The Ninth Circuit Court of Appeals in United States v. California, 2019 U.S. App. LEXIS 11275 (9th Cir. Apr. 18, 2019) rejected arguments by the United States on appeal in several aspects pertaining to its request for a preliminary injunction enjoining enforcement of three California immigration-related laws.


“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).  The Immigration and Nationality Act (“INA”) is a federal statutory scheme for the regulation of immigration and naturalization, including the removal of noncitizens.  The Immigration Reform and Control Act of 1986 (“IRCA”) prohibits employers from knowingly hire or employing aliens without proper work authorization.[1]  Under the IRCA, employers must keep documentation of authorized employment, and make that documentation available for inspection by federal officers.[2]

California enacted three laws with the express goal of protecting immigrants from an expected increase in federal immigration enforcement actions: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.

In March 2018, The United States of America sought a preliminary injunction, arguing that the California laws violated the doctrine of intergovernmental immunity and the doctrine of conflict preemption.

The doctrine of intergovernmental immunity comes from the Supremacy Clause, U.S. Const., art. VI, which declares that “the activities of the Federal Government are free from regulation by any state.” “Accordingly, state laws are invalid if they regulate the United States directly or discriminate against the Federal Government or those with whom it deals.’” Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (internal citations omitted).

Under the doctrine of conflict preemption, state laws are preempted when they conflict with federal law. This includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.  The latter instances constitute “obstacle preemption.”  The United States Supreme Court has emphasized that a “high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 607 (2011).

As discussed in detail in our earlier Client Alert,[3] the District Court granted the United States’ motion for a preliminary injunction in part and denied it in part.  The District Court concluded that the United States was likely to succeed on the merits as to AB 450’s provision that restricted employers’ voluntary consent to immigration enforcement officers and as to AB 450’s reverification provision, but did not find any merit to the United States’ arguments against AB 450’s employee-notice provisions.  The District Court concluded that AB 103 was not invalid under the intergovernmental immunity doctrine because of what that court deemed a minimal burden, and was not invalid under preemption because there was no congressional intent found to preclude States from oversight over in-State detention facilities.  The District Court determined SB 54’s challenged provisions were not rendered unlawful by obstacle preemption because “refusing to help [wa]s not the same as impeding,” and because preemption was not otherwise effected because of the Tenth Amendment and anticommandeering principles.  The United States appealed.


The Ninth Circuit Court of Appeals explained that it reviewed a district court’s denial of a preliminary injunction for abuse of discretion, and proceeded to consider each of California’s challenged statutes.

AB 450

The District Court enjoined the AB 450 provisions regarding employers who provide consent to federal investigations or reverify the employment eligibility of current employees, but did not enjoin the provisions that requires employers to alert employees before federal immigration inspections. Under the IRCA, employers must retain documentation regarding employees’ work authorizations, and to make that documentation available for inspection by federal officers.[4]  Employers are to be given notice of at least three business days before such inspections.[5]  Notice to employees is not required under the federal statutes. Under AB 450, however, employers are required to inform their employees of upcoming inspections within 72 hours of receiving notice,[6] and to share any documents providing the results of the inspection with any employees who might lack work authorization.[7]

The United States argued that AB 450 discriminated against federal immigration enforcement operations and therefore violated intergovernmental immunity. The United States said AB 450’s employer-to-employee notice requirements did not apply to inspections potentially conducted by any other entity.  The Ninth Circuit explained that this argument extended intergovernmental immunity beyond its defined scope because AB 450 targeted the conduct of employers, not the United States or its agents, and because no federal activity was regulated.  That notice to employees under AB 450 contained information about federal inspections did not convert the notices into a burden on those inspections. The Court agreed with California that “the mere fact that the actions of the federal government are incidentally targeted by AB 450 does not mean that they are incidentally burdened, and while the latter scenario might implicate intergovernmental immunity, the former does not.”

The Ninth Circuit explained that “a state ‘does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.’” Washington v. United States, 460 U.S. 536, 544-45 (1983).  The Ninth Circuit explained that “AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all.”  Thus, the Court of Appeals determined that the District Court did not err in concluding that AB 450’s employee-notice provisions did not violate the doctrine of intergovernmental immunity.

The United States also argued that AB 450’s employee-notice provisions were subject to conflict preemption. The Court of Appeals found that preemption did not apply because AB 450 only addressed the relationship between employers and their employees, and imposed no additional or contrary obligations that undermined or disrupted the activities of federal immigration authorities. Moreover, “‘nothing in IRCA (or federal immigration policy generally) demands that employers, site owners, or general contractors be absolved from’ a state’s employee-protection efforts ‘whenever undocumented aliens provide labor.’ Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 242 (2d Cir. 2006).”  The Ninth Circuit concluded that there was no irreconcilable conflict between AB 450’s employee-notice provisions and federal immigration law that would invoke conflict preemption.

AB 103

The United States argued intergovernmental immunity and obstacle preemption precluded AB 103 provisions that authorized the California Attorney General to inspect detention facilities that house civil immigration detainees. Regarding intergovernmental immunity, the Ninth Circuit noted a distinction between those provisions of AB 103 that duplicated preexisting inspection requirements imposed on state and local detention facilities and any that imposed an additional burden exclusively on the federal government.

The Ninth Circuit rejected the District Court’s use of a de minimis exception to the intergovernmental immunity doctrine where the District Court found that, although an additional burden was imposed by certain AB 103 provisions, the burden was so minimal as to preclude the doctrine’s application. The Ninth Circuit Court explained that, in accordance with the Supreme Court’s recent decision in Dawson v. Steager,[8] that any economic burden that is discriminatorily imposed on the federal government is unlawful.  AB 103, under provisions codified in Cal. Gov’t Code section 12532(b)(1)(C), requires inspectors to examine the circumstances surrounding the apprehension and transfer of immigration detainees.  The Ninth Circuit found this “novel requirement” distinct from any other inspection requirements imposed by California law, and so additionally burdened federal operations exclusively. Accordingly, the Court reversed the District Court’s denial of the preliminary injunction as to Section 12532(b)(1)(C).

Regarding AB 103’s due process provisions under Cal. Gov’t Code section 12532(b)(1)(B), California argued that the provisions were duplicative because California’s Attorney General interpreted “due process” in this context as limited to “conditions of confinement that affect detainees’ ability to access courts—such as the adequacy of the facility’s law library, the availability of unmonitored communications with counsel, and the ability to send and receive mail.” Accepting this “limited construction,” the Ninth Circuit concluded that AB 103’s due process provision “likely does not violate the doctrine of intergovernmental immunity,” and affirmed the District Court’s denial of a preliminary injunction as to Section 12532(b)(1)(B).

The Ninth Circuit did not find conflict preemption applied because no relevant federal provisions demonstrated any intent, much less the “clear and manifest purpose” required under preemption analysis, that Congress intended to supersede “the historic police powers of the States”[9] to ensure the health and welfare of inmates and detainees in facilities within its borders.  AB 103 did not actively frustrate the federal government’s ability to discharge its operations as in the cited cases relied upon by the United States.

SB 54

SB 54 limits the cooperation between state and local law enforcement and federal immigration officials. The United States argued that SB 54’s provision prohibiting California law enforcement agencies from transferring a person to immigration authorities unless authorized by judicial probable cause determination or a judicial warrant unlawfully obstructed federal immigration law enforcement.  The United States contended that because the INA permits the United States Attorney General to issue a warrant to arrest or detain an alien, SB 54 incorrectly claimed for California the authority to demand a judicial warrant that Congress chose not to require.  Rejecting the argument, the Ninth Circuit explained that nothing in the federal immigration regulatory scheme that the United States cited required States to alert federal agents before releasing a state or local inmate.  The Court thus found SB 54 did not directly conflict with any INA or other federal immigration provisions requiring state actions, because there were no such state obligations imposed by federal law.

However, the Court explained this did not resolve the issue of obstacle preemption. The United States claimed that SB 54 required federal officers to effectively stake out jails to detain aliens upon their release from state custody, and do so indefinitely since federal officers would not be aware when any given alien would be released under the law. The District Court concluded that California’s decision not to assist federal immigration enforcement was not an “obstacle” to that enforcement effort.  The Ninth Circuit agreed, explaining that, under the Tenth Amendment and other constitutional provisions, “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). This concept is known as the anticommandeering rule. The Court explained that “federal law provides state and localities the option, not the requirement, of assisting federal immigration authorities.  SB 54 simply makes that choice for California law enforcement agencies.”  Despite the possibility of SB 54 frustrating federal immigration enforcement efforts, the frustration was permissible because, the Court said, the State had the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts.

SB 54’s information-sharing restrictions prohibit state and local law enforcement agencies from providing information regarding a person’s release date from incarceration or other personal information. The United States contended that these restrictions conflicted with 8 U.S.C. section 1373, which provides that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”  SB 54 expressly permits the sharing of such information, and so would seem to avoid any conflict with Section 1373.  However, the United States argued that Section 1373 applied to more information than merely an individual’s immigration status, and thus SB 54’s prohibition on sharing other information besides status created the conflict between SB 54 and Section 1373. The Court rejected this argument, explaining that Section 1373’s phrase pertaining to immigration status was naturally understood as a reference to an individual’s legal classification under federal law, as the District Court concluded.  Thus, the Ninth Circuit found that the District Court correctly concluded that Section 1373 and SB 54’s information sharing provisions did not directly conflict.

Lastly, the Ninth Circuit addressed California’s argument that the three other factors for determining whether to issue a preliminary injunction—irreparable harm, the balance of the equities, and the public interest—provide an alternative basis for affirming the district court’s denial of a preliminary injunction. The Court considered this line of reasoning only as to AB 103’s provision that imposed an impermissible burden on the federal government because the Court had already determined that the challenges to AB 450 and SB 54 by the United States were unlikely to succeed on their merits.  For AB 103’s burdensome inspection provision, the Ninth Circuit stated that neither the California Attorney General nor the United States showed any assessment of the actual costs imposed by the section or “any quantification whatsoever of the enactment’s burden.”  Therefore, the Court did not affirm but remanded on this issue to have the District Court reexamine the balance of equities upon consideration of the evidence in the record.

In summation, the Ninth Circuit Court of Appeals concluded that the District Court correctly determined that the United States was unlikely to succeed on the merits of its challenges to AB 450’s employee-notice provisions and SB 54, and therefore affirmed its denial of a preliminary injunction as to these laws. The Ninth Circuit also affirmed the denial as to those provisions of AB 103 that duplicate preexisting inspection requirements, but reversed as to issues pertaining to Section 12532(b)(1)(C) because it both discriminated against and impermissibly burdens the federal government.  The Court remanded on this issue to encourage the lower court to re-examine AB 103’s burdensome provision as it pertained to the balance of equities.


Although the Ninth Circuit upheld much of the District Court’s opinion in denial of the United States request for a preliminary injunction with respect to the three laws, the Court reversed the District Court’s denial of a preliminary injunction as to California Government Code section 12532(b)(1)(C)—the provision of AB 103 requiring examination of the circumstances surrounding the apprehension and transfer of immigration detainees.  Agencies should be aware that AB 103’s due process protection provision was still unsettled pending the District Court’s balance of equities analysis.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 8 U.S.C. section 1324a(a)(1)-(2).

[2] 8 U.S.C. section 1324a(b)(3).

[3] See Client Alert Vol. 33 No. 21 for more information.

[4] 8 U.S.C. section 1324a(b)(3).

[5] 8 C.F.R. section 274a.2(b)(2)(ii).

[6] Cal. Lab. Code section 90.2(a)(1).

[7] Cal. Lab. Code section 90.2(b)(1)-(2).

[8] 139 S. Ct. 698 (2019).

[9] Arizona v. United States, 567 U.S. 387, 400 (2012), citing.Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)