No. 11-182
In the Supreme Court of the United States
STATE OF ARIZONA , et al.,
Petitioners,
—v.—
UNITED STATES OF AMERICA
Respondent.
_________________________________________
On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
________________________________________
BRIEF OF EARTHRIGHTS INTERNATIONAL AS
AMICUS CURIAE IN SUPPORT OF NEITHER
PARTY
________________________________________
RICHARD L. HERZ
Counsel of Record
MARCO B. SIM ONS
JONATHAN G. KAUFM AN
MARISSA ANN VAHLSING
BENJAM IN HOFFMAN
EARTH RIGH TS INTERNATIONAL
1612 K St NW, Ste. 401
Washington, DC 20006
(202) 466-5188
[email protected]
Counsel for Amicus Curiae
i
QUESTIONS ADDRESSED BY AMICUS CURIAE
The Ninth Circuit held that four provisions of
Arizona’s immigration-enforcement law, S.B. 1070,
likely conflict with the federal Immigration and
Nationality Act (“INA”). The court also found that
these provisions harm U.S. foreign relations, and that
this too favors preemption. An effect on foreign
relations, as opposed to a conflict with federal law
dealing with foreign relations, may only preempt state
law where a state “take[s] a position on a matter of
foreign policy with no serious claim to be addressing a
traditional state responsibility.” Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 420 n.11 (2003)
(“Garamendi”). The Ninth Circuit, however, applied its
foreign affairs rationale even to S.B. 1070, § 5(C),
which it found to be an exercise of a historic state
power. The questions amicus address are:
Whether, without reference to any conflict with
federal law, foreign affairs preemption may bar
a state law that addresses a matter of
traditional state responsibility.
Whether conflict preemption may be based upon
effects on federal foreign policy preferences that
do not have the force of law.
Nonetheless, this Court should first consider whether
S.B. 1070 conflicts with the INA without reference to
any foreign affairs impacts of the state law, and only
consider those impacts if it finds that one or more of
the enjoined provisions does not otherwise conflict with
federal law.
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
STATEMENTS PURSUANT TO SUPREME
COURT RULE 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF IDENTITY AND INTEREST OF
AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2
INTRODUCTION AND SUMMARY OF
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.
Foreign affairs field preemption and conflict
preemption are distinct doctrines; the Ninth
Circuit failed to identify which doctrine it
applied. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II.
This Court should consider conflict preemption
without addressing S.B. 1070’s effects on
foreign relations before it considers whether
those effects favor preemption. . . . . . . . . . . 10
III.
The Ninth Circuit’s analysis is incomplete
under the foreign affairs field preemption
doctrine, because a mere effect on foreign
relations is not sufficient to preempt. . . . . . 12
iii
IV.
A.
State law is not preempted merely
because it may affect foreign
relations. . . . . . . . . . . . . . . . . . . . . . . 13
B.
Under a proper foreign affairs field
preemption analysis, provisions of S.B.
1070 may be subject to preemption, but
the Court must take a restrained
approach. . . . . . . . . . . . . . . . . . . . . . . 17
Conflict preemption requires a conflict with
federal law; an impact on foreign relations
alone is insufficient. . . . . . . . . . . . . . . . . . . . 19
A.
Conflict preemption requires a federal
act that is “fit to preempt” state law. 19
B.
Conflict preemption considers whether
state law conflicts with federal law, not
whether there are effects on U.S.
foreign policy. . . . . . . . . . . . . . . . . . . . 24
C.
Affording preemptive force to mere
Executive policy priorities would raise
serious federalism concerns. . . . . . . . 26
D.
The Ninth Circuit failed to faithfully
apply the principle that a conflict must
be shown with a federal act having the
force of law. . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iv
TABLE OF AUTHORITIES
Federal Cases
Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) . . . . . . . . . . . . . . . passim
Ashwander v. Tenn. Valley Auth.,
297 U.S. 288 (1936) . . . . . . . . . . . . . . . . 10, 11
Barclays Bank PLC v. Franchise Tax Bd.,
512 U.S. 298 (1994) . . . . . . . . . . . . . . . passim
Chamber of Commerce of U.S. v. Whiting,
131 S. Ct. 1968 (2011) . . . . . . . . . . . . . . . . . 25
Clark v. Allen, 331 U.S. 503 (1947) . . . . . . . . . 15, 16
Container Corp. of Am. v. Franchise Tax Bd.,
463 U.S. 159 (1983) . . . . . . . . . . . . . . . . . . . 30
Crosby v. Nat’l. Foreign Trade Council,
530 U.S. 363 (2000) . . . . . . . . . . . . . . . passim
Cruz v. United States,
387 F. Supp. 2d 1057 (N.D. Cal. 2005) . . . . 16
FMC Corp. v. Holliday, 498 U.S. 52 (1990) . . . . . . 13
Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985) . . . . 26
Gregory v. Ashcroft, 501 U.S. 452 (1990) . . 14, 26, 27
v
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) . . . . . . 23
Medellin v. Texas, 552 U.S. 491 (2008) . . . . . passim
Patrickson v. Dole Food Co.,
251 F.3d 795 (9th Cir. 2001) . . . . . . . . . . . . 31
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . 22, 23
United States v. Arizona,
641 F.3d 339 (9th Cir. 2011) . . . . . . . . passim
Von Saher v. Norton Simon Museum of Art,
592 F.3d 954 (9th Cir. 2010) . . . . . . . . . . . . 13
Wyeth v. Levine, 555 U.S. 555 (2009) . . . . . . 2, 13, 25
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) . . . . . . . . . . . . . . . . 20, 23
Zschernig v. Miller, 389 U.S. 429 (1968) . . . . passim
United States Constitution
U.S. Const. art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . . . . 22
U.S. Const., art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . . 20
Federal statutes
Immigration and Nationality Act,
8 U.S.C. § 1101 et seq. . . . . . . . . . . . . . passim
vi
State statutes
S.B. 1070, § 2, Ariz. Rev. Stat. § 11-1051 . . . . passim
S.B. 1070, § 3, Ariz. Rev. Stat. § 13-1509 . . . . passim
S.B. 1070, § 5, Ariz. Rev. Stat. § 13-2928 . . . . passim
S.B. 1070, § 6, Ariz. Rev. Stat.
§ 13-3883(A)(5) . . . . . . . . . . . . . . . . . . . passim
Law review articles
Jack L. Goldsmith, Federal Courts,
Foreign Affairs, and Federalism,
83 Va. L. Rev. 1617 (1997) . . . . . . . . . . . . . . 27
1
STATEMENTS PURSUANT TO SUPREME
COURT RULE 37
Amicus respectfully submits this Brief in
support of neither party pursuant to Supreme Court
Rule 37.1 All parties to this appeal have consented to
filing.2
STATEMENT OF IDENTITY AND INTEREST
OF AMICUS CURIAE
EarthRights International (ERI) is a non-profit
human rights organization based in Washington, D.C.
that litigates and advocates on behalf of victims of
human rights abuses worldwide. ERI is counsel in
several transnational lawsuits asserting state-law
claims, such as Carijano v. Occidental Petroleum Corp.,
No. 07-05068 (C.D. Cal.), No. 08-56187 (9th Cir.),
which alleges that a California corporation is liable
under, inter alia, California state law for injuries
suffered in Peru. ERI therefore has an interest in
ensuring that state-law claims are not improperly
dismissed for perceived interference with federal
foreign affairs powers, and that in general the
preemption doctrines involving foreign affairs are
properly applied.
ERI believes in the inherent dignity of all
people, citizen or non-citizen. We decry politicians who
1
Amicus affirms that no counsel for a party authored
the brief in whole or part and no person other than amicus
or its counsel made a monetary contribution to this brief.
2
Consent letters have been filed with the Court by
the parties.
2
seek to score easy political points by targeting noncitizens and federal law enforcement. Any analysis of
a state law affecting immigration must faithfully
consider the humanitarian aspects of federal
immigration law. See Brief for the United States in
Opp’n to Pet. For Certiorari at 4. ERI is thus interested
not in promoting the content of S.B. 1070, which it
finds to be lacking in humanitarian concern, but rather
in ensuring that the state law in question, regardless
of its content, is subject to the proper foreign affairs
preemption analysis.
STATEMENT OF THE CASE
The Ninth Circuit affirmed a preliminary
injunction barring the enforcement of four provisions
of S.B. 1070, Arizona’s immigration law. United States
v. Arizona, 641 F.3d 339 (9th Cir. 2011). The court
concluded that each of these provisions likely conflicts
with the Immigration and Nationality Act, 8 U.S.C. §
1101 et seq. (“INA”). Id. at 344.
The court below found that “a presumption
against preemption applies when ‘Congress has
legislated ... in a field which the States have
traditionally occupied.’” Id. at 348 (quoting Wyeth v.
Levine, 555 U.S. 555, 565 (2009)). Accordingly, it
considered whether each provision addressed an area
of traditional state authority. Id. at 348, 355, 357, 361.
It held that S.B. 1070 Section 2(B), Ariz. Rev. Stat. §
11-1051, which requires state officials to determine an
arrestee’s immigration status; Section 3, Ariz. Rev.
Stat. § 13-1509, which makes it a state crime for
unauthorized immigrants to violate federal
registration laws; and Section 6, Ariz. Rev. Stat. § 13-
3
3883(A)(5), which authorizes warrantless arrests based
on probable cause of removability; do not implicate
fields states traditionally occupy. Id. at 348, 355, 361.
By contrast, it held that Section 5(C), Ariz. Rev. Stat.
§ 13-2928, which criminalizes unauthorized work,
involves a traditional state police power. Id. at 357.
Although the court applied a more stringent
preemption standard to Section 5(C) than it did to
Sections 2(B), 3 and 6, it concluded that all four
provisions are likely preempted. Id. at 344.
Rather than ending its analysis at that point,
however, the Ninth Circuit further held that each of
these provisions “has had a deleterious effect on the
United States’ foreign relations, which weighs in favor
of preemption.” Id. at 352, accord 356, 360, 365-66. The
court relied on criticism of Arizona’s law by various
governments and inter-governmental organizations
and affirmative steps by Mexico to protest the law. Id.
at 353-54. It also cited the fact that a Deputy Secretary
of State attested that S.B. 1070 had harmed U.S.
foreign relations, and an Acting Assistant Secretary at
the Department of Homeland Security (DHS) had
attested that it “is affecting DHS’s ongoing efforts to
secure international cooperation in carrying out its
mission.” Id. The majority’s decision neither discussed
the strict limits this Court has placed on foreign affairs
preemption, nor attempted to show that these
requirements have been met.
Judge Noonan joined the majority opinion, but
separately concurred “to emphasize the intent of the
statute and its incompatibility with federal foreign
policy.” Id. at 366 (Noonan, J., concurring). He noted
4
Arizona’s stated intent in S.B. 1070 “to make attrition
through enforcement the public policy of all state and
local government agencies in Arizona.” Id. (quoting
S.B. 1070, Section 1). This, he found, means that
Arizona enacted “its own immigration policy” distinct
from that of the United States, and because
“immigration policy is a subset of foreign policy,” its
own foreign policy. Id. at 367. He concluded that U.S.
foreign policy preempts the field entered by Arizona,
but, like the majority, did not discuss the elements of
foreign affairs preemption. Id. at 368.
Judge Bea dissented from the decision as to
Sections 2(B) and 6, and concurred as to Sections 3 and
5(C). Id. at 371 (Bea, J., concurring in part and
dissenting in part). He specifically rejected the
majority’s foreign relations rationale, even as to those
provisions he agreed should be enjoined. Id. at 371,
380-83.
Judge Bea noted that under this Court’s
caselaw, “it is not simply any effect on foreign relations
generally which leads to preemption, as the majority
asserts.” Id. at 381 (citing Crosby v. Nat’l. Foreign
Trade Council, 530 U.S. 363 (2000) and Am. Ins. Ass’n
v. Garamendi, 539 U.S. 396 (2003) (“Garamendi”)). He
found no federal policy of avoiding foreign countries’
displeasure with U.S. immigration policy, and rejected
the notion that Congress granted the Executive the
power to veto any state law that affects foreign
relations. Id. at 381-82. Judge Bea objected that the
majority’s opinion impermissibly allows complaining
foreign countries to preempt state law. Id. at 371, 383.
5
Finally, Judge Bea concluded that for purposes
of conflict preemption analysis, “[t]he power to preempt
[state law] lies with Congress, not with the Executive,”
and thus an agency may preempt only where Congress
delegates that power. Id. at 380. Courts must look to
Congress’s intent, but not that of the Executive. Id. at
369.
INTRODUCTION AND SUMMARY OF
ARGUMENT
While amicus is deeply skeptical that S.B. 1070
is compatible with the INA—and of Arizona’s motives
in passing S.B. 1070—the Ninth Circuit’s secondary
holding that foreign relations effects support
preemption is based on a flawed and incomplete
analysis of the governing law, and would radically
expand preemption doctrine. The mere fact that a state
provision may have harmful foreign policy
implications, standing alone, does not invalidate a
duly-enacted state law.
I.
The Ninth Circuit did not state what doctrine it
purported to apply in holding that foreign policy effects
weigh in favor of preemption. There are two
possibilities. The court may have thought such effects
are relevant to the ordinary conflict preemption
analysis it conducted in concluding that S.B. 1070
likely conflicts with the INA. Alternatively, the court
may have thought it was applying “field” (or
“dormant”) foreign affairs preemption. These are
separate doctrines, each with its own strict
requirements that must be met before a court may
6
nullify state law. But the Ninth Circuit’s analysis was
inadequate regardless of which doctrine it applied; it
did not explain the relevance of a foreign policy impact
to a conflict analysis, nor did it even mention the
requirements of field preemption. Thus, the opinion
below provides no doctrinal support for its conclusion
that foreign affairs effects support preemption, and
fails even to identify which doctrine is at issue.
II.
Given this Court’s ordinary practice of avoiding
deciding significant constitutional questions
unnecessarily, the Court should not consider the
import of foreign policy effects in the first instance.
Instead, the Court should first address whether
Sections 2(B), 3, 5(C) and 6 of S.B. 1070 are preempted
by the INA, irrespective of any foreign policy effects.
Only if one or more of these provisions survives that
analysis should the Court then consider whether
foreign policy concerns support either field or conflict
preemption.
Ordinary conflict preemption is far narrower
than foreign affairs field preemption. The question of
whether S.B. 1070 conflicts with the INA turns on an
analysis of the two statutes, while the question of
whether dormant federal foreign affairs authority
preempts S.B. 1070 involves broad constitutional
questions regarding the scope and limits of federal and
state authority. Even as to conflict preemption, the
Court should consider whether there would be a
conflict in the absence of a foreign affairs effect before
it considers such effects. The Ninth Circuit’s foreign
policy discussion, if part of a conflict analysis, raises
7
constitutional questions regarding Executive power to
preempt that the Court, if possible, should avoid.
III.
Foreign affairs field preemption is exceedingly
rare. This Court has struck down a state law on field
preemption grounds only once. See Zschernig v. Miller,
389 U.S. 429 (1968). The doctrine applies where a state
“take[s] a position on a matter of foreign policy with no
serious claim to be addressing a traditional state
responsibility.” Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 420 n.11(2003). The state law must have a direct
effect on foreign relations; i.e. the state must have
purported to make its own foreign policy. The Ninth
Circuit found that Section 5(C) of S.B. 1070 legislates
in a field of traditional state responsibility. Amicus
takes no position on that conclusion. But if it is correct,
dormant foreign affairs preemption cannot bar Section
5(C). As to the other provisions, this Court should be
very reluctant to preempt state law based on such a
narrow and seldom-used doctrine.
IV.
Conflict preemption requires federal action with
the force of law. This is so regardless of whether the
state law affects U.S. foreign policy. For foreign policy
effects to be relevant, the federal policy with which the
state law purportedly conflicts must be established
through some exercise of preemptive power.
Preemptive authority typically derives from the
Constitution, statutes or treaties. This Court has made
clear that Executive action alone does not generally
have preemptive power. Accordingly, absent an explicit
8
delegation of authority from the Constitution or
Congress, the government’s foreign affairs priorities
ordinarily lack the power to preempt. In Medellin v.
Texas, 552 U.S. 491 (2008), this Court emphasized the
need for a constitutional foundation for the preempting
act, and clarified that not all issues that touch on
foreign policy fall within the President’s unilateral
authority.
Here, the INA is the only federal act at issue
with the power to preempt. Thus, only foreign policy
effects that conflict with policy enshrined in the INA
are relevant. The Ninth Circuit cited the views of
Executive officials and complaints by foreign
governments. Foreign governments’ objections, like
mere Executive policy preferences, do not carry the
force of law and thus lack the power to preempt. In
theory, the positions of the Executive and foreign
governments could be evidence of a conflict with the
INA. But the Ninth Circuit did not cite them for that
purpose. Instead, it used these sources to show the
effect on U.S. foreign policy generally, without showing
that policy was enshrined in law. That is not sufficient
to show that state law conflicts with federal law.
***
To the extent that the Ninth Circuit found that
foreign policy effects favor preemption, it ignored
either the field preemption requirement of a state law
targeted at foreign policy or the conflict preemption
requirement that there be a federal act having the
power to preempt. Such a broad new doctrine would
eviscerate this Court’s careful distinctions between,
9
and limitations on, foreign affairs field and conflict
preemption, and should not be adopted here.
ARGUMENT
I.
Foreign affairs field preemption and
conflict preemption are distinct doctrines;
the Ninth Circuit failed to identify which
doctrine it applied.
Despite the federal government’s general foreign
policy power, a state law touching upon foreign affairs
may be preempted in only two ways: “field” (or
“dormant”) preemption and traditional “conflict”
preemption. Garamendi, 539 U.S. at 419 (2003).
In rare cases, foreign affairs field preemption
may preempt state law that intrudes upon federal
foreign affairs powers, even in the absence of a conflict
with any federal act having the force of law. Id. at 41819. By contrast, under ordinary conflict preemption
principles, a state law that interferes with an
affirmative federal act that has the force of law may be
preempted. Id.3
In asserting that the foreign affairs effects of
S.B. 1070 weigh in favor of preemption, the Ninth
Circuit was unclear as to which doctrine it purported
to apply. See 641 F.3d at 352-54. On the one hand, the
court suggested that a mere impact on foreign affairs
3
Thus, foreign affairs “field” preemption is not to be
confused with statutory field preemption, wherein a state
law is preempted because Congress intended a federal
statute to occupy the field. See Crosby v. Nat’l. Foreign
Trade Council, 530 U.S. 363, 372 (2000).
10
is sufficient to preempt state law, independent of any
conflict with federal law:
“In addition to Section 2(B) standing as
an obstacle to Congress' statutorily
expressed intent, the record
unmistakably demonstrates that S.B.
1070 has had a deleterious effect on the
United States' foreign relations, which
weighs in favor of preemption.”
641 F.3d at 352 (emphasis added). On the other, the
Ninth Circuit relied on this Court’s discussion of
conflict preemption. Id. at 352-53 (citing, Crosby, 530
U.S. 363 and Garamendi, 539 U.S. 419-20).
The Ninth Circuit’s analysis, however, was
insufficient under either doctrine. To the extent it
suggested that field preemption requires nothing more
than a harmful effect on U.S. foreign policy, it ignored
the fact that the doctrine does not apply where states
operate within a field of traditional state authority. See
Section III, infra. And to the extent it implied that a
mere effect on foreign policy supports conflict
preemption, it failed to recognize that only policies
with the force of law have the power to preempt. See
Section IV, infra.
II.
This Court should consider conflict
preemption without addressing S.B. 1070’s
effects on foreign relations before it
considers whether those effects favor
preemption.
This Court avoids deciding significant
constitutional questions unnecessarily. Ashwander v.
11
Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,
J., concurring). Accordingly, the Court should initially
consider whether the enjoined provisions conflict with
the INA, wholly apart from any foreign relations
effects. If it considers the foreign policy effects of S.B.
1070 at all, it should do so only if one or more of those
provisions are not otherwise preempted.
The question of whether the INA preempts S.B.
1070 irrespective of any foreign policy effects does not
present any significant constitutional questions. To be
sure, the question is “constitutional”—conflict
preemption applies the Supremacy Clause—but it
turns on an analysis of the two statutes. By contrast,
conducting a foreign affairs field preemption analysis,
or considering whether the foreign policy effects cited
by the Ninth Circuit are relevant in a conflicts
analysis, would carry much broader constitutional
significance.
Foreign affairs field preemption is a
constitutional inquiry that turns on the scope of
dormant federal power and the corresponding limits on
state authority. Any decision regarding foreign affairs
field preemption therefore has potential implications
far beyond the field of immigration. The Court should
consider such broad constitutional questions only if it
must. That is the approach this Court took in both
Crosby and Garamendi; it considered conflict
preemption first, and ultimately had no occasion to
reach field preemption. 530 U.S. at 374 n.7; 539 U.S. at
419-20.
In considering conflict preemption, the Court
should consider whether the state law conflicts with
12
the INA irrespective of any foreign affairs impacts
first, and should only consider the relevance of those
impacts if need be. As shown below, a state law either
conflicts with federal law or it does not. Evidence of an
impact on foreign relations is only relevant to the
extent that it sheds light on the existence of a conflict
with a federal statute. The Ninth Circuit, however,
looked beyond any alleged conflicts with the INA and
considered whether S.B. 1070 conflicted with Executive
foreign policy preferences. Whether that was proper
turns on whether Executive policy has preemptive
power. While under this Court’s precedent it clearly
does not, that is a constitutional question that the
Court should avoid if possible.
III.
The Ninth Circuit’s analysis is incomplete
under the foreign affairs field preemption
doctrine, because a mere effect on foreign
relations is not sufficient to preempt.
If the Court were to consider foreign affairs field
preemption, it should recognize that the Ninth
Circuit’s analysis was inadequate. A mere effect on
foreign policy—even if substantial—does not in and of
itself preempt state law. Field preemption cannot
apply if the state law involves traditional state
authority. The Ninth Circuit found that, unlike the
other three relevant sections, Section 5(C) of S.B. 1070
did involve such authority. 641 F.3d at 357. If that is
so, field preemption cannot displace Section 5(C), and
the Ninth Circuit erred to the extent it suggested
otherwise. That said, field preemption could
conceivably apply to any provision that is outside the
realm of traditional state authority, subject to the
13
limitations and cautionary language of this Court’s
jurisprudence.
A.
State law is not preempted merely
because it may affect foreign
relations.
Field preemption does not apply where a State
has acted within its traditional state responsibility.
This Court has suggested that field preemption should
apply where a state “take[s] a position on a matter of
foreign policy with no serious claim to be addressing a
traditional state responsibility.” Garamendi, 539 U.S.
at 420 n.11; see also Zschernig, 389 U.S. at 441 (a state
may not “establish its own foreign policy”). If, however,
the law is within a state’s traditional competence, “it
might make good sense to require a conflict.” Id.
Thus, in determining whether field preemption
applies, the “central question” is whether the state has
“addressed a traditional state responsibility, or has it
infringed on a foreign affairs power reserved by the
Constitution exclusively to the national government?”
Von Saher v. Norton Simon Museum of Art, 592 F.3d
954, 964 (9th Cir. 2010). If a state acts within its
traditional authority—even if there is an effect on
foreign affairs—it is not acting within a realm of
exclusive federal power, and there is no field
preemption.
This is consistent with the ordinary presumption
that, even where Congress acts, it “does not intend to
pre-empt areas of traditional state regulation.” FMC
Corp. v. Holliday, 498 U.S. 52, 61 (1990); accord Wyeth,
555 U.S. at 565. To infringe upon historic state powers,
14
Congress must make its intent “unmistakably clear in
the language of [a] statute.” Gregory v. Ashcroft, 501
U.S. 452, 460 (1990) (internal punctuation omitted).
This rule reflects the fact “that the States retain
substantial sovereign powers . . . with which Congress
does not readily interfere.” Id. at 461. Certainly
Congress is better situated to protect federal
prerogatives through statutory preemption than is the
Judiciary applying dormant foreign affairs preemption.
If Congress cannot preempt historic state powers
without making its intent clear, it is difficult to see
how such powers can be preempted when Congress has
not acted at all.
Medellin, 552 U.S. 491, confirms that a mere
effect on foreign relations, even if substantial, is
insufficient to preempt. There, this Court held that a
Texas law was not preempted even though its
enforcement manifestly interfered with U.S. foreign
policy. Id. at 524, 530-32. Texas’ application of its
statutory limitation on filing successive habeas
petitions had led to a suit by Mexico against the United
States at the International Court of Justice, which
Mexico won. This Court rejected preemption because it
was not supported by any federal act having the force
of law. Id. at 530. That the Court applied conflict, not
field, preemption and upheld application of the state
law refutes any suggestion that state law that
interferes with foreign policy may be preempted on
that basis alone.
Indeed, a finding that any state law that affects
foreign relations may be preempted would wreak havoc
upon state law. All kinds of state provisions can have
15
all kinds of effects outside the state. But, as this Court
has long held, “some incidental or indirect effect in
foreign countries” is insufficient—the same would be
“true of many state laws which none would claim cross
the forbidden line.” Clark v. Allen, 331 U.S. 503, 517
(1947).
The Court adopted this restrained approach over
60 years ago, when states were much less
interconnected with foreign countries than they are
now. Yet this Court recognized even then that a
preemption doctrine that bars state law based upon
merely incidental effects would impermissibly intrude
upon state prerogatives. The harm to our federal
system would be far greater today, since many more
state laws have incidental effects outside the United
States. This is perhaps why this Court has only once
applied field preemption to strike down a state law,
and has not done so for over forty years. See Zschernig,
389 U.S. 429.
Zschernig and Clark established and clarified
the distinction between direct and incidental foreign
policy effects. In Zschernig, probate courts applying
Oregon’s reciprocal inheritance statute inquired into
whether foreign communist regimes would confiscate
property, and whether foreign diplomatic statements
on this subject were credible. 389 U.S. at 435. In short,
Oregon law made “unavoidable judicial criticism of
nations established on a more authoritarian basis than
our own.” Id. at 440. Because the law, as Oregon’s
courts applied it, had a “direct impact upon foreign
relations,” id., and threatened to “adversely affect the
power of the central government to deal with” the
16
communist bloc, id. at 441, it had to yield before the
federal government’s power to conduct foreign policy.
In essence, the Oregon courts were creating their own
foreign policy in applying the law.
In Clark, the Court had previously upheld a
similar reciprocal inheritance law against a foreign
affairs challenge. 331 U.S. at 517. Yet Zschernig did
not overrule Clark. The latter involved a facial
challenge; there was no record of judges criticizing the
undemocratic nature of other governments that are the
province of the Executive Branch. Zschernig, 389 U.S.
at 432-34. The distinguishing principle is that in Clark,
the effects on foreign policy were indirect; in Zschernig,
direct. Subsequent to Zschernig, most of the rare
instances in which foreign affairs field preemption has
been applied involved “state ‘regulations which amount
to embargoes or boycotts’ passed with the express
intent to coerce foreign states into altering their
political and social policies.” Cruz v. United States, 387
F. Supp. 2d 1057, 1076 (N.D. Cal. 2005) (citations
omitted).
Barclays Bank PLC v. Franchise Tax Board, 512
U.S. 298 (1994), is also instructive. There, in the
analogous dormant foreign commerce clause context,
the Court refused to preempt a state tax law despite
clear evidence of foreign policy effects, including, inter
alia, diplomatic protest from other nations and the
enactment of retaliatory legislation. See id. at 320,
324-28 & n.22. The Court held that only Congress, not
the President or the judiciary, has the authority “to
evaluate whether the national interest is best served
by [] uniformity, or state autonomy.” Id. at 328-29, 331.
17
It disavowed any competence to determine whether a
state law interfered with Congress’ ability to speak
with the voice of the nation, or whether conversely
Congress had decided to allow the state to act. 512 U.S.
at 324-31. Accordingly, the Court presumed that a lack
of “specific indications of congressional intent to bar”
state law affecting foreign commerce indicates
“Congress’ willingness to tolerate” such law. Id. at 324,
327.
These cases make clear that courts applying the
foreign affairs preemption doctrine must do so with
restraint, and only where the state has actually made
its own foreign policy rather than merely acted in an
area of traditional state concern. The question then is
not, as the Ninth Circuit believed, the “magnitude” of
any effect on foreign relations. 641 F.3d at 353.
Instead, it is whether such effect is direct or indirect.
If the Ninth Circuit purported to apply field
preemption, it erred in assuming that an effect on
foreign policy alone is sufficient to preempt. Id. at 35253. Since it found that Section 5(C) of S.B. 1070
involved an area of traditional state competence, id. at
357, it could not properly find that field preemption
displaces that provision.
B.
Under a proper foreign affairs field
preemption analysis, provisions of
S.B. 1070 may be subject to
preemption, but the Court must take
a restrained approach.
Should this Court reach dormant foreign affairs
preemption, there might be a basis in the sparse
18
existing doctrine for barring provisions of S.B. 1070—if
the Court makes certain findings. But at the threshold,
the Court should consider whether any intrusion into
federal prerogatives here is so stark as to warrant
striking down a state law on dormant foreign affairs
grounds for only the second time in this Court’s
history. See generally Garamendi, 539 U.S. at 439
(Ginsburg, J., dissenting) (“We have not relied on
Zschernig since it was decided, and I would not
resurrect that decision here.”)
As noted above, when a state acts outside its
traditional state responsibility and affects foreign
relations, courts assess whether the state law intrudes
upon exclusive federal authority. To do so, courts ask
whether the state has made “its own foreign policy,”
Zschernig, 389 U.S. at 441—in other words, whether
the state’s act has a direct effect on foreign policy. If it
does, the law may be subject to foreign affairs field
preemption.
For preemption to be possible in this case, the
Court must make at least two findings. First, it must
conclude that a given provision of S.B. 1070 does not
involve traditional state authority. Thus, to preempt
Section 5(C), it must find that the Ninth Circuit erred
in holding this provision to be within traditional state
power. Second, the Court must also agree with Judge
Noonan that Arizona was conducting its own foreign
policy.
While existing dormant foreign affairs doctrine
arguably does not preclude preemption if the Court
makes those findings, the Court should be extremely
wary of extending that doctrine into new realms.
19
Dormant foreign affairs preemption “resonates most
audibly” when, as in Zschernig, a state criticizes or
“sit[s] in judgment” of a foreign government.
Garamendi, 539 U.S. at 439 (Ginsburg, J., dissenting)
(internal citations omitted). That, of course, is not the
case here.
IV.
Conflict preemption requires a conflict
with federal law; an impact on foreign
relations alone is insufficient.
The Ninth Circuit’s assertion that S.B. 1070’s
effect on foreign affairs in and of itself weighs in favor
of preemption is also incorrect if considered under the
framework of conflict preemption. The question in a
conflicts analysis is whether state law conflicts with
federal law. Foreign policy that is not enshrined in
federal law is not law, and thus lacks preemptive force.
In this case, the INA is the only federal act with the
power to preempt. Accordingly, while foreign policy
impacts that affect the operation of the INA are
evidence of a conflict, those that do not are irrelevant
to this analysis.
The Ninth Circuit erred in considering foreign
governments’ complaints and statements of U.S.
officials as evidence of a conflict with U.S. foreign
policy generally, without finding that policy was
enshrined in the INA.
A.
Conflict preemption requires a
federal act that is “fit to preempt”
state law.
Conflict preemption considers whether state law
interferes with an affirmative federal act that is “fit to
20
preempt” state law. Garamendi, 539 U.S. at 416,
418–19. The Executive’s foreign policy preferences,
standing alone, lack the power to preempt.
Under the Supremacy Clause, certain sources
—the “Constitution,” the “laws of the United States,”
and “treaties”—are the “supreme law of the land,” and
can preempt state law. U.S. Const., art. VI, § 2.
Conflict preemption, therefore, only applies to actions
of the political branches carrying the force of law;
federal activity lacking legal force cannot preempt
state law.
This Court made clear in Medellin that the
requirement that conflict preemption be based on acts
that carry the force of law holds true even where state
law has serious foreign policy implications. 552 U.S. at
524-32. There, a state criminal case interfered with
federal foreign policy, and the President himself
purported to mandate that Texas courts comply with
the United States’ obligations under a decision of the
International Court of Justice. Id. at 503. Although
this Court recognized that the President has the lead
role in making “sensitive foreign policy decisions,” and
that the case presented “plainly compelling” federal
foreign policy interests, it held that “[s]uch
considerations . . . do not allow us to set aside first
principles. The President’s authority to act, as with the
exercise of any governmental power, ‘must stem either
from an act of Congress or from the Constitution
itself.’” Id. at 524 (quoting Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 585 (1952)).
Thus, the Court primarily focused on searching
for a possible basis—either a ratified treaty, see id. at
21
524-30, or some independent power of the President,
id. at 530-32—that would give the President the
authority to displace state law. There was, however, no
federal policy enacted by Congress and no express
constitutional basis for the President to preempt.4
The formal Presidential memoranda in Medellin
lacked the preemptive force of law even though
important foreign affairs interests were clearly
implicated. Id. at 525, 532. Medellin thus reaffirmed
that mere federal executive branch foreign policy
cannot preempt state law.5
In Barclays Bank, this Court similarly rejected
the contention that amicus briefs filed by the Executive
and letters it sent to a state governor had the power to
preempt, finding they “lack the force of law.” 512 U.S.
4
The only other “narrow set of circumstances” in
which this Court has recognized preemptive authority
involves “the making of executive agreements to settle civil
claims between American citizens and foreign governments
or foreign nationals.” Id. at 531. The President’s power to
make such agreements has “been exercised since the early
years of the Republic,” and “has received congressional
acquiescence throughout its history.” Garamendi, 539 U.S.
at 415. Thus, they are “legally binding.” Barclays Bank, 512
U.S. at 329.
5
See also Garamendi, 539 U.S. at 442 (Ginsburg, J.,
dissenting) (no authority grants executive branch officials
“the power to invalidate state law simply by conveying the
Executive’s views on matters of federal policy”). Nothing in
the majority opinion in Garamendi, which relied on
executive agreements rather than mere statements by the
Executive as the source of preemptive power, conflicts with
this conclusion.
22
at 328-30 & n.30. To be sure, Barclays Bank was based
in part on the fact that “the Constitution grants
Congress, not the President, the power to ‘regulate
Commerce with foreign Nations.’” Id. at 329 (quoting
U.S. Const. art. I, § 8, cl. 3). But Barclays Bank
implicitly recognized (as Medellin confirms), that the
President typically lacks unilateral authority to make
preemptive law.
Although the situation was not presented in
Barclays Bank, the Court noted that, in another case,
Congress might delegate preemptive authority to the
President “by a statute or a ratified treaty.” Id. at
329. Absent such delegation, the Court only
contemplated that the President might preempt state
law “pursuant to a legally binding executive
agreement.” Id. The Court specifically declined to
consider when such unilateral executive action might
preempt state law precisely because the only Executive
Branch communications at issue in Barclays Bank
were those “that express federal policy but lack the
force of law.” Id. at 330. Federal policy, therefore, is
insufficient to preempt without the force of law.
The Court considered this point so indisputable
that it used it in another context as an example of a
“broken circle” of logic: “[T]hat Executive agreements
may displace state law . . . and that unilateral
presidential action (renunciation) may displace
Executive agreements, does not produce the ‘logical’
conclusion that unilateral presidential action may
23
displace state law.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 97 n.2 (1998) (citation omitted).6
So important is the principle that the President
generally lacks the power to unilaterally create federal
law that it applies even with respect to an ongoing war.
Thus, in Youngstown, 343 U.S. at 583, 590, this Court
rejected President Truman’s claim of authority to seize
steel mills to support national defense, including
prosecution of the Korean War. And in Hamdan v.
Rumsfeld, 548 U.S. 557, 567 (2006), this Court rejected
procedures the President established to try a prisoner
captured during war.
Here, the only possible government act with the
power to preempt is the INA. The Ninth Circuit cited
no treaty, executive agreement or explicit
Constitutional delegation to the Executive as having
the power to preempt S.B. 1070. Accordingly, the only
relevant federal policy is that enshrined in the INA.
6
Barclays Bank would be nullified if the Executive
could preempt state law based on some general foreign
affairs authority. Indeed, since international trade policy is a
facet of U.S. foreign policy, affording the President general
foreign affairs preemptive power would allow the President
unilaterally to regulate international commerce through
preemption of state rules, in violation of the foreign
commerce clause, by simply declaring that such action was
taken pursuant to his authority to “manage foreign affairs.”
24
B.
Conflict preemption considers
whether state law conflicts with
federal law, not whether there are
effects on U.S. foreign policy.
The traditional standard for finding a conflict
between federal and state law applies regardless of
whether the state law implicates foreign relations.
Because mere Executive foreign policy preferences do
not have preemptive force, the question is not whether
state law conflicts with U.S. foreign policy, but
whether state law conflicts with federal law.
As Judge Bea recognized, “it is not simply any
effect on foreign relations generally which leads to
preemption, as the majority asserts.” 641 F.3d at 381
(Bea, J., concurring in part and dissenting in part)
(emphasis in original). Rather, conflict preemption
requires that “the state law’s effect on foreign relations
conflicts with federally established foreign relations
goals.” Id. As the preceding section makes clear, the
policy must be established through some exercise of
preemptive power.
Congress’ purpose is the ultimate touchstone of
any preemption inquiry. Wyeth, 555 U.S. at 565.
Because “it is Congress rather than the courts that
preempts state law,” preemption analysis “does not
justify a freewheeling judicial inquiry into whether a
state statute is in tension with federal objectives.”
Chamber of Commerce of U.S. v. Whiting, 131 S. Ct.
1968, 1985 (2011) (internal quotations omitted).
The cases the Ninth Circuit cited, Crosby and
Garamendi, 641 F.3d at 352, make clear that foreign
25
policy is relevant to a conflicts analysis only to the
extent that state law conflicts with a policy preference
that is enshrined in an act with preemptive power.
Neither suggests that an effect on foreign relations
that is not enshrined in federal law acts as a thumb on
the scale weighing in favor of preemption.
Crosby involved a Massachusetts law restricting
state agencies’ authority to purchase goods from
companies doing business with Burma. 530 U.S. at
366. This Court held that the state law posed an
obstacle to the accomplishment of Congress’s objectives
in a statute imposing sanctions on Burma, including
policy choices Congress assigned to the Executive. Id.
at 366-70, 373, 383-84. Although the state law had
obvious impacts on federal foreign policy, id. at 382-84,
the Court applied ordinary conflict preemption
principles. Id. at 372-74 & n.8. The foreign policy
effects were relevant only to show that the state law
actually conflicted with the federal statute. Id. at 38586. The Court nowhere suggested that foreign affairs
effects that did not inhibit the goals of the statute were
relevant, nor did it suggest that foreign affairs impacts
permitted preemption based on a lesser showing of
conflict with federal law. Id. at 372-86.
Similarly, in Garamendi, this Court found that
a California law concerning insurance claims by
Holocaust victims was preempted by the Executive’s
efforts to resolve such claims through executive
agreements. 539 U.S. at 401, 413, 421-25. The Court
did not look to whether the state law conflicted with
Executive foreign policy generally, but instead
considered whether that law conflicted with the
26
policies animating executive agreements, which carried
the force of law. Id. at 416, 421-25.7
In short, any foreign policy effects of S.B. 1070
are only relevant to conflict preemption to the extent
that they conflict with federal policy enshrined in the
INA.
C.
Affording preemptive force to mere
Executive policy priorities would
raise serious federalism concerns.
Permitting mere Executive policy preferences to
preempt state law would eviscerate the states’ ability
to protect their own prerogatives. “Our Framers
established a careful set of procedures that must be
followed before federal law can be created under the
Constitution—vesting that decision in the political
branches, subject to checks and balances.” Medellin,
552 U.S. at 515. Under Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 550-51
(1985), states are usually protected against federal
intrusion by their representation in that federal
political process. Allowing Executive priorities to
override state law without explicit congressional
direction “would evade the very procedure for
lawmaking on which Garcia relied to protect states’
7
Although Garamendi relied on Executive Branch
statements to illuminate those policies, 539 U.S. at 411 &
422, it did not suggest that such a statement alone has
preemptive force, or that the state statute would have been
preempted in the absence of an executive agreement.
Indeed, even the “authority to settle international claims
disputes pursuant to an executive agreement” is “narrow
and strictly limited.” Medellin, 552 U.S. at 532.
27
interests.” Gregory, 501 U.S. at 464 (internal quotation
omitted).
This is particularly so with respect to areas of
traditional state authority, since limits on such
authority typically can be created only by Congress. As
noted above, to preempt a historic state power,
Congress must make its intent “unmistakably clear.”
Id. at 460.
Garamendi can be seen as an exception to the
rule requiring explicit congressional direction to
override historic state powers, since the Court noted
that a clear conflict with the policy reflected in an
executive agreement was “alone enough” to require
preemption. 539 U.S. at 425. But Garamendi relied on
the President’s “narrow and strictly limited authority
to settle international claims,” Medellin, 552 U.S. at
532, not some generalized executive foreign affairs
power. Thus, Executive agreements are sui generis.
Courts should be loathe to create new exceptions to the
Supremacy Clause.
Nor is there any need to do so. If a state goes too
far in intruding upon federal foreign relations
prerogatives, the federal political branches will have
every incentive to protect themselves. Thus, “the
hurdles to political branch correction of untoward state
foreign relations activity are relatively insignificant.”
Jack L. Goldsmith, Federal Courts, Foreign Affairs,
and Federalism, 83 Va. L. Rev. 1617, 1693-94 (1997).
Conversely, however, if the courts go too far in
preempting state law, states will face all of the “usual
hurdles to congressional override.” Id.
28
D.
The Ninth Circuit failed to faithfully
apply the principle that a conflict
must be shown with a federal act
having the force of law.
In finding that S.B. 1070 harms U.S. foreign
relations, the Ninth Circuit lost sight of the guiding
principle that only federal actions with the force of law
may preempt. The court cited foreign governments’
displeasure and statements by U.S. officials to assess
the effect of S.B. 1070 on U.S. foreign policy generally.
641 F.3d at 352-54. But the only relevant question in
a conflicts analysis is whether there is an effect on the
INA.
As a threshold matter, the Ninth Circuit did
not—and could not—claim that foreign government
protests are fit to preempt U.S. law. Instead, it
properly emphasized that foreign governments’
complaints could not, by themselves, require
preemption. Id. at 353 n.14. The same is true of
Executive statements, as Medellin makes clear. 552
U.S. at 524-32; accord Crosby, 530 U.S. at 385 (“[W]e
do not unquestioningly defer to the legal judgments
expressed in Executive Branch statements when
determining a federal Act’s preemptive character.”)8
To support its reliance on the views of foreign
governments and senior U.S. officials, the Ninth
Circuit quoted Crosby, in which this Court held that
8
Judge Noonan read Garamendi to support the
notion that the President has the “power to preempt states
from acting in matters of foreign policy.” 641 F.3d at 368-69
(Noonan, J., concurring). Medellin precludes such authority.
29
such statements “are competent and direct evidence of
the frustration of congressional objectives by the state
Act.” 641 F.3d at 353 (quoting 530 U.S. at 385)
(emphasis added). But the italicized words confirm that
preemption must be based upon a conflict with federal
law, not Executive policy. Crosby, 530 U.S. at 385-86;
accord Arizona, 641 F.3d at 381-83 (Bea, J., concurring
in part and dissenting in part).
The foreign policy interests impeded by the state
law in Crosby were not mere Executive preferences,
but rather were “objectives assigned [to the Executive]
by Congress” in the federal statute alleged to preempt.
530 U.S. at 383-86. Crosby looked to Executive
statements not as preemptive, but rather as evidence
of the “practical difficulty of pursuing a congressional
goal requiring multinational agreement.” Id. at 386.
Indeed, Crosby distinguished Barclays Bank, in which
this Court gave short shrift to formal diplomatic
protests and statements by the Executive, specifically
because there Congress had rejected the positions both
of foreign governments and the Executive. 530 U.S. at
385 (citing 512 U.S. at 324-29).
Thus, the Ninth Circuit erred when it relied on
statements by Executive branch officials. The Deputy
Secretary of State’s broad conclusion that S.B. 1070
has harmed U.S. foreign relations does not suggest a
conflict with the operation of the INA. Id. Similarly,
the Ninth Circuit cited a DHS official’s statement that
S.B. 1070 “is affecting DHS’s ongoing efforts to secure
international cooperation in carrying out its mission.”
Id. This might suggest a conflict with the INA, to the
30
extent DHS’s mission is enshrined in the INA, but the
Ninth Circuit did not make that required finding.
The Ninth Circuit likewise erred in citing
protests by various foreign governments and intergovernmental organizations as evidence of the “effects
of Arizona’s law on U.S. foreign affairs.” 641 F.3d at
353-54. (emphasis added). Since U.S. foreign policy
itself, standing alone, is not fit to preempt, an effect on
it is not either. The court did not find that these
protests impair the operation of the INA. Id. Absent
such a finding, the opinions of foreign governments are
irrelevant to whether S.B. 1070 conflicts with the
federal statute.
Indeed, courts must generally refrain from
giving undue weight to policy statements of foreign
governments, to avoid granting them a “heckler’s veto.”
See 641 F.3d at 383 (Bea, J., concurring in part and
dissenting in part). Since it is only U.S. policy
enshrined in U.S. law that matters, a foreign
government’s grievances are relevant, if at all, only as
evidence that such policy is adversely affected.9
9
Accordingly, where the argument for preemption is
that state law impairs authority Congress delegated to the
Executive, a foreign government’s objection is only relevant
if the Executive makes that claim. Thus, in Crosby, this
Court considered the submissions of foreign governments
only for the purpose of analyzing the U.S. government’s
claim that state law had “complicated its dealings with
foreign sovereigns.” 530 U.S. at 382-84. This flows from the
fact that courts have limited capacity to determine whether
state law has foreign affairs effects. Id. at 386; see also e.g.
Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159,
194 (1983) (noting Court has little competence to determine
31
CONCLUSION
If the Court considers the foreign policy effects
of S.B. 1070, it should reiterate that a state law may
only exceed dormant federal foreign affairs authority
if a state acts outside its traditional authority and
purports to create its own foreign policy, and that only
federal policy that is enshrined in law may have
preemptive effect.
DATED: February 13, 2012
Respectfully submitted,
RICHARD L. HERZ
Counsel of Record
MARCO B. SIMONS
JONATHAN G. KAUFMAN
MARISSA ANN VAHLSING
when foreign nations will be offended, and even less to
decide how to balance a risk of retaliation). As the Ninth
Circuit explained in another context:
Nor do we understand how a court can go about
evaluating the foreign policy implications of another
government’s expression of interest. Assuming that
foreign relations are an appropriate consideration at
all, the relevant question is not whether the foreign
government is pleased or displeased by the litigation,
but how the case affects the interests of the United
States. That is an inherently political judgment, one
that courts—whether state or federal—are not
competent to make.
Patrickson v. Dole Food Co., 251 F.3d 795, 803-04 (9th Cir.
2001) aff'd in part, cert. dismissed in part, 538 U.S. 468
(2003).
32
BENJAMIN HOFFMAN
EARTH RIGHTS INTERNATIONAL
1612 K Street, N.W. Suite 401
Washington, DC 20006
202-466-5188 (ph)
202-466-5189 (fax)
Counsel for amicus curiae