U.S. v. ARIZONA

8 U.S.C. § 1306(a) makes it a misdemeanor, subject to a maximum fine of $1000 and a maximum of six months imprisonment, to willfully fail or refuse to apply for registration when such application is required. Similarly, 8 U.S.C. § 1304(e) requires an alien to carry a certificate of alien registration or alien registration receipt and makes a failure to comply with these requirements a misdemeanor subject to a maximum fine of $100 and imprisonment for up to 30 days.

"[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power a state may have is subordinate to supreme national law." Hines, 312 U.S. at 68. In Hines, the Supreme Court found that,

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.

312 U.S. at 66-67. Hines also stated that a state statute is preempted where it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 67. The Supreme Court determined in Hines that the purpose of the Federal Alien Registration Act was to "make a harmonious whole" and that the Alien Registration Act "provided a standard for alien registration in a single integrated and all-embracing system." Id. at 72, 74. As a result, the Hines court held that the state registration scheme at issue could not be enforced. Id. at 74.

The current federal alien registration requirements create an integrated and comprehensive system of registration. See id. (finding that the Alien Registration Act, the precursor to the current alien registration scheme, created a "single integrated and all-embracing system" of registration); 8 U.S.C. §§ 1201, 1301-06 (providing federal registration requirements and penalties). While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, De Canas, 424 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67.

Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do "inconsistently with the purpose of Congress." Hines, 312 U.S. at 66-67; see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67. As a result, the Court finds that the United States is likely to succeed on its claim that Section 3 is preempted by federal law. 4. Section 4: Amendment to A.R.S. § 13-2319

Subsections (B)-(H) pertain to the implementation and enforcement of Section 3. No provisions of Section 3 retain any effect absent Section 3's operative provision.

Section 4 of S.B. 1070 amends Arizona's human smuggling statute, A.R.S. § 13-2319. Section 4 adds, "Notwithstanding any other law, in the enforcement of this section a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law." A.R.S. § 13-2319(E). The United States requests an injunction prohibiting the enforcement of Section 4 but does not seek an injunction as to A.R.S. § 13-2319. (Pl.'s Compl. at 24 (requesting a preliminary and permanent injunction prohibiting the enforcement of Sections 1-6 of S.B. 1070).) However, the arguments asserted by the United States in support of enjoining Section 4 pertain entirely to separate provisions of A.R.S. § 13-2319 and do not challenge the change embodied in Section 4. (Pl.'s Mot. at 39-42.)

At the July 22, 2010, Hearing on the United States' Motion for a Preliminary Injunction, the United States confirmed that it does not seek to enjoin A.R.S. § 13-2319. (Hr'g Tr. 5:10-20.)

Section 4 makes a minor change to Arizona's preexisting human smuggling statute, which is not specifically challenged by the United States. Nothing about the section standing alone warrants an injunction. As a result, the Court finds that the United States is not likely to succeed on a claim that Section 4 of S.B. 1070 is preempted by federal law.

5. Section 5: A.R.S. § 13-2928(C)

Two provisions of Section 5 prohibit the act of hiring and being hired by the occupant of a motor vehicle. A.R.S. § 13-2928(A), (B). The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a virtually identical local ordinance in Redondo Beach, California forecloses a challenge to A.R.S. §§ 13-2928(A) and (B) on First Amendment grounds. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010).

Section 5 of S.B. 1070 creates A.R.S. § 13-2928(C), which 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." This violation is a class 1 misdemeanor. A.R.S. § 13-2928(F). The United States asserts that this provision "is preempted by Congress's comprehensive scheme, set forth in [IRCA] for regulating the employment of aliens." (Pl.'s Mot. at 42.) The United States argues that "IRCA reflects Congress's deliberate choice not to criminally penalize unlawfully present aliens for performing work, much less for attempting to perform it." ( Id.) Arizona responds that "Congress could have, but chose not to, expressly preempt state and local laws that impose civil or criminal sanctions upon employees." (Defs.' Resp. at 25.) Arizona contends that, in an area of traditional state sovereignty such as employment, "[p]reemption cannot be lightly inferred." ( Id.)

"States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State." De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, "because the power to regulate the employment of unauthorized aliens remains within the states' historic police powers, an assumption of non-preemption appli[ed]." Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S.Ct. 1187, 1194-95 (2009) (observing that "[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . 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" (internal quotations and citation omitted)).

A.R.S. § 13-2928(C), as amended, regulates the employment of unauthorized aliens in Arizona, and, thus, a presumption against preemption applies in the context of this provision. However, while deliberate federal inaction does not always imply preemption, "[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn, not from federal inaction alone but from inaction joined with action." P.R. Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988). The Supreme Court explained in Puerto Rico Department of Consumer Affairs that with some "extant action" by Congress, there can arise "an inference of pre-emption in an unregulated segment of an otherwise regulated field." Id. at 504; see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000) (concluding that neither an express pre-emption provision nor a saving clause "bar[s] the ordinary working of conflict pre-emption principles").

IRCA provides penalties for employers who knowingly hire or continue to employ an alien without work authorization. 8 U.S.C. § 1324a(a)(1)-(2), (e)(4). IRCA also prohibits employers from recruiting or referring for a fee unauthorized workers. Id. § 1324a(a)(1). IRCA makes it unlawful to use contractors or subcontractors to hire unauthorized alien workers. Id. § 1324a(a)(4). Under IRCA, employers are required to comply with an "employment verification system" set up by the statute. Id. § 1324a(b). IRCA also instituted a compliance scheme and a series of escalating sanctions for violations, entailing increasing monetary fines for each subsequent violation and the possibility of injunctive sanctions. Id. § 1324a(e)(4); 8 C.F.R. § 274a.10 (outlining civil and criminal penalties for violations of 8 U.S.C. § 1324a(a)(1)(A) or (a)(2)).

IIRIRA created three pilot programs for employee verification; of those three, only the program commonly known as E-Verify is still in existence. See Chamber of Commerce of the United States v. Edmondson, 594 F.3d 742, 752 (10th Cir. 2010).

While it is readily apparent that Congress's central focus in IRCA was employer sanctions, there are also targeted sanctions directed at employees. See 8 U.S.C. § 1324c (making it a civil violation to make or use a false document or to use a document belonging to another person, in the context of unlawful employment of an unauthorized alien). As the Ninth Circuit Court of Appeals observed, "While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals." Nat'l Ctr. for Immigrants' Rights, Inc. v. INS, 913 F.2d 1350, 1368 (9th Cir. 1990) (examining IRCA's legislative history), rev'd on other grounds, 502 U.S. 183 (1991). The court in National Center for Immigrants' Rights found that the determination to reduce or deter employment of unauthorized workers by sanctioning employers, rather than employees, was "a congressional policy choice clearly elaborated in IRCA." Id. at 1370.

IRCA also requires that an individual seeking employment "attest, under penalty of perjury . . . that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized . . . to be hired, recruited, or referred for such employment." 8 U.S.C. § 1324a(b)(2). This attestation is to be made on a form "designated or established by the Attorney General," and IRCA states that the form "and any information contained in or appended to such form[] may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18" of the federal criminal code. Id. § 1324a(b)(5). The provisions of Title 18 referenced in § 1324a(b)(5) of Title 8 make it a federal crime to, in any matter within the jurisdiction of the federal government: 18 U.S.C. § 1001(a): (1) falsify, conceal, or cover up any material fact; (2) knowingly make or use a materially false, fictitious, or fraudulent statement; or (3) make or use any false writing or document. 18 U.S.C. § 1028(a): knowingly make, use, or transfer a false or stolen identification document or identification document belonging to another person or any implement or feature for use in creating a false identification document. 18 U.S.C. § 1546: (a) forge or falsify an immigration document; or (b) use a false identification document, a document not properly issued to the user, or a false attestation. 18 U.S.C. § 1621: commit perjury by knowingly making a false statement after taking an oath to tell the truth during a proceeding or on any document signed under penalty of perjury.

Accordingly, the attestation forms described in 8 U.S.C. § 1324a(b)(2) may only be used for these limited purposes.

The provision limiting the use of attestation forms and the civil penalties outlined for document fraud in Title 8 and the robust sanctions for employers who hire, continue to employ, or refer unauthorized workers convince the Court that Congress has comprehensively regulated in the field of employment of unauthorized aliens. These "extant actions," in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above. See P.R. Dep't of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona's new crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted.

6. Section 5: A.R.S. § 13-2929

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien's unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States. Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.'s Mot. at 44-46.)

The United States also asserts in a footnote that A.R.S. § 13-2929 directly conflicts with 8 U.S.C. § 1324(a)(1)(C), a section of the federal alien smuggling statute, which provides an exception for certain religious groups for contact with volunteer ministers and missionaries. ( Id. at 46 n. 40.) While the federal statute includes a narrow exception for religious organizations engaged in certain conduct not specifically exempted under A.R.S. § 13-2929, the new Arizona statute is narrower than its federal counterpart because it requires that the person already be in violation of a criminal offense. In light of the intentional narrowing of the Arizona enactment, the Court would have to imagine a set of remote circumstances in order to find a potential conflict between the federal and the state law. In addition, Arizona asserts that A.R.S. § 13-2929 targets criminals who engage unlawfully present aliens to be involved in a criminal enterprise. On a facial challenge, "the challenger must establish that no set of circumstances exists under which the Act would be valid." Salerno, 481 U.S. at 745. In deciding a facial challenge, courts "must be careful not to go beyond the statute's facial requirements and speculate about `hypothetical' or `imaginary' cases." Wash. State Grange, 552 U.S. at 449-50 (quoting Raines, 362 U.S. at 22). A.R.S. § 13-2929 is narrower than the federal law, and the Court will not speculate about hypothetical cases in order to find a conflict between the two.

a. Regulation of Immigration

The "[p]ower to regulate immigration is unquestionably exclusively a federal power." De Canas, 424 U.S. at 354. The regulation of immigration is "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355. "[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration." Id. The United States argues that "to the extent Section 5 is not a restriction on interstate movement, it is necessarily a restriction on unlawful entry into the United States." (Pl.'s Mot. at 45.)

A.R.S. § 13-2929 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States. See De Canas, 424 U.S. at 355. Therefore, the Court concludes that the United States is not likely to succeed on its claim that A.R.S. § 13-2929 is an impermissible regulation of immigration.

b. The Dormant Commerce Clause

The Commerce Clause provides Congress with the power to "regulate Commerce . . . among the several States." U.S. Const. art. I, § 8, cl. 1, 3. The Supreme Court has interpreted the Commerce Clause "to have a `negative' aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce." Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98 (1994). This doctrine is often referred to as the "dormant Commerce Clause." United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). "The dormant Commerce Clause is implicated if state laws regulate an activity that `has a substantial effect' on interstate commerce such that Congress could regulate the activity.'" Nat'l Ass'n of Optometrists Opticians Lenscrafters, Inc. v. Brown, 567 F.3d 521, 525 (9th Cir. 2009) (quoting Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002)).

If a state statute implicates the dormant Commerce Clause, the Court must then determine "whether [the statute] discriminates on its face against interstate commerce." United Haulers, 550 U.S. at 338. "In this context, discrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." Id. (internal quotation and citation omitted). Nondiscriminatory statutes directed at legitimate local concerns do not violate the dormant Commerce Clause "`unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.'" Id. at 346 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

The United States argues that A.R.S. § 13-2929 "offends the [d]ormant Commerce Clause by restricting the interstate movement of aliens." (Pl.'s Mot. at 45.) A.R.S. § 13-2929 does not restrict or limit which aliens can enter Arizona. While the regulation of immigration does have an impact on interstate commerce, the United States has not provided a satisfactory explanation of how A.R.S. § 13-2929, which creates parallel state statutory provisions for conduct already prohibited by federal law, has a substantial effect on interstate commerce.

The United States argues that the dormant Commerce Clause "forbids certain state regulations attempting to discourage or otherwise restrict the movement of people between states." (Pl.'s Mot. at 45 (citing Edwards v. California, 314 U.S. 160, 172-73 (1941)).) However, the United States fails to cite any authority supporting the proposition that unlawfully present aliens must be permitted to travel from state to state. In Edwards, the Supreme Court struck down a California statute prohibiting the transportation of indigent people into California. Edwards, 314 U.S. at 173. Unlike the California statute at issue in Edwards, A.R.S. § 13-2929 prohibits the transportation of people who are unlawfully present in the United States. Moreover, A.R.S. § 13-2929 does not attempt to prohibit entry into Arizona, but rather criminalizes specific conduct already prohibited by federal law.

Even assuming that A.R.S. § 13-2929 implicates the Commerce Clause, the statutory provision does not discriminate between in-state and out-of-state economic interests. See United Haulers, 550 U.S. at 338. A.R.S. § 13-2929 governs conduct occurring in Arizona and does not differentiate between in-state and out-of-state economic interests or burden out-of-state interests in a way that benefits in-state interests. Further, Arizona's nondiscriminatory statute is directed at legitimate local concerns related to public safety. Therefore, A.R.S. § 13-2929 does not violate the dormant Commerce Clause "`unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.'" Id. at 346 (quoting Pike, 397 U.S. at 142). Here, any incidental burden on interstate commerce is minimal in comparison with the putative local benefits. The Court finds that the United States is not likely to succeed on its claim that Section 5's addition of A.R.S. § 13-2929 violates the dormant Commerce Clause or is an impermissible attempt to regulate immigration. 7. Section 6: Amendment to A.R.S. § 13-3883(A)

The United States asserts that Section 10 of S.B. 1070 "is preempted insofar as it is based on the state law violations identified in Sections 4 and 5, which are preempted for the reasons discussed herein." (Pl.'s Mot. at 12 n. 8.) As discussed above, the Court finds that Sections 4 and 5 are not likely to be preempted by federal law. Therefore, the United States is also not likely to succeed on its claim that Section 10 is preempted.

In Section 6 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-3883 to provide that an officer may arrest a person without a warrant if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States." A.R.S. § 13-3883(A)(5). In Arizona, a "public offense" is

conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.

A.R.S. § 13-105(26). Because A.R.S. § 13-3883 already provides for the warrantless arrest of a person who commits a felony, misdemeanor, petty offense, or one of certain criminal violations in connection with a traffic accident, the effect of Section 6 on warrantless arrest authority is not entirely clear. Indeed, the Arizona officer training materials state that the revision to A.R.S. § 13-3883 "does not appear to change Arizona law." Implementation of the 2010 Ariz. Immigration Laws — Statutory Provisions for Peace Officers 11 (June 2010), http://agency.azpost.gov/supporting_docs/ArizonaImmigrationPGWest Page 1005StatutesOutline.pdf. Both the United States, in its Motion, and Arizona, at the Hearing, suggested that the revision 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. (Pl's Mot. at 32-33; Hr'g Tr. 46-48.) What is clear is that the statutory revision targets only aliens-legal and illegal-because only aliens are removable. See Hughes v. Ashcroft, 255 F.3d 752, 756 (9th Cir. 2001) (citing 8 U.S.C. § 1227).

In its brief, Arizona originally asserted that the new provision in A.R.S. § 13-3883 was "based upon a memorandum the DOJ's Office of Legal Counsel prepared in which it concluded that federal law does not `preclude[] state police from arresting aliens on the basis of civil deportability.'" (Defs.' Resp. at 14 (quoting id., Ex. 4, Mem. from Jay S. Bybee, Assistant Att'y Gen., Re: Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations, at 13).) Although neither party asserted it at the Hearing, the Arizona Legislature's intent may have been to provide for the warrantless arrest of an alien who was previously convicted of a crime in Arizona but never referred to DHS for potential removal proceedings. This alternate interpretation of the revision to A.R.S. § 13-3883 would be in keeping with a goal of conferring on state officers the authority to arrest aliens on the basis of civil deportability.

Under the interpretation suggested by both parties that the revision to A.R.S. § 13-3883 is directed at the arrest of aliens who committed a crime in another state, the statute first requires an officer to determine whether an alien's out-of-state crime would have been a crime if it had been committed in Arizona, a determination that requires knowledge of out-of-state statutes and their relationship with Arizona's statutes. See State v. Roque, 141 P.3d 368, 391 (Ariz. 2006) (concluding that the California and Arizona robbery statutes are not coterminous and, under certain facts, a person may be convicted of attempted robbery in California but not Arizona). Under any interpretation of the revision to A.R.S. § 13-3883, it requires an officer to determine whether an alien's public offense makes the alien removable from the United States, a task of considerable complexity that falls under the exclusive authority of the federal government. Justice Alito has commented that

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. "Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies." M. Garcia L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an "aggravated felony" or a "crime involving moral turpitude [(CIMT)]" is not an easy task.

Padilla v. Kentucky, 130 S.Ct. 1473, 1488 (2010) (Alito, J., concurring) (some citations omitted). Within the complicated scheme of determining removability, some federal officials are, under certain circumstances, authorized to change the immigration consequences of the commission of a public offense and cancel or suspend the removal of an alien. See, e.g., 8 U.S.C. §§ 1229b(a), 1253(a)(3). Ultimately, immigration court judges and federal appeals court judges determine whether an alien's offense makes an alien removable. See id. § 1182(a)(2) (describing crimes that qualify as grounds for inadmissibility); id. § 1227(a)(2) (describing crimes that qualify as grounds for deportation).

In its Motion, the United States provided evidence that Arizona police officers have no familiarity with assessing whether a public offense would make an alien removable from the United States. (Pl.'s Mot., Ex. 8, Decl. of Tony Estrada, Sheriff of Santa Cruz Cnty. ¶¶ 8-9; Ex. 9, Decl. of Roberto Villaseñor, Chief of Police, Tucson Police Dep't ¶ 6.) In its Response, Arizona asserted that, under the new A.R.S. § 11-1051, Arizona officers can contact DHS to determine the immigration status of aliens. (Defs.' Resp. at 19.) But the revision to A.R.S. § 13-3883 does not state that an officer must contact DHS to assess removability; the revision simply extends the authority for an officer to make a warrantless arrest.

Even if an officer does contact LESC for the immigration status of an alien, it is not clear that LESC will have any information regarding whether a particular public offense that an alien may have committed will make the alien removable from the United States. "Congress established the LESC to provide alien status determination support to federal, state, and local law enforcement on a 24-hour-a-day, seven-days-a-week basis. The enabling legislation is codified in 8 U.S.C. §§ 1226(d)(1)(A) 1252 Note." (Palmatier Decl. ¶ 5.) The statute only directs LESC to determine the immigration status of an arrested individual. 8 U.S.C. § 1226(d)(1)(A). For its part, Arizona did not provide any evidence that LESC would be able to advise an officer whether a particular public offense makes an alien removable.

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a "distinct, unusual and extraordinary" burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66. The Court thus finds that the United States is likely to succeed on the merits in showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preempted by federal law.

C. Likelihood of Irreparable Harm

The Supreme Court has repeatedly recognized the "basic doctrine of equity jurisprudence that courts of equity should not act . . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44 (1971). Thus the United States also has the burden to establish that, absent a preliminary injunction, there is a likelihood-not just a possibility-that it will suffer irreparable harm. Winter, 129 S.Ct. at 374-75.

The Ninth Circuit Court of Appeals has stated "`that an alleged constitutional infringement will often alone constitute irreparable harm.'" Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may properly enjoin "state officers `who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution'" (quoting Ex parte Young, 209 U.S. 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of a state law that is preempted on its face); Edmondson, 594 F.3d at 771 (concluding that plaintiff is likely to suffer irreparable injury if enforcement of state law that is likely preempted by IRCA and IIRIRA is not enjoined); Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a likelihood of irreparable injury if enforcement of a city ordinance that is preempted by the INA is not enjoined).

If enforcement of the portions of S.B. 1070 for which the Court finds a likelihood of preemption is not enjoined, the United States is likely to suffer irreparable harm. This is so because the federal government's ability to enforce its policies and achieve its objectives will be undermined by the state's enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 379-80 n. 14 (2000). For this injury, the United States will have no remedy at law. The Court thus finds a likelihood of irreparable harm to the interests of the United States that warrants preliminary injunctive relief. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413, 427 (2003) (enjoining permanently the enforcement of a state statute that is preempted by federal law because it interferes with the federal government's ability to enforce its policies); Crosby, 530 U.S. at 372, 379-80 (same).

D. The Balance of Equities and the Public Interest

The United States also has the burden to show that the balance of equities tips in its favor and that a preliminary injunction is in the public interest. Winter, 129 S.Ct. at 374. "A preliminary injunction is an extraordinary remedy never awarded as of right." Id. at 376 (citing Munaf v. Green, 128 S.Ct. 2207, 2218-19 (2008)). "In each case, courts `must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief,'" paying particular attention to the public consequences. Id. at 376-77 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)).

The Ninth Circuit Court of Appeals has concluded that allowing a state to enforce a state law in violation of the Supremacy Clause is neither equitable nor in the public interest. Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009); Am. Trucking Ass'ns, Inc. v. City of L.A., 559 F.3d 1046, 1059-60 (9th Cir. 2009). If Arizona were to enforce the portions of S.B. 1070 for which the Court has found a likelihood of preemption, such enforcement would likely burden legal resident aliens and interfere with federal policy. A preliminary injunction would allow the federal government to continue to pursue federal priorities, which is inherently in the public interest, until a final judgment is reached in this case. See Am. Trucking, 559 F.3d at 1059-60.

The Court by no means disregards Arizona's interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona's interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. See Edmondson, 594 F.3d at 771. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced. See Cal. Pharmacists, 563 F.3d at 852-53; Am. Trucking, 559 F.3d at 1059-60.

IT IS THEREFORE ORDERED granting in part and denying in part the United States' Motion for Preliminary Injunction (Doc. 27). IT IS FURTHER ORDERED denying the United States' Motion for Preliminary Injunction as to the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 1, Section 2(A) and (C)-(L), Section 4, the portion of Section 5 creating A.R.S. § 13-2929, the portion of Section 5 creating A.R.S. § 13-2928(A) and (B), and Sections 7-13.

IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 2(B) creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).