derived the

anticommandeering rule from the structure of the

Constitution and the principle, assumed in the

Constitution, that governments govern individuals, not

other governments. See generally New York v. United

States, 505 U.S. 144 (1992); Printz v. United States, 521

U.S. 898 (1997). Then this Court noted that the power

to commandeer states or state officers is never a proper

means of effectuating any enumerated power, and thus

that this power is not delegated to the federal

government by the Constitution. Printz, 521 U.S. at

923-24.

By contrast, the Ninth Circuit simply ignored the

method of decision spelled out in the Tenth

Amendment when finding that the Tenth Amendment

blocked SB 54 from being obstacle preempted. Had it

followed that method, it would have asked whether a

power to make laws that stand as obstacles to the

purposes of federal laws is prohibited to the states. Of

course, that power is prohibited to the states by the

Supremacy Clause, as interpreted by this Court’s

obstacle preemption cases. See, e.g., Murphy v. NCAA,

138 S. Ct. 1461, 1476 (2018) (“[T]he Constitution

indirectly restricts the States by granting certain

legislative powers to Congress, see Art. I, §8, while

11

providing in the Supremacy Clause that federal law is

the ‘supreme Law of the Land . . . any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding,’ Art. VI, cl. 2.”). Since the power to

make laws that are obstacles to federal aims is

prohibited to the states, the power to make SB 54, on

the Ninth Circuit’s assumption that it is an obstacle to

federal aims, is not reserved to the states by the Tenth

Amendment. In other words, the Ninth Circuit put the

cart of the reservation of states’ powers before the

horse of preemption. Here, it is the issue of preemption

that must be decided before it can be determined

whether the power at issue has been reserved to the

states by the Tenth Amendment.

B. No presumption against preemption protects SB

54

Nevertheless, based on federalism balancing

concerns, if not on the straightforward text of the

Tenth Amendment, this Court has employed a

presumption against preemption in some cases. See,

e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

But any such presumption, which the Ninth Circuit did

not even invoke to protect SB 54, is easily overcome

here.

First, a leading case setting forth this

presumption held that, in cases of obstacle preemption,

the presumption is ipso facto surmounted. Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

(“[W]e start with the assumption that the historic

police powers of the States were not to be superseded

by the Federal Act unless that was the clear and

manifest purpose of Congress. Such a purpose may be

evidenced in several ways. . . [For example,] the state

12

policy may produce a result inconsistent with the

objective of the federal statute.”); see also Crosby v.

Nat’l Foreign Trade Council, 530 U.S. 363, 374 n.8

(2000) (“Assuming, arguendo, that some presumption

against preemption is appropriate, we conclude, based

on our analysis below, that the state Act presents a

sufficient obstacle to the full accomplishment of

Congress’s objectives under the federal Act to find it

preempted.”).

Second, “an ‘assumption’ of nonpre-emption is not

[even] triggered when the State regulates in an area

where there has been a history of significant federal

presence.” United States v. Locke, 529 U.S. 89, 108

(2000) (quoting Rice, supra); see also Buckman Co. v.

Plaintiffs’ Legal Comm., 531 U.S. 341, 347-48 (2001)

(finding that the presumption against preemption did

not apply to fraud on the Federal Drug Administration

because it is not an area of traditional state

regulation).

The question of what happens to

deportable aliens has always and quintessentially been

in the purview of the federal government. See, e.g.,

Arizona v. United States, 567 U.S. 387, 394 (2012)

(recognizing that the federal government “has broad,

undoubted power over the subject of immigration and

the status of aliens”) (citing Toll v. Moreno, 458 U.S. 1,

10 (1982)). There is no traditional state power to decide

this question, and certainly not to decide it

inconsistently with how the federal government has

decided it. That California has intruded into an area of

federal concern prevents even the application of any

presumption against preemption in this case.

13

CONCLUSION

For the foregoing reasons, this Court should grant

review and reverse the judgment of the court below

upholding SB 54.

Respectfully submitted,

CHRISTOPHER J. HAJEC*

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

*Counsel of Record

Counsel for Amicus Curiae