In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

STATE OF COLORADO,Petitioner,

v.

BERNARDINO FUENTES-ESPINOZA, Respondent.

On Petition for Writ of Certiorarito the Supreme Court of Colorado

BRIEF OF THE STATES OF ARIZONA, ARKANSAS,INDIANA, KANSAS, MICHIGAN, MONTANA, NEBRASKA,NEW MEXICO, OKLAHOMA, OHIO, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, AND UTAH ASAMICI CURIAE IN SUPPORT OF PETITIONER

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 17-1084

MARK BRNOVICH Attorney General

DOMINIC E. DRAYE Solicitor General Counsel of RecordTERRY M. CRIST III Assistant Attorney GeneralOFFICE OF THE ATTORNEY GENERAL2005 N. Central AvenuePhoenix, AZ 85004(602) 542-3333solicitorgeneral@azag.gov

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether, under principles of implied preemption,the federal Immigration and Nationality Act, 8 U.S.C.§§ 1101 et seq., precludes states from enactinglegislation to prohibit human smuggling.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. The decisions by the Colorado Supreme Courtand three federal courts of appeals invalidated,or threaten to invalidate, 12 states’ efforts tocombat human smuggling and other third-partyconduct such as harboring and renting tounauthorized aliens . . . . . . . . . . . . . . . . . . . . . . . 3

II. The Colorado Supreme Court and three federalcourts of appeals have fundamentallymisapprehended this Court’s preemptionjurisprudence by treating human smuggling andother state laws that target third parties thesame, for preemption purposes, as state lawsthat directly regulate immigration . . . . . . . . . . . 6

A. Culminating in Arizona v. United States, thisCourt’s preemption cases have consistentlydistinguished between laws that directlyregulate unauthorized aliens and those thattarget third parties . . . . . . . . . . . . . . . . . . . . . 7

B. The Colorado Supreme Court and severalfederal courts of appeals misread Arizona tohold that federal law preempts the field oflaws prohibiting human smuggling . . . . . . . 11

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C. The Colorado Supreme Court and severalfederal courts of appeals misread Arizona tofind conflict preemption of state lawsprohibiting human smuggling . . . . . . . . . . . 16

1. The presumption against preemptionapplies to police power regulations ofconduct involving aliens . . . . . . . . . . . . . 16

2. State police power regulations that do notapply to aliens themselves pose noobstacle to Congress’s immigrationobjectives . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv

TABLE OF AUTHORITIES

CASES

Arizona v. United States, 567 U.S. 387 (2012) . . . . . . . . . . . . . . . . . . passim

Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997) . . . . . . . . . . . . . . 14

Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) . . . . . . . 2, 8, 9, 13, 18, 19, 21

Cruz v. Abbott, 177 F. Supp. 3d 992 (W.D. Tex. 2016) . . . . . . . . . 5

Cruz. v. Abbott, 849 F.3d 594 (5th Cir. 2017) . . . . . . . . . . . . . . . . 5

DeCanas v. Bica, 424 U.S. 351 (1976) . . . . . . . . . . . . . . . . . . passim

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) . . . . . . . . . . . . . . . . . . . . . . 11

Georgia Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250 (11th Cir. 2012) . . . . . 4, 12, 17, 20

Heath v. Alabama, 474 U.S. 82 (1985) . . . . . . . . . . . . . . . . . . . . . . . 15

Hernandez v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013) . . . . . . . . . . . . . . . . . 6

Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . . . . 2, 7, 10, 13, 19

Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013) . . . . 6, 13, 20, 21, 22

v

New York State Dept. of Soc. Services v. Dublino, 413 U.S. 405 (1973) . . . . . . . . . . . . . . . . . . . . . . 14

Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) . . . . . . . . . . . 4, 16

United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) . . . . 4, 12, 16, 18, 20

Utah Coalition of La Raza v. Herbert, 26 F. Supp. 3d 1125 (D. Utah 2014) . . . . . . . . . . 5

Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) . . . . . . . . . . passim

Villas at Parkside v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) . . . . . . . . . . . . . . . . 6

Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323 (2011) . . . . . . . . . . . . . . . . . . . . . . 21

Wyeth v. Levine, 555 U.S. 555 (2009) . . . . . . . . . . . . . . 9, 16, 18, 19

STATUTES

8 U.S.C. §§ 1101 et seq. . . . . . . . . . . . . . . . . . . passim

8 U.S.C. § 1324 . . . . . . . . . . . . . . . . . . . . . . . 4, 19, 21

Ala. Code § 31-13-13 . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Ariz. Rev. Stat. § 13-2929 . . . . . . . . . . . . . . . . . . . . . 4

Ariz. S.B. 1070 . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 21

Colo. Rev. Stat. § 18-13-128 . . . . . . . . . . . . . . . . . . . 4

vi

Fla. Sta. ch. 787.07 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Georgia Code Ann. § 16-11-200 . . . . . . . . . . . . . . . . 4

Georgia Code Ann. § 16-11-201 . . . . . . . . . . . . . . . . 4

Georgia Code Ann. § 16-11-202 . . . . . . . . . . . . . . . . 4

Ind. Code. § 35-44.1-5-4 . . . . . . . . . . . . . . . . . . . . . . 5

Mo. Rev. Stat. § 577.675 . . . . . . . . . . . . . . . . . . . . . . 5

Okl. St. Ann. tit. 21, § 446 . . . . . . . . . . . . . . . . . . . . 5

S.C. Code Ann. § 16-9-460 . . . . . . . . . . . . . . . . . . . . 4

Tenn. Code Ann. § 39-17-114 . . . . . . . . . . . . . . . . . . 5

Tex. Penal Code Ann. § 20.05 . . . . . . . . . . . . . . . . . . 5

Utah Code Ann. § 76-10-2901 . . . . . . . . . . . . . . . . . . 5

1

INTEREST OF AMICI CURIAE1

This case presents an important questionconcerning the preemptive scope of the Immigrationand Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,and the states’ ability to legislate alongside Congress tocombat the common enemy of human smuggling.Human smuggling is a nationwide issue that reachesfamilies and communities in every state. The states, aswell as the federal government, have a compellinginterest in protecting immigrants, their families, andthe community at large from the exploitative anddangerous practices of human smugglers and thesecondary harms of their large-scale criminal networks.The states also have a compelling interest incombatting those who prey upon vulnerableimmigrants in other ways, including as unscrupulousemployers, landlords, and sex traffickers.

Some amici states have enacted anti-smugglinglaws that have been found preempted by the federalcourts of appeals. Others lie within these same circuitsand are therefore unable to pass human smugglingstatutes of their own. Others still have enacted anti-smuggling statutes that remain in effect but are indanger of preemption should their federal circuit followthe reasoning of the Colorado Supreme Court and thecircuits on which it relied. A final group of states havenot yet passed an anti-smuggling statute nor do theylie within a circuit that has already found preemption

1 Amici states submit this brief pursuant to Supreme Court Rule37.4. Counsel of record for all parties received timely notice of theamici states’ intent to file this brief.

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but have an interest in knowing whether they mayadopt such a statute in the future.

Whether, and to what extent, the states maycomplement Congress’s efforts to punish humansmugglers and other exploitive third parties isunsettled in light of the disagreement over the INA’spreemptive force. The Colorado Supreme Court and theFourth, Ninth, and Eleventh Circuits have held thatstate human smuggling statutes are preempted. Inaddition, the Third and Fifth Circuits have held thatthe INA’s harboring provisions preempt state lawsprohibiting renting to unauthorized aliens. By contrast,the Eighth Circuit held that a law prohibiting rentingto unauthorized aliens is not preempted. The amicistates urge this Court to grant certiorari to resolve thisconflict and to confirm that states may assist in thebattle against human smuggling and other exploitationof vulnerable immigrants.

ARGUMENT

For preemption purposes, there is a world ofdifference between immigration laws that focus directlyon aliens themselves and immigration laws that target“third parties” such as human smugglers, landlords,employers, and others who may exploit immigrants.Whereas this Court has often applied field and obstaclepreemption principles to invalidate state laws directlyregulating aliens, see Arizona v. United States, 567 U.S.387 (2012); Hines v. Davidowitz, 312 U.S. 52, 74 (1941),it has usually upheld state laws that target thirdparties who interact with aliens, see Chamber ofCommerce v. Whiting, 563 U.S. 582, 587 (2011);DeCanas v. Bica, 424 U.S. 351, 353 (1976).

3

Despite this fundamental distinction, the ColoradoSupreme Court and circuit courts covering 23 stateshave applied this Court’s direct-regulation rulings toinvalidate anti-smuggling and other laws that train onthird parties. The consequences are significant. TheColorado Supreme Court and the Fourth, Ninth, andEleventh Circuits have already invalidated five statehuman smuggling statutes, and their reasoning couldbe used to preempt at least six more. And the decisionsthreaten other state laws targeting third parties whoexploit aliens and chill states from enacting such laws.These decisions prevent states from exercising theirlegitimate police powers to protect immigrants, theirfamilies, and the community at large from exploitationby coyotes, slumlords, and predatory employers. ThisCourt should grant certiorari and hold that Colorado’shuman smuggling law, and others like it, are notpreempted by the INA.

I. The decisions by the Colorado Supreme Courtand three federal courts of appealsinvalidated, or threaten to invalidate, 12states’ efforts to combat human smuggling andother third-party conduct such as harboringand renting to unauthorized aliens.

Twelve states have enacted human smugglingstatutes that target third parties who seek to exploitunauthorized aliens. Most prohibit three classes ofthird-party activity: transporting or moving anunauthorized alien, concealing or harboring anunauthorized alien, and encouraging an unauthorizedalien to enter the state. Colorado’s statute, for example,provides:

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A person commits smuggling of humans if, forthe purpose of assisting another person to enter,remain in, or travel through the United Statesor the state of Colorado in violation ofimmigration laws, he or she provides or agreesto provide transportation to that person inexchange for money or any other thing of value.

Colo. Rev. Stat. § 18-13-128.

The Colorado Supreme Court held that thisprovision was field and conflict preempted by 8 U.S.C.§ 1324, which makes it a federal crime for a person totransport or conceal from detection (or attempt to doso) an alien when the person knows, or recklesslydisregards the fact that, the alien is unauthorized. Fiveother states’ human smuggling laws have been foundpreempted by federal courts:

• Alabama. Ala. Code § 31-13-13 (held preemptedin United States v. Alabama, 691 F.3d 1269(11th Cir. 2012)).

• Arizona. Ariz. Rev. Stat. § 13-2929 (foundpreempted in Valle del Sol Inc. v. Whiting, 732F.3d 1006 (9th Cir. 2013)).

• Georgia. Georgia Code Ann. §§ 16-11-200, -201,-202) (held preempted in Georgia Latino Alliancefor Human Rights (“GLAHR”) v. Georgia, 691F.3d 1250 (11th Cir. 2012)).

• South Carolina. S.C. Code Ann. § 16-9-460(held preempted in United States v. SouthCarolina, 720 F.3d 518 (4th Cir. 2013)).

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• Utah. Utah Code Ann. § 76-10-2901 (heldpreempted in Utah Coalition of La Raza v.Herbert, 26 F. Supp. 3d 1125 (D. Utah 2014)).

Six statutes remain in effect:

• Missouri. Mo. Rev. Stat. § 577.675.

• Florida. Fla. Sta. ch. 787.07.

• Indiana. Ind. Code. § 35-44.1-5-4.

• Oklahoma. Okl. St. Ann. tit. 21, § 446.

• Tennessee. Tenn. Code Ann. § 39-17-114.

• Texas. Tex. Penal Code Ann. § 20.05.2

At least one state statute defines smuggling orharboring to prohibit landlords from renting tounauthorized aliens. See Ala. Code § 31-13-13.3 Courtshave also reviewed a number of local landlordordinances, with conflicting results. The Third andFifth Circuits held that the INA’s anti-harboringprovisions preempted ordinances that prohibited

2 The U.S. District Court for the Western District of Texas heldthis statute preempted, relying on circuit decisions including Valledel Sol. Cruz v. Abbott, 177 F. Supp. 3d 992, 1004 (W.D. Tex. 2016).The Fifth Circuit vacated the decision and reversed for lack ofstanding. Cruz. v. Abbott, 849 F.3d 594, 602 (5th Cir. 2017).

3 Others expressly or implicitly exempt landlords from theirsmuggling statutes. See Ind. Code. § 35-44.1-5-4(C) (“A landlordthat rents real property to a person who is an alien does not violatethis section as a result of renting the property to the person.”);Cruz, 849 F.3d at 600 (interpreting Tex. Penal Code Ann. § 20.05to include a “covertness” requirement that exempted mostlandlords).

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landlords from renting to unauthorized aliens. SeeHernandez v. City of Hazleton, 724 F.3d 297 (3d Cir.2013); Villas at Parkside v. City of Farmers Branch,726 F.3d 524 (5th Cir. 2013). In contrast, the EighthCircuit upheld the City of Fremont, Nebraska’s anti-landlord ordinance against field and conflictpreemption challenges. Keller v. City of Fremont, 719F.3d 931 (8th Cir. 2013).

II. The Colorado Supreme Court and threefederal courts of appeals have fundamentallymisapprehended this Court’s preemptionjurisprudence by treating human smugglingand other state laws that target third partiesthe same, for preemption purposes, as statelaws that directly regulate immigration.

The distinction between the direct regulation ofimmigration, which is focused on aliens themselves,and laws that target third parties who exploit orotherwise interact with aliens runs throughout thisCourt’s jurisprudence. The Court has usually found theformer type of regulation preempted, often based on itsconclusion that the federal government has occupiedthe particular field. By contrast, the Court hasgenerally permitted states to regulate third partieswho interact with unauthorized aliens, even in the faceof preemption challenges.

The Colorado Supreme Court’s fundamental error inthis case was conflating the two lines of cases andtreating a “third party” regulation the same as a directregulation of aliens. The Fourth, Ninth, and EleventhCircuits made the same category error in holding statehuman-smuggling statutes preempted. This Court’sintervention is needed to restore uniformity among the

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lower courts and bring an end to the unwarrantedinvalidation of these important state laws.

A. Culminating in Arizona v. United States,this Court’s preemption cases haveconsistently distinguished between lawsthat directly regulate unauthorized aliensand those that target third parties.

Earlier cases. The leading decision holdingpreempted a state law directly regulating aliens isHines v. Davidowitz, 312 U.S. 52 (1941). In Hines, thisCourt concluded that the federal Alien Registration Actpreempted a Pennsylvania statute requiring everyadult alien in the state to register once a year. Id. at74. The Court found that the federal government’s “fulland exclusive responsibility for the conduct of affairswith foreign sovereigns” requires “federal power in thefield affecting foreign relations be left entirely free fromlocal interference.” Id. at 63. This included regulatingthe treatment of another country’s nationals within theUnited States. Id. Because “the regulation of aliens” is“intimately blended and intertwined withresponsibilities of the national government,” the Courtruled that the Alien Registration Act was sufficient tooccupy the entire field of alien registration to theexclusion of state statutes. Id. at 66–69.

Several decades later, when faced with a state lawregulating third parties, not the aliens themselves, theCourt reached the opposite result. In DeCanas v. Bica,424 U.S. 351 (1976), the Court held that the INA didnot preempt a California law forbidding employersfrom hiring unauthorized aliens. The Court explainedthat, although Congress has the exclusive power to“regulate immigration,” it “has never held that every

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state enactment which in any way deals with aliens isa regulation of immigration and thus per se pre-emptedby this constitutional power, whether latent orexercised.” Id. at 354–55. A “regulation of immigration”is “essentially a determination of who should or shouldnot be admitted into the country, and the conditionsunder which a legal entrant may remain.” Id. at 355.Thus, the mere “fact that aliens are the subject of astate statute” does not render the law a “regulation ofimmigration.” Id. Turning to the California statute atissue, the Court held that, even if the law had an“indirect impact on immigration,” that was not enoughto place the law within the scope of Congress’s power toexclusively regulate immigration. Id. at 355–56.

Nor, held the Court, was there any “specificindication in either the wording or the legislativehistory” of the INA that Congress intended to excludethe entire field of “harmonious state regulationtouching on aliens in general, or the employment ofillegal aliens in particular.” Id. at 358. Although theINA comprehensively legislated alien registration, itdid not (as then written) “draw in the employment ofillegal aliens as plainly within that central aim offederal regulation.” Id. at 359 (citation and internalalterations omitted).

Recent decisions. This Court’s recent cases maintainthe distinction between direct regulation ofimmigration and regulation of third parties’ ancillaryconduct. In Chamber of Commerce v. Whiting, 563 U.S.582 (2011), the Court upheld an Arizona lawsuspending or revoking business licenses to employers(quintessential third parties) hiring undocumentedaliens. After concluding that Arizona’s statute fell

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within the saving clause of the anti-employerprovisions of the Immigration Reform and Control Act(“IRCA”), the Court further concluded that IRCA didnot impliedly preempt the Arizona statute. Id. at 611.A four-justice plurality explained that the Arizona lawdid not “upset[] the balance that Congress sought tostrike when enacting IRCA” because “regulating in-state businesses through licensing laws” was not a“uniquely federal area[] of regulation” involving a“dominant federal concern.” Id. at 604. Although“Arizona hopes that its law will result in more effectiveenforcement” of anti-employer regulations, its ownstatute did not “directly interfere[]” with IRCA.4 Id. at604. Independent of the savings clause, the Courtrejected the argument that “Congress” ‘intended thefederal system to be exclusive,’ and that any statesystem therefore necessarily conflicts with federal law.”Id. at 600. In reaching this conclusion, the Courtobserved that conflict preemption requires a “highthreshold”—a standard not met there. Id. at 607.

4 Justice Thomas did not join the part of the Court’s opinionexplaining why Arizona’s law was not conflict preempted. Notably,Justice Thomas had previously rejected the entire concept ofobstacle preemption because it allows federal courts “to vacate ajudgment issued by another sovereign based on nothing more thanassumptions and goals that were untethered from theconstitutionally enacted federal law authorizing the federalregulatory standard that was before the Court.” Wyeth v. Levine,555 U.S. 555, 600 (2009) (concurring opinion). Even so, JusticeThomas created a majority for the result in Whiting when agreeingthat Arizona’s law “does not conflict with federal immigration law.”563 U.S. at 611.

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By contrast, in Arizona v. United States, 567 U.S.387 (2012), the Court found preempted severalprovisions of an Arizona law, S.B. 1070, that directlyregulated unauthorized aliens. Section 3 of S.B. 1070criminalized the failure to comply with federal alien-registration requirements. Relying on Hines, the Courtfound that the INA created a “full set of standards” foralien registration that form “a harmonious whole.” Id.at 401. The Court thus concluded that “the FederalGovernment has occupied the field of alienregistration,” which field preempted § 3. Id. at 401–02.The Court then noted in dicta that § 3 conflicted withcongressional purpose by preventing a uniform policyof immigration enforcement throughout the nation andby depriving immigration officials the neededdiscretion to decline removal on a case-by-case basis.See id. Further, § 3 allowed for greater penalties thanthe INA, upsetting Congress’s balance of immigrationenforcement against its foreign policy aims. Id.

The Court next addressed § 5(C) of S.B. 1070, whichprohibited unauthorized aliens from seeking orobtaining employment. The Court found this directregulation of aliens to be conflict preempted. Id. at 406.The Court observed that the federal statute dealingwith alien employment, IRCA, chose to imposepenalties on employers but not employees. Id. at 404.Based on legislative history characterizing employeesanctions as “unnecessary and unworkable,” the Courttreated the absence of employee sanctions as a“deliberate choice.” Id. at 405. It then ruled that the“Arizona law would interfere with the careful balancestruck by Congress with respect to unauthorizedemployment of aliens.” Id. at 410.

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Lastly, the Court found preempted § 6 of S.B. 1070,which authorized state and local officers to arrestanyone suspected of having committed an offensemaking them removable from the United States. Id. at410. The Court concluded that this direct regulation ofaliens interfered with Congress’s diplomatic aims bydepriving federal officials of discretion in removalactions.5 Id.

B. The Colorado Supreme Court and severalfederal courts of appeals misread Arizonato hold that federal law preempts the fieldof laws prohibiting human smuggling.

This Court does not infer field preemption lightly,finding it only when “the nature of the regulatedsubject matter permits no other conclusion,or…Congress has unmistakably so ordained.” FloridaLime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,142 (1963). This is no less true simply because thesubject of the legislation involves immigration. SeeDeCanas, 424 U.S. at 355 (expressing the samestandard). The Colorado Supreme Court and theFourth, Ninth, and Eleventh Circuits nonetheless heldthat Congress preempted the field of humansmuggling. They did so by making a fundamentalcategory error: they relied on this Court’s decisionsinvolving direct regulation of immigration even though

5 The Court did not find § 2(b) to be facially preempted because itwas not clear that the rule requiring officers to verify a suspect’simmigration status would pose an obstacle to Congressional policyunder all circumstances. Id. at 410. However, the Court did allowfor the possibility that the lower courts could find the sectionpreempted as applied. Id. at 415.

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they were assessing state laws that regulated thirdparties.

For example, the Colorado Supreme Court and thecircuits on which it relied made much of Arizona’sconclusion that Congress intended to facilitate effectiveand dynamic foreign relations by creating a uniformimmigration policy with discretion concentrated in thehands of federal officials. Pet. App. 20a; Valle del Sol,732 F.3d at 1027; South Carolina, 720 F.3d at 531;GLAHR, 691 F.3d at 1264. These courts claimed thatCongress’s broad foreign policy rationale evidenced anintent to occupy the entire field of immigrationregulation. See Pet. App. 20a (justifying fieldpreemption on Congress’s desire for uniformity); Valledel Sol, 732 F.3d at 1023 (relying on Congress’senumerated power to “establish a uniform Rule ofNaturalization”); GLAHR, 691 F.3d at 1264 (holdingthat Congress expressed an “overwhelmingly dominantfederal interest” in the “entry, movement, andresidence of aliens within the United States”).

But as DeCanas made clear, laws unrelated towhich aliens may enter or remain in the country arenot “regulation[s] of immigration.” 424 U.S. at 355.Arizona’s foreign relations rationale therefore loses itsforce beyond its direct immigration context. Althoughforeign governments plainly have an interest in thetreatment of their nationals inside the United States,there is no reason to think they would also have aninterest in how smugglers, traffickers, landlords andother third-party exploiters are treated. Because ofthis, a unitary response to human smuggling is notnecessary to effectively conduct foreign relations, normust prosecutorial discretion be concentrated in a

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single, federal entity. Even if foreign governments havesome abstract interest in the prosecution of thirdparties who exploit their nationals, that interest wouldbe no greater than in the prosecution of anyone elsewho commits a crime against an alien. Yet this Courthas never preempted a state criminal statute simplybecause the victim may be an alien.

The Eighth Circuit recognized as much whenholding that DeCanas and Whiting—not Hines andArizona—controlled the analysis of a statute governinglandlords, which it held not preempted. The courtexplained that “[l]aws designed to deter, or evenprohibit, unlawfully present aliens from residingwithin a particular locality are not tantamount toimmigration laws establishing who may enter orremain in the country.” Keller, 719 F.3d at 941. JusticeEid, dissenting in the decision below, further observedthat Arizona “carefully limited its field preemptionanalysis to the particular field of alienregistration.…Because Colorado’s human smugglingstatute in no way involves alien registration, Arizonasimply offers no support for the majority’s conclusionthat the Colorado human smuggling statute is fieldpreempted.” Pet. App. 29a-30a. The Colorado SupremeCourt and the circuits on which it relied failed toidentify any feature of the INA that unmistakablydemonstrates Congress’s intent to create exclusivelyfederal uniformity in the prosecution of humansmugglers. The mere fact that anti-smuggler lawsindirectly concern immigration is not enough to inferthat Congress intended to prohibit concurrent statelegislation. DeCanas, 424 U.S. at 355.

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The Colorado Supreme Court also overextendedArizona’s observation that “[f]ederal governance ofimmigration and alien status is extensive andcomplex.” Pet. App. 18a (citing Arizona, 567 U.S. at394–95); accord Valle del Sol, 732 F.3d at 1024.Underlying this analysis are two errors. First, the poorfit of the foreign relations rationale to third-partyregulation means that Congress’s creation of a “full setof standards” in the field of alien registration has nobearing on whether Congress also meant to completelyoccupy the field of human smuggling or any otherancillary crime that might have some link tounauthorized immigration.

Second, the complexity of Congress’s overallregulation of immigration is not by itself enough toshow an intent to completely exclude concurrent stateprosecution of human smuggling. This Court rarelyfinds field preemption based on a federal statute’scomplexity alone. See Camps Newfound/Owatonna,Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997)(Thomas, J., dissenting). In light of the complexity ofmany congressional acts in the modern administrativestate, inferring field preemption from complexity alonewould foreclose most state concurrent legislation. InNew York State Dept. of Soc. Services v. Dublino, 413U.S. 405, 415 (1973), the Court therefore rejected “thecontention that pre-emption is to be inferred merelyfrom the comprehensive character” of a statute because“[g]iven the complexity of the matter addressed byCongress in [the statute at issue], a detailed statutoryscheme was both likely and appropriate, completelyapart from any questions of pre-emptive intent.” Id.

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This is equally true in the immigration context.DeCanas explained that Congress must do more thansimply set an immigration standard to implicitly leaveno room for concurrent state action. 424 U.S. at 359.The Court was unmoved by the argument that theINA’s scope preempted state employer regulationsbecause the “comprehensiveness of legislationgoverning entry and stay of aliens was to be expectedin light of the nature and complexity of the subject.” Id.

The Colorado Supreme Court failed to appreciatethis principle. The court listed as evidence of thecomprehensiveness of the INA’s anti-smugglerprovision that Congress also criminalizes aiding andabetting the smuggling offenses, provides apunishment for the offenses, “discusses evidentiaryconsiderations for determining whether a violation hasoccurred,” and creates an outreach program for victims.Pet. App. 19a-20a. But these are standard features ofmost criminal laws, where such “complexity” is to beexpected. If this evidence sufficed, and all that wasrequired for field preemption was that Congress madesome conduct a criminal offense, there would hardly beany concurrent criminal jurisdiction at all. That,however, is not our system. Heath v. Alabama, 474 U.S.82, 92–93 (1985) (reaffirming the “dual sovereigntydoctrine” where both the state and federal governmentsmay convict an offender for the same crime, consistentwith the Fifth Amendment).

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C. The Colorado Supreme Court and severalfederal courts of appeals misread Arizonato find conflict preemption of state lawsprohibiting human smuggling.

1. The presumption against preemptionapplies to police power regulations ofconduct involving aliens.

It is well settled that “in all pre-emption cases, andparticularly in those in which Congress has legislatedin a field which the States have traditionally occupied,[the Court] start[s] with the assumption that thehistoric police powers of the States were not to besuperseded by the Federal Act unless that was theclear and manifest purpose of Congress.” Wyeth, 555U.S. at 565 (citation and internal alterations omitted).Rooted in “respect for the States as independentsovereigns,” this presumption “assumes that Congressdoes not cavalierly pre-empt state-law [legislation].” Id.at 565 n.3. Improperly relying on cases involving directregulation of aliens, the Colorado Supreme Court andfederal courts of appeals failed to adhere to thatprinciple.

The Colorado Supreme Court paid lip service to thepresumption, Pet. App. 9a, but never applied it whendeciding that Colorado’s human smuggling law posedan obstacle to Congress’s objectives. Some federalcircuits have done the same. See Valle del Sol, 732 F.3dat 1023; Alabama, 691 F.3d at 1282. Others have gonefurther and explicitly held that the presumption doesnot apply because the human smuggling statute wasnot an exercise of state police powers. See SouthCarolina, 720 F.3d at 529 (holding “the presumptionagainst preemption does not apply here because

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immigration is an area traditionally regulated by thefederal government”); GLAHR, 691 F.3d at 1265, n.11(same). Both approaches are inconsistent with thisCourt’s decisions, including decisions addressing statelaws that regulate third parties who interact withaliens.

This Court has acknowledged that “[d]espite theexclusive federal control of this Nation’s borders,”states retain some “power to deter the influx of personsentering the United States against federal law, andwhose numbers might have a discernible impact ontraditional state concerns.” Plyler v. Doe, 457 U.S. 202,228 n.23 (1982). This Court therefore did not hesitateto apply the presumption in DeCanas, holding thatstates possess “broad authority under their policepower” to regulate employer conduct, even whenprohibiting the hiring of unauthorized aliens. 424 U.S.at 355.

Moreover, the specific nature of the state interestsin combatting human smuggling demonstrates why thepresumption does apply here. By definition, statutesthat punish smugglers do not involve alien registrationand do not directly regulate aliens at all. It is entirelypossible for states to target non-alien third parties forreasons falling within the traditional police power. Inthis very case, the dissent explained that Colorado’shuman smuggling law was enacted to “protect[] thevictims of human smuggling.” Pet. App. 33a (Eid., J.,dissenting). In its petition, Colorado describes in detailthe real and sometimes life-threatening danger thatimmigrants find themselves in at the hands of coyotesmugglers. Pet. 16–19. Likewise, aliens faceexploitation by predatory employers and often rent

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substandard housing from unscrupulous landlords. Thestates’ clear interest in protecting these victims—for-hire passengers, employees, and tenants—do notevaporate simply because they are immigrants. To besure, many states likely “hope[] that [their] law willresult in more effective enforcement” of federalimmigration laws. Whiting, 563 U.S. at 607. But thestrong, parallel interest in protecting vulnerablevictims is enough to justify the states’ use of theirhistoric police powers.

It is no answer that “immigration is an areatraditionally regulated by the federal government.”South Carolina, 720 F.3d at 529. The presumption“does not rely on the absence of federal regulation.”Wyeth, 555 U.S. at 606 n.3. The states have long soughtto protect passengers through common carrierlegislation, to protect employees through labor laws,and to protect renters through landlord-tenantstatutes, not to mention imposing criminal punishmentfor kidnapping and civil liability for falseimprisonment. Just as DeCanas looked to the states’historic regulation of business employment generally tojustify applying the presumption against preemption toa law barring the employment of unauthorized aliens,424 U.S. at 355, so too does the states’ historicprotection of passengers, employees, and tenantsjustify applying the presumption here.

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2. State police power regulations that donot apply to aliens themselves pose noobstacle to Congress’s immigrationobjectives.

The Colorado Supreme Court and three federalcircuits again failed to account for this Court’s third-party immigration cases when holding that statehuman smuggling statutes conflict with the INA. Whenevaluating conflict preemption, this Court askswhether the state law “stands as an obstacle to theaccomplishment and execution of the full purposes andobjectives of Congress.” Hines, 312 U.S. at 67. JusticeThomas has warned, however, that obstaclepreemption may allow courts “to vacate a judgmentissued by another sovereign based on nothing morethan assumptions and goals that were untethered fromconstitutionally enacted federal law.” Wyeth, 555 U.S.at 600 (Thomas, J., concurring). As a result, this Courthas emphasized that “a high threshold must be met ifa state law is to be preempted for conflicting with thepurposes of a federal Act.” Whiting, 563 U.S. at 607.

The Colorado Supreme Court failed to respect this“high threshold.” That court, as well as several circuits,concluded that Congress struck a “careful balance” in8 U.S.C. § 1324 that limited the states’ ability to adopt“additional or different” punishments. See Pet. App.12a, 23a. The courts reached this conclusion based onArizona’s conclusion that Congress struck such abalance in the INA’s alien registration provisions,based on its goal of facilitating foreign relationsthrough uniformity and centralized discretion. See Pet.App. 21a; Valle del Sol, 732 F.3d at 1027 (holdingArizona’s smuggling statute disrupted congressional

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uniformity and gave its prosecutors “the ability toprosecute those who transport or harbor unauthorizedaliens in a manner unaligned with federal immigrationpriorities”); South Carolina, 720 F.3d at 531 (holding astate smuggling law “strip[ped] federal officials of theauthority and discretion necessary in managing foreignaffairs”); GLAHR, 691 F.3d at 1266 (same). But as withtheir field preemption analysis, the Colorado SupremeCourt, and the circuits on which it relied, shoehornedCongress’s foreign relations purpose into the context ofregulations that do not directly concern an alien’s entryinto the United States. Because there is no reason toconclude that Congress specifically valued uniformityor centralized discretion in the third-party immigrationcontext, it was a mistake to find a conflict wherever thestate law differed or allowed increased enforcement.

The Eighth Circuit recognized as much whenconcluding that the landlord ordinance at issue theredid not “remove any alien from the United States (oreven from the City),” meaning “federal immigrationofficials retain complete discretion to decide whetherand when to pursue removal proceedings.” Keller, 719F.3d at 944. To hold otherwise would create a per serule of conflict preemption for indirect immigrationstatutes because the very existence of a statestatute—even one identical to the INA—wouldundermine uniformity and divest federal officials oftheir prosecutorial discretion. If Congress did notintend to occupy the entire field of indirect immigrationenforcement, it cannot be the case that any concurrentstate statute would necessarily undermine Congress’sobjectives anyway. Again, the Eighth Circuitrecognized the problem, noting that such “broad”applications of obstacle preemption would have

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invalidated the laws this Court upheld in DeCanas andWhiting. See id. at 944. Absent the foreign relationsrationale unique to direct immigration cases, theobstacle preemption argument collapses.

The Colorado Supreme Court and the federalcircuits upon which it relied likewise wrongly relied onArizona’s idiosyncratic holding regarding § 5(c) of S.B.1070, which prohibited unauthorized aliens fromseeking or obtaining employment. In finding thatprovision preempted, the Arizona Court made anexception to the general rule against “infer[ing] fromthe mere existence of…a cost-effectiveness judgment”that a legislative body “intends to bar States fromimposing stricter standards.” Williamson v. MazdaMotor of Am., Inc., 562 U.S. 323, 335 (2011). Such aninference “would treat all such federal standards as ifthey were maximum standards, eliminating thepossibility that the federal agency seeks only to setforth a minimum standard potentially supplementedthrough” state law. Id. The legislative history may haveshown that Congress, through IRCA, intended toensure that unauthorized aliens would not be punishedfor obtaining employment. See Arizona, 567 U.S. at405. But the Colorado Supreme Court could cite to nocomparable legislative history for 8 U.S.C. § 1324, orany other basis for concluding that Congressspecifically intended to foreclose supplemental statepenalties for human smuggling. As the Eighth Circuitreasoned when rejecting the argument that an anti-landlord ordinance conflicted with the INA’s harboringprovisions, there was “no showing that Congressintended to preempt States and local governments fromimposing different penalties for the violation ofdifferent state or local prohibitions simply because the

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prohibited conduct is labeled ‘harboring.’” Keller, 719F.3d at 943.

The Colorado Supreme Court and the Fourth,Ninth, and Eleventh Circuits’ reading of Arizonamakes it virtually impossible for the states to adoptcomplementary legislation addressing humansmuggling or any other third-party exploitation ofimmigrants. Indeed, their broad theory of obstaclepreemption potentially ousts the states from any fieldeven partially occupied by Congress. This Court’sconflict preemption jurisprudence—both within andoutside the immigration context—does not countenancethat result. This Court should therefore grant certiorarito ensure that lower courts do not improperly useArizona as a basis for holding all state third-partyimmigration statutes to be conflict preempted.

CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,Mark Brnovich Arizona Attorney General Dominic E. Draye Solicitor General Counsel of RecordTerry M. Crist III Assistant Attorney General2005 North Central Avenue Phoenix, Arizona 85004(602) 542-3333solicitorgeneral@azag.govCounsel for Amici Curiae

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Additional Counsel for Amici Curiae

LESLIE RUTLEDGEAttorney GeneralSTATE OF ARKANSAS323 Center StreetSuite 200Little Rock, AK 72201

CURTIS T. HILL, JR.Attorney GeneralSTATE OF INDIANA302 W Washington Street5th FloorIndianapolis, IN 46204

DEREK SCHMIDT Attorney GeneralSTATE OF KANSAS120 SW 10th Avenue2nd FloorTopeka, KS 66612

BILL SCHUETTEAttorney GeneralSTATE OF MICHIGANP.O. Box 30212Lansing, MI 48909

TIM FOXAttorney GeneralSTATE OF MONTANA215 N SandersP.O. Box 201401Helena, MT 59620-1401

DOUG PETERSONAttorney GeneralSTATE OF NEBRASKA2115 State CapitolP.O. Box 98920Lincoln, NE 68509

HECTOR H. BALDERASAttorney GeneralSTATE OF NEW MEXICO408 Galisteo StreetSanta Fe, NM 87501

MIKE HUNTERAttorney GeneralSTATE OF OKLAHOMA313 NE 21st StreetOklahoma City, OK 73105

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MICHAEL DEWINEAttorney GeneralSTATE OF OHIO30 E. Broad Street17th FloorColumbus, OH 43215

ALAN WILSONAttorney GeneralSTATE OF SOUTH CAROLINA1000 Assembly StreetRoom 519Columbia, S.C. 29201

MARTY J. JACKLEYAttorney GeneralSTATE OF SOUTH DAKOTA1302 E. Highway 14Suite 1Pierre, SD 57501-8501

HERBERT H. SLATERY IIIAttorney GeneralSTATE OF TENNESSEE320 6th Avenue NorthNashville, TN 37202-0207

SEAN D. REYESAttorney GeneralSTATE OF UTAH350 N State StreetSuite 230Salt Lake City, Utah 84114