Sanctuary Cities Amicus Brief

Case: 17-16886, 12/22/2017, ID: 10701551, DktEntry: 25, Page 1 of 25
Case Nos.
Case Nos. 17-16886,
17-16886, 17-16887,
17-16887, 17-17478,
17-17478, 17-17480
17-17480
IN
IN THE UNITED STATES
THE UNITED COURT OF
STATES COURT APPEALS
OF APPEALS
FOR
FOR THE NINTH CIRCUIT
THE NINTH CIRCUIT
CITY AND COUNTY

CITY AND COUNTY OFOF SAN
SAN )
FRANCISCO,
FRANCISCO, )
Plaintiff-Appellee,
Plaintiff-Appellee, )
) Nos. 17-16886,
Nos. 17-16886, 17-17478
17-17478
v.
v. ) U.S. District
U.S. District Court
Court for Northern
for Northern
) California,
California, San Francisco
San Francisco
DONALD
DONALD J. TRUMP, et
J. TRUMP, et al.,
al., ) No. 3:17-cv-00485-WHO
No. 3:17-cv-00485-WHO
Defendants-Appellants.
Defendants-Appellants. )
)
)
COUNTY
COUNTY OF OF SANTA CLARA,
SANTA CLARA, )
Plaintiff-Appellee,
Plaintiff-Appellee, )
) Nos. 17-16887,
Nos. 17-16887, 17-17480
17-17480
v.
v. ) U.S. District
U.S. District Court
Court for Northern
for Northern
) California,
California, San Francisco,
San Francisco,
DONALD
DONALD J. TRUMP, et
J. TRUMP, et al.,
al., ) No. 3:17-cv-00574-WHO
No. 3:17-cv-00574-WHO
Defendants-Appellants.
Defendants-Appellants. )
BRIEF
BRIEF OF AMICI CURIAE
OF AMICI CURIAE THE
THE STATES OF WEST
STATES OF WEST VIRGINIA,
VIRGINIA,
LOUISIANA AND 9
LOUISIANA AND 9 OTHER
OTHER STATES IN SUPPORT
STATES IN OF DEFENDANTS-
SUPPORT OF DEFENDANTS-
APPELLANTS
APPELLANTS
PATRICK MORRISEY
PATRICK MORRISEY JEFF
JEFF LANDRY
LANDRY
ATTORNEY GENERAL
ATTORNEY GENERAL ATTORNEY GENERAL
ATTORNEY GENERAL
OF WEST
OF WEST VIRGINIA
VIRGINIA OF LOUISIANA
OF LOUISIANA
Erica N. Peterson
Erica N. Peterson Elizabeth Baker Murrill
Elizabeth Baker Murrill
Assistant Attorney
Assistant Attorney General
General Solicitor General
Solicitor General
Counsel
Counsel ofof Record
Record Office of
Office the Attorney
of the Attorney General
General
rd
Office of
Office the Attorney
General 1885 N.
1885 N. 33rd Street
Street
State
State Capitol Building 1,
Capitol Building 1, Room 26-E
Room 26-E Baton Rouge,
Baton Rouge, LA LA 70802
70802
Charleston, WV
Charleston, WV 25305
25305 Telephone: (225)
Telephone: (225) 326-6766
326-6766
Telephone: (304)
Telephone: (304) 558-2021
558-2021 Email: murrille@ag.louisiana.gov
Email: murrille@ag.louisiana.gov
Email:
Email: erica.n.peterson@wvago.gov
erica.n.peterson@wvago.gov Counsel for amicus
Counselfor amicus curiae State of
curiae State of
Counsel for amicus
Counselfor amicus curiae State of
curiae State of Louisiana
Louisiana
West
West Virginia
Virginia
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF
TABLE OF CONTENTS
CONTENTS ........................................................................................... ii
TABLE OF
TABLE OF AUTHORITIES
AUTHORITIES .................................................................................... ii
ii
INTEREST AND
INTEREST AND IDENTITY
IDENTITY OF AMICI .................................................................11
OF AMICI
SUMMARY OF ARGUMENT
SUMMARY OF ARGUMENT .................................................................................33
ARGUMENT .............................................................................................................55
ARGUMENT
I. The
I. Order Can
The Order Can Be Constitutionally Applied
Be Constitutionally Applied Under
Under The
The Spending
Spending Power
Power .......5
5
II. The
II. The Order And The
Order And The Act
Act Do
Do Not
Not Violate
Violate The Tenth Amendment
The Tenth Amendment .................10
10
CONCLUSION………………………...…………………………........................17
CONCLUSION 17
TABLE
OF AUTHORITIES
Cases
Cases
Arizona v.
Arizona v. United States,
United States,
567 U.S. 387
567 U.S. 387 (2012)
(2012) ....................................................................................... 15,
15, 1616
Bond v.
Bond v. United States,
United States,
564 U.S. 211
564 U.S. 211 (2011)
(2011) ................................................................................................22
Chamber
Chamber of of Commerce
Commerce of of U.S.
U.S. v.v. Whiting,
Whiting,
563 U.S. 582
563 U.S. (2011) ..............................................................................................16
582 (2011) 16
City of New
City of New York
York v.
v. United States,
United States,
179 F.3d
179 F.3d 29
29 (2d
(2d Cir.
Cir. 1999)
1999) ...................................................................................13 13
FERC v.
FERC Mississippi,
v. Mississippi,
456 U.S.
456 U.S. 742 (1982) ..............................................................................................15
742 (1982) 15
Foti v.
Foti v. City of Menlo
City of Menlo Park,
Park,
146 F.3d
146 F.3d 629 (9th Cir.
629 (9th 1998) ..................................................................................55
Cir. 1998)
Hodel v.
Hodel v. Virginia Surface Mining
Virginia Surface Mining & & Reclamation
Reclamation Ass Ass’n,'n,
452 U.S.
452 U.S. 264
264 (1981)
(1981) ..............................................................................................15
15
Hotel &
Hotel & Motel
Motel Ass
Ass’n of Oakland
'n of Oakland v. v. City
City of of Oakland,
Oakland,
344 F.3d
344 F.3d 959 (9th Cir.
959 (9th 2003) ..................................................................................55
Cir. 2003)
Massachusetts v.
Massachusetts v. United States,
United States,
435 U.S.
435 U.S. 444
444 (1978)
(1978) ................................................................................................99
Members of
Members of City
City Council
Council v.v. Taxpayers
Taxpayersfor for Vincent,
Vincent,
466 U.S.
466 U.S. 789 (1984) ................................................................................................55
789 (1984)
New York
New York v.v. United States,
United States,
505 U.S. 144
505 U.S. 144 (1992)
(1992) ................................................................................... 2,
2, 11,
11, 1212
Pennhurst State
Pennhurst State Sch.
Sch. && Hosp.
Hosp. v. Halderman,
v. Halderman,
451 U.S.
451 U.S. 11 (1981)
(1981) ....................................................................................................99
Printz v.
Printz v. United States,
United States,
521 U.S. 898
521 U.S. (1997) ................................................................................. 11,
898 (1997) 11, 12,
12, 1313
Reno v.
Reno v. Condon,
Condon,
528 U.S. 141
528 U.S. 141 (2000)
(2000) ....................................................................................... 13,
13, 1414
Sabri v.
Sabri v. United States,
United States,
541 U.S. 600
541 U.S. (2004) ................................................................................................77
600 (2004)
ii
ii
TABLE
OF AUTHORITIES
(continued)
(continued)
NFIB v.
NFIB Sebelius,
v. Sebelius,
567 U.S. 519
567 U.S. (2012) ................................................................................................99
519 (2012)
South Carolina
South Carolina v. Baker,
v. Baker,
485 U.S.
485 U.S. 505 (1988) ..............................................................................................14
505 (1988) 14
South Dakota
South Dakota v. Dole,
v. Dole,
483 U.S.
483 U.S. 203
203 (1987)
(1987) ............................................................................................3,
3, 8 8
Toll
Toll v. Moreno,
v. Moreno,
458 U.S.
458 U.S. 11 (1982)
(1982) ..................................................................................................15
15
United States v.
United States Butler,
v. Butler,
297 U.S.
297 U.S. 11 (1936)
(1936) ....................................................................................................88
United States v.
United States Salerno,
v. Salerno,
481 U.S.
481 U.S. 739 (1987) ................................................................................................55
739 (1987)
Wash. State Grange
Wash. State Grange v. v. Wash. State Republican
Wash. State Republican Party, Party,
552 U.S. 442
552 U.S. 442 (2008)
(2008) ................................................................................................55
Statutes
Statutes
8 U.S.C.
8 U.S.C. §§ 1373
1373 ................................................................................................ passim
passim
U.S. Const.
U.S. Const. amend.
amend. X X...............................................................................................1111
U.S. Const.
U.S. Const. art.
art. I,
I, §
§88....................................................................................... 7,
7, 8, 15
8, 15
U.S. Const.
U.S. Const. art.
art. VI,
VI, cl.
cl. 22 ...........................................................................................15
15
Rules
Rules
Fed. R.
Fed. App. P.
R. App. P. 29
29 ......................................................................................................11
Other Authorities
Other Authorities
Executive Order 13768,
Executive Order 13768, "Enhancing
“Enhancing Public Public Safety
Safety in in the
the Interior
Interior of of the
the United
United
States” (the "Order").
States" (the “Order”). Exec. Order No.
Exec. Order No. 13768,
13768, 82 82 Fed.
Fed. Reg.
Reg. 8,799
8,799
(Jan. 25,
(Jan. 25, 2017)
2017)...................................................................................................1, 3
1, 3
Jeffrey T. Renz,
Jeffrey T. Renz, What Spending Clause?
What Spending Clause? (Or (Or the President’s Paramour):
the President's Paramour): An An
Examination of
Examination of the
the Views
Views of of Hamilton,
Hamilton, Madison,
Madison, and and Story
Story on on Article
Article I, I, Section
Section
8, Clause
8, Clause II of
of the
the United States Constitution,
United States Constitution,
33 J.
33 J. Marshall
Marshall L.
L. Rev.
Rev. 81 81 (Fall
(Fall 1999)
1999) ...................................................................88
iii
iii
TABLE
OF AUTHORITIES
(continued)
(continued)
Relationship Between Illegal

Relationship Between Illegal Immigration
Immigration Reform
Reform and
and Immigrant
Immigrant Responsibility
Responsibility
Act of
Act of 1996
1996 and
and Statutory Requirement for
Statutory Requirement for Confidentiality
Confidentiality of Census
of Census
Information, 23
Information, 23 Op.
Op. O.L.C.
O.L.C. Supp. (May 18,
Supp. (May 18, 1999)
1999) ..............................................16
16
The Attorney
The Attorney General,
General, Memorandum
Memorandum for all Department
for all Department Grant-Making
Grant-Making
Components, Implementation
Components, Implementation ofof Executive
Executive Order 13768, Enhancing
Order 13768, Enhancing Public Public
Safety in
Safety in the Interior of
the Interior of the
the United States (May
United States (May 22,
22, 2017)
2017)............................ 6,
6, 7, 9
7, 9
iv
iv
INTEREST AND IDENTITY

INTEREST AND IDENTITY OF AMICI
OF AMICI
The States
The States of West Virginia,
of West Virginia, Louisiana, Alabama, Arkansas,
Louisiana, Alabama, Arkansas, Florida,
Florida, Kansas,
Kansas,
Nevada, Ohio,
Nevada, Ohio, Oklahoma,
Oklahoma, South
South Carolina, and Texas
Carolina, and Texas file this brief
file this brief under
under Rule 29(a)
Rule 29(a)
of the Federal
of the Federal Rules
Rules of
of Appellate Procedure!1 Amici
Appellate Procedure. Amici States have at
States have at least two
least two
important interests
important in this
interests in this appeal,
appeal, which
which concerns the district
concerns the district court’s
court's order
order
preliminarily enjoining
preliminarily enjoining Section
Section 9(a)
9(a) of
of President
President Trump’s
Trump's Executive
Executive Order 13768,
Order 13768,
“Enhancing Public
"Enhancing Public Safety in the
Safety in the Interior
Interior of the United
of the United States” (the "Order").
States" (the “Order”). Exec.
Exec.
Order No.
Order No. 13768,
13768, 82 Fed. Reg.
82 Fed. 8,799 (Jan.
Reg. 8,799 (Jan. 25, 2017).2
25, 2017).2
First, as
First, the chief
as the chief legal
legal officers
officers of their States,
of their the undersigned
States, the undersigned have
have an
an
important interest
important in complying
interest in with federal
complying with immigration law
federal immigration law and instructing state
and instructing state
and local
and local law
law enforcement to do
enforcement to do the
the same.
same. Cities
Cities and localities that
and localities that obstruct
obstruct
cooperation
cooperation on
on immigration
immigration enforcement between federal
enforcement between and local
federal and local officials—so-
officials—so-
called “sanctuary jurisdictions"—undermine

called "sanctuary jurisdictions”—undermine the
the rule
rule of
of law
law and deprive law
and deprive law
enforcement
enforcement of the tools
of the tools necessary
necessary to
to enforce the law
enforce the law effectively.
effectively. Sanctuary
Sanctuary
jurisdictions can
jurisdictions can cause harm to
cause harm to neighboring
neighboring States by making
States by making it
it easier
easier for people
for people
who are
who are not
not lawfully
lawfully in
in this
this country and have
country and have committed
committed civil
civil or
or criminal
criminal offenses
offenses
11 A
A State may "file
State may “file an
an amicus-curiae
amicus-curiae brief
brief without
without the
the consent
consent of the parties
of the parties or
or leave
leave
of
of court.” Fed. R.
court." Fed. App. P.
R. App. P. 29(a)(2).
29(a)(2).
2
Amici States
2 Amici States are aware that
are aware that Appellants
Appellants have
have also
also appealed
appealed the
the district
district court’s
court's order
order
granting summary
granting summary judgment
judgment (Nos.
(Nos. 17-17478
17-17478 and
and 17-17480)
17-17480) and
and that
that there
there isis aa
pending motion
pending motion to
to consolidate the appeals.
consolidate the The arguments
appeals. The arguments presented
presented inin this
this brief
brief
apply equally
apply to those
equally to those appeals.
appeals.
1
1
to evade
to law enforcement
evade law and travel
enforcement and travel out-of-state. For instance,
out-of-state. For instance, the
the City
City of Baltimore,
of Baltimore,
which has
which has adopted sanctuary city
adopted sanctuary policies, is
city policies, is aa significant
significant source
source of illegal drugs
of illegal drugs
flowing into the

flowing into the Eastern Panhandle of
Eastern Panhandle of West
West Virginia.
Virginia. Sanctuary policies deprive
Sanctuary policies deprive
jurisdictions of
jurisdictions of important
important tools
tools that
that could assist with
could assist with preventing
preventing such
such out-of-state
out-of-state
drug trafficking.
drug trafficking.
Second, the
Second, the States have aa significant
States have significant interest
interest in
in ensuring that federal
ensuring that federal
immigration policy,
immigration policy, including
including the
the directives
directives in the Order,
in the Order, is
is consistent with the
consistent with the
separation of
separation powers and
of powers and federalism principles inherent
federalism principles inherent in
in our
our Constitution.
Constitution. Those
Those
federalism principles both

federalism principles both protect
protect the
the sovereignty
sovereignty of the States
of the States and “secure[] to
and "secure[] to
citizens the liberties

citizens the liberties that
that derive
derive from the diffusion
from the diffusion of
of sovereign
sovereign power."
power.” See,
See, e.g.,
e.g.,
Bond v.
Bond v. United States, 564
United States, U.S. 211,
564 U.S. 211, 221
221 (2011)
(2011) (quoting
(quoting New
New York
York v.
v. United States,
United States,
505 U.S. 144,

505 U.S. 144, 181
181 (1992)).
(1992)).
Amici States
Amici respectfully submit
States respectfully submit that
that the
the district
district court
court erred
erred in issuing aa
in issuing
preliminary injunction
preliminary injunction enjoining implementation of
enjoining implementation of the
the Order.
Order. Plaintiffs
Plaintiffs cannot
cannot
succeed on
succeed the merits
on the merits of their claim
of their that the
claim that the Order
Order is
is facially unconstitutional under
facially unconstitutional under
principles of
principles of federalism and separation
federalism and separation of
of powers.
powers. When
When analyzed
analyzed under
under both
both the
the
Spending
Spending Power
Power and the Tenth
and the Tenth Amendment,
Amendment, there
there are
are ways
ways that
that the
the Order—which
Order—which
authorizes the
authorizes the Attorney
Attorney General or Secretary
General or Secretary of Homeland Security
of Homeland to place
Security to place
conditions on the
conditions on the States’ voluntary receipt
States' voluntary receipt of
of federal grant funds—can
federal grant be enforced
funds—can be enforced
with full
with full respect
respect for the role
for the role of the States
of the in our
States in our constitutional structure.
constitutional structure.
2
2
SUMMARY OF ARGUMENT
SUMMARY OF ARGUMENT
Appellees have
Appellees have mounted
mounted aa facial
facial challenge to the
challenge to the constitutionality of an
constitutionality of an
Executive
Executive Order
Order concerning immigration enforcement—an
concerning immigration area of
enforcement—an area of the
the law where
law where
Congress and
Congress and the
the President wield significant
President wield significant constitutional power. The
constitutional power. Order directs
The Order directs
the Attorney
the Attorney General
General and
and Secretary
Secretary of the Department
of the Department of
of Homeland
Homeland Security
Security
(“Secretary”), "in
("Secretary"), “in their
their discretion
discretion and
and to
to the extent consistent
the extent consistent with
with law” to "ensure
law" to “ensure
that jurisdictions
that jurisdictions that
that willfully
willfully refuse to comply
refuse to with 88 U.S.C.
comply with U.S.C. §§ 1373
1373 (sanctuary
(sanctuary
jurisdictions) are
jurisdictions) not eligible
are not to receive
eligible to Federal grants.
receive Federal grants. .. .. ."
.” Exec.
Exec. Order No. 13768,
Order No. 13768,
82 Fed.
82 Fed. Reg. at 8,801
Reg. at (emphasis added).
8,801 (emphasis added). Section 1373 (the
Section 1373 (the "Act"),
“Act”), in
in turn,
turn, provides
provides
that aa State
that “may not
State "may not prohibit,
prohibit, or
or in any way
in any way restrict, any government
restrict, any government entity
entity from
from
sending to,
sending to, or receiving from,
or receiving the Immigration
from, the Immigration and Naturalization Service
and Naturalization Service
information regarding
information regarding the
the citizenship
citizenship or immigration status,
or immigration status, lawful
lawful or
or unlawful,
unlawful, of
of
any individual.”
any individual." 8 U.S.C. §
8 U.S.C. § 1373(a).
1373(a).
Appellees cannot
Appellees meet their
cannot meet their heavy
heavy burden
burden to
to show
show that
that the
the Order is
Order is
unconstitutional in
unconstitutional in all
all its applications. The
its applications. The Order is not
Order is not unconstitutional
unconstitutional under
under the
the
Spending
Spending Clause. The federal
Clause. The government may
federal government may place
place conditions
conditions on receipt of
on receipt of federal
federal
grant money
grant money so
so long: (1) Congress
long: (1) Congress legislates to promote
legislates to promote the
the general
general welfare;
welfare; (2)
(2) the
the
States have clear

States have notice of
clear notice the relevant
of the relevant grant
grant conditions; (3) the
conditions; (3) the conditions relate to
conditions relate to
the purposes
the purposes for which the
for which the grant
grant issues;
issues; and (4) the
and (4) the inducement
inducement to
to accept
accept the
the grant
grant
is not
is not coercive. South Dakota
coercive. South Dakota v. Dole, 483
v. Dole, 483 U.S.
U.S. 203,
203, 206-08
206–08 (1987).
(1987). While
While amici
amici
3
3
States take no
States take no position
position on whether any
on whether any particular
particular grant
grant program
program meets
meets these
these criteria,
criteria,
Appellees cannot
Appellees demonstrate that
cannot demonstrate that the
the Order is unconstitutional
Order is unconstitutional in
in all
all applications.
applications.
That is
That is because
because Dole
Dole provides
provides aa well-established—and
well-established—and legally
legally permissible—
permissible—
framework
framework for the federal
for the government to
federal government to attach
attach conditions
conditions on grants to
on grants to the
the States
States
consistent with law.

consistent with law. Therefore,
Therefore, while
while Appellees
Appellees could bring an
could bring as-applied challenge
an as-applied challenge
if the
if the federal government were
federal government were to
to exceed its power
exceed its power in
in denying
denying particular
particular sources
sources of
of
funding to the
funding to the States, this facial
States, this facial challenge must fail
challenge must because the
fail because the Order
Order could be
could be
constitutional as applied
constitutional as applied to
to programs
programs that
that satisfy
satisfy the
the Dole
Dole framework.
framework.
Appellees also
Appellees also cannot show that
cannot show that the
the Order is unconstitutional
Order is unconstitutional under
under the
the Tenth
Tenth
Amendment. The
Amendment. Tenth Amendment
The Tenth Amendment protects
protects our
our system
system of dual sovereignty
of dual sovereignty by
by
prohibiting the
prohibiting the federal government from
federal government from compelling
compelling States
States and state and
and state and local
local
officials to administer
officials to administer federal programs. But
federal programs. But the
the Act
Act does
does not
not require
require the
the States to
States to
do anything.
do anything. It merely displaces
It merely displaces state
state laws
laws that
that directly
directly conflict with federal
conflict with federal
immigration policy
immigration policy by
by prohibiting
prohibiting voluntary
voluntary communication between local
communication between local law
law
enforcement officials and

enforcement officials and federal
federal officials. To the
officials. To the extent that the
extent that the States voluntarily
States voluntarily
accept federal
accept grant money
federal grant money in
in exchange
exchange for
for compliance with federal
compliance with immigration
federal immigration
law—including the
law—including the Order—the
Order—the Order does not
Order does not conscript the State
conscript the State or its officials
or its into
officials into
carrying
carrying out
out federal purposes. Accordingly,
federal purposes. Accordingly, Appellees'
Appellees’ facial
facial challenge to the
challenge to the Order
Order
must fail.
must fail.
4
4
ARGUMENT
ARGUMENT
I.
I. The Order Can
The Order Can Be Constitutionally Applied
Be Constitutionally Applied Under
Under The
The Spending
Spending
Power.
Power.
Appellees argue
Appellees argue that
that the
the Order
Order is
is facially unconstitutional because
facially unconstitutional because it
it
purportedly represents
purportedly represents aa new
new and invalid condition
and invalid on State’s
condition on receipt of
State's receipt of federal
federal
funds.
funds. But that argument
But that argument fails because Congress
fails because Congress may
may place
place certain
certain conditions
conditions on the
on the
States’
States' receipt
receipt of
of federal
federal funds pursuant to
funds pursuant to the
the "spending
“spending power"
power” in
in Article
Article I,
I, Section
Section
8, clause
8, 1 of
clause 1 the Constitution—and
of the Constitution—and here,
here, the
the Order
Order can be applied
can be applied consistent with
consistent with
that power.
that power. Appellees
Appellees have
have chosen the heavy
chosen the heavy burden
burden of raising aa facial
of raising facial challenge to
challenge to
the Order.
the Order. Such
Such challenges will succeed
challenges will succeed only if the
only if the government
government action
action in
in question
question
is "unconstitutional
is “unconstitutional in
in all
all of its applications."
of its applications.” Wash. State Grange
Wash. State Grange v.
v. Wash. State
Wash. State
Republican Party,
Republican Party, 552 U.S. 442,
552 U.S. 442, 449
449 (2008).
(2008). In
In other words, "the
other words, “the challenger must
challenger must
establish that no
establish that no set
set of
of circumstances
circumstances exists under which
exists under which the
the [statute]
[statute] would
would be
be
valid.” Hotel
valid." Hotel &
& Motel
Motel Ass
Ass’n of Oakland
'n of Oakland v.
v. City of Oakland,
City of 344 F.3d
Oakland, 344 F.3d 959,
959, 971 (9th
971 (9th
Cir. 2003)
Cir. 2003) (quoting
(quoting United States v.
United States Salerno, 481
v. Salerno, 481 U.S.
U.S. 739,
739, 745 (1987)); see
745 (1987)); see also
also
Foti v.
Foti v. City of Menlo
City of Menlo Park,
Park, 146
146 F.3d
F.3d 629,
629, 635 (9th Cir.
635 (9th Cir. 1998)
1998) (a
(a statute
statute is
is facially
facially
unconstitutional if
unconstitutional if it
it would
would be
be invalid
invalid "in
“in every
every conceivable application”) (quoting
conceivable application") (quoting
Members of
Members of City
City Council
Council v.
v. Taxpayers for Vincent,
Taxpayers for 466 U.S.
Vincent, 466 U.S. 789,
789, 796 (1984)).
796 (1984)).
Appellees cannot
Appellees satisfy that
cannot satisfy that demanding
demanding standard
standard here.
here.
As an
As an initial
initial matter,
matter, the
the text
text of the Order
of the itself contains
Order itself important caveats
contains important that
caveats that
cabin the Order's

cabin the Order’s scope
scope and
and ensure that officers
ensure that officers acting pursuant to
acting pursuant to the
the Order
Order exercise
exercise
55
their authority
their authority within
within the
the parameters
parameters of
of federalism and the
federalism and the separation
separation of powers.
of powers.
First, the
First, the Order
Order expressly applies only
expressly applies to grant
only to grant programs
programs where
where the
the Attorney
Attorney General
General
or
or Secretary
Secretary are permitted by
are permitted by law to impose
law to impose conditions
conditions on the States’
on the receipt of
States' receipt of
federal grant funds.

federal grant funds. Specifically,
Specifically, Section
Section 9(a) directs that
9(a) directs that "the
“the Attorney
Attorney General
General and
and
the Secretary
the [of Homeland
Secretary [of Homeland Security]
Security] .. .. .. shall
shall ensure that jurisdictions
ensure that jurisdictions that
that willfully
willfully
refuse to
refuse to comply with [the
comply with [the Act]
Act] are not eligible
are not to receive
eligible to receive Federal
Federal grants,
grants, except
except as
as
deemed necessary
deemed necessary for
for law
law enforcement purposes by
enforcement purposes by the
the Attorney
Attorney General
General or the
or the
Secretary.”
Secretary." 82 Fed. Reg.
82 Fed. Reg. at 8,801. The
at 8,801. Attorney General’s
The Attorney Memorandum
General's Memorandum
interpreting the
interpreting the Order
Order confirms its narrow
confirms its narrow scope.
scope. This Memorandum explains
This Memorandum that
explains that
the Order
the “will be
Order "will be applied
applied solely
solely to
to federal grants administered
federal grants administered by
by the
the Department
Department
of
of Justice or the
Justice or the Department
Department of
of Homeland
Homeland Security; and not
Security; and not to other sources
to other sources of
of
federal funding.”3 Significantly,

federal funding.' this language
Significantly, this language ensures that the
ensures that the Order
Order could not be
could not be
interpreted to
interpreted to deny
deny federal
federal funding to States
funding to under programs
States under programs administered
administered by
by other
other
departments or
departments agencies, such
or agencies, such as
as funds
funds for
for education, highways, or
education, highways, or Medicaid—and
Medicaid—and
should the
should the federal government ever
federal government attempt to
ever attempt to enforce it in
enforce it in one of these
one of these contexts,
contexts,
Appellees (or
Appellees (or others)
others) could seek as-applied
could seek relief against
as-applied relief against that
that unlawful
unlawful
interpretation.
interpretation.
33 The
The Attorney
Attorney General, Memorandum for
General, Memorandum all Department
for all Department Grant-Making
Grant-Making
Components, Implementation
Components, Implementation ofof Executive
Executive Order 13768, Enhancing
Order 13768, Enhancing Public
Public Safety
Safety
in
in the Interior of
the Interior of the
the United States 11 (May
United States (May 22,
22, 2017)
2017) (emphasis
(emphasis added).
added).
66
Second, the
Second, the Order
Order applies
applies only “to the
only "to the extent
extent consistent with law."
consistent with law.” Section
Section 9
9
provides that
provides that the
the Order’s purpose is
Order's purpose is "to
“to ensure, to the
ensure, to the fullest
fullest extent
extent of the law,
of the law, that
that
aa State
State or
or aa political
political subdivision
subdivision of
of aa State, shall comply
State, shall with” the
comply with" the Act.
Act. Section
Section 9(a)
9(a)
further provides that

further provides that the
the Attorney
Attorney General
General and the Secretary
and the shall make
Secretary shall make eligibility
eligibility
determinations and
determinations and determine
determine what
what qualifies
qualifies as
as aa sanctuary
sanctuary jurisdiction
jurisdiction only “to the
only "to the
extent
extent consistent with law.”
consistent with Also, the
law." Also, the Attorney
Attorney General's
General’s Memorandum
Memorandum confirms
confirms
that the
that the Order does not
Order does not contemplate grant conditions
contemplate grant beyond those
conditions beyond those authorized by
authorized by
law, explaining
law, that the
explaining that the Order
Order "does
“does not
not call
call for the imposition
for the imposition of grant conditions
of grant conditions
that would
that would violate
violate any
any applicable
applicable constitutional
constitutional or statutory limitation”
or statutory limitation" or “purport
or "purport
to expand
to the existing
expand the statutory or
existing statutory or constitutional authority of
constitutional authority the Attorney
General
and the
and the Secretary
Secretary .. .. .. in
in any respect.4 The
any respect.4 The Order is thus
Order is thus expressly limited to
expressly limited to
constitutional applications only.

constitutional applications only.
Further, Congress
Further, and the
Congress and the President have tools
President have tools to
to apply
apply the
the Order
Order consistent
consistent
with the
with the Constitution.
Constitution. Article
Article 1,
1, Section 8 of
Section 8 the Constitution
of the provides that
Constitution provides that
“Congress shall
"Congress shall have
have Power To lay
Power To lay and
and collect Taxes, Duties,
collect Taxes, Duties, Imposts
Imposts and
and Excises,
Excises,
to pay
to pay the
the Debts
Debts and
and provide
provide for the common
for the common Defense and general
Defense and general Welfare
Welfare of
of the
the
United States.”
United U.S. Const.
States." U.S. art. I,
Const. art. § 8,
I, § 8, cl. 1. While
cl. 1. While the
the clause, sometimes called
clause, sometimes the
called the
Spending
Spending Clause, speaks only
Clause, speaks only of the power
of the power to
to tax,
tax, the
the Supreme Court has
Supreme Court has interpreted
interpreted
it to
it to include
include an
an implicit
implicit power
power to
to appropriate
appropriate funds
funds as well. See,
as well. See, e.g.,
e.g., Sabri
Sabri v.
v. United
United
4
4 See supra
See supra n.3
n.3 at 1–2.
at 1-2.
77
States, 541
States, U.S. 600,
541 U.S. 600, 605 (2004); Dole,
605 (2004); Dole, 483
483 U.S.
U.S. at
at 206.
206. Since the Founding,
Since the Founding,
however, there
however, there has
has been
been debate
debate about
about whether,
whether, and
and to
to what
what extent, that provision
extent, that provision
serves as
serves as aa basis
basis for Congress to
for Congress to appropriate money for
appropriate money purposes not
for purposes not part
part of
of
Congress’s enumerated
Congress's powers.5 The
enumerated powers.' The modern
modern view
view adopted
adopted by
by the
the Supreme Court
Supreme Court
is that
is that "the
“the power
power of
of Congress to authorize
Congress to the expenditure
authorize the of public
expenditure of public moneys
moneys for
for
public purposes
public purposes is not limited
is not limited by
by the
the direct
direct grants
grants of
of legislative
legislative power
power found in the
found in the
Constitution.” United
Constitution." States v.
United States Butler, 297
v. Butler, 297 U.S.
U.S. 1,
1, 66 (1936). To
66 (1936). the contrary,
To the contrary,
Congress may
Congress may use
use its spending power
its spending power "to
“to further broad policy
further broad policy objectives by
objectives by
conditioning receipt of
conditioning receipt of federal moneys upon
federal moneys upon compliance by the
compliance by the recipient
recipient with
with
federal statutory and

federal statutory administrative directives."
and administrative directives.” Dole,
Dole, 483
483 U.S.
U.S. at
at 206
206 (internal
(internal
quotation marks
quotation marks and
and citation
citation omitted).
omitted).
Nevertheless, in
Nevertheless, in order to mitigate
order to mitigate the
the federalism
federalism concerns associated with
concerns associated with that
that
view, the
view, the Supreme
Supreme Court has placed
Court has placed four limits on
four limits Congress’ ability
on Congress' ability to
to place
place
conditions
conditions on
on federal
federal funding to the
funding to the States. Dole, 483
States. Dole, 483 U.S.
U.S. at
at 207-08.
207–08. First,
First,
Congress must
Congress must legislate “in pursuit
legislate "in pursuit of
of ‘the general welfare.'"
'the general welfare.’” Id.
Id. (quoting
(quoting U.S.
U.S.
Const. art.
Const. art. I,
I, §§ 8,
8, cl. 1. Second,
cl. 1. Second, if
if Congress places conditions
Congress places on "the
conditions on “the States’ receipt
States' receipt
of
of federal
federal funds, it ‘must
funds, it do so
'must do so unambiguously
unambiguously .. .. .,
., enabl[ing] the States
enabl[ing] the to exercise
States to exercise
55 See
See Jeffrey T. Renz,
Jeffrey T. Renz, What Spending Clause?
What Spending Clause? (Or
(Or the President’s Paramour):
the President's Paramour): AnAn
Examination of
Examination of the
the Views
Views ofof Hamilton,
Hamilton, Madison,
Madison, andand Story
Story on
on Article
Article I,
I, Section
Section 8,
8,
Clause
Clause II of
of the
the United States Constitution,
United States 33 J.
Constitution, 33 J. Marshall
Marshall L.
L. Rev.
Rev. 81, 103–06 (Fall
81, 103-06 (Fall
1999); United
1999); States v.
United States Butler, 297
v. Butler, 297 U.S.
U.S. 11 (1936).
(1936).
88
their choice
their knowingly, cognizant
choice knowingly, of the
cognizant of the consequences of their
consequences of their participation.'"
participation.’” Id.
Id.
(quoting Pennhurst
(quoting Pennhurst State
State Sch.
Sch. &
& Hosp.
Hosp. v. Halderman, 451
v. Halderman, 451 U.S.
U.S. 1,
1, 17
17 (1981)).
(1981)). Third,
Third,
conditions must be
conditions must be related
related "to
“to the
the federal interest in
federal interest particular national
in particular national projects
projects or
or
programs.” Id.
programs." Id. (quoting
(quoting Massachusetts
Massachusetts v.
v. United States, 435
United States, 435 U.S.
U.S. 444,
444, 461
461 (1978)
(1978)
(plurality opinion)).
(plurality Fourth, the
opinion)). Fourth, the conditions
conditions cannot be coercive.
cannot be Id.; see
coercive. Id.; see also
also NFIB
NFIB v.
v.
Sebelius, 567
Sebelius, U.S. 519,
567 U.S. 578–79 (2012).
519, 578-79 (2012).
The
The Order is not
Order is not facially unconstitutional under
facially unconstitutional under the
the Dole
Dole framework. As
framework. As
explained above, the

explained above, the Order
Order cannot deny States
cannot deny States funds under grant
funds under grant programs
programs unrelated
unrelated
to the
to the federal government’s interest
federal government's interest in
in immigration
immigration enforcement because the
enforcement because the Order
Order
applies only
applies to programs
only to programs administered
administered by
by the
the Attorney
Attorney General or the
General or the Secretary. And
Secretary. And
because the
because the Order
Order permits
permits the
the Attorney
Attorney General and Secretary
General and to deny
Secretary to deny funds only as
funds only as
permitted by
permitted by law,
law, it does not—as
it does not—as the
the Attorney
Attorney General’s Memorandum explained—
General's Memorandum explained—
“call for
"call the imposition
for the imposition of grant conditions
of grant that would
conditions that would violate
violate any
any applicable
applicable
constitutional or statutory
constitutional or limitation."66 Thus,
statutory limitation.” Thus, assuming
assuming that
that Congress
Congress complies with
complies with
the Dole
the Dole factors in aa particular
factors in particular grant
grant program
program and has authorized
and has authorized the
the Attorney
Attorney
General or the
General or the Secretary to administer
Secretary to administer that
that program,
program, the
the Order
Order can be applied
can be applied
consistent with the

consistent with the federal government’s Spending
federal government's Spending Power. In such
Power. In such situation,
situation, States
States
would retain
would the ability
retain the ability to
to "voluntarily
“voluntarily and
and knowingly accept[] the
knowingly accept[] the terms
terms of
of the
the
contract.” NFIB, 567

contract." NFIB, U.S. at
567 U.S. at 577.
577.
6
6 Supra n.3
Supra n.3 at 1–2.
at 1-2.
99
While amici
While amici take
take no
no position
position on whether any
on whether particular existing
any particular grant program
existing grant program
meets the
meets the Dole
Dole factors, it is
factors, it is clear that Congress
clear that and the
Congress and the President
President can
can act in aa manner
act in manner
that permits
that permits the
the Order
Order to
to be
be constitutionally applied. Appellee's
constitutionally applied. Appellee’s facial
facial challenge
challenge
must fail.
must fail.
II.
II. The Order And
The Order And The Act Do
The Act Do Not
Not Violate
Violate The
The Tenth Amendment.
Tenth Amendment.
Appellees argue
Appellees that the
argue that the Order violates the
Order violates the Tenth Amendment by
Tenth Amendment by requiring
requiring
the Attorney
the Attorney General to "take
General to “take appropriate action” against
appropriate action" against States that violate
States that violate 88 U.S.C.
U.S.C.
§ 1373.
§ 1373. That
That argument
argument also
also fails.
fails. Section 1373 provides
Section 1373 provides that
that States “may not
States "may not
prohibit, or
prohibit, or in
in any way restrict,
any way any government
restrict, any government entity
entity or
or official
official from sending to,
from sending to, or
or
receiving from,
receiving the Immigration
from, the Immigration and Naturalization Service
and Naturalization information regarding
Service information regarding
the citizenship
the or immigration
citizenship or immigration status,
status, lawful
lawful or unlawful, of
or unlawful, of any
any individual.” Id. The
individual." Id. The
Tenth Amendment
Tenth Amendment prohibits
prohibits the
the federal government from
federal government from commandeering
commandeering States by
States by
forcing them
forcing them to
to administer
administer aa federal regulatory regime
federal regulatory regime or
or conscripting state officers
conscripting state officers
to do
to do the
the same.
same. But that is
But that is not
not what
what Congress
Congress did.
did. Rather, the Order
Rather, the Order provides
provides States
States
with voluntary
with voluntary inducements
inducements to
to comply with federal
comply with federal law. And for
law. And its part,
for its part, the
the Act
Act
simply displaces
simply displaces or preempts state
or preempts state laws
laws that
that prohibit
prohibit localities
localities or
or local law
local law
enforcement
enforcement officials
officials from voluntarily communicating
from voluntarily with federal
communicating with federal officials, with aa
officials, with
goal to
goal to further the comprehensive
further the comprehensive federal immigration regime.
federal immigration regime. Congress
Congress thus
thus acted
acted
within its
within its enumerated powers and
enumerated powers and under
under the
the Supremacy
Supremacy Clause to preempt
Clause to preempt state
state laws
laws
that stand
that stand as
as obstacles to the
obstacles to the creation
creation of this uniform
of this uniform policy.
policy.
10
10
A.
A. The Tenth
The Amendment provides
Tenth Amendment provides that
that "[t]he
“[t]he powers
powers not
not delegated
delegated to
to the
the
United States
United by the
States by the Constitution, nor prohibited
Constitution, nor prohibited by
by it to the
it to the States, are reserved
States, are reserved to
to
the States
the respectively, or
States respectively, to the
or to the people."
people.” U.S.
U.S. Const.
Const. amend. X. The
amend. X. The Supreme
Supreme Court
Court
has interpreted
has interpreted this
this language
language to
to provide
provide that
that Congress
Congress cannot “require the
cannot "require the States to
States to
govern according
govern to Congress’
according to Congress' instructions.” New York
instructions." New York v.
U.S.
144, 162
144, 162 (1992).
(1992). Congress
Congress also
also cannot “conscript[] the
cannot "conscript[] the State’s
State's officers directly” to
officers directly" to
administer aa federal
administer program. Printz
federal program. Printz v.
U.S. 898, 935 (1997).
898, 935 (1997).
In New
In New York and Printz,
York and Printz, the
the Supreme Court explained
Supreme Court that these
explained that these principles
principles
protect the
protect the operation of dual
operation of dual sovereignty—or
sovereignty—or in
in other words, the
other words, the Tenth
Tenth Amendment
Amendment
ensures that the

ensures that the federal government and
federal government and the
the States
States each remain politically
each remain politically
accountable to
accountable to the
the people
people for their own
for their actions. In
own actions. In New
New York, the Court
York, the Court held
held that
that the
the
Tenth Amendment
Tenth Amendment prohibits
prohibits Congress
Congress from
from requiring
requiring States to either
States to take possession
either take possession
of nuclear waste
of nuclear waste or regulate the
or regulate the disposal
disposal of such waste
of such waste within
within the
the State. New York,
State. New York,
505 U.S. at
505 U.S. at 153-54.
153–54. The
The Court
Court reasoned that when
reasoned that when the
the federal government conscripts
federal government conscripts
States
States or state officers
or state into administering
officers into administering aa federal program, political
federal program, political accountability
accountability
is diminished.
is diminished. New
New York,
York, 505 U.S. at
505 U.S. at 168-69
168–69 ("it
(“it may
may be
be state
state officials who will
officials who will
bear the
bear the brunt
brunt of public disapproval,
of public disapproval, while
while the
the federal officials who
federal officials who devised
devised the
the
regulatory program
regulatory program may
may remain
remain insulated
insulated from the electoral
from the electoral ramifications of their
ramifications of their
decision”). In
decision"). In part,
part, the
the Court
Court also rested its
also rested decision on
its decision the failed
on the failed experience
experience of the
of the
11
11
Articles of
Articles of Confederation
Confederation under
under which
which Congress
Congress could only regulate
could only by compelling
regulate by compelling
States to act.
States to Id. at
act. Id. at 163-66.
163–66.
Similarly, in Printz,
Similarly, in Printz, the
the Supreme
Supreme Court held that
Court held that the
the federal government
federal government
cannot
cannot conscript state law
conscript state law enforcement
enforcement officials into enforcing
officials into enforcing federal law. 521
federal law. U.S.
521 U.S.
at 935.
at The statute
935. The statute at
at issue there required
issue there required state
state law
law enforcement officials to
enforcement officials to conduct
conduct
background checks
background in connection
checks in with handgun
connection with handgun transfers.
transfers. Id.
Id. at
at 903. The Court
903. The Court
rejected aa purported
rejected purported distinction
distinction between
between making
making policy
policy and
and enforcing or
enforcing or
implementing it,
implementing it, and
and concluded that Congress
concluded that Congress could
could require the States
require the neither to
States neither to
make law
make law nor
nor to
to enforce
enforce federal
federal law. Id. at
law. Id. at 928. As in
928. As in New
New York, the Court
York, the Court
emphasized that the

emphasized that the Tenth Amendment is
Tenth Amendment designed to
is designed to avoid the blurring
avoid the blurring of political
of political
lines of
lines of accountability. Id. at
accountability. Id. at 930 (explaining that
930 (explaining that the
the law
law at issue would
at issue would have
have
allowed Congress
allowed Congress to
to "take
“take credit
credit for
for ‘solving’ problems without
'solving' problems without having
having to
to ask their
ask their
constituents to pay
constituents to pay for the solutions
for the solutions with
with higher
higher federal taxes,” while
federal taxes," while putting
putting the
the
States “in the

States "in the position
position of taking the
of taking the blame
blame for [the program's]
for [the program’s] burdensomeness
burdensomeness and
and
for its defects.").

for its defects.”).
Under these
Under these principles,
principles, the
the Order
Order does
does not
not commandeer the States
commandeer the States or
or
transform section
transform section 1373
1373 into
into aa commandeering provision. The
commandeering provision. The Order
Order operates by
operates by
instructing the
instructing the Attorney
Attorney General
General and the Secretary,
and the Secretary, consistent with law,
consistent with to condition
law, to condition
the receipt
the receipt of
of federal grant funds
federal grant funds on
on compliance with section
compliance with section 1373.
1373. As
As already
already
explained, the Order

explained, the Order can be applied
can be applied consistent with the
consistent with the Constitution
Constitution where
where Congress
Congress
12
12
has given
has given the
the Attorney
Attorney General
and the the authority
Secretary the to condition
authority to the
condition the
States’ receipt of
States' receipt of federal grant funds
federal grant so long
funds so long as
as the
the grant
grant program
program complies with the
complies with the
Dole framework.
Dole And because
framework. And because the
the Order
Order itself is narrow
itself is narrow in scope, it
in scope, it does
does not
not grant
grant
any authority
any authority that
that the
the Attorney
Attorney General
General and
and Secretary would not
Secretary would not otherwise have.
otherwise have.
Instead, the
Instead, the Order instructs the
Order instructs the Attorney
Attorney General
and the to exercise
Secretary to their
exercise their
discretion under
discretion under congressionally
congressionally created grant programs
created grant programs in
in aa particular
particular way.
way.
The Act
The Act itself
itself does
does not
not commandeer the States
commandeer the States in violation of
in violation of the
the Tenth
Tenth
Amendment either.
Amendment As the
either. As the Second Circuit has
Second Circuit has correctly held, section
correctly held, section 1373
1373 does
does not
not
compel
compel States to administer
States to administer aa federal program nor
federal program nor does
does it
it conscript
conscript local
local officials
officials
into doing
into doing so.
so. City of New
City of New York
York v.
United States, 179 F.3d
F.3d 29,
29, 35
35 (2d
(2d Cir.
Cir. 1999).
1999).
Instead, the
Instead, the Act
Act "prohibit[s]
“prohibit[s] state
state and
and local governmental entities
local governmental entities or
or officials
officials only
only
from directly restricting

from directly restricting the
the voluntary
voluntary exchange of immigration
exchange of immigration information with the
information with the
[Immigration and
[Immigration Naturalization Service].”
and Naturalization Id. (emphasis
Service]." Id. (emphasis added).
added). Indeed,
Indeed, the
the
Supreme Court expressly

Supreme Court expressly reserved in Printz
reserved in Printz the
the question
question of whether statutes
of whether statutes
requiring "only
requiring “only the
the provision
provision of information to
of information to the
the Federal
Federal Government”
Government" can
can
constitute
constitute commandeering. Printz, 521
commandeering. Printz, U.S. at
521 U.S. at 918.
918.
Further, the
Further, the commandeering principles from
commandeering principles Printz and
from Printz New York
and New only apply
York only apply
where States
where are required
States are required "in
“in their
their sovereign
sovereign capacity to regulate
capacity to regulate their
their own
own citizens”
citizens"
or “assist in
or "assist in the
the enforcement
enforcement of
of federal statutes regulating
federal statutes regulating private
private individuals.” Reno
individuals." Reno
v.
v. Condon,
Condon, 528 U.S. 141,
528 U.S. 141, 151
151 (2000).
(2000). The
The Act
Act does
does meet
meet that
that definition
definition of
of
13
13
commandeering because it
commandeering because it does
does not
not require
require the
the State to regulate
State to regulate its
its own
own citizens, but
citizens, but
simply preempts
simply preempts state
state policies
policies that
that interfere with implementation
interfere with implementation of
of aa federal
federal
regulatory regime.
regulatory regime.
Indeed, the
Indeed, the Supreme Court has
Supreme Court has rejected
rejected Tenth
Tenth Amendment
Amendment challenges where
challenges where
Congress has
Congress has regulated
regulated state
state activities
activities but
but not
not attempted
attempted to
to use
use the
the sovereign
sovereign power
power
of the States
of the to regulate
States to regulate individuals.
individuals. For
For example, the Supreme
example, the Supreme Court rejected aa
Court rejected
Tenth Amendment
Tenth Amendment challenge to aa federal
challenge to law prohibiting
federal law prohibiting States
States from issuing
from issuing
unregistered bonds
unregistered bonds in
in furtherance
furtherance of
of aa federal policy discouraging
federal policy discouraging tax
tax evasion. South
evasion. South
Carolina
Carolina v. Baker, 485
v. Baker, 485 U.S.
U.S. 505,
505, 514 (1988). The
514 (1988). Court concluded
The Court that Congress
concluded that Congress
had not
had not attempted “to use
attempted "to use state
state regulatory
regulatory machinery
machinery to
to advance
advance federal goals” but
federal goals" but
to regulate
to regulate the
the State as any
State as any other
other entity. Id. at
entity. Id. at 514.
514. To take another
To take another example, the
example, the
Supreme
Supreme Court rejected aa Tenth
Court rejected Amendment challenge
Tenth Amendment to aa law
challenge to law prohibiting
prohibiting States
States
from selling public

from selling public information
information obtained
obtained from motor vehicle
from motor vehicle records.
records. Reno,
Reno, 528
528
U.S. at
U.S. 151. In
at 151. that case,
In that the Court
case, the Court explained that the
explained that the federal statute "regulates
federal statute “regulates the
the
States as the
States as the owners
owners of data bases"
of data bases” to
to further
further aa federal
federal regulatory scheme related
regulatory scheme related to
to
privacy. Id.
privacy. Id. at
at 151.
151. The
The statute,
statute, the
the Court
Court explained, did not
explained, did not run
run afoul of the
afoul of the
Supreme Court’s commandeering

Supreme Court's decisions because
commandeering decisions because it
it did
did not
not require the State
require the to
State to
regulate in
regulate in its
its sovereign
sovereign capacity
capacity or help enforce
or help enforce federal law. Id.
federal law. Id.
B.
B. Finally, the
Finally, the Act
Act is justified under
is justified under the
the Supremacy
Supremacy Clause.
Clause. When
When
Congress acts
Congress acts pursuant
pursuant to
to its
its enumerated powers (and
enumerated powers (and within
within the
the bounds
bounds of the Tenth
of the Tenth
14
14
Amendment), the
Amendment), the laws
laws it
it enacts become "the
enacts become “the Supreme
Supreme Law of the
Law of the Land"
Land” and
and
displace inconsistent
displace inconsistent state
state law.
law. U.S.
U.S. Const.
Const. art.
art. VI,
VI, cl. 2. The
cl. 2. The federal government
federal government
may exercise
may such power
exercise such power even though it
even though it may
may "serve[]
“serve[] to
to ‘curtail
'curtail or prohibit the
or prohibit the
States’ prerogatives to
States' prerogatives to make
make legislative
legislative choices respecting subjects
choices respecting subjects the
the States may
States may
consider important.’” FERC

consider important.' FERC v. Mississippi, 456
v. Mississippi, 456 U.S.
U.S. 742,
742, 759 (1982) (quoting
759 (1982) (quoting Hodel
Hodel
v.
v. Virginia Surface Mining
Virginia Surface Mining &
& Reclamation
Reclamation Ass
Ass’n, 452 U.S.
'n, 452 U.S. 264,
264, 290
290 (1981)).
(1981)).
Nevertheless, Congress
Nevertheless, Congress must
must make
make its
its intent
intent to
to preempt
preempt clear, which it
clear, which it can do most
can do most
directly by
directly by "enacting
“enacting aa statute
statute containing an express
containing an preemption provision."
express preemption provision.” Arizona
Arizona
v.
United States, U.S. 387,
567 U.S. 387, 399
399 (2012).
(2012).
It is
It is beyond
beyond dispute
dispute that
that Congress has the
Congress has the enumerated power to
enumerated power to enact
enact aa
comprehensive immigration regime.

comprehensive immigration regime. The
The Constitution grants the
Constitution grants the federal government
federal government
the power
the power to
to "establish
“establish an uniform Rule
an uniform Rule of Naturalization,” U.S.
of Naturalization," U.S. Const.
Const. art I, §
art I, § 8,
8,
and the
and the "inherent
“inherent power
power as
as sovereign
sovereign to
to control and conduct
control and relations with
conduct relations with foreign
foreign
nations,” Arizona,
nations," Arizona, 567 U.S. at
567 U.S. at 395
395 (quoting
(quoting Toll
Toll v. Moreno, 458
v. Moreno, 458 U.S.
U.S. 1,
1, 10
10 (1982)).
(1982)).
Accordingly, the
Accordingly, the Supreme
Supreme Court has recognized
Court has recognized that
that the
the federal government has
federal government has
“broad, undoubted
"broad, undoubted power
power over
over the
the subject
subject of immigration and
of immigration the status
and the status of
of aliens."
aliens.”
Id.
Id.
The means
The means Congress
Congress has
has chosen here—displacement of
chosen here—displacement state law—furthers
of state law—furthers
the purpose
the purpose of
of the
the comprehensive
comprehensive federal immigration regime
federal immigration by facilitating
regime by facilitating
communication between state

communication between state and
and federal
federal officials
officials on matters relating
on matters relating to
to citizenship
citizenship
15
15
and immigration
and immigration status.
status. Indeed,
Indeed, this
this type
type of
of federal-state
federal-state communication is an
communication is an
important part
important part of the federal
of the immigration system.
federal immigration system. Arizona,
Arizona, 567 U.S. at
567 U.S. at 411
411
(“Consultation between
("Consultation between federal and state
federal and state officials is an
officials is an important
important feature
feature of the
of the
immigration system.")
immigration system.”) (discussing
(discussing 88 U.S.C. 1373).7 The
U.S.C. §§ 1373).7 Act merely
The Act merely prevents
prevents
States
States from prohibiting local
from prohibiting local law
law enforcement
enforcement for voluntarily cooperating
for voluntarily with the
cooperating with the
federal government—and displaces

federal government—and displaces state
state policy
policy choices that are
choices that are inconsistent
inconsistent with
with
Congress’s purpose
Congress's purpose to
to ensure
ensure enforcement
enforcement of the Nation's
of the Nation’s immigration
immigration laws.
laws.
7
Of
Of course,
course, States are not
States are not prohibited
prohibited from
from enacting
enacting laws to implement
laws to implement Section 1373
Section 1373
that are
that are consistent with the
consistent with the Act's
Act’s purposes.
purposes. Congress made clear
Congress made that it
clear that it intended
intended to
to
“displace inconsistent
"displace inconsistent law.” Relationship Between
law." Relationship Between Illegal
Illegal Immigration
Immigration Reform and
Reform and
Immigrant Responsibility
Immigrant Responsibility Act Act of 1996 and
of 1996 and Statutory
Statutory Requirement
Requirement for for
Confidentiality of
Confidentiality of Census
Census Information,
Information, 2323 Op.
Op. O.L.C.
O.L.C. Supp.,
Supp., at
at 7 (May 18,
7 (May 18, 1999),
1999),
http://www.justice.gov/sites/ default/files/olc/opinions/attachments/2014/11/10/199
hap://www.justice.gov/sites/ default/files/olc/opinions/attachments/2014/11/10/199
9-05-18-census-confidentiality.pdf (emphasis added).
9-05-18-census-confidentiality.pdf (emphasis added). Congress
Congress has
has not
not attempted
attempted toto
enter the field
enter the field of
of enforcement mechanisms for
enforcement mechanisms section 1373,
for section 1373, meaning
meaning that
that States are
States are
free to create
free to their own
create their own enforcement mechanisms consistent
enforcement mechanisms with the
consistent with the purpose
purpose of
of
section 1373.
section 1373. See
See Chamber
Chamber of of Commerce
Commerce of of U.S.
U.S. v.
v. Whiting, 563 U.S.
Whiting, 563 U.S. 582, 606–07
582, 606-07
(2011) (holding
(2011) (holding that
that aa State
State could tailor specific
could tailor specific sanctions
sanctions for the violation
for the violation ofof federal
federal
immigration laws
immigration in the
laws in the absence
absence of
of congressional prohibition on
congressional prohibition those sanctions).
on those sanctions).
16
16
CONCLUSION
CONCLUSION
The decision
The decision below
below should
should be
be reversed.
reversed.
Respectfully submitted,
Respectfully submitted,
PATRICK MORRISEY
PATRICK MORRISEY JEFF
JEFF LANDRY
LANDRY
ATTORNEY GENERAL
ATTORNEY GENERAL ATTORNEY GENERAL
ATTORNEY GENERAL
OF WEST
OF WEST VIRGINIA
VIRGINIA OF LOUISIANA
OF LOUISIANA
/s/
/s/ Erica N. Peterson
Erica N. Peterson /s/
/s/ Elizabeth Baker Murrill
Erica N. Peterson
Erica N. Peterson Elizabeth Baker Murrill
Assistant Attorney
Assistant Attorney General
General Solicitor General
Solicitor General
Counsel
Counsel ofof Record
Record Office of
Office the Attorney
General
Office of
Office the Attorney
General 1885 N.
1885 N. 3rd
3rd Street
Street
State
Capitol Building 1, Room 26-E
Room 26-E Baton Rouge,
Baton Rouge, LA
LA 70802
70802
Charleston, WV
25305 Telephone: (225)
Telephone: (225) 326-6766
326-6766
Telephone: (304)
Telephone: (304) 558-2021
558-2021 Email: murrille@ag.louisiana.gov
Email: murrille@ag.louisiana.gov
Email: Erica.n.peterson@wvago.gov
Email: Erica.n.peterson@wvago.gov
Counsel for amicus
Counsel for amicus curiae State of
curiae State of
Counsel for amicus
Counsel for amicus curiae State of
curiae State of Louisiana
Louisiana
West
West Virginia
Virginia
December 22,
December 22, 2017
2017
17
17
COUNSEL
COUNSEL FOR ADDITIONAL AMICI
FOR ADDITIONAL AMICI
Steve Marshall
Steve Marshall Michael DeWine
Michael DeWine
Attorney General
Attorney General Attorney General
Attorney General
State
State of Alabama
of Alabama State
State of Ohio
of Ohio
501 Washington Ave
501 Washington Ave 30 E.
30 Broad St.,
E. Broad 17th Floor
St., 17th Floor
Montgomery, AL
Montgomery, AL 36130
36130 Columbus, OH
Columbus, OH 43215
43215
(334) 242-7300
(334) 242-7300 (614) 466-8980
(614) 466-8980
Leslie
Leslie Rutledge
Rutledge Mike Hunter
Mike Hunter
Attorney General
Attorney General
State
State of Arkansas
of Arkansas State
State of Oklahoma
of Oklahoma
323 Center
323 Center St.
St. 313 NE
313 NE 21st
21st Street
Street
Little
Little Rock, AR 72201
Rock, AR 72201 Oklahoma City,
Oklahoma City, OK
OK 73105
73105
(501) 682-2007
(501) 682-2007 (405) 521-3921
(405) 521-3921
Pamela
Pamela JoJo Bondi
Bondi Alan Wilson
Alan Wilson
Attorney General
Attorney General
State
State of Florida
of Florida State
State of
of South
South Carolina
Carolina
PL-01, The Capitol
PL-01, The Capitol P.O. Box 11549
P.O. Box 11549
Tallahassee, FL
Tallahassee, FL 32399
32399 Columbia, SC
Columbia, 29211
SC 29211
(850) 414-3300
(850) 414-3300 (803) 734-3970
(803) 734-3970
Derek Schmidt
Derek Schmidt Ken Paxton
Ken Paxton
Attorney General
Attorney General
State
State of Kansas
of Kansas State
State of Texas
of Texas
120 SW
120 10th Ave.,
SW 10th Ave., 2nd
2nd Floor
Floor 300 W.
300 W. 15th
15th Street
Street
Topeka, KS
Topeka, KS 66612
66612 Austin, TX
Austin, TX 78701
78701
(785) 296-2215
(785) 296-2215 (512) 936-1700
(512) 936-1700
Adam Paul
Adam Paul Laxalt
Laxalt
Attorney General
Attorney General
State
State of Nevada
of Nevada
100 North
100 North Carson
Carson Street
Street
Carson City,
Carson NV 89701
City, NV 89701
(775) 684-1100
(775) 684-1100
CERTIFICATE
CERTIFICATE OF COMPLIANCE
OF COMPLIANCE
1.
1. This brief
This brief complies with the
complies with the type-volume
type-volume limitation
limitation of
of Fed.
Fed. R. App. P.
R. App. P.
32(a)(7)(B) because
32(a)(7)(B) because this
this brief
brief contains 3,802 words,
contains 3,802 words, excluding the parts
excluding the parts of the
of the
brief exempted
brief by Fed.
exempted by Fed. R. App. P.
R. App. 32(a)(7)(B)(iii).
P. 32(a)(7)(B)(iii).
2.
2. This brief
This brief complies with the
complies with the typeface
typeface requirements
requirements of
of Fed.
Fed. R. App. P.
R. App. 32(a)(5)
P. 32(a)(5)
and the
and the type
type style
style requirements
requirements of Fed. R.
of Fed. App. P.
R. App. 32(a)(6) because
P. 32(a)(6) because it
it has
has been
been
prepared in
prepared in aa proportionally
proportionally spaced
spaced typeface
typeface using
using Microsoft Word in
Microsoft Word in 14-
14-
point Times
point Times New
New Roman.
Roman.
Date: December
Date: 22, 2017
December 22, 2017 /s/
Erica N. Peterson
Erica N. Peterson
Erica N. Peterson
Office of
Office the West
of the West Virginia
Virginia Attorney
Attorney General
General
State
Capitol Building 1, Room E-26
Room E-26
Charleston, WV
25305
Telephone: (304)
Telephone: (304) 558-2021
558-2021
Fax: (304)
Fax: (304) 558-0140
558-0140
E-mail:
E-mail: Erica.n.peterson@wvago.gov
Erica.n.peterson@wvago.gov
Counsel for
Counsel Amicus Curiae
for Amicus Curiae State
State of West Virginia
of West Virginia
CERTIFICATE
CERTIFICATE OF
OF SERVICE
SERVICE
II certify that on
certify that December 22,
on December 22, 2017,
2017, the
the foregoing document was
foregoing document was served
served on
on
the counsel
the counsel of record for
of record all parties
for all parties through
through the
the CM/ECF system.
CM/ECF system.
/s/
Erica N. Peterson December 22,
December 22, 2017
2017
Erica N. Peterson
Erica N. Peterson Date
Date

Sanctuary Cities Amicus Brief

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Sanctuary Cities Amicus Brief

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Case: 17-16886, 12/22/2017, ID: 10701551, DktEntry: 25, Page 1 of 25

CITY AND COUNTY

Relationship Between Illegal

INTEREST AND IDENTITY

called “sanctuary jurisdictions"—undermine

flowing into the

federalism principles both

citizens the liberties

505 U.S. 144,

States have clear

consistent with law.

enforcement officials and

cabin the Order's

federal grant funds.

federal funding.”3 Significantly,

further provides that

constitutional applications only.

federal statutory and

explained above, the

consistent with the

contract.” NFIB, 567

ensures that the

emphasized that the

States “in the

for its defects.").

explained, the Order

from directly restricting

Supreme Court expressly

from selling public

Supreme Court’s commandeering

consider important.’” FERC

comprehensive immigration regime.

communication between state

federal government—and displaces

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