Chicanos Por La Causa, Inc. v. Napolitano

558 F.3d 856

CHICANOS POR LA CAUSA, INC.; Somos America, Plaintiffs-Appellants, and Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Wake Up Arizona! Inc.; Arizona Landscape Contractors' Association; Arizona Contractors Association, Plaintiffs, v. Janet NAPOLITANO; Terry Goddard; Gale Garriott, Defendants-Appellees.

Chicanos Por La Causa, Inc.; Somos America, Plaintiffs, and Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Wake Up Arizona! Inc.; Arizona Landscape Contractors' Association; Arizona Contractors Association, Plaintiffs-Appellants, v. Janet Napolitano; Terry Goddard; Gale Garriott, Defendants-Appellees.

Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors

Association; National Roofing Contractors Association; Arizona Landscape Contractors' Association, Plaintiffs-Appellants, and Wake Up Arizona! Inc.; Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America, Plaintiffs, v. Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V. Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendants-Appellees.

Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Arizona Landscape Contractors' Association, Plaintiffs, and Wake Up Arizona! Inc.; Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America, Plaintiffs-Appellants, v. Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V. Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendants-Appellees.

Arizona Contractors Association, Inc.; Arizona Employers for Immigration Reform Inc.; Chamber of Commerce of the United States; Arizona Chamber of Commerce; Arizona Hispanic Chamber of Commerce Inc.; Arizona Farm Bureau Federation; Arizona Restaurant and Hospitality Association; Associated Minority Contractors of America; Arizona Roofing Contractors Association; National Roofing Contractors Association; Arizona Landscape Contractors' Association, Plaintiffs, Valle Del Sol Inc.; Chicanos Por La Causa, Inc.; Somos America, Plaintiffs, and Wake Up Arizona! Inc., Plaintiff-Appellant, v. Criss Candelaria; Ed Rheinheimer; Terrence Haner; Daisy Flores; Kenny Angle; Derek D. Rapier; Martin Brannan; Andrew P. Thomas; Matthew J. Smith; James Currier; Barbara Lawall; James P. Walsh; George Silva; Sheila Polk; Jon Smith; Terry Goddard; Fidelis V. Garcia; Gale Garriott; Melvin R. Bowers Jr., Defendant-Appellant.

No. 07-17272.

No. 07-17274.

No. 08-15357.

No. 08-15359.

No. 08-15360.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2008.

Filed September 17, 2008.

Amended March 9, 2009.

Jonathan Weissglass, San Francisco, CA, attorney for plaintiffs/appellants.

Mary O'Grady, Phoenix, AZ, for the State defendants/appellees.

Roger W. Hall, Phoenix, AZ, for defendant/appellees, Apache, Cochise, Gila, Graham, Greenlee, La Paz, Navajo, Santa Cruz, and Yavapai Counties.

Daniel Jurkowitz, Tucson, AZ, for defendant/appellee, Pima County.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. Nos. CV-07-01355-NVW, CV-07-02496-NVW, CV-07-02518-NVW.

Before: MARY M. SCHROEDER, JOHN M. WALKER, JR.,^* and N. RANDY SMITH, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The Opinion filed on September 17, 2008, and appearing at 544 F.3d 976, is amended as follows: on slip Opinion page 13076, lines 21-22, change heading "B." to read:

B. The Act's provisions mandating the use of E-Verify and creating potentially harsh sanctions are not impliedly preempted by federal law.

The Opinion filed on September 17, 2008, and appearing at 544 F.3d 976, is further amended as follows: on slip Opinion page 13078, line 14, insert the following text:

Plaintiffs also argue that the Act's potential sanctions of suspension or revocation of an employer's business license impliedly conflict with IRCA because the Act's sanctions are harsher than IRCA's monetary sanctions. Plaintiffs urge that the harsh sanctions, even though expressly saved from express preemption, have the effect of encouraging employers to discriminate, and that such an effect would conflict with IRCA's purposes. Their argument is essentially speculative, as no complaint has yet been filed under the Act and we have before us no record reflecting the Act's effect on employers. There is thus no adequate basis in this record for holding that the sanctions provisions create an implied conflict rendering the Act facially invalid. See Crawford, 128 S.Ct. at 1621-22.

With these amendments, the panel judges have voted to deny the petition for panel rehearing. Judges Schroeder and N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Walker so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc will be accepted.

OPINION

SCHROEDER, Circuit Judge:

This case is a facial challenge to an Arizona state law, enacted in 2007 and aimed at illegal immigration, that reflects rising frustration with the United States Congress's failure to enact comprehensive immigration reform. The Arizona law, called the Legal Arizona Workers Act, targets employers who hire illegal aliens, and its principal sanction is the revocation of state licenses to do business in Arizona. It has yet to be enforced against any employer.

Various business and civil-rights organizations (collectively, "plaintiffs") brought these actions against the fifteen county attorneys of the state of Arizona, the Governor of Arizona, the Arizona Attorney General, the Arizona Registrar of Contractors, and the Director of the Department of Revenue of Arizona (collectively, "defendants"). Plaintiffs allege that the Legal Arizona Workers Act ("the Act"), Ariz.Rev. Stat. §§ 23-211 to 23-216, is expressly and impliedly preempted by the federal Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. §§ 1324a-1324b, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), codified in various sections of 8 U.S.C. and 18 U.S.C. They also allege that the Act violates employers' rights to due process by denying them an opportunity to challenge the federal determination of the work-authorization status of their employees before sanctions are imposed.

The district court held that the law was not preempted. The main argument on appeal is that the law is expressly preempted by the federal immigration law provision preempting state regulation "other than through licensing and similar laws." 8 U.S.C. § 1324a(h)(2). The district court correctly determined that the Act was a "licensing" law within the meaning of the federal provision and therefore was not expressly preempted.

There is also a secondary, implied preemption issue that principally relates to the provision requiring employers to use the electronic verification system now being refined by the federal government as a tool to check the work-authorization status of employees through federal records. It is known as E-Verify. Under current federal immigration law, use of the system is voluntary, and the Arizona law makes it mandatory. We hold that such a requirement to use the federal verification tool, for which there is no substitute under development in either the state, federal, or private sectors, is not expressly or impliedly preempted by federal policy.

Plaintiffs also contend that the statute does not guarantee employers an opportunity to be heard before their business licenses may be revoked. The statute can and should be reasonably interpreted to allow employers, before any license can be adversely affected, to present evidence to rebut the presumption that an employee is unauthorized.

We uphold the statute in all respects against this facial challenge, but we must observe that it is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision. See Crawford v. Marion County Election Bd., ___ U.S. ___, 128 S.Ct....