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Arizona v USA SB1070 USSC Amicus 2142012

Arizona v USA SB1070 USSC Amicus 2142012

Page 1: Arizona v USA SB1070 USSC Amicus 2142012

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Date Created:February 13, 2012

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No. 11-182 THE 

Supreme Court the United States 
State Arizona, al., Petitioners, 
UNITED STATES AMERICA, 
Respondent. Writ Certiorari the United States 
Court Appeals for the Ninth Circuit 

BRIEF AMICI CURIAE STATE 
LEGISLATORS FOR LEGAL IMMIGRATION 
AND INDIVIDUAL STATE LEGISLATORS SUPPORT PETITIONERS 

Paul Orfanedes 
Counsel Record
 JUDICIAL WATCH, INC. 
425 Third Street, S.W. 
 Suite 800 
Washington, D.C. 20024 

(202) 646-5172  porfanedes@judicialwatch.org 
Counsel for Amici Curiae 
(Names additional Amici listed inside cover) 
Sen. Scott Beason (Alabama)
Rep. John Kavanagh (Arizona)
Rep. Jon Hubbard (Arkansas)
Sen. Ted Harvey (Colorado)
Sen. Jack Murphy (Georgia)
Rep. Eric Koch (Indiana)
Sen. Mike Delph (Indiana)
Del. Don Dwyer (Maryland) 
Del. Nic Kipke (Maryland) 
Del. Pat McDonough (Maryland)
Rep. Dave Agema (Michigan)
Rep. Becky Currie (Mississippi)
Rep. David Howard (Montana) 
Rep. Wendy Warburton (Montana) 
Sen. Charlie Janssen (Nebraska)
Rep. Jordan Ulery (New Hampshire) 
Rep. Larry Rappaport (New Hampshire) 
Assm. Gary Chiusano (New Jersey) 
Assw. Alison Littell McHose (New Jersey)
Sen. Steve Oroho (New Jersey)
Rep. George Cleveland (North Carolina) 
Rep. Courtney Combs (Ohio)
Rep. Randy Terrill (Oklahoma)
Rep. Sally Kern (Oklahoma) 
Rep. Daryl Metcalfe (Pennsylvania)
Sen. Marc Cote (Rhode Island)
Rep. Matt Shea (Washington)
Del. Walter Duke (West Virginia) 
Del. John Overington (West Virginia) 

TABLE CONTENTS 

TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ...................................... 

INTEREST AMICI CURIAE ................................1 

SUMMARY THE ARGUMENT ............................3 

ARGUMENT ...............................................................5 	
The Federalist Structure Was Created 
for the Protection Individuals .........................5 

II. 	
Immigration and Naturalization Laws
Have Always Focused the Regulation Lawful Entry and Lawful Presence Aliens...............................................................8 

III.	 
Arizona May Regulate the Activities 
Unlawfully Present Aliens Pursuant
Its Police Power .................................................11 

CONCLUSION..........................................................16 

TABLE AUTHORITIES
 CASES PAGE 
Alden Maine, 527 U.S. 706 (1999) .......................... 
Atascadero State Hospital Scanlon, 
473 U.S. 234  (1985) ............................................... 
Bond United States, 564 U.S. ___, 
2011 U.S. LEXIS 4558 (June 16, 2011) ................ 
Chamber Commerce Whiting, U.S. __; 131 Ct. 1968 (2011) .......... 10, 13, Canas Bica, 
424 U.S. 351 (1976) ............................ 10, 11, 13, 
Gonzales Oregon, 546 U.S. 243 (2006) ............ 12, 
Gregory Ashcroft, 501 U.S. 452 (1991) ............... 
Hines Davidowitz, 312 U.S. (1941) .................. 

Lane County Oregon, U.S. (1869) ................. 
Manigault Springs, 199 U.S. 473 (1905) .............. 
Medtronic, Inc. Lohr, 518 U.S. 470 (1996) ........... 
New York United States, 505 U.S. 144 (1992)........ 
Noble State Bank Haskell, 

219 U.S. 104 (1911) .............................................. 

Plyler
 Doe, 456 U.S. 202 (1982) ............................13 

PLIVA, Inc. Mensing, U.S. __; 
131 S.Ct. 2567 (2011) ...........................................12 

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

San Diego Building Trades Council Garmon, 
359 U.S. 236 (1959) .......................................... 

Tafflin 
Levitt, 493 U.S. 455 (1990) .........................5 

Takahashi
 Fish Game Commission, 

334 U.S. 410 (1948)  ....................................... 10-11 

Texas
 White, U.S. 700 (1869) .............................6 

Toll 
Moreno, 458 U.S. (1982) .............................11 

Truax
 Raich, 239 U.S. (1915) .............. 12, 15-16 

United States Arizona, 641 

F.3d
 339 (9th Cir. 2011).......................................12 

United States Arizona, 

703 Supp. 980 (D. Ariz. 2010) ....................14 

United States Villa-Velasquez, 
282 F.3d 553 (8th Cir. 2002)................................15 

CONSTITUTIONAL PROVISIONS AND STATUTES 
U.S. CONST. Art.  8...............................................6 

U.S.
 CONST. Art.  cl. 4...................................... 

U.S.
 CONST. Amend. .............................................. 

Immigration and Nationality Act (INA),66 Stat. 163, amended, U.S.C.  1101 seq. ........................................................ 

MISCELLANEOUS 
THE FEDERALIST No. (J. Madison) ................... 

THE FEDERALIST No. 42, pp. 266-74 (C. Rossiter ed. 1961)............................................... 8-9 
THE FEDERALIST No. 45, pp. 292-93 (C. Rossiter ed. 1961)...................................... 6-7, 9-10 
News Transcript, Remarks the President Comprehensive Immigration Reform ElPaso, Texas, The White House (May 10, 2011) .... 
Supreme Court Rule 37.6 ........................................... 

INTEREST THE AMICI CURIAE1 
State Legislators for Legal Immigration nationwide coalition state legislators (the Amici)who seek promote cooperation among the federal,state, and local governments eliminating incentives (including public benefits, welfare, educationand employment opportunities) that encouragealiens enter and remain the United States unlawfully. Founded Pennsylvania State Representative Daryl Metcalfe, the coalition also committed respecting the principles federalism and state sovereignty that underlie our system government.2 Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole part; and that person entity, other than amici curiae and their counsel, made monetary contribution intended fund the preparation and submission this brief.  All parties haveconsented the filing this brief; letters reflecting thisblanket consent have been filed with the Clerk. The following Legislators from states join this amici curiae brief: Sen. Scott Beason (Alabama), Rep. John Kavanagh (Arizona), Rep. Jon Hubbard (Arkansas), Sen. Ted Harvey (Colorado), Sen. Jack Murphy (Georgia), Rep. Eric Koch (Indiana), Sen. Mike Delph (Indiana), Del. Don Dwyer (Maryland), Del. Nic Kipke (Maryland), Del. Pat McDonough (Maryland), Rep. Dave Agema (Michigan), Rep. Becky Currie (Mississippi), Rep. David Howard (Montana), Rep. Wendy Warburton (Montana), Sen. Charlie Janssen (Nebraska), Rep. Jordan Ulery (New Hampshire), Rep. Larry Rappaport (New Hampshire), Assm. Gary Chiusano (New Jersey), Assw. Alison Littell McHose (New Jersey), Sen. Steve Oroho (New Jersey), Rep. George Cleveland (North Carolina), Rep. Courtney Combs (Ohio), Rep. Randy Terrill (Oklahoma), Rep. Sally Kern (Oklahoma), Rep. Daryl Metcalfe (Pennsylvania), Sen. Marc May 2011, the United States-Mexico border Paso, Texas, President Barack Obama stated: define ourselves nation immigrants  nation that welcomesthose willing embrace Americas ideals and Americas precepts. Thats why millions people, ancestors most us, braved hardship and great risk tocome here  they could free towork and worship and start business and live their lives peace and prosperity. The Asian immigrants whomade their way Californias Angel Island. The German and Scandinavians who settled across the Midwest.  The waves Irish, and Italian, and Polish, and Russian, and Jewish immigrantswho leaned against the railing catchtheir first glimpse the Statue Liberty. 
News Transcript, Remarks the President Comprehensive Immigration Reform Paso, Texas, The White House (May 10, 2011).  President Obama concluded his remarks stating, This flow ofimmigrants has helped make this country strongerand more prosperous.  Id. Amici wholeheartedlyagree with the President. 
Each city, county, and state represented Amici has rich history immigrants who have made apositive impact their communities.  Amici not oppose lawful immigration naturalization. Nor 
Cote (Rhode Island), Rep. Matt Shea (Washington), Del. Walter Duke (West Virginia), Del. John Overington (West Virginia). 
they challenge the primacy the federal governments authority regulate aliens entry into theUnited States and the conditions under which lawfully present aliens may remain the United States and become naturalized citizens. However, the issues lawful immigration and naturalization are not before the Court. The issue before the Court whether Arizona may authorize and direct its stateand local law enforcement officers communicate and cooperate with federal officials regarding theenforcement federal immigration law and create disincentives for unlawfully present aliens who donot comply with federal law enter remain Arizona. 
The neighborhoods, cities, counties, and states that Amici represent are being adversely affected theinflux large populations unlawfully present aliens. Amici were elected represent and protectthe interests the people  the citizens and lawfullypresent aliens  their states. Pursuant their longstanding and well established police power, states have the authority enact legislation thatprotects their citizens and lawfully present aliens within their jurisdiction.  Amici submit this brief support Arizonas efforts use its police power protect its citizens and the lawfully present aliens Arizona. 
SUMMARY THE ARGUMENT 
The issue before the Court whether states mayuse their police power authorize and direct stateand local law enforcement officers communicate and cooperate with federal officials regarding theenforcement federal immigration laws and create disincentives for unlawfully present aliens who not comply with federal law enter remainwithin their respective borders.  The Constitution establishes system dual sovereignty between thestates and the federal government. The founders created federal system government order protect the individual liberties the people.  Under this system, the authority the federal governmentis limited those powers specifically enumerated inthe Constitution. The states, the other hand, enjoy broad, plenary power regulate activitieswithin their borders and protect the health, safety, morals, and general welfare the people their states. the time the drafting the Constitution, there was uniformity rules regarding the entryor naturalization aliens. alien could gainrights and privileges one state but not others.Therefore, the founders placed immigration andnaturalization within the purview the federal government. Under this framework, the federal government, not the individual states, regulateswhich aliens are allowed enter the United States and the conditions under which lawfully presentaliens may remain the United States and becomenaturalized citizens. 
Yet, even under our federalist system, the statesretain their right regulate within their borders. 
S.B. 1070 does not regulate immigration naturalization. does not control who may enter the UnitedStates the conditions under which lawfully present aliens may remain the United States orbecome naturalized citizens. Nor does purport todefine any aliens legal status deport unlawfully present aliens from the United States. merely authorizes and directs Arizonas state and local law enforcement officers communicate and cooperate with federal officials regarding the enforcement offederal immigration law and creates disincentivesfor unlawfully present aliens who not comply withfederal law enter remain Arizona. Therefore, this Court should reverse the Ninth Circuits decision and hold that S.B. 1070 not preempted federal law. 
ARGUMENT The Federalist Structure Was Created for the Protection Individuals.  
As every schoolchild learns, our Constitution establishes system dual sovereignty between theStates and the Federal Government. Gregory Ashcroft, 501 U.S. 452, 457 (1991). also axiomatic that under our federal system, the Statespossess sovereignty concurrent with that the Federal Government, subject only limitationsimposed 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)).  This Court has described this consti
tutional scheme dual sovereigns follows: The people each State compose aState, 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, canthere 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 concept dual sovereignty isembodied 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 proposedConstitution the federal governmentare few and defined.  Those which are remain the State governments arenumerous and indefinite. The powers reserved the several States will extend all the objects which, the ordinary course affairs, concern thelives, liberties, and properties thepeople, and the internal order, improvement, and prosperity the State. 
THE FEDERALIST No. 45, pp. 292-93 (C. Rossiter ed.1961). noted above, often overlooked the fundamen
tal purpose the federal structure joint sover
eigns. 
The Constitution does not protect thesovereignty States for the benefit ofthe States state governments abstract political entities, even for thebenefit the public officials governingthe States. the contrary, the Constitution divides authority between federal and state governments for the protection individuals.  
New York United States, 505 U.S. 144, 181 (1992); see also Atascadero State Hospital Scanlon, 473 
U.S. 234, 242 (1985) (The constitutionally mandatedbalance power between the States and the Federal Government was adopted the Framers toensure the protection our fundamental liberties.); San Diego Building Trades Council Garmon, 359 U.S. 236, 243 (1959) (The Federal System exists not matter doctrinaire local-ism but promoter democracy.).   
The States exist refutation that concept. choosing ordain and establish the Constitution, the people insisted upon federal structure for thevery purpose rejecting the idea thatthe will the people all instances isexpressed the central power, the onemost remote from their control. 
Alden Maine, 527 U.S. 706, 759 (1999). sum, our system federalism: assures decentralized governmentthat will more sensitive the diverse needs heterogeneous society;it increases opportunity for citizen involvement democratic processes; itallows for more innovation and experimentation government; and makesgovernment more responsive puttingthe States competition for mobilecitizenry. Bond United States, 564 U.S. ___, 2011 U.S. LEXIS 4558, *19 (June 16, 2011). Whereas the federal government has only the authority enumerated the Constitution, the states maintain broad, plenary power regulate activities that take place within their borders and affect the lives,health, safety, morals, and general welfare persons within their borders. 
II. Immigration and Naturalization Laws Have Always Focused the Regulation Lawful Entry and Lawful Presence Aliens. 
Prior the drafting and signing the Constitution, James Madison wrote, The dissimilarity the rules naturalization has long been remarked fault our system, and laying foundation forintricate and delicate questions. THE FEDERALIST No. 42, pp. 266-74 (C. Rossiter ed. 1961).  Madison explained that under the articles the Confederation: one State, residence for short term 
confirms all the rights citizenship: 
another, qualifications greater
portance are required. alien, therefore, legally incapacitated for certainrights the latter, may, previousresidence only the former, elude hisincapacity; and thus the law oneState preposterously rendered paramount the law another, within the jurisdiction the other. 
Id. other words, alien could become citizen one state and have all the rights associated with itand would not have such rights other states. Madison elaborated: the laws several States, certaindescriptions aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not onlywith the rights citizenship but withthe privilege residence. What wouldhave been the consequence, such persons, residence otherwise, had acquired the character citizens under the laws another State, and then asserted their rights such, both residence and citizenship, within the Stateproscribing them? 
Id.  For country succeed whole, the founders recognized that, with respect naturalization, uniformity among the states was necessity. Therefore, through the Constitution, the people the United States authorized Congress establish uniform Rule Naturalization. U.S. CONST. art.  cl. The new Constitution has accordingly, with great propriety, made provision against them,and all others proceeding from the defect the Confederation this head, authorizing thegeneral government establish uniform rule naturalization throughout the United States. THE FEDERALIST No. 45. 
From 1790 1870, Congress used this authority topermit only free white persons become citizens. Takahashi Fish Game Commission, 334 U.S. 410, 412 (1948). However, starting 1870, Congress extended eligibility aliens citizenship toothers. Id. 1952, Congress enacted the Immigration and Nationality Act (INA), Stat. 163, asamended, U.S.C.  1101 seq. Generally, the INA collected and codified many existing provisions and reorganized the structure the naturalization and immigration law. More specifically, the INA wasenacted clarify the terms and conditions admission the country and the subsequent treatment aliens lawfully the country. Canas Bica, 424 U.S. 351, 359 (1976) (emphasis added); see also Chamber Commerce Whiting, U.S. __; 131 Ct. 1968, 1973 (2011) (The INA established comprehensive federal statutory scheme for regulation ofimmigration and naturalization and set the termsand conditions admission the country and thesubsequent treatment aliens lawfully the country.) (quoting Canas, 424 U.S. 353)). 
Indeed, the principal purpose immigration and naturalization laws has always been provide abroad and comprehensive plan describing the termsand conditions upon which aliens may enter thecountry, how they may acquire citizenship, and themanner which they may deported.  Hines Davidowitz, 312 U.S. 52, (1941). Immigrationand naturalization came hand hand. Thus, the regulation aliens focused the legal entry and lawful presence aliens, with the ultimate objectivebeing that such persons would become naturalizedcitizens. Takahashi, 334 U.S. 419 (The FederalGovernment has broad constitutional powers determining what aliens shall admitted the United States, the period they may remain, theregulation their conduct before naturalization,and the terms and conditions their naturalization.). 
Short deportation, the INA was never intendedto usurp the power the states regulate unlawfully present aliens within their borders.  Rather, its intention was create uniform scheme regulate the legal entry and lawful presence immigrants the United States that they might become citizens. 
III. Arizona May Regulate the Activities Unlawfully Present Aliens Pursuant Its Police Power. 
Although the federal government has the power toregulate immigration, the mere fact that aliens arethe subject state statute does not render aregulation immigration and exclusively withinthe federal governments purview. Canas, 424 
U.S. 352-53.  Succinctly put, the regulation ofimmigration nothing more than a determination who should should not admitted into the country, and the conditions under which legal entrant may remain. Id. 355 (emphasis added); Toll Moreno, 458 U.S. (1982) (The authorityto control immigration the power admit exclude aliens.). Judge Bea noted his dissent, this case not about whether state can decree who can come into the country, what alien may while here, orhow long alien can stay the country. United States Arizona, 641 F.3d 339, 369 (9th Cir. 2011).The issue whether Arizona may enact laws concerning unlawfully present aliens to promote thehealth, safety, morals, and welfare those withinits jurisdiction.  Truax Raich, 239 U.S. 33, (1915). undisputed that state may employ its policepower regulate activity within its jurisdiction. Gonzales Oregon, 546 U.S. 243, 270 (2006) (Stateshave unequivocal authority when legislating protect the lives, limbs, health, comfort, and quiet all persons.); see also, Garmon, 359 U.S. 244 (States have the power act with respect conduct that touches upon interests deeply rooted localfeeling and responsibility.); Noble State Bank Haskell, 219 U.S. 104, 111 (1911) ([T]he policepower extends all the great public needs [and]may put forth aid what held preponderant opinion greatly and immediately necessary the public welfare.); Manigault Springs, 199 U.S. 473, 480 (1905) state has theauthority protect the lives, health, morals, comfort, and general welfare the people.). addition, well established that States police power not superseded federal act unless clearly indicated Congress. PLIVA, Inc. Mensing, 
U.S.
 __; 131 S.Ct. 2567, 2586 (2011). Recognizing that the federal government has

clusive authority regulate the activities lawfullypresent aliens the United States (De Canas, 424 

U.S. 355), Arizona enacted S.B. 1070 authorize and direct its state and local law enforcement officers communicate and cooperate with federalofficials and create disincentives for unlawfully present aliens who not comply with federal law enter remain Arizona. S.B. 1070 does not regulate lawfully present aliens; regulates Arizonas own state and local law enforcement officers and unlawfully present aliens who not comply with federal law, but enter remain Arizona. 

This distinction not one without difference. fact, this Court recognized the distinction Plyler Doe, 456 U.S. 202 (1982). Plyer, the Court held, Despite the exclusive federal control this Nations borders, cannot conclude that the States are without any power deter the influx persons entering the United States against federal law, and whose numbers might have discernible impact traditional state concerns.  Id. 229. Similarly,the Court recognized that federal immigration andnaturalization laws prevent states from regulating the activity lawfully present aliens. However, with respect those aliens who are not lawfullypresent, the Court stated, [A] State may withhold its beneficence from those whose very presencewithin the United States the product their ownunlawful conduct. Id. 219. 
Similarly, last Term, this Court reaffirmed states power regulate the employment aliens who lack authorization work the United States. See generally Whiting, 131 Ct. 1968. addition, courts have long recognized that nothing federallaw precludes state locality from enforcing the criminal provisions immigration law.  Gonzalez 
Peoria, 722 F.2d 468, 476 (1983). court has ever ruled that state cannot enact legislation thatregulates the activities immigrants who havemade the conscious decision enter the United States unlawfully and maintain their unlawfulpresence particular state. 
The Arizona State Legislature enacted S.B. 1070 inan effort reduce the escalating drug and humantrafficking crimes[] and serious public safety concerns that the state was experiencing due rampant illegal immigration. United States Arizona, 703 Supp. 980, 985 (D. Ariz. 2010).  S.B. 1070 authorizes and directs Arizona law enforcement officers communicate and cooperate with federal officials regarding the enforcement federal immigration law. Specifically, the state instructed its lawenforcement officers exercise their undisputed authority enforce the criminal provisions federal immigration laws. See, e.g., United States Villa-Velasquez, 282 F.3d 553, 555-56 (8th Cir. 2002).  For example, the state Arizona found great import that its state and local law enforcement officers understood that they already had the authority investigate possible violations the criminal provisions federal immigration laws, including theauthority inquire about persons immigration status. addition, S.B. 1070 also creates disincentives for unlawfully present aliens who not comply with federal law enter remain Arizona.  Specifically, uses the states well-established police power topenalize unlawfully present aliens within its jurisdiction who fail comply with federal alien registration laws. undisputed that such exercise states police power common practice other areas that are exclusively federal powers. See Medtronic, Inc. Lohr, 518 U.S. 470, 495 (1996). 
Moreover, reaffirmed just last Term, states havethe irrefutable authority regulate the employmentof aliens who lack authorization work the United States. See generally Whiting, 131 Ct. 1968. S.B. 1070 compliments the legislation upheldin Whiting creating another disincentive forunlawfully present aliens enter remain inArizona. making misdemeanor for unlawfully present alien seek work Arizona, the statehas done more than seek protect its fiscalinterests and lawfully resident labor force from the deleterious effects its economy due rampant illegal immigration. Canas, 424 U.S. 357. 
When drafting S.B. 1070, the Arizona State Legislature was cognizant the federal immigration laws Therefore, was careful craft legislation thatincorporates federal standards and defers federal determinations. Arizona has not infringed thefederal governments exclusive authority regulateimmigration and naturalization. does not imposerestrictions the manner which aliens enter the United States. Nor does impose any conditions under which lawfully present aliens may remain inthe country. Rather, Arizona has exercised its undisputed police power to promote the health, safety, morals, and welfare of the People Arizona manner that consistent with and respects federal law and principles federalism.  Truax, 239 
U.S. 41. 

CONCLUSION 
For the foregoing reasons, Amici respectfully requests that this Court reverse the Ninth Circuits decision and hold that S.B. 1070 not preempted byfederal law. 
 Respectfully submitted, Paul Orfanedes 
Counsel Record
 JUDICIAL WATCH, INC. 
 Suite 800 
425 Third Street, S.W., 
Washington, D.C. 20024 

(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amici Curiae 
 February 13, 2012



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