Case: 17-50762 Document: 00514162983 Page: 1 Date Filed: 09/19/2017 No. 17-50762 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT City of El Cenizo et al., Plaintiffs-Appellees, v. State of Texas et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MOTION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF APPELLANTS’ EMERGENCY MOTION TO STAY PRELIMINARY INJUNCTION JEFF LANDRY PATRICK MORRISEY ATTORNEY GENERAL OF ATTORNEY GENERAL LOUISIANA OF WEST VIRGINIA Elizabeth Baker Murrill Thomas M. Johnson, Jr. Solicitor General Deputy Solicitor General 1885 North 3rd Street Counsel of Record Baton Rouge, LA 70802 State Capitol Building 1, Room 26-E Telephone: (225) 326-6766 Charleston, WV 25305 Email: [email protected] Telephone: (304) 558-2021 Email: thomas.m.johnsonjr Counsel for Amicus Curiae @wvago.gov the State of Louisiana Counsel for Amicus Curiae the State of West Virginia 1 of 27 Case: 17-50762 Document: 00514162983 Page: 2 Date Filed: 09/19/2017 The States of West Virginia, Louisiana, Alabama, Arkansas, Georgia, Mis- souri, Oklahoma, and South Carolina request leave to file the accompanying amicus brief in support of the State of Texas’s emergency motion for stay pending appeal.* Amici States notified all parties of amici’s intent to file this brief and received con- sent from defendants and the following plaintiffs-appellees: the City of El Paso; the City of San Antonio; Rey Saldana, San Antonio City Councilmember; the Texas Association of Chicanos in Higher Education; La Union Del Pueblo Entero, Inc.; the Workers Defense Project; Bexar County; Judge Sarah Eckhardt; Sheriff Sally Her- nandez; Travis County; and the Texas Association of Hispanic County Judges and County Commissioners. The remaining plaintiffs-appellees have not responded. As discussed at greater length in the attached brief, amici States have three significant interests in the disposition of this motion. First, they have an interest in complying with federal immigration law and ensuring that the municipalities that exercise the States’ power do the same. Texas’s Senate Bill 4 (“SB4”), 2017 Tex. * Federal Rule of Appellate Procedure 29(a)(2) provides that at a case’s merits stage, “a state may file an amicus-curiae brief without the consent of the parties or leave of court.” Nevertheless, consistent with the motion for leave filed by amicus the United States of America, we understand that it is this Court’s practice to require motions for leave from all amici. Mot. for Leave to File Amicus Brief in Support of the Motion to Stay (Sept. 11, 2017) 1 n.1. Amici States therefore file this motion for leave pursuant to Fifth Circuit practice. 1 2 of 27 Case: 17-50762 Document: 00514162983 Page: 3 Date Filed: 09/19/2017 Sess. Law Serv. Ch. 4, codified at Tex. Gov’t Code Ann. § 752.053 et seq., accom- plishes that important goal by prohibiting local entities and officials from “adopt[ing], enforc[ing], or endors[ing]” policies that prohibit or “materially limit[]” the enforcement of federal immigration laws. Id. § 752.053(a)(1). Second, sanctu- ary-city policies can harm neighboring States by making it easier for illegal immi- grants who commit crimes to evade law enforcement and to travel out-of-state. Third, amici States have an interest in ensuring that courts follow the strict standards that govern requests to enjoin state laws. This amicus brief will aid the Court’s consideration of the emergency stay motion by providing legal arguments and context beyond the arguments the parties have advanced. The proposed amicus brief argues that Texas will likely prevail against the argument that the term “materially limits” is unconstitutionally vague, in part because of the myriad examples throughout other areas of the law where “ma- terial” and like terms have been upheld against similar challenges. The brief also argues that SB4’s prohibition on “endorsing” policies that limit federal immigration laws encompasses only local officials’ official actions—not speech they may engage in privately or during political campaigns—and accordingly does not violate the 2 3 of 27 Case: 17-50762 Document: 00514162983 Page: 4 Date Filed: 09/19/2017 First Amendment. Finally, the interests of amici States underscore the public’s in- terest in this motion’s disposition by showing the harm the preliminary injunction imposes not only on Texas, but on a national scale. For these reasons, amici States respectfully request leave to file the attached amicus brief. Respectfully submitted, JEFF LANDRY PATRICK MORRISEY ATTORNEY GENERAL ATTORNEY GENERAL /s/ Thomas M. Johnson, Jr. Elizabeth Baker Murrill Thomas M. Johnson, Jr. Solicitor General Deputy Solicitor General Counsel of Record OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA OFFICE OF THE ATTORNEY 1885 North 3rd Street GENERAL OF WEST VIRGINIA Baton Rouge, LA 70802 State Capitol Building 1, Room 26-E Telephone: (225) 326-6766 Charleston, WV 25305 Telephone: (304) 558-2021 Counsel for Amicus Curiae Email: [email protected] the State of Louisiana Counsel for Amicus Curie the State of West Virginia September 19, 2017 3 4 of 27 Case: 17-50762 Document: 00514162983 Page: 5 Date Filed: 09/19/2017 COUNSEL FOR ADDITIONAL AMICI Steve Marshall Joshua D. Hawley Attorney General Attorney General State of Alabama State of Missouri 501 Washington Ave 207 W. High St. Montgomery, AL 36130 Jefferson City, MO 65102 (334) 242-7300 (573) 751-3321 Leslie Rutledge Mike Hunter Attorney General Attorney General State of Arkansas State of Oklahoma 323 Center St. 313 NE 21st St. Little Rock, AR 72201 Oklahoma City, OK 73105 (501) 682-2007 (405) 522-4392 Christopher M. Carr Alan Wilson Attorney General Attorney General State of Georgia State of South Carolina Georgia Department of Law P.O. Box 11549 40 Capitol Square SW Columbia, SC 29211 Atlanta, GA 30334 (803) 734-3970 (404) 651-9453 5 of 27 Case: 17-50762 Document: 00514162983 Page: 6 Date Filed: 09/19/2017 CERTIFICATE OF SERVICE I certify that on September 19, 2017, the foregoing document was served on the counsel of record for all parties through the CM/ECF system. /s/ Thomas M. Johnson, Jr. September 19, 2017 Thomas M. Johnson, Jr. Date 6 of 27 Case: 17-50762 Document: 00514162984 Page: 1 Date Filed: 09/19/2017 No. 17-50762 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT City of El Cenizo, Texas; Raul L. Reyes, Mayor, City of El Cenizo; Tom Schmerber, County Sheriff; Mario A. Hernandez, Maverick County Constable PCT. 3-1; League of United Latin American Citizens; Maverick County; City of El Paso, Plaintiffs-Appellees, City of Austin, Intervenor Plaintiff-Appellee, Travis County; Travis County Judge Sarah Eckhardt; and Travis County Sheriff Sally Hernandez, Intervenor Plaintiffs-Appellees, City of Dallas, Intervenor Plaintiff-Appellee, Texas Association of Hispanic County Judges and County Commissioners, Intervenor Plaintiff-Appellee, City of Houston, Intervenor Plaintiff-Appellee, v. State of Texas; Greg Abbott, Governor of the State of Texas, in his Official Capacity; and Ken Paxton, Texas Attorney General, Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS PROPOSED BRIEF OF AMICI CURIAE THE STATES OF WEST VIRGINIA, LOUISIANA, AND SIX OTHER STATES IN SUPPORT OF APPELLANTS’ EMERGENCY MOTION TO STAY PRELIMINARY INJUNCTION JEFF LANDRY PATRICK MORRISEY ATTORNEY GENERAL OF LOUISIANA ATTORNEY GENERAL Elizabeth Baker Murrill OF WEST VIRGINIA Solicitor General Thomas M. Johnson, Jr. 1885 North 3rd Street Deputy Solicitor General Baton Rouge, LA 70802 Counsel of Record Telephone: (225) 326-6766 State Capitol Building 1, Room 26-E Email: [email protected] Charleston, WV 25305 Telephone: (304) 558-2021 Counsel for Amicus Curiae Email: [email protected] the State of Louisiana Counsel for Amicus Curiae the State of West Virginia [caption continued on inside cover] 7 of 27 Case: 17-50762 Document: 00514162984 Page: 2 Date Filed: 09/19/2017 [caption continued from front cover] El Paso County; Richard Wiles, Sheriff of El Paso County, in his Official Capacity; and the Texas Organizing Project Education Fund, Plaintiffs-Appellees, v. State of Texas; Greg Abbott, Governor; Ken Paxton, Attorney General; and Steve McCraw, Director of the Texas Department of Public Safety, Defendants- Appellants. City of San Antonio; Rey A. Saldana, in his Official Capacity as San Antonio City Councilmember; Texas Association of Chicanos in High Education; La Union Del Pueblo Entero, Inc.; and Workers Defense Project, Plaintiffs-Appellees, v. State of Texas; Ken Paxton, Sued in his Official Capacity as Attorney General of Texas; and Greg Abbott, Sued in his Official Capacity as Governor of the State of Texas, Defendants-Appellants. 8 of 27 Case: 17-50762 Document: 00514162984 Page: 3 Date Filed: 09/19/2017 CERTIFICATE OF INTERESTED PARTIES Pursuant to the fourth sentence of Fifth Circuit Rule 28.2.1, amici States need not furnish a certificate of interested parties because they are government entities. 9 of 27 Case: 17-50762 Document: 00514162984 Page: 4 Date Filed: 09/19/2017 TABLE OF CONTENTS Page INTEREST AND IDENTITY OF AMICI ................................................................. 1 INTRODUCTION ..................................................................................................... 2 ARGUMENT ............................................................................................................. 4 I. THE TERM “MATERIALLY LIMITS” IS NOT IMPERMISSIBLY