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Arizona Amicus 102810

Arizona Amicus 102810

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Number of Pages:18

Date Created:June 1, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Amici, Representatives, enforcement, house, immigration, Pennsylvania, senate, Illegal Immigration, colorado, arizona, Congress, government, federal, State, Supreme Court, states, district, united, court, EPA, IRS, ICE, CIA


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NO. 10-16645
 UNITED STATES COURT APPEALS
 FOR THE NINTH CIRCUIT
 
The United States America, )Appeal from the United States
)District Court for the District )Arizona Plaintiff-Appellee, ))No.: 2:10-cv-01413-SRB
)State Arizona; and Janice Brewer,
)Governor the State Arizona, her
Official Capacity,
Defendants-Appellants.
 
BRIEF AMICI CURIAE STATE LEGISLATORS FOR LEGAL IMMIGRATION, DARYL METCALFE, SCOTT BEASON, PAUL SANFORD, FRANK GLIDEWELL, JON WOODS, ANDY BIGGS, FRANK ANTENORI, JACK HARPER, TED HARVEY, JAMES KERR, KENT LAMBERT, KEVIN LUNDBERG, B.J. NIKKEL, MARK SCHEFFEL, DAVID SCHULTHEIS, SPENCER SWALM, ANDREW RENZULLO, JORDAN ULERY, FRAN WENDELBOE, PHIL HART, STEVEN THAYN, MIKE DELPH, ERIC KOCH, CINDY NOE, DOUGLAS THOMAS, DON DWYER, JR., PAT MCDONOUGH, KIM MELTZER, DAVE AGEMA, STEVEN PALAZZO, EDWARD BUTCHER, TONY FULTON, CHARLIE JANSSEN, ALISON LITTELL MCHOSE, JAMES GULLEY, COURTNEY COMBS, MIKE CHRISTIAN, RANDY TERRILL, KIM THATCHER, JIM COX, THOMAS CREIGHTON, MARK MUSTIO, SCOTT PERRY, MICHAEL PITTS, LEO BERMAN, BETTY BROWN, DAN FLYNN, STEPHEN SANDSTROM, MATTHEW SHEA, WALTER DUKE, AND JOHN OVERINGTON SUPPORT APPELLANTS AND REVERSAL 
Geoffrey Kercsmar KERCSMAR FELTUS PLLC 6263 Scottsdale Road, Suite 320 Scottsdale, 85250 
(480) 421-1001 
Attorneys for Amici Curiae 
TABLE CONTENTS
 

TABLE AUTHORITIES. 

STATEMENT AMICI CURIAE.
 
ARGUMENT....... ....................................	 
SB1070 and OurFederalistSystem...........................3
 
II.	 
Federal Law Provides For and Relies the Cooperation
 States and Localities Immigration Enforcement
 CERTIFICATE COMPLIANCE PURSUANT
 CERTIFICATE SERVICE
 
CONCLUSION.
 
FED.R.APP. 
32(a)(7)(C) AND CIRCUIT RULE 32-1
 
TABLE AUTHORITIES
 
Cases 
Atascadero State Hosp. Scanlon, 473 U.S. 234 (1985). Canas Bica, 424 U.S. 351 (1976).
 
Gonzalez 
Peoria, 722 F.2d 468 (1983)
 
Gregory 
Ashcroft, 501 U.S. 452 (1991). Jose C., 198 P.3d 1087 (Calif. 2009) .6,
 
Lane County Oregon, U.S. (1869)
 
Plyler 
Doe, 457 U.S. 202 (1982).
 
Printz 
United States, 521 U.S. 898 (1997).
 
Tafflin 
Levitt, 493 U.S. 455 (1990).
 
Texas 
White, U.S. 700 (1869)
 
Toll 
Moreno, 458 U.S. (1982)
 
U.S. Locke, 529 U.S. (2000).
 
U.S. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001). .10
 
U.S. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999).
 
Constitutional Provisions and Statutes 
U.S. Const. Art. 
 
U.SConst.Amend.X 
U.S.C. 1252c. U.S.C. 1324(c). U.S.C.  1373. .7, U.S.C.  1357(g) 10, U.S.C.  1644. .7,
 
Other Authorities 
THEFEDERALIST (C.Rossiter ed.1961).
 
Kris Kobach, The Quintessential Force Multiplier: The Inherent 
Authority Local Police Make Immigration Arrests, Alb.L.Rev.179 (February 2006) Rep.No. 104-249 (1996)
 
U.S. Department Justice, Office Legal Counsel, Non-preemption the authority state and local law enforcement officials 
arrest aliens for immigration violations (dated April3,2002).
 
STATEMENT AMICI CURIAE 
State Legislators for Legal Immigration nationwide coalition state 
legislators who are committed seeking full cooperation among the federal, state 
and local governments eliminating all economic attractions and incentives 
(including, but not limited to, public benefits, welfare, education and employment 
opportunities) for unlawfully present aliens enter and remain the United 
States. Founded Pennsylvania State Representative Daryl Metcalfe, the 
coalition comprised lawmakers from across the nation who are committed 
federalism and state sovereignty.1 
The following Legislators from States join this amici brief: 
Rep. Daryl Metcalfe (Pennsylvania House Representatives, District 12); Sen. Scott Beason (Alabama State Senate, 17th District); Sen. Paul Sanford (Alabama State Senate, 7th District); Rep. Frank Glidewell (Arkansas House Representatives, District 63); Rep. Jon Woods (Arkansas House Representatives, District 93); Rep. Andy Biggs (Arizona House Representatives, District 22); Sen. Frank Antenori (Arizona Senate, District 30); Sen. Jack Harper (Arizona Senate, District 4); Sen. Ted Harvey (Colorado State Senate, District 30); Rep. James Kerr (Colorado House Representatives, House District 28); Rep. Kent Lambert (Colorado House Representatives, District 14); Sen. Kevin Lundberg (Colorado State Senate, District 15); Rep. B.J. Nikkel (Colorado House Representatives, District 49); Sen. Mark Scheffel (Colorado State Senate, District 4); Sen. David Schultheis (Colorado State Senate, District 9); Rep. Spencer Swalm (Colorado House Representatives, District 37); Rep. Andrew Renzullo (New Hampshire House Representatives, District 27); Jordan Ulery (New Hampshire House Representatives, District 27); Rep. Fran Wendelboe (New Hampshire House Representatives, District 1); Rep. Phil Hart (Idaho House Representatives, House District 3); Rep. Steven Thayn (Idaho House Representatives, House District 11A); Sen. Mike Delph (Indiana State Senate, addition bringing unique perspective the case, Amici view 1070 essential tool address lawbreaking within their States. addition, Amici are concerned the Federal Governments attack Arizona and 1070 the same time that many States, including those represented Amici, are grappling with the severe costs imposed the presence unlawfully present aliens. 
District 29); Rep. Eric Koch (Indiana House Representatives, House District 65); Rep. Cindy Noe (Indiana House Representatives, House District 87); Rep. Douglas Thomas (Maine House Representatives, District 24); Del. Don Dwyer, Jr. (Maryland House Delegates, District 31); Del. Pat McDonough (Maryland House Delegates, District 7); Rep. Kim Meltzer (Michigan House Representatives, 33rd District); Rep. Dave Agema (Michigan House Representatives, 74th District); Rep. Steven Palazzo (Mississippi House Representatives, District 116); Rep. Edward Butcher (Montana House Representatives, House District 29); Sen. Tony Fulton (Nebraska State Legislature, District 29); Sen. Charlie Janssen (Nebraska State Legislature, District 15); Assemblywoman Alison Littell McHose (New Jersey Assembly, District 24); Rep. James Gulley (North Carolina House Representatives, District 103); Rep. Courtney Combs (Ohio House Representatives, 54th House District); Rep. Mike Christian (Oklahoma House Representatives, House District 93); Rep. Randy Terrill (Oklahoma House Representatives, House District 53); Rep. Kim Thatcher (Oregon House Representatives, House District 25); Rep. Jim Cox (Pennsylvania House Representatives, District 129); Rep. Thomas Creighton (Pennsylvania House Representatives, District 37); Rep. Mark Mustio (Pennsylvania House Representatives, District 44); Rep. Scott Perry (Pennsylvania House Representatives, District 92); Rep. Michael Pitts (South Carolina House Representatives, District 14); Rep. Leo Berman (Texas House Representatives, House District 6); Rep. Betty Brown (Texas House Representatives, House District 4); Rep. Dan Flynn (Texas House Representatives, House District 2); Rep. Stephen Sandstrom (Utah House Representatives, District 58); Rep. Matthew Shea (Washington House Representatives, 4th District); Del. Walter Duke (West Virginia House Delegates, 54th District); Del. John Overington (West Virginia House Delegates, 55th District)
This amici curiae brief, while supporting the Appellants, primarily for the 
purpose assisting the Court. All parties have consented the filing this brief. 
ARGUMENT 1070 and Our Federalist System. 
As every schoolchild learns, our Constitution establishes system dual 
sovereignty between the States and the Federal Government. Gregory 
Ashcroft, 501 U.S. 452, 457 (1991). also axiomatic that under our federal 
system, the States possess sovereignty concurrent with that the Federal 
Government, subject only limitations imposed the Supremacy Clause. Id. 
(citing Tafflin Levitt, 493 U.S. 455, 458 (1990)).  Hence, while the States have 
surrendered certain powers the Federal Government, they retain residuary and 
inviolable sovereignty. Printz United States, 521 U.S. 898, 919 (1997) 
(quoting THE FEDERALIST No. (J. Madison)). The Supreme Court has described 
this constitutional scheme dual sovereigns follows: 
The people each State compose State, having its own government, and endowed with all the functions essential separate and independent existence, Without the States union, there could such political body the United States.  Not only, therefore, can there loss separate and independent autonomy the States, through their union under the Constitution, but may not unreasonably said that the preservation the States, and the maintenance their governments, are much within the design and care the Constitution the preservation the Union and the maintenance the National government. The Constitution, all its provisions, looks indestructible Union, composed indestructible States.  
Gregory, 501 U.S. 457 (citing Texas White, U.S. 700 (1869), quoting Lane County Oregon, U.S. (1869)).  This residual state sovereignty demonstrated the Constitutions conferral upon Congress not all government powers, but only discrete, enumerated powers. Printz, 521 U.S. 919 (citing Art.  and Amend. X). James Madison described: 
The powers delegated the proposed Constitution the federal government are few and defined. Those which are remain the State governments are numerous and indefinite. The powers reserved the several States will extend all the objects which, the ordinary course affairs, concern the lives, liberties, and properties the people, and the internal order, improvement, and prosperity the State. THE FEDERALIST No. 45, pp. 292-93 (C. Rossiter ed. 1961). 
The principal purpose this federalist system act check abuse government power. This constitutionally mandated balance power between the States and the Federal Government was adopted the Framers ensure the protection our fundamental liberties. Atascadero State Hospital Scanlon, 473 U.S. 234, 242 (1985). The Supreme Court has explained that these twin powers will act mutual restraints only both are credible. Gregory, 501 U.S. 459. Significantly, only through the Supremacy Clause that the Federal 
Government may impose its will the States areas traditionally regulated 
the States  extraordinary power federalist system. Id. 460.  The Court presumes, however, that the Federal Government does not exercise such power lightly. Id. within this carefully constructed federal system that 1070 must viewed. Although the federal government has the power regulate immigration, the mere fact that aliens are the subject state statute does not render regulation immigration and exclusively within the Federal Governments purview. Canas Bica, 424 U.S. 351, 352-353 (1976). The regulation immigration nothing more than a determination who should should not admitted into the country, and the conditions under which legal entrant may remain. Id. 355; Toll Moreno, 458 U.S. (1982) (The authority control immigration the power admit exclude aliens.). 1070 plainly does not impose new restrictions the manner which alien enters the country. Nor does impose any conditions under which lawfully present alien may remain the country. 1070 simply codifies already existing authority allowing states enforce certain provisions federal law. 1070 falls within the well-recognized authority State our federalist system. For instance, this Court has plainly held that nothing federal 
law precludes State locality from enforcing the criminal provisions 
immigration law.  Gonzalez Peoria, 722 F.2d 468, 476 (1983).  Similarly, the Supreme Court has plainly held that the States have some authority act with respect illegal aliens, least where such action mirrors federal objectives and furthers legitimate state goal. Plyler Doe, 457 U.S. 202, 225 (1982) (citing Canas Bica, 424 U.S. 351 (1975)). addition, 1070 not obstacle the enforcement federal immigration law. 1070 does not conflict with stand as obstacle the accomplishment and execution the full purposes and objectives Congress. 
U.S. Locke, 529 U.S. 89, 109 (2000). 1070, fact, mandates compliance with the federal immigration laws and therefore cannot stand[] obstacle [the] accomplishment and execution congressional objectives. Jose C., 198 P.3d 1087, 1100 (Calif. 2009). 1070 mirrors Congress objectives and furthers the legitimate goals set forth Congress. 
For these reasons, 1070 does not violate the Supremacy Clause and not preempted federal law, entirely consistent with the dual system sovereignty between the States and the Federal Government. 1070 falls within the well-recognized authority the States, does not regulate immigration, and way obstacle the enforcement federal immigration law. 
II.	 Federal Law Provides For and Relies the Cooperation States and Localities Immigration Enforcement. 
Congress has made plain its view the dual role that states and localities play assisting federal officials with immigration enforcement efforts. fact, rather than excluding the States from immigration enforcement, federal law specifically provides that States and the Federal Government will cooperate this effort. While the district court generally ignores this important cooperation, Congress has made clear that views the assistance states and localities essential successful enforcement the nations immigration laws. 
The most obvious examples this cooperative relationship are set forth two federal statutes, U.S.C.  1373 and 1644, both which constitute unmistakable federal mandates requiring cooperation through the free flow information regarding persons immigration status.  Section 1373(a) expressly states that state and local government entities may not prohibit any way restrict government official from sending receiving from [federal immigration authorities] information regarding the citizenship immigration status, lawful unlawful, any individual. U.S.C.  1373(a). 
The legislative history the statutes reflects clear congressional view the importance cooperation through the exchange information between states and localities and federal immigration officials regarding persons immigration status.  Congress enacted U.S.C.  1644 August 1996 part 
the Personal Responsibility and Work Opportunity Reconciliation Act 1996.  
One month later, Congress enacted companion statute, U.S.C.  1373, part the Illegal Immigration Reform and Immigrant Responsibility Act 1996 
(IIRIRA). The Senate Report accompanying the bill that became IIRIRA 
explains that the provision: 
Prohibits any restriction the exchange information between the Immigration and Naturalization Service and any Federal, State, local agency regarding persons immigration status.  Effective immigration enforcement requires cooperative effort between all levels government. The acquisition, maintenance, and exchange immigration-related information State and local agencies consistent with, and potentially considerable assistance to, the Federal regulation immigration and the achieving the purposes and objectives the Immigration and Nationality Act. Rep. No. 104-249, 19-20 (1996) (emphasis added). difficult conceive how Congress could have expressed its goal 
cooperation between federal immigration officials and state and local law 
enforcement authorities any more clearly than when enacted these statutes. 
one commentator has observed: 
The assistance state and local law enforcement agencies can also mean the difference between success and failure enforcing the nations laws generally. The nearly 800,000 police officers nationwide represent massive force multiplier. This assistance need only occasional, passive, voluntary, and pursued during the course normal law enforcement activity. The net that cast daily local law enforcement during routine encounters with members the public immense that inevitable illegal aliens will identified. 
Kris Kobach, The Quintessential Force Multiplier: The Inherent Authority Local Police Make Immigration Arrests, Alb. Rev. 179, 181 (February 2006). State and local law enforcement officers are the eyes and ears law enforcement across the United States. Id. 183. Federal immigration officers simply cannot cover the same ground (Id.), and Congress obviously recognized the substantial benefits the enforcement federal immigration that could result from the free flow information between local, state, and federal law enforcement officials. Congress sought promote this voluntary sharing enacting Sections 1373 and 1644. 
Congress mandate cooperative role between federal and state and local law enforcement further demonstrated other federal statutes.  Section 1324(c) provides that: officer person shall have authority make any arrests for violation any provision this section except officers and employees the Service designated the Attorney General, either individually member class, and all other officers whose duty enforce criminal laws. U.S.C. 1324(c) (emphasis added). noted above, this Court has 
unequivocally held that the all other officers provision allows for state law 
enforcement specifically enforce the criminal provisions federal immigration 
law.  See Gonzalez, 722 F.2d 476.  Other courts have similarly observed how 
federal law evinces clear invitation from Congress for state and local agencies 
participate the process enforcing federal immigration laws. U.S. Santana-
Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (citing U.S. Vasquez-Alvarez, 176 
F.3d 1294, 1300 (10th Cir. 1999)). 
Notably, Title section 1357g (1)-(9) (commonly referred the 287(g) 
program) provides that state and local officers, under agreements between federal 
and state and local authorities, may trained perform certain immigration-
related enforcement functions. Importantly, section the same statute provides 
that: 
Nothing this subsection shall construed require agreement under this subsection order for any officer employee State political subdivision State  
(A) communicate with the Attorney General regarding the immigration status any individual, including reporting knowledge that particular alien not lawfully present the United States; 

(B) 
otherwise cooperate with the Attorney General the identification, apprehension, detention, removal aliens not lawfully present the United States. U.S.C.  1357(g)(10) (emphasis added). This provision again demonstrates the cooperative relationship immigration enforcement that Congress has mandated.  This relationship, recently described the California Supreme Court, a regime cooperative federalism, which local, state, and federal governments may work together ensure the achievement federal criminal immigration policy. Jose C., Cal. 4th 534, 554, 198 P.3d 1087, 1100 (2009).  See also U.S.C.  1252c(b) (mandating that the Attorney General shall cooperate with the states assure that information that would assist state law enforcement officials arresting and detaining an alien illegally present the United States under certain conditions made available such officials). view this clear cooperative relationship, the U.S. Department Justices Office Legal Counsel has previously confirmed the important role states and localities immigration enforcement. See U.S. Department Justice, Office Legal Counsel, Non-preemption the authority state and local law enforcement officials arrest aliens for immigration violations (dated April 2002). This memorandum recognizes that states have inherent power make arrests for violations federal law and that U.S.C.  1252c does not preempt State authority make arrests for certain federal violations. 
CONCLUSION
 
For the foregoing reasons, Amici respectfully asks that the Court reverse and 
vacate the district courts issuance preliminary injunction. 
September 2010 Respectfully Submitted, 
/s/_________________________ Geoffrey Kercsmar KERCSMAR FELTUS PLLC 6263 Scottsdale Road, Suite 320 Scottsdale, 85250 
(480) 421-1001 
Attorney for Amici Curiae 
CERTIFICATE COMPLIANCE PURSUANT 
F.R.APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1 certify that pursuant Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached Brief Amici Curiae State Legislators for Legal Immigration, al. proportionally spaced, has typeface points more and contains ____ words. 
Date Geoffrey Kercsmar 
CERTIFICATE SERVICE hereby certify that electronically filed the foregoing BRIEF AMICI CURIAE STATE LEGISLATORS FOR LEGAL IMMIGRATION, al. with the Clerk the Court for the United States Court Appeals for the Ninth Circuit using the appellate CM/ECF system the 2nd day September 2010. certify that all participants the case are registered CM/ECF users and that service will accomplished the appellate CM/ECF system. __________________



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