[00:00:00] Speaker 02: Good afternoon, counsel. [00:00:02] Speaker 02: Thanks for joining us this afternoon by Zoom so we could get this case argued sooner rather than later. [00:00:11] Speaker 02: We'll go ahead and call the case now, 256080, Pateras Unidos de Tulsa versus Jenter Drummond in his official capacity as attorney general of Oklahoma. [00:00:27] Speaker 02: Counsel, please proceed. [00:00:30] Speaker 03: Thank you, Your Honor. [00:00:32] Speaker 03: May it please the court, Gary Gaskins for the Oklahoma Attorney General and the other state defendants. [00:00:40] Speaker 03: This case asks a deceptively simple question. [00:00:44] Speaker 03: May a state attach state law penalties to conduct that Congress has already made a federal crime? [00:00:52] Speaker 03: The answer under longstanding Supreme Court precedent and under this court's own decisions is yes. [00:00:58] Speaker 03: States routinely do so for fraud, for assault, for drug trafficking, and no one calls it preemption. [00:01:06] Speaker 04: But isn't the immigration context here precisely what makes this a very different kind of setting? [00:01:16] Speaker 03: I don't believe so. [00:01:18] Speaker 03: I think the analysis is the same and we've got the Kansas decision, which is the most recent from the Supreme Court on this, that places or puts parameters on what states can do in this fashion. [00:01:40] Speaker 02: So what was the nature of the offense in Kansas? [00:01:45] Speaker 03: Well, the offense in Kansas dealt with providing some false information on an INA form. [00:01:58] Speaker 02: So that sort of, I think begs Judge Rossman's question. [00:02:02] Speaker 02: I mean, when you talk about things like providing false information, fraud, assault, murder, [00:02:13] Speaker 02: robbery, things like that. [00:02:15] Speaker 02: Those are crimes that are well within the state's recognized police power. [00:02:21] Speaker 02: But at least in the past, say, 150 years, it seems that the states have not delved so much into immigration and that they've left that to the state or they left that to the federal government. [00:02:36] Speaker 03: Right. [00:02:36] Speaker 03: I mean, I would just say first, I mean, first of all, there is no conflict preemption here, right? [00:02:40] Speaker 03: I think even the plaintiffs can see that it's physically possible to comply with federal law and House Bill 4156. [00:02:47] Speaker 03: Therefore, there's no traditional conflict. [00:02:51] Speaker 03: I know the plaintiffs argue, which the district court agreed with, that this bill stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. [00:03:00] Speaker 03: But I think the Kansas case, though, forecloses that reasoning because [00:03:06] Speaker 03: The court there plainly held, quote, the possibility that federal law enforcement priorities might be upset is not enough to provide a basis for preemption, that only federal law has preemptive effect. [00:03:18] Speaker 03: And the criminal law enforcement priorities and preferences of federal officers do not. [00:03:25] Speaker 00: There are some differences, counsel, between the sort of the status of federal law right now with regard to some of the things that Oklahoma is purporting to make criminal. [00:03:35] Speaker 00: For instance, [00:03:36] Speaker 00: The way I read it, HB 4156 makes it a criminal act just for being present in Oklahoma without authorization. [00:03:47] Speaker 00: Not even federal law does that. [00:03:48] Speaker 00: Federal law does not criminalize mere presence in the country, period. [00:03:54] Speaker 00: So how is that not something different? [00:03:56] Speaker 00: How is that not in conflict with federal law? [00:03:59] Speaker 03: I believe Oklahoma's House Bill 4156 is in lockstep with a United States Code section 1325A and 1326A. [00:04:06] Speaker 03: I mean, it criminalizes the unlawful entry and unlawful reentry. [00:04:15] Speaker 00: I'm talking about presence. [00:04:16] Speaker 00: I'm talking about presence. [00:04:18] Speaker 00: Obviously, entry and reentry are in the INA as criminal and are designated as such. [00:04:26] Speaker 00: I think reentry can even be a felony. [00:04:29] Speaker 00: but mere presence in the country without authorization, that's not a felony. [00:04:33] Speaker 00: That's not a misdemeanor, a criminal misdemeanor under federal law, but it is under HB 4156. [00:04:41] Speaker 03: I disagree. [00:04:43] Speaker 03: Oklahoma took eight United States Code section 1325A and 1326A as the model for House Bill 4156. [00:04:52] Speaker 03: It provides the same sort of defenses that you would have under federal law. [00:05:00] Speaker 03: I believe that the Oklahoma law is [00:05:02] Speaker 03: is the very definition of parallel and complementary to federal. [00:05:07] Speaker 04: You mentioned defenses. [00:05:08] Speaker 04: I mean, the defenses seem different. [00:05:11] Speaker 04: How are they the same? [00:05:13] Speaker 04: I mean, the Oklahoma statute provides for two, and it seems like federal law has more than two. [00:05:22] Speaker 04: Would you agree with that? [00:05:24] Speaker 03: I believe Oklahoma, it basically says, if you are in the United States, legally, you are not subject to this. [00:05:34] Speaker 03: And Oklahoma, individuals with lawful presence, asylum, DACA status are expressly exempted. [00:05:42] Speaker 03: I think Oklahoma has taken deliberate steps to ensure its law runs in lockstep with federal law. [00:05:52] Speaker 04: You mentioned that, [00:05:54] Speaker 04: that the conflict preemption issue is an easy one, perhaps. [00:06:01] Speaker 04: You didn't use that word, but that it's sort of more straightforward. [00:06:04] Speaker 04: And my question for you on that is, how are we to think about the penalties that the Oklahoma law provides for as compared to the penalties under federal law when we're thinking about conflict preemption? [00:06:18] Speaker 03: Well, I think I would agree that the penalty structure for the Oklahoma law may be slightly different than the federal scheme, but I think that's common in many different criminal statutes where there's one criminal or one federal penalty for assault. [00:06:41] Speaker 03: And the state of Oklahoma may have a different one, but I don't think that's ever been held to [00:06:48] Speaker 03: to rise to the level of causing a criminal statute to be preempted. [00:06:55] Speaker 03: And I'd also point out that, you know, I point out to the dissent by circuit judges Strauss and Logan and the analogous Eighth Circuit case where they made clear that [00:07:06] Speaker 03: Field preemption is the only doctrine capable of blocking parallel and complimentary state regulation as a result from the state's perspective. [00:07:18] Speaker 00: So why doesn't field preemption block it here? [00:07:20] Speaker 00: Sure. [00:07:21] Speaker 00: You attempted, or have attempted in your brief at least, to distinguish the case in Arizona versus the United States from this one. [00:07:28] Speaker 00: And I think the basis for that is that you're pointing out that that was a registration of alien case, and this is a entry and reentry case. [00:07:36] Speaker 00: or entry and reentry statute focusing on that. [00:07:43] Speaker 00: But those two things, entry and reentry, I would say probably, are even more sort of the core function of the federal government than the registration of aliens. [00:07:54] Speaker 00: So why was the district court incorrect in saying that Arizona versus United States logically would extend to this case? [00:08:02] Speaker 03: Well, so we have the Kansas v. Garcia case, right? [00:08:05] Speaker 03: That was decided eight years after the Arizona case. [00:08:07] Speaker 03: And there, the U.S. [00:08:09] Speaker 03: Supreme Court made clear that field preemption arises only in the rare case where Congress has legislated so comprehensively that it has left no room for supplementary state legislation. [00:08:23] Speaker 03: And the court made it clear that implied preemption must be grounded in the text and structure of the statute of issue, not in an uprooting federal interest or judicial policy preference. [00:08:34] Speaker 03: So examining the text at issue here, sections 1325A and 1326A, each contains a simple single sentence criminal prohibition. [00:08:47] Speaker 03: 1325A says, aliens who enter outside designated ports or entry commit a crime. [00:08:51] Speaker 03: 1326. [00:08:53] Speaker 00: There's a whole scheme. [00:08:54] Speaker 00: I mean, I can't imagine, I can't even think of a federal statute like the INA that is as comprehensive as the INA and as complex as the INA. [00:09:06] Speaker 00: and sort of covers the entire field of immigration law. [00:09:10] Speaker 00: This is sort of exactly what the Supreme Court was stating in Arizona versus United States. [00:09:16] Speaker 00: I know you keep pointing to the later case, but that case did not deal with sort of a similar situation that we have here. [00:09:23] Speaker 00: Here we are dealing with plaintiffs who are challenging the state enactment of an immigration law. [00:09:30] Speaker 00: That wasn't the case in the Kansas case, right? [00:09:34] Speaker 00: That was more akin to Arizona versus the United States. [00:09:38] Speaker 03: I would say, though, that Kansas is instructive where it requires the courts to identify the field in which preemption is said to have occurred at an appropriate level of specificity. [00:09:49] Speaker 03: And unlawful entry and reentry is a distinct subset of immigration regulation, just as alien registration was treated separately in the Arizona case. [00:09:59] Speaker 03: And at that level of specificity, the federal prohibitions in 1325A and 1326 are plainly not the kind of [00:10:07] Speaker 03: comprehensive regulatory web that justifies complete ouster of state authority. [00:10:12] Speaker 03: And I'd also point out that the United States has filed a brief in this case where the Department of Justice states that the federal entry and reentry provisions, quote, are not the kind of comprehensive regulatory scheme sufficient to advance a clear and manifest purpose by Congress to affect a complete ouster of complementary state law. [00:10:36] Speaker 02: So that's the, the United States, uh, brief is, is interesting, but it creates problems of its own because it puts us in a position where if we're, um, if we're trying to buy off on the position of the United States, we might be changing our law every four years or so when administration has changed. [00:10:58] Speaker 02: Cause certainly the position in this case has changed dramatically with the new administration. [00:11:06] Speaker 03: I agree that the current administration's position has changed on this topic versus the prior administration. [00:11:14] Speaker 03: But we believe the current administration's position is the one that is correct. [00:11:20] Speaker 02: Let me just ask you this. [00:11:21] Speaker 02: I mean, your position is that their position is the better reasoned position, not that the fact that they're giving us their position in and of itself should mean something. [00:11:35] Speaker 03: I mean, I think what the plaintiffs are attempting to do here are essentially, this is something that purportedly intruding on the federal government's prerogatives and you have the current federal government is saying it is not. [00:11:54] Speaker 03: So I think that is important and something that the court should- The question though is what was Congress's intent? [00:12:02] Speaker 00: Congress's intent hasn't changed. [00:12:04] Speaker 00: I mean, the statute is what the statute is in enacting the INA and others. [00:12:08] Speaker 00: amendments to the INA. [00:12:10] Speaker 00: But as Judge Carson said, administrations are going to change. [00:12:14] Speaker 00: And so we're going to be changing or the 10th Circuit is going to be changing the law every four years in accordance with whatever the local or the most recent policy is of the administration. [00:12:24] Speaker 03: No, I think courts should do what the Kansas case dictates. [00:12:29] Speaker 03: It is to look at the statute itself and to determine the [00:12:35] Speaker 03: the appropriate field that is purportedly being preempted when making this analysis. [00:12:41] Speaker 03: And I think that the United States position on that is consistent with the state of Oklahoma's. [00:12:49] Speaker 03: If I may, if I could just briefly talk about standing, because I think that is an important issue here as well. [00:12:55] Speaker 03: This court has held that a person complaining that a government action will make his criminal activity more difficult, lack standing because his interest is not legally protected. [00:13:06] Speaker 03: I think that principle directly applies here. [00:13:08] Speaker 02: So that's an interesting way to put it. [00:13:15] Speaker 02: The standing in this case is not necessarily making the violation of federal law easier, which is sort of what you're suggesting. [00:13:23] Speaker 02: The standing here has to do with the right to not be prosecuted arguably a second time in state court for violating 1326 or 1325. [00:13:38] Speaker 03: I mean, I still think it is attempting to make their federal law breaking easier to... How's that? [00:13:49] Speaker 02: I mean, they're still subject to prosecution. [00:13:51] Speaker 02: The penalties are arguably the same. [00:13:54] Speaker 02: There's nothing different about what's going to happen in the federal cases there. [00:14:00] Speaker 03: I would say, though, that it is, I mean, well, I mean, you know, the court did preclude us from, you know, making sure that these are actual, you know, live individuals. [00:14:10] Speaker 03: I don't have any reason to say that they are. [00:14:12] Speaker 03: But I mean, it is it is it is certainly the fact that the state is now prosecuting them is making it easier to to avoid federal prosecution because they're not they're not identified. [00:14:23] Speaker 03: I do see that I'm almost down to a minute. [00:14:25] Speaker 03: If I could reserve some time for rebuttal. [00:14:27] Speaker 03: Well, why don't you go ahead and finish up and then I'll give you some rebuttals. [00:14:30] Speaker 03: Okay, I appreciate that. [00:14:32] Speaker 03: The other thing I just want to point out is from the dissent of Circuit Judge Strauss that he independently flagged that [00:14:42] Speaker 03: Plaintiffs who merely allege conduct prescribed by a statute without alleging a credible threat of prosecution cannot satisfy the injury requirement for a pre-enforcement challenge outside of a first amendment context where they're- You don't think that they've sufficiently alleged an imminent threat to them, an imminent injury? [00:15:04] Speaker 03: Well, I think, you know, from reading Circuit Judge Strauss' dissenting opinion, you know, those are generally shown by investigations, charges, or specific threats against these plaintiffs. [00:15:17] Speaker 03: There's none of that specificity in the complaint to support that. [00:15:22] Speaker 04: Your argument would be more persuasive if you could situate it in terms of not a dissent in an Eighth Circuit opinion. [00:15:31] Speaker 04: I mean, it seems to me that our pre-enforcement case law applies directly here. [00:15:37] Speaker 04: And if you think that it doesn't, what is your best argument under our precedent or Supreme Court precedent for that proposition? [00:15:45] Speaker 03: Well, I mean, I guess that I do know the circuit Judge Strauss was was relying on the Susan B Anthony list the dry house case that that that makes it clear that there has to be this credible substantially insufficiently imminent threat of prosecution. [00:15:59] Speaker 03: I that. [00:16:02] Speaker 03: you know, is investigations charges. [00:16:04] Speaker 03: It has to be something other than just, hey, I'm violating this criminal statute. [00:16:11] Speaker 03: I don't think that in and of itself is sufficient on a pre-enforcement challenge. [00:16:14] Speaker 03: But again, I think under the Walker case, for my first point, I think is our stronger point. [00:16:21] Speaker 02: Is there anything in the record in this case indicating that any Oklahoma law enforcement indicated a desire to enforce this statute? [00:16:34] Speaker 03: Is there anything in the record that would show that Oklahoma law enforcement wasn't enforcing the statute or plan to? [00:16:43] Speaker 02: Or intended to, yes. [00:16:46] Speaker 03: I mean, I am aware that there was a couple of months where the law was in effect that I think there was one or two criminal charges that were made against individuals that had been arrested on some other charge and it was discovered that they were also violating House Bill 4156. [00:17:03] Speaker 03: and those criminal charges were added to those cases. [00:17:10] Speaker 02: So wouldn't that just sort of in and of itself be sufficient to show that people in Oklahoma admittedly violating the law would be subject to prosecution? [00:17:24] Speaker 03: Yeah, I mean, again, I think Susan B. Anthony List requires something more than just I'm violating the statute. [00:17:31] Speaker 03: I think it has to be, it has to still be sufficiently imminent and just saying I'm violating the law outside of a First Amendment sort of scenario, I think, requires something more. [00:17:44] Speaker 02: Okay. [00:17:45] Speaker 02: Thank you, counsel. [00:17:47] Speaker 02: Judge Rossman, Judge Julius, do you have any further questions? [00:17:50] Speaker 04: No, thank you. [00:17:51] Speaker 02: No. [00:17:52] Speaker 02: Thank you. [00:17:55] Speaker 01: Good afternoon, may it please the court, Nur Zuffer for plaintiff class. [00:17:59] Speaker 01: Over 150 years of unbroken precedent establishes that the regulation of non-citizen entry and presence is an exclusively federal field. [00:18:08] Speaker 01: And every single court to consider laws similar to HB 4156 has held that they are preempted. [00:18:15] Speaker 01: Oklahoma's merits arguments cannot overcome the weight of this unanimous authority and are squarely foreclosed by the Supreme Court's decision in Arizona. [00:18:24] Speaker 01: On threshold issues, the state fares no better. [00:18:27] Speaker 01: Plaintiffs have a cause of action and equity and, regardless of their federal status, have standing to challenge a preempted state law and need not expose themselves to retaliation for doing so. [00:18:39] Speaker 01: The district court did not abuse its discretion in enjoining the law, granting pseudonymity. [00:18:44] Speaker 00: How do you distinguish cases like Hickenlooper, which is a case that Oklahoma is relying on, [00:18:52] Speaker 00: regarding the cause of action issue here. [00:18:55] Speaker 01: Sure, Your Honor. [00:18:56] Speaker 01: So in Hickenlooper, the court actually recognized in a footnote that a plaintiff who claims that federal law immunizes her from state regulation has a cause of action in equity. [00:19:07] Speaker 01: And plaintiffs here squarely fall within that language of state-states alliance. [00:19:12] Speaker 01: And so we think the cause of action equity that we're asserting here is recognized by that decision. [00:19:19] Speaker 02: So let me ask you this. [00:19:22] Speaker 02: So if you were the Iowa case, you would have a group of plaintiffs who are admittedly in the country legally. [00:19:38] Speaker 02: For purposes of your case, your clients are here illegally, as I understand it. [00:19:46] Speaker 02: Doesn't that make a difference on your argument that you can have a claim in equity, that you can be here in violation of one law and seek to undermine another through principles of equity? [00:20:00] Speaker 01: Your honor, so I believe that the plaintiffs, or at least some of the plaintiffs in Iowa, actually were also in the country unlawfully under federal law. [00:20:09] Speaker 01: But with respect to your question, and I believe your honor may be referring to the unclean hands doctrine that Oklahoma raises, [00:20:15] Speaker 01: So that doctrine requires a pretty high bar. [00:20:18] Speaker 01: It has three factors. [00:20:20] Speaker 01: The first is that a plaintiff must engage in unconscionable conduct. [00:20:24] Speaker 01: That conduct must somehow alter the relation between the two parties and the party must be injured as a result of that conduct. [00:20:32] Speaker 01: And courts have not typically applied that doctrine when it would thwart public interest. [00:20:38] Speaker 01: And here, of course, there's a strong public interest in joining a preempted state law. [00:20:42] Speaker 01: But even if that doctrine were to apply here, plaintiff's conduct simply does not meet that high bar of an unconscionable act. [00:20:50] Speaker 01: And I'm aware of no case outside of the Henry case, which is an unpublished district court opinion, where a court has applied that. [00:20:57] Speaker 01: In fact, Third Circuit and Lozano explicitly rejected that. [00:21:04] Speaker 01: Now, with respect to standing, I do want to address one of Oklahoma's arguments stemming from that language in Walker. [00:21:11] Speaker 01: And we think that language in Walker is simply inapplicable here because plaintiffs are not trying to make any future criminal conduct easier. [00:21:20] Speaker 01: So that language in Walker, as we understand it, may apply, for example, to, let's say, a bank robber who wants to challenge the installation of security cameras around a bank because it would make it harder for him to rob the bank in the future. [00:21:34] Speaker 01: Here, of course, plaintiffs are not seeking to engage in any future criminal conduct, and they have a legally protected interest in not being subject to prosecution under a preempted state law. [00:21:44] Speaker 01: So we simply don't think that that language in Walker would apply to plaintiffs here. [00:21:50] Speaker 01: Now, with respect to preemption, I'd like to start off by addressing field preemption. [00:21:55] Speaker 04: So field preemption has- Before you start, I had a threshold question about how we should be thinking about field preemption versus conflict preemption in this case. [00:22:06] Speaker 04: And if you were writing the opinion, let's say, and we resolve this case in your favor, how would you marshal the analysis for field and conflict? [00:22:17] Speaker 04: Would it be enough to say that, [00:22:19] Speaker 04: It is conflict preempted here, or would we have to engage in both flavors of preemption, so to speak? [00:22:28] Speaker 01: Well, Judge Rosman, you could find the law preempted under either field or conflict, and we believe that it's preempted under both. [00:22:36] Speaker 01: So with respect to field preemption, non-citizen entry is an area of dominant federal interest. [00:22:42] Speaker 01: It has been so for the last 150 years. [00:22:46] Speaker 01: Congress has extensively legislated in this field. [00:22:50] Speaker 01: So both prongs of the field preemption test are met here with respect to- What exactly is the field? [00:22:56] Speaker 04: And I think my question is, we have to define the field with great specificity, don't we? [00:23:02] Speaker 04: Because I don't think that your argument is, or underlying your argument, I don't think is the notion that states can't legislate at all in the immigration space. [00:23:15] Speaker 01: Is that your argument? [00:23:17] Speaker 01: No, it's not your honor our argument with respect to how to define the field is that the field is non citizen entry and the way you kind of come to that definition is by looking at the framework that Congress has set up so when you look to the INA. [00:23:31] Speaker 01: there's an extremely reticulated scheme that has, for example, criminal and civil penalties for irregular entry. [00:23:38] Speaker 01: It has different processes for removal, and it has different forms of humanitarian relief. [00:23:43] Speaker 01: So looking at that scheme as a whole, you can imply that the field is non-citizen entry. [00:23:49] Speaker 01: I do want to just distinguish, I know my colleague mentioned the Kansas case. [00:23:53] Speaker 01: Cases like Kansas, which involve generally applicable criminal laws, [00:23:58] Speaker 01: are not really a good guide here, because those laws only had incidental impacts on immigration. [00:24:04] Speaker 01: And in fact, I believe the issue there was that the state had made it a crime to misrepresent information on a state tax withholding form. [00:24:11] Speaker 01: So it was very far afield from, of course, what we're dealing with here, where Oklahoma has set up its own immigration system that is in conflict with the federal system. [00:24:22] Speaker 04: In your briefs, you say that the preempted field is non-citizen entry and presence. [00:24:30] Speaker 04: Can you speak to the presence aspect of your argument? [00:24:35] Speaker 01: Yes, Your Honor. [00:24:35] Speaker 01: So that addresses the banishment provision in Oklahoma's law, because not only does it regulate entry, but people who are convicted under the entry and reentry crimes, [00:24:47] Speaker 01: are subject to banishment from the state, and courts such as the 11th Circuit in Alabama, the 3rd Circuit in Lozano have held that even indirect regulations of non-citizen presence, things that would make it harder for people to live in the state, would be preempted. [00:25:02] Speaker 01: So that's what the presence deals with. [00:25:07] Speaker 02: Let me ask you this. [00:25:11] Speaker 02: When we're thinking about conflicts, are we thinking about conflicts between the letters of the law, the letter of the Oklahoma law and the letter of the federal law? [00:25:22] Speaker 02: Or are we also considering whether the Oklahoma law conflicts with administration priorities as far as immigration goes? [00:25:33] Speaker 02: Things like keeping people as material witnesses, things like making decisions not to prosecute someone or not to remove someone due to [00:25:49] Speaker 02: you know, sympathetic factors for lack of a better term. [00:25:52] Speaker 02: So what are we looking at as far as conflicts? [00:25:56] Speaker 02: Just the letter of the law, are we considering those administration priorities as well? [00:26:02] Speaker 01: Your Honor, the court would look to the letter of the law and the scheme that Congress has set up. [00:26:06] Speaker 01: And with respect to the scheme that Congress has set up here, it has given exclusive discretion to the federal government to engage in enforcement. [00:26:14] Speaker 01: So the federal government chooses amongst the variety of tools that it has, [00:26:18] Speaker 01: while balancing competing interests in foreign policy, humanitarian concerns, to decide what action to take in a particular case. [00:26:29] Speaker 02: So that sounds like we're also considering administration priorities that are within the federal scheme. [00:26:42] Speaker 01: Not necessarily, Your Honor. [00:26:43] Speaker 01: We're considering the intent of Congress as it has enacted that intent through legislation. [00:26:48] Speaker 01: If you look at the INA, the intent that discretion be given exclusively to federal officers is sort of present throughout the scheme. [00:26:57] Speaker 02: Is that the specific language you're relying on that this broad discretion that's granted to federal officers? [00:27:08] Speaker 01: Well, Your Honor, the discretion is the part that makes conflict preemption here and the Iowa court in fact found that law there to be conflict preempted because the state law sees discretion from federal officers and so state officers were going around prosecuting. [00:27:24] Speaker 01: And state judges were imposing penalties without any input from the federal government and it could be in contradiction to what the federal government would want. [00:27:32] Speaker 01: So it's really about. [00:27:34] Speaker 02: So it sounds like we may be talking past each other and that I'm using some buzzwords that that may set off alarm bells with you unintentionally, by the way. [00:27:45] Speaker 02: Yeah, so it sounds like you're considering this, you know, maybe the federal government's discretion. [00:27:52] Speaker 02: There are many things that the state law might do that could interfere with the federal government's discretion because we don't know exactly what's considered in the exercise of discretion. [00:28:04] Speaker 02: There can be a lot of things. [00:28:07] Speaker 01: Well, Your Honor, the important thing is that it's the federal government making that decision and exercising that discretion. [00:28:12] Speaker 02: No, I know. [00:28:13] Speaker 02: Do you agree with me or don't agree with me? [00:28:16] Speaker 01: I agree in the sense that federal- It's not a trap. [00:28:19] Speaker 02: I mean, it's like, I'm just basically reading Arizona back to you. [00:28:24] Speaker 01: Yes. [00:28:24] Speaker 01: And that's why Section 6 in Arizona was preempted was because there the state set up a unilateral arrest law that allowed state officers to arrest for movability without any input from the federal government. [00:28:35] Speaker 01: And there was a conflict there. [00:28:37] Speaker 02: OK. [00:28:39] Speaker 02: Let me ask you a question about anonymity or the use of pseudonyms in this case. [00:28:45] Speaker 02: What's the basis? [00:28:48] Speaker 02: Reiterate to me the basis for the use of pseudonyms by your plaintiffs. [00:28:55] Speaker 01: Yes, Your Honor. [00:28:55] Speaker 01: So plaintiffs here face the threat of retaliation from- By who? [00:29:02] Speaker 01: By private parties and by the federal government. [00:29:04] Speaker 01: And that's something that Oklahoma does not contest. [00:29:07] Speaker 01: And immigration is a sensitive matter that's been recognized under this court's law. [00:29:12] Speaker 01: And the very injury that they're seeking to protect themselves against retaliatory prosecution could come to pass if their identities were revealed. [00:29:20] Speaker 01: So those are the three prongs that this court has considered in granting dough motions. [00:29:25] Speaker 02: So is it your suggestion that someone's immigration status is sensitive in the same way that a sexual assault victim's identity would be, or that a child's identity would be sensitive? [00:29:41] Speaker 01: It may not be sensitive in the exact same way, but there's a spectrum and it is amongst the things that courts, including in this circuit, have considered to be sensitive information. [00:29:51] Speaker 02: So what's the harm other than this amorphous idea of retaliation or something like that? [00:29:58] Speaker 02: What did you set forth in asking for use of pseudonyms as far as harm? [00:30:06] Speaker 01: Well, Your Honor, the plaintiffs put forth declarations that [00:30:10] Speaker 01: that made clear that they are longtime Oklahoma residents. [00:30:13] Speaker 01: They have significant responsibilities here to their communities, to their families. [00:30:17] Speaker 01: And if their identities were exposed, they could face retaliation. [00:30:21] Speaker 01: For example, some of the plaintiffs have pending applications for U visas where they've been... So who's going to retaliate against them? [00:30:31] Speaker 01: So in the instance of the person who has a U visa, that's a visa that's granted if someone's been the victim of a crime. [00:30:38] Speaker 01: If that person's identity is revealed, perhaps the person that committed the crime against them, which was the basis for the visa, could retaliate. [00:30:46] Speaker 01: And then broadly, they could face retaliation from the federal government if their identities are exposed for participating in this litigation. [00:30:54] Speaker 02: I mean, don't we have to presume that the federal government's going to act in good faith? [00:31:01] Speaker 01: Sure, the court can presume that, but again, [00:31:05] Speaker 01: Oklahoma did not contest that the plaintiffs here could face retaliation and the district court looked at the facts before it and made a reasoned judgment that there was a serious threat of retaliation, not only from the federal government, but also from private parties. [00:31:18] Speaker 01: And what's our standard of review on that issue? [00:31:21] Speaker 01: It's abuse of discretion, Your Honor. [00:31:24] Speaker 02: I guess my concern about this is, as I read the motion that you submitted to the district court on this issue, we have one where I think it is Mr. Koh, I think that's right, is concerned that his wife was a victim of a crime and that if his name was on this lawsuit, that the person who committed the crime [00:31:53] Speaker 02: might retaliate against him. [00:31:54] Speaker 02: But I don't see, you know, how that couldn't be dealt with through filing something under seal, you know, not including his contact information in the public record, that kind of thing. [00:32:09] Speaker 01: Well, Your Honor, this court has in the Strom case allowed for, you know, if, for example, if a party challenges standing has allowed for the district court to review [00:32:19] Speaker 01: identities in camera, but of course Oklahoma is not challenged standing on this basis, but that is an option available to the court, but we believe pseudonymity is appropriate here because the district court in considering the facts before it did not abuse its discretion. [00:32:37] Speaker 01: And finally, I just would like to address this notion that, you know, overlapping laws because Oklahoma's law [00:32:45] Speaker 01: tracks federal law and serves the same purpose that it's not preempted. [00:32:49] Speaker 01: So with respect to field preemption, overlap doesn't matter. [00:32:54] Speaker 01: Any law that interferes in the field that is exclusively federal is preempted, and that's section three from Arizona. [00:33:01] Speaker 01: And with respect to conflict preemption, here we're dealing with an inherently federal field of immigration that implicates external sovereignty, where Congress has given broad discretion to the federal government. [00:33:14] Speaker 01: Under the Crosby case, for example, this is a field that even overlapping laws are simply not permitted in. [00:33:22] Speaker 02: Would you mind just giving us a one minute exposition on your Commerce Clause alternative argument? [00:33:31] Speaker 01: Yes, Your Honor. [00:33:31] Speaker 01: So the Commerce Clause applies when states regulate or when states engage in discriminatory regulation at the border. [00:33:41] Speaker 01: So if the court were to find that the preemption claim is not successful here, an alternative basis for ruling on our behalf would be that Oklahoma's law violates the Commerce Clause because it regulates the entry of certain non-citizens at the border. [00:33:58] Speaker 02: Would the same thing be true with Oklahoma expelling people from its border once they served a sentence? [00:34:08] Speaker 01: Yes, Your Honor. [00:34:09] Speaker 01: It works both ways, so both entry and expulsion. [00:34:12] Speaker ?: OK. [00:34:13] Speaker 04: I have one more question, if that's all right, Judge. [00:34:15] Speaker 02: Go ahead. [00:34:16] Speaker 02: We've got nothing but time. [00:34:18] Speaker 04: OK. [00:34:18] Speaker 04: So there have been a number of circuit courts that have looked at laws like this. [00:34:26] Speaker 04: And certainly, you know, the [00:34:31] Speaker 04: the specifics of the state law that's before us is going to be dispositive, right? [00:34:37] Speaker 04: But I wanted to know what your position was on what the most persuasive cases are in this space and why. [00:34:45] Speaker 01: So, Your Honor, with respect to field preemption, I'd point the court to Texas because there the court found that the law which regulated entry and reentry in a substantially similar way as HB 4156 was field preempted. [00:35:01] Speaker 01: And with respect to conflict preemption, I point the court to the Iowa decision, which recently an en banc, you know, the full court upheld. [00:35:12] Speaker 04: And the Fifth Circuit decision has been argued en banc, but has not been, there's been no en banc decision, is that correct? [00:35:20] Speaker 04: Correct, yes. [00:35:22] Speaker 02: And the panel decision's vacated at this point? [00:35:25] Speaker 01: The panel decision is vacated, so we are waiting for a decision in the en banc case. [00:35:30] Speaker 02: Judge Williams, do you have anything? [00:35:32] Speaker 00: I don't. [00:35:33] Speaker 00: Thank you, Judge Carson. [00:35:34] Speaker 02: Let me make sure I don't have anything else before I let you go here. [00:35:41] Speaker 02: Because it seems like I have so many questions. [00:36:09] Speaker 02: Okay, I don't think I have anything else. [00:36:14] Speaker 02: Let's give Mr. Gaskins two minutes. [00:36:20] Speaker 02: And before you start, Mr. Gaskins, let me throw this out at you, not to use up your entire two minutes. [00:36:27] Speaker 02: But on this Commerce Clause idea, I mean, one of the things that struck me from the moment I read this case was we generally don't shut the borders for people who are already in the United States. [00:36:40] Speaker 02: So if someone's here, we don't say, you can't come to Oklahoma because you're a criminal in New Mexico. [00:36:46] Speaker 02: you're unhealthy or you're this or you're that. [00:36:50] Speaker 02: And by the same token, when Oklahoma lets somebody out of prison who's committed a triple homicide, we generally don't let you expel them from your state and make them go over to your neighboring states. [00:37:05] Speaker 02: And it just seems like the Commerce Clause argument that the plaintiffs have made is pretty persuasive in light of the way this law is drafted. [00:37:16] Speaker 03: Yeah, I think a couple of reactions to that. [00:37:20] Speaker 03: First, I think we're talking about the Dormant Commerce Clause here, and I don't think Congress has been dormant on this issue. [00:37:27] Speaker 03: It has already made this exact conduct a federal crime. [00:37:32] Speaker 03: Regardless, I think the Commerce Clause argument fails because it's grounded in a preemption theory with a different label. [00:37:38] Speaker 03: The cases cited Edwards v. California, city of Philadelphia v. New Jersey. [00:37:45] Speaker 03: They struck down laws discriminating against interstate movement of persons from other states. [00:37:52] Speaker 03: House Bill 4156 does not discriminate against interstate Congress. [00:37:55] Speaker 03: It applies to individuals who enter the United States without federal authorization, regardless of which state they come from. [00:38:02] Speaker 03: Uh, and the dormant commerce clause protects, uh, against state laws that favor in-state interest over out-of-state competition. [00:38:09] Speaker 03: Um, it has never been, uh, held to protect non-citizens who entered the country illegally from state criminal laws that apply equally, uh, regardless of non-citizens prior state of residence. [00:38:22] Speaker 02: Yep. [00:38:22] Speaker 02: I mean, you, you wouldn't, you wouldn't disagree though. [00:38:24] Speaker 02: I mean, you can't, you can't send your triple murderers to all the New Jersey, can you? [00:38:31] Speaker 02: and ban them from living in Oklahoma. [00:38:34] Speaker 03: I think the state can put reasonable geographic limitations as a condition for someone being released from prison. [00:38:42] Speaker 03: But yeah, but this is not a situation where the state is sending all of its murderers to New Jersey. [00:38:50] Speaker 02: Yeah, and you can't, by the same token, you can't tell all the murderers from New Jersey once they've completed their sentence that they can't come to Oklahoma. [00:38:56] Speaker 02: That would be correct. [00:39:01] Speaker 04: Do you agree with how opposing council defines the field for purposes of field preemption? [00:39:07] Speaker 03: No, I mean, I think I think the field is simply entry and reentry. [00:39:15] Speaker 03: I think it is the field because those are the that is that is all that Oklahoma law is criminalizing here. [00:39:22] Speaker 03: And there's not the level of requirements and specificity and comprehensive scheme that was like the registration requirements that were preempted in the Arizona case. [00:39:37] Speaker 02: I mean, entry and reentry. [00:39:39] Speaker 02: I mean, that sounds similar to what council said. [00:39:42] Speaker 02: She also, I think, agreed that presence might be within the field she defined in her brief. [00:39:51] Speaker 03: Right, I think, but I think if you look at the field just as we're entry and reentry, there isn't this comprehensive, there isn't the comprehensive scheme that was found preempted like the Arizona case. [00:40:03] Speaker 03: Again, these criminal prohibitions are very, are very limited. [00:40:08] Speaker 03: There's not, you know, all the forms and all the regulations and everything that were applicable in the Arizona case as it relates to the entry and reentry. [00:40:17] Speaker 02: I mean, [00:40:19] Speaker 02: It seems like entry and reentry, while they sound discreet and easy, have a lot of things wrapped up into them. [00:40:31] Speaker 02: And if the United States government is in charge of the field of entry and reentry, [00:40:37] Speaker 02: That includes all sorts of qualifications and requirements and paperwork and decisions on whether somebody on some type of equitable basis may be able to come in or not. [00:40:52] Speaker 02: It seems like it may be more complicated than you're giving it credit. [00:40:59] Speaker 03: I would say that under Virginia uranium being the Warren. [00:41:03] Speaker 03: It requires that preemption quote be discerned from the text and structure of the statute at issue and not from the overall comprehensiveness of the statute that also addresses many other things. [00:41:13] Speaker 03: And while the INA regulates status determinations and removal comprehensively and it regulates alien registration comprehensively like the Arizona case. [00:41:23] Speaker 03: 1325 and 1326 themselves can contain none of the features that make a federal scheme comprehensive for field preemption purposes. [00:41:34] Speaker 02: Okay. [00:41:34] Speaker 02: Well, what you know, just not to belabor the point, but one of the things that we struggle with as a group of three is that [00:41:49] Speaker 02: We don't get to just look at the statute in isolation. [00:41:52] Speaker 02: We have to take the Supreme Court's words and try to make them fit with our analysis. [00:41:59] Speaker 02: And it seems like we've got some substantial instructions from Arizona that create problems for your case. [00:42:09] Speaker 02: You've already talked about it. [00:42:10] Speaker 02: I mean, that's probably more commentary than anything. [00:42:13] Speaker 02: Would you like to say anything about that? [00:42:15] Speaker 03: I just would say that I think Kansas did tighten the holding Arizona quite a bit. [00:42:22] Speaker 03: And it does require that the court determine the specific field that is being preempted. [00:42:30] Speaker 03: And it also made clear that federal law enforcement [00:42:36] Speaker 03: Priorities are not something that is to be taken into account in determining whether there's a preemption. [00:42:44] Speaker 03: And I'd also just maybe just if I can just have 20, 30 seconds. [00:42:51] Speaker 03: I would say that the lead point of Christopher Coe is a clearly constitutional application of House Bill 4156. [00:42:58] Speaker 03: Mr. Coe says he was removed by the federal government. [00:43:04] Speaker 03: Committed felony re-entry under 8 United States Code 1326. [00:43:08] Speaker 03: He claims no present lawful status and is not presently eligible for any of House Bill 4156's defenses. [00:43:16] Speaker 03: Prosecuting him under House Bill 4156 creates no federal conflict. [00:43:20] Speaker 03: It furthers federal law. [00:43:23] Speaker 03: That application alone forecloses this facial challenge, and regardless, Mr. Coe and the other individual plaintiffs do not come into this court with clean hands. [00:43:32] Speaker 02: Okay, thanks. [00:43:33] Speaker 02: I want I want to trust me. [00:43:35] Speaker 02: Do you have any further questions for Mr. Gaston's? [00:43:41] Speaker 02: Oh, you're muted. [00:43:45] Speaker 00: All right. [00:43:45] Speaker 00: Yeah, I do have a question. [00:43:47] Speaker 00: I want to clarify something. [00:43:50] Speaker 00: I think you've stated a couple of times that the statute HB 4156. [00:43:54] Speaker 00: Uh, criminalizes entry and reentry, but it also has an aspect of it. [00:43:59] Speaker 00: I think, or at least the district judge talked about the improbable occupation. [00:44:05] Speaker 00: The criminalization of that, can you explain what's the, what's the difference there? [00:44:08] Speaker 00: Is there a difference between the, the entry and reentry? [00:44:13] Speaker 00: Part of or prohibition of what do you want to 26? [00:44:16] Speaker 03: to act for Oklahoma to have jurisdiction over someone to prosecute them under 41 56. [00:44:21] Speaker 03: They have to actually be in the state of Oklahoma. [00:44:23] Speaker 03: We can't the state of Oklahoma cannot prosecute someone for their conduct in the state of New York. [00:44:29] Speaker 03: So I think I think that really is to me where that that distinction comes in. [00:44:34] Speaker 00: Well, the statute actually says that it's it is makes it unlawful for someone to remain in the state of Oklahoma without having first obtained legal authorization to enter the United States. [00:44:44] Speaker 00: Is that right? [00:44:47] Speaker 00: Yeah, if you're quoting from the statute, that does sound familiar, which is... That's the criminalization of presence in Oklahoma, which as far as I can tell, no other state has ever even attempted to do that. [00:45:01] Speaker 00: And the federal law, again, I go back to my initial point, which is federal law certainly doesn't make it a crime for mere presence. [00:45:09] Speaker 00: That's a civil violation. [00:45:11] Speaker 03: The present, it's the, it is the, I mean, it is the coming into the country illegally and being present in the state of Oklahoma are two elements to, for you to be criminally prosecuted. [00:45:23] Speaker 03: You can't, you can't have one without the other. [00:45:26] Speaker 00: Okay. [00:45:26] Speaker 00: Thank you. [00:45:28] Speaker 02: All right. [00:45:28] Speaker 02: Thank you, council. [00:45:29] Speaker 02: Thank you. [00:45:30] Speaker 02: Ms. [00:45:30] Speaker 02: Zafar, if you wish, give you a little extra time here. [00:45:40] Speaker 01: Your Honor, I would just say Arizona squarely controls this case. [00:45:43] Speaker 01: And I haven't heard any arguments to the contrary. [00:45:47] Speaker 01: And both under field preemption and under conflict preemption, this law goes way beyond the law that was at issue in Arizona. [00:45:57] Speaker 01: It sets up a state immigration scheme that gives unilateral discretion to state officers to conduct arrests, to prosecute, and to impose penalties and banish people such as plaintiffs here. [00:46:10] Speaker 01: from the state, so we think it's preempted. [00:46:13] Speaker 02: OK, thank you. [00:46:14] Speaker 02: Let's see if Judge Rossman or Judge Odias have any questions for you. [00:46:17] Speaker 02: No, thank you. [00:46:18] Speaker 00: I do not. [00:46:19] Speaker 00: Thank you. [00:46:20] Speaker 02: OK, the case will be submitted. [00:46:22] Speaker 02: And Counselor Excuse, thank you both for your excellent arguments. [00:46:25] Speaker 02: Interesting case. [00:46:26] Speaker 02: I'm glad we got to do it on Zoom here, where we had a little extra time so we could talk through some things a bit more. [00:46:34] Speaker 02: And Counselor Excuse, we'll be in recess until further call. [00:46:37] Speaker 01: Thank you. [00:46:38] Speaker 01: Thank you, Your Honor.