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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0934%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 1032

## Text

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
nen 2 ND ais eas aenceomnencag skinned i
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
SB USAC. BG incon csanscsenncnsestevcsseuetee ee
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0934%3A4. Public record. Not legal advice.