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81 Members of Congress File 'Friend of the Court' Brief Supporting Arizona in US v. Arizona
CONTACT: Fritz Chaleff with Bilbray
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CONTACT: Bethany Haley with Franks
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CONTACT: Jamie Zuieback with Smith
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WASHINGTON, D.C.— Congressman Trent Franks (AZ-02), a member of the Immigration Reform Caucus, Congressman Brian Bilbray (CA-50), Chairman of the Immigration Reform Caucus, and Congressman Lamar Smith (TX-21), Ranking Member on the Judiciary Committee, have filed an Amicus Curiae, or Friend of the Court Brief, with the United States District Court in Arizona in regards to the Obama Administration’s lawsuit US v. Arizona. The brief supports Arizona and was filed on behalf of the bipartisan Immigration Reform Caucus, 76 Members of the House of Representatives and five U.S. Senators. The brief explains how the Obama Administration’s claim that Arizona’s law, SB 1070, preempts federal immigration law is without merit.
Congressman Franks stated, "President Obama is going to end up having to sue several states, including Rhode Island and others, if the Administration wants to sue everyone who tries to enforce immigration law. This is in addition to the numerous other states who have either introduced legislation similar to Arizona's (such as Michigan, South Carolina, Minnesota, and Pennsylvania,) and as many as 15 others have expressed a desire to pass a law similar to SB 1070. The American people want an effective, enforced federal immigration policy and secure borders. The last thing this ridiculous lawsuit is doing is making our laws more clear or our border more secure, and President Obama must continue to hear that the Members who signed this brief, along with the American people, strongly oppose the ongoing politicization of this serious national security and federal immigration issue."
"Arizona has every right to defend itself against illegal immigration," said Congressman Bilbray. "The federal government has failed to live up to its responsibility to enforce federal law concerning immigration, and Arizona's law does not preempt federal statutes. It is time to stop playing politics, roll up our sleeves and get to work on a bipartisan immigration bill that addresses America's border security, goes after employers who exploit illegal immigrants and reduces identity theft."
Bilbray continued, "I stand by my claim: the bipartisan Immigration Reform Caucus is ready and willing to meet with President Obama to address bipartisan and meaningful immigration reform."
Ranking Member on the Committee on the Judiciary Lamar Smith said, "The Obama administration is wrong to sue the State of Arizona. The Arizona law is favored by a majority of Arizonans and Americans. Also the Arizona law mirrors federal law and is only necessary because the Obama administration has failed to do its job. Instead of suing Arizona, the Obama administration should stand up for citizens and legal immigrants, enforce our immigration laws and secure the border."
The text of the brief follows, and is included as an attachment. The Federation for American Immigration Reform and the American Center for Law and Justice have come out in support of the Immigration Reform Caucus’ brief.
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The following Members of the House and Senate have signed onto the brief:
1) Congressman Trent Franks
2) Congressman Brian Bilbray
3) Congressman John Campbell
4) Congressman Gary Miller
5) Congresswoman Marsha Blackburn
6) Congresswoman Michele Bachmann
7) Congressman Duncan Hunter
8) Congressman Bill Posey
9) Congressman Ted Poe
10) Congressman Howard Coble
11) Congressman Todd Tiahrt
12) Congressman Rodney Alexander
13) Congressman John Sullivan
14) Congresswoman Virginia Foxx
15) Congressman John Fleming
16) Congressman Jerry Moran
17) Congressman Steve King
18) Congresswoman Sue Myrick
19) Congressman John Duncan
20) Congressman Jeff Miller
21) Congressman Mike Simpson
22) Congressman Scott Garrett
23) Congressman Mike Coffman
24) Congressman Jim Jordan
25) Congressman Thaddeus McCotter
26) Congressman Walter Jones
27) Congressman Paul Broun
28) Congressman John Culberson
29) Congressman John Boozman
30) Congressman Ed Royce
31) Congressman Jack Kingston
32) Congressman J. Gresham Barrett
33) Congressman Pete Hoekstra
34) Congressman John Carter
35) Congressman Tom McClintock
36) Congressman Ed Whitfield
37) Congressman Patrick McHenry
38) Congresswoman Jean Schmidt
39) Congressman Robert Aderholt
40) Congressman John Kline
41) Congressman Phil Gingrey
42) Congressman Joe Pitts
43) Congresswoman Cynthia Lummis
44) Congressman John Shadegg
45) Congressman Michael Burgess
46) Congressman Spencer Bachus
47) Congressman Lamar Smith
48) Congressman Kevin Brady
49) Congressman Todd Platts
50) Congressman Jason Chaffetz
51) Congressman Robert Latta
52) Congressman Phil Roe
53) Congressman Mike Rogers
54) Congressman Rob Wittman
55) Congressman Dana Rohrabacher
56) Congressman Elton Gallegly
57) Congresswoman Ginny Brown-Waite
58) Congressman Louie Gohmert
59) Congressman Wally Herger
60) Congressman Gene Taylor
61) Congressman Geoff Davis
62) Congressman Tom Graves
63) Congressman Tom Price
64) Congressman Cliff Stearns
65) Congressman Jerry Lewis
66) Congressman Gus Bilirakis
67) Congresswoman Lynn Jenkins
68) Congressman Tim Murphy
69) Congressman Randy Neugebauer
70) Congressman Doug Lamborn
71) Congressman Bob Goodlatte
72) Congressman Ken Calvert
73) Congressman Michael McCaul
74) Congressman David Dreier
75) Congressman Rob Bishop
76) Congressman J. Randy Forbes
77) Senator Roger Wicker
78) Senator Jim DeMint
79) Senator David Vitter
80) Senator James Inhofe
81) Senator John Barrasso
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|
Michael M. Hethmon*
Counsel of Record
Garrett Roe*
Immigration Reform Law Institute
25 Massachusetts Ave, NW Suite 335
Washington, DC 20001
(202) 232-5590
|
Jay Alan Sekulow*
Counsel of Record
Colby M. May*
Amer. Center for Law & Justice
201 Maryland Ave., NE
Washington, DC 20002
(202) 546-8890
(202) 546-9309 (fax) |
*Not admitted in this jurisdiction
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
_______________________________
United States of America, )
)
Plaintiff )
v. )
) CASE NO. CV-10-1413-SRB
The State of Arizona; and )
Janice K. Brewer, Governor )
of the State of Arizona, in her )
Official Capacity, )
Defendant. )
______________________________ )
BRIEF OF AMICUS CURIAE, MEMBERS OF THE UNITED STATES CONGRESS [INSERT MEMBERS’ AND SENATORS’ NAMES] IN SUPPORT OF DEFENDANTS STATE OF ARIZONA AND GOVERNOR OF ARIZONA JAN BREWER AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION[1]
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
INTEREST OF AMICI
Amici, the above captioned United States Representatives and Senators, are currently serving in the One Hundred Eleventh Congress. Amici are committed to the constitutional principles of federalism and to separation of powers, both of which are jeopardized by the Plaintiff’s attack against Arizona.
ARGUMENT
CONGRESS HAS PLENARY POWER OVER IMMIGRATION, AND Plaintiff’s CLAIM THAT ITS AUTHORITY TO ENFORCE THE LAW PREEMPTs S.B. 1070 IS MERITLESS.
Congress has plenary power over immigration law, INS v. Chadha, 462 U.S. 919, 940 (1983), and as Plaintiff notes, the laws Congress has passed reflect national and foreign policy goals. Cmpl. ¶ 19. SB 1070 does not interfere with U.S. foreign policy goals as prescribed by Congress.
Plaintiff argues that “S.B. 1070 is independently preempted because it impermissibly conflicts with U.S. foreign policy.” Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Supp. Thereof (“Pl. Br.”) at 22. Plaintiff claims that “S.B. 1070 is preempted under these principles because it undermines the ability of the United States to speak with one voice . . . and wrests primacy over immigration enforcement away from the federal government.” Id. at 24. Plaintiff states that S.B. 1070 infringes on the Executive’s “broad authority over foreign affairs” to ensure immigration law has minimal impact on U.S. foreign policy. Cmpl. ¶ 16; see also 2, 4, 19, 22, 36-39, 42, 62, 65. Plaintiff imagines that this “broad authority” comes from a congressional grant of “discretion” in the immigration laws” to balance “multiple interests as appropriate,” such as humanitarian and foreign policy interests. Cmpl. ¶¶ 17, 19. Plaintiff fundamentally misapprehends the nature of its authority to enforce immigration law.
While it is true that the Executive has power to conduct United States foreign policy, the Constitution assigned to Congress plenary power to prescribe the immigration laws. Chadha, 462 U.S. at 940 (“The plenary authority of Congress over aliens . . . is not open to question”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1893) (identifying numerous authorities for Congressional power over aliens). Where Congress has prescribed those laws, the Executive must follow Congress’s direction. See, e.g., Zadvydas v. Davis, 533 U.S. 678, at 696-99 (2001) (Holding the Attorney General had no power to detain aliens indefinitely because that power conflicted with 8 U.S.C. § 1231(a)(6)); Jama v. ICE, 543 U.S. 335, 368 (Souter, J., dissenting) (noting in the case that “Congress itself . . . significantly limited Executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens.”). [2]
As Plaintiff notes, “[t]he Supreme Court has recognized the ‘Nation’s need to “speak with one voice” in immigration matters.’” Pl. Br. at 23 (citing Zadvydas v. Davis, 533 U.S. 678, 700 (2001); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003). Plaintiff also recognizes that, “[i]n crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests,” including foreign policy. Cmpt. ¶19; see Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to [among other things] the conduct of foreign relations.”). The immigration laws, some of which grant discretion to the Executive, balance these concerns primarily within the constraints of each statute’s text, not Executive officials’ exercise of prosecutorial discretion. C.f., Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339-40 (1909) (Congressional authority over aliens “embraces every conceivable aspect of that subject”); Jama, 543 U.S. at 368 (Souter, J. dissenting) (“Talk of judicial deference to the Executive in matters of foreign affairs, then, obscures the nature of our task here, which is to say not how much discretion we think the Executive ought to have, but how much discretion Congress has chosen to give it.”). Where Congress exercises plenary power to prescribe laws, Executive Officers must work within those constraints. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”).
Federal agency regulation only preempts state law, when the agency is acting within the scope of its congressionally delegated authority. Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986). The Department of Homeland Security (“DHS”) has no formal regulations expressly preempting SB 1070. Instead, Plaintiff relies on a novel claim that a general implied “prosecutorial discretion” to not impose federal sanctions on an alien violator, based on complex political policy considerations, can preempt in lieu of actual regulations. Pl. Br. at 4, 24. However, where agency preemption is only implied, the presumption against preemption is at its strongest:
“[A]s a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence.”
Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 717 (1985). As for the scope of the agency’s delegated authority, the Court may not, “simply . . . accept an argument that the [agency] may . . . take action which it thinks will best effectuate federal policy” because “an agency may not confer power upon itself.” Louisiana Public Serv. Com, 476 U.S. at 374. “To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress.” Id. at 374-75.
The Executive’s power to enforce federal immigration law does not confer the power to preempt state immigration enforcement by choosing, for foreign policy or other reasons, to selectively enforce the laws. Only the “clear and manifest purpose” of Congress preempts state laws. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008). As Section II describes below, S.B. 1070 is not preempted because it is fully consonant and integrated with federal immigration laws.
SB 1070 IS FULLY CONSONANT WITH FEDERAL IMMIGRATION POLICY that PROMOTes INCREASINGLY GREATER ROLES FOR THE STATE IN ENFORCING IMMIGRATION LAW.
As discussed in Section I, Acts of Congress express federal immigration policy, not the Executive’s enforcement authority, or for that matter, the current Administration’s political views. Congress has passed numerous acts that welcome state involvement in immigration control. Congress expressed its intent by (1) expressly reserving inherent state authority in immigration law enforcement (8 U.S.C. § 1357(g)(10)), (2) banning sanctuary policies that interfere with exercising that authority (8 U.S.C. §§ 1373(a)-(b), 1644), (3) requiring federal official to respond to state inquiries (8 U.S.C. § 1373(c)), (4) simplifying the process for making such inquiries (Law Enforcement Support Center “LESC”), (5) deputizing some officers as immigration agents (8 U.S.C. § 1357(g)(7)), and (6) compensating states that assist (8 U.S.C. §§ 1103(a)(11); 1231(i)). This body of law illustrates that it was not Congress’s “clear and manifest purpose” to preempt state laws such as SB 1070. See Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).
In recognizing and encouraging through congressional enactments cooperative enforcement of immigration law, Congress took care not to use its plenary power to restrict longstanding enforcement activity by police. See Peoria v. City of Gonzales, 722 F.2d 468, 474 (9th Cir. 1983); United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (officers have “general investigatory authority to inquire into possible immigration violations.”). But despite recognizing state assistance, Congress worried that “perceived federal limitations” could “tie[] the hands of…law enforcement officers.” United States v. Vasquez-Alvarez, 176 F.3d 1294, 1299 (10th Cir. 1999) (quoting 142 Cong. Rec. 4619 (1996)). Congress enacted 8 U.S.C. § 1252c[3] to clarify that state and local police could arrest an illegally present alien convicted of a felony and or
Congressman Franks is serving his fifth term in the U.S. House of Representatives and is a member of the Judiciary Committee, where he serves as Chairman of the Subcommittee on the Constitution and a member of the Subcommittee on Courts, Commercial and Administrative Law. He is also a member of the Armed Services Committee, where he serves on the Strategic Forces Subcommittee and the Subcommittee on Emerging Threats and Capabilities.
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