Amicus Curiae Brief — Martinez v. Regents of the University of California

a eas ie :y Us

Bt (2) WAR 18 201

No. 10-1029

3n the Supreme Court of the Anited States

ROBERT MARTINEZ, ET AL.,

Petitioners,

Vv.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.,

> : - .

R esponde nis

On Petition for a Writ of Certiorari

to the California Supreme Court

BRIEF AMICUS CURIAE OF EAGLE FORUM

EDUCATION & LEGAL DEFENSE FUND, INC.,

IN SUPPORT OF PETITIONERS

LAWRENCE J. JOSEPH

1250 CONNECTICUT AVE. NW

SUITE 200

WASHINGTON, DC 20036

(202) 669-5135

ljoseph@larryjoseph.com

Counsel for Amicus

WILSON-EPES PRINTING Co., INC. -— (202) 789-0096 -— WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

Petitioners Robert Martinez et al. (collectively

“Martinez’) present two questions to this Court in

their challenge to the tuition charged by

Respondents California Community College (‘CCC’)

California State University (‘CSU”), and University

of California (collectively, the “Universities’):

l. Whether a= state statute that defies the

congressional intent behind 8 U.S.C. §1623 by

providing resident tuition rates at public

postsecondary institutions to illegal aliens and

declaring that it is granting those benefits to

illegal aliens not on the basis of “residence” in

the state, but on the basis of attending a high

school in the state, is expressly preempted

2. Whether a court must undertake’ conflict

preemption analysis after concluding that an

express preemption provision does not apply in a

case involving both types of preemption claims.

micus curiae Eagle Forum Education & Legal

Defense Fund respectfully submits that this Court

must answer both questions in the affirmative

TABLE OF CONTENTS

Pages

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Table of Contents .................... Dont tarees ea mcmita ete eeeaaee ll

ee OF ARUP IRIO Gonos ccc cc cesceececsccscsses RRR anni Sete il

Interest of Amicas Curiae ..........-.....--<...-<<cscccescecsacas l

Constitutional Background................... Pea Lr Hed 2

PRU TRU ona le cs 3

§1621 and PRWORA........... ee Ue RTT 3

yn UY WI cc ocean eed 5

2 UB, BO 2 | | a ree anions 8

PN NE nec re von yandevceaucn saetatcsubenoes 10

en Ras SIMI CO WE TE oon ences ccc neces 10

I. §68130.5 Does Not Trigger the Presumption

I fF REIN cc ecco ee 12

II. Martinez Can Sue under Both Ex parte Young

NE I ocd conti tnpaeeee sho cicaa aece eee mam, 15

A. Martinez Can Sue under Ex parte Young .. 16

B. Martinez Can Sue under §1983 .................. 16

IIIf. §1623 Expressly Preempts §68130.5................. 17

A. §1623 Alone Expressly Preempts §68130.5 18

B. The Statutory and Constitutional Scheme

Expressly Preempt §68130.5.....0..0.00.0000...... 22

C. The Legislative History Supports Express

| | aR see ate een RR raat Ae erie at 24

IV. Federal Law Impliedly Preempts §68130.5,

Notwithstanding Express Preemption and

IS RI J go eaten Uae anat ee eae 25

COMCHRSION «..0...0.000...... SE aR NRE Dt VI ele ry inode 28

TABLE OF AUTHORITIES

Pages

Cases

Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982) .. 22

Begier v. LR.S., 496 U.S. 53 (1990) ..ceccccecesceeeeeceeee: 7

Boyle v. United Technologies Corp.,

(iP eh | nee mr ine eoy es ee a

Bray v. Alexandria Women’s Health Clinic,

I eae Ny RE cre king coco ahasdaneceavaneseudcanens Sa ae

Brock v. Superior Court, 12 Cal.2d 605 (1939)........ 16

Buckman Co. v. Plaintiffs’ Legal Comm..,

er a Pee CN cca si cxnccna van cancanvendavonnccoses 12, 26

Castaneda v. Partida, 430 U.S. 482 (1977) ............. 20

Cipollone v. Liggett Group, 505 U.S. 504 (1992)....... 2

City of Cleburne v. Cleburne Living Center,

AT3 U.S. 432 (1985) ..ccccccccccccceseccececcessesesseeeeceecaves 3

Crosby v. Nat'l Foreign Trade Councul,

ee 0 a CORRE Ca as osha ndnksavecassnssewakousencncsonys is, Zo

Davies Warehouse Co. v. Bowles,

321 U.S. 144 (1944) ..ccccccccccccccccscscocesescseseseeeseeeeees 14

DeCanas v. Bica, 424 U.S. 351 (1976) ....................... 2

Ex parte Young, 209 U.S. 123 (1908).................. 15-16

Exxon Mobil Corp. v. Allapattah Services, Inc.,

TO ES SMI CRIED 5 ovo c ae sna vncamenevacanvudestscesssstecans PAS

FDA v. Brown & Williamson Tobacco Corp.,

ee FE ace onss a aeessedacesecaee cs cntenene= 22

Geier v. Am. Honda Motor Co.,

ee de RE CIID cscs secennatisccescbancasadesscs 13, 25, 26

Haywood v. Drown, 129 S.Ct. 2108 (2009)... 15-16, 17

lil

Peete? ©. Doe, BO UTS. SUS CLD wivnvivcdcscceccdivcnssacis 18

Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003)..... 21

Illinois Ass'n of Mortg. Brokers v. Office of Banks

& Real Estate, 308 F.3d 762 (7th Cir. 2002)...... 16

INS vu. St. Cyr, 643 U.S. 289 Gl008) .....i ccc cccc es.

Jackson v. Birmingham Bd. of Educ.,

EE Fe. BUR Cans ciao ceccn seats ceeanccassniaxe sicepeaeeeeas 19

Landsgraf v. USI Film Prod., 511 US 244 (1994)... 15

Lawrence v. Ballou, 37 Cal. 518 (1869) ....................17

Manta Management Corp. v. City of San

Bernardino, 43 Cal.4th 400 (2008).......... |

McCarthy ex rel. Travis v. Hawkins,

Se Fe SOT (GEE Ca. ZI) oi cecesnsicovescvscvsseoes,. 10

Nattonal Ass'n of Greeting Card Publishers v.

U.S. Postal Serv., 462 U.S. 810 (1983)........ oe

Offshore Logistics, Inc. v. Tallentire,

er ae SE TN ode co reese hes ee 22

Oklahoma v. New Mexico, 501 U.S. 221 (1991)....... 24

People v. Jurado, 38 Cal.4th 72 (2006)...... ROP i |

Perez v. Campbell, 402 U.S. 637 (1971)................... 2d

Perez Uv. Ledesma, 401 US. BZ CPST Y) oc cccvccccccccccsssese 10

Rice v. Santa Fe Elevator Corp.,

ee es Se CPD vursceneovesoesceqpessss ecedade oa, 12, 14

Romer v. Evans, 517 U.S. 620 (1996) ................... 3, 19

Shapiro v. Thompson, 394 U.S. 618 (1969)

(overruled in part on other grounds, Edelman

v. Jordan, 415 U.S. 651 (1974))...................... .. 18

Takahashi v. Fish & Game Comm'n,

CP EF A 1 RD es viva a.ces cn sicendvwcedesasaseccevensnes 18, 27

Toll v. Moreno, 458 U.S. 1 (1982) ............ 2, 22, 26, 27

1V

Townsend v. Swank, 404 U.S. 282 (1971) ......0.0002... aes

U.S. v. American Trucking Ass’ns., Inc.,

DAS UD. Bi CI enen Diccosiveeoasces earn 24

CLS. wv. Loeke, 529 U.S: Bo Gao ovccceseesescceeses 12,13

Vlandis v. Kline, 412 U.S. 441 (1978)........00000 0... 18

Wisconsin Dep't of Indus., Labor & Human

Relations v. Gould, 475 U.S. 282 (1986) ........... 2-3

Wyeth v. Levine, 129 S.Ct. 1187 (2009) .............. 12-13

Youakim v. Miller, 425 U.S. 231 (1976) .....0.0000..... ae

Statutes

U.S. CONST. Art. VI GL. 2........<.00.:. 2, 11, 22, 23, 23.

U.S. CONST. amend. XIV, §1, cl. 4.......00000000... 3, 22, 23

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BD EF SAS BINS cess voce xacissosiejctnsccecuuceste secre eee

OS Bae ieee Sipe 4,11, 14, 26

BS Ue ee tO Ok ice eee 4

BTS So I OG) wie snes san cxsnsaetesecace eee 4, 26

SUS Sree eee 4,5, 14, 22, 26, 27

G U.S.C. SIGZS oo ocscd ods cccscckccsconns hy Oy Oe a ee

AB OR SS <2 Ree ree enna pe Ake Coren she 1}

Be UTA. BERS bic iccscceticce ee ee eee 15

98 U.S 0.413089... 15

AZ U.S.C. $1981 .....cccccccececssevcecsceseeeees ae 19

42 U.S.C. $1983 ........ susioud onar encased tery enti pei ean 15-17

Civil Rights Act of 1871, 17 Stat. 13 (1871) ............ 15

Judiciary Act of 1875, 18 Stat. 470 (1875) .....00.0..... 15

Personal Responsibility and Work Opportunity

Reconciliation Act, PUB. L. No. 104-193, 110

stat. SES Ce, er, LIN vos ccavccecsarccecoteasseencs 3-4, 5

‘.

PUB. L. No. 104-208, §50

(Sept. 30, 1996) ...

CAL. EDUC. CODE §6801%

CAL. EDUC. CODE §68061

CAL. EDUC. CODE §68062(b)

CAL. EDUC. CODE §68062(d)

CAL. EDUC. CODE §68062(f)

CAL. EDUC. CODE §68062(g)

CAL. EDUC. CODE §68062(h)

CAL. EDUC. CODE §68130.5

CAL. EDUC. CODE §68130.5(a)(1

CAL. EDUC. CODE §68130.5(a)(2

CAL. EDUC. CODE §68130.5(a)(3

CAL. EDUC. CODE §68130.5(a)(4

CAL. EDUC. CODE §68130.7

Assembly Bill 540, 2001 Cal. Stat

Assembly Bill 540, 2001 Cal. Stat

Legislative History

5.1664, 104th Cong. §201(a)(2) (199%

S. REP. NO. 104—249 (Apr. 10, 1996)

H.R. CONF. REP. NO. 104—725

(July 30, 1996)

H.R. CONF. REP. NO. 104—828 (Sept. 24, 1996)

142 Cong. Rec. H11376 (daily ed. Sept 26, 1991

142 Cong. Rec. S11508 (daily ed. Sept. 27, 1996)

142 Cong. Rec. S11713 (daily ed. Sept. 28, 1991

H.R. CONF. REP. NO. 104—863 (Sept. 25

Assembly Higher Education Committee,

Concurrence in Senate Amendments of AB 540

(2001-2002 Reg. Sess.) (Sept. 7, 2001) 9) 20

Governor's Veto Message, AB 1197 (2001)

reprinted in Vol. 1 Clerk’s Transcript

Assembly Higher Education Committee

Concurrence in Senate Amendments of AB

1543 (2001-2002 Reg. Sess.) (Jan. 24, 2002)

Rules, Regulations and Orders

5. Ct. Rule 32.3.

5. Ct. Rule 37.6.....

Other Authorities

David F. Levi, The Equal Treatment of Aliens

Preemption or Equal Protection?, 31 STAN

REV. 1069 (1979) .........

Michael J. Perry, Modern Equal Protection. |

Conceptualization and Appraisal, 79 COLUM

L. REV. 1023 (1979).

niform Warehouse Receipts Act

No. 10-1029

Hn the Supreme Court of the United States

ROBERT MARTINEZ, ET AL.,

Petitioners,

V.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the California Supreme Court

INTEREST OF AMICUS CURIAE

Amicus curiae Eagle Forum Education & Legal

Defense Fund, Inc. (“Eagle Forum”)! is a nonprofit

organization founded in 1981 and headquartered in

Saint Louis. For thirty years, Eagle Forum has

defended American’ sovereignty and promoted

adherence to the U.S. Constitution. Eagle Forum has

| Amicus files this brief with consent by all parties,

with 10 or more days’ prior written notice; the

parties’ written letters of consent have been lodged

with the Clerk. Pursuant to Rule 37.6, counsel for

amicus curiae authored this brief in whole, no

counsel for a party authored this brief in whole or in

part, and no person or entity — other than amicus, its

members, and its counsel — contributed monetarily to

the briefs preparation or submission.

repeatedly opposed unlawful behavior, including

illegal entry into and residence in the United States,

and supported enforcing immigration laws. For the

foregoing reasons, Eagle Forum participated as

amicus curtae before the California Supreme Court

in this litigation, and it has direct and vital interests

in the issues that petitioners present to this Court.

CONSTITUTIONAL BACKGROUND

This litigation implicates the “[p]ower to regulate

immigration,” which “is unquestionably exclusively a

federal power,” applied in the area of post-secondary

education. DeCanas v. Bica, 424 U.S. 351, 354 (1976)

(emphasis added). “Federal authority to regulate the

status of aliens derives from various’ sources,

including the Federal Government’s power ‘[t]o

establish [a] uniform Rule of Naturalization,’ its

power ‘[t]o regulate Commerce with foreign Nations,’

and its broad authority over foreign affairs.” Toll v.

Moreno, 458 U.S. 1, 10 (1982) (citations omitted). In

seeking to enforce federal immigration law against

state institutions, Martinez relies on two clauses of

the U.S. Constitution.

Under the Supremacy Clause, federal law

preempts state law whenever the two conflict. U.S.

Const. Art. VI, cl. 2. Courts have identified three

ways in which the Supremacy Clause can preempt

state or local laws: express preemption, “ficld” pre

emption, and implied or conflict pre-emption.

Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992).

In determining a_ statute’s preemptive scope,

congressional intent is “the ultimate touchstone.”

Wisconsin Dep't of Indus., Labor & Human Relations

»)

ha

v. Gould, 475 U.S. 282, 290 (1986). Under Santa Fe

Klevator and its progeny, however, courts often apply

a@ presumption against preemption for federal

legislation ino fields traditionally occupied by the

states. Rice v. Santa Ke Elevator Corp., 331 U.S. 218

230 (1947).

The Equal Protection Clause of the Fourteenth

Amendment provides that “No state shall ... deny to

any person within its) jurisdiction the equal

protection of the laws.” U.S. CONST. amend. XIV, §1

cl. 4. The Equal Protection Clause “essentially

direct[s] that all persons similarly situated ... be

treated alike,” City of Cleburne v. Cleburne Living

Center, 473 U.S. 482, 439 (1985), because even

under the rational-basis test the “Constitution

neither knows nor tolerates classes among citizens.”

Romer v. Kvans, 517 U.S. 620, 623 (1996) (interior

quotations omitted). Although Martinez’s equal

protection claim 1s not before the Court,? the equal

protection argument 1s relevant to preemption

STATUTORY BACKGROUND

This htigation concerns the interplay between

§68130.5 of California’s Education Code and two

sections of federal immigration law enacted in 1996

8 U.S.C. §1621 and §1623

§1621 and PRWORA

Enacted as part of the Personal Responsibility

and Work Opportunity Reconciliation Act

(“PRWORA”), §1621 provides that legal aliens are

The Universities did not appeal the ¢

Appeal’s remand of the Equal Protection 1

“not ehgible for any State or local public benefit,”

excepting certain) enumerated emergency-related

benefits, 8 U.S.C. §1621(a)-(b), unless §1621(d)’s

exception applies. 8 U.S.C. §1621(a), (d). In pertinent

part, a “State or local public benefit” includes

“postsecondary education .... benefit[s].” 8 U.S.C.

§$1621(c). The legislative history confirms that

Congress preempted all then-current benefits for

illegal aliens:

No current State law, State constitutional

provision, State executive order or decision of

any State or Federal court shall provide a

sufficient basis for a State to be relieved of

the requirement to deny benefits to illegal

aliens. Laws, ordinances, or executive orders

passed by county, city or other local officials

will not allow those entities to provide

benefits to illegal ahens.

H.R. CONF. REP. NO. 104--725, at. 383 (July 30, 1996).

In doing so, however, Congress allowed states to

enact new, post-PRWORA benefits for illegal aliens

under certain conditions.

Specifically, and notwithstanding §1621(a)’s

express preemption of the entire field of pre-

enactment benefits to illegal aliens, §1621(d)

authorizes states to adopt post-PRWORA statutes

that “affirmatively provide[]” such — otherwise-

proscribed benefits to illegal aliens:

A State may provide that an alien who 1s not

lawfully present in the United States is

eligible for any State or local public benefit

for which such alien would otherwise be

ineligible under subsection (a) of this section

only through the enactment of a State law

after August 22, 1996, which affirmatively

provides for such eligibility.

8 U.S.C. §1621(d). PRWORA also provided that “[i]t

is a compelling government interest to remove the

incentive for illegal immigration provided by the

availability of public benefits.” 8 U.S.C. §1601(6).

The Conference Report explains that “it continues to

be the immigration policy of the United States that

noncitizens within the Nation’s borders not depend

on public resources,” but also notes that “noncitizens

have been applying for and receiving public

benefits at increasing rates.” H.R. CONF. Rep. No.

104—725, at 378. In response to that development,

Congress found “that it 1s a compelling government

Interest to enact new eligibility and sponsorship

rules to assure that noncitizens become self-reliant

and to remove any incentive for illegal immigration.”

Id. (emphasis added)

§1623 and ILRIRA

Enacted as part of the Llegal Immigration

Reform and Immigrant Responsibility Act

(““IIRIRA”’), §1623 denies in-state postsecondary

tuition to illegal aliens on the basis of residence

unless non-resident. U.S. citizens are eligible for the

same benefit:

Notwithstanding any other proviston of law,

an alien who is not lawfully present in the

United States shall not. be eligible on the

basis of residence within a State (or a

political subdivision) for any postsecondary

education benefit unless a citizen or national

of the United States is eligible for such a

benefit (an no less an amount, duration, and

scope) without regard to whether the citizen

or national is such a resident.

8 U.S.C. §1623 (emphasis added)

As initially approved by the Senate, §1623’s

precursor apphed to any benefit, not only to

postsecondary education benefits:

BENEFITS OF RESIDENCE

Notwithstanding any other provision of law,

no State or local government entity shall

consider any ineligible alien as a resident

when to do so would place such alien in a

more favorable position, regarding access to,

or the cost of, any benefit or government

service, than a United States citizen who is

not regarded as such a resident.

S.1664, 104th Cong §20 1(a)(2) (1996) The

Committee Report explained that’ this section

provided that “State or local governments may not

treat an ineligible ahen as a resident, if such action

would treat the alien more favorably than a non

resident U.S. citizen.” S. Ree. No. 104-249, at 22

(Apr. 10, 1996). The floor debates in both the House

and Senate included un-rebutted statements from

sponsors that the bill would deny in-state tuition to

illegal aliens. See Pet. at 21

See 142 Cong. Rec. H11376-77 (daily ed. Sept 26,

1996) (Rep. Cox) (“jnjow if | move from California to

Indiana, [ am not going to get in-State benefits

{5

The Conference Report provides that the “House

recedes to Senate amendment section 201(a)(2) with

modifications” and that “[t]his section provides that

legal ahens are not eligible for in-state tuition rates

at public institutions of higher education,” H.R.

CONF. REP. NO. 104—828, at 240 (Sept. 24, 1996),

amending the section to its current form. Jd. at 134.

Although successfully reported out of conference, the

bill— H.R. 2202 - was not enacted. Instead, ITRIRA

subsequently was folded into an omnibus. bill,

reported without change, and enacted as part of that

omnibus bill. See H.R. CONF. REP. No. 104—863, at

688 (Sept. 28, 1996); PUB. L. No. 104-208, §505(a),

110 Stat. 3009, 3009-672 (Sept. 30, 1996).4

because [| am from California, but illegal aliens,

unless we pass this bill, are going to get in-State

tuition. Title V says illegal aliens are not eligible for

in-State tuition at public colleges, universities,

technical and vocational schools”); 142 Cong. Rec.

S11508 (daily ed. Sept. 27, 1996) (Sen. Simpson)

(“[w]ithout the prohibition on States treating illegal

aliens more favorably than U.S. citizens, States will

be able to make illegals eligible for reduced in-State

tuition at taxpayer-funded State colleges”); 142

Cong. Rec. S11713 (daily ed. Sept. 28, 1996) (Sen.

Simpson) (“fijllegal aliens will no longer be eligible

for reduced in-State college tuition”).

‘ This Court routinely relies on legislative history

from predecessor bills, Begrer v. I.R.S., 496 U.S. 53,

66 & n.6 (1990), and has relied on IIRIRA’s

Conference Report. INS v. St. Cyr, 533 U.S. 289, 318

f

§68130.5 and AB 540

Cahfornia precludes illegal aliens from

establishing “residence” for tuition purposes. CAL

Epuc. CoObDE §68062(h). For non-resident U.S

citizens, California ties minors to their parents’

residence, id. §§68061, 68062(f)-(g), and conditions

adults’ residence on the “union of act and intent”

that they will remain in California “when not called

elsewhere for labor or other special or temporary

purpose,” “return[ing to California] in seasons of

repose.” Jd. §68062(b), (d). For U.S. citizens,

California requires one year or more of California

residence to qualify for “resident” tuition. Jd. 868017.

In Assembly Bill 540 (“AB 540”), California

provided in-state resident tuition to certain students

not otherwise qualifying as state residents. 2001 Cal.

Stat. ch.814 (enacted as CAL. EDUC. CODE §68130.5).

Beyond its alien-based provisions, AB 540 poses

three requirements to qualify for in-state tuition:

(1) attending a California high school for at least

three years; (2) graduating from a Califormia high

school or attaining the equivalent; and (3) enrolling

in a covered California university or college not

earlier than the fall of 2001. CAL. EDUC. CODE

$68130.5(a)(1)-(3). With respect to ahens, AB 540

denies in-state tuition for any alien lawfully present

in the Umited States, 1rd. §68130.5(a), but allows

“person[{s] without lawful immigration status” (1.e.,

illegal aliens) to qualify for in-state resident tuition

(2001). As such, JIRIRA’s Conference Report 1:

legislative history for §1¢

by “filing of an affidavit with the [relevant school]

stating that the student has filed an application to

legalize his or her immigration status or will file an

application as soon as he or she is eligible to do so.”

Id. §68130.5(a)(A).

Cahfornia’s Legislature found and declared that

AB 540 “does not confer postsecondary education

benefits on the basis of residence within the meaning

of [8 U.S.C. §1623].” AB 540, §(a)(5). As explained in

its legislative history, however, AB 540 enables

qualifying nonresidents to pay the in-state “resident”

tuition otherwise available only to residents:

“Qualifies longterm California residents, as specified,

regardless of citizenship status, for lower ‘resident’

fee payments at the [CCC] and the [CSU].” Assembly

Higher Education Committee, Concurrence in Senate

Amendments of AB 540 (2001-2002 Reg. Sess.), at 1

(Sept. 7, 2001) (emphasis added) (“2001 Assembly

Concurrence’).

Enacted the following year, §68130.7 immunizes

California schools from retroactive damage awards.

further tying §68130.5 to residence in California

“Existing law qualifies specified long-term California

residents, regardless of citizenship status, ‘or lower

resident’ fees at CSU and CCC.” Assembly Higher

Education Committee, Concurrence in Senate

Amendments of AB 1543 (2001-2002 Reg. Sess.), at 1

(Jan. 24, 2002) (emphasis added) (“2002 Assembly

Concurrence’). Indeed, until changing course without

explanation, Governor Davis understood that a

predecessor bill violated §1623. Governor's Veto

Message, AB 1197 (2001) reprinted in Vol. 1 Clerk’:

Transcript at 59-60 (“Veto Message’).

STATEMENT OF FACTS

The facts are not disputed. U.S. citizens who are

not California “residents” must pay out-of-state

tuition at the California public universities and

colleges covered by §68130.5. By contrast, illegal

aliens living in California long enough to have

attended and graduated from high school qualify for

in-state “resident” tuition, without ever having

established legal “residence” in California

[In the California Supreme Court, the University

of California acknowledged that the record showed

that 390 students out of the approximately 1,500

students who qualified for in-state tuition under

$68130.5 were illegal aliens, making ulegal aliens

26.0 percent of the benefited class. Relying on

judicially noticeable data from the California

Department of Finance and the federal Department

of Homeland Security, Eagle Forum demonstrated

that California’s illegal-alien population and total

population were approximately 2 million and 38

million, respectively, with ulegal aliens’ constituting

approximately 5.26 percent of the state population.:

On the merits, amicus Eagle Forum supports

Martinez on the two questions presented (Sections

Ill and IV, tunfra). In addition, Eagle Forum

Amicus curiae Eagle Forum will lodge th

‘ ry

relevant data with the Clerk pursuant to Rule 32

|

highlights two threshold issues (Sections I[ and [I]

infra) that further justify this Court’s review.

I. Although the California Supreme Court did

not reach the presumption against preemption, this

case presents two presumption-related bases for

review. First, §1621(a) cleared the field of prior state

involvement, and this Court should rule on whether

such legislative field-clearing provisions negate any

otherwise-applicable judicial presumption against

preemption. Second, this case presents’ an

opportunity to clarify the presumption’s application

to federal interests (incentives for illegal aliens), not

the impacted state interest (tuition or education).

II. Although the California Supreme Court did

not address causes of action, this case presents

questions about redressing ongoing violations of both

federal laws and federal rights.

III. Until relatively recently (in 1988), 28 U.S.C

§1257 required this Court’s review when a state's

highest court upheld state law against charges of

federal preemption. Even if no longer required,

review here is warranted by the need to enforce

federal law in an area of exclusive federal concern,

the demonstrated confusion among the states, and

the significant liability to schools — over $200 million

annually in California alone — if Martinez’s position

eventually prevails.

[V. By ignoring conflict preemption, California

has rejected not only federal law but also the

Supremacy Clause itself. California’s clear error

amounting to partial secession— requires this

Court’s review. While analytically the last point in

L]

the argument, this point is absolutely critical to our

federal system.

I. §68130.58 DOES NOT TRIGGER THE

PRESUMPTION AGAINST PREEMPTION

The California Supreme Court did not rule on

the “presumption against preemption,’ App. laa,

under which courts assume that “the historic police

powers of the States [a]re not to be superseded

unless that was the clear and manifest purpose of

Congress.” Santa Fe Elevator, 331 U.S. at 230. Given

the 1996 enactment of §1621 and §1623, however,

the congressional purpose was “clear and manifest”

with respect to pre-1996 benefits for illegal aliens,

leaving no viable state laws in the preempted field

until California and a few other states re-entered the

field, post- 1996.

As this Court recently recognized, Santa Fe

Elevator applies only if “the field which Congress is

said to have pre-empted has been traditionally

occupied by the States” and “not ... when the State

regulates in an area where there has been a history

of significant federal presence.” U.S. v. Locke, 529

U.S. 89, 107-08 (2000) (interior quotations omitted);

accord Buckman Co. v. Plaintiffs’ Legal Comm., 531

U.S. 341, 347 (2001). More recently, this Court

downplayed the significance of federal presence in

the field and held that the “presumption [against

preemption] thus accounts for the historic presence

of state law but does not rely on the absence of

federal regulation.” Wyeth v. Levine, 129 S.Ct. 1187,

1194-95 & n.3 (2009). As Wyeth explained, the

presumption applies— even notwithstanding long

term federal regulation — because “respect for the

States as independent sovereigns in our federal

system leads [courts] to assume that Congress does

not cavaherly pre-empt [state law].” Wyeth, 129 S.Ct

at 1195 n.3 (interior quotations omitted). In other

words, states must presently occupy the field for th

presumption to apply.

In analyzing and applying the presumption

against preemption, courts must first determine th

field at issue. For example, Locke concerned thi

environment in the form of water quality, but

analyzed the narrow maritime-commerce field. Locke,

529 U.S. at 106-07; accord Geier v. Am. Honda Motor

Co., 529 U.S. 861, 910 (2000) (applying presumption

to “common-law no-airbag suits,” not to all tort law

or to public health and safety). The inquiry focuses

on the federal law, not the state law, so that a

decision by Massachusetts to boycott companies that

do business with Burma is preempted by U.S. foreign

policy with respect to Burma sanctions

notwithstanding Massachusetts’ proprietary concern

with how Massachusetts spends its own money

Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363

373-74 & n.8& (2000) (declining to address

presumption’s application to Burma trade sanctions

not to states’ discretion to spend state funds). Here,

the preempted field is reduced in-state tuition to

illegal aliens, within the context of the federal

government's attempt to control illegal immigration

The field is not higher education generally or even

tuition specifically

In that field, §1621l(a) unambiguously cleared

away any pre-1996 state involvement. By contrast,

Santa Fe Elevator cited a 1944 decision where 21

states (of 48) regulated warehouses and 47 states

had adopted the Uniform Warehouse Receipts Act

Santa Fe Elevator, 331 U.S. at 230 (citing Davies

Warehouse Co. v. Bowles, 321 U.S. 144, 148-49

(1944)). Under those circumstances, the presumption

applied to prevent warehouses’ coming under federal

regulation as “public utilities” without any apparent

congressional consideration of the issue. Davies

Warehouse, 321 U.S. at 148-49.

Although ten states have entered the preempted

held since §1621’s enactment, Pet. at 7 n.5, none

entered the field before Congress enacted §1623.

There is no evidence, much less compelling Davies

Warehouse evidence, that Congress considered either

§$1621(d) or §1623 to involve a field that the states

already occupied. In essence, §1621(a) eliminated all

states’ prior entry into the field of in-state tuition for

illegal aliens by “clearly and manifestly” preempting

all pre-1996 postsecondary education benefits for

illegal aliens. 8 U.S.C. §1621(a). For any post-1996

state entry into the field, Congress enacted §1621(d)

and §1623 to regulate prospectively in a field not

occupied by the states. 8 U.S.C. §§1621(d), 1623. By

first clearing the field, then regulating it, Congress

achieved a sort of retroactivity, which “often serve[s|

entirely ... legitimate purposes, fe.g.,] to prevent

circumvention of a new statute in the interval

immediately preceding its passage, or simply to give

comprehensive effect to a new law Congress

considers salutary.” Landsgra/

511 US 244, 267-68 (1994).

Il. MARTINEZ CAN SUE UNDER BOTH EX

PARTE YOUNG AND §1983

When this litigation returns to the trial court

Martinez can proceed under both 42 U.S.C. §1983

and the officer-suit fiction of Ex parte Young. By way

of background, the Court of Appeal found that

Martinez failed to preserve the issue of whether

$1623 creates an enforceable private right of action

but nonetheless ordered the trial court to allow

Martinez to amend the complaint with respect to

equal-protection issues, itd. 99a, and _ reversed

dismissal with respect to Martinez’s claims for

preemption under §1623 and for injunctive and

declaratory relief. App. 9la, 109a. The Court of

Appeal did not clarify the specific bases on which the

remanded aspects of this litigation would proceed

and the California Supreme Court did not addre:

the issue.

“TT ]wo [post Civil War] statutes, together, afte:

1908, with the decision in Ex parte Young,

established the modern framework for federal

protection of constitutional rights from state

interference.” Perez v. Ledesma, 401 U.S. 82, 106-07

(1971). First, the Civil Rights Act of 1871, 17 Stat

13, provided what now are 42 U.S.C. §1983 and 28

U.S.C. §1343(3). Id. Second, the Judiciary Act of

1875, 18 Stat. 470, provided what now is 28 U.S.C

81331. dd. Both halves of this two-pronged

framework are available in state and federal court

the former by concurrent jurisdiction, Haywood

Drown, 129 8.Ct. 2108, 2114 (2009) (“state courts as

well as federal courts are entrusted with providing a

forum for the vindication of federal rights violated by

state or local officials acting under color of state

law’), and the latter because California courts

recognize the Ex parte Young doctrine. Brock v

Supertor Court, 12 Cal.2d 605, 609-10 (1939).

A. Martinez Can Sue under Ex parte Young

The Universities cannot contest that Martinez

has a cause of action to enforce §1623’s preemptive

scope by enjoining the defendants’ ongoing violations

of federal law. See, e.g., McCarthy ex rel. Travis |

Hawkins, 381 F.3d 407, 415 (5th Cir. 2004) (it is

“misleading[]” and a “misinterpretation” with “no

support’ to suggest that “that Plaintiffs cannot

proceed under Ex parte Young unless this court first

determines that their claims rely on federal laws

that are both constitutional and enforceable against

the State”); /llinois Ass'n of Mortg. Brokers v. Office

of Banks & Real Estate, 308 F.3d 762, 765 (7th Cir

2002) (“[;jJt 1s not necessary for us to determine

whether the” federal statute “create[s] rights

enforceable under §1983” because a court’s general

jurisdiction suffices to enter injunctive relief). Thus,

with or without §1983, Martinez has a cause of

action for equitable and declaratory relief against

any ongoing requirements to pay elevated tuition (or

educational debt) to California against federal law

B. Martinez Can Sue under §1983

Martinez also can pursue claims under §1983

Although the Universities have argued that the law

of-the-case doctrine would prevent Martinez from

1G

S 15 lt _ ih aoct

ursulIng preemptvlol undel ee ee, tae ( Cl

hat a previous ruling has become law of the case ha

no application except as to the decisions of appellate

Courts.” Lawrence v. Ballou, 37 Cal. 518, 521 (1869

(emphasis added). “Under the doctrine of the law

the case, a principle or rule that a reviewing cou

states in an opinion and that is necessary to tl

reviewing courts decision must ) ipplie

throughout all later proceedings in the same casi

both in the trial court and on a later appeal.” Peop!

Jurado, 38 Cal.4th 72, 94 (2006) (emphasis added

Because the Court of Appeal did not reach the merit

of the §1983 issue — and the merits a fortiori wi

|

. .

i } tr 2s

unnecessary LO 1 PPA EECALO U .

ise attached.

t SOR ’

Significantly preempts §681

purported limit on damages: “although States ret

substantial leeway to establish the contours of thei

judicial systems, they lack authority to nullify

federal right or cause of action they believe

inconsistent with their local policies.” /laywood

S.Ct. at 2114; accord Manta Management Corp

City of San Bernardino, 43 Cat 4th 400, 406

(2008). By purporting to disallow damages

$1983 allows, §68130.7 clearly constitute

preempted “state law that is inconsistent

federal law.” Manta Management Corp., 43 C

at 406-07. As such, California state court

enforce §$68130.7 against Martinez’s claims

I1l.§1623 EXPRESSLY PREEMPTS §68130

section 1623 unquestionably defines tw

}

mary } 1 peel

1. |

public universities in another state and illegal ali

who have been living in that state for several years

ind requires that the former class receive in-state

tuition if the latter class receives it. See Shapiro

Thompson, 394 U.S. 618, 627 (1969) (overruled

part on other grounds, Kdelman v. Jordan, 415 U

651, 670-71 (1974)) (discussing creation of statutory

classes on the basis of residence). For preemption

the question 1s how §68130.5’s two non

purposes,

namely, those who attended

domiciliary classes

and graduated from California high = schools

those who did_ not intersec with

federal classes

fo a_great extent, preempt

protection overlap. For equal-protection purpost

the question is whether §68130.5’s two non

domiciliary classes discriminate either invidiously

see, e.g., Takahashi v. Fish & Game Comm'n, 334

U.S. 410, 418-419 (1948) (citizenship or ahenage)

Shapiro, 394 U.S. at 634 (duration of living in-state)

Vlandis v. Kline, 412 U.S. 441, 450 n.6 (1973) (right

to travel), or irrationally. See, e.g., Heller v. Doe, 509

U.S. 312, 319-320 (1993). As analyzed in this Section

preemption analysis draws on equal protection

falls within

the

analysis to determine whether §68130.5

$1623's preemptive scope

\ §1623 Alone

§68130.5

‘he parties dispute the antecede modified

statutory phrase “on the basis of residence,’

ompare Pet. at 16-25 with App. 1l7a-18a, without

nsidering the breadth of that statutory phrase. Bi

at Statutory ind WConstitutiona

£

Scheme Expressly Preempt §68130.5

untenabl distinctions, Americar

Patterson. 96 S ¥ ’] (1982

nsider legislation as a whole, Offshore

Tallentire, 477 U.S. 207, 220-21

‘interpret the statute as a symmetrical

ind coherent regulatory scheme a

ll parts into an harmonious whole

Williamson Tobacco Corp., 529

(2000) (anterior « s; omitted)

issuming arguendo !

uthorize §68130.5, the more-specifi

provision which notwithstand

.

th ~.]

Le Te

|

ther provision

&

68130.5. 8 U.S

laims

ombuine

Clause iss

(197] (equal-protection and preemptior

irgument based on Social Security Act definition

yndent child” for student aid); Moreno,

(citing Michael J. Perry, Modern

and Appraisal

and Davi

the federal policy authorizing the alien's residen

in the United States,” an area where the “federa

government's jurisdiction . is exclusive.” Perry

Modern Equal Protection, 79 COLUM. L. REV. at 1063

For that reason, the “Court’s practice of disfavoring

state laws disadvantaging aliens is best understood

and justified, therefore, in terms of the supremacy

clause principle that no state may take action that

would interfere with and so 1s presumptively

precluded by — congressional immigration policy.” Id

The same reasoning applies’ here federa

immigration law has created a class (non-resident

U.S. citizens) with in-state tuition rights equal to (or

ereater than) any such rights of illegal aliens living

in a state. By discriminating in favor of tllegal alten

against a statutory class of U.S. citizens, California

violates both the Supremacy Cl] Kqu

»

rotection Clause

|

r

i

.

;

Finally, although the lI

the California Legislature’s conclusory, self-s¢

finding that §68103.5 complies with §1623, this

Court has rejected the “aberrational doctrine” that

“state lemslatures [can] nullify nearly all unwanted

federal legislation by simply publishing a legislativ

committee report articulating some state interest

policy other than frustration of the federa

objective.” Perez v. Campbell, 402 U.S. 637, 651-:

(1971). Indeed, California’s Legislature

undercut its credibility by hedging its bets

2 aaa }

If a state court finds that Section 681.

s unlawful, the court may order, as equital

that th . ee

t ¢

subjec iawsult terminate

waiver awarded under that statute

provision, but no money damages, tuitio1

refund or waiver, or any other retroacti'

relief, may be awarded

AL. Ebuc. CODE §68130.7. In essence

icknowledges that the Universities may

litigation and tries to ameliorate the impact of losing

( The Legislative History Supports

Express Preemption

Although the Universities asked the lower court

ignore §1623’s conference report, courts “look{] |

legislative history and other extrinsic material when

required to interpret a statute [that] 1s ambiguous

Oklahoma v. New Mexico, 501 U.S. 221, 236 n

(1991). “When aid to construction of the meaning o

words, as used in the statute, 1s avaulable, ther

certainly can be no rule of law which forbids its uss

however clear the words may appear on superficial

examination.” U.S. v. American Trucking Ass’ns.

Inc., 310 U.S. 5384, 543-44 (1940) (footnote and

interior quotations omitted, emphasis added)

Moreover, a conference report — even one partially at

dds with “[t]he statute’s plain language and prior

legislative history” nonetheless is “due great

weight.” National Ass'n of Greeting Card Publishers

U.S. Postal Serv., 462 U.S. 810, 833 & n.28 (1983

Chis Court clearly may consult legislative history

Given the legislative history's unanimous

inambiguous support for Martinez, this is not a ca

where “legislative history is itself often murky

t onnteadin at )

A

into “an exercise in looking over a crowd and picking

out your friends.” Exxon Mobil Corp. v. Allapattah

Services, Inc., 545 U.S. 546, 568-69 (2005) (interior

quotations omitted). If there were legislative history

to support the Universities, they would cite it.

IV. FEDERAL LAW IMPLIEDLY PREEMPTS

§68130.5, NOTWITHSTANDING EXPRESS

PREEMPTION AND SAVINGS CLAUSES

Even if neither §1623 nor §1621 expressi

preempts §68130.5, federal immigration law

nonetheless would impliedly preempt §68130.5 fo1

conflicting with the “compelling ... [federal] interest

to remove the incentive for illegal immigration

provided by the availability of public benefits.” 8

U.S.C. §1601(6); H.R. CONF. REP. No. 104-725, at

378. The California Supreme Court rejected conflict

preemption here, based on the presence of express

preemption and a savings clause, App. 30a-3la

committing clear error inconsistent with this Court's

recent preemption cases. In doing so, the California

Supreme Court nullified not only an act of Congres

but also the Supremacy Clause itself

Under conflict preemption, he Suprema

Clause “nullifies” both “conflicts that make

impossible for private parties to comply with bot!

state and federal law” and “conflicts that prevent o1

frustrate the accomplishment of a federal objective

Geter, 529 U.S. at 873-74 (interior quotations

omitted, emphasis added); cf. Crosby, 530 U.S. at 373

n.6 (because “the categories of preemption are not

rigidly distinct],] ... field pre-emption may b

understood as a ecies of conflict pre-empti

interior quotations omitted). Conflict preemption

applies either where “significant conflict exists

between an identifiable federal policy or interest and

the foperation] of state law” or where “the

application of state law would frustrate specific

objectives of federal legislation.” Boyle v. United

Technologies Corp., 487 U.S. 500, 507-08 (1988)

(interior quotations omitted, alteration in original)

To emphasize, impossibility is not requtred:

Frustration suffices. Moreno, 458 U.S. at 16.

As Martinez explains, Pet. at 28-33, California’s

position ignores this Court's holding in Geter that

conflict preemption applies, notwithstanding express

preemption and savings clauses. Geter, 529 U.S. at

873; Buckman, 531 U.S. at 352. California’s rejection

of both federal law and the Supremacy Clause itself

requires this Court’s supervision.

In a dual typographical and interpretive erro!

the California Supreme Court cites §1621(c) as

expressly allowing California to provide in-stat

tuition to illegal aliens. App. 3la. First, the correct

citation is §1621(d). Second, §1621(d) is not a savings

clause: it did not “save” existing law. Quite th

contrary, §1621(a) expressly preempted all then

existing state laws. 8 U.S.C. §1621(a); H.R. CONF.

REP. No. 104—725, at 383. At best, §1621(d) is a safe

harbor for post-enactment state laws. Moreover, for

tuition, the later-enacted §1623— like §1621(a)

ipplies “notwithstanding any other provision of law

3 U.S.C. §1623. Bedrock principles of statutory

istruction trebly preclude §1621(d)’s limiting tl

more-specific, later-ena

notwithstanding §1621(d)

Significantly, the federal inte

area of exclusive federal concern

The Federal Government ha

constitutional] powers 1n determining wh:

aliens shall be admitted to the United Stat

land] regulation of their conduct befor

naturalization/.] Under the Constitution th

states are granted no such powers; they cat

neither add to nor take from the condition

lawfully imposed by Congress’ upo!

admission [and] residence of alien

United States or the several states

Takahashi, 334 U.S. at 419 (citations omitt

emphasis added); Moreno, 458 U.S. at 10. For confl

in areas of “uniquely federal interest,” the “conflict

with federal policy need not be as sharp

which must exist for ordinary pre-emption

487 U.S. at 507-08 (interior quotations omitted)

As indicated in Section I, supra, the field he

ulegal aliens’ eligibility for beneficial treatment

a-vis U.S. citizens, under compelling federal intere

in removing any incentives that beneficial treatmen

provides to illegal aliens. 8 U.S.C. §1601(6); H.R

CONF. REP. No. 104—725, at 378. Using high schos

attendance in lieu of residence easily frustrates th

federal interest. Certainly, §68130.5 frustrates that

interest more than discrimination against lega

aliens frustrated their favorable federal

treatment in Moreno, supra. Even if §1623 dos

— Aa

expressly preempt Californi tuit