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require airbag installation when the federal government had balanced competing would further note that they face debarment from public contracts under section therefore, are unlikely to succeed on the merits of their claims that sections 7(b) [the employees] contend . . . that since the district court enjoined mandated basic pilot despite congress' determination that employer participation although my colleagues disagree, i would hold that the injury and seek relief in the form of a prospective injunction, they must show that work authorization verification. f.3d 856, 866-67 (9th cir. 2009). to hold that the state is preempted from memorandum of understanding with the federal government. e-verify collecting a penalty designed to regulate conduct. 3. no cause of action for a violation of this subsection shall arise anywhere in defraying administrative costs." marcus, 170 f.3d at 1312. because it was question solely of where the money goes, the issue is why the money is taken." aliens. section 7(b) forces contractors to use basic pilot if they seek to contract means." crosby, 530 u.s. at 379. ultimately, we conclude that the district court massachusetts, 549 u.s. at 526. accordingly, the chambers have sufficiently public employers comply with the statute). as for the alleged duty to review and is a carefully crafted political compromise which at every level balances 30 unconstitutional limitations on businesses that choose to do so. we review de novo the denial of a motion to dismiss based on eleventh interpretations of the tax injunction act which might defeat its purpose and text." human resource initiative for a eligibility for all new employees. because it is undisputed that three of the four tit. 63, 1-740. under that law, suit to recoup such medical costs could be irca--a balance it determined was best served by requiring employers to verify evans, mark ashton, ann b that review of state-agency contracts by the attorney general does not "occur as a assume it is substantially likely that [other] officials would abide by an this statute does not require or provide for any enforcement by the ( 9 of h.b. 1804). in my view, such injunctive relief is barred by the tax balance" by permitting states to "define and elaborate their own laws through we begin, as we must, by considering jurisdictional issues, turning first to shores of massachusetts was contingent upon a number of variables beyond the to use basic pilot. see part i.b., supra. adopting basic pilot imposes significant because it violates the terms of section 7(b). further, pursuant to his authority to (collectively "defendants" or "oklahoma") from enforcing the challenged states. accordingly, neither section 7(b) nor section 9 "impos[es] civil or their official capacities.10 nonconfirmation and has eight federal workdays to contest the result.4 for the same reasons we concluded that the claimed section 7(b) injury is section 9 by verifying the employment authorization of its independent employment rights clinic; (2002) (quotation omitted). be directly bound by such a determination." utah v. evans, 536 u.s. 452, 460 at 871, the stated purpose of section 9 is regulation, not revenue generation. the authorized worker while retaining an employee that the employer knows or i respectfully dissent from the majority opinion's holding that the district (d.c. no. 08-cv-00109-c) 1313(b) (footnote omitted). they seek." id. at 526 (emphasis added); see also id. at 525 ("while it may be in his official capacity seeking only prospective relief. edelman v. jordan, 415 08-6127, 08-6128 - chamber of commerce of the united states of america v. verification of the contractor's authorization to work in this country, the hirer employees. (the employees wished to express their opposition to war by refusing responsibility for basic pilot, the department of homeland security now illegal immigration is encouraged when public agencies within this naturalized citizens, and calculated that foreign-born individuals who are eligible that any public employer is recalcitrant. it is pure speculation to believe that -18- 456 u.s. 228, 243 n.15 (1982). rather, they need only show "an injury . . . that is iv citizen or permanent resident alien while retaining an employee who the therefore contrary to the express language of the anti-injunction act. and the oklahoma act use the term "unauthorized alien," 8 u.s.c. 1324a(a)(1); area; asian american legal imposed for parking placards "shall not exceed the actual cost of issuance." kan. -4- h.r. rep. no. 99-682(i), at 57. by requiring verification of independent lucero, circuit judge. appeal from the united states district court carter g. phillips (eric a. shumsky, robert a. parker, and brian e. nelson; and the partial dissent asserts that we "improperly focus[] on the motive for constructed balance by interfering with its chosen methods. that provision would the hrc be enjoined from enforcing section 7(c); and that the tax commission the enforcement of federal immigration law, undermine the security of our nonconfirmation. "a tentative nonconfirmation . . . does not mean that the conducts any hiring . . . in a state in which a pilot program is operating may elect created "a comprehensive scheme prohibiting the employment of illegal aliens in from the federal judiciary." arkansas v. farm credit servs. of cent. ark., 520 employment-verification will be compromised by e-verify. 20 d. the social security number verification service, or such similar this is not a case in which the attorney general is sued to make sure that trade associations that represent businesses in oklahoma. the chambers filed a permanent resident alien while retaining an employee who the employing of the state, and thereby attempting to make the state a party." ex parte young, in 8 u.s.c., section 1324a(a)(4), the contracting entity shall be verification documents, enabling employees to prove eligibility by supplying any contractors, oklahoma does not receive any revenue. okla. stat. tit. 68, imprisonment, 1324a(f)(1). consistent with its comprehensive nature, irca receive revenue. it strains credulity to argue that the primary purpose of a law is year. by the same token, the chambers' membership would also be harmed by employer is potentially exposed to section 7(c) penalties including financial nonpre-emption is not triggered when the state regulates in an area where there transferred to the general fund. id. although it was unclear exactly how the to utilize the basic pilot program. id.; 1312(1)(a). the actual employment of kan. city s. ry. co., 503 f.3d 1126, 1129 (10th cir. 2007). we apply ordinary in receiving the funds. id. disincentivizing certain forms of conduct." 478 f.3d at 1246; see also marcus, did not abuse its discretion in granting a preliminary injunction. the tax by withholding enjoins the collection of the tax, and is parental consent or knowledge shall be liable for the cost of any subsequent eligibility of its individual independent contractors18 redressability presents a more difficult question. although plaintiffs seek congressional purpose. in my view, congress obviously foresaw the potential for -22- tentative nonconfirmation as u.s.-born employees. id. at xxv. it concluded rather than a tax. id. at 870-72. "that the ordinances generate a permit fee which employed by [irca] or by the attorney general." 1324a(h)(3). mandatory. e.g., omnibus appropriations act of 2009 div. j, 101; lucero, the panel majority, albeit for different reasons, reverses the district constitutes a regulatory penalty, not a tax, because its purpose is to regulate incidental to its regulatory nature."). considered judgment, given to employers. state tort law could not require and 9 are expressly preempted by irca. 1313(c). expressly preempted and that section 9 is conflict preempted. although my a provision requiring use of basic pilot, or from refusing to prepare a contract industry; colorado association -8- employment." id.; see iirira, pub. l. no. 104-208, div. c, 401(a), 110 stat. 24 who attempt to comply in good faith are protected from civil and criminal 8 b judgments regarding several competing considerations. congress has continually section 7(c) of the act makes it a "discriminatory practice" for any following this authority, i would hold that the plaintiffs lacked standing to oklahoma restaurant as used in 1324a(h)(2). this conclusion is consistent with use of the term contractors, see, e.g., colclazier v. state ex rel. okla. indigent defense sys. bd., revenue[-raising] rather than regulation and thus . . . it qualifies as a tax." id. at considerations favor issuance of a preliminary injunction. behavior rather than to raise revenue. see hill, 478 f.3d at 1244-46; marcus, 170 the specific intent to discriminate to be liable under federal law, 1324b(a)(6), it tit. 25, 1313(b) (section 7(b) of h.b. 1804). in my view, the plaintiffs did not contract for the physical performance of services within this state otherwise have standing to sue in their own right; (b) the interests it seeks to employees. pilot programs of the voluntary nature of such programs . . . ." (emphasis added)). 1324a(a)(1)(a); 8 c.f.r. 274a.1(f), (g), businesses that opt for the because the wrong defendant was selected. in nova health systems v. gandy, federal law exhaustively details a specialized administrative scheme for plaintiffs will likely succeed in their it can generally be said that an assessment is a tax when its purpose is to performance of such services within this state which exceeds the seeking declaration that state statutes applied to particular company). an shown us that the attorney general has a particular duty to enforce section 7(c), affirming the injunction against enforcement of section 7(c), but my grounds are general's mot. to dismiss 24). as with the ordinances at issue in hager, 84 f.3d whether an independent contractor is an unauthorized alien is of no significance particular conduct by making it more expensive." san juan, 967 f.2d at 685 refer for a fee for employment, unauthorized aliens. 170 f.3d at 1311 (citing hager, 84 f.3d at 870-71). thus, "[r]ather than a even when federal and state statutes serve the same ultimate goal, "[t]he fact of a v i injunction would prevent him from filing lawsuits or defending against suits on the tax commission has a slightly different take than the attorney (emphases added). as i read this section, the general comments regarding illegal administrative costs while the balance of the revenue was spread among a variety the supreme court's decision in geier v. american honda motor co., 529 face of the congressional directive to the attorney general preventing him from entities either to verify the work eligibility of their individual independent in addition to express preemption, the supremacy clause prohibits states the second circuit opinion in madeira v. affordable housing foundation, inc., contractor's employment authorization, pursuant to the prohibition oklahoma's general fund is of little significance when measured against the performance of services in this state, fails to provide to the 1254 (10th cir. 2009). federal law until passage of the illegal immigration reform and immigrant governor henry, filed this timely interlocutory appeal. by contrast, when employee information is inconsistent with either the to discriminate, id., which presumably would be lacking if the contracting entity employee is not authorized to work, and employers may not interpret it as such." performance of such services within this state which exceeds the employment lest the employer be presumed to have employed an unauthorized a federal immigration laws. [4] the state of oklahoma also finds that verification of work eligibility. oklahoma taxpayer and citizen protection act commerce and associated an employer that uses basic pilot, however, is "exempt from liability, requests by employers are made for the purpose or with the intent of companies whose workforce fluctuates greatly throughout the year with every federal law: deterrence of illegal immigration and the hiring of unauthorized not divest plaintiffs of standing. an opposite holding would contravene supreme 99-682(i), at 57; cf. geier, 529 u.s. at 881. just as state tort law could not defendants-appellants. limited the availability of an option considered essential to a federal scheme was the chambers immediately moved for a preliminary injunction, and federal statute. sprietsma v. mercury marine, 537 u.s. 51, 62-63 (2002). 478 f.3d at 1244-46. at issue in that case were charges imposed by oklahoma causing economic hardship and lawlessness in this state and that persuaded by oklahoma's contention that section 7(c) merely creates a cause of 2 amici curiae. flowers, 321 f.3d 1250, 1258 (10th cir. 2003) ("an irreparable harm requirement and lodging association, against this backdrop, congress enacted iirira, directing the attorney 14 security database and the employee is a u.s. citizen, the employer is immediately david a. selden and julie a. pace, ballard spahr andrews & ingersoll, llp, state enactments. see m'culloch v. maryland, 17 u.s. (4 wheat.) 316, 405-06 in full, section 7(c) states: collection that may not be enjoined under the terms of the tia. we need not in this paragraph, or 1 plaintiffs, various chambers of commerce and trade associations s. ct. at 1149; dias, 567 f.3d at 1176. because the chambers claim a future the statute requiring the withholding of income taxes from the salaries of afsc's -10- action under this section. loan ass'n v. de la cuesta, 458 u.s. 141, 152-53 (1982) (quotation omitted). commerce, in support of appellees. -35- injunction would benefit the plaintiff was unclear, yet the court concluded that information electronically to the federal government, which then checks the commission, unconstitutional statute; rather, he need only "have a particular duty to `enforce' the employment of a legal oklahoma worker."17 opinion's analysis of that motive. the opinion quotes selectively from 2 of or refer for a fee for employment, unauthorized aliens."25 hartz, circuit judge, concurring and dissenting: verification system); 1313(b)(2) (prohibiting businesses from contracting with repeatedly indicated that their claims arose under the supremacy clause. we allows the judicial branch to ignore congressional language that indicates the "realistic likelihood" of such action, id., the court concluded that westco lacked "sanctions" because it provides compensatory rather than solely punitive relief. injunction act (the "tia"), 28 u.s.c. 1341, deprived the district court of that fund contained a positive balance at the end of the year, the balance would be particular federal government entities required to utilize basic pilot and now available in all fifty states, congress continues to decline to make it this case requires us to consider the interplay between the federal sanctions . . . upon those who employ, or recruit or refer for a fee for the class of individuals who must verify employment eligibility, requiring it lacked a driver's side airbag. id. at the time of the accident, federal safety notified that the employee is eligible to work in the united states. for non- 3. the provisions of this subsection shall not apply to any trade council, 530 u.s. 363, 379 (2000); accord int'l paper co. v. ouellette, 479 than speculative. because the district court lacked jurisdiction over that claim, a. the electronic verification of work authorization program of the must withhold income taxes from its payments to the contractor. but the defendants have not argued for such a result. american civil liberties union; in 8 u.s.c. section 1324a(a)(4), the contracting entity shall be the "oklahoma act") is one of a multitude of recent state enactments that regulate legal aid society-employment preempted either as a result of conflict or field preemption. see id. we conclude omitted). we review the district court's grant of a preliminary injunction for and "choose life." id. at 1239. we emphasized the ultimate use of the funds in 1982) (unemployment and disability withholding). i would follow the above oklahoma law. okla. stat. tit. 68, 2385.32(a). but section 9 and the currently the case," id. at xxvi. contravention of 8 u.s.c. 1324a(h)(2).12 independent contractors, 2385.32(b), thereby "deliberately discouraging and attorney general be enjoined from enforcing sections 7(b), 7(c), and 9; that from independent contractors. 1701.1(a), (c). contracting entities that fail to outside the scope of the ex parte young exception. the attorney general is thus rtc commercial, 169 f.3d at 457 ("states do not assess penalties for the purpose oklahoma's principal argument in opposition to our conflict preemption and other immigration reforms along the way, congress has made calibrated -4- u.s. 481, 494 (1987). although section 9 does not render compliance with state -53- -6- "unauthorized alien" is defined as an "alien [who] is not at that time either (a) chambers advance counter-arguments to the attorney general's claim of protect those who might be adversely affected." nat'l ctr. for immigrants' although their reasoning differs, my colleagues conclude the district court the ultimate goal of both federal and state law is [the same]." int'l paper co., 479 -40- implicates three provisions of the act. section 7(b) forces businesses to utilize is to protect the integrity of oklahoma's income-tax system by ensuring that had standing to contest epa's refusal to regulate greenhouse gas emissions from against businesses that violate state law and defends state agencies sued by their united states court of appeals u.s. at 494. "a state law also is pre-empted if it interferes with the methods by w.a. drew edmondson -11- refer to this obligation as verification. 1313(c)(1) (emphasis added). irca also establishes an "extensive `employment verification system,' as to the section 7(b) claim, oklahoma contends that the chambers' registers and participates in the status verification system to verify has undermined congress' judgment that voluntary participation best serves the as outlined in the complaint, the chambers requested that the governor preemption. but that is emphatically not the case. geier, 529 u.s. at 869 ("we had it used "sanctions" in 1324a(e)(4), we might reach a similar conclusion. it (citing south carolina ex rel. tindal v. block, 717 f.2d 874, 887 (4th cir. 1983)). holding is its assertion that "oklahoma's goals in implementing these statutes are [also] serve regulatory purposes directly by . . . deliberately discouraging of immigration status). the primary purpose, therefore, is not to raise revenue -5- evidence of why the money was taken. hill, 478 f.3d at 1244-46; marcus, 170 general (later the secretary of homeland security) to establish the basic pilot chooses the former course, it must offset the withholding requirement by paying plain, speedy and efficient remedy may be had in the courts of such even if one could assume that the attorney general has a particular interest in -42- their official capacities as members of the kentucky chamber of principles of statutory interpretation, looking initially to the plain language of the withheld. tennessee chamber of commerce under the terms of section 7(b) would also be in compliance with federal law. where a plain, speedy and efficient remedy may be had in the courts of such city, oklahoma, for defendants-appellants tax commissioners. use basic pilot was not expressly preempted because it fell within 8 u.s.c. devices. id. at 874-75. geier's lawsuit, by contrast, would have required auto criminal sanctions . . . upon those who employ, or recruit or refer for a fee for is the equivalent of the tia for federal taxes. it states: is met if a plaintiff demonstrates a significant risk that he or she will experience from enacting laws that make compliance with both federal and state law a statute, however, is the final sentence, which states that "other measures are impose. see 8 u.s.c. 1324a(a)(1)(a); 8 c.f.r. 274a.1(f), (g); h.r. rep. no. see id. at 526; larson, 456 u.s. at 244 n.15. as the attorney general concedes, summers v. earth island inst., 129 s. ct. 1142, 1149 (2009). what is missing in 1292(a)(1) to review the grant of a preliminary injunction. the panel dismisses up in a general fund, the seventh circuit concluded that the assessment was a fee was impliedly preempted; it "would have stood as an obstacle to the cooperate with federal immigration authorities in the enforcement of article iii of the constitution limits the jurisdiction of federal courts to chambers' complaint and declarations demonstrate injury-in-fact to their over the chambers' challenge to section 9. we further hold that the chambers determining whether an employer has knowingly employed an unauthorized commerce and industry, the colorado association of commerce and industry, v. school district of philadelphia, 6 f.3d 108 (3d cir. 1993), concerned a 1324a, and operated by the united states department of homeland favor, and that the injunction is in the public interest. tyson foods, inc., 565 such contracts may involve the physical performance of services congress could have, but did not, expressly forbid state laws from the "threatened injury is real, immediate, and direct." davis v. fec, 128 s. ct. matter of practice in oklahoma." att'y gen. suppl. br. at 3 (may 22, 2009). section 1313(b) states as follows: licensing laws. oklahoma has failed to preserve this argument, bronson, 500 with him on the briefs), sidley austin llp, washington, d.c., for plaintiffs- chamber of commerce of the defendants-appellants edmondson and human rights commissioners. reimbursed by the patient (3) that were required because of an abortion (4) opts not to take advantage of the state safe harbor and instead embraces the in its entirety, section 9 provides: we conclude that the harms alleged by the chambers will likely be purpose as stated in its text as well as the incentive structure created by a levy, see also utah licensed beverage ass'n v. leavitt, 256 f.3d 1061, 1076 (10th cir. relevant competing considerations.30 f.3d at 862. an employer seeking to participate in basic pilot must enter a immunity only as to sections 7(b) and 7(c), but not as to section 9. plaintiffs economic losses are themselves harmful to the chambers' members.14 although the parties use varying terminology, because both federal law utilize basic pilot, and authorizes the secretary of homeland security to order chamber of commerce, inc.; 18b(a)(7). an injunction would prevent him from inserting into such contracts preempted and that section 9 is impliedly preempted. moreover, the remaining by any person, whether or not such person is the person against social security or uscis databases, the employer receives a tentative basic pilot program extension and expansion act of 2003 3-4; iirira under this regime. as with section 7(b), a contracting entity can violate section accordingly, we reject oklahoma's tia contention. practices as a result of the enhanced obligations section 9 would impose. 7(b) effectively does just that, requiring employers to utilize basic pilot. (...continued) midwest inventory distrib., llc, 562 f.3d 1067, 1070 (10th cir. 2009). section 9 forces contracting entities to verify the work authorization of their iii. section 7(c) federal law. see 8 u.s.c. 1324b(a)(6), (b). although a business must act with 3009-546, 3009-655 (1996).2 verified with the sole purpose of complying with section 9. 27 accordingly, the tia does not strip the district court of jurisdiction over the has a duty to take steps to slow or reduce it." (citing larson, 456 u.s. at 244 26 against the use of unauthorized alien labor through contract set forth dedicated fund to be used for the administration of the program at issue. id. if hoffman plastic, 535 u.s. at 147 (citations omitted). known as the i-9 system, the statute were ultimately adjudged invalid); greater yellowstone coal. v. having engaged in an unfair immigration-related employment practice. see 8 1244-45. in particular, only $8.00 of a $35.00 charge was earmarked for narrower than theirs. nonconfirmation or is otherwise found ineligible to work must be terminated from types of relief provided by oklahoma for discriminatory practices (which include suit seeking to compel agency to award a contract); state ex rel. edmondson v. -23- having concluded that the chambers possess standing to mount their 1996, p.l. 104-208, division c, section 403(a); 8 u.s.c., section tenth circuit employers, on pain of debarment from public contracts. because oklahoma has -29- demonstrated standing to seek a preliminary injunction as to section 7(b). appellees. authorization." okla. stat. tit. 68, 2385.32.9 unauthorized aliens. i would not go as far as the majority opinion, however, in i. section 7 (b) chamber of commerce and industry, the texas association of business, the or withhold from the enactment of 2385.32. the tia is not concerned with why a state chooses to february 2, 2010 automobile manufacturers to install particular safety precautions when congress statute; it requires withholding of income taxes from payments made to certain deterred the next time around from ignoring their legal obligations." id. the capacity as attorney general for the state of are liable if they "know[], or reasonably should have known," that they retained including the voluntary nature of the pilot programs . . . ."). yet, section 7(b) would make basic pilot effectively mandatory for many contracting entity is liable to the state for the money not withheld. 1. after july 1, 2008, no public employer shall enter into a contract for the defendants are sued in their official capacities and the chambers seek only -17- admittedly, a contracting entity may also comply with section 9 by asserted nor the relief requested requires the participation of individual members government contractors to use basic pilot to confirm the immigration status of all ("the redressability prong is not met when a plaintiff seeks relief against a employment, unauthorized aliens." 8 u.s.c. 1324a(h)(2). the chambers, violates federal rule of civil procedure 11(b), for example, is subject to 1099. stat. ann. 8-1,125(c). thus, the entire charge was "expressly linked to against the use of unauthorized alien labor through contract set forth 4 section 7(b) is reversed. in all other respects, the judgment of the district oklahoma state chamber of washington, d.c., filed an amici curiae brief for the arizona chamber of defendants, the attorney general is immune from suit under the eleventh under oklahoma law. 2385.32(a). this is an exception to the general rule in we have previously held that a plaintiff lacked standing to bring a claim it must be fairly traceable to the challenged action of the defendant; 26 u.s.c. 7421(a). the supreme court explained: impede and obstruct the enforcement of federal immigration law, authorizing the secretary of homeland security to order certain violators of the foreign sovereigns, and by indian tribes. see u.s. const. amend. xi; prairie unless it utilizes the status verification system ("svs")6 district, the secretary of education, and the attorney general. see id. on appeal -3- the court further determined that the we disagree on both counts. standing because they are not required to do business with the state. even if greater than what the independent contractor actually owes in income taxes, the redressable, part ii.a, supra, we conclude that the attorney general has a attorney general shall widely publicize the election process and pilot programs, withholding an amount equal to "the top marginal income tax rate" allowed under be solely to enjoin him from bringing suit to require other public officials to $100,000 for a second. see okla. stat. tit. 25, 1506.6(b)(3). perhaps some of substantially likely to succeed on their express preemption claim as to all three hired during the contract terms regardless of whether or not they work on the statute provides a defense to employers who comply with the i-9 requirements in employer is subject to sanction under section 7(c) if it terminates a legal worker concluded that the plaintiff could challenge the constitutionality of a state statute document on the list. 8 u.s.c. 1324a(b)(1)(a)-(b)(1)(d). an employee who 685 (1st cir. 1992)). yet, other evidence of purpose, such as the statute's avowed reverses the district court's grant of a preliminary injunction against the similarly, in hager, the seventh circuit addressed an assessment that was as applied to compensation paid to such individual for the more money to its independent contractors. if it chooses the latter, it must pay a create obligations on contracting entities that congress expressly chose not to in enacting irca, iirira, [1] the state of oklahoma finds that illegal immigration is basic pilot is a voluntary alternative to the i-9 system for most employers. b 7 program as a voluntary supplement to, not a replacement for, the i-9 system. id. at 827. nevertheless, the supreme court has recently cautioned that the tia not taxes because they were assessed "so that delinquent tax debtors will be immune from suit with respect to section 9. c an employer "would have to `knowingly' hire illegal workers and then terminate taxes, much as withholding on royalty payments to nonresidents ensures payment -21- particular conduct by making it more expensive," san juan, 967 f.2d at 685; see -8- lawsuit is against the members of those commissions in their official capacities. reasonably appear to be genuine," 1324b(a)(6), congress sought to limit irca does not define "sanction," but by its ordinary meaning, a sanction is practice" under oklahoma's anti-discrimination act. okla. stat. tit. 25, beyond the use of the funds, concluding instead that the fee was, as the are issued without verifying immigration status, these practices discrimination. the third circuit ruled that there was "no case or controversy" between the subcontract in connection with the physical performance of services fid. fed. sav. & obtain a preliminary injunction, the chambers must show "(1) a likelihood of proper defendant in every such action" (citation omitted)). b. any equivalent federal program designated by the united states 416 f.3d. 1149, 1154 (10th cir. 2005), the plaintiffs challenged an oklahoma on pain of debarment from contracting with oklahoma public employers. section that are punitive, we would have expected it to use "penalties" in 1324a(h)(2). public employers unless the business utilizes svs); 1313(c)(2) (providing a having failed to verify the work authorization of independent contractors. i without jurisdiction to enjoin. we conclude that section 9 imposes a penalty, not preempt any state or local law imposing civil or criminal sanctions (other than "knowingly" violate the prohibition. 8 u.s.c. 1324a(a)(1)(a). the federal cong-tang, elvia hernandez, certain violators of the immigration and nationality act to use the program. act. they claimed that all three sections were expressly and impliedly preempted and the relevant federal agency expressly provided manufacturers with choices. minimum amount of compensation the contracting entity is required success on the merits; (2) a likelihood that the movant will suffer irreparable oklahoma law but from the provisions of this subsection. pennsylvania statute "mandat[ing] that only pennsylvania residents may work on in 1324a(h)(2) congress used the term "sanctions" rather than "penalty" as it system of employment authorization verification. chicanos por la causa, 558 alien.1 substantial fine. either alternative results in an economic injury-in-fact.19 that nonresidents pay required oklahoma income taxes. if oklahoma is 3 instance, section 7(c) exposure would be substantial for highway construction 13 finstuen v. crutcher, 496 f.3d 1139, 1151 (10th cir. 2007) ("so long as there is a demonstrated willingness to exercise that duty, see, e.g., colclazier, 951 p.2d at 30 abuse of discretion. pac. frontier v. pleasant grove city, 414 f.3d 1221, 1230-31 both the supreme court and this court have steadfastly rejected such an onerous that their members will either withhold money from individual independent from ignoring their legal obligations." 169 f.3d at 457. not bar the ordinary working of conflict pre-emption principles."). on the one concerned that independent contractors, or certain subsets of independent guy l. hurst, assistant general counsel, oklahoma tax commission, oklahoma expressly preempted, the district court did not consider the chambers' alternative 2 of taxes by nonresidents. federal withholding with respect to such individual pursuant to a and emphasis omitted)). if forced to comply with the oklahoma act, the injunction. all defendants, save the governor, appeal. (continued...) nos. 08-6127 & 08-6128 independent contractors. this potentially exposes the business to liability for behavior.21 iii assessment but income tax, pure and simple. thus, if the withheld amount is 9 even if its independent contractors are fully authorized to work in the united a ("hrc"), 1502; temporary injunctive relief issued by an oklahoma court at the information against a database containing citizenship and work authorization 2142, 2177. although the statute initially gave the attorney general statute. the point is only that the district court lacked jurisdiction to consider the requirement in federal court and obtained a favorable judgment against the school general's mot. to dismiss 24), the primary purpose of section 9 is not to ensure take considerable time and will require better data collection and data sharing authorization of their independent contractors. it imposes a penalty on alien is an unauthorized alien." 8 u.s.c. 1324a(a)(1), (a)(1)(a). an manufacturers to install an airbag. id. at 881. because that outcome would 1099. the challenge is being resolved, the employer may not take adverse action against means would violate the supremacy clause. crosby, 530 u.s. at 379. injunction as to section 7(c). of raising revenue . . . ."). as in rtc commercial, oklahoma imposes a penalty the method a state chooses to collect a tax, however, because we disagree with the 23 savings clause in 1324a(h)(2) spared the oklahoma act from express address whether 1341 deprives federal district courts of jurisdiction to enjoin have been harbored and sheltered in this state and encouraged to centro legal, inc.; immigration basic pilot. as we explained, see part ii.a, supra, basic pilot imposes a regulatory fee rather than a tax and fell outside the scope of the tia. id. (2007). that report documented an error rate of approximately 10% for establish redressability at this stage of the case. see lujan v. defenders of 25 -11- 342 (1977). an association has such standing only if: "(a) its members would (attorney general's br. 32). the amount of the penalty is set at the maximum assessable level of income tax they have suffered an injury-in-fact which is concrete and particularized as well the state are at issue," 18b(a)(3), the attorney general brings civil actions includes an express preemption provision: "the provisions of this section similarly, section 9 applies to contracting entities that do not verify the mere fact that revenue received from a violation of section 9 ends up in geier's reasoning implicates section 9 as well. whereas section 7(b) foundation, immigrants' rights project, san francisco, california, omar jadwat, enacted in 1986, the immigration reform and control act ("irca") have standing to bring their claim against the attorney general. 1983," which we are told does not permit a preemption claim. although the increased use of technology. see chicanos por la causa, inc. v. napolitano, 558 the record indicates that basic pilot is far from perfect. a 2007 report to the chambers cite requires only that the attorney general sue on behalf of a victim f.3d at 1311-12. in other cases, however, a statute's incentive structure and potential liability that discouraged the plaintiff from performing abortions absent b of an express preemption provision precludes the possibility of implied governmental programs and services. because the preferred form of compliance does not generate revenue. in considering express preemption, our inquiry is whether the state law at an executive branch report to congress in the record indicates that require contracting entities, on pain of burdensome withholding requirements or and industry; texas association -14- 206(d)(1), as the job category held by the discharged employee. for the reasons stated, we dismiss the attorney general from the case insofar as he is named as a defendant in the challenges to sections 7(c) and 9. argument that the provision interferes with congress' chosen methods and is thus injunction, the chambers must also demonstrate a likelihood that they will suffer c. any other independent, third-party system with an equal or higher all the bases are covered. for example, someone fearful of being improperly suspend or restrain the assessment, levy or collection of any tax under state law state to the contrary notwithstanding." u.s. const. art. vi, cl. 2. pursuant to finally, oklahoma's reliance on chicanos por la causa is misplaced. in 1313(b) is fairly traceable to the attorney general. "real, immediate, and direct" threats of injury. see davis, 128 s. ct. at 2769. -33- the third sentence that state agencies should cooperate with federal authorities to discriminatory practice under section 7(c) and liability under section 9 for obstacle' to the full implementation of [federal law], it is not enough to say that that of the court except with respect to sections v.b.2 and v.b.4. a fee for employment, unauthorized aliens." 1324a(h)(2). penalties under federal law, 1324a(b)(6)(a). id. at 1245. because the entire public benefitted from the variety of state american civil liberties union foundation, immigrants' rights project, new that sections 7(b), 7(c), and 9 of the oklahoma act were expressly and impliedly example, did not "purport to `regulate' anyone by incentivizing or contractors or withhold certain taxes from those contractors. otherwise, the court precedent so as to require complete redressability. in any event, "we may to withhold from the independent contractor an amount equal to "the top marginal prospect of the attorney general taking action to enforce section 1313(b) is more supremacy clause, we need not address the tax commission's 1983 argument. any "suit for the purpose of restraining the assessment or collection assessment or collection of any tax shall be maintained in any court employees working directly on federal government contracts and all employees and attorneys' fees are mandatory sanctions for violations of federal rule of as recently stated by the supreme court, congress sought to balance a number of competing goals when it enacted oklahoma raises yet another jurisdictional challenge: it claims that the tax [some] connection [with enforcement of the act], it is not necessary that the courts from enjoining collection of the tax. in any event, i question the majority compelling public interest of this state to discourage illegal provisions. defendants opposed a preliminary injunction and moved to dismiss. have been met. contracts with public employers in oklahoma and hope to enter into such verification approach are potentially exposed to liability under federal law for activity." webster's third new int'l dictionary 2009 (1993). moreover, the -7- ------------------------- provisions of state law." bank one v. guttau, 190 f.3d 844, 848 (8th cir. 1999); contracts in the future but will be ineligible under the terms of section 7(b) section 7(b) of the act, okla. stat. tit. 25, 1313(b)(2), provides that no civil liberties union and national immigration law center, in support of contracts. the power of the president to mandate the use of basic pilot in the jurisdiction of federal courts. id. at 825. "[c]ourts must guard against cemetery co., 122 p.3d 480, 481-82 (okla. civ. app. 2005) (attorney general -2- "illegal immigration is causing economic hardship and lawlessness in this state." to verify the work eligibility status of all new employees. york, new york, andrew tauber, mayer brown llp, washington, d.c., and school district invoked the law against westco, a construction company that had gen. of okla. v. tyson foods, inc., 565 f.3d 769, 776 (10th cir. 2009) (quotation 5 government's provision of choice. after all, choice is not an end in itself and no employers who fail to comply with it, there is nothing in the record to suggest it is therefore quite reasonable to infer that the purpose of the withholding statute oklahoma tax commission, consistent with federal goals in reducing illegal immigration." (attorney chambers did invoke 1983 in their complaint, they also expressly and -25- 800 (4th cir. 1997); hager v. city of w. peoria, 84 f.3d 865, 870-71 (7th cir. requirement. "[w]here threatened action by government is concerned, we do not consequently, the substance of an injunction against the attorney general would 469 f.3d 219, 23940 (2d cir. 2006), which held that compensatory relief does contractors, oklahoma risks exposing contracting entities to liability under rights, inc. v. ins, 913 f.2d 1350, 1366 (9th cir. 1990), rev'd on other grounds, extended basic pilot through september 30, 2012. department of homeland 1. it shall be a discriminatory practice for an employing entity to discharge an their members. see hunt v. wash. state apple adver. comm'n, 432 u.s. 333, enforcement of the act, or else it is merely making him a party as a representative amendment immunity. chaffin v. kansas state fair bd., 348 f.3d 850, 865 (10th u.s. 821, 826 (1997). to that end, the tia erects a broad barrier to the further, congress withheld from the secretary of homeland security authority to act, 28 u.s.c. 1341, deprived the district court of jurisdiction to enjoin section chambers' members. as noted above, section 7(b) effectively forces employers because federal law authorizes use of the basic pilot program (albeit (10th cir. 2005). "a district court abuses its discretion when it commits an error properly filed internal revenue service form 8233 or its equivalent. association; oklahoma hotel virginia chamber of commerce; (1819). preemption can be either express or implied. hillsborough county v. association of washington business, and the west virginia chamber of immigration by requiring all agencies within this state to fully 1324a(a)(1)(a); 8 c.f.r. 274a.1(f) (excluding "independent contractor" from in contrast, neither section 7(b) nor section 9 "impos[e] civil or criminal illegal immigration reform and immigration responsibility act of that taxes are collected. to the contrary, if a contracting entity complies with of-state labor. id. at 113 (internal quotation marks omitted). a pennsylvania filed in the case at bar, plaintiffs allege associational standing to raise claims of violations of 7(c)) are civil penalties of up to $50,000 for a first violation and the district courts shall not enjoin, suspend or restrain the enforcement of section 7(b). i dissent from the judgment of the court on this oklahoma, under which contracting entities are not required to withhold taxes borders, and impermissibly restrict the privileges and immunities of the citizens 7(c) makes it a discriminatory practice for an employer to terminate an assess and levy their taxes when due, the act does not apply. but has been a history of significant federal presence." united states v. locke, 529 faced with the same issues that were before the district court, we conclude: court's grant of a preliminary injunction against the enforcement of section 7(b). new motor vehicles. id. at 526. although a continued rise in sea levels on the incentive structure created and the avowed statutory purpose. see id. ("that the federal contractors. see 73 fed. reg. 67,704 (2008). though e-verify is administers it. see basic pilot program extension and expansion act of 2003, refuse to enter into contracts with businesses employing only i-9 verification does the tia. 169 f.3d at 457. our sibling circuit concluded that the penalties were security appropriations act, 2010, pub. l. no. 111-83, title v, 547, 123 stat. court is affirmed. plaintiffs' motion to strike is granted. follow that simply because the two serve the same goal, enforcing the state law is ultimate purpose was to raise revenue. 84 f.3d at 870. but the court looked that case, the ninth circuit concluded that an arizona law requiring employers to 2008, shall be exempt from liability, investigation, or suit arising from any members, leading us to conclude they have standing to obtain a preliminary not come within the irca's meaning of civil sanctions. nevertheless, among the for lesbian rights; southern taxes, and it cannot be enjoined even if the tax might be collected by other means. (emphasis added). oklahoma contends that section 7(c) does not impose other grounds, n.y. state conference of blue cross & blue shield plans v. 871. u.s. 651, 667-68 (1974); ex parte young, 209 u.s. 123, 159-60 (1908). this my reasoning is as follows. even accepting that federal regulation of (other than through licensing and similar laws) upon those who employ, or recruit kelly, circuit judge, concurring in part. consider, among other things, the ultimate use of the funds. id. at 1245; marcus, if an individual independent contractor, contracting for the physical plaintiffs are various national, state, and local chambers of commerce and cir. 2003). under the eleventh amendment, states are generally immune from argues that section 9 imposes a revenue-producing tax, which federal courts are to raise revenue when compliance with the law produces no revenue at all. see lawyers' committee for civil rights of the san francisco bay would require misuse of a federal program, 1312(1)(d), the act effectively the two published circuit-court opinions that have addressed state only if a contracting entity violates section 9 does the state elisabeth a. shumaker -41- whom such tax was assessed. contractor or subcontractor may contract or subcontract with a public employer 2385.32(a).22 court had jurisdiction to enjoin the attorney general from enforcing okla. stat. section 9 challenge.24 entity . . . to hire . . . for employment in the united states an alien knowing the security administration[.] -36- section 9 is a tax within the meaning of 1341. marcus, 170 f.3d at 1312 n.4. oklahoma hrc, and the members of the oklahoma tax commission, all sued in we find no merit to oklahoma's argument that the chambers lack thus embodies a carefully considered balance of various competing objectives. rtc commercial, 169 f.3d at 457 ("in a utopian world where all citizens 1324a requires or "refusing to honor documents tendered that on their face 1986 (irca), d.l. 99-603, methods of participating in the svs either do not exist, 1312(1)(b), (c), or described in part ii. yet, because oklahoma and its officers are immune from the district court's preliminary injunction against the enforcement of contract or subcontract in connection with the physical performance unauthorized alien. okla. stat. tit. 25, 1313(c)(1). sanctions are therefore defendants' standing, sovereign immunity, and tax injunction act arguments. limited to employees (and do not extend to independent contractors), see 8 u.s.c. -24- to enjoin the enforcement of okla. stat. tit. 25, 2385.32. this is not to say that this portion of their express preemption claim. the basis of section 7(b). these statutory duties are more than sufficient to within this state unless the contractor or subcontractor registers and 2009 143; basic pilot extension act of 2001 2. contractors pursuant to section 9(a) of the oklahoma act or incur penalties under congress, by contrast, intentionally excluded independent contractors from would restrict the range of choices congress offered employers, section 9 would co. v. cuomo, 14 f.3d 708, 713 (2d cir. 1994) (quotation omitted), rev'd on contractor's employment authorization, pursuant to the prohibition undermine the security of our borders, and impermissibly restrict the applicable to religious organizations even though it was unclear whether the the answer to that question is a matter of federal law; whether the state labels the center; change to win; arizona such interference with congress' selected barred by the tax injunction act. i concur with the other members of the panel in chambers allege may total well more than a thousand dollars per business per invalid, i would not expect the attorney general to bring suit against the public opinion is distinguishable. on the other, we are unpersuaded by its reasoning. vi withheld from payments other than wages to employees. for example, oklahoma (3)(a) ("the [secretary of homeland security] shall designate one or more required to withhold state income tax at the top marginal income tax program's voluntary character. e.g., omnibus appropriations act of 2009, div. j, (4) concluding that section 7(b) is conflict preempted. as noted by judge the definition of "employee"); 274a.1(g) (employers not responsible for oklahoma argued that the chambers lacked standing, that certain defendants were id. (quotation omitted); see also de la cuesta, 458 u.s. at 156 (state law that succeeding on the merits of their preemption challenges to sections 7(c) and 9, pilot); oklahoma taxpayer and citizen protection act of 2002 2 (stating that consolidated security, disaster assistance, and continuing appropriations act, preliminary injunction. imposition of monetary damages that cannot later be 1 general and enforcement of the challenged sections. 28 which the federal statute was designed to reach this goal." id. an injunction against the attorney general,15 (2004) (quotation omitted). thomas e. kemp, jr., jerry and that it was "theoretically possible" that he could "initiate[] suit against not provide proof that she is eligible to work, the contracting entity must withhold knowledge." id. at 1157. this speculative prospect was insufficient to support prospective relief, oklahoma disputes solely the connection between the attorney again, we do not agree. first, it ignores that what is collected under 2385.32 is not some special illegal immigration and verification of employment eligibility. this case the attorney general was of a different mind in the court below, (attorney determinative weight to this executive action given the statistical disparities in erred in its determination that section 7(b) is preempted, and thus the panel complaint as naming only the governor and tax commission as defendants in the employment eligibility of its employees in oklahoma hired after july 1, 7(b). these consequences, in and of themselves, demonstrate a likelihood of preemption. as the supreme court has made clear, "an `assumption' of -49- saying that reinstatement, back pay, costs, and attorney fees are civil sanctions attorney general. (the attorney general may have duties as a "public by federal law and moved for a preliminary injunction to bar oklahoma's pacific american legal center; serv., ch. 112, 2 (west). the act states that unauthorized aliens have been harm in the absence of preliminary relief; (3) that the balance of equities tips in [2] the state of oklahoma further finds that when illegal immigrants lucas guttentag and jennifer chang newell, america civil liberties union -3- ii. section 9 i reject oklahoma's request that we apply a presumption against premise of the commission's argument. oklahoma is not collecting a "tax"; it is complaint in u.s. district court for the western district of oklahoma alleging irreparable harm absent preliminary relief, that the balance of equities tips in their to verify work enactment of" section 9 because "[t]he tia is not concerned with why a state we use "hrc" and "tax commission" as shorthand, recognizing that the controversial that exposure to liability constitutes injury-in-fact. see that plaintiffs have demonstrated a strong likelihood that section 7(c) is colleagues disagree, i would also hold that section 7(b) is conflict preempted. immigration and nationality act to use the program). although basic pilot is plaintiff qualified as a religious organization. id. at 241-44. whether an a disabled parking placard. id. at 1307. a portion of that fee was deposited in a we should reverse and remand for dismissal. i therefore concur in the reversal of immune from suit under the eleventh amendment, and that the tax injunction i respectfully dissent from the majority opinion's holding that the district section 9(b). okla. stat. tit. 68, 2385.32(a), (b). if a contracting entity immigration and work-authorization verification is now the norm, the federal solely to account for the government's opportunity cost resulting from the delay f.3d at 1311-12; rtc commercial, 169 f.3d 457-58; hager, 84 f.3d at 870-72; standards provided car manufacturers with a range of options for passive restraint missouri chamber of commerce and industry, the new jersey chamber of accomplishment and execution of the important means-related federal objectives." philadelphia, pennsylvania, filed an amici curiae brief for the human resource avowed purpose more clearly elucidate its goal. the plaintiffs do no more than authorize state agencies to request assistance from of programs, including those supporting the causes espoused by the license plates. welfare rights org., 426 u.s. 26, 38 (1976)). in larson, for example, the court the purpose of the tia is straightforward: it serves to protect the "federal (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the 7(b) and irca. federal law provides employers with a carefully calibrated set of initiatives funded by the license plate scheme, we held that the assessments were see u.s. const. art. vi, cl. 2; 8 u.s.c. 1324a(h)(2). they sought both having concluded that the chambers have shown a strong likelihood of 951 p.2d 622, 624 (okla. 1997) (attorney general representing state agency in a "attorney general has no power to enforce section 7(b)." (attorney general's the i-9 system was the exclusive employment verification procedure under the statute can escape judicial scrutiny. the tia does not bar a federal court security] shall widely publicize the election process and pilot programs, including rita maxwell, teresa rendon, the situation in geier strongly parallels the interaction between section supp. br. 2); see also bronson v. swensen, 500 f.3d 1099, 1111 (10th cir. 2007) contracting entity and an individual independent contractor. -28- officer's enforcement duties be noted in the act." (quotation omitted)). because taxes under the tia. id. mandatory program choice for state public contractors conflicts with issue and would hold that section 7(b) is impliedly preempted and that the kansas chamber of commerce, the kentucky chamber of commerce, the termination potentially leading to a lawsuit. (webb decl. 4, 18). it is hardly -44- by the city's mayor about implementation, and the operation of the levy in the for lawyers' committee for civil rights of the san francisco bay area, et al., in clause. id. at 867. the court stated: the oklahoma taxpayer and citizen protection act of 2007 (the "act" or columbia; providing web-based access, 69 fed. reg. 75,997, 75,998 (dec. 20, of oklahoma." id. "discourag[ing] illegal immigration" and preventing tentative non-confirmation rates between work-eligible foreign-born employees exception applies so long as the defendant officer has "some connection with the action for the termination of legal residents. while that is a necessary 115658. although the defendant medical institutions could bring suit under the "directed the attorney general to establish three pilot programs to ensure 1324a. 1996); san juan cellular tel. co. v. pub. serv. comm'n of p.r., 967 f.2d 683, on interstate corporations while facilitating uniform enforcement. finally, by expressly tied to the administrative costs of a specific regulatory scheme, we 9. the district court denied the motions to dismiss and granted the preliminary statute providing that "[a]ny person who performs an abortion on a minor without united states court of appeals interest will perforce be served by enjoining the enforcement of the invalid declaratory and injunctive relief from defendants, oklahoma governor brad penalties associated with nonpayment of taxes constituted taxes for purposes of of law or makes clearly erroneous factual findings." beltronics usa, inc. v. eligibility of independent contractors, which would increase the burdens on oklahoma's governor was also preliminarily enjoined from enforcing true that regulating motor-vehicle emissions will not by itself reverse global fin. group, 981 p.2d 321, 325 (okla. 1999). because the chambers have not c impliedly preempted, id. at 866-67. its implied preemption holding was based in the basic pilot program to verify the work authorization status of their employees governor pending further proceedings in the district court. assessment a tax is not dispositive. id. at 1311. state." 1341. there is no dispute that a sufficient remedy exists in oklahoma the plaintiffs' standing thus depends on their showing an actual and section 7(c) subjects employers to cease and desist orders, reinstatement, records may be inaccurate, the employee is notified of the tentative prerequisite, an employer is subject to sanction only if the employer retains an under similar working conditions, as defined by 29 u.s.c., section my view, plaintiffs lack standing to seek an injunction against the attorney this case is that the plaintiffs have not shown that they face an actual and we reach the same conclusion regarding the chambers' section 7(c) claim. the work authorization status of their employees by using the i-9 system. "irca violated not when an unauthorized alien is employed, but when an employer fails to participate . . . ." (emphasis added)); 402(d)(2) ("the [secretary of homeland to comply with that section, a contracting entity must either verify the work immigration expressed in the first two sentences are to support the proposition in explained, regardless of the ultimate use of funds, a non-tax assessment "may further that "improvements are needed, especially if the web basic pilot becomes -12- of business; association of and approval is part of the work of the attorney general. the statutes cited by determination of whether it is a tax or a penalty. see hill, 478 f.3d at 1244-45. "harbored and sheltered" in oklahoma and issued "identification cards . . . are likely to succeed on the merits of their claims that section 7(c) is expressly 19 attorney general, and sandra d. rinehart, senior attorney general, with him on pennsylvania chamber of i would hold that section 7(b) disturbs the balance between these employment, unauthorized aliens." id. (emphasis added). even assuming that respect to section 9, (tax commission's br. 4). see supra note 11. -51- 1313(c)(1). but the sole provision of the oklahoma anti-discrimination act "sanctions" including reasonable attorneys' fees and other expenses, fed. r. civ. that the requested relief would likely redress their alleged injuries. summers, 129 id. while discussed supra, however, the purpose of an assessment is key to our have standing to seek the injunction; and 7(c) is preempted by the irca state. -37- privileges and immunities of the citizens of oklahoma. [3] non-compliance. their membership includes companies that currently have 101; consolidated security, disaster assistance, and continuing appropriations employment of illegal aliens." (attorney general's br. 23). notwithstanding that -32- contracting entity documentation to verify the independent employee working in oklahoma who is a united states citizen or contractor registers and participates in the status verification system plaintiffs have made a similar showing regarding section 7(b). only one method of collection, and the government is still free to contractors when congress plainly chose not to do so. section 9 as against either the attorney general or the hrc, but we read the that statute and would be willing if not eager to take action against public congress opted to create a substantial safe harbor for employers that f.3d at 1104, and plaintiffs' motion to strike is thus granted. appellees. commerce; missouri chamber of in part, reverses in part, and affirms in part. was an abortion provider, and the defendants were officials of state-run medical though such contracts may involve the physical performance of robert rubin and nira geevargis, lawyers' committee for civil rights of the imminent injury to be suffered by the plaintiffs' members from enforcement of necessary to ensure the integrity of various governmental programs and services." arguments that these sections were either field or conflict preempted. okla. stat. tit. 25, 2385.32(a) states: (10th cir. 2004). because the chambers have a valid right of action under the could "refuse payment of [a] contract price to [a] contractor'" who employed out- -39- withholding shortfall. 2385.32(b). (...continued) relief, including reinstatement, back pay, costs and attorneys' fees, 1505(c). section 1313(b). am. friends, 419 u.s. at 10. ensure that their income-tax obligations will be satisfied. because we conclude that the chambers are likely to succeed on the with respect to the merits, the court concluded that the chambers were n.15)). 29 brief which, for the first time, argues that the portions of the act were akin to support of appellees. compensation in an amount equal to "the top marginal income tax rate" allowed and it must be likely that a favorable judicial decision will prevent or 10 enforce that provision. a violation of section 7(c) constitutes a "discriminatory outlining these potentially-conflicting systems. now conclude that the saving clause (like the express pre-emption provision) does undermine congress' decision to permit a variety of devices, the state tort suit lastly, we dispose of oklahoma's argument that the chambers lack jersey chamber of commerce; indiana chamber of commerce; employment discrimination. h.r. rep. no. 99-682(i), at 56 (1986), as reprinted large part on the initial conclusion that the arizona law fell within the savings 208, 211 (1st cir. 1979) (merely because "an attorney general has a duty to remains.3 . . . lawfully admitted for permanent residence, or (b) authorized to be so employment of illegal aliens are avowed purposes of the three provisions at issue chamber of commerce and collect its taxes in a particular manner. after all, even if the tax itself is assessment, levy or collection of any tax under state law where a id. conversely, interest was logically a part of the tax itself because it was meant section 7(c), (attorney general's br. 14, 20), as has the tax commission with approve state contracts, the plaintiffs have presented no evidence that such review kansas chamber of commerce; court had jurisdiction to enjoin the enforcement of okla. stat. tit. 25, 2385.32 5 because it concluded that sections 7(b), 7(c), and 9 were likely purpose of the assessment as articulated in the text of the ordinance, admissions have held that "[a] party may bring a claim under the supremacy clause that a llc v. leavitt, 549 f.3d 1294, 1299-1301 (10th cir. 2008). held unconstitutional). we are unpersuaded by the argument that the oklahoma after alexis geier was seriously injured in a car crash. id. at 865. they claimed 209 u.s. at 157. an officer need not have a "special connection" to the allegedly performed by [plaintiff] (5) on a minor (6) without parental consent or neither can oklahoma's statutory law require verification of independent sections 7(b) and 9 impose "sanctions" as that term is used in 1324a(h)(2), 4 williams, in their official capacities as a tax, because its purpose is to regulate conduct rather than to raise revenue. of commerce and industry; c. nothing in this section is intended to create, or should be construed authority and hold that the district court was deprived by the tia of jurisdiction an employer who engages in such a discriminatory comply with this withholding requirement are liable to the state for any requirements of this subsection shall be liable for the taxes required to seek injunctive relief, a plaintiff must show that he is under threat . . may elect to participate in that pilot program. except as specifically provided massachusetts v. epa, 549 u.s. 497 (2007), the court held that massachusetts designed to deny employment to aliens who (a) are not lawfully present in the codified in the body of the u.s. code but appear in a note appended to 8 u.s.c. pub. l. no. 108-156, 3-4, 117 stat. 1944, 1944-45. as of september 8, 2009, executive order 12,989 requires federal f.3d at 776. 48,312 (sep. 15, 1997) [hereinafter pilot programs]. rather, because federal enforcing a law that is likely constitutionally infirm. moreover, "the public hired after july 1, 2008, and who is working in oklahoma in a job category act, they face investigation and other consequences for having engaged in a applying these principles, we conclude that section 9 of the oklahoma act see iirira 402(a) ("voluntary election."); id. ("[a]ny person . . . that incentive structure created by the penalties revealed their regulatory character: this provision, it has long been recognized that federal law preempts contrary id. rather, the assessment's purpose was regulatory. id. it therefore constituted -12- travelers ins. co., 514 u.s. 645 (1995). in deciding whether section 9 imposes a san juan, 967 f.2d at 685-86. by its plain terms, section 9 was enacted 2. after july 1, 2008, no contractor or subcontractor who enters into a 502 u.s. 183 (1991). voluntary (as of yet) at the national level, it is not reasonable to assume that a 17 in the public interest. "the fact of a common end hardly neutralizes conflicting have therefore waived any response to the contention that the attorney general is with public employers. okla. stat. tit. 25, 1313(b)(2). thus section 7(b) is kan. health care ass'n, inc. v. kan. dep't of social & rehab. servs., 31 f.3d okla. stat. tit. 25, 1312(4), we employ that phrase. human rights commission with respect to enforcement of 7(c). the plaintiffs this penalty into a tax. to decide that issue, we must inquire into the statute's common end hardly neutralizes conflicting means." crosby v. nat'l foreign defense education fund; asian -13- enforcing it. see id. at 113. the court acknowledged that the attorney general in hill, we employed a similar analysis in reaching the opposite conclusion. of suffering "injury in fact" that is concrete and particularized; this general with respect to section 7(b), and their claim with respect to section 9 is the briefs), oklahoma attorney general's office, oklahoma city, oklahoma, for remaining preliminary injunction factors were satisfied. all defendants, except kemp, 478 f.3d 1236, 1244-45 (10th cir. 2007). in judging purpose, we u.s. 861 (2000), is particularly instructive. in that case, plaintiffs sued honda an unauthorized alien is irrelevant in determining whether an employer has (...continued) additionally, we conclude that section 7(c) sanctions are imposed "upon defendant with no power to enforce a challenged statute."). criminal penalties, including fines, 1324a(e)(4), cease and desist orders, id., and did neither. back pay, costs, and attorneys' fees. okla. stat. tit. 25, 1505(b), (c). such workers, easing burdens on employers, and preventing employment 9 18b(a)(3), (9), (10), (16). and the attorney general represents to this court independent contractor can file an oklahoma tax return and obtain a refund of the ordinances at issue avowedly proclaimed, designed to regulate the weight of authorization." okla. stat. tit. 68, 2385.32(a). for the sake of brevity, we relieve a discrete injury to" the chambers. larson, 456 u.s. at 243 n.15; see also -43- "the statute's ultimate goal is to ensure that taxes are collected, not to regulate the united states of america; 147 (2002). section 101(a)(1) of irca makes it "unlawful for a person or other linton joaquin, karen c. tumlin, and nora a. preciado, national immigration authoritative interpretation of the . . . provision . . . even though they would not enters into a contract with a public employer shall enter into such a brought by minors or by "medical facilities that incur certain treatment costs that entity knows, or reasonably should have known, is an unauthorized alien -7- jurisdiction to enjoin section 9. because the tia implicates the subject matter unless they adopt basic pilot. debarment from public contracts and the attendant his duty to enforce state law (presumably by bringing suit to make sure that 12 (1947)). federal regulation of immigration is longstanding, as is its regulation of and that oklahoma uses the tax system to collect the revenue does not transform v. kan. dept. of revenue, 170 f.3d 1305, 1308-09 (10th cir. 1999). oklahoma act.13 two of our principal cases in this area have looked to the ultimate use of chamber of commerce, inc.; levies and injunctive action whenever it terminates an authorized employee. for to do so because, at the same time, it did expressly forbid any state contracting entity documentation to verify the independent persists in violating irca after being put on notice of its noncompliance or had a "general duty to enforce the laws of the commonwealth of pennsylvania," district attorney, because the attorney general may step in if the district attorney -6- engages in a pattern or practice of violations, 1324a(b)(6)(b), (c), employers department of homeland security or any other federal agency trucks using city streets. id. at 871. the court's analysis turned on the stated okla. stat. tit. 25, 1313(c)(1), but exempts employers from liability if they use participates in the status verification system to verify information of similarly require withholding of payments to those independent contractors to chambers' associational standing, and the record reveals the latter two prongs from granting relief to one who has already paid a challenged state tax; and, as far i agree with the majority opinion in affirming the injunction against the employers are required to verify the identity of their employees and ensure they the chambers' standing to challenge sections 7(b), 7(c), and 9 of the oklahoma oklahoma also asserts that the chambers lack standing to challenge the movant's favor; and (4) that the injunction is in the public interest." attorney state court. accordingly, we need only decide if the assessment imposed by 402(e). plaintiffs-appellees, of discrimination in a housing context. 1502.15(a); see also collier v. insignia interests and decided against such a requirement, geier, 529 u.s. at 877-78, individuals . . . to inform persons and other entities that seek information about public school construction projects." id. at 111. an individual school district in its entirety, the tia provides: "the district courts shall not enjoin, preemption. plaintiffs filed a motion to strike that portion of oklahoma's reply initiative for a legal workforce and associated builders and contractors, inc. 2009). to establish standing, plaintiffs bear the burden of demonstrating that to report as income on united states internal revenue service form system strikes the best balance between preventing employment of unauthorized system a uniform national requirement, congress limited the compliance burden poverty law center; women's information of all new employees. oklahoma taxpayer and citizen protection act of 2007, 2007 okla. sess. law. to obtain "documentation to verify . . . independent contractor[s'] employment 624; cemetery co., 122 p.3d at 481-82. he is therefore a proper defendant for lessening the disruption of american business, and minimizing the possibility of johnson, and constance irby, in -46- moreover, the expressed primary goal of the oklahoma act is to regulate execution of the full purposes and objectives of congress."26 section 6 of the act defines status verification system as: kevin m. fong and brian j. wong, pillsbury winthrop shaw pittman llp, and 9 of h. b.1804 are somewhat different from those of the others on this panel. in workers. even assuming federal law singlemindedly pursues this goal, it does not if a public employer were enjoined from enforcing 1313(b) because it is practice is subject to investigation by the oklahoma human rights commission a sammie vasquez, sr., and juanita that some public employers outside the scope of the injunction might standing. see id. at 115758. an unauthorized alien while terminating an authorized worker. okla. stat. tit. 25, robin s. conrad and shane brennan, national chamber litigation center, inc., hand, because oklahoma has waived any argument that its act is a licensing or members of the oklahoma human rights citizens, the submitted information is checked against u.s. citizenship and risk of harm "would be reduced to some extent if petitioners received the relief unlike the i-9 paper verification process, basic pilot is an internet-based or local law imposing civil or criminal sanctions (other than through entered into prior to the effective date of this section even though (1974) (per curiam), a district court had enjoined the government from enforcing given by a state for an assessment or charge is not dispositive" of its character, for specialty license plates bearing messages such as "adoption creates families" 27 the physical performance of services within this state unless the that requires equal skill, effort, and responsibility, and which is performed oklahoma responds that in order to have standing to contest section 7(c), irreparable harm. law center, los angeles, california, filed an amici curiae brief for american general. the commission contends that section 9 creates a method of tax enforce federal immigration law. the sentence relevant to the withholding 21 employment authorization verification, h.r. rep. no. 99-682(i), at 68. irca currently enrolled in and used a status verification system to verify the irca preempts "any state or local law imposing civil or criminal sanctions warming, it by no means follows that we lack jurisdiction to decide whether epa contracting entities that do not verify eligibility or withhold taxes from their $10,000. penalties are ordinarily understood as serving punitive purposes. yet, of "penalties" for employers hiring unauthorized aliens, ranging from $250 to therefore, the people of the state of oklahoma declare this it is a -19- h.b. 104, which is in essence the preamble to the statute. section 2 states in full: requiring [basic pilot program] participation. it certainly knew how did in 1324a(e)(4)(a). had congress intended to preempt only those state laws raise revenue, "while levies assessed for regulatory or punitive purposes, even the supreme law of the land[,] . . . any thing in the constitution or laws of any authorization status of their employees. general's br. 50). but "[i]n determining whether [state] law `stands as an merits of their conflict preemption challenge to section 9, we need not address law, they could do so only if "they happen to (1) incur medical costs (2) not see wagnon, 476 f.3d at 828, the chambers' claim under that provision falls as creating, an employer-employee relationship between a in addition to questioning this court's jurisdiction, the tax commission to have been withheld unless such contracting entity is exempt from be enjoined from enforcing section 9. -5- act vindicates the public interest because it serves a purpose consistent with this state . . . [by] discouraging employers from hiring illegal aliens." (attorney basic pilot, 1313(c)(2). oklahoma argues that the chambers lack standing to a. if an individual independent contractor, contracting for the physical alternatives for verification of work authorization status. whether to utilize the i- contractors, are likely to evade payment of required state income tax, it can to report as income on united states internal revenue service form "that a favorable decision will relieve [their] every injury." larson v. valente, wagnon, 476 f.3d at 828 (citing ex parte young, 209 u.s. at 157); see also doing so is not at issue before us. regardless, nothing in this executive action with all aspects of state tax administration." hibbs v. winn, 542 u.s. 88, 105 redress the injury. review questions of standing de novo. stewart v. kempthorne, 554 f.3d 1245, v. employer," but the plaintiffs are not seeking relief from him in that role.) the -10- comply with 1313(b). parental consent, and there was evidence that a parental-consent policy would curiae brief for change to win, in support of appellees. 16 the tia forbids injunctions against such withholding statutes. the tia public employers to comply with 1313(b). i am aware of no such showing. hrc has conceded that its members are not immune with respect to having engaged in "an unfair immigration-related employment practice," see 8 rate as provided in section 2355 of title 68 of the oklahoma statutes with this federal law in mind, we turn to the oklahoma taxpayer and we conclude that the chambers will likely suffer irreparable harm absent a recovered for reasons such as sovereign immunity constitutes irreparable injury. governor, attorney general, human rights commission, and tax commission payments to independent contractors, it is not uncommon to require that taxes be chambers do not cite to any oklahoma law authorizing the attorney general to forbidding employers from requesting "more or different documents" than among these goals were preventing the hiring of unauthorized aliens, verifying work authorization of independent contractors). protect are germane to the organization's purpose; and (c) neither the claim licensing and similar laws) upon those who employ, or recruit or safe harbor from discriminatory practice liability for employers who utilize basic 2 forbids injunctions against tax-withholding statutes. and 2385.32 is such a because it provides for the imposition of civil sanctions for employing requiring such use in these circumstances reads too much into the federal id. at 11112. westco challenged the constitutionality of the residency employing entity knows, or reasonably should have known, is an unauthorized income tax rate" allowed under oklahoma law. okla. stat. tit. 68, 2385.32(a). violated section 7(b). 1313(b)(2). between [social security], uscis, and the u.s. department of state than is contest section 7(c) because they have not sufficiently alleged injury-in-fact. of financial assessment, encourages employers to verify the employment public interest is served by an injunction. oklahoma does not have an interest in builders and contractors, inc., provided in subsection (e), the [secretary of homeland security] may not require 08-6127 & 08-6128, chamber of commerce of the united states of america v. cannot be remedied. should the chambers' members decline to comply with the subcontractor who verifies through the i-9 system cannot obtain certain state however, the eleventh amendment does not apply to suits against a state officer legal workforce; associated 1 -16- stat. tit. 68, 2385.32(a). section 9 creates an incentive structure that, on pain employees have ten federal workdays to contest a tentative nonconfirmation. the purpose of the act is to "discourage illegal immigration" through verification both compliance and non-compliance with section 7(b) injure the w.a. drew edmondson. specifically, the statutory language requires the employer to receive economic injuries in the form of implementation and training expenses, which the independent contractors and provides for enforcement of the requirement. -27- businesses are not required to contract with the state, oklahoma may not impose denying all motions to dismiss, the district court nativedocuments/mou.pdf. under the program, an employer submits employee oklahoma; keith mcartor, stan but income tax, pure and simple." (dissenting op. 9-10.) however, the fact that we disagree. m. daniel weitman, assistant attorney general (kevin l. mcclure, assistant 2385.32. the united states." hoffman plastic compounds, inc. v. nlrb, 535 u.s. 137, these are in deciding this issue, we are mindful that the chambers need not show requiring a punitive component. title 8, section 1324a(e)(4)(a) outlines a series "initiate or appear in any action in which the interests of the state or the people of of any tax." the district court's injunction against the collection of tax, the touchstone of our inquiry is the purpose of the assessment. see hill v. "a restrictive measure used to punish a specific action or to prevent some future 2001) (public interest favors preliminarily enjoining state statutes likely to be documents. 8 c.f.r. 274a.2(b). irca establishes a list of permissible the employee. id. at 48,310. an employee who does not contest the tentative defendants moved to dismiss.11 excess payment. indem. co., 169 f.3d 448, 457 (7th cir. 1999); hager, 84 f.3d at 870-71. mandates basic pilot, 1312(1)(a). thus, under section 7(b), a contractor or oklahoma act as a whole incentivize employment authorization verification subsection 402(e) lists particular federal government entities required to c tenth circuit particular verification method that congress has expressly left voluntary. section industries; metropolitan tulsa 28 u.s.c. 1341 (emphasis added). withholding is a method for collection of henry, oklahoma attorney general w.a. drew edmondson, the members of the in the lawsuit." id. at 343. defendants challenge only the first prong of the requires income-tax withholding from royalty payments to nonresidents. see result of this interlocutory appeal, the injunction will operate against the geier, 529 u.s. at 878, 881. similarly, state legislation may not mandate a argues that the chambers "bring their suit as a civil rights suit under 42 u.s.c. in rtc commercial, for example, the court examined whether interest and but use is not always conclusive evidence of purpose. just as "[t]he label 7(c) could be saved by excluding those civil-penalty provisions from its reach; preempted by federal law and thus unconstitutional under the supremacy clause. 1324a(h)(2)'s savings clause, 558 f.3d at 866, and that the state law was not equality; la raza centro legal; sections 401 to 405 of iirira, which govern the pilot programs, are not ordinances generate a permit fee which goes to the general city fund is only is precluded from doing so. in the circumstances before us in this case, however, the district court's grant of summary judgment against the enforcement of prosecute all actions in which the state is interested [is not] enough to make him a 6 except as provided in sections 6015(e), 6212(a) and (c), 6213(a), to pay taxes.) the supreme court held that the district court's injunction was san francisco bay area, san francisco, california, filed an amici curiae brief verification is still not sufficiently up to date to meet the iirira requirement for members lack an injury-in-fact and that they have not demonstrated redressability. (continued...) complied fully with their obligations, no penalties at all would be collected.").23 degree of reliability as the programs, systems, or processes described rate as provided in section 2355 of title 68 of the oklahoma statutes conflicting goals deliberately crafted by congress.29 marcus, 170 f.3d at 1311-12. in marcus, kansas charged drivers $5.25 to obtain determined that "the dominant purpose of these funds [was not] revenue raising." wildlife, 504 u.s. 555, 561 (1992) (explaining that the burden to demonstrate -50- "reduced to some extent" by an injunction running against the attorney general.16 contracts.7 those who employ . . . unauthorized aliens," 8 u.s.c. 1324a(h)(2). an b. any contracting entity who fails to comply with the withholding an employee the employer knows or reasonably should know is unauthorized, section 2385.32(b) makes the hirer liable for taxes that should have been other measures are necessary to ensure the integrity of various injunction act (the "tia"), 28 u.s.c. 1341. federal law is clear that the tia efficient and accurate verification of any new employee's eligibility for 3. the provisions of this subsection shall not apply to any contracts costs. the plaintiff, we said, had shown an injury in fact because the law created -38- issuance of a preliminary injunction was appropriate. accordingly, this opinion is band potawatomi nation v. wagnon, 476 f.3d 818, 827 (10th cir. 2007). through several extensions of basic pilot, congress has opted to retain the suit for retrospective relief, edelman, 415 u.s. at 667-68, these financial injuries discriminating. 1324a(b)(1)(a)(ii), 1324b(a)(6). federal law further defines unauthorized aliens cannot be overlooked--including requiring the system for pilot programs for employment eligibility confirmation, 62 fed. reg 48,309, and federal law a physical impossibility,27 performance of services in this state, fails to provide to the 1324a(e). an employer that does so is subject to a range of civil and investigation, or suit" under section 7(c)'s safe harbor. 1313(c)(2). (2001), and authorize the attorney general to enforce state law, see id. chooses to collect its taxes in a particular manner." (dissenting op. 10.) as 1148 (2009); dias v. city and county of denver, 567 f.3d 1169, 1176 (10th cir. control of epa, the state's injury was nonetheless deemed redressable because the oklahoma means to "discourage illegal immigration" through comply with the i-9 system. 8 u.s.c. 1324a(b)(6)(a). unless an employer -9- responsibility act of 1996 ("iirira"). chicanos por la causa, inc. v. district court's denial of eleventh amendment immunity, p.r. aqueduct & sewer 274a.1(f), (g); see also h.r. rep. no. 99-682(i), at 57, 68. by making the i-9 the basis for the threat--for example, the constitutionality of a law threatened to dismiss below, the act aims to "discourag[e] illegal aliens from seeking refuge in our decisions recognize as much. the license plate charges at issue in hill, for (1) the chambers have standing; (2) that the eleventh amendment precludes the injunction would redress the chambers' injury as to the governor. no matter the are also relevant. rtc commercial assets trust 1995-np3-1 v. phoenix bond & such statutes. see int'l lotto fund v. virginia state lottery dep't, 20 f.3d 589, submits verification documents that "reasonably appear[] on [their] face to be contingent on the employment of an unauthorized alien. see id. we are not verification system to verify the work eligibility status of all new genuine" may not be required to produce different or additional documents if such relief sought at this time. without verifying immigration status." id. these actions "impede and obstruct of a savings clause by itself alters the operation of traditional implied preemption local enactment is preempted even if the federal law at issue does not create a attorney general and westco. id. at 116. the court reasoned that the residency for the western district of oklahoma -26- satisfied of our jurisdiction, we turn at last to the main course. in order to in other words, if one who hires an independent contractor cannot obtain (1929) (holding that paying an allegedly unconstitutional tax when state law did oklahoma responds that the 1. after july 1, 2008, no public employer shall enter into a action by the attorney general with respect to 1313(b) is imminent, or that any in this case. id. independent contractors an amount equal to the top marginal income tax rate. business and industry; challenged sections of the act because those sections imposed civil sanctions in preempted when they fall within the scope of a federal provision explicitly require a plaintiff to expose himself to liability before bringing suit to challenge the department of homeland security ("dhs") found that "the database used for 2759, 2769 (2008) (citation omitted); see also dias, 567 f.3d at 1176-77. we all new employees. national immigration law 22 -9- u.s. 89, 108 (2000) (citing rice v. santa fe elevator corp., 331 u.s. 218 my views with respect to plaintiffs' challenges to sections 7(b), 7(c), and states: 15 contract with a public employer shall enter into such a contract or law charged the pennsylvania school districts, not the attorney general, with w.a. drew edmondson, in his official neither the presence of an express preemption provision nor the presence statutory context does not evince an intent to narrowly define "sanction" as verification obligations. see 8 u.s.c. 1324a(a)(1)(a); 8 c.f.r. 274a.1(f), (g); good faith. 1324a(a)(3). employers are not required to verify the work minimum amount of compensation the contracting entity is required funds generated by a levy as evidence of its purpose. hill, 478 f.3d at 1244-46; -15- the majority opinion makes what i believe to be two errors in its analysis. while retaining a worker the employer knows, or should reasonably know, is an verification for employees but not for independent contractors. see required to withhold state income tax at the top marginal income tax napolitano, 558 f.3d 856, 861 (9th cir. 2009). in enacting iirira, congress id. (quotation omitted). this is problematic because it implies that the presence in 1986 u.s.c.c.a.n. 5649, 5660. irca forbids the hiring of unauthorized determining that the "primary purpose of the special license plate scheme is united states, or (b) are not lawfully authorized to work in the united states." issued a preliminary injunction prohibiting enforcement of the act. it rejected in subsection (e), the attorney general may not require any person or other entity information. if the information submitted by the employer matches the social civil procedure 37(d). fed. r. civ. p. 37(d)(3). defendants-appellants, expansion of the basic pilot program to all 50 states and the district of precluding state action. see id. alternatively, state laws may be impliedly 1312(1)(a)-(d). medimmune, inc. v. genentech, inc., 549 u.s. 118, 128-29 (2007); protocols, "sanction" in other provisions of federal law. an attorney, law firm, or party that "so that delinquent [contracting entities] will be deterred the next time around a medical treatment such minor might require because of the abortion." okla. stat. the supremacy clause provides that the laws of the united states "shall be 3 within the meaning of that term in the irca . i would be inclined to agree with are eligible to work in the united states by examining certain specified 9 particular duty to enforce that section, see okla. stat. tit. 74, 18b(a)(3), (7), and commerce, the pennsylvania chamber of business and industry, the tennessee -48- through licensing and similar laws) upon those who employ, or recruit or refer for as the tia is concerned, a state court could enjoin enforcement of a state-court employed new jersey workers to renovate three of the district's buildings. see within this state after july 1, 2008. under certain constraints imposed by dhs), a business employing basic pilot goes to the general city fund is only incidental to its regulatory nature." id. at whether congress has occupied the field of work authorization verification. second, the majority opinion improperly focuses on the motive for section 7(b), but he has not appealed. thus, we need not consider whether the contracts entered into prior to the effective date of this section even of 2002 2. as the oklahoma attorney general acknowledged in its motion to immigration services ("uscis") records. prosecuted under a criminal statute may sue the attorney general as well as the commerce and industry; new the voluntary nature of pilot programs . . . ." (emphasis added)); 402(d)(3), conflict preempted.28 westco's interests." id. at 114. but because the record did not establish a purpose; here, that purpose is to ensure that employers verify the employment before kelly, lucero, and hartz, circuit judges. accurate verification." westat, findings of the web basic pilot evaluation xxi to 1313(b). to work in the united states were 30 times as likely to receive an erroneous other portion of the assessment was used, the statute mandated that the charge is not a "sweeping congressional direction to prevent federal-court interference other similar law, 8 u.s.c. 1324a(h)(1); supra note 23, the ninth circuit's okla. stat. tit. 68, 2385.32(a). because federal verification requirements are patrick j. szymanski, general counsel, change to win, washington, d.c., and standing to challenge section 9 because they have failed to allege injury-in-fact. -20- to sections 7(c) and 9; and (3) the district court properly exercised jurisdiction standing to sue the attorney general, see id. at 11416. chambers' members will face a significant risk of suffering financial harm as in full, section 7(b) provides: imminent threat that the attorney general will bring or threaten suit to require entitled to immunity as to that challenge. see shell oil co. v. noel, 608 f.2d if an independent contractor does authorized to verify the work eligibility status of newly hired concluded that employment verification should be required, but that the i-9 9 system or the basic pilot program is a choice that congress has to date, in its alien. id. at 48,313. the plaintiff could not fairly trace this injury to the named defendants. see id. at context of the state's motor vehicle laws. id. although the revenue raised ended he drafts contracts for state officials upon request. see okla. stat. tit. 74, online verification process implemented by the united states social john m. west, bredhoff & kaiser, p.l.l.c., washington, d.c., filed an amicus basic pilot is also commonly referred to as e-verify. congress recently 8 u.s.c. 1324a(h)(2) require private employers to utilize basic pilot. 402(a) ("except as specifically p. 11(c)(4)--the very type of sanctions imposed by section 7(c). similarly, costs moreover, the balance of equities tips in the chambers' favor, and the issue falls within the scope of a federal preemption provision. see emerson v. that section prohibits employers from firing an authorized worker while retaining actual cases or controversies. summers v. earth island inst., 129 s. ct. 1142, ("plaintiffs" or the "chambers"), challenged sections 7(b), 7(c), and 9 of the amendment as to all three challenged sections of the oklahoma act.20 withholding statutes have held that the tia likewise forbids injunctions against reasonably should know is unauthorized to work. section 9 requires contracting reside in this state through the issuance of identification cards that state provide public benefits without verifying immigration status. we reach the opposite conclusion with regard to section 7(c) because the harm that cannot be compensated after the fact by monetary damages." (quotation private right of action." qwest corp. v. city of santa fe, 380 f.3d 1258, 1266 the plaintiff's injury was likely redressable. id. at 242-43. similarly, in institutions who, in theory, could bring suit under the law to recoup treatment specifically chosen measures discouraging illegal employment with measures to barred by the anti-injunction act, 26 u.s.c. 7421(a). the anti-injunction act u.s.c. 1324b(a)(6), (b). to avoid that possibility, the chambers have alleged washington business; west conflict preempted). 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and program should not be mandatory. it is particularly inappropriate to give 401(a). section 402 of iirira stresses the voluntary nature of the program. though they may also raise revenues, are generally not `taxes.'" travelers ins. 8 earmarked for a general city fund, a fact superficially suggesting that the levy's 11 the statute in question and a demonstrated willingness to exercise that duty." penalties, to verify the work authorization status of independent contractors. auth. v. metcalf & eddy, inc., 506 u.s. 139, 147 (1993), and under 28 u.s.c. request of the hrc, 1502.1; cease-and-desist orders, 1505(b); and affirmative marcus, 170 f.3d at 1311, neither is the ultimate use of funds dispositive of an -34- unlawful immigrants acting as independent contractors pay oklahoma income 1313(b) because of his duties in reviewing and approving state contracts and clerk of courtpublish their own courts and administrative processes . . . without undue interference employer to "discharge an employee working in oklahoma who is a united states above all else. see, e.g., okla. stat. tit. 25, 1312(1)(a)-(d) (defining status case only insofar as the attorney general is named as a defendant in the challenge not provide a remedy for its return constituted irreparable injury in the event that we have jurisdiction under the collateral order doctrine to consider the 2. after july 1, 2008, no contractor or subcontractor who the partial dissent argues that section 9 is "not some special assessment unauthorized alien. id. the chambers are thus likely to succeed on the merits of 170 f.3d at 1311 (citing collins holding corp. v. jasper county, 123 f.3d 797, u.s.c. 1324b(a)(6). the federal prohibition, however, requires a specific intent threat must be actual and imminent, not conjectural or hypothetical; ; see also 402(d)(2) ("the (...continued) walter dellinger, sri srinivasan, and justin florence, o'melveny & myers llp, any person or other entity to participate in a pilot program."); 402(e) (listing hager, 84 f.3d at 870-71. in marcus and hill, where the money went was strong 2004). iirira explains that "any person or other entity that conducts any hiring . employees, pursuant to the immigration reform and control act of we conclude that section 9 similarly upsets congress' carefully and u.s.-born employees discussed supra. to participate in a pilot program." iirira 402(a)5 extension act of 2001, pub. l. no. 107-128, 2, 115 stat. 2407, 2407 (2002). alien." 1313(c)(1).8 penalties are designed to incentivize compliance with law, not to raise revenue. ii automated med. labs., inc., 471 u.s. 707, 713 (1985). state laws are expressly "pursuant to the prohibition against the use of unauthorized alien labor." okla. the imposition of such sanctions is divorced from the employment of unauthorized substantial costs that constitute injury-in-fact. alternatively, an employer who oklahoma misstates the scienter requirement of section 7(c). employers federal safe harbor for i-9 users also suffers a cognizable injury. such an -30- a mandated national program," id. at xxi, but that correcting the problems "will 2. an employing entity which, on the date of the discharge in question, was challenge to section 9. see supra note 11. standing varies at different stages of litigation). "[a] favorable decision will the attorney general in preparing contracts, see 74 okla. stat. tit. 74, 18b(a)(7) that the car alexis was driving was negligently and defectively designed because as actual or imminent; that the injury was caused by the challenged sections; and challenge, we turn to the second alleged jurisdictional defect. according to the 1536, 1543 (10th cir. 1994); see also ohio oil co. v. conway, 279 u.s. 813, 814 suits brought in federal court by their own citizens, by citizens of other states, by business and could lead to increased employment discrimination. 8 c.f.r. of services within this state unless the contractor or subcontractor unconstitutional (because, say, of an improper purpose), the tia forbids federal is likely that a contracting entity will face increased claims of unfair employment 18 illinois chamber of commerce; in response, the attorney general retreats to the generalized assertion that assessment's purpose, hager, 84 f.3d at 870-71. as our sibling circuit has impositions are "restrictive measures" that fall within the meaning of "sanctions" services within this state after july 1, 2008. until its reply brief, oklahoma did not argue that the parenthetical 591 (4th cir. 1994); sipe v. amerada hess corp., 689 f.2d 396, 402-03 (3d cir. unless the contractor registers and participates in the status okla. stat. tit. 25, 2385.26. royalty withholding serves the purpose of ensuring memorandum of understanding, available at http://www.uscis.gov/files/ law center; national center section 9 of the act, unlike federal verification law, requires all businesses their patients fail to reimburse." nova health, 416 f.3d at 1156. the plaintiff security, known as the basic pilot program, of those three, only the basic pilot program phoenix, arizona, and burt m. rublin, ballard spahr andrews & ingersoll, llp, we turn to the remaining preliminary injunction factors. to obtain a preliminary likely to be redressed by a favorable decision." id. (quoting simon v. e. ky. work authorization status of their individual independent contractors and that fail the illinois chamber of commerce, the indiana chamber of commerce, the the chambers' section 7(b) claim. see wagnon, 476 f.3d at 828. in united states vs. american friends service committee (afsc), 419 u.s. 7 plaintiffs' sole claim is that the attorney general may have a role under (continued...) as applied to compensation paid to such individual for the bring their claim against the attorney general. the record fails to show that the although it may be rare for a government to require tax withholding from jurisdiction of federal courts, we consider its applicability de novo. see marcus -31- act, 2009, pub. l. no. 110-329, 143, 122 stat. 3574, 3580 (2008); basic pilot employer to enforce that section. to obtain the benefit of the section 7(c) safe harbor, an employer must use aliens, but to lessen the burden on employers, it limits penalties to those who result in the loss of "some business." id. at 1155. we concluded, however, that principles. geier v. am. honda motor co., 529 u.s. 861, 869 (2000). greater oklahoma city physical impossibility or that "stand[] as an obstacle to the accomplishment and i concur in judge lucero's opinion with the exception of parts v(b)(2) and government's encouragement of a web-based system to reduce the employment of employment discrimination, a goal which is also served by a uniform system of (continued...) evidence suggests that federal standards concerning immigration and employment verification regime and that of the oklahoma act. we begin by imminent threat of injury traceable to actions of the attorney general with regard "documentation to verify the independent contractor's employment -52- be enforced." medimmune, inc., 549 u.s. at 128-29 (emphasis omitted). the -47- a decision by the third circuit is also instructive. 1st westco corporation -45- citizen protection act of 2007. the act reflects oklahoma's judgment that should be voluntary, the chambers can likely succeed in showing that oklahoma and this contention ignores the plain wording of the act which proscribes
Employer Groups Challenge State Immigrant Verification Regulations