Valle del Sol v. Whiting
The ACLU brought this lawsuit on behalf of several special interest groups, unlawfully present aliens, and others to challenge provisions in Arizona’s Senate Bill 1070. Much of the lawsuit was mooted in light of the U.S. Supreme Court’s decision in Arizona v. United States, although the case still contained several important issues, including whether Arizona can criminalize the harboring and transporting of illegal aliens within the state of Arizona.
The district court held that SB 1070, Section 5 was both field and conflict preempted. The district court held the law was field preempted because, “Federal immigration law creates a comprehensive system to regulate the transportation, concealment, movement, or harboring of unlawfully present people in the United States.” Field preemption requires such “pervasive” legislation “that Congress left no room for the States to supplement it.” Arizona v. United States, 132 S. Ct. 2492, 2500-01 (2011). As for conflict preemption, the district court held that Congress authorized states to arrest individuals for violating the federal harboring laws, but did not permit states to draft their own laws mirroring federal laws. Finally, the district court implied in its holding that a potential discretionary action by an ICE agent should have preemptive effect on State authority.
On November 15, 2012, IRLI filed a friend-of-the-court brief (attached here) in the U.S. Court of Appeals for the Ninth Circuit supporting Arizona’s right to enforce federal harboring laws. IRLI explained in its brief that the district court’s field preemption holding was incorrect for three reasons. First, the Supreme Court and the Ninth Circuit have already rejected a field preemption claim for harboring, so the district court’s holding is precluded by prior case law. Second, Congress expressly permitted state and local officers to enforce the federal harboring statutes, so by definition field preemption cannot occur. And third, the number of statutes which comprise the federal harboring laws are miniscule, and therefore logically cannot be pervasive enough to constitute field preemption.
As for conflict preemption, IRLI explained that the district court’s analysis was incorrect for two reasons. First, it turned preemption doctrine on its head. Preemption examines whether Congress intended to deprive a state of its prior authority, not whether Congress intended to grant new authority to a state. Second, the holding ignored previous Supreme Court precedent involving the federal harboring statutes and ignores long-standing precedent holding that States may enact laws which mirror federal laws.
Finally, IRLI explained that it is Congress, not Executive Branch enforcement officials, that has the power to preempt, that Supreme Court precedent precludes holding otherwise, and that Congress has drafted other statutes demonstrating that ICE agents do not have exclusive authority to enforce the federal harboring provisions anyway.