On February 13, 2012, two amicus briefs, one by IRLI and another by IRLI-affiliated outside attorney Kris Kobach, were filed with the U.S. Supreme Court in the U.S. v. Arizona (SB 1070) litigation.  The combined briefs present nineteen essential legal points which explain how the three challenged provisions of SB1070 are in full harmony with the federal immigration laws enacted by Congress. The briefs also explain the provisions of the U.S. Constitution which delineate the complementary roles of Congress, the executive branch, and the states in the enforcement of American immigration and nationality law.

The briefs lay out legal theories that IRLI has been developing for nearly a decade. In the first Brief, IRLI and the American Center for Law and Justice jointly represent fifty-five Members of Congress and two United States Senators. The second Brief was filed by Kansas Secretary of State Kris Kobach on behalf of the Secure States Initiative advocacy organization.  The historic case will be heard by the Justices on April 25th.

The Brief of Members of Congress (attached below) methodically deconstructs the argument that the “priorities and strategies” of the Obama administration can preempt the clear and manifest purpose of Congress to welcome state involvement in the enforcement of immigration law.  By attempting to nullify SB 1070, the Administration has ignited an untenable conflict between Congressional immigration policy and this Administration’s “priorities” that violates the separation of powers doctrine. Where a conflict arises between federal statutory law and a president’s policy objectives in the area of immigration, the statutory laws passed by Congress must prevail. 

The Brief argues that SB 1070 does not impede federal law, because it incorporates federal standards. States, as independent sovereigns, have always had the inherent authority to assist in the enforcement of federal immigration law, so long as they did not alter the conditions imposed by Congress under which aliens may enter or remain in the United States. 

Since 1994, Congress has continuously enacted enforcement-focused laws to encourage state participation.  Federal immigration officers must respond to state and local inquiries about immigration status, while states or localities are barred from making it more difficult for their officers and agents to cooperate with the federal government in investigating unlawfully present aliens.  The Brief explains that courts may only preempt state laws if that is the clear and manifest purpose of Congress, and must not engage in a “freewheeling judicial inquiry,” which was expressly proscribed by the Supreme Court in last year’s Chamber of Commerce v. Whiting decision.  

In particular, the Brief explains that the SB 1070 alien registration provision promotes identical federal requirements that aliens register and carry their document with them at all times.  The Brief dissects the flawed decision issued by the Ninth Circuit in 2011, when it held the SB 1070 provision prohibiting illegal aliens from seeking employment to be preempted. Congress clearly intended to preserve jobs for American workers when it enacted the employer sanction laws. The Brief reemphasized that the states bear the overwhelming brunt of the social and economic costs resulting from unchecked illegal immigration, and suppressing SB 1070 would violate basic principles of federalism and comity.

The Secure States Initiative Brief (attached below) states that the fundamental flaw in the Ninth Circuit decision is that it did not identify a single federal statute that unmistakably expresses federal intent to preempt state laws like SB 1070.  On the contrary, Congress has mandated that DHS make the inspection and registration of all aliens its top priority. The SSI joins the Members of Congress in warning that the Ninth Circuit’s holding, that DHS agency policy, rather than Congress’ intent as expressed by statute can preempt Arizona’s law, threatens to drastically alter the balance of power between Congress and the President. The Brief sets out the plethora of federal statutes that authorize and encourage state laws like SB 1070. 

The SSI Brief also argues that the Ninth Circuit created an arbitrary and unsustainable distinction between criminal and civil provisions of U.S. immigration law.  Focusing on the alien registration provision, the Brief shows how the Ninth Circuit ignored the doctrine of concurrent enforcement, which holds that there can be no implied preemption where a state law prohibits conduct that is already prohibited by federal law.

“We hope that these important Briefs will help the Supreme Court forcefully roll back the dangerous attempted usurpation by the Administration of both the plenary power of Congress to regulate immigration and naturalization, and the inherent right of the states to concurrently enforce federal laws,” said IRLI General Counsel Mike Hethmon.  “These briefs show definitively that where state protection occurs harmoniously with federal immigration policies established by Congress, the courts must uphold those State statutes. We hope that by bringing the Executive Branch back into its proper relation with both Congress and the states, the Supreme Court will reaffirm the principles of a sustainable immigration enforcement system for the American people.”