U.S. v. State , 10–16645.

Decision Date11 April 2011
Docket NumberNo. 10–16645.,10–16645.
Citation641 F.3d 339
PartiesUNITED STATES of America, Plaintiff–Appellee,v.State of ARIZONA; Janice K. Brewer, Governor of the State of Arizona, in her official capacity, Defendants–Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HEREWest CodenotesValidity Called into DoubtA.R.S. §§ 11–1051(B), 13–707(A)(1), 13–1509(F, H), 13–3883(A)(5).

John J. Bouma, Robert A. Henry, Joseph G. Adams, Joseph A. Kanefield, Office of Governor Janice K. Brewer, for defendants-appellants State of Arizona, and Janice K. Brewer, Governor of the State of Arizona.Edwin Kneedler, Deputy United States Solicitor General, Tony West, Assistant Attorney General, Dennis K. Burke, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Thomas M. Bondy, Michael P. Abate, Daniel Tenny, Attorneys, Appellate Staff Civil Division, Department of Justice, for plaintiff-appellee United States of America.Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:10–cv–01413–SRB.Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.Opinion by Judge PAEZ; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge BEA.


PAEZ, Circuit Judge:

In April 2010, in response to a serious problem of unauthorized immigration along the Arizona–Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 (“S.B. 1070”), “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona.” S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B. 1070 establishes a variety of immigration-related state offenses and defines the immigration-enforcement authority of Arizona's state and local law enforcement officers.

Before Arizona's new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act (INA), and that it violated the Commerce Clause. Along with its complaint, the United States filed a motion for injunctive relief seeking to enjoin implementation of S.B. 1070 in its entirety until a final decision is made about its constitutionality. Although the United States requested that the law be enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F.Supp.2d 980, 992 (D.Ariz.2010).

The district court granted the United States' motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Id. at 1008. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States' likelihood of success on its federal preemption argument against these four sections is the central issue this appeal presents.1

We have jurisdiction to review the district court's order under 28 U.S.C. § 1292(a)(1). We hold that the district court did not abuse its discretion by enjoining S.B. 1070 Sections 2(B), 3, 5(C), and 6. Therefore, we affirm the district court's preliminary injunction order enjoining these certain provisions of S.B. 1070.

Standard of Review

We review the district court's grant of a preliminary injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc). A preliminary injunction “should be reversed if the district court based ‘its decision on an erroneous legal standard or on clearly erroneous findings of fact.’ Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) ( quoting FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1211–12 (9th Cir.2004)). We review de novo the district court's conclusions on issues of law, including “the district court's decision regarding preemption and its interpretation and construction of a federal statute.” Am. Trucking Ass'ns, Inc. v. Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).

I. General Preemption Principles

The federal preemption doctrine stems from the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the “fundamental principle of the Constitution [ ] that Congress has the power to preempt state law.” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Our analysis of a preemption claim

[M]ust be guided by two cornerstones of [the Supreme Court's] pre-emption jurisprudence. First, the purpose of Congress is the ultimate touchstone in every pre-emption case.... Second, [i]n all preemption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied, ... [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.

Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1194–95, 173 L.Ed.2d 51 (2009) (internal quotation marks and citations omitted) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).

Even if Congress has not explicitly provided for preemption in a given statute, the Supreme Court “ha[s] found that state law must yield to a congressional Act in at least two circumstances.” Crosby, 530 U.S. at 372, 120 S.Ct. 2288. First, [w]hen Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Id. (quoting California v. ARC America Corp., 490 U.S. 93, 100, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989)). Second, “even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.” Id. Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Id. at 372–373, 120 S.Ct. 2288. Impossibility preemption exists “where it is impossible for a private party to comply with both state and federal law.” Id. Obstacle preemption exists “where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Id. at 373, 120 S.Ct. 2288 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). To determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our “judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Id.2

We recently applied the facial challenge standard from United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), to a facial preemption case. Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579–80 (9th Cir.2008) (en banc). In Sprint, the appellant argued that a federal law “preclud[ing] state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” facially preempted a San Diego ordinance that imposed specific requirements on applications for wireless facilities. Id. at 573–74. We explained in Sprint that [t]he Supreme Court and this court have called into question the continuing validity of the Salerno rule in the context of First Amendment challenges.... In cases involving federal preemption of a local statute, however, the rule applies with full force.” Id. at 579, n. 3. 3

Thus, under Salerno, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” Sprint, 543 F.3d at 579 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona's framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.4

II. Section 2(B)5

S.B. 1070 Section 2(B) provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they “shall” make “a reasonable attempt ... when practicable, to determine the immigration status” of the person. Ariz.Rev.Stat. Ann. § 11–1051(B) (2010). Section 2(B)'s second and third sentences provide that [a]ny person who is arrested shall have the person's immigration status determined before the person is released,” and [t]he person's immigration status shall be verified with the federal government.” Id. The Section's fifth sentence states that a “person is presumed to not be an alien who is unlawfully present in the United States if the person provides” a form of identification included in a prescribed list.6

A. Interpretation of Section 2(B)

To review the district court's preliminary injunction of Section 2(B), we must first determine how the Section's sentences relate to each other. Arizona argues that Section 2(B) does not require its officers to determine the immigration status of every person who is arrested. Arizona maintains that the language in the second sentence, [a]ny person who is arrested shall have the person's immigration status determined,”...

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