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Judicial Watch • Chamber of Commerce v Whiting Amicus 11042010

Chamber of Commerce v Whiting Amicus 11042010

Chamber of Commerce v Whiting Amicus 11042010

Page 1: Chamber of Commerce v Whiting Amicus 11042010

Category:General

Number of Pages:16

Date Created:October 27, 2010

Date Uploaded to the Library:February 20, 2014

Tags:Chicanos, Causa, Canas, Petitioners, workers, pearce, senator, legal, Illegal Immigration, arizona, Congress, California, federal, State, Supreme Court, states, Washington, united, court, EPA, ICE, CIA


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No. 09-115 the Supreme Court the United States 
CHAMBER COMMERCE THE UNITED STATES AMERICA, al., Petitioners, 
MICHAEL WHITING, al., Respondents. ____________ Writ Certiorari the United States Court Appeals 
For the Ninth Circuit 

____________ 
BRIEF AMICUS CURIAE 
STATE SENATOR RUSSELL PEARCE SUPPORT RESPONDENTS

 ____________ 
Paul Orfanedes* 
James Peterson 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
porfanedes@judicialwatch.org
(202) 646-5172 Counsel for Amicus Curiae Denotes Counsel Record 
LEGAL PRINTERS LLC, Washington 202-747-2400 legalprinters.com 
TABLE CONTENTS 
TABLE CONTENTS ..............................................i 

TABLE AUTHORITIES .......................................ii 

INTEREST AMICUS CURIAE ............................ 

INTRODUCTION .......................................................2 

SUMMARY ARGUMENT..................................... 

ARGUMENT ............................................................... 	
Our Constitution Establishes System Dual Sovereignty ..................................3 

II. 	
Regulation Employment
Fundamental Police Power 
 the States .................................................. 

III. Presumption against Preemption
Exists ........................................................7 

IV. 	
Petitioners Bring Facial
Challenge, which the Most Difficult
Challenge Mount Successfully .............9 

CONCLUSION .......................................................... 
TABLE AUTHORITIES
 CASES PAGE 
Allen-Bradley Local Wisconsin Employment  
Board, 315 U.S. 740 (1942) ............................
 Chicanos Por Causa, Inc. Napolitano, 
544 F.3d 976 (9th Cir. 2008) ............ 6-8, 10-11 
Cipollone Liggett Group, 505 U.S. 504 (1992) ....... Canas Bica, 424 U.S. 351 (1976) ............ 6-7,
 English General Electric Co., 
496 U.S. 72(1990) ....................................... 8-9 
Florida Lime Avocado Growers Paul, 
373 U.S. 132 (1963) ........................................ 
Fort Halifax Packing Co. Coyne, 
482 U.S. (1987) ............................................ 
Gade National Solid Wastes
 Management Assn, 505 U.S. (1992) ......... 
Gonzalez Carhart, 550 U.S. 124 (2007) ................
 Gonzalez Peoria, 
722 F.2d 468 (9th Cir. 1983) .......................... 
Gregory Ashcroft, 501 U.S. 452 (1991) ................ 3-5 

iii 
Hawaiian Airlines, Inc. Norris, 
512 U.S. 246 (1994) ........................................ 
Jones Rath Packing Co., 
430 U.S. 519 (1977) ..................................... 8-9 
Lane County Oregon, U.S. (1869) ......................................... 4-5 
Lynch Cannatella, 
810 F.2d 1363 (5th Cir. 1987) ........................ 
Marsh U.S., F.2d 172 (2d Cir. 1928) .................. 
Medtronic, Inc. Lohr, 518 U.S. 470 (1996) ............. 
Napier Atlantic Coast Line Co., 
272 U.S. 605 (1926) ........................................ 
Printz United States, 521 U.S. 898 (1997) ............. 
Rice Santa Elevator Corp., 
331 U.S. 218 (1947) ........................................ 
Tafflin Levitt, 493 U.S. 455 (1990)...................... 3-4 
Texas White, U.S. 700 (1869) ......................... 4-5 
Toll Moreno, 458 U.S. 1(1982) ............................... 
United States Arizona, 
703 Supp. 980 (D. Ariz. 2010) ............ 6-7 
United States Locke, 529 U.S. (2000) ................ 

United States Salerno, 
481 U.S. 739 (1987) ...................................... 

Washington State Grange Washington  
State Republican Party, 
552 U.S. 442 (2008) ...................................... 

MISCELLANEOUS 
THE FEDERALIST No. (James Madison) ..................
 
INTEREST AMICUS CURIAE1 
State Senator Russell Pearce Arizona the author of, and the driving force behind, the LegalArizona Workers Act. 
During his years the Arizona Legislature,Senator Pearce has authored numerous legislative initiatives designed protect the State Arizona from the adverse effects unlawfully present aliens and, most importantly, uphold the rule law.  These include the following:  Proposition 100, Stateconstitutional amendment deny bond any person unlawfully present the United States who commits serious crime Arizona; Proposition 102, which states that person unlawfully present the United States who sues American citizen cannot receive punitive damages; Proposition 200, which requires individuals produce proof citizenship before they may register vote; and The Support Our Law Enforcement and Safe Neighborhoods Act (known asSB 1070), which codifies Arizona law certain already existing enforcement provisions federal law.  Senator Pearces initiatives have served models for similar legislation numerous other States across thenation. All parties consent the filing amicus curiae briefs this matter. counsel for party authored this brief whole part, and counsel party made monetarycontribution intended fund the preparation submission ofthis brief. person other than amicus curiae his counsel made monetary contribution its preparation submission. author the Legal Arizona Workers Act, Senator Pearce has direct interest this matter and, therefore, respectfully submits this amicus curiae brief. 
INTRODUCTION 
The issues before this Court are straightforward and familiar.  Petitioners assert that the Legal Arizona Workers Act preempted federal law regulating the employment aliens.  Nearly thirty-five years ago, however, this Court unequivocally affirmed that States possess broad authority undertheir police powers regulate employment even such regulation touches immigration. Canas Bica, 424 U.S. 351, 356 (1976). date, this decision has not been overruled even questioned.  
Despite this well-established precedent, Petitioners assert that the State Arizona lacks the authority penalize employers for hiring unauthorized workers, allegedly because the legislation burdens employers. other words, employers who put profits over patriotism hiring unlawfully present aliens would burdened bylosing the substantial benefit paying sub-standard wages.  These same employers would burdened having comply with tax laws related socialsecurity, unemployment, and medicare, well occupational health and safety standards that they currently avoid. 
Contrary Petitioners disingenuous claims, Senator Pearce authored legislation that consistent with federal law.  The Legal Arizona Workers Actprohibits employers from knowingly intentionally employing unauthorized workers. Additionally, all Arizona employers must use the federal E-Verify program confirm the employment eligibility new employees. The Legal Arizona Workers Act falls well within the traditional police powers the State.  This Court therefore must reject Petitioners attempt toprotect scofflaw employers the expense legalArizona workers overturning well-established law. 
SUMMARY ARGUMENT 
The Legal Arizona Workers Act notpreempted federal law.  The legislation fallscomfortably within the States fundamental police powers regulates the employment relationship protect workers within the State.  The unauthorized worker provisions and the E-Verify mandate merely enable the State exercise enforcement authority concurrent with that the federal government.  Petitioners therefore cannot overcome the presumptionagainst preemption and cannot show that the State Arizona has protected its citizens manner that hypothetically conflicts with federal objectives. 
ARGUMENT 	Our Constitution Establishes System Dual Sovereignty. 
As every schoolchild learns, our Constitutionestablishes system dual sovereignty between theStates and the Federal Government.  Gregory 
Ashcroft, 501 U.S. 452, 457 (1991).  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. (James Madison)).  This Court has described this system dual sovereignty the following: 
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 UnitedStates.  Not only, therefore, can there loss separate and independent autonomy the States, through their union under the Constitution, but maybe not unreasonably said that the preservation the States, and the maintenance their governments, are much within the design and care theConstitution the preservation theUnion and the maintenance the National government.  The Constitution, all its provisions, looks indestructible Union, composed ofindestructible States.   
Gregory, 501 U.S. 457 (citing Texas White, 
U.S.
 700 (1869), quoting Lane County Oregon, 

U.S. (1869)). 

Under our system dual sovereignty, States have the authority act  including areas touchingon immigration  when States prohibit activity that already prohibited under federal law.  Gonzales Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (Where State enforcement activities not impair federalregulatory interests concurrent enforcement activity isauthorized.).  More simply put, where [f]ederal and local enforcement have identical purposes, preemption does not occur.  Id. 474. Or, JudgeLearned Hand succinctly explained, [I]t would unreasonable suppose that [the federalgovernment's] purpose was deny itself any help that the States may allow. Marsh U.S., F.2d 172, 174 (2d Cir. 1928); see also Lynch Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987) (No statute precludes other federal, State, local law enforcement agencies from taking other action enforce this nation's immigration laws.). 
Senator Pearce carefully crafted the LegalArizona Workers Act ensure that did not impair federal regulatory interests and did more thanauthorize the State exercise enforcement authority concurrent with that the federal government.  The Legal Arizona Workers Act exercises the State Arizonas authority dual sovereign and protects authorized workers Arizona regulatingemployment standards. 
II. 	Regulation Employment FundamentalPolice Power the States. 
For nearly thirty-five years has beenundisputed that States possess broad authority under their police powers regulate the employment relationship protect workers within the State. Canas, 424 U.S. 356; see also Chicanos Por Causa, Inc. Napolitano, 544 F.3d 976, 984 (9th Cir.2008) ([T]he power regulate the employment ofunauthorized aliens remains within the States historic police powers.). Canas, the State California sought strengthen its economy enacting legislation protect Californias fiscal interests and lawfully resident labor force from the deleterious effects its economy resulting from the employment illegal aliens. 424 U.S. 357. California argued, and thisCourt agreed, that [e]mployment illegal aliens intimes high unemployment deprives citizens and legally admitted aliens jobs [and] acceptance illegal aliens jobs substandard terms wages and working conditions can seriously depress wage scales and working conditions citizens and legally admitted aliens.  Id. 356-357. reviewing theCalifornia legislation, this Court held, These localproblems are particularly acute California light the significant influx into that State illegal aliens from neighboring Mexico.  Id. 357. 
The current situation Arizona strikinglysimilar the conditions that existed California during the 1970s the time Canas. Arizona not only suffering from high unemployment, also isstruggling with the effects rampant illegal immigration.  United States Arizona, 703 Supp. 980, 985 (D. Ariz. 2010).  Like the California Legislature Canas, the Arizona Legislature properly used its broad authority under its policepowers regulate employment.  424 U.S. 356. 
 Moreover, Petitioners are simply incorrect whenthey assert that the Legal Arizona Workers Act attempts regulate immigration. this Court has stated, the mere fact that aliens are the subject aState statute does not render regulation immigration. Canas, 424 U.S. 352-353. Regulation immigration a determination whoshould 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.).   
The Legal Arizona Workers Act plainly does not impose new restrictions the manner which analien enters the country.  Nor does impose new conditions under which legal entrant may remain inthe country.  The Legal Arizona Workers Act simply regulates employment standards target[ing] employers who hire illegal aliens.  Chicanos Por Causa, 544 F.3d 979. 
III. Presumption against Preemption Exists. 
Because the legislation solely regulates employment within the State, the Legal Arizona Workers Act falls comfortably within the scope the States traditional police powers. this Court has consistently held, [p]reemption employmentstandards within the traditional police power theState should not lightly inferred.  Hawaiian Airlines, Inc. Norris, 512 U.S. 246, 252 (1994) (citing Fort Halifax Packing Co. Coyne, 482 U.S. (1987)). Therefore, Petitioners must overcome strong presumption against preemption. 
Significantly, Petitioners fail even address this presumption. the Ninth Circuit correctlyexplained, When Congress legislates in field whichthe States have traditionally occupied start with the assumption that the historic police powers ofthe States were not superseded the Federal Act unless that was the clear and manifest purpose Congress.  Chicanos Por Causa, 558 F.3d 983 (quoting United States Locke, 529 U.S. 89, 108 (2000)); see also Medtronic, Inc. Lohr, 518 U.S. 470, 485 (1996) (In all preemption cases start with the assumption that the historic police powers theStates were not superseded the Federal Act unless that was clear and manifest purpose Congress.); Rice Santa Elevator Corp., 331 U.S. 218, 230 (1947); Allen-Bradley Local Wisconsin Employment Bd., 315 U.S. 740, 749 (1942); Napier Atlantic Coast Line Co., 272 U.S. 605, 611 (1926). 
Finally, this Court has held that preemption must not found absent clear congressional intent.  [W]e will not infer pre-emption the States' historic police powers absent clear Statement intent byCongress.  Gade National Solid Wastes Management Assn, 505 U.S. 88, 111-12 (1992) (Kennedy, J., concurring) (citing Rice, 331 U.S. 230; Jones Rath Packing Co., 430 U.S. 519, 525 (1977); and English General Electric Co., 496 U.S. 72, (1990)). Moreover, there obligation infer preemption only where Congress intent clear andmanifest.  Cipollone Liggett Group, 505 U.S. 504, 524 (1992) (Blackmun, J., dissenting). 
This Court also relied this same principle inDe Canas: 
[F]ederal regulation should not deemed pre-emptive State regulatorypower the absence persuasivereasons-either that the nature the regulated subject matter permits other conclusion, that Congress has unmistakably ordained. 
424 U.S. 356 (quoting Florida Lime Avocado Growers Paul, 373 U.S. 132, 142 (1963)).  Since Canas has not been overturned even questioned, this Court should apply this long-standing principleand decline infer preemption Arizonas historic police powers. 
IV. 	Petitioners Bring Facial Challenge, which the Most Difficult Challenge Mount Successfully. 
Not only Petitioners ignore the presumptionagainst preemption, Petitioners also ignore the factthat they have brought facial challenge.  Because there specific factual background under which the legislation can analyzed, Petitioners cannot and have not presented any evidence that the enforcement the Legal Arizona Workers Act would actuallyfrustrate the purposes Congress. this Court has consistently explained, facial challenge legislative Act is, course, themost difficult challenge mount successfully, sincethe challenger must establish that set ofcircumstances exists under which the Act would valid. United States Salerno, 481 U.S. 739, 745 (1987). the Ninth Circuit succinctly explained, [A] speculative, hypothetical possibility does not provide adequate basis sustain facial challenge. Chicanos Por Causa, 558 F.3d 866. 
Facial challenges generally are disfavoredbecause they rest speculation, run contrary the fundamental principal judicial restraint, and threaten short circuit the democratic process.  Washington State Grange Washington State Republican Party, 552 U.S. 442, 449 (2008).  When legislative enactment attacked facially, court disadvantage because does not know how the law will applied construed enforcing authority.As this Court has declared, It neither our obligationnor within our traditional institutional role resolve questions constitutionality with respect eachpotential situation that might develop.  Gonzalez Carhart, 550 U.S. 124, 168 (2007). the Ninth Circuit explained: uphold the statute all respects 
against this facial challenge, but must observe that brought against blank factual background enforcement and outside the context any particular case. and when the statute enforced, and the factual background developed, other challenges the Act applied any particular instance manner will not controlled our decision. 
Chicanos Por Causa, 558 F.3d 980.  Unless and until factual background exists demonstrating thatthe goals Congress have been frustrated, this Court should refrain from reaching conclusions based onhypotheticals. 
CONCLUSION 
For the foregoing reasons, Senator Pearce respectfully requests that this Court affirm the NinthCircuits decision and hold that the Legal Arizona Workers Act not preempted federal law. 
Respectfully submitted, 
Paul Orfanedes* James Peterson JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, 20024 porfanedes@judicialwatch.org
(202) 646-5172 
Counsel for Amicus Curiae Denotes Counsel Record



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