Reply 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.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

A. The court of appeals erred on multiple exceptionally

important questions of federal law .................................. 2

B. The question presented warrants this Court’s

review ............................................................................... 11

TABLE OF AUTHORITIES

Cases:

Arizona v. United States, 567 U.S. 387 (2012) ..... 2, 3, 4, 5, 9

Brecht v. Abrahamson, 507 U.S. 619 (1993) ......................... 9

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

(2d Cir. 1999), cert. denied, 528 U.S. 1115 (2000) ............ 11

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000)................................................................ 5

Fong Yue Ting v. United States, 149 U.S. 698 (1893) ....... 10

Galvan v. Press, 347 U.S. 522 (1954) ................................... 10

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ................. 9

Hines v. Davidowitz, 312 U.S. 52 (1941) ............................... 9

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) .................................................. 10

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018) ........................................................... 7

Murphy v. NCAA, 138 S. Ct. 1461 (2018) ......................... 8, 9

National Meat Ass’n v. Harris, 565 U.S. 452 (2012) ........... 4

Nielsen v. Preap, 139 S. Ct. 954 (2019) ................................. 2

North Dakota v. United States, 495 U.S. 423 (1990) ........... 5

Perez v. Campbell, 402 U.S. 637 (1971) ................................. 3

Printz v. United States, 521 U.S. 898 (1997) .................. 8, 10

Russello v. United States, 464 U.S. 16 (1983) ....................... 7

Wisconsin Dep’t of Indus., Labor & Human

Relations v. Gould Inc., 475 U.S. 282 (1986) ..................... 5

(I)

II

Constitution and statutes:

Page

U.S. Const.:

Art. VI, Cl. 2 (Supremacy Clause) ........................... 3, 4, 8

Amend. X.............................................................. 1, 6, 8, 11

Immigration and Nationality Act,

8 U.S.C. 1101 et seq.:

8 U.S.C. 1226(c) ....................................................... 2, 7, 10

8 U.S.C. 1231(a)(1)(A) ................................................... 3, 7

8 U.S.C. 1231(a)(1)(B)(iii) ................................................. 7

8 U.S.C. 1231(a)(2)............................................................. 3

8 U.S.C. 1231(a)(4)(A) ............................................. 3, 7, 10

8 U.S.C. 1373(a) .......................................................... 6, 7

8 U.S.C. 1373(c) .............................................................. 7

42 U.S.C. 5779(a) (1994) ........................................................ 10

Cal. Gov’t Code (West 2019):

§ 7284.6(a)(1)(C)-(D).......................................................... 2

§ 7284.6(a)(4) ...................................................................... 2

In the Supreme Court of the United States

No. 19-532

UNITED STATES OF AMERICA, PETITIONER

v.

STATE OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

In allowing the challenged provisions of California

Senate Bill No. 54 (SB 54) to remain in effect, the court

of appeals acknowledged that they “frustrate” and “obstruct[]” federal immigration enforcement, Pet. App.

34a, 36a, 39a, and reflect a “cho[ic]e to discriminate

against” the United States, id. at 40a. California does

not dispute that basic thrust of SB 54. The State instead

contends, as the Ninth Circuit held, that enjoining SB 54

as preempted would result in impermissible commandeering. That position seriously misunderstands both

federal immigration law and the Tenth Amendment.

Federal immigration law does not compel California to

participate in its enforcement. It merely preempts

state regulation of aliens in a way that conflicts with federal regulation of those aliens. And the Tenth Amendment’s shield against commandeering does not provide

a sword to obstruct federal enforcement or discriminate

against the United States, as SB 54 concededly does.

(1)

2

The decision of the court of appeals for the Nation’s

largest circuit to permit such a law in the Nation’s most

populous State is highly “consequential,” as California

itself acknowledges, Br. in Opp. 25, and knowledgeable

and experienced amici confirm, see, e.g., National Sheriffs Ass’n Amicus Br. 5, 8; California Municipalities &

Elected Officials Amici Br. 12. This Court granted certiorari on a similar issue in a similar posture in Arizona

v. United States, 567 U.S. 387 (2012). The Court’s review is at least as warranted here.

A. The Court Of Appeals Erred On Multiple Exceptionally

Important Questions Of Federal Law

In affirming the district court’s decision not to enjoin

the challenged provisions of SB 54, the court of appeals

committed serious legal errors on questions of conflict

preemption, intergovernmental immunity, express preemption, and commandeering. Each of those errors

would independently warrant this Court’s review; taken

together, the basis for certiorari is compelling.

1. As explained in the petition (at 14-19), the

challenged provisions of SB 54, Cal. Gov’t Code

§ 7284.6(a)(1)(C)-(D) and (4) (West 2019), are conflictpreempted because they “stand[] as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress” in structuring the system of

federal immigration enforcement, Arizona, 567 U.S. at

399 (citation omitted). Congress prescribed an “extensive and complex” framework for the detention and removal of aliens, including aliens in state criminal custody. Id. at 395. Of particular relevance here, Congress

directed that certain criminal aliens must be taken into

immigration custody when “released” from state criminal custody, 8 U.S.C. 1226(c); see Nielsen v. Preap, 139

S. Ct. 954, 963 (2019), and that certain aliens released

3

from state criminal custody must be detained and removed from the United States within 90 days of their

release, see 8 U.S.C. 1231(a)(1)(A), (2), and (4)(A). The

challenged provisions of SB 54 obstruct compliance with

those directives by shielding covered aliens from federal custody upon release and denying federal immigration officials critical information about aliens’ identities

and release dates. As a result, federal immigration officials must “ ‘in effect, stake out a jail and seek to make

a public arrest,’ ” which “ ‘generally require[s] five officers and present[s] risks to the arresting officer and the

general public.’ ” Pet. App. 33a. The court of appeals

thus repeatedly recognized that SB 54 results in the

“frustration” and “obstruction” of federal law, id. at

34a, 36a, 39a—precisely what the Supremacy Clause

prohibits, see Arizona, 567 U.S. at 399.

Rather than disputing the Ninth Circuit’s recognition that SB 54 frustrates and obstructs federal immigration enforcement, California contends that SB 54

lacks such a purpose. The State suggests that the law

was designed to “address concerns [about] undue entanglement with immigration enforcement,” Br. in Opp. 1,

and to “ ‘protect the safety, well-being, and constitutional rights of the people of California,’ ” id. at 12 (citation omitted). That assertion is both irrelevant and unpersuasive. It is irrelevant because “any state legislation which frustrates the full effectiveness of federal law

is rendered invalid by the Supremacy Clause,” even if

“the state legislature in passing its law had some purpose in mind other than one of frustration.” Perez v.

Campbell, 402 U.S. 637, 651-652 (1971). And it is unpersuasive because the mechanism California selected to

purportedly avoid “entanglement” and “ ‘protect’ ” its

people, Br. in Opp. 1, 12 (citation omitted), frustrates

4

and obstructs the enforcement of federal law by shielding aliens in its custody from federal immigration authorities, see Pet. App. 34a, 36a, 39a.

Attempting to minimize the scope of its obstruction,

California emphasizes that SB 54 allows state officials

“to communicate release dates and to transfer individuals for immigration enforcement purposes in a range of

circumstances, including when an individual’s criminal

history indicates that he poses a risk to public safety,”

while restricting those steps in “other circumstances.”

Br. in Opp. 11; see id. at 25 (further elaborating on SB

54’s detailed restrictions and exceptions). But the

State’s description of its custom-designed scheme only

underscores that California has done what the Supremacy Clause forbids—adopt “its own * * * policy” to govern aliens in state custody facing detention and removal

by the federal government, in conflict with the different

approach “specified” by Congress. Arizona, 567 U.S. at

396, 408; see, e.g., National Meat Ass’n v. Harris,

565 U.S. 452, 460 (2012) (explaining that a California

statute that “substitutes a new regulatory scheme for

the one” Congress designed was preempted).

California relies heavily on the premise (Br. in Opp.

13) that federal immigration law does not “compel”

state cooperation in immigration enforcement. But that

is undisputed; the United States does not seek to compel California to enforce federal law. Pet. 25. Rather,

SB 54 conflicts with federal law by interfering with federal immigration authorities’ ability to obtain custody

so that the federal authorities may enforce federal law.

SB thus regulates aliens in a way that obstructs Congress’s regulation of those same aliens, by imposing numerous restrictions and requirements that Congress

did not impose—i.e., permitting transfers only of aliens

5

that California deems sufficiently dangerous, and requiring judicial rather than administrative warrants,

see Pet. 17-18.

California’s observation (Br. in Opp. 1, 2, 5, 7, 10-12,

15) that SB 54 operates through an allocation of the

State’s resources does not rehabilitate the law’s central

defect. As the State concedes (id. at 20), the state laws

found preempted in Crosby v. National Foreign Trade

Council, 530 U.S. 363 (2000), and Wisconsin Department of Industry, Labor & Human Relations v. Gould

Inc., 475 U.S. 282 (1986), similarly operated by allocating state resources in a particular way—a way that conflicted with federal law. See Pet. 27. SB 54 has the same

flaw. Indeed, as noted in the petition (at 26), it is unimaginable that this Court would countenance a state law

that “simply defines the circumstances in which the

State will use its own resources,” Br. in Opp. 12, if the

effect of that law was to similarly obstruct federal enforcement of, for example, environmental or labor laws

regulating private parties. California has no response.

Finally, conflict preemption follows a fortiori from

this Court’s decision in Arizona. See Pet. 18-19. SB 54,

unlike the state law in Arizona, does not even purport

to pursue “the same aim as federal law.” 567 U.S. at

402. At a minimum, this Court’s grant of certiorari in

Arizona demonstrates that review is at least as warranted here.

2. Certiorari is also warranted because SB 54 violates the United States’ intergovernmental immunity.

This issue comes to the Court in a particularly clear posture. The parties agree that the intergovernmentalimmunity doctrine “prohibits States from * * * ‘discriminat[ing] against the Federal Government or those

with whom it deals.’ ” Br. in Opp. 22 (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality

6

opinion) (brackets in original); see Pet. 20. And the parties do not dispute that SB 54 discriminates against the

federal government by restricting transfers to and

information-sharing with federal immigration authorities,

and only federal immigration authorities. Indeed, the

court of appeals acknowledged California’s “cho[ic]e to

discriminate against federal immigration authorities,”

Pet. App. 40a, and California does not deny that SB 54

embodies such a choice. The State’s only response (Br. in

Opp. 22-23) is that the Tenth Amendment permits that

discrimination. As explained elsewhere, see pp. 8-11, infra; Pet. 24-31, that understanding of the Tenth Amendment is mistaken. But in any event, California’s tacit concession that SB 54 discriminates against the federal government confirms the need for this Court’s review.

3. California also fails to refute the argument that SB

54’s information-sharing restrictions are expressly preempted by 8 U.S.C. 1373(a) because they prohibit state

and local officials from sharing with the federal government “information regarding the citizenship or immigration status * * * of any individual.” See Pet. 21-23.

The State first suggests (Br. in Opp. 15) that SB 54 does

not violate Section 1373(a) because SB 54 contains an exception to its restrictions that parallels Section 1373(a).

But neither of the courts below accepted that circular argument, see Pet. App. 40a-41a, 84a-85a, which simply

raises the question whether 8 U.S.C. 1373(a)’s reference

to “information regarding the citizenship or immigration status * * * of any individual,” encompasses the

release-date and other personal information about an

alien that SB 54 expressly forbids state officials from

sharing with federal authorities enforcing federal immigration law. California, moreover, never disputes the

central premise of the United States’ textual argument:

7

that release dates and other personal information covered by SB 54 are at the very least “information regarding citizenship or immigration status,” ibid. (emphasis

added), given that federal immigration law (1) directs

detention and/or removal from the United States upon

a criminal alien’s “release[]” from state custody,

8 U.S.C. 1226(c); see 8 U.S.C. 1231(a)(1)(A), (B)(iii),

(4)(A); and (2) makes various other issues of citizenship

or immigration status dependent on information covered by SB 54, such as an alien’s work address or authorization, see Pet. 23. Indeed, California disregards

that its own Attorney General interpreted Section

1373(a) to cover information such as release dates as recently as 2014. See Pet. 5.

California cites (Br. in Opp. 16) other immigration

statutes that it suggests sweep more broadly, but those

say nothing about the scope of Section 1373(a). The

State also suggests (id. at 16-17) that the Court should

disregard precedent recognizing that “regarding” is a

word of breadth, see Lamar, Archer & Cofrin, LLP v.

Appling, 138 S. Ct. 1752, 1759-1760 (2018), as well as the

canon teaching that Congress’s selective decision to include “regarding” in Section 1373(a) but not in Section

1373(c) should be given meaning, see Russello v. United

States, 464 U.S. 16, 23 (1983). The State provides no

sound basis for ignoring those principles. And its theory (Br. in Opp. 16) that Section 1373(a), unlike Section

1373(c), includes “regarding” because non-federal officials lack access to official immigration or citizenship

records only underscores that Congress wrote Section

1373(a) to encompass the kind of information at issue

here, which non-federal officials do have. Indeed, California effectively concedes (id. at 17 n.6) that the legislative history supports the government’s reading, see

Pet. 22.

8

4. Ultimately, California (like the Ninth Circuit)

rests its argument almost entirely on the view that SB

54 can obstruct federal law enforcement and discriminate against the United States because the Tenth Amendment vests the State with the power to make such a

“choice.” Pet. App. 37a; see Br. in Opp. 18-21. That position is both profoundly consequential and profoundly

wrong.

As California explains, the Tenth Amendment’s anticommandeering principle generally provides that “the

federal government may not compel state officials to enforce or administer a federal regulatory program,” or to

enact (or not enact) particular laws. Br. in Opp. 18; see,

e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018);

Printz v. United States, 521 U.S. 898, 925 (1997). Even

assuming that principle applies with full force in the immigration context, California fails to identify any federal statute that compels it to enforce federal law. Nor

does the government contend that any federal statute

compels the State to do so. Rather, as discussed, the

basis for this suit is that the Supremacy Clause bars enforcement of SB 54 because it regulates aliens in ways

that conflict with Congress’s regulation of those same

aliens, and frustrates the ability of federal authorities

to obtain custody of those aliens so that federal authorities may enforce federal law. See pp. 4-5, supra. The

federal laws at issue here are thus nothing like the

express commands to state legislatures or officials at issue in Murphy and Printz. That distinction forecloses

the State’s position; with no compulsion to enforce federal law, there is no commandeering. See Pet. 24-28.

The State suggests that a finding that SB 54 is

preempted would nevertheless violate the anti-commandeering doctrine because it would allow the federal

government to “dictate[] what a state legislature may

9

and may not do.” Br. in Opp. 18 (quoting Murphy,

138 S. Ct. at 1478) (brackets in original). But that position

badly overreads Murphy and would effectively eviscerate the doctrine of conflict preemption. The Court in

Murphy took pains to avoid such a misunderstanding,

explaining that “shorthand” descriptions of preemption

—e.g., that “ ‘Congress has forbidden the State to take’ ”

a particular action in exercising its legislative power to

regulate private parties—should not be mistaken for

commandeering. 138 S. Ct. at 1480 (citation omitted).

Indeed, one example Murphy gave of valid federal preemption was “[t]he Court’s decision in Arizona,” which

held that a state statute was preempted because it conflicted with “federal law that regulates the conduct of

private actors”—the provisions of federal immigration

law regulating the detention and removal of aliens at issue here. Id. at 1481.

California also misunderstands (Br. in Opp. 21-22)

the government’s contention that the implied federal

prohibition on state obstruction of federal immigration

enforcement is permissible as a condition of the State’s

voluntary choice to subject aliens to its own criminaljustice system. See Pet. 28-29. California asserts that

the government’s position is “remarkable” because “ ‘[t]he

States possess primary authority for defining and enforcing the criminal law.’ ” Br. in Opp. 21 (quoting

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)) (brackets in original). Whatever the merits of that proposition

outside the context of foreign nationals, it is beyond dispute that the United States has “exclusive[]” control

over “any policy toward aliens.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (emphases added);

see, e.g., Arizona, 567 U.S. at 394; Hines v. Davidowitz,

312 U.S. 52, 62 (1941). The federal government accordingly could, if it chose, preempt States from enforcing

10

their criminal laws against aliens and instead pursue

immediate federal detention or removal. See, e.g., Fong

Yue Ting v. United States, 149 U.S. 698, 714 (1893) (explaining the exclusive federal power to “expel aliens

* * * or to permit them to remain”); see also Galvan v.

Press, 347 U.S. 522, 530-531 (1954) (similar). That Congress instead decided to adopt a more cooperative policy under which States can choose to subject criminal

aliens to their own criminal-justice systems before the

aliens’ detention and removal by the federal government, see 8 U.S.C. 1226(c), 1231(a)(4)(A), does not authorize States to adopt policies that frustrate the

scheme the federal government selected. Cf. Hodel v.

Virginia Surface Mining & Reclamation Ass’n,

452 U.S. 264, 289-290 (1981). Nor does the fact that federal law imposes this condition on States’ criminal regulation of aliens implicitly, rather than explicitly, make

it any less binding. California’s attempt to have it both

ways is “remarkable,” Br. in Opp. 21—and wrong.

Finally, California fails to explain how the anticommandeering doctrine could require invalidating SB

54’s information-sharing provisions given that this

“Court has implied the existence of a Tenth Amendment

exception for reporting requirements.” Pet. App. 38a;

see Printz, 521 U.S. at 917-918. The State’s only argument (Br. in Opp. 21-22) is that SB 54’s informationsharing provisions apply only to governmental actors.

But the same was true of the paradigmatic example of a

presumably permissible information-sharing requirement identified in Justice O’Connor’s concurrence in

Printz: that “state and local law enforcement agencies * * * report cases of missing children to the Department of Justice.” 521 U.S. at 936 (emphasis added)

(citing 42 U.S.C. 5779(a) (1994)). That California’s position, upheld by the Ninth Circuit, would seemingly call

11

into question the constitutional validity of such statutes

underscores the need for this Court’s review.

B. The Question Presented Warrants This Court’s Review

There is no real dispute that the issues in this case

are exceptionally important. California concedes that

the question presented is “consequential,” Br. in Opp.

25, and knowledgeable and experienced amici emphasize both the legal and practical stakes, see p. 2, supra.

As explained above and in the petition, the Ninth Circuit’s reasoning is wrong. At a minimum, such a significant decision should not stand without this Court’s review. As noted, this Court granted certiorari on a similar question in a similar posture in Arizona, even

though there was no circuit conflict and even though the

Court ultimately affirmed in substantial part. See Pet.

32-33. If anything, review is even more appropriate

here because of the presence of the Tenth Amendment

issue—a constitutional ruling on which the Ninth Circuit’s reasoning departs from the most analogous decision by another court of appeals, see City of New York

v. United States, 179 F.3d 29, 33-35 (2d Cir. 1999), cert.

denied, 528 U.S. 1115 (2000); Pet. 33-34. California suggests (Br. in Opp. 24) that the Second Circuit’s decision

in that case does not survive Murphy. But that assertion

—which directly calls into question the constitutionality

of a federal statute—only further highlights the exceptional importance of the question presented and the evident need for this Court’s review.

12

* * * * *

For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be

granted.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JANUARY 2020