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Judicial Watch • TX v US Amicus Brief 40238

TX v US Amicus Brief 40238

TX v US Amicus Brief 40238

Page 1: TX v US Amicus Brief 40238

Category:Legal Document

Number of Pages:21

Date Created:May 11, 2015

Date Uploaded to the Library:May 27, 2015

Tags:Representatives, Amicus, Amnesty, immigration, Illegal Immigration, senate, arizona, government, Obama, document, federal, Supreme Court, states, district, court, united


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Case: 15-40238
Document: 00513037682
Date Filed: 05/11/2015
No. 15-40238 the United States Court Appeals
for the Fifth Circuit
____________
STATE TEXAS, al.,
Plaintiffs-Appellees,
UNITED STATES, al.,
Defendants-Appellants.
____________
AMICUS CURIAE BRIEF STATE LEGISLATORS FOR LEGAL
IMMIGRATION SUPPORT APPELLEES
____________ Appeal From the U.S. District Court
For the Southern District Texas
Brownsville Division
____________
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, D.C. 20024
(202) 646-5172
jpeterson@judicialwatch.org
Counsel for Amicus Curiae
Case: 15-40238
Document: 00513037682
Date Filed: 05/11/2015
CERTIFICATE INTERESTED PERSONS
The undersigned counsel record certifies that the following listed persons
and entities described the fourth sentence Rule 28.2.1 have interest
the outcome this case. These representations are made order that the judges this court may evaluate possible disqualifications recusal.
State Legislators for Legal Immigration, Amicus Curiae. Joining
this brief are Rep. Daryl Metcalfe (Pennsylvania House
Representatives, District 12); Sen. John Kavanagh (Arizona House
Representatives, 23rd District); Sen. Kent Lambert (Colorado State
Senate, District 9); Rep. Eric Koch (Indiana House
Representatives, District 65); Rep. Peggy Mast (Kansas House
Representatives, District 76); Del. Neil Parrott (Maryland House
Delegates, District 2A); Rep. Becky Currie (Mississippi House
Representatives, District 92); Rep. Laurence Rappaport (New
Hampshire House Representatives District 1); Rep. Jordan Ulery
(New Hampshire House Representatives, District 37); Rep.
William Brien (New Hampshire House Representatives, District
05); Sen. Steven Oroho (New Jersey State Senate, District 24);
Assemblywoman Alison Littell McHose (New Jersey Assembly,
District 24); Assemblyman Parker Space (New Jersey Assembly,
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Document: 00513037682
Date Filed: 05/11/2015
District 24); Rep. Yvette Herrell (New Mexico House
Representatives, District 51); Rep. George Cleveland (North Carolina
House Representatives, District 14); Sen. Kim Thatcher (Oregon
State Senate, District 13); Sen. Charles McIlhinney Jr. (Pennsylvania
State Senate, District 10); Rep. Mark Mustio (Pennsylvania House
Representatives, District 44); Rep. Brad Roae (Pennsylvania House
Representative, District 6); Sen. Marc Cote (Rhode Island State
Senate, District 24); Rep. Michael Pitts (South Carolina House
Representatives, District 14); Sen. Bill Ketron (Tennessee State
Senate, District 13); Rep. Sheila Butt (Tennessee House
Representatives, District 64); Rep. James White (Texas House
Representatives, District 19); Del. John Overington (West Virginia
House Delegates, District 62); Del. Kelli Sobonya (West Virginia
House Delegates, District 18).
James Peterson, Counsel for Amicus Curiae State Legislators for
Legal Immigration
/s/ James Peterson
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Document: 00513037682
Date Filed: 05/11/2015
TABLE CONTENTS
TABLE CONTENTS ......................................................................................... iii
TABLE AUTHORITIES ....................................................................................iv
INTEREST AMICUS CURIAE. .........................................................................
ARGUMENT .............................................................................................................
Sovereign States Are Entitled Protect Their Citizens
From the Effects Illegal Immigration ...............................................
The Federalist Structure Does Not Function When
One Party Ignores the Law .........................................................
II.
The Illegal Immigration Crisis and
the Role the States ..................................................................
Sovereign States Are Not Powerless When the
Federal Government Ignores Its Own Laws ...............................
The States are Likely Succeed the Merits
the Federal Government Must Comply With Its Own Laws ..............
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
iii
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TABLE AUTHORITIES
Cases Aiken County,
725 F.3d 255 (D.C. Cir. 2013) ..........................................................10, 11,
Alden Maine,
527 U.S. 706 (1999) ........................................................................................
Arizona United States,
132 Ct. 2492 (2012) ...........................................................................passim
Atascadero State Hosp. Scanlon,
473 U.S. 234 (1985) ........................................................................................
Gregory Ashcroft,
501 U.S. 452 (1991) ........................................................................................
Lane County Oregon, U.S. (1869) ............................................................................................
New York United States,
505 U.S. 144 (1992) ........................................................................................
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) ........................................................................................
Texas White, U.S. 700 (1869) ..........................................................................................
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Constitutional Provisions and Rules
U.S. Const. art. cl. ........................................................................................
Fed. App. 29(b) .................................................................................................
Fed. App. 29(c) .................................................................................................
Miscellaneous
George Carey, Separation Powers and the Madisonian
Model: Reply Critics, Am. Pol. Sci. Rev. 151 (1978) ........................
Stephen Ceasar, Immigration Bills Record High for States:
The Legislation Points Frustration with the Federal
Government Lack Action, Los Angeles Times
(Aug. 10, 2011) ................................................................................................
Chamber Commerce Whiting,
No. 09-115, Tr. Oral Arg. (U.S. Dec. 2010) ......................................
Robert Delhunty and John Yoo, Dream On: The Obama
Administration Nonenforcement Immigration Laws,
the DREAM Act, and the Take Care Clause, Tex. Rev. 781 (2013) ............................................................................
THE FEDERALIST No. (J. Madison) .......................................................................
THE FEDERALIST No. (C. Rossiter ed. 1961).........................................................
THE FEDERALIST No. (James Madison)
(C. Rossiter ed. 1999) ...................................................................................
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INTEREST AMICUS CURIAE
State Legislators for Legal Immigration SLLI unincorporated
nationwide coalition state legislators Amicus who seek enforcement our
nation immigration laws.1 Founded Pennsylvania State Representative Daryl
Metcalfe, the coalition also committed respecting the principles federalism
and state sovereignty that underlie our system government.
Members SLLI were elected represent and protect the interest the
people the citizens and lawfully present aliens their states. The
The following Legislators from States join SLLI amicus brief:
Rep. Daryl Metcalfe (Pennsylvania House Representatives, District 12); Sen.
John Kavanagh (Arizona House Representatives, 23rd District); Sen. Kent
Lambert (Colorado State Senate, District 9); Rep. Eric Koch (Indiana House
Representatives, District 65); Rep. Peggy Mast (Kansas House Representatives,
District 76); Del. Neil Parrott (Maryland House Delegates, District 2A); Rep.
Becky Currie (Mississippi House Representatives, District 92); Rep. Laurence
Rappaport (New Hampshire House Representatives District 1); Rep. Jordan
Ulery (New Hampshire House Representatives, District 37); Rep. William Brien (New Hampshire House Representatives, District 05); Sen. Steven
Oroho (New Jersey State Senate, District 24); Assemblywoman Alison Littell
McHose (New Jersey Assembly, District 24); Assemblyman Parker Space (New
Jersey Assembly, District 24); Rep. Yvette Herrell (New Mexico House
Representatives, District 51); Rep. George Cleveland (North Carolina House
Representatives, District 14); Sen. Kim Thatcher (Oregon State Senate, District
13); Sen. Charles McIlhinney Jr. (Pennsylvania State Senate, District 10); Rep.
Mark Mustio (Pennsylvania House Representatives, District 44); Rep. Brad
Roae (Pennsylvania House Representative, District 6); Sen. Marc Cote (Rhode
Island State Senate, District 24); Rep. Michael Pitts (South Carolina House
Representatives, District 14); Sen. Bill Ketron (Tennessee State Senate, District
13); Rep. Sheila Butt (Tennessee House Representatives, District 64); Rep.
James White (Texas House Representatives, District 19); Del. John Overington
(West Virginia House Delegates, District 62); Del. Kelli Sobonya (West
Virginia House Delegates, District 18).
-1-
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neighborhoods, cities, counties, and states that Amicus represents are being
adversely affected the influx large populations unlawfully present aliens.
Amicus concerned that these effects will exacerbated the Deferred Action
for Parents American and Lawful Permanent Residents DAPA program
issue this case. The DAPA program Executive amnesty will further
strain the resources the States and continue erode the rule law. Amicus
submits this brief support the States challenging the implementation the
DAPA program and provide perspective States attempting protect their
citizens from the ill effects illegal immigration.2
ARGUMENT
Sovereign States Are Entitled Protect Their Citizens from
the Effects Illegal Immigration.
Upon taking office, the President the United States takes oath that
will faithfully execute the law. U.S. CONST., art. cl. stunning
abdication that duty, the Executive Branch has unilaterally rewritten
longstanding federal immigration law, purportedly granting legal presence
over four million individuals who are currently the country illegally. The
Amicus files this brief with the consent all parties and pursuant Rule
29(b) the Federal Rules Appellate Procedure. addition, pursuant Rule
29(c) the Federal Rules Appellate Procedure, Amicus states that counsel
for party authored this brief whole part, and counsel party made
monetary contribution intended fund the preparation submission this brief.
Nor did any person other than Amicus its counsel make monetary contribution its preparation submission.
-2-
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DAPA program would also make those individuals eligible for wide variety
state and federal benefits, including driver licenses and Social Security benefits.
The U.S. Supreme Court has limited States ability act regard
immigration, the basis that immigration federal domain. See Arizona
United States, 132 Ct. 2492 (2012). Implicit its decision was that the Federal
government would follow its own laws. Instead, now have the situation where
States must endure not just lack enforcement, but purposeful abdication the
duty faithfully execute the law. The States must allowed protect
themselves from this lawless action.
The Illegal Immigration Crisis and the Role the States.
Many States, including those represented Amicus, continue grapple
with the severe costs imposed the presence unlawfully present aliens. The
U.S. Supreme Court has acknowledged the severe consequences unlawful
immigration upon States, such Arizona, where there epidemic crime,
safety risks, serious property damage, and environmental problems associated
with the influx unlawfully present aliens. U.S. Arizona, 132 Ct. 2500.
The Court recognized that these problems posed Arizona and experienced
many other States must not underestimated. Id. These problems and costs
are the direct result the Federal government failure enforce our nation
immigration laws.
-3-
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Date Filed: 05/11/2015 the absence Federal action, the States have tried fill the void.
number States adopted laws intended address the effects unlawfully
present aliens. See, e.g., Stephen Ceasar, Immigration Bills Record High for
States: The Legislation Points Frustration with the Federal Government Lack Action, Los Angeles Times AA2 (Aug. 10, 2011) (citing total 1,592
immigration-related bills nationwide). These measures relied States
longstanding and well-established police power protect their citizens and
lawfully present aliens within their jurisdiction. Consistent with the principles
federalism, these measures did not challenge the primacy the federal
government authority regulate immigration. Instead, they were harmony
with the directives and goals federal immigration law.
Ultimately, the U.S. Supreme Court reviewed the best known these State
laws Arizona S.B. 1070. With the stated goal attrition through
enforcement, S.B. 1070 created disincentives for unlawfully present aliens
enter remain the United States. 132 Ct. 2497. These included creating
misdemeanor offences for failure comply with federal alien-registration
requirements and for unlawfully present alien seek engage work. five
member majority the Court ruled that most the challenged provisions S.B.
-4-
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1070 were preempted federal law.3 The Court majority based its ruling
what saw the broad, undoubted power the Federal Government relation immigration, its inherent power conduct relations with foreign nations, and
its extensive and complex regulation aliens who may not admitted the
United States. Id. 2498-99.
The ruling Arizona United States significantly curtailed the room for
the States act. Nevertheless, recognizing that was foreclosing significant
role for the States, the Court majority emphasized that the Federal Government
must act. stated the Court:
The National Government has significant power
regulate immigration. With power comes responsibility,
and the sound exercise national power over
immigration depends the Nation meeting its
responsibility base its laws political will informed searching, thoughtful, rational civic discourse.
Arizona may have understandable frustrations with the
problems caused illegal immigration while that
process continues, but the State may not pursue policies
that undermine federal law.
132 Ct. 2510. least implicit this conclusion that the sound exercise national power involves enforcing the laws. more than implicit that
unilateral re-writing the law not part rational civic discourse.
Only one provision requiring police officers inquire the immigration
status person while conducting lawful stop (Section 2(B)) survived largely
because had not yet gone into effect and there was evidence how
would applied practice.
-5-
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The Federalist Structure Does Not Function When One Party
Ignores the Law. 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 U.S. 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.
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Gregory, 501 U.S. 457 (citing Texas White, U.S. 700 (1869), quoting Lane
County Oregon, U.S. (1869)). This concept dual sovereignty
embodied the Constitution 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). noted above, often
overlooked the fundamental purpose the federal structure joint sovereigns.
The Constitution does not protect the sovereignty
States for the benefit the States state governments abstract political entities, even for the benefit the
public officials governing the 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
Hosp. Scanlon, 473 U.S. 234, 242 (1985) (The constitutionally mandated
balance power between the States and the Federal Government was adopted
the Framers ensure the protection our fundamental liberties. San Diego
Building Trades Council Garmon, 359 U.S. 236, 243 (1959) (The Federal
-7-
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System exists not matter doctrinaire localism but promoter
democracy. the Supreme Court explained:
The States exist refutation that concept.
choosing ordain and establish the Constitution, the
people insisted upon federal structure for the very
purpose rejecting the idea that the will the people
all instances expressed the central power, the one
most remote from their control.
Alden Maine, 527 U.S. 706, 759 (1999).
Similar checks and balances between co-equal branches government,
this Federalist structure and the separation powers was consciously designed
prevent governmental tyranny which ... closely related [the] arbitrary and
capricious government. Robert Delhunty and John Yoo, Dream On: The
Obama Administration Nonenforcement Immigration Laws, the DREAM Act,
and the Take Care Clause, Tex. Rev. 781 (2013) (citing George Carey,
Separation Powers and the Madisonian Model: Reply Critics, Am. Pol.
Sci. Rev. 151, 156 (1978)). Because the Federal government has abdicated its
duties with respect immigration and has ignored the rule law, the Federalist
structure has been weakened.
Sovereign States Are Not Powerless When
the Federal Government Ignores Its Own Laws.
Federal failure effectively enforce immigration laws not new
development. Justice Scalia once wryly noted, nobody would [have thought]
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that the Federal Government would not enforce [immigration laws]. course, one would have expected that. Chamber Commerce Whiting, No. 09-115,
Tr. Oral Arg. pp. 7-8 (U.S. Dec. 2010). While not surprising, this failure
enforce the law has left the States dealing with the consequences for many years.
The federal neglect enforcement the law has now been compounded
something new: intentional abdication statutory responsibility and
rewriting the law the Executive Branch. While was not issue before the
Supreme Court Arizona United States, was the horizon. The DAPA
program issue this case was preceded 2012 another blanket amnesty
program for so-called dreamers, exempting from immigration enforcement some
1.4 million illegal immigrants under the age 30. this case, the Federal
government claimed was exercising prosecutorial discretion and allocating
scarce enforcement resources. his prescient dissent Arizona United
States, Justice Scalia wrote:
Must Arizona ability protect its borders yield the
reality that Congress has provided inadequate funding for
federal enforcement or, even worse, the Executives
unwise targeting that funding? But leave that aside.
has become clear that federal enforcement priorities
the sense priorities based the need allocate
scarce enforcement resources not the problem
here. After this case was argued and while was under
consideration, the Secretary Homeland Security
announced program exempting from immigration
enforcement some 1.4 million illegal immigrants under
the age 30.
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132 Ct. 2521. This previous program, like the current DAPA program, involved
deferred action against unlawfully present aliens for period two years
subject renewal. Justice Scalia noted, wide-spread amnesty program such the DAPA program actually hinders enforcement the law:
The husbanding scarce enforcement resources can
hardly the justification for this, since the considerable
administrative cost conducting many 1.4 million
background checks, and ruling the biennial requests
for dispensation that the nonenforcement program
envisions, will necessarily deducted from immigration
enforcement.
Id. (emphasis original). this case, the States are seeking protect their sovereignty from Federal
government that now openly and willfully disregards the plain language the law. the States are seeking nothing more than that Federal law obeyed, the
argument that they are somehow limited doing this boggles the mind. 132
Ct. 2521 (Scalia, dissenting). The States are entitled protect themselves.
II.
The States are Likely Succeed the Merits the Federal
Government Must Comply With Its Own Laws.
The Federal government bound follow the law. This principle, which
should unremarkable, was considered detail case that has not been
discussed the parties. case that raise[d] significant questions about the
scope the Executive authority disregard federal statutes, the U.S. Court
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Appeals for the D.C. Circuit declared that [u]nder Article the Constitution
and relevant Supreme Court precedents, the President must follow statutory
mandates long there appropriated money available and the President has
constitutional objection the statute. Aiken County, 725 F.3d 255, 257-59
(D.C. Cir. 2013). issue Aiken County was petition for writ mandamus
that sought compel the Nuclear Regulatory Commission adhere statutory
deadline for completing the licensing process for approving disapproving
application store nuclear waste Yucca Mountain Nevada. the Court
explained,
[i]f the President has constitutional objection
statutory mandate the President may decline follow
the law unless and until final Court order dictates
otherwise. But the President may not decline follow
statutory mandate simply because policy
objections. course, Congress appropriates
money for statutorily mandated program, the Executive
obviously cannot move forward. But absent lack
funds claim unconstitutionality that has not been
rejected final Court order, the Executive must abide statutory mandates. These basic constitutional
privileges apply the President and subordinate
executive agencies. Aiken County, 725 F.3d 259. granting the petition, the D.C. Circuit
concluded: overstatement say that our constitutional
system separation powers would significantly
altered were allow executive and independent
agencies disregard federal law the manner asserted
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Date Filed: 05/11/2015 this case the Nuclear Regulatory Commission. Our
decision today rests the constitutional authority
Congress and the respect that the Executive and the
Judiciary properly owe Congress the circumstances
here.
Id. 267.
The same true here. The Executive Branch has claimed constitutional
concerns with existing federal immigration statutes. The Executive Branch simply
seeks replace Congress policy choice about whether unlawfully present aliens
may remain the United States with its own preference. The plain language and
express purposes federal immigration law make clear Congress policy choices.
The Constitutional authority Congress well the respect that the Executive
and Judicial Branches owe Congress demands that Congress policy choice
prevails. When the legislative and executive powers are united the same
person body there can liberty THE FEDERALIST No. 271
(James Madison) (C. Rossiter ed. 1999) (quoting Montesquieu). The States should allowed proceed.
CONCLUSION
For these reasons, the preliminary injunction should affirmed.
Case: 15-40238
Document: 00513037682
Dated: May 11, 2015
Date Filed: 05/11/2015
Respectfully Submitted,
/s/ James Peterson
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Amicus Curiae
Case: 15-40238
Document: 00513037682
Date Filed: 05/11/2015
CERTIFICATE COMPLIANCE
This brief complies with the type-volume limitation Fed. App.
32(a)(7)(B) because this brief contains 3,926 words, excluding the parts the
brief exempted Fed. App. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements Fed. App.
32(a)(5) and the type style requirements Fed. App. 32(a)(6) because this
brief has been prepared proportionally spaced typeface using Microsoft Word
2010 proportional Times New Roman, 14-point font.
/s/ James Peterson
Case: 15-40238
Document: 00513037682
Date Filed: 05/11/2015
CERTIFICATE SERVICE hereby certify that this 11th day May 2015, filed the foregoing via
the CM/ECF system and served the foregoing via the CM/ECF system all
counsel who are registered CM/ECF users.
/s/ James Peterson