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United States v. State of Arizona

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


April 11, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
STATE OF ARIZONA; JANICE K. BREWER, GOVERNOR OF THE STATE OF ARIZONA, IN HER OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. No. 2:10-cv-01413-SRB

The opinion of the court was delivered by: Paez, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted November 1, 2010-San Francisco, California

Before: John T. Noonan, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Paez; Concurrence by Judge Noonan;

Partial Concurrence and Partial Dissent by Judge Bea

OPINION

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

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

The district court granted the United States' motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Id. at 1008. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States' likelihood of success on its federal preemption argument against these four sections is the central issue this appeal presents.*fn1

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

Standard of Review

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

Discussion

I. General Preemption Principles

[1] The federal preemption doctrine stems from the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the "funda-mental principle of the Constitution [ ] that Congress has the power to preempt state law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000). Our analysis of a preemption claim

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

Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (internal quotation marks and citations omitted) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

[2] Even if Congress has not explicitly provided for preemption in a given statute, the Supreme Court "ha[s] found that state law must yield to a congressional Act in at least two circumstances." Crosby, 530 U.S. at 372. First, "[w]hen Congress intends federal law to 'occupy the field,' state law in that area is preempted." Id. (quoting California v. ARC America Corp., 490 U.S. 93, 100 (1989)). Second, "even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute." Id. Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Id. at 372-373. Impossibility preemption exists "where it is impossible for a private party to comply with both state and federal law." Id. Obstacle preemption exists "where 'under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. at 373 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). To determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our "judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id.*fn2

We recently applied the facial challenge standard from United States v. Salerno, 481 U.S. 739 (1987), to a facial preemption case. Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579-80 (9th Cir. 2008) (en banc). In Sprint, the appellant argued that a federal law "preclud[ing] state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service" facially preempted a San Diego ordinance that imposed specific requirements on applications for wireless facilities. Id. at 573-74. We explained in Sprint that "[t]he Supreme Court and this court have called into question the continuing validity of the Salerno rule in the context of First Amendment challenges. . . . In cases involving federal preemption of a local statute, however, the rule applies with full force." Id. at 579, n.3.*fn3

[3] Thus, under Salerno, "the challenger must establish that no set of circumstances exists under which the Act would be valid." Sprint, 543 F.3d at 579 (quoting Salerno, 481 U.S. at 745). We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona's framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.*fn4

II. Section 2(B)*fn5

S.B. 1070 Section 2(B) provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they "shall" make "a reasonable attempt . . . when practicable, to determine the immigration status" of the person. Ariz. Rev. Stat. Ann. § 11-1051(B) (2010). Section 2(B)'s second and third sentences provide that "[a]ny person who is arrested shall have the person's immigration status determined before the person is released," and "[t]he person's immigration status shall be verified with the federal government." Id. The Section's fifth sentence states that a "person is presumed to not be an alien who is unlawfully present in the United States if the person provides" a form of identification included in a prescribed list.*fn6

A. Interpretation of Section 2(B)

To review the district court's preliminary injunction of Section 2(B), we must first determine how the Section's sentences relate to each other. Arizona argues that Section 2(B) does not require its officers to determine the immigration status of every person who is arrested. Arizona maintains that the language in the second sentence, "[a]ny person who is arrested shall have the person's immigration status determined," should be read in conjunction with the first sentence requiring officers to make "a reasonable attempt . . . when practicable, to determine the immigration status" of a person they have stopped, detained, or arrested, if there is reasonable suspicion the person is an unauthorized immigrant. That is, Arizona argues that its officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation.

On its face, the text does not support Arizona's reading of Section 2(B). The second sentence is unambiguous: "Any person who is arrested shall have the person's immigration status determined before the person is released." Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The all-encompassing "any person," the mandatory "shall," and the definite "determined," make this provision incompatible with the first sentence's qualified "reasonable attempt . . . when practicable," and qualified "reasonable suspicion."

In addition, Arizona's reading creates irreconcilable confusion as to the meaning of the third and fifth sentences. The third sentence, which follows the requirement of determining status prior to an arrestee being released, provides that "[t]he person's immigration status shall be verified with the federal government." The fifth sentence enumerates several forms of identification that will provide a presumption that a person is lawfully documented. These two sentences must apply to different-and unrelated-status-checking requirements since one mandates contact with the federal government and a definite verification of status, while the other permits a mere unverified presumption of status, assuming the presumption is not rebutted by other facts. Arizona's reading would give law enforcement officers conflicting direction. That is, under Arizona's reading, if an officer arrests a person and reasonably suspects that the arrestee is undocumented, but the arrestee provides a valid Arizona driver's license, is the officer no longer bound by the third sentence's requirement that he or she "shall" verify the arrestee's status with the federal government?

[4] We agree with the district court that the reasonable suspicion requirement in the first sentence does not modify the plain meaning of the second sentence. Thus, Section 2(B) requires officers to verify-with the federal government-the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant. Our interpretation gives effect to "arrest" in the first sentence and "arrest" in the second sentence. The first and second sentences apply to different points in the sequential process of effecting an arrest, and at some later point, releasing the arrestee. The mandate imposed in the first sentence applies at the initial stage of an encounter or arrest, which is evident by the fact that the status-checking requirement does not override an officer's need to attend to an ongoing and immediate situation: "a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation." (emphasis added). The mandatory directive in the second sentence applies at the end of the process: an arrestee's immigration status "shall . . . [be] determined before the person is released."*fn7

B. Preemption of Section 2(B)

As the Supreme Court recently instructed, every preemption analysis "must be guided by two cornerstones." Wyeth, 129 S. Ct. at 1194. The first is that "the purpose of Congress is the ultimate touchstone." Id. The second is that a presumption against preemption applies when "Congress has legislated . . . in a field which the States have traditionally occupied." Id. The states have not traditionally occupied the field of identifying immigration violations so we apply no presumption against preemption for Section 2(B).

We begin with "the purpose of Congress" by examining the text of 8 U.S.C. § 1357(g). In this section of the INA, titled "Performance of immigration officer functions by State officers and employees," Congress has instructed under what conditions state officials are permitted to assist the Executive in the enforcement of immigration laws. Congress has provided that the Attorney General "may enter into a written agreement with a State . . . pursuant to which an officer or employee of the State . . . who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States . . . may carry out such function." 8 U.S.C. § 1357(g)(1). Subsection (g)(3) provides that "[i]n performing a function under this subsection, an officer . . . of a State . . . shall be subject to the direction and supervision of the Attorney General." 8 U.S.C. § 1357(g)(3). Subsection (g)(5) requires that the written agreement must specify "the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual." 8 U.S.C. § 1357(g)(5).

These provisions demonstrate that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General's close supervision. Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform, as evidenced by the disjunctive "or" in subsection (g)(1)'s list of "investigation, apprehension, or detention," and by subsection (g)(5). An officer might be permitted to help with investigation, apprehension and detention; or, an officer might be permitted to help only with one or two of these functions. Subsection (g)(5) also evidences Congress' intent for the Attorney General to have the discretion to make a state officer's help with a certain function permissive or mandatory. In subsection (g)(3), Congress explicitly required that in enforcing federal immigration law, state and local officers "shall" be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.

We note that in subsection (g)(10), Congress qualified its other § 1357(g) directives:

Nothing in this subsection shall be construed to require an agreement . . . in order for any officer or employee of a State . . . (A) to communicate with the Attorney General regarding the immigration status of any individual . . . or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present.

8 U.S.C. § 1357(g)(10). Although this language, read alone, is broad, we must interpret Congress' intent in adopting subsection (g)(10) in light of the rest of § 1357(g). Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify the rest of § 1357(g), which demonstrates that Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the Attorney General's supervision. Subsection (g)(10) does not operate as a broad alternative grant of authority for state officers to systematically enforce the INA outside of the restrictions set forth in subsections (g)(1)-(9).

The inclusion of the word "removal" in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under § 1357(g) to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government. By including "removal" in § 1357(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove immigrants. Therefore, the inclusion of "removal" in the list of ways that a state may "otherwise [ ] cooperate with the Attorney General," indicates that subsection (g)(10) does not permit states to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated by state law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officers-or such officers are confronted with the necessity-to cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are required for systematic and routine cooperation.*fn8 Similarly, we interpret subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of § 1357(g).*fn9

[5] In sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General-to whom Congress granted discretion in determining the precise conditions and direction of each state officer's assistance. We find it particularly significant for the purposes of the present case that this discretion includes the Attorney General's ability to make an individual officer's immigration-enforcement duties permissive or mandatory. 8 U.S.C. § 1357(g)(5). Section 2(B) sidesteps Congress' scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress' explicit requirement that in the "[p]erformance of immigration officer functions by State officers and employees," such officers "shall be subject to the direction and supervision of the Attorney General." 8 U.S.C. § 1357(g)(3). Section 2(B) therefore interferes with Congress' scheme because Arizona has assumed a role in directing its officers how to enforce the INA. We are not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General's role in directing state enforcement of federal immigration laws.

Arizona argues that in another INA provision, "Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers," citing 8 U.S.C. § 1373(c). Section 1373(c) creates an obligation, on the part of the Department of Homeland Security ("DHS"), to "respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any purpose authorized by law."

We agree that § 1373(c) demonstrates that Congress contemplated state assistance in the identification of undocumented immigrants.*fn10 We add, however, that Congress contemplated this assistance within the boundaries established in § 1357(g), not in a manner dictated by a state law that furthers a state immigration policy. Congress passed § 1373(c) at the same time that it added subsection (g) to § 1357. See Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104-208, §§ 133, 642 (1996). Thus, Congress directed the appropriate federal agency to respond to state inquiries about immigration status at the same time that it authorized the Attorney General to enter into § 1357(g) agreements with states. Arizona and the dissent urge a very broad interpretation of § 1373(c): because DHS is obligated to respond to identity inquiries from state and local officers, they argue, Arizona must be permitted to direct its officers how and when to enforce federal immigration law in furtherance of the state's own immigration policy of attrition. This interpretation would result in one provision swallowing all ten subsections of § 1357(g), among other INA sections. Our task, however, is not to identify one INA provision and conclude that its text alone holds the answer to the question before us. Rather, we must determine how the many provisions of a vastly complex statutory scheme function together. Because our task is to interpret the meaning of many INA provisions as a whole, not § 1373(c) and § 1357(g)(10) at the expense of all others, we are not persuaded by the dissent's argument, which considers these provisions in stark isolation from the rest of the statute.*fn11

In addition to providing the Attorney General wide discretion in the contents of each § 1357(g) agreement with a state, Congress provided the Executive with a fair amount of discretion to determine how federal officers enforce immigration law. The majority of § 1357 grants powers to DHS officers and employees to be exercised within the confines of the Attorney General's regulations; this section contains few mandatory directives from Congress to the Attorney General or DHS. The Executive Associate Director for Management and Administration at U.S. Immigration and Customs Enforcement within DHS has explained the purpose of this Congressionally-granted discretion: "DHS exercises a large degree of discretion in determining how best to carry out its enforcement responsibilities" which "necessitates prioritization to ensure ICE expends resources most efficiently to advance the goals of protecting national security, protecting public safety, and securing the border."

[6] By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA. To assess the impact of this interference in our preemption analysis, we are guided by the Supreme Court's decisions in Crosby, 530 U.S. 363, and Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001). In Crosby, where the Court found that a state law was preempted because it posed an obstacle to Congress' intent, the Court observed that "Congress clearly intended the federal Act to provide the President with flexible and effective authority," and that the state law's "unyielding application undermines the President's intended statutory authority." 530 U.S. at 374, 377. In Buckman, the Court found that state fraud-on-the-Food And Drug Administration claims conflicted with the relevant federal statute and were preempted, in part because "flexibility is a critical component of the statutory and regulatory framework" of the federal law, and the preempted state claims would have disrupted that flexibility. 531 U.S. at 349. The Court observed that "[t]his flexibility is a critical component of the statutory and regulatory framework under which the FDA pursues difficult (and often competing) objectives." Id.

[7] In light of this guidance, Section 2(B)'s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)'s 'unyielding" mandatory directives to Arizona law enforcement officers "undermine[ ] the President's intended statutory authority" to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, "flexibility is a critical component of the statutory and regulatory framework under which the" Executive "pursues [the] difficult (and often competing) objectives," Buckman, 531 U.S. at 349, of-according to ICE -"advanc[ing] the goals of protecting national security, protecting public safety, and securing the border." Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.

In light of the above, S.B. 1070 Section 2(B) "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" as expressed in the aforementioned INA provisions. Hines, 312 U.S. at 67. The law subverts Congress' intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Furthermore, the mandatory nature of Section 2(B)'s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities. 8 U.S.C. § 1357(g)(3).

[8] 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. See generally Garamendi, 539 U.S. 396 (finding obstacle preemption where a State law impinged on the Executive's authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated that "even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law." 539 U.S. at 420 (emphasis added).*fn12

[9] The record before this court demonstrates that S.B. 1070 does not threaten a "likelihood . . . [of] produc[ing] something more than incidental effect;" rather, Arizona's law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona's law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010 U.S.-Mexico Border Governors' Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.

In Crosby, the Supreme Court gave weight to the fact that the Assistant Secretary of State said that the state law at issue "has complicated its dealings with foreign sovereigns." 530 U.S. at 383-84. Similarly, the current Deputy Secretary of State, James B. Steinberg, has attested that S.B. 1070 "threatens at least three different serious harms to U.S. foreign relations."*fn13 In addition, the Deputy Assistant Secretary for International Policy and Acting Assistant Secretary for International Affairs at DHS has attested that Arizona's immigration law "is affecting DHS's ongoing efforts to secure international cooperation in carrying out its mission to safeguard America's people, borders, and infrastructure." The Supreme Court's direction about the proper use of such evidence is unambiguous: "statements of foreign powers necessarily involved[,] . . . indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act." Crosby, 530 U.S. at 385.*fn14 Here, we are presented with statements attributable to foreign governments necessarily involved and opinions of senior United States' officials: together, these factors persuade us that Section 2(B) thwarts the Executive's ability to singularly manage the spillover effects of the nation's immigration laws on foreign affairs.

[10] Finally, the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption. In Wis. Dep't of Indus., Labor and Human Relations v. Gould Inc., 475 U.S. 282, 288 (1986), where the Court found conflict preemption, the Court explained that "[e]ach additional [state] statute incrementally diminishes the [agency's] control over enforcement of the [federal statute] and thus further detracts from the integrated scheme of regulation created by Congress." (internal citations omitted). See also Buckman, 531 U.S. at 350 ("[a]s a practical matter, complying with the [federal law's] detailed regulatory regime in the shadow of 50 States' tort regimes will dramatically increase the burdens facing potential applicants-burdens not contemplated by Congress in enacting the [federal laws]").

[11] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

III. Section 3

[12] S.B. 1070 Section 3 provides: "In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a)."*fn15 Ariz. Rev. Stat. Ann. § 13-1509(A) (2010). The penalty for violating Section 3 is a maximum fine of one hundred dollars, a maximum of twenty days in jail for a first violation, and a maximum of thirty days in jail for subsequent violations. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3 "does not apply to a person who maintains authorization from the federal government to remain in the United States." Ariz. Rev. Stat. Ann. § 13-1509(F) (2010). Section 3 essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.

Starting with the touchstones of preemption, punishing unauthorized immigrants for their failure to comply with federal registration laws is not a field that states have "tradition-ally occupied." Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted); see generally Hines, 312 U.S. 52. Therefore, we conclude that there is no presumption against preemption of Section 3.

[13] Determining Congress' purpose, and whether Section 3 poses an obstacle to it, first requires that we evaluate the text of the federal registration requirements in 8 U.S.C. §§ 1304 and 1306. These sections create a comprehensive scheme for immigrant registration, including penalties for failure to carry one's registration document at all times, 8 U.S.C. § 1304(e), and penalties for willful failure to register, failure to notify change of address, fraudulent statements, and counterfeiting. 8 U.S.C. § 1306 (a)-(d). These provisions include no mention of state participation in the registration scheme. By contrast, Congress provided very specific directions for state participation in 8 U.S.C. § 1357, demonstrating that it knew how to ask for help where it wanted help; it did not do so in the registration scheme.

Arizona argues that Section 3 is not preempted because Congress has "invited states to reinforce federal alien classifications." Attempting to support this argument, Arizona cites INA sections outside the registration scheme where Congress has expressly indicated how and under what conditions states should help the federal government in immigration regulation. See 8 U.S.C. §§ 1621-25, 1324a(h)(2). The sections Arizona cites authorize states to limit certain immigrants' eligibility for benefits and to impose sanctions on employers who employ unauthorized immigrants. We are not persuaded by Arizona's argument. An authorization from one section does not-without more-carry over to other sections. Nothing in the text of the INA's registration provisions indicates that Congress intended for states to participate in the enforcement or punishment of federal immigration registration rules.

[14] In addition, S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court's direction: "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." Hines, 312 U.S. at 66-67. In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court's language speaks in general terms about "a complete scheme of regulation,"-as to registration, documentation, and possession of proof thereof- which the INA certainly contains. Section 3's state punishment for federal registration violations fits within the Supreme Court's very broad description of proscribed state action in this area-which includes "complement[ing]" and "enforc[ing] additional or auxiliary regulations."*fn16 Id.

The Supreme Court's more recent preemption decisions involving comprehensive federal statutory schemes also indicate that federal law preempts S.B. 1070 Section 3. In Buck-man, the Supreme Court held that the Food Drug and Cosmetics Act ("FDCA") conflict preempted a state law fraud claim against defendants who allegedly made misrepresentations to the Food and Drug Administration ("FDA"). 531 U.S. at 343. The Court explained that private parties could not assert state-fraud on the FDA claims because, "the existence of the[ ] federal enactments is a critical element in their case." Id. at 353. The same principle applies here to S.B. 1070 Section 3, which makes the substantive INA registration requirements "a critical element" of the state law.

By contrast, the Supreme Court found that state law claims were not preempted in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (holding that an express preemption provision in the federal Medical Device Amendments to the FDCA did not preclude a state common law negligence action against the manufacturer of an allegedly defective medical device), Altria Grp., Inc. v. Good, 129 S. Ct. 538 (2008) (holding that the federal Labeling Act did not expressly preempt plaintiffs' claims under the Maine Unfair Trade Practices Act alleging that Altria's advertising of light cigarettes was fraudulent), or Wyeth, 129 S. Ct. at 1193 (holding that the FDA's drug labeling judgments pursuant to the FDCA did not obstacle preempt state law products liability claims). In these cases, the state laws' "generality le[ft] them outside the category of requirements that [the federal statute] envisioned." Medtronic, 518 U.S. at 502. The state law claim in Medtronic was negligence, 518 U.S. at 502, the state statute in Altria was unfair business practices, 129 S. Ct. at 541, and the state law claim in Wyeth was products liability, 129 S. Ct. at 1193. All of the state laws at issue in these cases had significantly wider applications than the federal statutes that the Court found did not preempt them. Here, however, Section 3's "generality" has no wider application than the INA. In addition, as detailed with respect to Section 2(B) above, S.B. 1070's detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 3.

[15] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 3 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

IV. Section 5(C)

[16] S.B. 1070 Section 5(C) provides that it "is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." Ariz. Rev. Stat. Ann. § 13-2928(C) (2010). Violation of this provision is a class 1 misdemeanor, which carries a six month maximum term of imprisonment. Ariz. Rev. Stat. Ann. §§ 13-2928(F), 13-707(A)(1) (2010). Thus, Section 5(C) criminalizes unauthorized work and attempts to secure such work.

We have previously found that "because the power to regulate the employment of unauthorized aliens remains within the states' historic police powers, an assumption of non-preemption applies here." Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, Chamber of Commerce of the U.S. v. Candelaria, 130 S. Ct. 3498 (2010). Therefore, with respect to S.B. 1070 Section 5(C), we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted) (quoting Medtronic, 518 U.S. at 485).

Within the INA, Congress first tackled the problem of unauthorized immigrant employment in the Immigration Reform and Control Act of 1986 ("IRCA"). We have previously reviewed IRCA's legislative history and Congress' decision not to criminalize unauthorized work. See Nat'l Ctr. for Immigrants' Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990), rev'd on other grounds, 502 U.S. 183 (1991). In this case, we are bound by our holding in National Center regarding Congressional intent.

[17] In National Center, we considered whether the INA, through 8 U.S.C. § 1252(a), authorized the Immigration and Naturalization Service ("INS") to promulgate regulations which "imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings." Id. at 1351. To decide this question, we carefully reviewed the history of employment-related provisions in the INA's legislative scheme-including the legislative history of the IRCA amendments. Id. at 1364-70. We concluded that "[w]hile Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals . . . Congress quite clearly was willing to deter illegal immigration by making jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in obtaining work."*fn17 Id. at 1367-68.

[18] At oral argument, Arizona asserted that National Center does not control our analysis of Section 5(C) because it addressed the limited issue of whether the INS could require a condition against working in appearance and delivery bonds, which-according to Arizona-has no application to whether a state statute can criminalize unauthorized work. We agree that the ultimate legal question before us in National Center was distinct from the present dispute. Nonetheless, we do not believe that we can revisit our previous conclusion about Congress' intent simply because we are considering the effect of that intent on a different legal question. See Over-street v. United Bhd. of Carpenters and Joiners of America, Local Union No. 1506, 409 F.3d 1199, 1205 n.8 (9th Cir. 2005) ("Ordinarily, a three-judge panel 'may not overrule a prior decision of the court.' " (quoting Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)). Therefore, our decision in National Center requires us to conclude that federal law likely preempts S.B. 1070 Section 5(C), since the state law conflicts with what we have found was Congress' IRCA intent.

[19] The text of the relevant IRCA statutory provision-8 U.S.C. § 1324a-also supports this conclusion. Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants-primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization.*fn18 8 U.S.C. § 1324a(b). The verification process includes a requirement that potential employees officially attest that they are authorized to work. 8 U.S.C. § 1324a(b)(2). The statute provides that the forms potential employees use to make this attestation "may not be used for purposes other than for enforcement of this chapter and" 18 U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C. § 1324a(b)(5). These sections of Title 18 criminalize knowingly making a fraudulent statement or writing; knowingly making or using a false or stolen identification document; forging or falsifying an immigration document; and committing perjury by knowingly making a false statement after taking an oath in a document or proceeding to tell the truth. This is the exclusive punitive provision against unauthorized workers in 8 U.S.C § 1324a. All other penalties in the scheme are exacted on employers, reflecting Congress' choice to exert the vast majority of pressure on the employer side.

In addition, other provisions in 8 U.S.C. § 1324a provide affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work. Subsection 1324a(d)(2)(C) provides that "[a]ny personal information utilized by the [authorization verification] system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien." This provision would prohibit Arizona from using personal information in the verification system for the purpose of investigating or prosecuting violations of S.B. 1070 Section 5(C). Subsection 1324a(d)(2)(F) provides in even clearer language that "[t]he [verification] system may not be used for law enforcement purposes, other than for enforcement of this chapter or" the aforementioned Title 18 fraud sections.

Although Chicanos and the present case both broadly concern the preemptive effect of IRCA, the specific issues in these cases do not overlap. The scope of "licensing" law in the savings clause of the express preemption provision in IRCA has no bearing on whether IRCA impliedly preempts Arizona from enacting sanctions against undocumented workers. Subsection 1324a(g)(1) demonstrates Congress' intent to protect unauthorized immigrant workers from financial exploitation-a burden less severe than incarceration. This section provides that "[i]t is unlawful for a person or other entity, in the hiring . . . of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring . . . of the individual." Subsection 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). The penalty for a violation is "$1,000 for each violation" and "an administrative order requiring the return of any amounts received . . . to the employee or, if the employee cannot be located, to the general fund of the Treasury." 8 U.S.C. § 1324a(g)(2). Here, Congress could have required that employers repay only authorized workers from whom they extracted a financial bond. Instead, Congress required employers to repay any employee -including undocumented employees. Where Congress did not require undocumented workers to forfeit their bonds, we do not believe Congress would sanction the criminalization of work.

We therefore conclude that the text of 8 U.S.C. § 1324a, combined with legislative history demonstrating Congress' affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress' clear and manifest purpose to supercede state authority in this context. We are further guided by the Supreme Court's decision in Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988). There, the Court explained:

[D]eliberate federal inaction could always imply preemption, which cannot be. There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn-not from federal inaction alone, but from inaction joined with action.

Id. at 503. Given the facts in Isla, the Court could not draw this preemptive inference because "Congress ha[d] withdrawn from all substantial involvement in petroleum allocation and price regulation." Id. at 504.

The present case, however, presents facts likely to support the kind of preemptive inference that the Supreme Court endorsed, but did not find, in Isla. Here, Congress' inaction in not criminalizing work, joined with its action of making it illegal to hire unauthorized workers, justifies a preemptive inference that Congress intended to prohibit states from criminalizing work. Far from the situation in Isla, Congress has not "withdrawn all substantial involvement" in preventing unauthorized immigrants from working in the United States. It has simply chosen to do so in a way that purposefully leaves part of the field unregulated.

We are also guided by the Supreme Court's recognition, even before IRCA, that a "primary purpose in restricting immigration is to preserve jobs for American workers." Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). As Arizona states, "Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States." The Supreme Court has cautioned, however, that "conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy." Gould, 475 U.S. at 286 (quoting Motor Coach Emps. v. Lockridge, 403 U.S. 274, 287 (1971)). In Crosby, the Court explained that "a common end hardly neutralizes conflicting means." 530 U.S. at 379-80. Similarly, in Garamendi, the Court explained that a state law was preempted because "[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves." 539 U.S. at 427. The problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that "[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force." Crosby, 530 U.S. at 380.

In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem. Therefore, Arizona's assertion that this provision "furthers the strong federal policy" does not advance its argument against preemption. Sharing a goal with the United States does not permit Arizona to "pull[ ] levers of influence that the federal Act does not reach." Crosby, 530 U.S. at 376. By pulling the lever of criminalizing work-which Congress specifically chose not to pull in the INA-Section 5(C) "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67. It is therefore likely that federal law preempts Section 5(C).

In addition, as detailed with respect to Section 2(B) above, S.B. 1070's detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 5(C).

[20] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

V. Section 6

S.B. 1070 Section 6 provides that "[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States."*fn19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (2010).

[21] We first address the meaning of this Section. S.B. 1070 Section 6 added only subsection 5 to Ariz. Rev. Stat. Ann. § 13-3883(A), which authorizes warrantless arrests. Section 13-3883(A) already allowed for warrantless arrests for felonies, misdemeanors, petty offenses, and certain traffic-related criminal violations. Therefore, to comply with Arizona case law that "[e]ach word, phrase, clause, and sentence . . . must be given meaning so that no part will be void, inert, redundant, or trivial," Williams v. Thude, 934 P.2d 1349, 1351 (Ariz. 1997) (internal quotations omitted), we conclude, as the district court did, that Section 6 "provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States." 703 F. Supp. 2d at 1005 (emphasis in original). Section 6 also allows for warrantless arrests when there is probable cause to believe that an individual committed a removable offense in Arizona, served his or her time for the criminal conduct, and was released; and when there is probable cause to believe that an individual was arrested for a removable offense but was not prosecuted. Thus, the question we must decide is whether federal law likely preempts Arizona from allowing its officers to effect warrantless arrests based on probable cause of removability. Because arresting immigrants for civil immigration violations is not a "field which the States have traditionally occupied," we do not start with a presumption against preemption of Section 6. Wyeth, 129 S. Ct. at 1194.

[22] We first turn to whether Section 6 is consistent with Congressional intent. As authorized by 8 U.S.C. § 1252c, state and local officers may, "to the extent permitted by relevant State . . . law," arrest and detain an individual who:

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.

8 U.S.C. § 1252c (emphasis added). Nothing in this provision permits warrantless arrests, and the authority is conditioned on compliance with a mandatory obligation to confirm an individual's status with the federal government prior to arrest. Moreover, this provision only confers state or local arrest authority where the immigrant has been convicted of a felony. Section 6, by contrast, permits warrantless arrests if there is probable cause that a person has "committed any public offense that makes the person removable." Misdemeanors, not just felonies, can result in removablility. See generally Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). Thus, Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted in Section 1252c.*fn20 Moreover, none of the circumstances in which Congress has permitted federal DHS officers to arrest immigrants without a warrant are as broad as Section 6. Absent a federal officer actually viewing an immigration violation, warrantless arrests under 8 U.S.C. § 1357(a) require a likelihood that the immigrant will escape before a warrant can be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6 contains no such requirement and we are not aware of any INA provision indicating that Congress intended state and local law enforcement officers to enjoy greater authority to effectuate a warrantless arrest than federal immigration officials.

Thus, Section 6 significantly expands the circumstances in which Congress has allowed state and local officers to arrest immigrants. Federal law does not allow these officers to conduct warrantless arrests based on probable cause of civil removability, but Section 6 does. Therefore, Section 6 interferes with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted. Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State's view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition.

[23] We have previously suggested that states do not have the inherent authority to enforce the civil provisions of federal immigration law. In Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983), overruled on other grounds by HodgersDurgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999), we held that "federal law does not preclude local enforcement of the criminal provisions of the [INA]." (Emphasis added). There, we "assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration." Id. at 474-75 (emphasis added). We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law-we now hold that states do not have such inherent authority.*fn21

The Sixth Circuit has come to the same conclusion. United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008).*fn22 In Urrieta, the court explained that "[i]n its response to Urrieta's motion to suppress evidence, the government originally argued that Urrieta's extended detention was justified on the grounds that . . . [county] Deputy Young had reason to suspect that Urrieta was an undocumented immigrant. The government withdrew th[is] argument, however, after conceding that [it] misstated the law." Id. at 574. The Sixth Circuit cited 8 U.S.C. § 1357(g), which it summarized as "stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions." Id. Therefore, the court required that "[t]o justify Urrieta's extended detention [ ] the government must point to specific facts demonstrating that Deputy Young had a reasonable suspicion that Urrieta was engaged in some nonimmigration-related illegal activity." Id.

We recognize that our view conflicts with the Tenth Circuit's. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant's "arrest was based solely on the fact that Vasquez was an illegal alien." Id. at 1295. The arrest did not comply with the requirements of 8 U.S.C. § 1252c, and the defendant argued that the evidence found as a result of that arrest should be suppressed. The Tenth Circuit disagreed, holding that § 1252c "does not limit or displace the pre-existing general authority of state or local police officers to investigate and make arrests for violations of federal laws, including immigration laws." Id. at 1295. The Tenth Circuit based its conclusion on "§ 1252c's legislative history and [ ] subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws." Id. at 1299. The legislative history to which the court refers consists of the comments of § 1252c's sponsor, Representative Doolittle. As the court recounts, Doolittle stated:

With such a threat to our public safety posed by criminal aliens, one would think that we would give law enforcement all the tools it needs to remove these criminals from our streets, but unfortunately just the opposite is true. In fact, the Federal Government has tied the hands of our State and local law enforcement officials by actually prohibiting them from doing their job of protecting public safety. I was dismayed to learn that the current Federal law prohibits State and local law enforcement officials from arresting and detaining criminal aliens whom they encountered through their routine duties

My amendment would also permit State and local law enforcement officials to assist the INS by granting them the authority in their normal course of duty to arrest and detain criminal aliens until the INS can properly take them into Federal custody.

My amendment is supported by our local law enforcement because they know that fighting illegal immigration can no longer be left solely to Federal agencies. Let us untie the hands of those we ask to protect us and include my amendment in H.R. 2703 today.

Id. at 1298 (citing 142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle)). Interpreting these comments, the Tenth Circuit stated: "As discussed at length above, § 1252c's legislative history demonstrates that the purpose of the provision was to eliminate perceived federal limitations . . . There is simply no indication whatsoever in the legislative history to § 1252c that Congress intended to displace pre-existing state or local authority to arrest individuals violating federal immigration laws." Id. at 1299-1300.*fn23

The Tenth Circuit's interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit's conclusion is nonsensical: we perceive no reason why Congress would display an intent "to displace pre-existing . . . authority" when its purpose in passing the law was to grant authority it believed was otherwise lacking. Id. at 1300.

Vasquez-Alvarez also cited "subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws" in support of its conclusion that § 1252c does not prevent state officers from making civil immigration-based arrests pursuant to state law. Id. at 1299. The court noted that "in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws." Id. at 1300 (citing § 1357(g)). The court interpreted § 1357(g)(10) to mean that "formal agreement [pursuant to § 1357(g) (1)-(9)] is not necessary for state and local officers 'to cooperate with the Attorney General in identification, apprehension, detention, or removal of aliens.' " Id. at 1300 (quoting 8 U.S.C. § 1357(g)(10)(B)). To reason that the enactment of § 1357(g) means that Congress did not intend to limit state and local officers' alleged inherent authority to make civil immigration arrests in § 1252c, requires a broad reading of § 1357(g)(10); we explain above in II.B. the reasons why we reject such a broad reading of this provision.

Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. § 1357(g)-and § 1252c for that matter-would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws.*fn24

[24] In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law. Therefore, Arizona must be federally-authorized to conduct such enforcement. Congress has created a comprehensive and carefully calibrated scheme-and has authorized the Executive to promulgate extensive regulations -for adjudicating and enforcing civil removability. S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona's state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government's prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress. In addition, as detailed with respect to Section 2(B) above, S.B. 1070's detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 6.

[25] In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

VI. Equitable Factors

Once a party moving for a preliminary injunction has demonstrated that it is likely to succeed on the merits, courts must consider whether the party will suffer irreparable harm absent injunctive relief, and whether the balance of the equities and the public interest favor granting an injunction. Winter v. Natural Res. Def. Council Inc., 129 S. Ct. 365, 374 (2008).

We have "stated that an alleged constitutional infringement will often alone constitute irreparable harm." Assoc. Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991) (internal quotation marks omitted). We have found that "it is clear that it would not be equitable or in the public's interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available . . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount." Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009) (emphasis added); see also Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059-60 (9th Cir. 2009) (recognizing that the balance of equities and the public interest weighed in favor of granting a preliminary injunction against a likely-preempted local ordinance).

[26] Accordingly, we find that as to the S.B. 1070 Sections on which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest.

Conclusion

For the foregoing reasons, we AFFIRM the preliminary injunction enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6.

AFFIRMED; REMANDED.

NOONAN, Circuit Judge, concurring:

I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.

Consideration of the constitutionality of the statute begins with Section 1 of the law, which in entirety, reads as follows:

Sec. 1. Intent

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. This section of the act constitutes an authoritative statement of the legislative purpose. The purpose is "attrition," a noun which is unmodified but which can only refer to the attrition of the population of immigrants unlawfully in the state. The purpose is to be accomplished by "enforcement," also unmodified but in context referring to enforcement of law by the agencies of Arizona. The provisions of the act are "intended to work together." Working together, the sections of the statute are meant "to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."

It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States. The presence of these persons is to be discouraged and deterred. Their number is to be diminished. Without qualification, Arizona establishes its policy on immigration.

As Section 1 requires, each section of the statute must be read with its stated purpose in mind. Section 2 might, in isolation from Section 1, be read as requiring information only. Such a reading would ignore the intent established in Section 1, to secure attrition through enforcement. As the United States observes, Arizona already had the capability of obtaining information on immigrants by consulting the federal database maintained by the federal government. Section 2 of the statute provides for more - for the detention of immigrants to achieve the purpose of the statute. Section 2 is not intended as a means of acquiring information. It is intended to work with the other provisions of the act to achieve enforcement.

As the opinion of the court makes clear, Sections 3, 5 and 6 are unconstitutional. Section 2 is equally unconstitutional in its function as their support.

Section 1's profession of "cooperative" enforcement of federal immigration laws does not alter Arizona's enactment of its own immigration policy distinct from the immigration policy and the broader foreign policy of the United States.

Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.

That immigration policy is a subset of foreign policy follows from its subject: the admission, regulation and control of foreigners within the United States. By its subject, immigration policy determines the domestication of aliens as American citizens. It affects the nation's interactions with foreign populations and foreign nations. It affects the travel of foreigners here and the trade conducted by foreigners here. It equally and reciprocally bears on the travel and trade of Americans abroad. As the declarations of several countries or governmental bodies demonstrate in this case, what is done to foreigners here has a bearing on how Americans will be regarded and treated abroad.

That the movement of the people of one nation into the boundaries of another nation is a matter of national security is scarcely a doubtful or debatable matter. Almost everyone is familiar with how the movement of the Angles and the Saxons into Roman Britain transformed that country. The situation of the United States is less precarious. Nonetheless, an estimated 10.8 million foreigners have illegally taken up residence in our country. U.S. Dept. of Homeland Sec., Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010 at 2. True, at the maximum, their number is less than 4% of our population. They are not about to outnumber our citizens. Still, in individual towns and areas those illegally present can be a substantial presence. In the state of Arizona, their estimated number is 470,000, or seven percent of the population of the state. Id. at 4.

The local impact appears to call for local response. Yet ineluctably the issue is national. The people of other nations are entering our nation and settling within its borders contrary to our nation's stated requirements. We must deal with people of other nations and so must deal with other nations. The problems are local but our whole nation is affected. Reasonably, the nation has made enforcement of criminal sanctions against aliens criminally present in the United States the top priority of the federal government. United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2009 at 1.

Against this background, the following propositions are clear:

The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.

Federal foreign policy is determined by Congress when Congress exercises the power to declare war conferred upon it by Article I, Section 8 of the Constitution. Foreign policy is also determined by the Senate when it exercises the power to ratify a treaty, the power conferred upon it by Article II, Section 2. Congress also determines foreign policy when it lays excise taxes upon foreign imports under Article I, Section 8. Congress further determines foreign policy when it authorizes sanctions against a nation, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).

The foreign policy of the nation consists in more than a declaration of war, the making of a treaty, the imposition of a tax, and the imposition of sanctions. The foreign policy of the nation is also established by acts of executive power - among others, executive agreements with foreign nations; the appointment of ambassadors to foreign nations; the exchange of information with foreign governments; the encouragement of trade with foreign countries; and the facilitation of the travel abroad of Americans and of travel within the United States by foreigners. In these several ways a federal foreign policy is forged that is as palpable and durable as that expressed by a particular act of legislation or by the ratification of a particular treaty.

Less than eight years ago the Supreme Court reviewed and reaffirmed the position of the Executive Branch in forming foreign policy preemptive of legislation by a state. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003). Strong humanitarian considerations supported California's legislation to provide a remedy against insurance companies that had profited from the Nazi treatment of Jewish victims of the Holocaust. Recognizing that "the iron fist" of California might be more effective than the gentler approach taken by the Executive Branch, the Supreme Court assembled cases showing the President's "unique responsibility" for the conduct of foreign policy. Id. at 415. Noting that no express text in the Constitution conferred this authority, the Court quoted both Hamilton and Madison in The Federalist on the structure of the nation being designed. Structure was stronger than text. The Supreme Court demonstrated that strength in an unbroken line of decisions acknowledging presidential leadership in foreign affairs. Id. at 413-415. Presidential power to preempt states from acting in matters of foreign policy is beyond question.

To take one example from our relations to our nearest neighbor to the South, it is an expression of federal foreign policy that the State Department issues passports by whose use approximately twenty million American citizens enter Mexico annually, while the State Department annually issues approximately one million visas which enable citizens of Mexico to enter this country. U.S. Dep't of Commerce, Int'l Trade Admin., 2009 United States Resident Travel Abroad 3 (2010); U.S. Dep't of State, Report of the Visa Office 2010 at Table XVII (2011).

The foreign policy of the United States is further established by trade agreements made between this country and Mexico manifesting the desire to permit the importation of a variety of goods from Mexico and the desire to export goods from the United States into Mexico.

An objective assessment of the foreign policy of the United States toward Mexico would pronounce that policy to be one of cordiality, friendship and cooperation. The tangible expression of this policy is the export of $14.8 billion in goods in January 2011 and the importation of $19.7 billion in goods from Mexico in the same month. News Release, U.S. Census Bureau, U.S. Bureau of Economic Analysis, U.S. Int'l Trade in Goods and Services 16 (March 10, 2011).

Understandably, the United States finds such a policy preemptive of a single state's uninvited effort to enter the field of immigration law.

The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute.

BEA, Circuit Judge, concurring in part and dissenting in part:

I quite agree with the majority that "[t]he purpose of Congress is the ultimate touchstone" in determining whether Arizona's S.B. 1070 is preempted under the Supremacy Clause. Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Thus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law. It is Congress's intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country.

By its very enactment of statutes, Congress has provided important roles for state and local officials to play in the enforcement of federal immigration law. First, the states are free, even without an explicit agreement with the federal government, "to communicate with the Attorney General regarding the immigration status of any individual." 8 U.S.C. § 1357(g)(10)(A). Second, to emphasize the importance of a state's involvement in determining the immigration status of an individual, Congress has commanded that federal authorities "shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual." Id. § 1373(c) (emphasis added). Third, putting to one side communications from and responses to a state regarding an individual's immigration status, no agreement with the federal government is necessary for states "otherwise [than through communications regarding an individual's immigration status] to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Id. § 1357(g)(10)(B). Finally, Congress has even provided that state officers are authorized to arrest and detain certain illegal aliens. Id. § 1252c. Recognizing the important role of states in enforcing immigration law, the record shows that the federal government has welcomed efforts by New Jersey*fn1 and Rhode Island,*fn2 efforts which Arizona attempts to mirror with S.B. 1070. The record is bereft of any evidence that New Jersey's or Rhode Island's efforts have in any way interfered with federal immigration enforcement. To the contrary, the federal government embraced such programs and increased the number of removal officers to handle the increased workload.

Nonetheless, the United States has here challenged Arizona S.B. 1070 before it went into effect and, thus, made a facial challenge to the legislation. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). As the Supreme Court stated:

In determining whether a law is facially invalid, we must be careful not to go beyond the statute's facial requirements and speculate about "hypothetical" or "imaginary" cases. . . . Exercising judicial restraint in a facial challenge frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008). Further:

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Id. at 450-51 (internal quotation marks and citations omitted).*fn3

Our task, then, is-or should be-to examine the Arizona legislation and relevant federal statutes to determine whether, under the United States' facial challenge, S.B. 1070 has applications that do not conflict with Congress's intent. I respectfully dissent from the majority opinion as to Sections 2(B) (entitled "Cooperation and assistance in enforcement of immigration laws; indemnification") and 6 (entitled "Arrest by officer without warrant"), finding their reasoning as to Congress's intent without support in the relevant statutes and case law. As to Sections 3 and 5(C), I concur in the result and the majority of the reasoning, although I dissent to the portion of the majority's reasoning which allows complaining foreign countries to preempt a state law. I address S.B. 1070's sections in numerical order, as the majority did.

I. Section 2(B)

I dissent from the majority's determination that Section 2(B) of Arizona S.B. 1070*fn4 is preempted by federal law and therefore is unconstitutional on its face. As I see it, Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens, see 8 U.S.C. § 1373(c), and in the "identification, apprehension, detention, or removal of aliens not lawfully present in the United States," 8 U.S.C. § 1357(g)(10)(B). The majority comes to a different conclusion by minimizing the importance of § 1373(c) and by interpreting § 1357(g)(10) precisely to invert its plain meaning "Nothing in this subsection shall be construed to require an agreement . . . to communicate with the Attorney General regarding the immigration status of any individual" (emphasis added) to become "Everything in this subsection shall be construed to require an agreement."*fn5 Further, the majority mischaracterizes the limited scope of Section 2(B), misinterprets the Supreme Court's cases on foreign relations preemption to allow any complaining foreign country to preempt a state law, and holds that the prospect of all 50 states assisting the federal government in identifying illegal aliens is-to Congress-an unwanted burden. I discuss each one of these errors in turn below.

The district court found that Section 2(B) resulted in an unconstitutional invasion of the province of federal immigration law for a variety of reasons. But there seems little point to examine and rebut the district court's findings, because the majority opinion does not adopt any of them.*fn6 Rather, the majority opinion rests its case solely on its inverted reading of § 1357(g), which prescribes the process by which Congress intended state officers to play a role in the enforcement of federal immigration laws.

A. 8 U.S.C. § 1373(c)

As noted above, Congress has clearly stated its intention to have state and local agents assist in the enforcement of federal immigration law, at least as to the identification of illegal aliens, in two federal code sections. First is 8 U.S.C. § 1373(c), which reads:

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

8 U.S.C. § 1373(c). The title of § 1373(c) is "Obligation to respond to inquiries." Thus, § 1373(c) requires that United States Immigration and Customs Enforcement ("ICE")*fn7 respond to an inquiry by any federal, state, or local agency seeking the immigration status of any person. The Report of the Senate Judiciary Committee accompanying the Senate Bill explained that the "acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act." S. Rep. No. 104-249, at 19-20 (1996) (emphasis added).

Section 1373(c) does not limit the number of inquiries that state officials can make, limit the circumstances under which a state official may inquire, nor allow federal officials to limit their responses to the state officials.*fn8 Indeed, as established by the declaration of the United States' own Unit Chief for the Law Enforcement Support Center ("LESC"), the LESC was established "to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis." Section 1373(c) demonstrates Congress's clear intent for state police officials to communicate with federal immigration officials in the first step of immigration enforcement-identification of illegal aliens.

The majority misstates my interpretation of § 1373(c)'s scope. Neither I, nor Arizona, claim § 1373(c) allows Arizona to pursue its "own immigration policy." Maj. Op. at 4823. Instead, § 1373(c) demonstrates Congress's intent for Arizona to help enforce Congress's immigration policy, but in a way with which the Executive cannot interfere. Congress has required that the federal government respond to state and local inquires into a person's immigration status, 8 U.S.C. § 1373(c), which allows states to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of [illegal] aliens," id. § 1357(g)(10)(B).

B. 8 U.S.C. § 1357(g)

The second federal code section which states Congress's intention to have state authorities assist in identifying illegal aliens is 8 U.S.C. § 1357(g), entitled "Performance of immigration officer functions by State officers and employees." Subsections (g)(1)-(9) provide the precise conditions under which the Attorney General may "deputize" state police officers (creating, in the vernacular of the immigration field, "287(g) officers") for immigration enforcement pursuant to an explicit written agreement. For example, § 1357(g)(1) defines the scope of any such agreement, § 1357(g)(3) provides that the Attorney General shall direct and supervise the deputized officers, § 1357(g)(6) prohibits the Attorney General from deputizing state officers if a federal employee would be displaced, and § 1357(g)(7)-(8) describe the state officers' liability and immunity. Section 1357(g)(9) clarifies that no state or locality shall be required to enter into such an agreement with the Attorney General. Finally, § 1357(g)(10) explains what happens if no such agreement is entered into: it recognizes the validity of certain conduct by state and local officers, and explicitly excepts such conduct from a requirement there be a written agreement between the state and federal authorities:

Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State-

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

8 U.S.C. § 1357(g)(10).

The majority's error is to read § 1357(g)(1)-(9), which provides the precise conditions under which the Attorney General may enter into written agreements to "deputize" officers, as the exclusive authority which Congress intended state officials to have in the field of immigration enforcement. That reading is made somewhat awkward in view of § 1357(g)(10), which explicitly carves out certain immigration activities by state and local officials as not requiring a written agreement. But, the majority opinion reasons that since state officials cannot themselves remove illegal aliens, the natural reading of § 1357(g)(10) is that state officials cannot act at all in immigration enforcement matters, absent an explicit written agreement, unless:

1. They are "called upon" by the Attorney General; OR

2. There is a "necessity"; AND

3. Such cooperation is "incidental," rather than "systematic and routine."

Maj. Op. at 4820-21. I concede the majority's insertion of the quoted terms into § 1357(g)(10) is quite original, which perhaps explains why no legal basis is cited for any of it. Neither does the majority opinion give us any clue from statute, regulations, or case authority as to the genesis of the key conditioning phrases "calls upon," "necessity," "routine," or "systematic," which-in their opinion-would legitimate agreement-less state intervention. Needless to say, anyone who actually reads § 1357(g)(10) will observe that none of the quoted words appear in that statute, nor indeed in any part of the Immigration and Naturalization Act ("INA").*fn9 8 U.S.C. § 1101 et seq. Alas, the majority opinion does not point us where to look.*fn10

To determine Congress's intent, we must attempt to read and interpret Congress's statutes on similar topics together. Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006) ("[U]nder the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read as if they were one law." (internal quotations omitted)). In light of this, I submit that a more natural reading of § 1357(g)(10), together with § 1373(c), leads to a conclusion that Congress's intent was to provide an important role for state officers in the enforcement of immigration laws, especially as to the identification of illegal aliens.

Unless the state officers are subject to a written agreement described in § 1357(g)(1)-(9), which would otherwise control their actions, the state officers are independently authorized by Congressional statute "to communicate with the Attorney General regarding the immigration status of any individual."

8 U.S.C. § 1357(g)(10)(A). Moreover, state officers are authorized "to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Id. § 1357(g)(10)(B) (emphasis added).*fn11 Of course, the majority is correct that state officers cannot themselves remove illegal aliens from the United States. The majority would read that inability as evidence of congressional intent that state officers cannot act at all with respect to other aspects of immigration enforcement that lead to removal, save on the orders of federal officers pursuant to the provisions of written agreements as set forth in 1357(g)(1)-(9). Maj. Op. at 4820. Were that so, § 1357(g)(10) would be redundant and a dead letter, save for the vague and uncertain powers which the majority limits by its newly-crafted terms "calls upon," "necessity," "systematic" and "routine." We must interpret statutes in a manner to give each part of the statute meaning, if at all reasonable. See, e.g., U.S. v. Lopez, 514 U.S. 549, 589 (1995) ("An interpretation of [the Commerce Clause] that makes the rest of [Article I,] § 8 superfluous simply cannot be correct."); see also Williams v. Thude, 188 P.2d 1349, 1351 (Ariz. 1997) ("Each word, phrase, clause, and sentence [of a statute] must be given meaning so that no part will be void, inert, redundant, or trivial." (internal quotation marks omitted, alteration and emphasis in original)).

Further, "the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917). Section 1357(g)(10) need not be interpreted at all-its plain language states that "Nothing in this subsection [8 U.S.C. § 1357(g)] shall be construed to require an agreement under this subsection in order for any officer . . . to communicate with the Attorney General regarding the immigration status of any individual." There is no need to place restrictions on this meaning, through terms such as "calls upon," "necessity," "systematic," and "routine," because the statute's meaning is clear and includes no such limitations.

I agree with the majority that "we must determine how the many provisions of [the] vastly complex [INA] function together." Maj. Op. at 4823. However, the majority opinion's interpretation of § 1357(g)(10), which requires the Attorney General to "call upon" state officers in the absence of "necessity" for state officers to have any immigration authority, makes § 1373(c) a dead letter. Congress would have little need to obligate federal authorities to respond to state immigration status requests if it is those very same federal officials who must call upon state officers to identify illegal aliens. Further, there is no authority for the majority's assertion that § 1357(g) establishes the "boundaries" within which state cooperation pursuant to § 1373(c) must occur. Maj. Op. at 4822-23. Indeed, "communicat[ions] with the Attorney General regarding the immigration status of any individual" were explicitly excluded from § 1357(g)'s requirement of an agreement with the Attorney General. 8 U.S.C. § 1357(g)(10)(A). Congress intended the free flow of immigration status information to continue despite the passage of § 1357(g), and so provided in subsection (g)(10). The majority's interpretation turns § 1357(g)(10) and § 1373(c) into: "Don't call us, we'll call you," when what Congress enacted was "When the state and local officers ask, give them the information."

The majority's attempt to straight-jacket local and state inquiries as to immigration status to what "terms" the "federal government" dictates reveals the fundamental divide in our views. The majority finds the intent of "the government" decisive; I look to Congress's intent-as required by Supreme Court preemption law.

Further, to "cooperate" means, I submit, "to act or operate jointly, with another or others, to the same end; to work or labor with mutual efforts to promote the same object." Webster's New Twentieth Century Dictionary of the English Language Unabridged (Jean L. McKechnie ed., 1979). It does not mean that each person cooperating need be capable of doing all portions of the common task by himself. We often speak of a prosecution's "cooperating witness," but it doesn't occur to anyone that the witness himself cannot be "cooperating" unless he is able to prosecute and convict the defendant himself. Hence, the inability of a state police officer to "remove" an alien from the United States does not imply the officer is unable to cooperate with the federal authorities to achieve the alien's removal.

The provision of authority whereby the Attorney General may "deputize" state police officers allows the Attorney General to define the scope and duration of the state officers' authority, as well as "direct[ ] and supervis[e]" the state officers in performing immigration functions. 8 U.S.C. § 1357(g)(1)-(9). However, this is merely one of two forms of state participation in federal immigration enforcement provided for by Congress in § 1357(g). Congress provided for another form of state participation, for which no agreement is required-states are free "to communicate with the Attorney General regarding the immigration status of any individual," id. § 1357(g)(10)(A), and are also free "otherwise [than by communication] to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," id. § 1357(g)(10)(B).

This conclusion is confirmed by a close comparison of the language in each part of § 1357(g). As to the authority of the Attorney General to enter explicit written agreements, these agreements are limited to deputizing state officers to perform immigration-related functions "in relation to the investigation, apprehension, or detention of aliens in the United States." Id. § 1357(g)(1). Notably absent from this list of functions is the "identification" of illegal aliens. However, Congress recognized state officers' authority even in the absence of a written agreement with federal authorities both "to communicate with the Attorney General regarding the immigration status of any individual" and "to cooperate with the Attorney General in the identification . . . of aliens not lawfully present in the United States." Id. § 1357(g)(10) (emphasis added). "We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). The exclusion of illegal alien identification from the restraints of explicit written agreements under § 1357(g)(1)-(9), and the inclusion of this identification function in the state's unrestrained rights under § 1357(g)(10), leads to the conclusion that Congress intended that state officers be free to inquire of the federal officers into the immigration status of any person, without any direction or supervision of such federal officers-and the federal officers "shall respond" to any such inquiry. 8 U.S.C. § 1373(c) (emphasis added).

Another limitation of authority inferred by the majority from § 1357(g)(10) seems to be that state authorities cannot order their officers to enforce immigration laws in every case where they have reasonable suspicion to believe the laws are being violated. The argument seems to be that while "incidental" investigation-motivated solely by the individual officer's discretion-might be permissible and not an invasion of federal immigration turf, any systematic and mandatory order to identify illegal aliens would be an incursion into a preempted area. See Maj. Op. at 4020-21; see also Oral Argument at 46:15-46:35 ("[T]he mandatory application [of Section 2(B)] is impermissible, because it takes away the discretion of the local law enforcement officer to decide whether to pursue a particular line of inquiry rather than mandated."). This reading of the statute is as original, and therefore, problematic as is utilizing the words "calls upon," "necessity," "systematic," and "routine" to circumscribe an otherwise clear statute. First, by what authority can the federal government tell a state government what orders it is to give state police officers as to the intensity with which they should investigate breaches of federal immigration law? Other than pursuant to the provisions of written agreements, 8 U.S.C. § 1357(g)(1)-(9), I see no statutory basis for allowing the federal government to limit the effort the state can command of its officers. Rather, Congress intended the Attorney General to cooperate with state officers, 8 U.S.C. § 1357(g), and commanded him to answer their requests for immigration status checks, 8 U.S.C. § 1373(c). Second, how practical is it for a watch commander to instruct his deputies that it is up to their whims as to when they can enforce federal immigration law?

C. Section 2(B)'s limited scope

Next, the majority seems to believe that when a state officer (1) initiates the identification of an illegal alien by checking the alien's immigration status with federal officials pursuant to § 1373(c), and (2) has the alien identified to him by federal authorities, the state officer has somehow usurped the federal role of immigration enforcement. Maj. Op. at 4821-22. Section 2(B)'s scope, however, is not so expansive. Section 2(B) does not purport to authorize Arizona officers to remove illegal aliens from the United States-Section 2(B) merely requires Arizona officers to inquire into the immigration status of suspected illegal aliens during an otherwise lawful encounter. See Section 2(B). Section 2(B) does not govern any other action taken by Arizona officers once they discover an alien is illegally present in the United States. Further, Section 2(B) does not require that ICE accept custody or initiate removal of the illegal alien from the United States. Federal authorities are merely obligated to respond to the immigration status inquiry pursuant to § 1373(c). Once this occurs, federal authorities are free to refuse additional cooperation offered by the state officers, and frankly to state their lack of interest in removing the illegal alien. The federal authorities can stop the illegal alien removal process at any point after responding to the state immigration status request.*fn12

Although it is true that Section 2(B) requires Arizona officers to detain an arrestee suspected of being an illegal alien before releasing the alien, this does little to broaden Section 2(B)'s scope. First, because this is a facial challenge, we must assume that Arizona police officers will comply with federal law and the Constitution in executing Section 2(B). Second, Arizona has built a safeguard into Section 2 which requires that Section 2(B)'s immigration status checking mechanisms be executed in a manner consistent with federal law. See Section 2(L) ("This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens."). Finally, it would be absurd to assume that Congress would permit states to check a person's immigration status, see 8 U.S.C. § 1373(c), but would not allow the state to hold the suspected illegal alien until a response were received.

The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE's "priorities and strategies." Maj. Op. at 4824. It is only by speaking in such important-sounding abstractions-"priorities and strategies"-that such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)'s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies-unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station's "priorities and strategies" for detecting and extinguishing fires?

The internal policies of ICE do not and cannot change this result. The power to preempt lies with Congress, not with the Executive; as such, an agency such as ICE can preempt state law only when such power has been delegated to it by Congress. See North Dakota v. United States, 495 U.S. 423, 442 (1990) ("It is Congress-not the [Department of Defense]- that has the power to pre-empt otherwise valid state laws . . . ."). Otherwise, evolving changes in federal "priorities and strategies" from year to year and from administration to administration would have the power to preempt state law, despite there being no new Congressional action. Courts would be required to analyze statutes anew to determine whether they conflict with the newest Executive policy. Although Congress did grant some discretion to the Attorney General in entering into agreements pursuant to § 1357(g), Congress explicitly withheld any discretion as to immigration status inquiries by "obligat[ing]" the federal government to respond to state and local inquiries pursuant to § 1373(c) and by excepting communication regarding immigration status from the scope of the explicit written agreements created pursuant to § 1357(g)(10). Congress's statutes provide for calls and order the calls be returned.

D. Supreme Court preemption cases

The Supreme Court's decisions in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), and Buckman Co. v. Plaintiff's Legal Committee, 531 U.S. 341 (2001), are in accord with the view that Section 2(B) is not preempted by federal law. As the majority points out, in each of those cases, the Supreme Court concluded that Congress intended to provide the Executive with flexibility when it enacted federal law, and that state law encroached on that flexibility. That is not the situation we face here. The majority errs by reading the flexibility Congress provided to the Attorney General in entering agreements pursuant to § 1357(g) as providing universal flexibility as to all immigration matters. Congress did just the opposite. As discussed above, Congress explicitly withheld administrative discretion and flexibility as to responses to state officers' immigration status inquiries in both § 1373(c) and § 1357(g)(10). Federal authorities have no discretion whether they may respond to immigration status inquiries from state officials. 8 U.S.C. § 1373(c). State officials need not enter into a written agreement to communicate with the Attorney General regarding the immigration status of any individual. 8 U.S.C. § 1357(g)(10). Section 2(B) does not encroach on federal flexibility because Congress did not intend federal authorities to have any flexibility in providing states with properly requested immigration status information.

Neither does the Supreme Court's preemption jurisprudence in the field of foreign relations change the conclusion that Section 2(B) is not preempted. In Crosby, Massachusetts passed a law which restricted state entities from buying goods or services from those doing business with Burma. 530 U.S. at 366-68. Three months later, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. Id. at 368. The Court found that the Massachusetts law conflicted with several identified Congressional objectives. "First, Congress clearly intended the federal Act to provide the President with flexible and effective authority over economic sanctions against Burma." Id. at 374. Second, "Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range." Id. at 377. "Finally, . . . the President's intended authority to speak for the United States among the world's nations in developing a 'comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma.' " Id. at 380. Thus, the Court concluded:

Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.

Id. at 388.

In American Insurance Ass'n v. Garamendi, 539 U.S. 396 (2003), President Clinton entered into an agreement with the German Chancellor in which Germany agreed to establish a foundation to compensate victims of German National Socialist companies. Id. at 405. In exchange, the U.S. government agreed to discourage Holocaust-era claims in American courts and encourage state and local governments to respect the foundation as the exclusive mechanism for resolving these claims. Id. at 405-06. Meanwhile, California passed legislation which required insurance companies doing business in the state to disclose the details of insurance policies issued to people in Europe between 1920 and 1945. Id. at 409. The Court explained that "even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law." Id. at 420. The Court held California's law was preempted: "[T]he evidence here is 'more than sufficient to demonstrate that the state Act stands in the way of [the President's] diplomatic objectives.' " Id. at 427 (quoting Crosby, 530 U.S. at 386). That is, California's law conflicted with specific foreign-relations objectives of the Executive, as "addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century." Id. at 421.

Thus, as Crosby and Garamendi demonstrate, it is not simply any effect on foreign relations generally which leads to preemption, as the majority asserts. See Maj. Op. at 4825-28. Instead, a state law is preempted because it conflicts with federal law only when the state law's effect on foreign relations conflicts with federally established foreign relations goals. In Crosby, the state law conflicted with the degree of trade Congress decided to allow with Burma, and the discretion explicitly given to the Executive to make trade decisions. In Garamendi, the state law imposed an investigatory and litigation burden inconsistent with the rules the Executive Agreement had created. Here, however, there is no established foreign relations policy goal with which Section 2(B) may be claimed to conflict. The majority contends that Section 2(B) "thwarts the Executive's ability to singularly manage the spil-lover effects of the nation's immigration laws on foreign affairs." Maj. Op. at 4828.

First, the majority fails to identify a federal foreign relation policy which establishes the United States must avoid "spil-lover effects," if that term is meant to describe displeasure by foreign countries with the United States' immigration policies. The majority would have us believe that Congress has provided the Executive with the power to veto any state law which happens to have some effect on foreign relations, as if Congress had not weighed that possible effect in enacting laws permitting state intervention in the immigration field. To the contrary, here Congress has established-through its enactment of statutes such as 8 U.S.C. §§ 1357(g)(10), 1373(c), and 1644-a policy which encourages the free flow of immigration status information between federal and local governments. Arizona's law embraces and furthers this federal policy; any negative effect on foreign relations caused by the free flow of immigration status information between Arizona and federal officials is due not to Arizona's law, but to the laws of Congress. Second, the Executive's desire to appease foreign governments' complaints cannot override Congressionally-mandated provisions-as to the free flow of immigration status information between states and federal authorities-on grounds of a claimed effect on foreign relations any more than could such a foreign relations claim override Congressional statues for (1) who qualifies to acquire residency in the United States, 8 U.S.C. § 1154, or (2) who qualifies to become a United States citizen, 8 U.S.C. § 1421 et seq.

Finally, the majority errs in finding that the threat of all 50 states layering their own immigration rules on top of federal law weighs in favor of preemption. In Buckman, the Supreme Court stated: "As a practical matter, complying with the FDA's detailed regulatory regime in the shadow of 50 States' tort regimes will dramatically increase the burdens facing potential applicants burdens not contemplated by Congress in enacting the FDCA and the MDA." 531 U.S. at 350 (emphasis added). I fail to see how Congress could have failed to contemplate that states would make use of the very statutory framework that Congress itself enacted. Congress created the Law Enforcement Support Center "to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis." Congress also obligated ICE to respond to all immigration status inquiries from state and local authorities. 8 U.S.C. § 1373(c). In light of this, all 50 states enacting laws for inquiring into the immigration status of suspected illegal aliens is desired by Congress, and weighs against preemption.

Conclusion

As demonstrated above, Congress envisioned, intended, and encouraged inter-governmental cooperation between state and federal agencies, at least as to information regarding a person's immigration status, for the proper and efficient enforcement of federal immigration law. While § 1357(g)(1)-(9) grants the Attorney General discretion to enter into written agreements deputizing and supervising state officers, § 1357(g)(10) explicitly recognizes an alternative to that regime, so as to encourage and facilitate the free flow of immigration status information provided for in § 1373(c). The majority's arguments regarding how any of the state officers' actions spelled out in Section 2(B) could interfere with federal immigration enforcement is consistent with only one premise: the complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws. With respect, regardless what may be the intent of the Executive, I cannot accept this premise as accurately expressing the intent of Congress.

II. Sections 3 and 5(C)

I concur with the majority that Section 3, which penalizes an alien's failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government's uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section 5(C), which penalizes an illegal alien for working or seeking work, conflicts with Congress's intent to focus on employer penalties, an intent determined by this court in National Center for Immigrants' Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990), rev'd on other grounds, 502 U.S. 183 (1991). As a three-judge panel, we may not re-examine the conclusions reached in National Center. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc); see also Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010) (holding that Establishment Clause challenge to the placement of "In God We Trust" on coins and currency was foreclosed by Aronow v. United States, 432 F.2d 242 (9th Cir. 1970)).

However, for the reasons discussed above as to Section 2, I disagree with the majority's foreign-relations rationale. The majority fails to identify a foreign relations policy, established by Congress, with which Sections 3 and 5 conflict; a foreign nation may not cause a state law to be preempted simply by complaining about the law's effects on foreign relations generally. We do not grant other nations' foreign ministries a "heckler's veto."

III. Section 6

The majority's analysis of S.B. 1070 Section 6*fn13 will come as a surprise to all parties involved in this case. It ignores the contentions in the filings before the district court, the district court's rationale, the briefs filed in this court, and what was said by the well-prepared counsel, questioned at our oral argument. Indeed, it is an argument and conclusion volunteered by the majority, but carefully avoided by the United States- probably because it conflicts with the present policy of the Department of Justice's Office of Legal Counsel. First, let us examine what I thought the parties put before us for decision.

The only contention made by the United States in this litigation with respect to Section 6 is that, due to the complexity inherent in determining whether a specific crime makes an alien removable, Arizona police officers will ineluctably burden legal aliens through erroneous warrantless arrests. Not a very strong contention at that, since counsel for the United States all but conceded this argument's flaw as to this facial challenge at oral argument by admitting that Arizona police officers could very easily determine that some crimes, such as murder, would make an alien removable. Thus, the analysis of this section should have been simple-Section 6 was facially constitutional because a "set of circumstances" existed under which no "complexity" existed: an Arizona police officer comes across an alien convicted of murder; he is removable; he can be lawfully arrested. See Salerno, 481 U.S. at 745. So, Section 6 was not preempted. End of story.

Instead, the majority misrepresents Arizona's attempt to assist the federal government as "unilaterally transform[ing] state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition." Maj. Op. at 4842. Section 6 is not, and could not, be so broad. Instead, Section 6 merely authorizes Arizona police officers to make warrantless arrests when they cooperate in the enforcement of federal immigration law-as invited to do by Congress. See 8 U.S.C. § 1357(g)(10).

For its newly-minted-but-not-argued position, the majority relies extensively on 8 U.S.C. § 1252c-a code section not cited in support by the United States*fn14 -misinterpreting its meaning and putting this circuit in direct conflict with the Tenth Circuit. The majority also ignores clear Supreme Court precedent and concludes that 8 U.S.C. § 1357(a)'s limitations as to federal warrantless arrest power implies a limitation on state officers. As I discuss below, the majority erred in concluding that state police officers have no authority to enforce the civil provisions of federal immigration law.

As noted by the majority opinion, Section 6 applies to three different scenarios: (1) when there is probable cause to believe a person committed a removable offense in a state other than Arizona; (2) when there is probable cause to believe that an individual committed a removable offense in Arizona, served his or her time for the crime, and was released; and (3) when there is probable cause to believe an individual committed a removable offense, but was not prosecuted. The question before us is whether warrantless arrests by state police officers in these three scenarios conflict with Congress's intent.

A. Inherent authority of state officers to enforce federal immigration law

As an initial matter, it is notable that the United States never once asserted, either at oral argument or in its briefs, that Arizona officers are without the power to enforce the civil provisions of immigration law. Indeed, counsel for the United States at oral argument actually confirmed state officers' authority to arrest aliens on the basis of civil removability. See Oral Argument at 58:40-59:40 (stating that Section 6 would be constitutional if it required Arizona officers to contact ICE regarding whether a crime renders an alien removable).*fn15 The United States' argument against Section 6's constitutionality was limited to the "burden" that would be imposed on wrongfully arrested legal aliens due to the complexity of determining whether a certain crime makes an alien eligible for removal. Indeed, as the 2002 Department of Justice's Office of Legal Counsel Opinion ("2002 OLC Opinion") concludes, "the authority to arrest for violation of federal law inheres in the state, subject only to preemption by federal law." See also Marsh v. United States, 29 F.2d 172 (2d Cir. 1928) ("[I]t would be unreasonable to suppose that [the United States'] purpose was to deny to itself any help that the states may allow.").*fn16

The majority rejects the existence of this inherent state authority by citing one case from this court in which we "assumed" states lacked such authority. In Gonzales v. City of Peoria, this court held state police officers could enforce criminal provisions of the INA. 722 F.2d 468, 475 (9th Cir. 1983), rev'd on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). During its analysis, this court stated in dicta:

We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration. However, this case does not concern that broad scheme, but only a narrow and distinct element of it-the regulation of criminal immigration activity by aliens.

Id. at 474-75 (emphasis added). The majority erred in simply accepting Gonzales's assumption, in dicta, without performing any additional inquiry into whether it was indeed correct.*fn17

The majority also missteps in relying on an abbreviated analysis in United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008). There, Urrieta moved to suppress items found in his car during an extended search by local police. Id. 572-73. Urrieta had been detained by a local police officer following the issuance of a traffic citation. Id. at 571-72. During the detention related to the traffic violation, the police officer attempted to determine whether Urrieta was an illegal alien. Id. The court concluded that suspicion of Urrieta's illegal presence was insufficient to extend Urrieta's detention. Id. at 574. In doing so, the court characterized 8 U.S.C. § 1357(g) as "stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions that are not applicable in the present case." Id.

This conclusion, however, completely ignored the existence and effect of § 1357(g)(10). As discussed fully throughout this dissent, subsection (g)(10) envisions state cooperation in the enforcement of federal immigration law outside the context of a specific agreement with the Attorney General by "identification, apprehension, detention, or removal" in cooperation with federal immigration authorities. Further, § 1357(g)(10) makes no distinction between criminal and civil provisions-indeed, it refers to "aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(10)(B). The Sixth Circuit's truncated conclusion may be based on the fact that the government withdrew the argument that Urrieta's extended detention was justified on suspicion that he was an "undocumented immigrant" as "misstat[ing] the law." Id. Thus, the majority should not have relied on the Sixth Circuit's language in concluding that state officers lack inherent authority to enforce the civil provisions of immigration law any more than it should have relied on the language in Gonzales, and for the same reason: the issue whether a state officer had inherent authority to arrest a person for violation of a federal civil violation was simply not before either court.

Moreover, the majority ignores clear Supreme Court precedent in concluding that state officers cannot make warrantless arrests because federal immigration officers cannot make warrantless arrests under the same circumstances pursuant to 8 U.S.C. § 1357(a). Maj. Op. at 4842. In United States v. Di Re, 332 U.S. 581 (1948), state officers arrested Di Re for knowingly possessing counterfeit gasoline ration coupons in violation of § 301 of the Second War Powers Act of 1942, a federal law. Id. at 582. Di Re challenged the search incident to the arrest. Id. The Supreme Court upheld the arrest, stating "that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity." Id. at 589; accord Miller v. United States, 357 U.S. 301, 305 (1958) (holding that when state peace officers arrest a person for violation of federal narcotics law, "the lawfulness of the arrest without warrant is to be determined by reference to state law"); Johnson v. United States, 333 U.S. 10, 15 n.5 (1948) (holding that when state peace officers arrest a person for violation of federal narcotics law, "[s]tate law determines the validity of arrests without warrant"). Thus, the authority of states to authorize warrantless arrests for violations of federal law is well established.*fn18

The conclusion that state police officers have the inherent authority to enforce the civil provisions of federal immigration law is supported by Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003). There, a police officer questioned a woman about her immigration status. Id. at 1262. This court stated that "it [was] doubtful that the police officer had any authority to question Mena regarding her citizenship." Id. at 1165 n.15. The Supreme Court overruled this court and stated:

As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

Muehler v. Mena, 544 U.S. 93, 101 (2005) (emphasis added). Thus, the Supreme Court explicitly recognized-in one of our California cases-that state police officers have authority to question a suspect regarding his or her immigration status, directly contradicting the majority's conclusion that state officers possess no inherent authority to enforce the civil provisions of immigration law.*fn19

B. Non-preemption of states' inherent enforcement authority

Next, the majority errs in finding that 8 U.S.C. § 1252c preempts this inherent state arrest authority. Despite § 1252c's lack of any language which indicates an intent to limit state powers, the majority holds that § 1252c represents the full extent of the arrest power Congress intended-a contention the Tenth Circuit previously rejected. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999), cert. denied, 528 U.S. 913 (1999); see also United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001). 8 U.S.C. § 1252c provides, in relevant part:

Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who-

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,

but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

8 U.S.C. § 1252c(a). The majority concludes that because Section 6 would allow warrantless arrests in a broader set of circumstances than described in § 1252c, it therefore conflicts with Congress's intent.

The Tenth Circuit persuasively rejected this contention over a decade ago. In United States v. Vasquez-Alvarez, "Vasquez claimed that 8 U.S.C. § 1252c limit[ed] the authority of state and local police officers, allowing such an officer to arrest an illegal alien only when the INS has confirmed, before the arrest, that the alien has previously been convicted of a felony and has, since that conviction, been deported or left the United States." 176 F.3d at 1295.*fn20

Unable to cite any text in § 1252c which would expressly or impliedly state an intention that § 1252c was meant to be the only authority for state police to arrest an alien for his unlawful presence in this country, nor any canon of statutory interpretation that would come to its aid-and ignoring a later statute's recognition of the authority to detain (1357(g)(10)) -the majority appeals to legislative history. As noted by the majority, the only legislative history as to § 1252c is the floor debate that accompanied Representative Doolittle's introduction of § 1252c. The Tenth Circuit analyzed the plain language of § 1252c as well as this legislative history, and rejected Vasquez's claim:

This legislative history does not contain the slightest indication that Congress intended to displace any pre-existing enforcement powers already in the hands of state and local officers. Accordingly, neither the text of the statute nor its legislative history support Vasquez's claim that § 1252c expressly preempts state law.

Id. at 1299.

The majority takes a single Representative's comment- that states lacked the authority to arrest illegal aliens and that § 1252c was needed to authorize such arrests-to conclude that Congress as a whole intended § 1252c to represent the limit of state arrest authority. Like the Tenth Circuit, however, I cannot conclude that Congress intended § 1252c to represent the outer bounds of state officers' authority to arrest illegal aliens based solely on the comments of one Representative. As stated by the Tenth Circuit:

Representative Doolittle did not identify which "cur-rent Federal law" prohibited "State and local law enforcement officials from arresting and detaining criminal aliens." Neither the United States nor Vasquez has identified any such pre-existing law. Furthermore, this court has not been able to identify any pre-§ 1252c limitations on the powers of state and local officers to enforce federal law.

Id. at 1299 n.4; see also United States v. Anderson, 895 F.2d 641, 647 (9th Cir. 1990) (Kozinski, J., dissenting) ("[Legislative] history . . . is seldom, if ever, even seen by most of the legislators at the time they cast their votes.").*fn21

Further supporting this conclusion is the text of § 1252c, which does not provide even the slightest indication that Congress intended to preempt otherwise inherent state arrest powers.

The Tenth Circuit went on to note that Congress subsequently "passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws." Vasquez-Alvarez, 176 F.3d at 1300. Notably, Congress passed 8 U.S.C. § 1357(g), discussed at length above, just five months later.*fn22

The Tenth Circuit found this code section "evince[d] a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." Id. The majority states that the Tenth Circuit erred in "inter-pret[ing] § 1357(g)(10) to mean that [a] 'formal agreement [pursuant to § 1357(g)(1)-(9)] is not necessary for state and local officers "to cooperate with the Attorney General in identification, apprehension, detention, or removal of aliens." ' " Maj. Op. at 4847 (emphasis added). It is no wonder that the Tenth Circuit so "interpreted" § 1357(g)(10), when that is what the statute explicitly says:

Nothing in this subsection [1357(g)] shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State . . . otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

8 U.S.C. § 1357(g)(10)(B) (emphasis added). I cannot join the majority in criticizing the Tenth Circuit for merely reading the statute's words.*fn23

The majority contends that § 1357(g)(10) "neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision." Maj. Op. at 4847. What, then, does § 1357(g)(10) do? We must read 1357(g)(10) in context of § 1357(g) as a whole. Section 1357(g) created, for the first time, the authority of the Attorney General to enter into agreements with states and localities to deputize their officers as 287(g) immigration officers. Subsections (g)(1)-(9) set out the specifics of the explicit written agreements-state officers are paid by the state, trained by the federal government, supervised by the Attorney General, and should be treated as federal employees for purposes of liability and immunity. However, § 1357(g)(10) states clearly that this new method of state involvement-287(g) deputized officers-is not the only way state officers may cooperate in the enforcement of federal immigration law. Subsection (g)(10) preserves the pre-existing authority of state officers to participate in enforcing immigration law, without the requirement of any formal, written agreement as envisioned by § 1357(g)(1)-(9).

Absent subsection (g)(10), one might argue that the authority created by § 1357(g)(1)-(9) to deputize state officers represents the full extent of state officer immigration enforcement.*fn24

Instead, (g)(10) makes clear that state officers' authority "otherwise to cooperate" in enforcing federal immigration law remained intact after the creation of the new "deputy track" of enforcement. This reading does not make § 1357(g) superfluous, as the majority contends. See Maj. Op. at 4847. Indeed, this interpretation makes each part of § 1357(g) necessary-subsections (g)(1)-(9) are necessary to authorize the Attorney General to deputize 287(g) officers, and subsection (g)(10) is necessary to preserve state officers' pre-existing communication and arrest authority. The majority cannot explain how state officers may "otherwise cooperate" pursuant to § 1357(g)(10)-in such concrete areas as the "identification, apprehension, detention, [and] removal" of suspects- if they possess no inherent authority to enforce civil immigration law. The reason for this inconsistency is the majority's antecedent error-finding state officers lack such inherent authority. Neither does this interpretation render § 1252c superfluous, as the majority contends. See Maj. Op. at 4847. Section 1252c's "notwithstanding" language acts as a safeguard against other provisions of federal law, preventing any other provision from being construed to preempt state arrest authority to arrest certain illegal aliens. As stated by the 2002 OLC Opinion:

If, for example, a court were otherwise inclined (per the Ninth Circuit's dicta in Gonzales[ v. City of Peoria, 722 F.2d 468 (9th Cir. 1983)]) to misconstrue the provisions of the INA as preempting state authority to arrest for civil deportability, section 1252c would operate to ensure that state police at least retained the authority to make such arrests of aliens who had previously been convicted of a felony and had been deported or had left the United States after such conviction.

2002 OLC Opinion at 11. Moreover, Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power. See, e.g., Reaffirmation-Reference to One Nation Under God in the Pledge of Allegiance, Pub L. No. 107-293 (2002) ("An Act To reaffirm the reference to one Nation under God in the Pledge of Allegiance." (emphasis added)). Thus, § 1252c does not become "superfluous" merely because it does not enlarge or shrink the arrest power provided to state police officers.*fn25

Conclusion

In conclusion, Section 6 is not preempted and is constitutional. The United States all but conceded the only argument it made in this court and the court below. On the merits of the majority's sua sponte suggestion that state officers can act in the immigration enforcement field pursuant only to 8 U.S.C. § 1252c, familiar principles of dual sovereignty, as recognized by the Supreme Court, provide states with the inherent authority to enforce federal immigration law. In passing 8 U.S.C. § 1252c, a statement by the bill's sponsor of what he thought was the pre-existing state of the law is insufficient to establish that Congress as a whole intended to displace this pre-existing authority vested in the states. Finally, 8 U.S.C. § 1357(g)(10), enacted after § 1252c, explicitly recognizes an authority reserved to the states to enforce federal immigration law outside the confines of a written agreement with the Attorney General. Section 6 does not conflict with the intent of Congress, and thus is not conflict preempted.

IV. Conclusion

The majority misreads the meaning of the relevant federal statutes to ignore what is plain in the statutes-Congress intended state and local police officers to participate in the enforcement of federal immigration law. Sections 2 and 6 do not conflict with this intent, and thus are constitutional.


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