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Nos.

11-14532-CC and 11-14674-CC _______________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________________

UNITED STATES,
Appellant and Cross-Appellee,

v. STATE OF ALABAMA, ET AL.,


Appellees and Cross-Appellants

On Cross-Appeals from the United States District Court for the Northern District of Alabama Case No. 2:11-cv-2746-SLB _________________________________________________________ ALABAMA AND GOVERNOR BENTLEYS PETITION FOR REHEARING EN BANC _________________________________________________________ LUTHER STRANGE Alabama Attorney General
John C. Neiman, Jr. Alabama Solicitor General Andrew L. Brasher Alabama Deputy Solicitor General STATE OF ALABAMA OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, AL 36130-0152 Tel: (334) 242-7300 jneiman@ago.state.al.us Counsel for Alabama and Governor Bentley

September 10, 2012

United States v. Alabama Nos. 11-14532 & 11-14674 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The following is a list of all judges, attorneys, persons, associations of persons, firms, partnerships, corporations, and other legal entities that have an interest in the outcome of this case, including subsidiaries, conglomerates, affiliates and parent corporations, any publicly held company that owns 10 percent or more of a partys stock, and other identifiable legal entities related to a party:

AALDEF Abate, Michael P. ACHR Alabama Alabama Coalition Against Domestic Violence Alabama Education Association Alabama Immigration Lawyers Association Alabama Legislators Alabama NOW Alabama Unity Legal Defense Fund Albin, Ramona C. American Center for Law and Justice American Freedom Law Center

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United States v. Alabama Nos. 11-14532 & 11-14674 American Immigration Lawyers Association American Unity Legal Defense Fund Anti-Defamation League Argentina Arizona Baca, Congressman Joe Becerra, Congressman Xavier Bentley, Robert J. Birmingham Peace Project Blackburn, Sharon Lovelace Blacksher, James U. Bolivia Bondi, Pamela, Attorney General of Florida Brasher, Andrew Brazil Brinkmann, Beth S. Bruning, Jon, Attorney General of Nebraska Bursch, John J. Cardoza, Congressman Dennis Central Alabama Fair Housing Center Chilakamarri, Varu

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United States v. Alabama Nos. 11-14532 & 11-14674 Chile Chu, Congresswoman Judy Clark, Christopher R. Clarke, Congresswoman Yvette Colfax, Reed N. Colombia Colyer, Jennifer L. Conyers, Jr., Congressman John Costa Rica Costa, Congressman Jim Crook, Jamie L. Dane, Stephen M. Davis, James W. De Leeuw, Michael B. Deutch, Congressman Ted Dewey & LeBoeuf, LLP Dominican American National Roundtable Dominican Republic Ecuador El Salvador Ellison, Congressman Keith

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United States v. Alabama Nos. 11-14532 & 11-14674 Equality Alabama Escalona, Elizabeth Prim Eshoo, Congresswoman Anna Fair Housing Center of Northern Alabama Fairbanks, Misty S. Federation of Southern Cooperatives/Land Assistance Fund Fleming, Margaret L. Florida Fried, Frank, Harris, Shriver & Jacobson, LLP Gardner, J. Cecil Georgia Gespass, David Gonzalez, Congressman Charles Gorniak, Carla Green, Congressman Al Grijalva, Congressman Ral Guatemala Hahn, Congresswoman Janice Hinojosa, Congressman Rubn Hispanic Association of Colleges and Universities (HACU) Hispanic Federation

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United States v. Alabama Nos. 11-14532 & 11-14674 Honda, Congressman Mike Honduras Horne, Thomas, Attorney General of Arizona Hoyer, Congressman Steny Hutchison, Richard Peter Idaho Immigration Equality Jackson, Jr., Congressman Jesse L. Kansas Krishna, Praveen Landmark Legal Foundation Lawyers Committee for Civil Rights Under Law Lofgren, Congressman Zoe Long & McDonald, LLC Luisi, Daniel M. Maloney, Congresswoman Carolyn Mandelstam, Michael Markowitz, Erica McDermott, Congressman Jim Meeks, Congressman Gregory Mersino, Erin Elizabeth

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United States v. Alabama Nos. 11-14532 & 11-14674 Michigan Multicultural Education, Training & Advocacy, Inc. (META, Inc.) Montgomery Improvement Association Moore, Congresswoman Gwen Moran, Congressman Jim Muise, Robert Joseph NAACP Alabama Conference Napolitano, Congresswoman Grace National Asian-Pacific Bar Association National Association of Criminal Defense Lawyers National Association of Latino Elected and Appointed Officials National Council of La Raza National Education Association National Employment Law Project National Fair Housing Alliance, Inc. National Guestworker Alliance National Immigration Law Project of the National Lawyers Guild National Lawyers Guild Nebraska Neiman, Jr., John C. New Orleans Workers Center for Racial Justice

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United States v. Alabama Nos. 11-14532 & 11-14674 New York City Bar Association Nicaragua Norton, Congresswoman Eleanor Holmes Oklahoma Olens, Samuel, Attorney General of Georgia Orrick, III., William H. Paraguay Park, Jr., John J. Parker, Jr., William G. Payne, Joshua Kerry Perez-Vargas, Miguel A. Peru Pierluisi, Congressman Pedro Polis, Congressman Jared Pruitt, E. Scott, Attorney General of Oklahoma Quigley, Congressman Mike Rangel, Congressman Charles Reeves, II., C. Lee Relman, Dane & Colfax PLLC Reyes, Congressman Silvestre Rice, Roger L.

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United States v. Alabama Nos. 11-14532 & 11-14674 Roybal-Allard, Congresswoman Lucille Sablan, Congressman Gregorio Sandberg, Jeffrey E. Schakowsky, Congresswoman Janice Schmidt, Derek, Attorney General of Kansas Schoen, David I. Schuett, Bill, Attorney General of Michigan Schwartz, Dale M. Serrano, Congressman Jos Sewell, Congresswoman Terri Shattuck, R. Cooper Shultz, Benjamin M. Sikh American Legal Defense and Education Fund Sinclair, Winfield J. Sires, Congressman Albio Soares, Karen M Society of American Law Teachers Solano, Henry L. South Carolina Southern Christian Leadership Conference Southern Coalition for Social Justice

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United States v. Alabama Nos. 11-14532 & 11-14674 Stern, Mark B. Still, Edward Strange, Luther Strickland, Brockington, Lewis, LLP Tenny, Daniel Thomas More Law Center United Mexican States United States Hispanic Leadership Institute United States of America Uruguay Vance, Joyce White Velzquez, Congresswoman Nydia Von Sternberg, Mark R. Wasden, Lawrence, Attorney General of Idaho Weinberg, Jacobs & Tolani, LLP West, Tony White, Edward Lawrence Wilkenfeld, Joshua Williams, Stephen W. Wilson, Alan, Attorney General of South Carolina Zall, Barnaby White

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STATEMENT OF COUNSEL I respectfully believe, based on a reasoned and studied professional judgment, that this appeal involves two questions of exceptional importance: (1) Do the federal immigration statutes impliedly preempt state laws, like ALA. CODE 31-13-13 and GA. CODE ANN. 16-11-200 to 202, that make it a crime for a States lawful residents to harbor, transport, or conceal persons who are violating those federal immigration statutes, or to induce those persons to come into the State? (2) Do the federal immigration statutes impliedly preempt state laws, like ALA. CODE 31-13-26, that alter state common law to make contracts unenforceable when state residents knowingly enter into them with persons who are violating federal immigration statutes? I also respectfully believe, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of the Supreme Court and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this Court: DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 993 (1976); Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).

s/ John C. Neiman, Jr. John C. Neiman, Jr. Alabama Solicitor General Attorney of Record for Alabama and Governor Bentley

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TABLE OF CONTENTS Certificate of Interested Persons and Corporate Disclosure Statement ................. C-1 Statement of Counsel ..................................................................................................i Table of Citations ......................................................................................................iv Preliminary Statement ................................................................................................ 1 Issues for Rehearing in Nos. 11-14532 and 11-14674 .............................................. 2 Statement of the Course of Proceedings and Disposition of the Case....................... 3 Argument and Authorities.......................................................................................... 6 I. II. Rehearing is warranted on harboring. ................................................... 7 Rehearing also is warranted on the contracts provision. ..................... 12

Conclusion ............................................................................................................... 15 Certificate of Service ............................................................................................... 17

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TABLE OF CITATIONS Cases Arizona v. United States, 132 S. Ct. 2492 (2012)............................................................................ 1, 8, 9 Ayotte v. Planned Parenthood, 546 U.S. 320, 126 S. Ct. 961 (2006) .............................................................11 Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011)............................................................................... i, 14 DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 993 (1976) ............................................................................................. i, 10, 13, 14 Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980) .........................................................................15 Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477 (1956) ....................................8 Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382 (1982) ............................................................15 United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) ...............................................................9 United States v. Arizona, Order (Doc. 757), No. 2:10-cv-01061-SRB (D. Ariz. Sept. 5, 2012) ...........10 United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141 (1922) ...............................................................10 Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802, rehg en banc granted, 2012 WL 3085535 (5th Cir. July 31, 2012) ..............................................7, 13 Statutes 21 OKLA. STAT. ANN. 446 ........................................................................................7

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21 U.S.C. 841 .........................................................................................................11 8 U.S.C. 1324 ................................................................................................ 6, 9, 11 8 U.S.C. 1373 .....................................................................................................4, 13 ALA. CODE 31-13-13 (HB56 Section 13) ............................................................................. i, 3, 4, 11 ALA. CODE 31-13-26 (HB56 Section 27) ................................................................................. i, 4, 13 ARIZ. STAT. ANN. 13-2929 .......................................................................................7 GA. CODE ANN. 16-11-200 to -202 .......................................................................... i IND. CODE ANN. 35-44.1-5-4....................................................................................7 MO. STAT. ANN. 577.675 .........................................................................................7 S.C. CODE ANN. 16-9-460 ........................................................................................7 UTAH CODE ANN. 76-10-2901 .................................................................................7

PRELIMINARY STATEMENT Like the companion cases in Nos. 11-13044 & 11-14535, this appeal raises important questions the en banc Court should answer. In recent years, States throughout the country have tried to address, through laws like Arizonas SB1070, Georgias HB87, and Alabamas HB56, the problems they face because of illegal immigration. The United States and private plaintiffs have responded by suing several of these States in federal court, arguing that federal immigration statutes preempted these laws. Recognizing the importance of these issues, the Supreme Court granted certiorari on them the first time it had the opportunity to do so. The resulting opinion in Arizona v. United States, 132 S. Ct. 2492 (2012), made clear that some of the provisions in these statutes are facially preempted, while others are not. Yet the decision did not address, either expressly or implicitly, questions surrounding other critical provisions found in these laws. A panel of this Court has now struck down several of these provisions. In this case and No. 11-13044, the panel invalidated provisions of Alabama and Georgia law that make it a state-law crime to harbor persons who are present in the country in violation of the federal immigration laws. In this case, the same panel also invalidated a separate provision, unique to Alabama, that renders contracts unenforceable when lawful residents knowingly enter into them with persons who are not lawfully present. In a third case, No. 11-14535, on which Alabama officials

are simultaneously seeking rehearing, the same panel also erroneously struck down, on equal-protection grounds, a provision designed to provide Alabama with aggregate data on the number of unlawfully present persons in its public schools. The panels conclusions on these issues are important and wrong. They were not compelled by Arizona, and they were contrary to other precedents. They put the law of this Circuit at odds with the law in other jurisdictions, and they expand the doctrine of implied preemption in ways that will be detrimental in other areas of the law. For the same reasons the Supreme Court granted certiorari in Arizona and for the same reasons the Fifth Circuit recently granted en banc rehearing in another case addressing immigration-preemption issuesthese questions deserve the panels reconsideration or the full Courts review. ISSUES FOR REHEARING IN NOS. 11-14532 AND 11-14674 I. Harboring. Congress makes it a federal crime to harbor, conceal, or

transport persons who are violating federal immigration laws, and Congress authorizes state police to arrest people who violate this federal prohibition. In so doing, has Congress impliedly preempted state legislatures from complementing this enforcement effort by passing laws making it a state-law crime for a States citizens to harbor, conceal, or transport these same persons, or to induce them to come into the State?

II.

Contracts.

No federal statute expressly requires state courts to

enforce any and all contracts that a States residents knowingly enter into with persons who are violating federal immigration law. Has Congress nonetheless impliedly preempted state courts from declining to enforce those contracts? STATEMENT OF THE COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE The panel opinion addresses several provisions of Alabama Act No. 2011535, also known as House Bill 56 or HB56. Before the Act took effect, the United States filed this lawsuit against Alabama and its Governor, seeking to enjoin a number of the Acts sections on preemption grounds. The panels decision upholds some of these sections and strikes down others. Its rulings in several of those respects were dictated by the Supreme Courts decision in Arizona and do not warrant rehearing. See Exh. A at 14-21, 35-37. This statement focuses on the two provisionsone dealing with harboring, the other with contractson which the panels preemption ruling was sufficiently important to justify rehearing. I. The harboring provision The Acts harboring provision, Section 13(a), is codified at 31-13-13(a) of the Alabama Code. It makes it a state-law crime for persons to knowingly harbor, conceal, or transport aliens who are unlawfully present in the United States. A related subsection specifies that [i]n the enforcement of this section, a state law enforcement officer shall not attempt to independently make a final determination 3

of whether an alien is lawfully present in the United States. ALA. CODE 31-1313(g). Instead, officers shall determine an aliens status pursuant to a federal statute that requires the federal government to respond to immigration-status inquiries from state law-enforcement officials. Id. (citing 8 U.S.C. 1373(c)). The harboring provisions full language appears in an appendix to this petition. II. The contracts provision Section 27 of the Act, codified at 31-13-26 of the Alabama Code, alters Alabama common law to make certain contracts unenforceable. This section provides that with specified exceptions, [n]o court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into. ALA. CODE 31-13-26(a). Like the harboring provision, the contracts provision says that a courts determination of whether the contracting party was lawfully present shall be made by the federal government, pursuant to 8 U.S.C. 1373(c). Id. 31-13-26(d). The contracts provisions full text appears in the statutory appendix. III. The district courts and panels decisions This appeal and cross-appeal resulted from the District Courts ruling on the United States motion for a preliminary injunction. The District Court enjoined the 4

harboring provision but upheld the contracts provision. See Doc 93 Pg 70-86, 100-09. The United States appealed the contracts ruling, and Alabama and the Governor cross-appealed on harboring. The United States asked a motions panel from this Court to enjoin the contracts provision during the appeal, but that panel denied that request. See Exh. B. Before briefing was completed in this Court, the Supreme Court granted certiorari in Arizona. Because the Supreme Court would address several Arizona provisions that had parallels at issue in this case, the panel announced at oral argument that it would not issue its opinion before the Supreme Court did. On the next day, however, the panel modified the motions panels prior order and enjoined the contracts provision pending the panels final resolution of the case. See Exh. C. The panel issued its final opinion shortly after the Supreme Court decided Arizona. See Exh. A. Although the panel upheld several of the challenged provisions, it held that both the harboring provision and the contracts provision were preempted. On harboring, the panel relied heavily on its opinion in a companion case decided the same day, No. 11-13044, which struck down a similar Georgia law. In both the Alabama and Georgia decisions, the panel expressly held that the state laws were preempted because they conflicted with federal law. But the panel also used language at least suggesting that Congress has completely occupied this field

and thus excluded all state regulation in this area. A federal statute, 8 U.S.C. 1324(a)(1)(A), also makes it a crime to harbor, conceal, or transport unlawfully present aliens. That statute expressly allows state officers to arrest people who violate it. [T]he inference from these enactments, the panel concluded in both the Alabama and Georgia cases, is that the role of the states is limited to arrest for violations of federal law. Exh. A at 22. The panel said that state-law provisions of this variety conflict with the discretion granted to the President to decide how to prosecute federal harboring violations. See id. at 24-25. Meanwhile, in a break from the result reached by both the District Court and the prior motions panel, the panel found the contracts provision problematic because it crafted a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state. Id. at 41. The court held that provisions with that effect are preempted by the inherent power of the federal government to regulate immigration and by federal statutes giving the Executive Branch the power to determine who must be removed and who may permissibly remain. Id. at 41, 44. ARGUMENT AND AUTHORITIES Immigration preemption is one of the most important issues currently before the courts. The Supreme Court recognized as much when it granted certiorari in Arizona, before any circuit split had arisen and while the case was still in an 6

interlocutory, preliminary-injunction posture. The Fifth Circuit recognized as much, too, when it granted en banc rehearing to address immigration-preemption issues the Supreme Court left open in Arizona. See Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802, rehg en banc granted, 2012 WL 3085535 (5th Cir. July 31, 2012). This Court should follow that same path here. The panels rulings on harboring and contracts go far beyond the principles set forth in Arizona. They reflect theories of preemption that will have untoward effects in many other contexts. Those theories should not become the law in this Circuit in any event, but in the very least they should not become the law without reconsideration by the panel or endorsement by the en banc Court. I. Rehearing is warranted on harboring. In striking down the harboring provision, the panel addressed a question of nationwide importance. Serious human-trafficking problems arise when a States citizens harbor and transport persons who are not lawfully present. It thus should come as no surprise that at least six other States have laws similar to the Alabama and Georgia statutes prohibiting their citizens from engaging in those activities. See ARIZ. STAT. ANN. 13-2929; IND. CODE ANN. 35-44.1-5-4; MO. STAT. ANN. 577.675; 21 OKLA. STAT. ANN. 446; UTAH CODE ANN. 76-10-2901; S.C. CODE ANN. 16-9-460. The panel appears to be the first Court of Appeals to declare

provisions of this sort preempted. That consideration is enough, by itself, to warrant further review. In any event, the panels decision was wrong. Neither of the panels preemption theories supports its end conclusion that States lack the power to address these problems. 1. As an initial matter, the panel effected a significant change in this Courts jurisprudence when, without using the words field preempted, it grounded its ruling in field-preemption precedents. In the portion of Arizona the panel cited, the Supreme Court invalidated, under the field-preemption doctrine, an Arizona provision making it a crime for unlawfully present persons to violate federal registration laws. See Exh. A at 23 (citing Arizona, 132 S. Ct. at 2501). And in the portion of Pennsylvania v. Nelson the panel cited, the Supreme Court held that a Pennsylvania sedition statute was field-preempted as well. See id. at 24 (citing Nelson, 350 U.S. 497, 499, 76 S. Ct. 477, 479 (1956)). Yet field preemption is not a viable theory when it comes to the harboring provision. As the Court explained in Arizona, [f]ield preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. 132 S. Ct. at 2502 (emphasis added). Whereas the federal registration and sedition statutes considered in Arizona and Nelson reflect a decision to preempt those fields in that way, the federal harboring prohibition

reflects precisely the opposite choice. As the panel conceded, the language of the federal harboring prohibition shows that Congress affirmatively chose to allow state officials to arrest persons for violating the federal prohibition. Exh. A at 22 (citing 8 U.S.C. 1324(c)). Given that Congress affirmatively and expressly wanted individual state officers to arrest people they believed to be harboring unlawfully present aliens, it is impossible to say Congress foreclosed any state regulation in the area. Arizona, 132 S. Ct. at 2502 (emphasis added). And it is implausible to suggest that Congress simultaneously invited on-the-spot regulation by individual state police officers, yet implicitly intended to exclude regulation through the considered judgments of state legislatures. Nevertheless, at least one court already has read the panels citation of those field-preemption precedents as holding that laws in this area are field-preempted; and that result is reason by itself to grant rehearing. The Arizona district court originally rejected the United States preemption argument against the Arizona harboring provision, and the United States did not even appeal. See United States v. Arizona, 703 F. Supp. 2d 980, 1002-04 (D. Ariz. 2010). Yet after allowing that provision to operate for more than two years, the Arizona district court enjoined it just last week. The cited authority for doing so was the panel decisions in these cases, which the Arizona court claimed held that the Alabama and Georgia

provisions were field preempted. United States v. Arizona, Order at 8 (Doc. 757), No. 2:10-cv-01061-SRB (D. Ariz. Sept. 5, 2012). 2. The panel compounded its error by holding that these state laws are also conflict-preempted. It has long been the law that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142 (1922). In light of that principle, state-law prohibitions conflict with and are preempted by their federal-law parallels only if simultaneous compliance is impossible or the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. DeCanas, 424 U.S. at 363, 96 S. Ct. at 940 (internal quotation marks omitted). Normally, Congresss decision to enact its own law prohibiting an activity creates the precise opposite of conflict-preemption. In this situation, the state and federal laws have the same purposes and objectives. Id. The panels contrary analysis cannot be squared with the way federalism works. The panel reasoned that state harboring provisions are preempted because the federal harboring statute establishes a comprehensive framework for prohibiting harboring. Exh. A at 22. The panel also drew the preemptive inference from the federal statutes decision to confin[e] the prosecution of federal harboring crimes to federal court, by the appropriate United States Attorney.

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Id. at 24-25. But both of those things are just as true of nearly every federal statute that defines crimes. The federal drug-distribution statutes, for example, are comprehensive. See 21 U.S.C. 841. Only a U.S. Attorney can prosecute the crimes they create, and only in federal court. Yet no one thinks those laws preempt parallel state laws making drug distribution a state-law crime. The panel held that federal immigration law preempts any attempt by a State to regulate these activities, so the panels concerns about certain differences between the state and federal provisions were ultimately, as the panel itself conceded, irrelevant to its end conclusion. See Exh. A at 28 n.11. At any rate, these purported differences do not render these state laws preempted. For its part, the Alabama statute says four times that its language should be interpreted consistent with 8 U.S.C. 1324(a)(1)(A). ALA. CODE 31-13-13(a)(1)-(4). But even if the laws were meaningfully different and those differences led to preemption-creating conflicts, the right way to respond would not be to strike down the entire Alabama provision. It would be to sever its problematic portions while leaving the remainder intact. Ayotte v. Planned Parenthood, 546 U.S. 320, 329, 126 S. Ct. 961, 967 (2006). Thus, on rehearing this Court should take up both the broader question whether provisions like these can ever be valid and the narrower question whether Alabamas law is different from the federal provision in ways that require a more narrowly tailored injunction.

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Federalism concerns make it all the more imperative to rehear this matter. Much more so than the provisions the Supreme Court considered in Arizona, harboring prohibitions implicate traditional state interests. The primary conduct these statutes regulate is not that of unlawfully present aliens, but rather of the States own lawful residents, and States have a compelling interest to regulate that conduct. It is exceedingly difficult for States to maintain order when they have no power to stop their citizens from helping people break the law. Both the harborers and the harbored tend to commit crimes to perpetuate their concealment. When authorities eventually locate the people who are concealed, confrontations follow. Those confrontations are not pleasant for the law-abiding people who live in the communities where they occur. States should have the power to stop their citizens from undermining the rule of law in this way. II. Rehearing also is warranted on the contracts provision. Although the contracts provision is unique to Alabama, the panels invalidation of it is equally worthy of rehearing. The panel believed that this provision embodied a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state. Exh. A at 41. The panel held that the provision was preempted by the inherent power of the federal government to regulate immigration and by federal statutes giving the Executive Branch the power to determine who must be removed and 12

who may permissibly remain. Id. at 41, 44. That reasoning was consistent with analysis offered by a recent Fifth Circuit panel, which struck down a local ordinance that prohibited landlords from renting apartments to persons who are not lawfully present. See Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802, rehg en banc granted, 2012 WL 3085535 (5th Cir. July 31, 2012). But the en banc Fifth Circuit has decided to reconsider that analysis, and this Court should do the same. The panels regulation of immigration theory, like the Fifth Circuits in Villas at Parkside Partners, is contrary to the Supreme Courts decision in DeCanas. As Judge Elrod noted in her Fifth Circuit dissent, in DeCanas the Court narrowly defined a preempted regulation of immigration as essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. 675 F.3d at 827 (quoting DeCanas, 424 U.S. at 355, 96 S. Ct. at 936). Like the housing ordinance in the Fifth Circuit case, the contracts provision does not determine who should or should not be admitted into the country in the first place, and it does not determine the conditions under which a legal entrant may remain. Indeed, the contracts provision expressly defers to the federal governments determination of whether a person is lawfully present. See ALA. CODE 31-13-26(d) (citing 8 U.S.C. 1373(c)).

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It is no answer to suggest, as the panel did, that the provision nonetheless conflicts with Congresss exclusive removal power because it has the practical effect of creating incentives for unlawfully present aliens to depart the State. See Exh. A at 37-46. If that were the test, then DeCanas and the Supreme Courts later decision in Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), would have come out the other way. In both those cases, States passed statutes that made it effectively impossible for unauthorized aliens to make a living within their borders. See DeCanas, 424 U.S. at 352, 96 S. Ct. at 935; Whiting, 131 S. Ct. at 1975-77. A State can create no more powerful an incentive for an unlawfully present person to depart. Yet DeCanas and Whiting held that States could, consistent with the Constitution, address the deleterious effects illegal immigration has on its economy by prohibiting its resident businesses from knowingly employing unlawfully present aliens in this way. DeCanas, 424 U.S. at 357, 96 S. Ct. at 937. It necessarily follows that Alabama can, without running afoul of the Constitution, address those same concerns by precluding its resident businesses from knowingly entering into contracts with those same persons. Indeed, the incentives the contracts provision creates for unlawfully present persons to leave Alabama are not nearly as powerful as the incentives created by the provisions in DeCanas and Whiting. The contracts provision does not prevent unlawfully present persons from entering into garden-variety retail transactions.

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Nor does it render all their contracts unenforceable. It instead makes their contracts unenforceable only if the other party knows that they are unlawfully present. And although the provision undoubtedly denies unlawfully present persons the full benefits of state contract law, nothing in federal law precludes States from taking that step. The former Fifth Circuit, in a decision that is binding on this Court, held that a State generally may deny illegal aliens its largess without fear of preemption. Doe v. Plyler, 628 F.2d 448, 453 (5th Cir. 1980), affd in nonpertinent part, Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982). As the current Fifth Circuit signaled when it granted en banc rehearing in its case, the theory of immigration preemption espoused by the panel thereand, correspondingly, by the panel heregoes beyond the limited principles set forth in Arizona. That regulation-of-immigration theory could preclude States from taking almost any step to address the costs they are currently bearing as a result of illegal immigration. Particularly because a motions panel of this Court originally declined to enjoin the contracts provision pending appeal, see Exh. B, this Court should follow the Fifth Circuits lead and reconsider the merits panels theory en banc. CONCLUSION This Court should grant rehearing en banc or panel rehearing.

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Respectfully submitted, LUTHER STRANGE Alabama Attorney General BY: s/ John C. Neiman, Jr. John C. Neiman, Jr. Alabama Solicitor General Andrew L. Brasher Alabama Deputy Solicitor General OFFICE OF THE ALABAMA ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: 334.242.7300 Facsimile: 334.353.8440 jneiman@ago.state.al.us abrasher@ago.state.al.us Counsel for Alabama and Governor Bentley

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CERTIFICATE OF SERVICE On September 10, 2012, I filed this petition with the Court via CM/ECF. And I served the following attorneys for the United States by electronic mail: Beth S. Brinkmann Mark B. Stern Michael P. Abate Daniel Tenny Jeffrey E. Sandberg United States Department of Justice Civil Division, Room 7215 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 beth.brinkmann@usdoj.gov mark.stern@usdoj.gov michael.abate@usdoj.gov daniel.tenny@usdoj.gov jeffrey.e.sandberg@usdoj.gov Counsel for the United States consented to service via electronic mail under Rule 25(c)(1)(D).

s/ John C. Neiman, Jr. OF COUNSEL

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Statutory Appendix

ALA. CODE 31-13-13 - Concealing, harboring, shielding, etc., unauthorized aliens. (a) It shall be unlawful for a person to do any of the following: (1) Conceal, harbor, or shield from detection or attempt to conceal, harbor, or shield from detection or conspire to conceal, harbor, or shield from detection an alien in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law. This subdivision should be interpreted consistent with 8 U.S.C. 1324(a)(1)(A). (2) Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such alien's coming to, entering, or residing in the United States is or will be in violation of federal law. This subdivision should be interpreted consistent with 8 U.S.C. 1324(a)(1)(A). (3) Transport, or attempt to transport, or conspire to transport in this state an alien in furtherance of the unlawful presence of the alien in the United States, knowingly, or in reckless disregard of the fact, that the alien has come to, entered, or remained in the United States in violation of federal law. Conspiracy to be so transported shall be a violation of this subdivision. This subdivision should be interpreted consistent with 8 U.S.C. 1324(a)(1)(A). (4) It shall not be a violation of this section for a religious denomination having a bona fide nonprofit religious organization in the United States, or the agents or officers of the denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year. This subdivision should be interpreted consistent with 8 U.S.C. 1324(a)(1)(C).

APP-1

(b) Any person violating this section is guilty of a Class A misdemeanor for each unlawfully present alien, the illegal presence of which in the United States and the State of Alabama, he or she is facilitating or is attempting to facilitate. (c) A person violating this section is guilty of a Class C felony when the violation involves five or more aliens, the illegal presence of which in the United States and the State of Alabama, he or she is facilitating or is attempting to facilitate. (d) Notwithstanding any other law, a law enforcement agency may securely transport an alien whom the agency has received verification from the federal government pursuant to 8 U.S.C. 1373(c) is unlawfully present in the United States and who is in the agency's custody to a state approved facility, to a federal facility in this state, or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial or executive authorization from the Governor before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside this state. (e) Notwithstanding any other law, any person acting in his or her official capacity as a first responder or protective services provider may harbor, shelter, move, or transport an alien unlawfully present in the United States pursuant to state law. (f) Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of this section, and the gross proceeds of such a violation, shall be subject to civil forfeiture under the procedures of Section 20-2-93. (g) In the enforcement of this section, an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. 1373(c). A law enforcement officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. (h) Any record that relates to the immigration status of a person is admissible in any court of this state without further foundation or testimony from a custodian of records if the record is certified as authentic by the federal government agency that is responsible for maintaining the record. A verification of an alien's immigration status received from the federal government pursuant to 8 U.S.C. 1373(c) shall constitute proof of that alien's status. A court of this state

APP-2

shall consider only the federal government's verification in determining whether an alien is lawfully present in the United States.

ALA. CODE 31-13-33 - Rental agreements with unauthorized aliens prohibited. Notwithstanding any other provision of law to the contrary, it shall be unlawful for a person to harbor an alien unlawfully present in the United States by entering into a rental agreement, as defined by Section 35-9A-141, with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.

ALA. CODE 31-13-26 - Enforcement of certain contracts prohibited. (a) No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining. (b) This section shall not apply to a contract for lodging for one night, a contract for the purchase of food to be consumed by the alien, a contract for medical services, or a contract for transportation of the alien that is intended to facilitate the alien's return to his or her country of origin. (c) This section shall not apply to a contract authorized by federal law, to a contract entered into prior to May 18, 2012, or to a contract for the appointment or retention of legal counsel in legal matters. (d) In proceedings of the court, the determination of whether an alien is unlawfully present in the United States shall be made by the federal government, pursuant to 8 U.S.C. 1373(c). The court shall consider only the federal government's determination when deciding whether an alien is unlawfully present in the United States. The court may take judicial notice of any verification of an individual's immigration status previously provided by the federal government and

APP-3

may request the federal government to provide further automated or testimonial verification.

APP-4

Exhibit A

Case:11-14532 DateFiled:08|2UZA12 Page:1of 57

IPUBLISHI

IN THE LINITED STATESCOURT OF APPEALS C F O RT H E E L E V E N T H I R C U I T

1 7 N o s .I 1 - 1 4 5 3 2 ;l - 1 4 6 4

-02746-SLB No. 2:l l -cv D.C.Docket

TINITED STATESOF AMERICA, Plaintiff - Appellant Appellee, Cross

versus STATEOFALABAMA, OF GOVERNOR ALABAMA,


Defendants Appellees CrossAppellants, NATIONAL FAIR HOUSING ALLIANCE, INC., Defendant-Appellee.

Appeals ftom the United StatesDistrict Corut for the Northem District of Alabama

(August 20,2012)

11-14532 DateFiled: OBJ20|20I2Page: of 57 2 Case: and Judge. BeforeWILSON andMARTIN, CircuitJudges, VOORHEES,'District WILSON,CircuitJudge: into law HouseBill 56., On June9, 2011,Govemor RobertBentleysigned Act" (H.B. titled the "Beason-Hammon Alabama Taxpayer CitizenProtection and purpose the legislation to discourage illegalimmigration is 56). The stated of of within the stateand maximizeenforcement federalimmigrationlaws through federal authorities. cooperationwith SeeAla.Code$ 31-13-2.Atotal of ten provisions H.B. 56 areat issuein the appeal beforeus,' someof whichhave of legislature, HouseBill 658 (H.8. 658), beenamended an actof theAlabama by Bentleysigned into law on May 18,2012. which Govemor 1O'zof a crimefor an unlawfullypresent Section H.B. 56 creates new state Ala. document." alien's'killful failureto complete carryan alienregistration or section10whenhe or alienviolates Code$ 31-13-10(a). unlawfullypresent An the or of sheis foundto be in violation 8 U.S.C. 130a(e) 8 U.S.C. 1306(a), $$ $

District Judgefor the WestemDistrict of HonorableRichardL. Voorhees, United States Nonh Carolina, sittingby designation. I Additional provisionshavebeenchallenged the relatedcaseinvolving private in in plaintiffs, Thoseadditional sections described that are Case Nos. l1-14535and 11-14675. companion opinion. ? Consistent with how this casehasbeenpresented, reference originally designated we the wherethe provisionsarecunentlv sections H.B. 56 ratherthan the AlabamaCodesection of housed.

'

3 11-14532 DateFiled; ABPUZAI7 PaUe: of 57 Case: goveming A provisions alienregistration. violationof this provision federal carrieswith it a fine of up to $100andnot morethan thirty daysin prison. Ala. Code 31-13-10(f). $ alien's applicationfor, SectionI 1 criminalizesan "unauthorized" of or solicitationof, or performance work, whetherasan employee independent insidethe state Alabama.Ala. Code$ 3l-13-11(a).An alienwho is of contractor, is to authorized work within the United States not subjectto penalfyunderthis 1l construed consistent as provision, $ 31-13-1 id. l(d), andsection is otherwise has the The td with 8 U.S.C.$ 7324a, $ 31-13-11(1). UnitedStates challenged (a). in criminalizationofthe underlyingconductdescribed subsection a Throughsection12,Alabamarequiresofficersto determine lawfully when the officer hasreasonable suspicion seizedindividual's immigrationstatus that the seizedindividual is unlawfully presentin the United States.1d. $ 31-13is to determination madepursuant a request under 8 12(a). The immigration-status and U.S.C.$ 1373(c).1d A similar requestis requiredfor any alien arrested bookedinto custody.Id $ 31-13-12(b). Section13 creates threenew statecrimessimilar to thosecodified in 8 harboring,or U.S.C.$ 132a(a)(1)(A).First, it criminalizesthe concealment, shieldingfrom detection any alien,aswell as any attemptto do so. Ala. Code of

11-14532 DateFiied: Case: A8l2A/2An page:4at 57 Second, criminalizes actof encouraging inducingan it the or $ 31-13-13-(a)(1). aliento "cometo or residein" Alabama.1d $ 3l-13-13(a)(2). Third,it criminalizes transporting, attempting transport, conspiring transport to or to an alien"in furtherance the unlawfulpresence the alienin the UnitedStates." of of 1d $ 31-13-13(a)(3). individualwho engages "conspiracy be so in An to transported" alsosubject prosecution. Eachindividualcrimerequires is to Id. knowledgeor reckless disregard the fact that the alien is unlawfully present, of see (3), ld $ 31-13-13(a)(l) andH.B. 658amended statute clarifythateach the to crimeis to be interpreted consistent with 8 U.S.C.$ l32a(a)(1)(A).As originally enacted, instances entering section13 alsocriminalized certain of into a rental agreement with an unlawfully presentalien. An amendment includedin H.B. 658 movedthis provisionto a differentpart of the AlabamaCodebut left it substantively intact. ,See H.B. 658,$ 6. The nexttwo provisions issue, at section16 andsection17,concem l6 employment undocumented of an state workers. Section disallows employer's paid to an alien unauthorized work tax deductionfor wagesand compensation to in theUnitedStates. An Ala. Code$ 31-13-16(a). employer who knowinglyfails to comply with this requirement "liable for a penaltyequalto 10 times" the is deduction 17 employment, claimed.Id. $ 31-13-16(b). Section similarlyconcerns

5 A8l2Ol2AL2page: of 57 11-14532 DateFiled: Case: andit labelsas a "discriminatorypractice"an employer'sact of firing or failing to to hire a U.S. citizen or an alien authorized work while the employer to employsor hiresan alienunauthorized work in the country. 1d simultaneously is to civil g 31-13-17(a). employer in An who engages this practice subject a state and relief, fd. $ 31-13-17(b), the losing party in that actionfor compensatory fees,, $ 31-13-17(c). id. actionmustpay courtcostsandattorneys' goveming Ala. Code provision drivers'licenses, 18 a Section amends state a requiredall driversto possess drivers' license $ 32-6-9. The preexistingstatute official. Id. I32-6-9(a)' Section ofa anddisplayit upontherequest properstate (a), 18 addsthat,when a driver is found to be in violation of subsection a that driver's reasonable effort must be madewithin forry-eighthoursto determine citizenshipand,if an alien,whetherthe individual is permissiblypresentin the country.Id. $ 32-6-9(c).3 Section27 prohibits statecourtsfrom enforcinga contractto which an unlawfully presentalien is a party,providedthat the otherparty "had direct or and of knowledge"of the alien'sunlawful presence that performance constructive the contractwould requirethe alien to remainin the statefor morethantwenty-

3 Original$, the stahlte also required a person arrestedundet subsection(a) to be taken to possessed valid a whetherthe arrestee a magistrate the eventthe ofliccr could not determine in provision. license.H.B. 658 struckLhat

11-14532 Date Case: Filed: AA2O|2012Paue: of 57 6 four hoursafterits formation.Id. I3l-13-26(a). Section doescontain 27 purchase exemptions includingcontracts ovemightlodging, for from its scope, of food,medicalservices, transportation facilitate alien'sretumto his or to the countryoforigin. 1d.$ 31-13-26(b). any federally authorized Additionally, contractis outsidethe scopeof section27,,as areany contracts into prior entered to the section'senactment any contracts retentionoflegal counsel.1d. and for H; $ 3 1 - 1 3 - 2 6 ( c ) . B .6 5 8 ,$ l . Next, section provides process schools collectdataaboutthe 28 for a to immigrationstatusof students who enroll in public school. Schoolsarerequired to determine whetheran enrolling child'lvas born outsidethejurisdiction of the United States is the child of an alien not lawfully presentin the United States." or Id. $ 3l-13-27(a)(l). Thatdetermination madebased thebirth certificate is on of the child. Id. | 3l-13-2'1(a)(2). reflects Ifnone is available, ifthe certificate or that "the studentwas bom outside. . . the United States is the child of an alien or not lawfully presentin the United States," thenthe enrolling child's parentor guardianmustnotify the schoolof the "actualcitizenshipor immigrationstatusof law;' Id. $ 31-13-27(a)(3). consists the student This notification of underfederal (a) official citizenshipor immigrationdocumentation (b) an attestation under and penaltyofperjury that the docurnent identifiesthe child. Id. $ 31-13-27(a)(a).If

Case:11-14532 Dale Filed:88l23l2At2 Page:7 of 57

is to notification is not provided,thenthe student presumed be "an the statutory 1d in alienunlawfullypresent the UnitedStates." $ 3 1- l 3-27(a)(5). section30 prohibitedunlawfully present Finally, asoriginally enacted, with the transaction" to aliensfrom entering,or attempting enter,into a "business byH.B. Id. amended stateorapoliticalsubdivisionthereof. $ 31-13-29(b)(2011), was as transaction defined including"any transaction," 658,$ 1. A business by exceptfor the applicationof marriagelicenses.Id. I3l-13-29(a). As amended H.B. 658,the provisionnow prohibitsunlawfully presentaliensfrom entering,or with the stateor a political to attempting enter,into a'public recordstransaction" as transaction defined is thereof.H.B. 658,$ 1. A publicrecords subdivision applyingfor or renewing"a motor vehiclelicenseplate," "a driver's licenseor license,"or "a license,""a commercial nondriveridentificationcard," "a business professional license." Id. Any personwho violatesthis prohibition, or any person on to who attempts enterinto a public recordstransaction behalf of an unlawfully 3-29(d). C present with a Class felony. Ala. Code$ 3 1-1 alien,canbe charged additionalprovisionsalsobearon the applicationandintetpretation Several of H.B. 56 as a whole. Section2 providesthe overallgoalsand findings of the

11-14532 DateFiled: Case: O8l2Ol2AI2 Paqe: of 57 I legislature enacting law.o Section prohibitsstate in the 5 officialsfrom adopting any policy that would reshict enforcement federalimmigrationlaw to its full of extent andprovides a civil cause actionto challenge for lax of alleged enforcement of the law. Seeid. $ 31-13-5.Section similarlyprohibitsstate 6 officialsfrom policieswith regardto Alabama'sown immigration adoptingrelaxedenforcement provisions provides analogous and an of civil cause action. Seeid. $ 3 1- 13-6. Both of thesesections imposea duty on stateofficials to reportviolations of

o Section2 states full: in The Stateof Alabamafinds that illegal immigrationis causingeconomichardship and lawlessness this stateand that illegal immigrationis encouraged in when public agencies within this stateprovidepublic benefitswithout verifying immigrationstatus.Because costsincurredby schooldistrictsfor thc public the elementary secondary and education childrenwho arealiensnot lawfully of presentin the United States adversely can affect fhe availabilityofpublic education resources students to who areUnited States citizensor arealiens lawfully presentin the United States, Stateof Alabamadetermines that thereis the a compellingneedfor the StateBoardofEducation to accurately measure and assess populationof students the who are aliensnot lawfully presentin the United States, orderto forecastandplan for any impactthat the presence in such populationmay haveon publicly fundededucation this state. The Stateof in ,\labama furtherfinds that ceftainpractices currentlyallowed in this stateimpede and obstructthe enforcement federalimmigrationlaw, undermine security the of of our borders,and impermissiblyrestrictthe privilegesand immunitiesof the citizensofAlabama. Therefore, peopleofthe Stateof Alabamadeclarethat it the is a compellingpublic interestto discourage illegal immigrationby requiringall agencies within this stateto fully cooperate with federalimmigrationauthoritiesin the enforcement federalimmigrationlaws. The Stateof Alabamaalso finds of that other measures necessary ensure integrity ofvarious governmental are the to programsand services. Ala. Code{ 31-13-2.

I 0812U?AQ Page; of 57 Case: 11-14532 DateFiied: Alabama'simmigrationlaws,and failure to do so could resultin a conviction operations. $$ 31-13Id govemment for underAla. Code$ 13A.-10-2 obstructing are scheme 5(f), -6(0 The resultsof Alabama'simmigration-enforcement to periodicallypursuant section24, which requiresthe Alabama reported beingmadein the the Department HomelandSecurityto summarize "progress of effort to reducethe numberof illegal aliensin the Stateof Alabama"in a public Id. report. $ 31-13-23. filed provisionsbecame effective,the United States Beforethe challenged attemptto to suit seeking enjointhem on the groundthat they are an impermissible preempted federallaw. Around the by regulateimmigrationand are,therefore, preenforcement challenge sametime, a groupof privateplaintiffs filed a separate claims. (Although many preemption and otherconstitutional to H.B. 56 asserting and are of the issues overlap,theseappeals not consolidated, the caseinvolving lI-14675.) in case, Nos. 11-14535, the privateplaintiffsis resolved a companion filed a motion for a preliminary Along with its complaint,the United States quo until final adjudication.The United States injunctionto preseffethe status 13,16,17,18,27,28, 10,11(a), 12(a), soughttoenjoinenforcementofsections and 30. At the time of filing, the privateplaintiffs had alreadyfiled a motion for a the for preliminaryinjunction,andthe district court consolidated two cases

Case: 11-14532 DateFiledr OBl2Ol2O12 Paoe: of 57 10 purposes ofdecidingthe preliminary issues. injunction After briefing and argument, district court grantedin part and deniedin the partthe motions preliminary for injunction.Thedistrictcourtfounda likelihood in ofsuccess thepreemption challenge sections to l1(a), 13, 16,and 17 and theirenforcement; did not find a likelihoodofsuccess the enjoined it in preemption challenge sections 12(a),18,27,28,and30.5 Llnited to 10, v. States Alabama,8l3 Supp.2d1282 F. (N.D.A1a.2011). The United States private plaintiffs appealed district court's denial and the of a preliminary injunction, the and,Alabama cross-appealed districtcourt'sgranf of preliminaryinjunctiverelief. After filing its notice of appeal, United States the soughtfrom this court an injunction pendingappeal preventenforcement the to of for sections which the district court deniedan injunction. A panel of this court grantedin part the rnotion for injunction pendingappeal,enjoiningenforcement of sections10 and28. Later, after briefing and oral argument, modified the we of injunctionpendingultimatedispositionof this appealandenjoinedenforcement 27 sections and,30.As a resultof the rulings, only two challenged provisions sections12 and 18-are currentlybeing enforced,eachof which

5 In the caseofthe privateplaintiffs, the district court furtherfound that sections8, 10(e), Supp. 11(ef(g), and 13(h)shouldbe enjoined. HispanicInterestCoal. of Ala. v. Bentley,_F. (N.D.Ala. Sept. 2011). 2d _, No. II-2484,2011 WL 5516953 28,

l0

Case:1l--14532 DateFiled:08128t2AI2 paqe: 11 of 57

inquiriesinto the immigrationstatusof certain providesfor law enforcement individualssuspected criminal activity.6 of the Having closelyconsidered positionsandnew briefing of the partiesin 567 in decision Arizonav. UnitedStates, U.S.-, light of the recent 132S. Ct.

provisionscannotstand. 2492(2012),we concludethat mostofthe challenged on is Specifically,we concludethat the United States likely to succeed its sections I I (a), I 3(a),16, 17, and27. We 10, preemption claimsregarding 1l(a), 13(a),76, and17. as affirm the dishictcourt'sdecision to sections therefore the We reverse district court's decisionasto sections10 and27 andremandfor however,that the United the entry of a preliminaryinjunction. We conclude, has States not at this stageshownthat sections12(a),18, or 30 arefacially invalid. We thereforeaffirm the district court's decisionnot to preliminarily enjointhese we provisions. Finally, because find section28 violative ofthe EqualProtection broughtby privateplaintiffs, we dismissthe United Clausein the companion ca$e appealasto this sectionasmoot without decidingwhetherthat provision States's in is preempted.In sum,we affirm in part and reverse part the orderof the district

6In supplemental Court's decisionin lrzona v. United briefing following the Supreme that it will no longer declared U States,56'7 .5. _, 732 S. Ct. 2492(2012),the United States 18. Because neitherparty hasrequested dismissal ofthe pursuethe appealofsections 12 and to claim with respect sections12 and 18, we the appeal, will address meritsofthe preemption that it will not succeed thoseclaims. on the recognizing concession ofthe United States l1

Case:11-14532 DateFiled:oBl20l2o12 Page:12 of 57 court, and we dismissin part the appeal.

I. Standard Review of injunction abuse for of We reviewa districtcourt'sgrantof a preliminary 147 McDonald'sCorp.v. Robertson, F.3d I 301, I 306 (1lth Cir. discretion. de are the 1998).Legaldeterminations underlying grantof an injunction reviewed Media, novo, andfactualdeterminations reviewedfor clear enor. Cumulus are Inc. v. Clear Channel Inc., 304F.3d 1167, 1l7 l-7 2 (1lth Cir. 2002). Commc'ns, II. Discussion A preliminaryinjunctionmay be grantedto a moving party who establishes injury will be "(1) substantial likelihoodof success the merits;(2) ineparable on injury to the movant sufferedunlessthe injunctionissues;(3) the threatened the injunctionmay cause opposing the outweighswhateverdamage proposed to the party; and (4) if issued, injunction would not be adverse the public interest." in in these factors tum, focusing 147 Robertsotr, F.3dat 1306.We address is particularon the most contested determination-whetherthe United States on claims. likely to succeed the preemption A. on Likelihoodof Success the Merits

with the power to preemptstatelaw, Our ConstitutionprovidesCongress maybe express implied. or seeU.S.Const.art.YI cl.2, andthatpreemption
12

page:13ot 57 A812412012 Case: 1-1-14532DateFiled; we law cannotalwaysbe neatlycategorized, generally Although preemption at See of threeclasses preemption. Browning,522F .3d' 1167 recognize field, andconflict preemption).The first, (recognizing doctrinesof express, the ariseswhen the text ofa federalstatuteexplicitly manifests preemption, express "occurs field preemption, state law. Id. Thesecond, intentto displace Congress's is legislativescheme when a congressional 'so pervasive to makethe reasonable as

1t."' Id. (quoting to left inference that Congress no room for the states supplement Fe Ricev. Santa ElevatorCorp.,331U.S.218,230,67 S. Ct. I 146,1152(1947)). that Congress soughtto occupywithin the field, we the To determine boundaries look to "'the federalstatuteitself, readin the light of its constitutionalsettingand U.S.351,360n.8,96 S. Ct. 933, v. history."'De Canas Bica,424 its legislative 938 (1976) (qroting Hines v. Davidowitz,3 12 U.S. 52, 78-79, 6 I S. CL 399, 410 (1941) (Stone, dissenting)). J., may arisein two ways. First, conflict The third, conflict preemption, to preemption occur"when it is physicallyimpossible complywith both the can laws." Browning,522 F.3dat 1167. Conflictpreemption federal the state and may also arise "when the statelaw standsas an obstacleto the objective of the what constitutes an federallaw." Id. We use ourjudgmentto determine to obstacle federallaw, and thisjudgmentis "informedby unconstitutional
13

case:11-14532 DateFiled: 0812A120t2 Paqe: 0f 57 14 examiningthe federalstatuteasa whole and identifying its purposeand intended effects." Crosbyv. Nat'l ForeignTradeCouncil,530 U.S.363,373,120S. Ct. 2288,2294(2000). In determiningthe extentto which federalstatutes preemptstatelaw, we are "guidedby two comerstones." Levine,555U.S.555,565, 129S. Ct. Wyethv. 1I 87, I 194(2009). First,"'the purpose Congress the ultimate is in of touchstone everypre-emption Inc. v. Lohr,518 U.S.4'70,485, case."' Id (quoting Medtronic, "that thehistoricpolice 1I 6 S. Ct. 2240,2250(1996)). Second, assurne we powers the States of by thatwas werenot to be superseded the Federal unless Act purpose Congress." at 565 I l6 S. Ct. at ll94-95 the clearandmanifest Id. of , (internalquotationmarksand alterations omitted);seealsoArizona, 132S. Ct. at the 2501. With these considerations mind,we turn to the meritsof whether in is 10, UnitedStates likely to succeed its claimsthat sections 11(a),12(a),13, on law. 16, 17, 18,27,,28, 30 arepreempted federal and by 1. Section 10

alien's willful failure to Section10 criminalizesan unlawfully present in complete carryregistration or documents violationof 8 U.S.C.$$ 130a(e), preemption argument, the 1306(a).The districtcourtrejected UnitedStates's to finding that section10 is a permissible complement federallaw. This court
11

15 AAPA!28L2 Page: of 57 DateFiled: 1"1--14532 Case: ofsection 10 pendingappeal.Having the benefitofthe enjoinedenforcement that the dishict court erredin Supreme Court's decisiontn Arizona, we conclude on wasnot likely to succeed its preemption finding that the United States 10.7 challense section to the Courl recentlyfound preempted ln Arizona v. (JnitedStates, Supreme "willful failure which forbade Bill section of Arizona'sSenate 1070(S.B. 1070), 3 document"in violation of 8 U.S.C' to complete carry an alien registration or Ariz.Rev.Stat. 13-1509(4)). 132 or $ $$ 130a(e) 1306(a). S.Ct. at250l (quoting to enacted createthe present that Congress After identifying the federalstatutes "has that the federalgovernment the scheme, Courl concluded alien-registration promulgated occupiedthe field of alien registration." Id. at 2502. Congress for ance." Id. as standards alien registration well as"punishment noncompli for manifestly"foreclose[d]any state As a resultof freld preemption, Congress 1d. regulationin the area,evenif it is parallelto federalstandards." Like section of S.B. 1070,section10 inkudesinto the field of alien 3 Cowt has confirmedis an areaof exclusive registration, which the Supreme the federallaw occupies field, "even complementary federalconcern. Because

? In supplemental acknowledged section10 is that biefng afterArizona, Alabamahas preempted.

15

Case:11-14532 DateFlled:0812012012

16 of 57

stateregulationis impermissible."Id. As was the casein Arizona, any attemptby Alabamato enforceits own requirements would dilute federalcontrol over immigrationenforcement detractfrom Congress's and comprehensive scheme.1d. The Courthasmadeclearthata state's goalandadoption shared offederal standards insufficientto saveits statutefrom a finding of field preemption.1d. is at 2502-03. The Court'sholdingthatfederal alienregistration occupies law the field necessarily requiresthat stateregulations that areaarepreempted.We in therefore conclude, with Arizona,thatsection10 is preempted consistent by federallaw.

2.

I Section 1(a)

1l(a) criminalizes knowingapplication work, solicitation Section the for of to work, or perfoffnance work by an alienwho is not anthorized work in the of United States.The district court enjoinedthis sectionon the groundthat Congress intendedto curb the employment unauthorized of aliensby regulatingthe actions who acquirethese of employers who hire unauthorized workers,not the employees jobs. The Supreme Court concludedin Arizona that a nearlyidenticalprovision of Arizonalaw waspreempted, in light of that holding,we agreewith the district and

16

Case:1l--14532 DateFiled:aB!2012A12 PaEe:17 of 57

court." 5(C) of S.B. 1070, which on Courtpassed section In Arizona,the Supreme alien to knowingly apply for for madeit a statemisdemeanor "an unauthorized or work, solicit work in a public placeor performwork as an employee contractor"in the state. 132S. Ct. at2503 (quotingAriz. Rev. Stat. independent the enacted Immigration $ I 3-2928(C)). The Court explainedthat Congress ReformandControlAct of 1986(IRCA),Pub.L. No. 99-603,100Stat.3359,as of "a comprehensive framework'combatingthe employment illegal aliens."' Inc. Plastic Compounds, v. NLRB, Arizona,l32 S. Ct. at2504 (quotingHoJfman (2002)).Notably,while federal law 535U.S. 137,147,122S. Ct. 1275,1282 for alienswho acceptemployment, someconsequences unauthorized contemplates on side" and IRCA "doesnot imposefederalcriminal sanctions the employee who hire unauthorized aliens.Id. on insteadimposes criminal penalties employers the IRCA's regulatoryscheme, alongwith its legislativehistory,compelled Court choicenot to imposecriminal madea deliberate to concludethat "Congress in, employment."Id.; see penalties alienswho seek,or engage unauthorized on judgmentthat making criminals also id. ("IRCA's frameworkreflectsa considered

8In supplemental that briefing afterArizona,Alabamahasacknowledged section11(a)is preempted.

1.7

Case: 1L-14532 DateFiled: OBl20l2AI2 Paqe: of 57 18 out of aliensengaged unauthorized in facethe work-aliens who already possibility employer of exploitation because their removable of status-would be inconsistent federal policy andobjectives."). light of this intent, Court with the In found that Arizona's law "would interferewith the carefulbalancestruckby Congress with respect unauthorized to employment aliens."Id. at2505. As a of result,it found section5(C) preempted federallaw. Id. by In light of Congress's decision that"it would be inappropriate impose to criminalpenalties alienswho seekor engage unauthorized in employment," on Alabama's section law. Id. Section 1l(a) is preempted federal by 1l(a) cannot be frornthe provisionat issuein Arizona. Both the meaningfully distinguished Alabama andArizonaprovisions the solicitation, and criminalize application' performance work by anunauthorized of alien. Ala. Code$ 3 1-13-I 1(a);Ariz. that Congress has Rev. Stat.$ 13-2928(C). This attempt criminalize to conduct not an to of chosen to criminalizepresents obstacle accomplishment federallaw. law. Arizona,132S. Ct. at2505. As a result,section1l(a) is preempted federal by 3. 12(a) Section

to Pursuant section12, a statelaw enforcement officer is obligatedto investigate immigrationstatusof lawfully seizedindividualswhom the officer the hasreasonable suspicion believeis unlawfully presentin the United States. to

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Neitherthe dishict courtnor this court enjoinedthis section' F ollowingArizona, with the positionsof the parties,we concludethat the United States and consistent to on is not likely to succeed its challenge section12 in this preenforcement challenee. ln GeorgiaLatino Alliancefor Human Rightsv. Deal (GLAHR),No. 1113044, _F.3d _ relevant aspects (l lth Cir. Aug. 20, 2012),werecounted

Court opinion in Arizona v. UnitedStates: from the recentSupreme Court rejecteda preenforcement ln Arizona,the Supreme olficers whichrequires state 2(B) of S.B. 1070, to challenge section the attemptto determine immigrationstafusof a to makea reasonable ifthere existsreasonable personstopped, or detained, arrested individual is an unlawfully presentalien. that the detained suspicion The 132S.Ct. at2507;seeAriz.Rev.Stat. 11-1051(B). Arizona $ containsthreelimitations:productionof certainidentification statute lawfully present, Ariz. Rev. Stat. rendersan individual presumptively race,color,or national origin $ l1-1051(B);officersmaynot consider and by exceptas authorized the United States Arizona Constitutions, consistently with federallaw mustbe implemented id.; andthe statute protective civil rights,id. $ 11-1051(L). of andin a manner Arizona clarified the principlethat "[c]onsultationbetween federaland stateofficials is an importantfeatureof the immigration to system."132S. Ct. at 2508. Pursuant 8 U.S.C.$ 1357(gX10), with the federal stateofficersmay permissiblycommunicate government about'the immigrationstatusof any individual," even a betweenthe locality and federal absent formalizedagreement government.Moreover,Congress setup a system provide has to that Immigrationand assistance stateoffrcersandhasmandated to (ICE) respond stateinquiriesconcerning the to Enforcement Customs Arizona, 132 S. Ct. at 2508. immierationstatusof indivtd.uals.
19

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Above all, Congress "encouraged sharingof information has the aboutpossible "a immigration andfederal violations," law permits policy requiringstateofficials to contactICE as a routinematter." 1d The state's failureto incorporate reference or federal enforcement priorities in its immigration-inquirystatuteis irrelevant. -Id The Court alsoexplainedin Arizona that a preenforcement to challenge the scope ofdetention is authorized the state by statute premature. at 2509 10. It notedthe potential Id. problems a with stafute that would permit detention"solely to verify fan state individual's] immigration status" notedthatthe state's but interpretation its statute of couldremedy these Id. concems. at2509. all the statestatuterequiresis that stateofficers conductan In sum,if immigrationinquiry "during the coruseof an authorized, lawful or detention aftera detainee beenreleased, provisionlikely has the preemption-atleastabsent would sulive thatit has someshowing that to other consequences areadverse federallaw and its objectives." 1d Notably, the Court left openthe possibility that the interpretation andapplication Arizona'slaw couldproveproblematic practice of in to andrefusedto foreclosefuture challenses the law. Id. at2510. GLAHR.Slip Op. at 28-30. provision. arecompelled conclude this Arizona we to that Like therelevant preenforcement challenge sectionl2(a) cannotsucceed. the Court to As confirmedin Arizona, it is not problematicto requestinformationexplicitly law. See contemplated federal by Arizona,132S. Ct. at 2508. While we do nol or forecloseany future challenge the scopeof detentioneventuallyauthorized to permitted that conclude the state undersectionl2(a), at this pointwe cannot statute"will be conskuedin a way that creates conflict with federal a Id. at

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l2(a) is that challenge section we 2510. As a result, rejectthe preenforcement preempted federallaw. by 4. 13 Section

an or harboring, shielding for crimes (1) concealing, state 13 Section creates or to or unlawfully presentalien fiom detection, attempting do so; (2) encouraging alien to "cometo or residein" Alabama;(3) inducingan unlawfully present to attempting hansport,or conspiringto transportan unlawfully transporting, and to present alien, including an alien's conspiracy be transported; (4) harboring with that alien.q alien by enteringinto a rentalagreement an unlawfully present The district court enjoinedoperationof this sectionon the groundit was conflict provisionsof the INA. Even in light of the preempted the largely analogous by accomplished H.B. 658'we agree.to by recent amendments
'qAlthough section6 of H.B. 658 alteredthe phrasingofthe rental-agreunent provision in and movedit to anothersectionof the AlabamaCode,the partieshavestipulated district coutt ofsection 13 to that the preliminaryinjunctionextends section6 of H.B. 658. Our discussion provision,which is, for purposes our review, the of therefore encompasses rental-agreement prior enactment. the substantively sameasthe '0 Like the parties,we concludethat the challenge section13 is not moot in light of to amendments merelyclarifiedthat section13 was to be applied H.B. 658. The statutory part of the AlabamaCode. The consistently with federallaw and moved oneprovisionto another it "the sametype of because regulates has United States arguedthat section13 is preempted Brief of United States 47. The at by Congress."Response conductalready regulated by only the conductproscribed federallaw, do amendments, which clarify that section13 reaches challenge lodgedby the United States.SeeNe. Fla. Chapterof the not affectthe corepreemption 508 Associated Gen.Contractorsof Am. v. City of Jacksonvil/e, U.S. 656,662, 113 S. Ct. 2297, 2301 (1993).

21

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We first look to the intentof Congress determine scope the federal to the of immigrationscheme.ln GLAHR,we found that federallaw "providesa comprehensive frameworkto penalizethe transportation, concealment, and inducement unlawfullypresent of aliens"andsummarized relevant the provisions of theINA: to Pursuant 8 U.S.C.$ l32a(a)(1)(AXii)-(iv), is a federal it crimefor any personto transportor move an unlawfully presentalien within the United States; conceal, to harbor,or shieldan unlawfully present alien from detection;or to encourage inducean alien to "cometo, or or enter, residein theUnitedStates."Any person who conspires or aidsin the commission any of thosecriminalactivities also of is punishable. $ l32a@)QXAXv). SectionBZa@)pennitslocal Id. law enforcement officersto arrestfor theseviolations offederal law, jurisdiction to prosecute but the federalcourtsmaintainexclusive for thesecrimesand interpretthe boundaries ofthe federalstatute.See (d) id. $ 1329. Subsection of $ 1324furtherdictates evidentiary rules govemingprosecution one of its enumerated offenses, and of (e) goesso far asto mandate communityoutreach a subsection programto "educate public in the United States the and abroadabout penaltiesfor bringing in and harboringaliensin violation ofthis the to for section." Ratherthan authorizingstates prosecute thesecrimes, chose allow state for Congress to officialsto arrest $ 1324crimes, in subjectto federalprosecution federalcourt. Seeid. $$ 1324(c), permitting in state regulation 1329. In the absence savings ofa clause the field, the inferencefrom theseenactments that the role of the is is states limited to arrestfor violationsof federalLaw. SeeDe Canas. a 4 2 4 U . 5 . t 3 6 3 , 9 6 . C t .a t 9 4 0 . S The comprehensive natureofthese federalprovisionsis further of evidentupon examination how $ 1324hts within the largercontext criminalizingthe actsundertaken aliensand by of federalstafutes thosewho assistthem in coming to, or remainingwithin, the United
22

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for themselves, 1325, example, the Regarding aliens States. $ for civil and criminal penalties unlawful entry into the imposes criminal penalties has United States.Congress similarly authorized aid id who bring aliensinto theUnitedStates, $ 1323, for individuals alien,id. 5 1327,and import an alien for the entry of an inadmissible theseprovisions,the id. an immoralpurpose, $ 1328. In enacting more than a "peripheral has federalgovernment clearly expressed and of concem"with the entry,movement, residence alienswithin the U.S.at 360-61,96 S. Ct. at 939, see UnitedStates, De Canas,424 andthe breadthof theselaws illustratesan overwhelminglydominant federal interest in the field. GLAHR,Slip Op. at 19-27 (footnoteomitted). of that the similar sections Georgia's We found supportfor the conclusion by immigrationlaw werepreempted looking to the recentlrizona decisionand U.S.497,76S. Ct.477 (1956). v. PennsylvaniaNelson,350 a Bill 3 Section ofArizona'sSenate 1070(S.B. 1070)added "stateby law penaltyfor conductproscribed federallaw"-the failure to as completeand carry alienregistrationdocuments requiredby 8 1306(a). Arizona, 132S. Ct. at250l. TheCourt U.S.C. 1304(e), $$ natureof the currentfederalregistration explained comprehensive the of scheme, which holds aliensto ceftain standards conductand penalizes their willful failure to registerwith the federalgovernment. Id. at2502. Basedon the breadthoffederal regulation,the Court has that "the FederalGovemment occupiedthe field of concluded "even alien registration"andthereforefound impermissible stateregulation"within that field. Id.; seealso id. complementary ("Even if a Statemay makeviolation of federallaw a crime in some by instances, cannotdo so in a fteld . . . that hasbeenoccupied it the Court dismissed state'sargument federallaw."). The Supreme enforcement was appropriate a field in that its goal of concurrent by occupied federalregulation. Id. at 2502-03. Like the federal addressed Arizona, Congress provideda in has registrationscheme

Case: 11-14532 DateFited: AA2O:20I2 Paqe: of 57 24 "full set of standards" govem the unlawful transportandmovement to of aliens.Id. at 2502. The INA comprehensively addresses criminal penalties theseactionsundertaken for within the bordersof the UnitedStates, a state's and to attempt intrudeinto this areais prohibitedbecause a Congress adopted calibratedframework has within the INA to address issue. Seeid. at 2502-03. this . . .InNelson,the CourtheldthatPennsylvania's sedition act, which "proscribe[d] same the asthe federal statute, conduct" sedition waspreempted federal by 499,76 S. Ct. at 479. As it did law. Id. at in Arizona,the Courtrejected state's argument its purported that the supplementation federallaw shieldedthe statestatutefrom federal of preemption. id. at 504,76S. Ct. at 481;seealso Charleston See & W. CarolinaRy.Co. v. Varnville FurnitureCo.,237U.S.597,604, 35 S. Ct. 7 15,717 ( 1915) ("WhenCongress takenthe particular has subject-matter hand,coincidence as ineffective opposition, in is as anda state law is not to be declared helpbecause attempts go it a to farther thanCongress seen to go."). The Courtlaterdiscussed has fit preemptive that the federalstatute's effect was implied because it occupied"the specificfield which the States to were attempting regulate." Canas,424U.S. De at362,96S. CL at 940. Thefinding of preemption Nelsonwas furtherjustified because., here, rn like Congress not sanctioned had concurent statelegislation"on the subjectcoveredby the challenged statelaw." Id. at 363,96 S. Ct. at 940. law at issue GLAHR, similarly in we GLAHR,Slip Op. at2l-23. Like the Georgia concludethat Alabamais prohibitedfrom enactingconcurrent statelegislationrn this field of federalconcem. the to Furthermore, sectionl3 undermines intent of Congress confer immigration. As we discretionon the ExecutiveBranchin mattersconcerning explainedin GLAHR,"fbly confining the prosecution federalimmigration of

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to limited the powerto pursuethosecases the crimesto federalcourt,Congress Arizona,132S. Ct. at Attomey. See8 U.S.C.$ 1329; UnitedStates appropriate would have 'the 2503 (explainingthat if the stateprovisioncameinto force, states againstindividualsfor violating a federallaw power to bring criminal charges wherefederalofficials in chargeof the comprehensive evenin circumstances would frustratefederalpolicies'). As officers that prosecution scheme determine their discretion of the ExecutiveBranch,U.S. Attorneysfor the mostpart exetcise priorities of the enforcement with the established in a mannerconsistent Administrationthey serve." GLAHR,Slip Op. at24. Eventhough section13 is its with contemplates consistency the text of 8 U.S.C.$ 1324, enforcement for noticeably"not conditionedon respect the federalconceflIsor the priorities the has that Congress explicitly grantedexecutiveagencies authorityto establish." Act 2010,Pub.L. Id. (citingDepartmentof HomelandSecurityAppropriations (2009), of whichrequires Secretary the 123Stat.2142,2149 No. 111-83, HomelandSecurityto "prioritize the identificationand removalof aliensconvicted of a crimeby the severityof that crime"). Section13, at the very least,is in tensionwith federallaw. though,arethe Also relevantto our finding ofconflict preemption, between federaland statelaws. Like the Georgialaw the substantive differences
25

Case: 11-14532 DateFiled: OA|20/2O12 Paoe: of 57 26 at issuein GLAHR,section also l3 creates new crime unparalleled the federalscheme.Federallaw a in prohibits individualfrom encouraging inducingan aliento an or "cometo. enter. reside the UnitedStales."8 U.S.C. or in $ l32a(a)(l)(A)(iv)(emphasis added).Onceinsidetheterritory, though, is not (andhasneverbeen)a federal it crimefor a person to encourage alien to migrateinto anotherstate. The Supreme an Court hasindicatedthat suchadditionalregulationconflictswith federal law, at leastwhenfederal interest dominates. Hines,,312 U.S.at See 66-67,61 S. Ct. at 404 ("[W]herethe federal govemment, the in exercise its superiorauthorityin th[e immigration]field, has of enacted complete a scheme ofregulation. . . , states cannot, inconsistently with the purposeof Congress, conflict or interferewith, curtail or complement, federallaw, or enforceadditional or the (emphasis auxiliaryregulations." the added)).Similarly, criminal actsof harboringandtransporting aliensconstitute unlawfully present an impermissible "complement" the INA thatis inconsistent with to goveming Congress's a scheme objective creating comprehensive of the movement alienswithin the United States.Seeid of SlipOp.at26 2'1. GLAHR. Still, otherprovisions section13 aremoretroubling. First,the of Ala. to criminalization an alien's"conspiracy be transported," Code$ 31-13of to alienfrom even 13(a)(3), its text,appears prohibitan unlawfullypresent by to coexist with in agreeing be a passenger a vehicle. This provisioncannot "are not criminally alienswho aretransported $ l32a(a), asunlawfully present responsible smugglingunder 8 U.S.C.$ 1324." UnitedStatesv. Hernandezfor on Rodriguez, 5 F.2d622,626 (9th Cir. 1992). Next,theprohibition 97

zo

paae: ot 5'7 Case 11-14532 DateFileel: i A8/2A/2ALZ ZT 'harborfing] an aTien present the United States enteringinto a unla'r,vfully in by rentalagreement . . to provide accommodations," . H.B. 658, $ 6. effectuates an untenable expansion the federalharboringprovision. See,e.g.,UnitedStatesv. of Ozcelik,527 F.3d 88, 100(3d Cir. 2008)(construing "harboring" encompass to conducttendingto "preventgovemmentauthorities from detecting alien's the unlawfulpresence"); UnitedStates MyungHo Kim, 193F.3d567,574Qd Cr. v. 1999)(same); also UnitedStates ChangQin Zheng,306 see v. F.3d 1080., 1086 (l1th Cir. 2002)(findingevidence suffrcient convicrofharboringwherethe to defendant facilitated aliens'presence the UnitedStates the in and.,prevented govemmentauthoritiesfrom detectingthe illegal aliens' unlawful presence,' (citing Myung Ho Kim, 193F.3d at 574));Lozanov. City of Hazleton, 620F.3d (3<1 170,223 Cir. 2010)("twle arenot awareof any case which someone in has beenconvictedof 'harboring'merelybecause s/herentedan apartment someone to s/heknew (or had reason know) was not legally in the United States."), to vacated, 131s. ct. 2958(2011)(vacating furtherconsideration light of chamberof for in Commerce the UnitedStates Whiting, of v. 563U.S. , 131S. Ct. 1968(201111.

Because eachofthese individual provisionsmandates enforcement "additional of or auxiliary regulations"that the INA doesnot contemplate, they areconflict

27

11-14532 DateFiled: 28 Case: OBl20l20I? Page: of 57 preempted.rr Hines,312 U.S.at66-67,61S.Ct. at 404. See 5. Section 16

expense on from deducting a business as Section prohibitsemployers 16 a paid aliens.It imposes their state filings any compensation to unauthorized tax penalty violationof this provision monetary for equalto ten timesthe deduction, payable the Alabama The districtcourtfoundthatthe Department Revenue. of to to on challenge section16,and UnitedStates likely to succeed its preemption was preempted 8 U.S.C.$ l32aa@)(2). by we agree thatit is expressly the in Section1324a,enacted 1986aspart of IRCA, regulates employment "any preempts to of aliensunauthorized work in the United States.lt expressly (otherthanthrough civil or criminalsanctions State locallaw imposing or licensingand similar laws) upon thosewho employ,or recruit or refer for a fee for doesnot Alabama aliens." 8 U.S.C.$ 132aa@)(2). employment, unauthorized the characterize statutorydenialof a tax deductionas a licensinglaw but that sectionl6 is not preempted.Thereforeour task is to nevertheless contends a whetherthe statutoryprohibition constitutes "sanction"within the determine

rr Alabamacontends of that, if anything,only certainoffendingsentences sectionl3 are however,section13 in its entiretyis at oddswith federallaw, preempted.As we haveexplained, scopeofanalogousfederalprovisions,see within the comprehensive both asan enactment Arizona- 132 S. Ct. at 2502-03.and aslegislationin conflict with the INA.

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meaning $ 132aa@)(2). of narrowly and that a "sanction"shouldbe interpreted Alabamaargues as that the withholding of a tax deductionis moreproperlycharacterized contends nor withholding a sort of rewardfrom an employer.Neither Congress the a of the Couri haspreciselydelineated boundaries what constitutes Supreme "we assume that a "sanction"under $ B2a@)$)(2). In interpreting statute, Congress usedthe words in a statuteasthey arecommonlyand ordinarily l2l2 F.3d 1206,, lnc.,,593 Elecs. Huntsville, Harrisonv. Benchmark understood." measure to (l lth Cir. 2010). A sanction commonly is understood be "a restrictive usedto punisha specificactionor to preventsomefuture activity." Webster's Third New InternationalDictionary 2009(1976). Notably,a sanction"may take the form of a rewardwhich is withheld for failure to complv with the law." Id. In as the its briefs,Alabamaitself characterizes relevantconsequence withholding of falls squarely within the and that description a "reward" (i.e. a tax deduction), The obviousgoal of section16 is "to commonusageof the term sanction.l2

't The Supreme matter,the meaningof that,"[a]s a general Court haslikewiseinstructed 'sanction'is spacious enoughto covernot only. . . punitive fines,but coerciveonesas well, and implicationthat a reference punitive fines is intended." to useof the term carriesno necessary This Llnited States Dep't of Energt v. Ohio,503U.S.607, 621,112S. Ct. 1627,1636(1992). tkough the to generality applieswith full force here,whcreAlabamaseeks coerceemployers and fines when an employertakesthose withholdingoftax deductions impositionof steep deductions.

Caseitl1-14532 DateFiled:08/2A/201"2paqe:30 a{ 57 preventsomefuture activity" of an employer-the hiring of unauthorized workers. We arethus persuaded the ordinaryunderstanding the term sanction that of encompasses sectionl6 prohibition tax deductions. the on The structure of$ 1324a offersfurthersupport thatthe sectionl6 prohibition preempted. is Congress utilizedtheword "penalty"to describe civil ftnesin $ 1324a(e)(a)(A), contrast useof"sanction"in subsection in (h)(2). to "WhereCongress includesparticularlanguage one sectionof a statutebut omits in it in another section the same presumed Congress that of Act, it is generally acts intentionallyandpurposelyin the disparate inclusionor exclusion." Russellov. (quoting United U.S. 16,23,104 Ct.296,300(1983) States,464 States S. United v. Wong Kim Bo, 472 F.2d720, 722 (5th Cir. I 972)(percuriam)).As the Tenth intended preemptonly thosestateIaws that are Circuit stated:"Had Congress to punitive, would haveexpected to use'penalties' $ 1324a(h)(2). we in Had it it It used'sanctions' $ 1324a(e)(4), might reach similarconclusion. did in we a '742,765 (1Oth Cir. neither." Chamber Commerce Edmondson,594 of v. F.3d 2010). andsimilarlaws" Along thoselines,by expressly "licensing exempting that the unqualifiedstatutoryterm from its reach,Congress implicitly recognized If "sanction"was broadenoughto coverthosetlpes ofnonpunitive measures.

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it Alabama'snarrow definition of a sanction, would not have had Congress shared to needed clarify that licensinglaws werepermitted,sincethey would not be Alabama'sreadingwoulc . as contemplated a sanctionin the first place Because we renderthe licensingexemptionsuperfluous, do not acceptits definition of (llth Cir' 2008) 1273,1280 "sanction." Huff v.DeKalbCnty.,516F.3d See provision to ("[C]ourts mustnot interpretoneprovision ofa statute renderanother (l1th (qu;oting Burlisonv. McDonald'sCorp.,455F.3d 1242,1247 meaningless." of Cir. 2006))). The licensingexclusionand the broaderstructure $ 1324athus the that Congress intended term "sanction"to encompass reinforceour conclusion penalties, accordance in with its ordinarymeaning. morethan simply monetary from a monetarysanction Sectionl6 is functionallyindistinguishable aliensbecause deniesemployers it who employ unauthorized irnposed prsons on immigration an otherwiseavailabletax deductionon accountof an employee's (permitting deductions "ordinaryand for status.SeeAla. Code$ a0-18-15(a)(1) in with federallaw); see expenses determined accordance as necessary" business as paidto employees an salaries reasonable aisoI.R.C.g 162(a)(l)(classifying business expense).Denyingthis deductionhasthe same ordinaryandnecessary by effect on an employeraswould the impositionof a direct fine. The means which Alabamatakesmoneyfrom the employeris a distinctionwithout a

Case: 11-14532 DateFiled: 0A2A|2O1Z Paqe: ot 57 32 differenceunderthesecircumstances, the attempted and end-runaround express preemption is clause impermissible. therefore We agree $ 1324a@)(2)'s with the districtcourtthat sectionl6 is preempted. 6. Section 17

Section declares it is a "discriminatory 17 that practice" an employer for to eitherfire or fail to hire an individual authorized work in the United States to while simultaneously an employing unauthoized. alienemployee. Ala. Code$ 31l3-17(a). It provides civil cause a ofaction for recovery ofcompensatory damages relatedto this "discriminatorypractice"as well ascourt costsand party. Id. $ 31-13-17(b) (c). Section17 also attomeys' feesfor the prevailing instructsthat "[t]he court shall consideronly the federalgovemment's when decidingwhetheran employee an unauthorized determination alien." Id. is l k, $ 3 1 - 1 3 - 1 7 ( eT.h e d i s t r i c t c o u r t f o u n d t hia te s e c t i o n l 6 , t h i s p r o v i s i o n i s ) preempted 8 U.S.C.$ 132aa@X2). agree. expressly by We Alabama'scivil-liability scheme actsto deteremployers from hiring and "restrictive retaining unauthorized aliens.rrSection 7 authorizes I

rr The privatenatureofthe liability is irrelevant. "[O]nly an arbitrarydistinctionexists betweensanctions initiatedby government thoseinitiatedby private individuals. Civil and liability necessarily bearsthe sanctionof govemment." 1A Sutherlond StahrtotyConstruclion (7thed.2009). $ 20:19
)z

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attomeys'fees,andmandatory mandatory damages, fi1snsu1ss"-ssmpensatory court costs-to punisha "specificaction"-hiring or retainingan unauthorized of employee.It thereforefits well within the ordinaryunderstanding a sanction. act-frring or refusingto Although section17 conditionsliability on a prerequisite doesnot obviatea finding that this worker-that requirement hire an authorized to sectionfunctionsas a sanction. Section17 at its coreis clearly intended punish ofunauthorizedaliens,and addinga conjunctiveconditionthat the employment doesnot underwhich this behaviorwill be punished targetsspecificcircumstances as its chanse essence a sanction. Our conclusionis in accordwith the Tenth Circuit's finding that $ 1324a stalute. Chamberof Commerce preempted similar statecompensatory a expressly the 594 v. Edmondson, F.3d742(10thCir. 2010). In Edmondson, TenthCircuit to employers "cease and desistorders, was facedwith an Oklahomalaw subjecting a back pay, costs,andattorneys'fees" if they terminated legal reinstatement, alien employee.594 F.3d at 765. In worker while retainingan unauthorized of additionto looking at the commonunderstanding the term "sanction,"the Tenth Circuit found instructivethe useof that term in otherprovisionsof federallaw. Seeid. at 765-66. The courtnotedthat "sanctions"in the FederalRulesof Civil attorneys'fees,costs,and other includedin their scopereasonable Procedure
JJ

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expenses. at 766 (citingFed.R. Civ. P. I 1(c)(a), Id. 37(dX3)).Like section17, precisely the Oklahoma included punishments statute those as described sanctions in otherpartsof federal1aw, which offeredfurtherjustifrcationthat it was preempted $ 1324a. expressly by Alabama threecases illustrate analogizes to that section 17's"compensatory remedies" cannot qualifyas $ 1324a In sanctions. noneofthosecases, however, is an employerrequiredto pay on accountof his having hired or retainedan unauthorized alien;the cause ofaction in eachcase on wasbased another statute wholly removedfrom any contingency employingan unauthorized alien. of Alabamafirst relieson Madeira v. AffordableHousingFoundation,Inc., in which the Second preempt state a workers' Circuitheldthat $ 1324a not expressly did compensation that levied damages law againstan employerwho refusedto pay an unauthorized worker who was injured on thejob. 469 F.3d 219, 23940 (2d Cu. 2006). There,the employer'sliability was totally unrelated the work to authorization any ernployee involved. Alabamaalso citesto Jie v. Liang Tai of Knitwear Co. for the propositionthat "a statutoryreference sanctions doesnot to equala reference daruages." Cal.Rptr.2d 682,690n.7 (Cal.Ct. App. to 107 2001). As in Madeira, the cause actionin Jie wasretaliatorytermination-an of

34

Case; 1L-14532 DateFiled: ABI2A/?012paoe:Sgof 57 actionnot in any way based the work authorization an employee.r.Finally, on of Alabamapointsto an equallyinappositecase, Mendozav. Zirkle Fruit Co., which held that theplaintiffs had stateda stateclaim for civil conspiracy based the on allegedhiring ofunauthorizedworkersin orderto depress ernployer's wages. No. 00-3024, 2000WL 3322517 at * 1I (E.D.Wash.Sept. 2000), d on other 0, 27, rev' grounds,30l F.3d 1163(gthCir.2002). Yet again, state the cause actionwas of not dependent whetherthe underlyingactsinvolved unauthorized on workers. These cases all dissimil fromthesection cause actionin whichliabilitv are ar 17 of is invariablycontingenton the hiring andretentionofan unauthorized worker. we arethuspersuaded the Tenthcircuit's reasoning Edmondson a much that in is closeranalogythanany of the cases cited by Alabama,andrve find that sectjon17 preempted g B2aaft)Q). is expressly by 7. Section 18

Section18, asamended, imposes requirement investigate, a to through inquiry under8 u.s.c. g 1373(c), whetherindividualsfound to be in violation of Ala. code $ 3?-6-l or g 32-6-9arepermissibly within the united states.Neither
raIt doesnot appear that the-rrcourt evenseriously considered express an preemption argument relatedto $ 1324a. The court's reasoning as centered aroundconflict preemption, see 107cal. Rptr. 2d at 589("[Tlhere is no conflict berween IRCA and the califomi a law that allows employees suefor wrongful termination. . . ."), and the absence anyprovisionof to of IRCA that expressed preemptive intent for federallaw to trump "long-standing statelaw that allows a private cause actionfor wrongful termination,,' at 690. of id.

35

36 Case: 1L-14532 DateFiled: 08l?012012 Paoe: of 57 ofsection l8 prior to the the districtcourtnor this courtenjoined enforcement H.B. 658amendment. light af Arizona,we find at this time thattheUnited In challenge sectioni 8.r' to is in States not likely to succeed its preenforcement to thatAlabama We havealready with respect section12(a) determined officersmay inquire into the immigrationstatusof individualslawfully detained. Court'srejection a similar of This conclusion consistent is with the Supreme that inArizona. 132S. Ct. at2507-10. Sectionl8 specifies an challenge immigration-status inquiry mustbe performedfor any individual found in driving I violationof Ala. Code$$ 32-6- or 32-6-9-provisionsconceming suspicion without a valid license-regardl,ess whetherthe officer hasreasonable of to believethat the individual is unlawfully present. q/ Ala. Code $ 3 I - 13-12(a) in in (requiringreasonable suspicionof unlawful presence orderto engage the is element suspicion the of inquiry). We believe absence a reasonable $ 1373(c) by contemplated 8 U.S.C. communication irrelevant light of the federal-state in officer'sbeliefof the inquired-about on which is not contingent a state $ 1373(c), has Arizona, 132S. Ct. at 2508 ("Congress individual's immigration statrts.See
rsThe challenge sectionl8 is not moot. The arguments the district court,and those in to this madeprior to rheArizona ruling, hingedon whetherthe statehad the authorityto mandate be that an arrestee takento a requirement ti,peof immigrationinquiry. The removalof the nor doesnothingto moot the challenge, doesthe clarificationof the extentof magistrate a by sectionl8 "renderthe original controversy mereabstraction."Naturist detentionauthorized F.2d1515, 1520(1lthCir.1992). Inc.v. Fillyaw,958 Soc'y,
to

37 Date[:iled:081?012*t2 Page: of $7 case: 1"1-:1"4532 to or madeclearthat no formal agreement specialtraining needs be in placefor regardingthe with the fFederalGovemment] stateofficersto 'communicate added)(quoting8 U'S.C. of immigration status any individual . . . ."' (emphasis

$ 13s7(e)(1OXA))).
we Furthermore, mustgive the statean opportunityto clarify the extentto 18. undersection Seeid. at 2509-10. Although are which detentions permissible to we this provisioncould be construed allow a detention, do not rule out the differently. The statecould, for example, possibilitythat it could be interpreted mustbe or determine that sectionI 8 doesnot authorizedetention that a detention limited in certainways. In sum,Arizona instructsus that a preenforcement and under section18 is inappropriate, we challenge the possibility of detention to at arguments this time. thereforerejectthe preemption 8. 27 Section

Section27 prohibitsAlabamacourtsfrom enforcingor recognizing contracts betweena party and an unlawfully presentalien,providedthe party knew knew that the alien was in the United States unlawfully. Ala. or constructively are though, andthose Certain contracts permissible, Code$ 3l-13-26(a).16
'6 We agree to by with the partiesthat the minor alterations section27 effectuated H.B. 658 do not moot this case. H.B. 658 clarifredthat the provisiondid not apply to "a contract or entered into prior to [its] effectivedate" or to "a contractfor the appointment retentionoflegal
1,1

Case: 11-14532 DateFiled: A8l2Al2OL2Paqe: ol 57 38 helpillustrate exceptions Alabama's goalin enacting 27: end section forcing undocumented individualsout of Alabama. A contractis permissible for if, it example, canreasonably completed be within 24 hoursof formation.1d Additionally, contracts permitted providefor ovemightlodging,food, are to medicalservices, transportation "that is intended facilitatethe alien's retum or to to his or her counhyoforigin." Id. 5 31-13-26(b). light ofthesenarrow In to prohibited exceptions section undocumented 27, will be practically from aliens enforcing contracts basicnecessities.rT saythatsection is extraordinary To 27 for as and unprecedented lvould be an understatement, it imposes statutorydisability a typically reserved thosewho areso incapable to rendertheir contracts as void for or voidable. Essentially, ability to maintainevena minimal existence no the is longeran option for unlawfully presentaliensin Alabama. The powerto expel alienshaslong beenrecognized an exclusively as power. See federal Fok YungYov. UnitedStates, U.S.296,302,22 S. Ct. 185 1 686, 688(1902);Fong YueTing v. UnitedStates,749 U.S. 698, 70G-O'1, 3 S. Ct.

haveneitherremovedthe "challenged counselin legal matters." H.B. 658, $ l. Thesechanges argument so features" ofthe prior law nor alteredthe fundamental ofthe United States, we find the controversy not moot. Fillyaw,958 F.2d at 1520. is '7 Although an unlawfully present alien could technicallyenterinto a contract,the other party could withdraw from it with impunity,taking the proceeds leavingthe alien with no and recourse.

38

1L-14532 Date

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39 {if 57

powerto grant federal and 1016,1019(1893). Thepowerto exclude the related fiom the conception to an alienpermission remain"exist asinherentlyinseparable Exp. Corp.,299 U.S. 304, of nationality." Seetlnited Statesv. Curtiss-Wright govemment "is the 318,57 S. Ct. 216,220(1936).This is so because federal with full and exclusiveresponsibilityfor the conductof affairswith entrusted . foreign sovereignties," which includesthe field of immigration Hines v. Davidowitz,312 U.S. 52,62 63,61 S. Ct. 399,402(1941);seealsoArizona,132 9-80 (1876). In light of 92 S. Ct. at 2506-07 ChyLung v. Freeman, U.S.275, 2'1 ; theseprinciples,a state'sdecisionto impose"distinct, unusualand extraordinary intrusion an burdensand obligationsupon aliens"may constitute impermissible into the federal domain.Hines,3 12U.S. at 65-66,61 S. Ct. at 403. We believe that the blanketprohibition ofthe right to enforcenearlyany contracteasily qualifiesas an extraordinary burden. The ability to contractis not merelyan act oflegislative grace;it is a is for capabilitythat, in practicalapplication, essential an individual to live and of in is conductdaily affairs. The importance contracts the United States federalstatute, reaffirmedby the Constitution, andthe Supreme Court. ,See U.S. Jones Alfi'edH. Mayer Co.,392 v. Const. I, g 10,cl. 1; 42 U.S.C.$ 1981(a); art. U.S.409, 432,88S. Ct. 2186,2199(1968)(recognizing right "to make the
39

Case: 11-14532 DateFiled: Aet20l2AL2 Pase:40 at57 contracts"asone of the "greatfundamental rights"). Consistent with this general recognition,the Alabamalegislatureand courtshavecraftedlimitations on the essential right to contract only in circumstances wherethe contracting individual is presumptively incapable conducting of their own affairs.'*See, e.g.,S.B. St. v. James Sch.,,959 2d72,96 (Ala. 2006)(explaining minorsunderthe ageof So. that nineteenaregenerallyincapable contracting of underAlabam law); Lloyd v. a Jordan,544So.2d.957,959(Ala. 1989)(discussing lack of contractual the capacity the mentallyi11); of Williamson Matthews,379 2d 1245,124748 v. So. (Ala. 1980)(explaining an individual'sintoxication renders contract that a voidable); alsoAla. Code$ 26-1-1(defining ageof majorityunderstate see the law); id. $ 26-13-1et seq.(prescribing procedures relieveminors from the to disabilities nonage). of from its scope As previously section excepts 27 contracts (l) for stated, "lodging for onenight," (2) food, (3) medicalservices. (4) transportation and intended "facilitate alien'sretumto his or her countryof origin." Ala. Code to the "distinct, which imposes Considering provision, this unusual and $ 31-13-26(b).

r8Seea/soRestatement of Contracts 13 cmt. a (ustifying the lack of contractual 2d $ capacityofpersonsunderguardianship); g 15 cmt. a (offering the rationalethat a person id on sufferingmentaldisease dutiesbased "protectionofpersons incursvoidablecontractuaI unableto Drotectthemselves").

4l08l2ol20tz PaEe: ot 57 Case:1l--14532 DateFlled:

S. btrdens,"Hines,312U.S.at 65.,61 Ct' at 403,in conjunction extraordinary enforcement, Ala. see that requiremaximumandmandatory with the sections -6, has a that Code$$ 31-13-5., we areconvinced Alabama crafted calculated to policy of expulsion,seeking makethe lives of unlawfully presentaliensso difficult asto force themto retreatfrom the state. Seealso Ala. Code$ 3 1-13-23 beingmadein the effort to reducethe (requiringa periodicreporton "the progress this numberof illegal aliensin the Stateof Alabama"). Because power is retained by section27 is preempted the inherentpower of only by the federalgovernment, at354, De immigration.See Canas,424U.S. govemment regulate to the federal a exclusively 96 S. Ct. at 936 ("Powerto regulateimmigrationis unquestionably power."(emphasis added)).'' federal to It is alsoclearto us that the expulsionpower Alabamaseeks exercise statutoryframework comprehensive throughsection27 conflictswith Congress's categories of has the govemingalienremoval. Congress specified numerous alienswho are subjectto removal,8 U.S.C.$ 1227,and identifiedthe particular proceedings, g 1228. Congress id. furtherprovided classes subjectto expedited

reOur conclusion fully consistent with De Cancs,wherethe Supreme Court ruled that a is regulationof immigration. 424 U.S. statute!r,as an r.rnconstitutional not Californiaemplo)4nent above,section27 hasmuch more than a "purely S. Ct. at 936. As stated at 355-56,96 is to speculative indirectimpacton immigration"and,therefore, not comparable the statute and at issue inDe Canas.Id. at 355,96 S. Ct. at 936.

Case:11-14532 DateFiled:08120!2012 Paqe:42 of 57

that the detemination of removabilitytypically mustbe madeby an immigration judge consistent with the procedures forth in the INA. 1r/.g 1229a(a)-(b). set Variousstatutes govemthe relief available aliensotherwise to subject to removal-that is, thosealienswho are in the countryunlawfully but pemitted to remain, permanently temporarily.See, whether or e.g.,8U.S.C.$ 1158 (governing alien'sapplication asylum); i 1229b an id. (regulating for cancellation of removalandadjustment the alien'sunlawfulstatus); $ 1229c of (prescribing ld. the conditions voluntary of departure); $ 1231(bX3) id. (goveming withholding of removal); also 8 C.F.R.$ 208.16(c)(conhollingclaimsunderthe United see NationsConventionAgainst Tortureand OtherCruel, Inhumanor Degrading Treatment Punishment). enacting or By 27, section Alabama essentially has decidedthat unlawfilly presentalienscannotbe toleratedwithin its territory, without regardfor any ofthe statutory processes avenues grantingan alien or for permission remainlawfully within the country. to intendsthe It is also obviousfrom the statutoryscheme that Consress Executive Branchto retaindiscretion and overexpulsion decisions applications forrelief.20 Holderv.Martinez See Gutierrez.566U.S. . 132S. Ct. 2011.

20 as Control over the expulsionofaliens haslong beenrecognized "a power affecting international relations," Fong YueTing,149U.S. at 713, l3 S. Ct. at 1022, thusbringingit within the province ofthe Exec;.ttive, Am.Ins.Ass'nv. Garamendi,539 see U.S. 396,414, 123S.

42

:"1"-14532 DateFiled:A8!2O120]"2

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2015(2012)("The immigrationlaws havelong given the Attomey General aliensto remainin the United discretionto permit certainotherwise-removable decision vest to bestillustrated Congress's by This discretion perhaps is States."). proceedings, adjudicate to exclusivepower in the Attorney General "commence Renov against alien." 8 U.S.C.$ 1252(9); any or removalorders cases, execute S. Comm..525 U.S.471.483-85,119 Ct.936, Anti-Discrimination Am.-Arab codifiedin $ 1252(9)). discretion the 94344 (1999)(discussing administrative that contemplated officersof the ExecutiveBranchwould Similarly, Congress ect relief theirjudgmenton the subj of grantingtemporaryor permanent exercise (permitting AttomeyGeneral the or from removal.See8 U.S.C.$ 1158(bX1XA) (b) of Secretary HomelandSecurityto grant asylum);id. $ 1229b(a), (permitting and to the AttorneyGeneral cancelremovalproceedings to adjustan alien's (b) the immigrationstatus);id $ 1229c(a), (authorizing Attorney Generalto permit an alien'svoluntary deparhrre); $ 1231(bX3)(prohibitingremovalif the rd Attorney Generaldetermines alien's life or freedomwould be threatened the on grounds). And alongwith this disuetion, Congress any of the specifred sharply

(2003).SeealsoArizona,132S. Ct. at 2498;Harisiades Shaughnessy,342 v. Ct.2314,2386 588-89,72 S. Ct. 512,519 (1952)("[A]ny policytowardaliens vitally and is U.S. 580, policiesin regardto the conductofforeign intricatelyinterwovenwith contemporaneous relations....").
{J

11-L4532 Date Case: Filed: AA|2U2A12Paqe: of 57 44 limitedjudicial reviewof the immigration-related adjudications. id. See (b)(4). These statutes point to oneconclusion: intended Congress $ 1252(a)(2), that the ExecutiveBranchdetermine who mustbe removedandwho may permissibly remain. Throughsection Alabama takenit uponitselfto 27, has unilaterallydetermine that any alien unlawfully presentin the United States cannot live within the state'sterritory, regardless whetherthe ExecutiveBranchwould of exercise discretion permitthe alien'spresence. its to This is not a decision for Alabama make,2r we find that section conflicts with federallaw. to and 27 Alabamaargues that section27 is shielded from preemptionbecause it legislates the field of contract in law,which is tlpically within the province the of states thereforeentitledto the presumption and againstpreemption.While it is true that contractis a matterof traditionalstateconcern,that doesnot resolvethe preemption inquiry. Indeed,the Supreme Court's decisionin Crosbyv. National position. 530U.S. 363,120S. Ct. 2288 ForeignTradeCouncilrefutes Alabama's (2000). ln Crosby,Massachusetts a enacted law to reshict the ability of state agencies buy goodsandservices business to from companies conducted with that Burma. Id. at367,120 S. Ct. at 2291. Congress, however, a enacted statute

'zrIf everyother stateenacted the similar legislationto overburden lives of aliens,the immigrationscheme would be turnedon its head. The federalgovemment-not the fifiy states working in concert-retains the power to excludealiensfrom the country.

Case: 11,14532 DaieFited: AB/ZA|ZAQpaqe: ofgT 45 imposingmandatory and conditionalsanctions Burmajust threemonthsafter on the Massachusetts wasenacted. at36g,l20 s. ct. at229l. Theintended law Id. resultof the statestatute-like its federalcounterpafi-was economic pressure on the Burmese govemment, the statesoughtto achieveits goal throughthe and state'sown purchasing power. The court concluded that, evenif a presumption against preemption applied,the Massachusetts statute regulatingthe state'sown business transactions would not escape preemp tion. Id. at374n.g,120S. ct. at 2294. similar to the situationathand,congresshad promulgated federallaw to ensure that the Executivehad "flexible and effectiveauthority,'over the economic sanctions, which contributed the finding of preemption.see itl. at 3i4, 120s. to Ct.at2295. The supremecourt has alsoinstructedthat a preemption analysis must contemplate practicalresultofthe statelaw, not just the means the that a state utilizes to accomplish goal. rn BuckmanCo. v. plaintiffs' Legal committee, the the supremecourt found that a statetort causeof action-an areaof traditional stateconcem-was preempted federarlaw wherethe underlyingaflegations by concemed fraudagainst federal a agency.531U.S. 341,347,121S. Ct. 1012., 1017(2001)("Policingfraudagainst federal agencies hardly,a field which is States havetraditionallyoccupied'. . . ." (quotingRice v. santa Fe Erevator
45

the

Case:11-14532 DateFiled:0812012012 Paqe:46 of 57

Corp., 33| U.S.2 I 8, 230,67 S. Ct. I | 46, \ 152 (]947))). The concern wasstated moreexplicitly in Wisconsin Departmentof Industry,Labor & HumanRelationsv. Gould,Inc.,wherethe Courtconsidered state that a statute regulated state's the ownpurchase ofgoodsandservices. U.S.282,283-84,106 Ct. 1057, 475 S. "[T]hepointofthe[state] 1059-60(1986). statute,"theCourtexplained,was"to deterlaborlaw violations."Id. at 287 106S. Ct. 106I 62; seealso ld. (observing , that"[n]o otherpurpose couldcrediblybe ascribed" the state to law). Thus,even thoughthe statepurportedto govem in an areaof traditionalstateconcern,it could not "enforcethe requirements" offederal regulations throughits own statutory Id. scheme. at297,, S. Ct. at 1064. Stated 106 another way,"[t]he fact thatthe powerrather State'hadchosen useits spending to thanits policepower"' did not remedythe conflict between federaland statestatutes.Crosby,530U.S. at the 373n.7,120S. Ct. at2294(quoting Gould,475 U.S.at 289,106S.Ct. at 1062). Like the statestatutes Crosby,Buckman,andGould,the thrustof section in 27 is to impingeon an areaof corefederaiconcem. It constitutes thinly veiled a attemptto regulateimmigrationunderthe guiseof contractlaw, andthus,we do applies. SeeBuckman,531 U.S. at not think the presumption againstpreemption ,See that it is preempted. we 34748,121 S. Ct. at l0l7 . Evenif it does, conclude

46

Case:11-1.4532 DateFiled:08120/2012 Fage:47 at 57

Crosby,530 U.S.at374n.8,120S. Ct. at 2294.22 9. Section 28

Section28 requiresAlabama'spublic elementary secondary and schools to request ceftarndocumentation from enrollingchildrenin orderto classifythem as eitherlawfully or unlawfullypresent within the united States. Ala. code $ 31-1327(a). The United statescontends, it did in the district court,that section2g is as preempted 8 U.S.C.g l6a3(a)(2), by which provides thatno federal law ,.may be construed addressing as alien eligibility for a basicpublic education determined as by the Supreme court of the United States underp lyler v. Doe.,' The dishict court did not preliminarily enjoin section28, but this court did enjoin its enforcement pendingappeal. we havefoundin theprivateplaintiffs'companion case, No. l1-14535, that section28 violatesthe EqualProtectionclause asinterpreted plyler. Thus.it rs in unnecessary address united States's to the argument that it is alsopteempted by federallaw, thoughwe recognize that the statutory referen to plyler meansthat ce the inquiriesnecessarily overrap.Because reverse district court's we the dispositionof this claim in the privateplaintiffs' case, dismissthe united we
22 Alabamasuggests its supplemental in brief fhat section27 courdbesaved severing by th "constructive knowledge"elementof the provision. we do not think that the purpose tne or effectof rhe statute would be materiallyalteredby that.

47

Case:11-l-4532 Date Filed:08/20/201"2 Paqe:48 of 57 States'sappealas moot.

10.

Section 30

As originallyenacted, section provided 30 thatan unlawfullypresent alien "shallnot enterinto or attempt enterinto a business to transaction with the state or a politicalsubdivision" thereof.Alabama contended this language that covered only hansactions obtainlicenses, the districtcourtadopted reading to and that of the law in makingits decision.SeeUnitedStates Alabama, v. 2d 813F. Supp. at I 350-5 I . Sinceoral argument this appeal, Alabamalegislature in the amended section30 to clarify that it is a criminal act for an unlawfully present alien to enter into certain "publicrecords transaction[s]." H.B. 658,$ 1.'?3 is This phrase for "a defined applying or renewing motorvehiclelicense as plate,""a driver's license nondriver identification "a or card,""a business license," commercial license," "a professional or license."1d Section as amended, that it 30, clarifies for doesnot reachapplications a marriagelicense,transactions relatedto housing paymentof propertyor othertaxes,or "any other or propertyownership, transaction."/d. Thus,by the termsof the newly enacted section30, the state legislature clarified thatthe criminal prohibitionsapply only to six select has

23 is also unlawful for any individual to enteror attemptto enterinto any ofthesc It present transactions behalfof an unlawfully alien. Ala.Code$ 31-13-29(b). on

1!-14532

Daie

49 OS|2j|ZOLZ Page: of 57

plates, driver'slicenses, vehiclelicense licenses: of categories state-issued licenses, professional and commercial licenses, business cards, identification behaviorcommitsa class in licenses.An individual who engages the proscribed by whichis punishable a termof imprisonment C felony,Ala. Code$ 31-13-29(d), fine of additional and id. oneandten years, $ 13A-5-6(a)(3), a possible ofbetween see see up to $ I 5,000, id. $ 13A-5-l 1(a)(3); alsotd $ 13A-5-2(a)-(b).'o that argument the particularlicensingrestrictions First, we dismissarTy (a) by housedin subsection arefacially preempted federallaw. Throughthe 119 231,313 Pub.L. No. 109-13, 202(c)(2)(B), Stat. REAL ID Act of 2005, $ to individualstates encouraged (codified noteto 49 U.S.C.$ 30301), Congress as to of requireevidence lawful statusas a prerequisite issuinga driver's licenseor may thuspermissibly identificationcardto an applicant. Given that the states from unlawfully presentaliens,it follows that it is withhold theseinstruments perfectlylegitimatefor Alabamato withhold a motor vehicle licenseplate from an

2a concludethat thc challenge section30 is not moot. Section30(d),the subsectton to We only to clarifu that it appliesto unlawfully that imposescriminalpenalties, beenamended has (b). We understand this in present aliensor thosewho act on their behalf,asstated subsection challenge, H.B. 658 hasnot and to criminalization be the main tlrust of the United States's removedthis "objectionable feature[]of the prior law," Fillyaw,958 F.2d at 1520. Moreover, that in H.B. 658 alignedthe text of section30(a)with the interpretation Alabamaadopted the consistently briefing and that the district coufi appliedin its ruling. Because United States transactions, the evenif limited to business argued that the former section30 was preempted hereremainslive. controversy

49

paqe:50 of 57 Case: 11-14532 DateFiled: 0812012012 individualwho cannot lawfully operate vehicle. the Thewithholdingof business, commercial, professional and licenses is likewisepermissible. Pursuant Title IV of the Personal to and Responsibility Work Opportunity Reconciliation of 1996("WelfareReformAct"), Pub.L. Act No. 104-193., Stat. 110 2105, Congress some present deemed unlawfully aliens ineligiblefor certain state andlocalpublicbenefits the explicitly unless state provides otherwise. See8 U.S.C.$ l62l . Thebenefits which suchaliensare for ineligibleincludeany "professional provided license[] commercial or license by an agencyofa Stateor local gor/emment by appropriated funds of a Stateor or local govemment;'Id. $ 1621(c)(1)(A). Congress's definitionof the relevant benefitsappears us entirelyconsistent to with the licenses that Alabamawithholds throughsection 30. As Congress eitherexpressly implicitly approved the has or of state's withholdingof a license eachof the six categories in within thepurviewof restriction not faciallypreempted. is section the state's 30, between the The United States observes theremay be an incongruence that two federalstatutes Alabama'slicensingrestrictions, insofarasthe lattermay and under be applied certain aliens who mayin factbe eligiblefor the licenses to has federallaw. This argument someforce. Indeed,the key phrasein section in 30(b)-"a1ien not lawfully presentin the United States"-could be construed a

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way that it would be in tensionwith the REAL ID Act, see,

Pub.L. No. 109-

that I 13,$ 202(c)(2)(B)(vi), 19 Stat.at 3 13 (contemplating an alienwho "hasa pendingapplicationfor asylum"can obtaina driver's license),andthe Welfare Reform Act, see, (providing "an alien that 1641(bX5) 8 U.S.C. 1621, $$

is whosedeportation beingwithheld" is a "qualified alien" eligible for state to benefits). But section30 couldbe construed avoid this problem,and if this in addressed the contextofan asissuedoesarise,it may be more appropriately challenge. applied then is whethersection30 canbe upheldinsofaras subsection The question applicationfor the (d) creates new statefelony for applicationor attempted a of the emphasizes completeabsence federal licenses.The United States requested positsthat attached licensingapplications.The United States to criminal penalties are to with attempts apply for statelicenses the felony criminal penaltyassociated under the because only resultcontemplated inconsistent with the federalscheme license.25 Although thereis somepull to this federallaw is denialof the requested
t' The United States and that also suggests section30, both as originally enacted as "an alien'sunlawful presence Alabama." Supplemental in amended, effectivelycriminalizes with the this to be the case. We agree at Brief of the United States 13. We havedifficulty seeing had and effectof driving that section30, as originally enacted, the purpose United States unlawfully presentaliensout of the state. It criminalizedany attemptby suchaliensto enterinto "dn] transaction betweena personand the stateor a political subdivision,"with the exceptionof (emphasis arJded), amended byH.B. for applications marriagelicenses.Ala. Code $ 31-13-29(a) that thesealienswould be deprivedofbasic needs,such 658, $ L Thus,it clearlycontemplated 5l

Case:11-14532 DateFiled:0812A12012Page: of 57 52

argument, this point we do not find it entirely at persuasive. The United States identifiesthe REAL ID Act andthe WelfareReformAct asthe sources federal preemption. of But our examination ofthesestatutes does (d) not leaveus with the impression subsection would be inconsistent that with federalobjectives.As relevanthere,the REAL ID Act providesthat the federal govemment not accept state-issued will a driver'slicense identification or card unlessthe stateverified the citizenshipor immigrationstatusof the applicant g beforeissuing document. the ,See Pub.L. No. 109-13, 202(cX2XB), 119Stat.at 313. Notably,this measure doesnot prohibitstates from issuingdriver'slicenses or identification cards unlawfullypresent to aliens.Nor doesit evenrequire that states verify the citizenshipor immigrationstatus thosewho apply for such of documents.Rather,it providesan incentive-albeit a strongone-for states to institutesucha verification scheme. The REAL ID Act thus doesnot purportto comprehensively regulate

policy ofexpulsion. aswater,garbage, sewerservices.It thus amounted an impermissible to and As amended, however,section30 criminalizesonly the attemptto obtainvehiclc license platesand variouslicenses.The scopeofsection 30, asamended, thus considerably is smaller, and we do not think that it hasthe effect of making it impossiblefor unlawfully presentaliensto live in Alabamaor otherwisecriminalizingtheir presence. so the This is especially because state rnaywithhold thesebenefits,consistent with the REAL ID Act and the WelfareReform Act. to Section30 only operates proscribeconductin which unlawfully present aliensareunlikely to given that,throughH.B. 56 and prior legislation, not engage, Alabamahaschosen to makethem '7 eligible for thesespecificbenefitsin the first place. Seealso Ala. Admin. Coder, 60-X-l -.20 (requiringdriver's licenseapplicants submitproof of authorized presence). to

52

AWZB|2812pagel53 {rf57 1X-14532 DateFiled: Case: aliens. Ratheqit identificationcards,andunlawfully present driver's licenses, to open,giving room for the states adoptdifferent leavesthe field essentially at H.R. Rep.No. 109-72, 177(2005)(Conf. this policiesconceming subject.See 240,302(notingthattheREAL ID Act in reprinted 2005U.S.C.C.A.N. Rep.), and "doesnot directly imposefederalstandards" that "statesneednot complywith the listed standards").Given the limited scopeof the REAL ID Act, we do not see Alabama'sdecisionto makeit a crimefor an unlawfully present how it forecloses alien to attemptto get a driver's licenseor identificationcardonceit hasdecided that suchaliensareineligible for thesedocuments. section30(d),insofaras it The ideathat the WelfareReformAct preempts restson moresolid licenses, commercial, professional and business, concems a to ground. That legislationsoughtto establish "nationalpolicy with respect in enacted an attemptto'?emove the welfare andimmigration,"onethat Congress incentivefor illegal immigrationprovidedby the availability of public benefits." 8 U.S.C.$ 1601. Thus,theWelfareReformAct is similarto IRCA in thatit the a represents concerted effort on the part ofCongressto address flow of illegal the across nation's borders.SeePatelv. QualityInn South,846F.2d immigration enacted IRCA to reduceillegal the 700, 704 (1lth Cir. 1988) ("Congress immigrationby eliminatingemployers'economicincentiveto hire undocumented
53

Case: 11-l-4532 DateFiled: O8l2Ol2Al2 paqe:54 ot 57 aliens."). But the WelfareRefom Act is differentfrom IRCA in a crucial respect. IRCA is a "comprehensive scheme," Hoffman PlasticCompounds, U.S.at 535 147 122 S. Ct. at 7282,that embodies "carefulbalancestruckby Congress," a , Arizona,132S. Ct. al2505. Specifically, history IRCA's lengthylegislative shows"thatCongress madea deliberate choicenot to impose criminalpenalties on aliens in, who seek, engage unauthorized or employment." at2504. The Id. judgment "a legislative would be record reflects considered that Isuchpenalties] policy andobjectives." For this reason, inconsistent Id. eventhough with federai the text of IRCA itselfdoes prohibitstates not on from imposing sanctions unauthorized alienswho engage work, the individual states not free to do so. in are Seeid. at 2504-05. The sameconclusiondoesnot seemto obtainunderthe WelfareReform Act. It is true that the statuteis singularlyfocusedon the withholding of licenses, But andit doesnot providefor criminalsanctions. 8 U.S.C.$ 1621.':6 the See

'u The WelfareReformAct also seems be of a differentcharacter thanIRCA in that it to perceivcd.Indeed, doesnot purport to offer a definitive approach the problemthat Congress to althoughCongress madethe determination unlawfully presentaliensgcnerallyshouldnot be that couldopt out ofthat eligiblefor licenses, 8 U.S.C.$ 1521(a), alsocontemplated states see it that that states choosenot to "follow rule, seeid. $ 1621(d); also id. $ 1601(7)(recognizing see can '). accepted that states the Federalclassification Thus,far from occupyingthe field, Congress would adoptdifferentpolicieson licenses unlawfully present and aliens.

54

55 AAnUzAlz PaEe: of 57 11-14532 DateFiled: Case: and has rule out suchpenalties, the United States also doesnot expressly statute not cited any legislativehistory, similar to that of IRCA, that would reflect "a judgment" on the part of Congress "that [suchpenalties] would be considered policy andobjectives." Arizona,132S. Ct. at 2504. ln with inconsistent federal (d) like subsection of the absence sucha showing,it is not evidentthat a measure policy objectives andthusbe impliedly preempted. would detractfrom Congress's (d) Ofcourse,this is not to saythat subsection is, withouta doubt,in design. Alabamahasdecidedto makean harmonywith the existingcongressional by attemptto seeka licensean offensethat is punishable up to ten years additional fine of up and see imprisonment, Ala.Code$ 13A-5-6(a)(3), a possible see see to $15,000, id. $ I 3A-5-1I (a)(3); also,d. $ 13A-5-2(aF(b)." Congress may very well havethoughtthat this kind of penaltyis inappropriate.(/ H.R. pt. reprinted 1986U.S.C.C.A.N. 5649,5650 in Rep.No. 99-682, I, at 46 (1986), (discussing the contextof IRCA that employer, ratherthanemployee, sanctions in to credibleand effectiveway" of responding the influx of are"the mosthumane, has aliens). But the United States not drawn our attentionto any undocumented this. As a result,for now, thereis only "a legislativehistory to demonstrate

27 observe highly unlikely We againthat section30 only criminalizesconductthat appears not to occur,given that Alabamahaschosen to makethesespecificbenefitsavailablein the first place.

55

paqe: of 57 11-14532 Date Case: Filed: O8l2Ol2O12 56 hypothetical potential conflict,"which is insufficient establish preemption. or to Ricev. NormenWilliamsCo.,458U.S.654, 659,102S. Ct. 3294,3299(1982). In sum'we conclude the restrictions licenses, clarifiedby recent that on as amendment, not faciallyin tension are scheme. with the federal immigration We alsohold thatat this stage, UnitedStates not shownthatthe criminal the has provisions located section in 30(d)arepreempted federal by law. B. Equitable Factors

The equities those weighin favor of enjoining provisions arepreempted that by federallaw. The United States suffersinjury when its valid laws in a domainof federalauthorityareundermined impermissible stateregulations.Frustration by of federalstatutes prerogatives not in the public interest,andwe discem and are no harmfrom the state's nonenforcement invalidlegislation.For these reasons, of andthe numerous reasons detailedabovethat requirefederallaw to prevail,the 10, equities favorenjoining enforcement sections l1(a), l3(a), 16,77 and27. of III. Conclusion with the Justlike Aizona, Alabamahas 'tnderstandablefrustrations problems caused illegalimmigration."Arizona,, S. Ct. at 2510. Although by 132 it is a problemthat givesrise to uniqueissues our Nation, we mustbe mindful in "may not pursuepoliciesthat underminefederallaw." 1d that individual states

page:57 of 57 A812A12012 Ca$e: l-L-14532 DateFiled: to on is We find that the United States likely to succeed the meritsof its challenge with its positionsetforth in l3(a), 16, L7,and27. Consistent 10, sections 11(a), that it is not likely to briefing, we agreewith the United States supplemental to l2(a) or section18 at this time. succeed the meritsof its challenge section on has We alsofind that the United States not shownat this stagethat it is likely to to succeed the meritsof its challenge section30. Finally, we dismissthe on 28 appeal to section asmoot,asour opinionin theprivate as UnitedStates's of fully disposes thatissue.28 plaintiffs'companion case AFFIRMED IN PART, REVERSED IN PART, DISMISSED TN PART, ANDREMANDED.

'?8 light ofour disposition,Alabama'smotion to partially vacatethe injunctionis In granted.A separate ordersballissue.

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