Read the Federal Judge’s Ruling (2024)

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 1 of 40UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDACASE NO. 23-cv-22655-ALTMAN/ReidTHE FARMWORKER ASSOCIATIONOF FLORIDA, INC., et al.,Plaintiffs,V.ASHLEY MOODY, in her official capacityas the Attorney General of the State of Florida, et al.,Defendants.ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTIONThe Plaintiffs have filed a Motion for Preliminary Injunction under Federal Rule of CivilProcedure 65(a) (the “Motion”) [ECF No. 30], along with a Memorandum in Support of that Motionfor Preliminary Injunction (the “Memorandum”) [ECF No. 30-1]. For the reasons we outline below,the Motion for Preliminary Injunction is GRANTED.²THE FACTSwhichOn May 10, 2023, Governor DeSantis signed into law Senate Bill 1718 (“SB 1718”),amended FLA. STAT. § 787.07 to impose criminal penalties on anyone “who knowingly and willfullytransports into this state an individual whom the person knows, or reasonably should know, hasentered the United States in violation of law and has not been inspected by the Federal Government1This litigation was originally styled The Farmworker Association of Florida, Inc., et al. v. Ronald DeSantis, etal., 23-cv-22655-ALTMAN. But, since we've dismissed Governor DeSantis from the case, we herebyORDER the Clerk of Court to restyle the litigation as follows: The Farmworker Association of Florida,Inc., et al. v. Ashley Moody, et al., 23-cv-22655-ALTMAN.2 The Motion is ripe for resolution. See Defendants' Response to Plaintiffs' Motion for PreliminaryInjunction (the “Response") [ECF No. 50]; Plaintiffs' Reply to Defendants' Response to Plaintiffs'Motion for Preliminary Injunction (the "Reply") [ECF No. 67].

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 2 of 40since his or her unlawful entry from another country.” Complaint for Injunctive Relief and DeclaratoryJudgment (the "Complaint”) [ECF No. 1] ¶¶ 65–66 (quoting FLA. STAT. § 787.07). Section 10 of SB1718 provides, in its entirety, as follows:(1) Except as provided in subsections (3), (4), and (5), a person who knowingly andwillfully transports into this state an individual whom the person knows, orreasonably should know, has entered the United States in violation of law and hasnot been inspected by the Federal Government since his or her unlawful entryfrom another country commits a felony of the third degree, punishable as providedin s. 775.082, s. 775.083, or s. 775.084.(2) A person commits a separate offense for each individual he or she transports intothis state in violation of this section.(3) A person who transports a minor into this state in violation of subsection (1)commits a felony of the second degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084.(4) A person who commits five or more separate offenses under this section during asingle episode commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.(5)(a) A person with a prior conviction under this section who commits a subsequentviolation of this section commits a felony of the second degree, punishable asprovided in s. 775.082, s. 775.083, or s. 775.084.(b) As used in paragraph (a), the term “conviction” means a determination of guiltthat is the result of a plea agreement or a trial, regardless of whetheradjudication is withheld or a plea of nolo contendere is entered.(6) Proof that a person knowingly and willfully presented false identification or gavefalse information to a law enforcement officer who is conducting an investigationfor a violation of this section gives rise to an inference that such person was awarethat the transported individual has entered the United States in violation of the lawand had not been inspected by the Federal Government since his or her unlawfulentry.(7) A person who is arrested for a violation of this section must be held in custodyuntil brought before the court for admittance to pretrial release in accordance withchapter 903.Id. 66 (quoting FLA. STAT. § 787.07).The Plaintiffs filed their Complaint on July 17, 2023, suing “Defendants Ronald D. DeSantis,Governor of the State of Florida, Ashley Moody, Attorney General of the State of Florida, NicholasB. Cox, Statewide Prosecutor,” and the state attorneys for all twenty of Florida's judicial circuits. Id.at 3. The organizational Plaintiff, the Farmworker Association of Florida, Inc. (the “FarmworkerAssociation" or "FWAF"), is a "grassroots and community-based farmworker membership2

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 3 of 40organization" whose mission is to “support and build power among farmworker and rural low-incomecommunities." Id. ¶¶ 15–16. “FWAF serves seasonal workers as well as migrant workers who travelwith the seasons to harvest crops. To do so, FWAF's members travel back and forth between Florida,Georgia, and Alabama, crossing back into Florida multiple times per year.” Id. ¶ 17. The individualPlaintiffs “belong to mixed-status families, churches, and communities.” Motion to ProceedAnonymously [ECF No. 29] at 1. “Their family members include U.S. citizens, Special ImmigrantJuvenile Status (‘SIJS') and Deferred Action for Childhood Arrivals (DACA) applicants, andundocumented immigrants.” Ibid. The Plaintiffs allege that "Section 10 of [SB 1718], Ch. 2023-40,Laws of Fla. (“Section 10°) unconstitutionally criminalizes the act of transporting a broad category ofimmigrants into Florida." Complaint ¶ 1; see also id. ¶ 10 ("This action challenges Section 10 to preventimminent harm that Plaintiffs and other Floridians, including both U.S. citizens and noncitizens, willsuffer as the law goes into effect and is implemented. Plaintiffs seek injunctive and declaratory reliefto bar such egregious unconstitutional actions from occurring in their communities."). We dismissedGovernor DeSantis from this case on December 21, 2023, because we found that (1) the Plaintiffsdidn't have standing to sue him, and (2) he was immune from the claims the Plaintiffs advanced intheir Complaint. See Order Granting Motion to Dismiss [ECF No. 84].On February 9, 2024, we denied the Plaintiffs' Motion to Proceed Anonymously, see OrderDenying the Motion to Proceed Anonymously [ECF No. 86], and ordered the Plaintiffs to appear onthe Docket using their own names, see Order Requiring Certificates of Interested Parties [ECF No.87]. After we entered our Order Denying the Motion to Proceed Anonymously, two Plaintiffs—G.D.L. and M.G.—filed Notices of Voluntary Dismissal [ECF Nos. 90–91]. The seven remainingindividual Plaintiffs then appeared by name. See Plaintiffs' Certificate of Interested Persons andCorporate Disclosure Statement [ECF No. 92]. In this Order, therefore, we'll use the Plaintiffs' fullnames, even where their declarations (or the parties' papers) originally referred to them by their initials.3

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 4 of 40The Plaintiffs now ask us to enter a preliminary injunction enjoining the Defendants fromenforcing Section 10 of SB 1718. We held a preliminary-injunction hearing on December 13, 2023,where the parties presented their oral arguments. See Minute Entry [ECF No. 83]; see also Dec. 13,2023, Hr'g Tr. [ECF No. 85]. This Order follows.THE LAW"A preliminary injunction is an extraordinary and drastic remedy not to be granted unless themovant clearly establishes the ‘burden of persuasion' as to the four requisites.” All Care Nursing Serv.,Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (cleaned up). Those four familiarfactors are: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will besuffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief wouldinflict on the non-movant; and (4) that entry of the relief would serve the public interest." Schiavo exrel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).A showing of irreparable injury is “the sine qua non of injunctive relief" and is the mostimportant of the four factors. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (cleanedup). To satisfy this standard, the “plaintiffs seeking preliminary relief [must] demonstrate thatirreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.7,22 (2008). And a showing of irreparable injury “must be neither remote nor speculative, but actualand imminent." Ne. Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285(11th Cir. 1990); see also Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An injunction isappropriate only if the anticipated injury is imminent and irreparable.”). Still, a district court cannotgrant a preliminary injunction unless the moving party satisfies all four of the requirements. See Wreal,LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016) (“Because Wreal must meet all fourprerequisites to obtain a preliminary injunction, failure to meet even one dooms [his request].”).

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 5 of 40"[W]here facts are bitterly contested and credibility determinations must be made to decidewhether injunctive relief should issue,” district courts must hold an evidentiary hearing on thepropriety of injunctive relief. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1312 (11th Cir. 1998) (citingAll Care Nursing Serv., 887 F.2d at 1538 (cleaned up)). At that hearing, the court sits as factfinder. SeeFour Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1211 (11th Cir. 2003) ("Whereconflicting factual information places in serious dispute issues central to a party's claims and muchdepends upon the accurate presentation of numerous facts, the trial court errs in not holding anevidentiary hearing to resolve these hotly contested issues." (cleaned up)).In our case, we set an evidentiary hearing on the Plaintiffs' Motion, at which all parties hadthe opportunity to present evidence and to advance their respective positions. Despite thisopportunity, the parties decided not to present any evidence and to proceed only with their writtenbriefings (as supplemented by lengthy oral presentations). See Dec. 13, 2023, Hr'g Tr. at 4:22–24(“THE COURT: Are you going to put on any evidence at all for any of these motions? [PLAINTIFFS'COUNSEL]: No, Your Honor."); see also id. at 5:1 ("THE COURT [referring to defense counsel, whodid not object]: So neither are you."); id. at 67:17–19 (“THE COURT: All right. We'll take that up-with no evidence, right, just argument? [PLAINTIFFS' COUNSEL]: Correct.”).I.StandingANALYSISAs a threshold matter, the Defendants contend that all the Plaintiffs lack standing to seek apreliminary injunction here. See Response at 5. We disagree. To establish his standing under ArticleIII of the U.S. Constitution, a plaintiff must have suffered an “injury in fact” that is “concrete,particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by afavorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). "Where only injunctiverelief is sought, only one plaintiff with standing is required." Martin v. Kemp, 341 F. Supp. 3d 1326, 13335

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 6 of 40(N.D. Ga. 2018) (emphasis added & cleaned up); see also ACLU of Fla., Inc. v. Byrd, 608 F. Supp. 3d1148, 1153 (N.D. Fla. 2022) (Winsor, J.) (“[W]hen multiple plaintiffs seek injunctive relief, only oneneeds to show standing."); Town of Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017) (“[W]henthere are multiple plaintiffs[,] [a]t least one plaintiff must have standing to seek each form of reliefrequested in the complaint." (emphasis added)). In our case, at least one Plaintiff has standing to pursuethis preliminary injunction.Take, for example, Andrea Mendoza Hinojosa. She's suffered an injury in fact because she'sestablished “a realistic danger of sustaining direct injury" from "the statute's operation orenforcement.” Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012). Inher Declaration, after all, she avers that she's transported undocumented immigrants (and is "100%willing to" continue transporting at least one undocumented immigrant) into the State of Florida, but(she says) she "believe[s] [she] should not have to risk jail time in order to get them life-saving care orto help them attend an appointment with USCIS, or for any other legitimate reason.” Declaration ofAndrea Mendoza Hinojosa (the “Mendoza Decl.") [ECF No. 30-4] ¶¶ 14, 17. And her reluctance toengage in conduct she would otherwise have engaged in is sufficient to show an injury in fact. See W.Va. ex rel. Morrisey v. U.S. Dep't of the Treas., 59 F.4th 1124, 1137 (11th Cir. 2023) (“A plaintiff need not'expose himself to liability' to have standing to challenge the enforcement of a law." (quotingMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007))).Ms. Mendoza's injury is also directly traceable to the passage of SB 1718, which she saysprevents her from "do[ing] [her] job effectively” and “help[ing] people in [her] community." MendozaDecl. ¶ 17; see also id. ¶¶ 5, 14, 17 (“Transporting individuals with various immigration statuses,including individuals who have never had any contact with immigration authorities, is a key part ofmy job..SB 1718, however, has made me extremely anxious that my efforts to help [people whohave not been inspected by the federal government] may result in significant jail time and prosecution6

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 7 of 40for meI operate my nonprofit on a limited budget, and I would face extreme financial hardshipif forced to pay for my release on bond or for my criminal defense if I were arrested.”).Finally, Ms. Mendoza's injury would be redressed by an injunction against the enforcement ofSection 10 because, with the statute enjoined, her conduct would no longer put her at risk of arrest orprosecution. See Order Granting Motion to Dismiss at 4 (“In many cases, ‘redressability andtraceability overlap as two sides of a causation coin."" (quoting Nova Health Sys. v. Gandy, 416 F.3d1149, 1159 (10th Cir. 2005))).Carmenza Aragon has likewise established her standing to pursue this injunction. Ms. Aragonplanned to drive her undocumented grandson—who has a petition pending for Special ImmigrantJuvenile Status from Florida to Georgia to visit family members who live in Georgia. See Declarationof Carmenza Aragon (the “Aragon Decl.") [ECF No. 30-7] ¶¶ 5—6; see also id. ¶ 6 (“My grandson andI traveled to Georgia for a visit with family last October, and we were planning to go again this year.”).She then planned to drive her grandson back from Georgia to Florida. Ibid. Since the passage of SB1718, however, Ms. Aragon “had to give up [her] trip to Georgia[.]" Id. ¶ 7. And this harm—not beingpermitted to travel with her grandson to Georgia—is ongoing: “I do not know when we will be ableto go back to visit our family. Now that the transport law is in place, I am afraid to travel with mygrandson. If I am traveling with him, I could be stopped and arrested for breaking the new transportlaw if the police believe I am transporting him. That idea fills me with panic . . . . I am getting older,and time with my loved ones is important.” Ibid. Having felt compelled to cancel her trip to see familybecause she reasonably feared arrest under Section 10—and having been prevented from taking hergrandson to Georgia at any time since-Ms. Aragon has shown that she, too, has suffered (andcontinues to suffer) an injury in fact, even though she hasn't put herself at risk of an actual arrest. Asthe Eleventh Circuit explained in Taylor v. Polhill:Taylor has sufficiently alleged an injury in fact. Taylor challenges the Pre-Sale TestingStatute's constitutionality, arguing both that the statute violates his right to due process7

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 8 of 40and that it is preempted by federal law. In his complaint, Taylor alleges that, prior togiving up his license, he was a state-licensed hearing aid specialist for thirty years andhad operated his own hearing aid retail store for over twenty-six years. Taylor alsoalleges that “[b]ut for Florida's prohibition for dispensing hearing aids without usingits required fitting procedures and equipment, [he] would immediately begindispensing hearing aids.” In other words, the only thing keeping Taylor fromdispensing hearing aids is the threat of enforcement of the allegedly unconstitutionalPre-Sale Testing Statute. And, as Florida's statutory scheme for dispensing hearing aidshas been enforced against Taylor in the past, the chance that it will be enforced againsthim in the future is not speculative. Taylor is thus put in the position of eitherrefraining from conduct he alleges to be unconstitutionally prohibited or engaging insuch conduct and exposing himself to enforcement. The Constitution does not requirethat Taylor expose himself to enforcement of the statute before he can challenge thestatute. Hence, Taylor has properly alleged an injury in fact.964 F.3d 975, 980-81 (11th Cir. 2020). So, too, here: But for Section 10, Ms. Aragon would be drivingher grandson to visit family in Georgia. And we have no reason to think that enforcement of Section10 is unlikely or merely speculative.³words:3A third Plaintiff, Maria Medrano Rios, has suffered an almost-identical injury in fact. In herI had planned to travel with my family to Texas, so that my children could visit theircousins and so that I could spend time with my brother and sister. I'd spoken to mybrother and sister about this trip, and I told my children about it-everyone was veryexcited...Now, though, we can't take this trip. It is just too big a risk for my children and me.[My daughter] does not have an immigration case, and does not have any immigrationstatus, even though she has applied for DACA. So, I am scared that she is not allowedto be brought back into Florida if we leave. And I don't know whether I can be drivenback into Florida either, since I don't have any official status. I have a case inimmigration court, where I am working to get immigration protection, and I have aAs we'll discuss in more detail later, the Defendants claim that these Plaintiffs lack standing because"the individuals they plan to transport have been ‘inspected" within the meaning of Section 10.Response at 9. They therefore promise that “[t]hese Plaintiffs face no credible threat of prosecution.”Ibid. But the Supreme Court has “warn[ed] against accepting as ‘authoritative' an Attorney General'sinterpretation of state law when 'the Attorney General does not bind the state courts or local lawenforcement authorities." Stenberg v. Carhart, 530 U.S. 914, 940 (2000) (quoting Virginia v. Am.Booksellers Ass'n, Inc., 484 U.S. 383, 395 (1988)). Since we're “without power to adopt a narrowingconstruction of a state statute unless such a construction is reasonable and readily apparent,” Boos v.Barry, 485 U.S. 312, 330 (1988) (emphasis added), we think enforcement against the individualPlaintiffs is sufficiently likely to satisfy Article III standing.8

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 9 of 40work permit based on this case, but the case is not yet completed. Because of this, I'mfearful that our family could be stopped and arrested coming back home[.]Declaration of Maria Medrano Rios (the “Medrano Rios Decl.") [ECF No. 30-8] ¶¶ 8, 10 (emphasisadded). As with Ms. Aragon, the “only thing keeping [Ms. Medrano Rios] from” visiting her familyoutside of Florida is the looming threat of arrest under Section 10—which the Plaintiffs allege isunconstitutional. See Taylor, 964 F.3d at 980. Since Ms. Medrano Rios has been put in the position ofeither refraining from conduct she alleges to be unconstitutionally prohibited or engaging in theproscribed conduct and exposing herself to arrest and prosecution, she's established an ongoing injuryin fact. See Medrano Rios Decl. ¶ 10 (noting that “I'm fearful”—present tense—“that our family couldbe stopped and arrested coming back home"). And both Ms. Aragon's and Ms. Medrano Rios'sinjuries are directly traceable to the passage of SB 1718 and would be redressed by an injunctionagainst Section 10.Resisting, the Defendants argue that the individual Plaintiffs lack standing because their“conduct does not violate the statute.”4 Response at 10. In support of this view, the Defendants offerthe following narrowing construction of Section 10:4Section 787.07(1) provides that “a person who knowingly and willfully transports intothis state an individual whom the person knows, or reasonably should know, hasThe Defendants also contend that Ms. Mendoza specifically lacks standing because she “offers noconcrete plans" to violate Section 10 in the future. Response at 10 (emphasis added). But Article IIIdoesn't require a plaintiff to give us an exact date and time for her plans. See Lujan v. Defs. of Wildlife,504 U.S. 555, 564 n.2 (1992) (recognizing that "imminence' is concededly a somewhat elasticconcept"). Ms. Mendoza avers that she regularly drives “individuals who have never had any contactwith immigration authorities” into Florida. Mendoza Decl. ¶ 5. She also tells us that she knows a"middle-aged undocumented woman from the state of Yucatan, Mexico," who (when Ms. Mendozawrote her Declaration) was receiving emergency dialysis in a hospital in Georgia. Id. ¶¶ 11, 13.Although Ms. Mendoza was not sure “how long” this woman would be in Georgia, she was “100%willing to transport her to Florida . . to get the care she needs.” Id. ¶¶ 13–14. We think that'ssufficiently imminent under the circ*mstances. See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,1340 (11th Cir. 2013) (“Immediacy is an elastic concept .Plaintiff Houston has traveled to Miami-....Dade County on a regular basis in the past and expects to do so in the near future.... That is enough[;]Houston has frequently visited the area near the store in the past and will maintain the same frequencyin the future." (cleaned up)).9

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 10 of 40entered the United States in violation of law and has not been inspected by the FederalGovernment since his or her unlawful entry” commits a felony. . . .[T]he term "inspected" refers to any instance in which the federal government candecide whether to take action against a person. To “inspect" something is to "examine[it] officially," "to look carefully,” or to "make an examination." Inspect, Webster'sThird International Dictionary 1170 . . . . "Inspected" thus denotes an opportunity toexamine a person, not a final decision on the person's admissibility or legal status. Cf.Matter of G, 3 I. & N. Dec. 136, 138 (BIA 1948) (explaining that being “inspected”"means giving immigration officials an opportunity to question an alien) .Indeed, in federal law, an "inspection" is complete even if no decision is made as toadmission. See, e.g., 8 U.S.C. § 1225(a)(2) (discussing referring an alien for furtherproceedings "[u]pon inspection"); 19 U.S.C. § 1459(a), (d) (requiring individualsarriving in the United States to present themselves “for inspection"); see also Matter ofQuilantan, 25 I. & N. Dec. 285, 293 (BIA 2010) (defining “inspected and admitted”(emphasis added)). And federal law mandates inspections even if a person isencountered in the interior years after unlawful entry. See 8 U.S.C. § 1225(a)(1)(defining “applicant for admission” to include “[a]n alien present in the United Stateswho has not been admitted"); 8 U.S.C. § 1225(b) (requiring all applicants for admissionto be inspected).In light of the above, most of Plaintiffs' concerns about § 787.07 are simply misplaced.Visa holders, DACA recipients, and aliens with pending applications for asylum orremoval proceedings have all been “inspected” because they have notified the federalgovernment of their presence, and the federal government can decide whether to takeimmediate action. To be sure, Plaintiffs contest this reading. But in a pre-enforcementchallenge, it is enough that the statute “could be read” in the manner offered by theState Defendants. See Arizona, 567 U.S. at 413–15[.]Id. at 3-5.The Defendants, in short, insist that the individuals our Plaintiffs want to transport intoFlorida have "been inspected under § 787.07[.]" Id. at 10; see also id. at 11 ("The person [Ms. MedranoRios] wishes to transport across state lines is her daughter, who has a pending application with federalauthorities for DACA benefits. Under § 787.07, her daughter has been ‘inspected,' and [Ms. MedranoRios's] conduct would not violate the challenged statute."); ibid. (same as to Ms. Aragon's grandson,“who has a pending petition with federal authorities for a change in status”). On the Defendants'reading of Section 10 of SB 1718, therefore, the conduct of these three Plaintiffs doesn't violate thestatute—a reality that deprives them of standing.10

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 11 of 40But the Defendants cannot use their own (narrow) construction of Section 10 to defeat thePlaintiffs' standing. In Morrisey, for instance, thirteen states “sued the Treasury Secretary and relatedofficials to challenge a tax offset provision in the American Rescue Plan Act, a coronavirus stimuluspackage passed by Congress in 2021.” 59 F.4th at 1131–32. The Secretary argued that the “States lackstanding to challenge the offset provision because the Secretary has not initiated a recoupment actionagainst any of them.” Id. at 1135. According to the Secretary, “the offset provision does not proscribethe States' conduct because its text makes clear' that States may cut taxes so long as they ‘pay' for atax cut without using Rescue Plan funds.” Id. at 1137. In the Eleventh Circuit's view, however, “[t]hisargument—that the offset provision is clear-goes to the merits of the States' claims, not theirstanding to raise them.” Ibid. “When we assess standing,” the court explained, “we 'must be carefulnot to decide the questions on the merits for or against the plaintiff, and must therefore assume thaton the merits the plaintiffs would be successful in their claims."" Ibid. (quoting Culverhouse v. Paulson &Co., 813 F.3d 991, 994 (11th Cir. 2016)). Applying this principle, the Circuit came to the sameconclusion we reach here:Reviewing the text of the statute for standing purposes, we believe the States haveshown that the offset provision arguably proscribes their conduct. The offset provisionprohibits states from using federal funds to “either directly or indirectly offset areduction in the[ir] net tax revenue” resulting from a change in state law “during thecovered period that reduces any tax . . . or delays the imposition of any tax or taxincrease.” 42 U.S.C. § 802(c)(2)(A). Money is fungible. By prohibiting both direct and"indirect" offsets, the provision arguably proscribes a state from accepting the moneyif it enacts any tax cut.Id. at 1137-38 (emphases added).And that's consistent with the way courts in our Circuit have treated similar attempts byattorneys general to undermine a plaintiff's standing by offering narrowing interpretations of a statute.See, e.g., Shen v. Simpson, 2023 WL 5517253, at *1, 4 (N.D. Fla. Aug. 17, 2023) (Winsor, J.) (emphasisadded & cleaned up) (“The challenged law, codified at Florida Statutes § 692.201–204, .restrictsland purchases by any ‘[f]oreign principal,' which it defines to include anyone who is domiciled in a11

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 12 of 40foreign country of concern and is not a citizen or lawful permanent resident of the United States.'...The State [d]efendants argue that as a matter of Florida law, none [of the plaintiffs] is domiciled inChina because each intends to reside in Florida indefinitely. The relevant issue, though, is whether[p]laintiffs' conduct is ‘arguably. . . proscribed by the new law And [plaintiffs] Shen, Wang, andLiu have shown that they are arguably domiciled in China and risk violating §§ 692.203 and 692.204.The new law, which does not independently define 'domicile,' 'sweeps broadly,' and arguablyapplies to [p]laintiffs.” (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014))); cf. Stenberg,530 U.S. at 940 (“We cannot accept the Attorney General's narrowing interpretation of [a state] statute.This Court's case law makes clear that we are not to give the Attorney General's interpretative viewscontrolling weight."). As these cases make plain, the government cannot, in its response to apreliminary-injunction request, introduce a novel, narrowing construction of a statute and thendemand that we make standing determinations based on that untested, non-binding interpretation.On the contrary, when standing is challenged, we must "assume that on the merits the plaintiffs wouldbe successful in their claims.” Morrisey, 59 F.4th at 1137.Nor are the Defendants right to say that, “in a pre-enforcement challenge, it is enough thatthe statute 'could be read' in the manner offered by the State Defendants.” Response at 5 (quotingArizona v. United States, 567 U.S. 387, 413 (2012)). In Arizona, the Supreme Court invoked theconstitutional-avoidance doctrine in resolving the merits of an injunction—not (as here) in assessing thepetitioners' standing contentions. See Arizona, 567 U.S. at 413–14 (“Some who support the challenge to§ 2(B) argue that, in practice, state officers will be required to delay the release of some detainees forno reason other than to verify their immigration status . . . . But § 2(B) could be read to avoid theseconcerns. To take one example, a person might be stopped for jaywalking in Tucson and be unableto produce identification. The first sentence of § 2(B) instructs officers to make a ‘reasonable' attempt12

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 13 of 40to verify his immigration status with ICE if there is reasonable suspicion that his presence in theUnited States is unlawful."). The standard the Court applied in Arizona is therefore inapposite here.In fact, as we've said, when it comes to standing, a plaintiff need only show that his “intendedfuture conduct is arguably proscribed by the statute.” Susan B. Anthony List, 573 U.S. at 162 (emphasisadded & cleaned up); see also Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (“The Supreme Court'sopinion in Susan B. Anthony List makes clear that courts are to consider whether the plaintiff's intendedconduct is ‘arguably proscribed by the challenged statute, not whether the intended conduct is in factproscribed."); Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 217–18 (5th Cir. 2023) (“[The plaintiff]has standing if its intended action-continuing with its ‘plant-based' labels that use meat-esquewords—is arguably proscribed. And here, it is: the Act arguably sweeps broadly enough to capture[the plaintiff's] conduct . . . . While [the plaintiff's] interpretation may not be the best interpretation,the test doesn't require that.").As we've suggested, the conduct of the three Plaintiffs we've discussed above is at least arguablyproscribed by Section 10. The Defendants counter that these individual Plaintiffs lack standingbecause the people they "wish[ ] to transport across state lines" have “pending application[s] withfederal authorities,” and “Visa holders, DACA recipients, and aliens with pending applications forasylum or removal proceedings have all been inspected" within the meaning of SB 1718. Responseat 4, 11. Specifically, the Defendants suggest that individuals with pending immigration applicationshave "been inspected' because they have notified the federal government of their presence, and thefederal government can decide whether to take immediate action.” Id. at 4. But it's not clear to us thatthe Defendants' interpretation of Section 10 is the correct one.As the Defendants concede, "[t]o ‘inspect' something is to ‘examine [it] officially,' 'to lookcarefully,' or to ‘make an examination.” Id. at 3 (quoting Inspect, WEBSTER'S THIRD NEWINTERNATIONAL DICTIONARY 1170 (1993)). And other dictionaries similarly define the verb “inspect”13

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 14 of 40to mean (1) “to view closely in critical appraisal"; and (2) “to examine officially.” Inspect, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/inspect (last visited May 21, 2024).“Absent a legislatively supplied definition," as the Defendants note, “we give [words their] 'plain andordinary meaning' at the time of the statute's enactment, and we often look to contemporaneousdictionaries for evidence of that meaning.” Response at 4 (quoting Tsuji v. Fleet, 366 So. 3d 1020, 1028(Fla. 2023)). That's a problem for the Defendants here because, as each of these definitions makesclear, the word “inspect” focuses on the actions of (and denotes some examination by) the inspector.He, after all, is the subject who must “examine officially," "look carefully,” “make an examination,” “viewclosely," etc. By any of these definitions, then, a person who submits an application to the USCISwithout any evidence that some inspector actually “examined [it] officially,” “looked [at it] carefully,” or"viewed [it] closely" would appear not to have been “inspected.”To circumvent the plain meaning of the word “inspect,” our Defendants add words andphrases that don't appear in any of the available definitions. So, for instance, they say that the word““[i]nspecteď . . . denotes an opportunity to examine a person, not a final decision on the person'sadmissibility or legal status." Response at 4 (emphasis added). But we've seen no definition of“inspect" that includes “an opportunity to examine”—and it's not our role to “add[] to what the textstates or reasonably implies (casus omissus pro omisso habendus est).” A. SCALIA & B. GARNER, READINGLAW: THE INTERPRETATION OF LEGAL TEXTS 93 (2012). Had the Florida legislature intended toexclude from the statute's coverage both people who had been inspected and those who had given theexaminers an opportunity to inspect them, then the Defendants' arguments would have some merit. Butit's our job to interpret the law as it was actually written-not the one the Defendants wish thelegislature had promulgated. See Pinares v. United Techs. Corp., 973 F.3d 1254, 1262 (11th Cir. 2020)("Where [the legislature] knows how to say something but chooses not to, its silence is controlling."(cleaned up)); Jama v. Immigr. & Customs Enft, 543 U.S. 335, 341 (2005) (“We do not lightly assume14

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 15 of 40that [the legislature] has omitted from its adopted text requirements that it nonetheless intends toapply, and our reluctance is even greater when [the legislature] has shown elsewhere in the same statutethat it knows how to make such a requirement manifest.”); cf. Savage Servs. Corp. v. United States, 25F.4th 925, 935 (11th Cir. 2022) (refusing to read into the Oil Pollution Act a waiver of sovereignimmunity because the legislature “knows how to waive sovereign immunity when it wants to"). Giventhat the plain meaning of the word “inspect” denotes careful or official examination, we cannot agreewith the Defendants that simply giving USCIS the opportunity to review an application qualifies as an"inspection."5Since we're here addressing the Defendants' claim that the individual Plaintiffs lack standing—and given the Plaintiffs' plausible reading of the law—we think these three Plaintiffs' conduct isarguably proscribed by Section 10 of SB 1718. We also think that the Farmworker Association hasstanding to challenge Section 10. “[A]n organization has standing to sue on its own behalf if thedefendant's illegal acts impair its ability to engage in its projects by forcing the organization to divertresources to counteract those illegal acts." Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153,1165 (11th Cir. 2008). In Browning, the Eleventh Circuit held that the organizational plaintiff hadstanding because it made a “sufficient showing" that it "will have to divert personnel and time toeducating volunteers and voters on compliance with Subsection 6 and . . . [t]hese resources would5The Plaintiffs separately note that the Board of Immigration Appeals (“BIA”) has interpreted theword “inspect” to require an in-person interaction with immigration officials. In Matter of Quilantan, forexample, the BIA held that “an alien who physically presents herself for questioning and makes noknowing false claim to citizenship [has been] ‘inspected[.]”” 25 I. & N. Dec. 285, 293 (BIA 2010)(emphasis added); see also In the Matter of G-, 3 I & N Dec. 136, 138 (BIA 1948) (“[W]e have alwaysheld that an alien who physically presents himself for questioning is ‘inspected' even though he volunteersno information and is asked no questions by the immigration authorities." (emphasis added)). Whilethese passages aren't dispositive on the meaning of the word "inspection" as it appears in our statute,they do (like the dictionary definitions quoted above) cast doubt on the Defendants' claim that “alienswith pending applications" have been “inspected” simply “because they have notified the federalgovernment of their presence[.]" Response at 4.15

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 16 of 40otherwise be spent on registration drives and election-day education and monitoring.” 522 F.3d at1165–66. Similarly, in Common Cause, the Circuit found that the NAACP had standing because it"divert[ed] resources from its regular activities to educate and assist [affected individuals] in complyingwith the [challenged] statute[.]” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1350 (11th Cir. 2009).And, in Georgia Latino, the court held that the organizational plaintiffs had standing because they"diverted resources to educate their members, staff, and volunteers on the consequences of the[challenged] law." 691 F.3d at 1260; see also ibid. (“The enactment of H.B. 87 caused [the plaintiff][Coalition of Latino Leaders] to receive an increased number of inquiries about the law, forcing it todivert volunteer time and resources to educating affected members of the community and fieldinginquiries. As a result, CLL has cancelled citizenship classes to focus on these effects. According toCLL, ‘these problems will only get worse if the bill goes into effect.”” (cleaned up)).fromAs with the organizational plaintiffs in these cases, the Farmworker Association has shown,through a sworn Declaration from its General Coordinator, that it's had to divert resources awayits regular activities to educate and assist affected individuals in their efforts to comply with Section10 of SB 1718. See Declaration of Nezahualcoyotl Xiuhtecutli (the “Xiuhtecutli Decl.”) [ECF No. 30-3] ¶ 11(c) (“Since the beginning of 2023, I had intended to increase our agroecology educational workthrough workshops. However, to do this we need to hire an agroecology coordinator.... Becauseour resources—both staff time and financial resources—have been diverted to responding to SB 1718,and Section 10 in particular, I have been unable to make this hire."); id. ¶ 34 (“FWAF has [ ] heldmember meetings regarding SB 1718, including Section 10, and sent out information andcommunications to its members and the immigrant community. These efforts are outside FWAF'sregular activities and have consumed valuable resources. These efforts are () ongoing and continue todrain valuable resources from FWAF that would otherwise go to our core programs encouragingfarmworkers' civic participation, advancing and educating the community on agroecology, building16

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 17 of 40farmworker coalitions, supporting worker's rights, improving working conditions, and safeguardingfarmworkers' health and safety."); id. ¶ 38 (“I anticipate that the community impact of Section 10,including arrests and detentions, will continue to divert FWAF's resources from its core mission ofstrengthening farmworker communities through its different programs and normal organizing work."(emphasis added)). Given that the Farmworker Association "claim[s] injuries analogous to thosepresent in Common Cause and Browning, we are satisfied that [it] meet[s] the minimum requirements ofArticle III." Ga. Latino, 691 F.3d at 1260.6 We're therefore satisfied that at least one Plaintiff hasstanding to challenge the constitutionality of Section 10.II.a.Substantial Likelihood of Success on the MeritsDue ProcessThe Plaintiffs say that they're likely to succeed on the merits for two main reasons. First, theyargue that "Section 10 [of SB 1718] is preempted" in several ways. Memorandum at 9. Second, theycontend that "Section 10 violates the Due Process Clause because it is unconstitutionally vague.” Id.at 17. We'll begin our analysis with the Plaintiffs' due-process argument, which (as we've suggested)we "find to be [their] least persuasive argument[.]” Dec. 13, 2023, Hr‍g Tr. at 80:11–12.The Plaintiffs insist that Section 10 violates the Due Process Clause of the FourteenthAmendment "because it fails to provide ordinary citizens with notice of the conduct it prohibits andinvites arbitrary and discriminatory enforcement.” Memorandum at 17. In their view:Section 10 makes it a felony to transport into Florida a passenger who "has not beeninspected by the Federal Government since his or her unlawful entry.” Ch. 2023-40, §10, at 11-12, Laws of Fla. (amending § 787.07(1), (3)-(5)(a), Fla. Stat. (2022)). ButSection 10 does not define what it means to be "inspected” “since” entry. Thelegislative history of Section 10 indicates that lawmakers sought to use the terms asthey are understood in immigration law, but as explained above, immigration law doesnot contain that category or say what it means. Supra Part I.A.iii. And since people's6 The Defendants advance several additional arguments about the Farmworker Association's allegedinjury, see Response at 6-9, which apply with equal force to the irreparable-harm prong of thepreliminary-injunction test. So, we'll address—and reject—those arguments in that section below.17

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 18 of 40immigration pathways can take hundreds of different forms, Section 10 leavesFloridians guessing as to which pathways show an “inspection” “since" entry andwhich ones do not. . . .[C]itizens of ordinary intelligence and law enforcement officers charged with enforcingthis law are left with no hope of understanding what Section 10 prohibits and to whomit applies. This, alone, is unconstitutional. But the extremely high stakes of Section 10which impose mandatory pre-trial criminal detention and felony culpability - makethe law's vagueness even more constitutionally intolerable.-Id. at 17, 20. We disagree.Even accepting that the words "inspected” and “since" are subject to some interpretation, wecannot conclude that the Plaintiffs are likely to succeed on the merits of their due-process claimbecause “[t]he mere fact that a statute requires interpretation does not necessarily render it void forvagueness.” Barr v. Galvin, 626 F.3d 99, 108 (1st Cir. 2010). And, while "the Constitution tolerates alesser degree of vagueness in enactments with criminal rather than civil penalties, . . . absolute precisionin drafting laws is not demanded.” High Ol Times, Inc. v. Busbee, 673 F.2d 1225, 1229 (11th Cir. 1982).Instead, “[u]nconstitutionally vague statutes are those which are not subject to reasonableinterpretation" whatsoever. United States v. Vincent, 2022 WL 1401463, at *12 (N.D. Ga. May 3, 2022)(cleaned up); see also Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1302 (11th Cir. 2013) (“[F]acialvagueness occurs when a statute is utterly devoid of a standard of conduct so that it simply has nocore and cannot be validly applied to any conduct . . [I]f persons of reasonable intelligence canderive a core meaning from a statute, then the enactment may validly be applied to conduct withinthat meaning and the possibility of a valid application necessarily precludes facial invalidity.” (cleanedup)).As we've suggested, Section 10 has at least one reasonable interpretation—that “a person isinspected. if he physically presents himself for questioning.” Reply at 10 (cleaned up). On thisinterpretation, the Plaintiffs maintain that merely mailing (or emailing) an "application for animmigration benefit” to USCIS does not “mean[ ] a person has been inspected.” Id. at 10 & n.8.18

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 19 of 40Because we agree with the Plaintiffs that theirs is a reasonable interpretation of Section 10, we havetrouble concluding that the statute is so vague that it fails to put reasonable people on notice of itsmeaning. See United States v. Williams, 553 U.S. 285, 304 (2008) (holding that a law is "void forvagueness” if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, oris so standardless that it authorizes or encourages seriously discriminatory enforcement”). In anyevent, without guidance from Florida's state courts (much less the Florida Supreme Court) on themeaning of Section 10, we hesitate to declare the statute vague—and, therefore, invalid. See Wainwrightv. Stone, 414 U.S. 21, 22–23 (1973) (“The judgment of federal courts as to the vagueness or not of astate statute must be made in the light of prior state constructions of the statute. For the purpose ofdetermining whether a state statute is too vague and indefinite to constitute valid legislation we musttake the statute as though it read precisely as the highest court of the State has interpreted it."(emphasis added & cleaned up)).7More importantly, the Plaintiffs concede that their own conduct has been criminalized bySection 10. See Motion to Proceed Anonymously at 13 (“[The Plaintiffs] engage in and, in the future,intend to engage in activity that Florida has newly criminalized—that is, driving or traveling with theirnoncitizen family members or members of the communities they serve into Florida.... Under Section10 of SB 1718, this activity exposes them to mandatory arrest and detention [and] prosecution on7 The Plaintiffs add that “Florida legislators rejected numerous amendments that would have replaced‘inspected' with clearer language," including language that would have replaced the phrase “has notbeen inspected by the Federal Government" with the phrase “has not contacted an official or officeof the United States government in person, virtually or by telephone or email.” Memorandum at 18–19. They say that the "statutory history and legislative history of Section 10 further highlight theincoherence of inspected' in this statute." Id. at 18. But this presumes that the Defendants'interpretation of the statute-as proscribing the interstate travel only of individuals who either havebeen inspected or have given the government an opportunity to inspect them—is the correct one. Aswe've indicated, we're quite skeptical of this construction. In any event, the fact that the Floridalegislature could have “chosen clearer and more precise language equally capable of achieving [itsobjective] does not mean that the statute which it in fact drafted is unconstitutionally vague." UnitedStates v. Powell, 423 U.S. 87, 94 (1975) (cleaned up).19

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 20 of 40felony charges[.]”); Memorandum at 20 (“Individual Plaintiffs and FWAF members transport intoFlorida family members, co-workers, and others who entered unlawfully and who likely have not been'inspected' for purposes of Section 10, in possible violation of the law Under the broad languageof Section 10, Plaintiffs and FWAF members face arrest, prosecution, mandatory detention, and familyseparation."). Since the “statutory provision at issue clearly proscribes some conduct in which thechallenger[s] engage[ ]"—at least according to the Plaintiffs—“the challenger[s] cannot complain ofthe statute's vagueness.” Case v. Ivey, 542 F. Supp. 3d 1245, 1270 (M.D. Ala. 2021) (emphasis added)(citing Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 (1982)).And that makes sense. If the Plaintiffs are confident that their family members and colleagues"likely have not been inspected' for purposes of Section 10,” Memorandum at 20 (emphasis added),they cannot simultaneously say that the statute is so vague as to be "incoherent,” id. at 19. And no oneseems to be disputing the statute's application to the transportation of illegal immigrants who've neverencountered the federal government. See Response at 1 (“The challenged statute prohibits knowinglytransporting individuals across state lines . . . when the federal government has had no opportunity toinspect them following an illegal border crossing."); see also Ala. Educ. Ass'n v. State Superintendent ofEduc., 746 F.3d 1135, 1140 (11th Cir. 2014) (reversing district court's grant of a preliminary injunctionon vagueness grounds because “[s]ome of [the challengers'] conduct indisputably falls within the [a]ct'sdefinition of political activity, and therefore the challengers cannot bring a facial challenge arguing thebased on other applications"); J&B Social Club, No. 1, Inc. v. City of Mobile, 920 F. Supp.1241, 1247 (S.D. Ala. 1996) (“As for the plaintiffs' claim of facial vagueness, the ordinance clearly isnot vague in all of its applications. There is no question that it prohibits topless female dancing in a barsuch as the one owned and operated by the plaintiffs." (emphasis added)).term vagueSimilarly, in our case, the Plaintiffs concede—in fact, they insist—that Section 10 prohibits atleast some of their conduct. See, e.g., Reply at 7 (“Defendants bizarrely suggest that Section 10 only20

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 21 of 40But Section 10‘indirectly” ‘discourage[s]' undocumented immigrants ‘from entering the State.’flatly prohibits their transport into the state, and criminalizes providing it."). We thus cannot agreethat persons of reasonable intelligence would be unable to derive a “core meaning” from Section 10.See Motion to Proceed Anonymously at 1 (“Plaintiffs bring this lawsuit challenging a law that willcriminalize their families' and friends' travel into Florida[.]"). The Plaintiffs, in short, haven't shownthat they're likely to succeed on the merits of their due-process claim.b. PreemptionThe Plaintiffs' preemption arguments are far stronger. As the Plaintiffs see it, “the EleventhCircuit has squarely held, as a matter of both field and conflict preemption, that states cannot regulatethe transport of immigrants, because federal law fully occupies that field and displaces evencomplementary state regulation. That clear holding is fatal to Section 10 and [is] sufficient to resolvethis case." Memorandum at 9. In their view, because the “federal transport and harboring regime []contained in 8 U.S.C. § 1324. . . . establish[es] ‘an overwhelmingly dominant federal interest in thefield of ‘entry, movement, and residence of aliens in the United States,” id. at 9-10 (quoting Ga.Latino, 691 F.3d at 1264), “field preemption 'foreclose[s] any state regulation in the area," id. at 10(quoting Arizona, 567 U.S. at 401).222There are three ways in which federal law can preempt state law. First, “express ‘pre-emptionoccurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law.""Nat'l Ass'n of State Util. Consumer Advos. v. FCC, 457 F.3d 1238, 1252 (11th Cir. 2006) (quoting La. Pub.Serv. Comm'n v. FCC, 476 U.S. 355, 368 (1986)). Second, “conflict preemption occurs when there isoutright or actual conflict between federal and state law."" Ibid. (quoting La. Pub. Serv. Comm'n, 476U.S. at 368). Third, "[f]ield preemption occurs when a congressional legislative scheme is 'so pervasiveas to make the reasonable inference that Congress left no room for the states to supplement it.”Browning, 522 F.3d at 1167 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). But, as21

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 22 of 40the Supreme Court has explained, “the categories of preemption are not rigidly distinct,” and “fieldpre-emption may be understood as a species of conflict pre-emption[.]" Crosby v. Nat'l Foreign TradeCouncil, 530 U.S. 363, 372 n.6 (2000). In other words, a state law that's field preempted necessarily“conflicts with Congress' intent (either express or plainly implied) to exclude state regulation.” Englishv. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990). We'll therefore address the Plaintiffs' arguments on fieldand conflict preemption together.The Eleventh Circuit has been clear that, through the Immigration and Nationality Act("INA"), Congress “provided a full set of standards to govern the unlawful transport and movementof aliens.” Ga. Latino, 691 F.3d at 1264 (cleaned up). In our Circuit's view, therefore, “a state's attemptto intrude into this area is prohibited because Congress has adopted a calibrated framework within theINA to address this issue.” Ibid. As the Circuit has explained (reviewing a Georgia law that placedprohibitions on transporting undocumented immigrants):[S]ection 7 [of the Georgia law] creates three distinct state criminal violations: (1)transporting or moving an illegal alien, O.C.G.A. § 16–11–200(b); (2) concealing orharboring an illegal alien, id. § 16–11–201(b); and (3) inducing an illegal alien to enterthe state of Georgia, id. § 16–11–202(b). Each of these offenses requires that theaccused also be engaged in another criminal activity, and each further requires that theaccused know of the illegal status of the subject. The State Officials argue that thedistrict court erred in finding that section 7 is preempted by the criminal provisions ofthe INA, particularly 8 U.S.C. § 1324. We disagree.To determine the intent of Congress, we first look to the text of the relevant federalstatutes. The INA provides a comprehensive framework to penalize thetransportation, concealment, and inducement of unlawfully present aliens. Pursuant to8 U.S.C. § 1324(a)(1)(A)(ii)—(iv), it is a federal crime for any person to transport ormove an unlawfully present alien within the United States; to conceal, harbor, or shieldan unlawfully present alien from detection; or to encourage or induce an alien to "cometo, enter, or reside in the United States.” Any person who conspires or aids in thecommission of any of those criminal activities is also punishable. Id. § 1324(a)(1)(A)(v).Section 1324(c) permits local law enforcement officers to arrest for these violations offederal law, but the federal courts maintain exclusive jurisdiction to prosecute for thesecrimes and interpret the boundaries of the federal statute. See id. § 1329. Subsection(d) of § 1324 further dictates evidentiary rules governing prosecution of one of itsenumerated offenses, and subsection (e) goes so far as to mandate a communityoutreach program to "educate the public in the United States and abroad about thepenalties for bringing in and harboring aliens in violation of this section.” Rather than22

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 23 of 40authorizing states to prosecute for these crimes, Congress chose to allow state officialsto arrest for § 1324 crimes, subject to federal prosecution in federal court. See id. SS1324(c), 1329. In the absence of a savings clause permitting state regulation in the field,the inference from these enactments is that the role of the states is limited to arrest forviolations of federal law.We are further convinced that section 7 presents an obstacle to the execution of thefederal statutory scheme and challenges federal supremacy in the realm of immigration.By confining the prosecution of federal immigration crimes to federal court, Congresslimited the power to pursue those cases to the appropriate United States Attorney. See8 U.S.C. § 1329; Arizona, 132 S.Ct. at 2503 (explaining that if the state provision cameinto force, states would have “the power to bring criminal charges against individualsfor violating a federal law even in circ*mstances where federal officials in charge ofthe comprehensive scheme determine that prosecution would frustrate federalpolicies”). Indeed, the State Officers have taken the position that an individual drivingan unlawfully present alien to the supermarket could be prosecuted under section 7and under the similar provisions of the INA … … …. This contention illustrates the StateOfficers' misunderstanding of the nature of federal immigration law and the reach ofstate authority in the realm of immigration-related law enforcement.Id. at 1263–66. In other words, outside of the states' congressionally bestowed authority to makearrests for violations of federal immigration law, the states are "prohibited from enacting concurrentstate legislation in this field of federal concern." United States v. Alabama, 691 F.3d 1269, 1285 (11thCir. 2012). This framework allows the federal government to retain “control over enforcement” ofthe INA and protects the “integrated scheme of regulation created by Congress." Ga. Latino, 691 F.3dat 1266.In Alabama, the Eleventh Circuit examined an Alabama statute that "create[d] state crimes for(1) concealing, harboring, or shielding an unlawfully present alien from detection, or attempting to doso; (2) encouraging or inducing an unlawfully present alien to 'come to or reside in' Alabama; (3)transporting, attempting to transport, or conspiring to transport an unlawfully present alien, includingan alien's conspiracy to be transported; and (4) harboring an unlawfully present alien by entering intoa rental agreement with that alien.” 691 F.3d at 1285. As we've said, citing Georgia Latino, the AlabamaCourt held that "Alabama is prohibited from enacting concurrent state legislation in this field offederal concern.” Id. at 1287.23

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 24 of 40And several other circuits have come out the same way. See Valle del Sol Inc. v. Whiting, 732F.3d 1006, 1025-26 & n.17 (9th Cir. 2013) (holding that an Arizona law that was "virtuallyindistinguishable” from “[t]he Georgia law in [Georgia Latino]” was field preempted because of the“comprehensive nature of § 1324, its place within the INA's larger structure governing the movementand harboring of aliens, and § 1324(c)'s explicit but limited provision for state involvement"); UnitedStates v. South Carolina, 720 F.3d 518, 530–31 (4th Cir. 2013) (“Sections 4(B) and (D) of the Act makeit a state felony to ‘transport, move or attempt to transport' or 'conceal, harbor or shelter' a person'with intent to further that person's unlawful entry into the United States' or to help that person avoidapprehension or detection . . . . We find the Eleventh Circuit's reasoning persuasive. Sections 4(B) and(D) of the Act are field preempted because the vast array of federal laws and regulations on this subject. is so ‘pervasive that Congress left no room for the States to supplement it.' . Furthermore, thesections are conflict preempted because there is a federal interest so dominant that the federal systemwill be assumed to preclude enforcement of state laws on the same subject.” (cleaned up & quotingArizona, 567 U.S. at 399)); Lozano v. City of Hazleton, 724 F.3d 297, 316 (3rd Cir. 2013) (“We agree withthe Eleventh Circuit and other courts that have held that 'the federal government has clearly expressedmore than a "peripheral concern" with the entry, movement, and residence of aliens within the UnitedStates and the breadth of these laws illustrates an overwhelmingly dominant federal interest in thefield." (quoting Ga. Latino, 691 F.3d at 1264)). As the Defendants themselves recognize, the federalcircuit courts have uniformly ruled that “prohibitions on the transportation, harboring, andinducement of unlawfully present aliens” fall into a “preempted field.” Response at 15 (quoting Ga.Latino, 691 F.3d at 1266).Still, the Defendants argue that Section 10 is neither field nor conflict preempted because itregulates a bit more than just the transportation of undocumented immigrants. That's because, in theirview, the phrase "has not been inspected by the Federal Government since his or her unlawful entry24

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 25 of 40from another country" could refer to “alien[s] or citizen[s].” Ibid. In other words, according to theDefendants, "[Section] 787.07 does not regulate aliens, and it does not turn on a person's unlawfulpresence. Rather, whether alien or citizen, legally present or illegally present, individuals may not betransported into Florida unless the federal government has had the opportunity to ‘inspect them.” Id.at 15–16. The Plaintiffs, they add, “present no argument that Congress has exclusively occupied thefield of 'transporting individuals who have not been inspected across state lines."" Id. at 16.We're not persuaded. For one thing, common sense dictates that the category of uninspectedcitizens as opposed to uninspected aliens-covers a relatively small (and statistically insignificant)subset of people. At our preliminary-injunction hearing, the Defendants agreed that this group wouldbe composed of “U.S. citizens” coming back from, say, “the Bahamas with a bunch of people on [a]boat, or drugs.]" Dec. 13, 2023, Hr❜g Tr. at 97:16–19. This is undoubtedly a “miniscule category[.]"Reply at 6. For another, the Supreme Court has made clear that, “[w]here Congress occupies an entirefield, . . . even complementary state regulation is impermissible.” Arizona, 567 U.S. at 401. This isbecause "[f]ield preemption reflects a congressional decision to foreclose any state regulation in thearea, even if it is parallel to federal standards." Ibid. (emphasis added); see also KVUE, Inc. v. Moore, 709F.2d 922, 931 (5th Cir. 1983) (“If preempted, a complementary or supplementary state regulation isas invalid as one directly conflicting with the federal scheme, for preemption forbids state regulationeither to advance or to retard the federal purpose."). In this case, it'd be difficult to argue that Section10 is not at least complementary to the federal immigration scheme: The parties agree that, underEleventh Circuit precedent, states may not enact laws that regulate the “unlawful transport andmovement of aliens," Ga. Latino, 691 F.3d at 1264, and Section 10-by its own terms-regulates the8See Response at 15 ("The first step in evaluating field preemption is to identify a field ... . YetPlaintiffs do not clearly indicate the applicable field. Instead, they cite [Georgia Latino] ad nauseum . . . .In that case,however, the preempted field was 'prohibitions on the transportation, harboring, andinducement of unlawfully present aliens."").25

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 26 of 40"knowing[] and willful[ ] transport[] into this state [of] an individual whom the person knows, orreasonably should know, has entered the United States in violation of law and has not been inspectedby the Federal Government since his or her unlawful entry from another country,” Complaint ¶ 66(quoting FLA. STAT. § 787.07(1)). It's thus preempted under Georgia Latino—even if the Defendantsare right that, in addition to regulating uninspected aliens, the law also targets the small number ofcitizens who might fall within its ambit.As to the Defendants' claim that “[section] 787.07 does not regulate aliens,” Response at 15,the Plaintiffs are right that SB 1718, “[t]he bill that enacted Section 10[,] is titled 'An act relating toimmigration.”” Reply at 7. The day he signed SB 1718, Governor DeSantis announced in a press releasethat "[t]he legislation I signed today gives Florida the most ambitious anti-illegal immigration laws inthe country, fighting back against reckless federal government policies and ensuring the Floridataxpayers are not footing the bill for illegal immigration.” Press Release [ECF No. 30-13] at 9. SenatorBlaise Ingoglia, who sponsored the bill, echoed that sentiment: “Our Southern Border has beendealing with a manmade crisis under the ineptness of President Biden, allowing more than 6.3 millionillegal immigrants to flood our border . . . . Today, under the leadership of Governor Ron DeSantis,Florida made history signing into law the strongest state-led anti-illegal immigration bill ever broughtforth." Ibid. And the Defendants themselves concede that “the statute may have some effect on thetransportation of unauthorized aliens [.]" Response at 16. It therefore stretches credulity for theDefendants to suggest that Section 10 “does not directly regulate the transportation of illegal aliens"and "merely overlaps with federal law in some of its applications [.]" Id. at 17 (emphasis added).In any event, we've found no precedent for the Defendants' view that a party can circumventfield or conflict preemption by marginally expanding a regulation to cover a small, additional categoryof situations (or people). The Defendants, recall, say that, “[w]hile the statute may have some effecton the transportation of unauthorized aliens," it could also affect “citizen[s]" who have not been26

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 27 of 40"inspected" by the federal government. See id. at 15–16. But our courts have routinely rejected similararguments. The state law in Fuentes-Espinoza v. People, for example, provided that a person commits aclass 3 felony “if, for the purpose of assisting another person to enter, remain in, or travel through theUnited States or the state of Colorado in violation of immigration laws, he or she provides or agreesto provide transportation to that person in exchange for money or any other thing of value.” 408 P.3d445, 447 (Colo. 2017). Like our law, this Colorado statute regulated a broader set of people than justundocumented immigrants—viz., anyone who violated the immigration laws. Still, the Supreme Courtof Colorado held, citing Georgia Latino, that the law was preempted by the INA “under the doctrineof field preemption.” Id. at 452. The court reasoned that Congress has “evince[d] [an] intent tomaintain a uniform, federally regulated framework for criminalizing and regulating the transportation,concealment, and inducement of unlawfully present aliens, and this framework is so pervasive that ithas left no room for the states to supplement it.” Id. at 452.Similarly, in Valle del Sol, the Arizona law at issue “swe[pt] more broadly than its federalcounterpart by adding a new category of prohibited activities.” 732 F.3d at 1028. Specifically, theArizona law "criminalize[d] encouraging or inducing an alien to come to or reside in Arizona,” whilethe federal harboring statute, 8 U.S.C. § 1324, “criminalizes encouraging or inducing an alien to cometo or reside in the United States but ( ) does not penalize encouraging or inducing aliens, already inthe United States, to travel from state to state or into any particular state.” Ibid. Nonetheless, the NinthCircuit held that the state law was preempted because, “although it shares some similar goals with 8U.S.C. § 1324, it ‘interfere[s] with the careful balance struck by Congress with respect to' the harboringof unauthorized aliens.” Id. at 1026 (quoting Arizona, 567 U.S. at 406); see also id. at 1027 (“[The Arizonalaw] conflicts with the federal scheme by divesting federal authorities of the exclusive power toprosecute these crimes.. As the Eleventh Circuit explained: [I]nterpretation of [state harboring]crimes by state courts and enforcement by state prosecutors unconstrained by federal law threaten the27

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 28 of 40uniform application of the INA."" (quoting Ga. Latino, 691 F.3d at 1266)). We agree. As these casesdemonstrate, broadening a state law to complement (or to extend just beyond) the federalimmigration-transport scheme doesn't shield that state law from field preemption.Like the laws in Georgia Latino, Alabama, Valle del Sol, South Carolina, Lozano, and Fuentes-Espinoza, Section 10 is both field and conflict preempted. Congress has established an"overwhelmingly dominant federal interest in the field” of unlawfully transporting aliens. Ga. Latino,691 F.3d at 1264. And our Circuit has said unambiguously that only the federal government—throughthe INA- -can regulate the unlawful transportation of aliens within that field. See ibid. ("Like the federalregistration scheme addressed in Arizona, Congress has provided a ‘full set of standards' to govern theunlawful transport and movement of aliens The INA comprehensively addresses criminalpenalties for these actions undertaken within the borders of the United States, and a state's attemptto intrude into this area is prohibited because Congress has adopted a calibrated framework within theINA to address this issue." (quoting Arizona, 567 U.S. at 401)). Under Section 10, however, “anindividual driving an unlawfully present alien to the supermarket could be prosecuted" by the Officeof Statewide Prosecution and the state attorney-a scenario that, in the words of the Georgia LatinoCourt, "illustrate[d] the State Officers' misunderstanding of the nature of federal immigration law andthe reach of state authority in the realm of immigration-related law enforcement.” Id. at 1265–66. Andthe Defendants' chief objection—that Section 10 might also apply to a tiny swathe of U.S. citizens whohaven't been "inspected" after an illegal border crossing—cannot override the Eleventh Circuit'sclearly stated view that "criminal acts of harboring and transporting unlawfully present aliensconstitute an impermissible 'complement' to the INA that is inconsistent with Congress's objective ofcreating a comprehensive scheme governing the movement of aliens within the United States.” Id. at1266; see also Hines v. Davidowitz, 312 U.S. 52, 66–67 (1941) (“[W]here the federal government, in theexercise of its superior authority in [a] field, has enacted a complete scheme of regulation, . . . states28

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 29 of 40cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement,the federal law, or enforce additional or auxiliary regulations.").By making it a felony to transport into Florida someone who “has not been inspected by theFederal Government since his or her unlawful entry,” Section 10 extends beyond the state's authorityto make arrests for violations of federal immigration law and, in so doing, intrudes into territory that'spreempted. See Ga. Latino, 691 F.3d at 1264 (“In the absence of a savings clause permitting stateregulation in the field, the inference from these enactments is that the role of the states is limited toarrest for violations of federal law [governing the transport or movement of an unlawfully presentalien within the United States].”); Lozano, 724 F.3d at 316-17 (rejecting the argument that, “byauthorizing state and local officials to arrest individuals guilty of harboring, see 8 U.S.C. § 1324(c),Congress specifically invited state and local governments into this field"). For all these reasons, wehold that the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemptionclaims.'III.Irreparable InjuryFor the second prong of the preliminary-injunction test, the party seeking the injunction mustshow that "irreparable injury will be suffered unless the injunction issues [.]" Schiavo, 403 F.3d at 1231.The individual Plaintiffs contend that, if we don't enjoin Section 10, they will “suffer irreparable harmby being placed at immediate risk of arrest, detention, and prosecution[.]” Memorandum at 20. Theyadd that some "[i]ndividual Plaintiffs and FWAF members transport into Florida family members, co-workers, and others who entered [the United States] unlawfully and who likely have not been9Because we've found that the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemption claims, we needn't reach the Plaintiffs' other preemption arguments―viz., that Section 10is preempted because it conflicts with the “federal removal scheme,” Memorandum at 12, because it"impermissibly creates a novel immigration classification," id. at 13, or because it "disrupts theadjudication of immigration applications and removal proceedings,” id. at 16.29

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 30 of 40‘inspected' for purposes of Section 10, in possible violation of the law.... Under the broad languageof Section 10, Plaintiffs and FWAF members face arrest, prosecution, mandatory detention, and familyThe threat of pre-trial detention and subsequent felony prosecution is severe harmseparationthat cannot be undone." Ibid.Having reviewed the declarations of the three individual Plaintiffs who have established theirstanding to sue, we think that these three Plaintiffs have also shown that, absent an injunction, theywould suffer irreparable injury. Ms. Mendoza, for instance, attests that she is willing to continueengaging in illegal conduct—thus risking actual or imminent criminal prosecution:Transporting individuals with various immigration statuses, including individuals whohave never had any contact with immigration authorities, is a key part of my job[.]Currently, I spend about 30% of my time assisting people with transportation. In thepast ten years, I have driven individuals into Florida dozens of times. Thesetransportation services include taking people in my personal vehicle from Georgia toFlorida for various reasons, including to see medical specialists in Jacksonville, Florida.I also personally transport [undocumented immigrants] to appointments with [USCIS]for fingerprinting and other services. Some immigrants in my nonprofit's area aredirected to attend USCIS appointments in Jacksonville, even though they reside inGeorgia . . . .One of the women in my community was released from the hospital a week or so agoafter being admitted for renal failure. Her stomach had been getting bloated and shehad no idea how close to death she was. She is a middle-aged undocumented womanfrom the state of Yucatan, Mexico . . . . I am 100% willing to transport her to Floridaor anywhere else she needs to go to get the care she needs. SB 1718, however, hasmade me extremely anxious that my efforts to help this woman may result insignificant jail time and prosecution for me.Mendoza Decl. ¶¶ 5–6, 11, 14.Ms. Mendoza is likely to suffer irreparable injury because “[t]he threat of criminal prosecution. constitutes irreparable harm” for purposes of a preliminary injunction. ABC Charters, Inc. v. Bronson,591 F. Supp. 2d 1272, 1309 (S.D. Fla. 2008) (Gold, J.); see also Ga. Latino, 691 F.3d at 1269 (affirmingthe "district court's conclusion that [p]laintiffs have met their burden to enjoin enforcement of section7" because the "[p]laintiffs are under the threat of state prosecution for crimes that conflict with30

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 31 of 40federal law, and . . . enforcement of a state law at odds with the federal immigration scheme is neitherbenign nor equitable”); Valle del Sol, 732 F.3d at 1029 (holding that the individual plaintiff had“established a likelihood of irreparable harm” by “demonstrat[ing] a credible threat of prosecutionunder the statute”). So too here. Ms. Mendoza has established, through a sworn filing, that she facesa kind of Hobson's choice-between engaging in conduct she views as unconstitutionally proscribed(and facing a credible threat of prosecution under Section 10) and refraining from conduct she believesto be lawful. That's sufficient to establish irreparable harm under our precedents.As for Mmes. Aragon and Medrano Rios, their declarations suggest that they're now too afraidto travel in and out of Florida with their undocumented friends or family members—for fear of beingarrested or prosecuted or of having their family members deported. These Plaintiffs allege that Section10 has effectively prevented them from seeing their family members who live outside of Florida,leading to prolonged periods of separation. Ms. Aragon, for instance, says that:I fled to the United States from Nicaragua during the civil war in the 1980s, and Ibecame a U.S. citizen more than twenty years ago. My daughter came to the UnitedStates many years later with my grandson, when he was less than a year old. To thebest of my knowledge, my daughter and grandson crossed the border into the UnitedStates without ever being stopped or processed by immigration agents......I have a niece and other family members who live in Georgia and a very close familyfriend who lives in Washington, D.C.—she is like another daughter to me. I usually goto visit her and her family about every year. My grandson and I traveled to Georgiafor a visit with family last October, and we were planning to go again this year . . . .Because we are afraid of everything [that] could happen as a result of the new law, mygrandson and I had to give up our trip to Georgia this year. I do not know when wewill be able to go back to visit our family. Now that the transport law is in place, I amafraid to travel with my grandson. If I am traveling with him, I could be stopped andarrested for breaking the new transport law if the police believe I am transporting him.That idea fills me with panic. It also makes me feel sad to be separated from my familyand friends who live in other states. I am getting older, and time with my loved onesis important. I also do not want to travel by myself, because I don't want to leave mygrandson alone now. I want my grandson to have a relationship with his other familymembers, and I feel terrible that his world is limited because of the transport law.Aragon Decl. ¶¶ 4, 7. And Ms. Medrano Rios similarly avers that:31

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 32 of 40I had planned to travel with my family to Texas, so that my children could visit theircousins and so that I could spend time with my brother and sister. Now, though, wecan't take this trip. It is just too big a risk for my children and me. [My daughter] doesnot have an immigration case, and does not have any immigration status, even thoughshe has applied for DACA. So, I am scared that she is not allowed to be brought backinto Florida if we leave. And I don't know whether I can be driven back into Floridaeither, since I don't have any official status.I feel trapped not being able to take this trip, and I hated having to tell my family thatit won't happen. It made me feel awful because finally after 6 years of being apart, myfamily was so close to finally being together again.Medrano Rios Decl. ¶¶ 8, 10–11.Mmes. Aragon and Medrano Rios have thus likewise demonstrated irreparable harm in theform of "indefinite family separation,” which many courts around the country have “recognized . . .as a form of irreparable injury.” Make the Road N.Y. v. Pompeo, 475 F. Supp. 3d 232, 268 (S.D.N.Y.2020); see also Milligan v. Pompeo, 502 F. Supp. 3d 302, 321 (D.D.C. 2020) (“[S]eparation from familymembers is an important irreparable harm factor.” (cleaned up)); Leiva-Perez v. Holder, 640 F.3d 962,969-70 (9th Cir. 2011) (same); Palacios-Hernandez v. Meade, 2020 WL 13550207, at *4 (S.D. Fla. Apr. 8,2020) (Smith, J.) (finding that the irreparable-injury factor weighed in favor of the plaintiffs "becauseof the prolonged separation of [the individual plaintiff] from his family”). Of course, if these Plaintiffswere to ignore Section 10 and visit their family members, they would then risk arrest and prosecutionunder the statute.The Farmworker Association will also suffer irreparable harm if Section 10 is not enjoined.Courts frequently find that organizational plaintiffs will suffer irreparable harm where these plaintiffsshow “ongoing harms to their organizational missions as a result of [a] statute.” Valle del Sol, 732 F.3dat 1029; see also Ga. Coal. for People's Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018)(holding that the organizational plaintiffs “will also suffer irreparable injury distinct from the injuriesof eligible voters" because their “organizational missions, including registration and mobilizationefforts, will continue to be frustrated and organization resources will be diverted to assist with the32

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 33 of 40citizenship mismatch issue”); League of Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314, 1339 (S.D.Fla. 2006) (Seitz, J.) (finding irreparable harm in part because the challenged statute forced theorganizational plaintiffs to “halt[] or significantly scale[] back their voter registration operations”).Here, the Plaintiffs argue that Section 10 has “diverted . . . scarce resources" away from theFarmworker Association's “regular, core activities,” Memorandum at 22, and that it has impeded theAssociation's mission of providing transportation to migrant workers who “travel with the seasons toharvest crops, . . . back and forth between Florida, Georgia, and Alabama, crossing back into Floridamultiple times per year,” Complaint ¶ 17. In a Declaration, the General Coordinator of theFarmworker Association tells us that "FWAF has been inundated with questions and requests forassistance relating to travel between Florida, Georgia, and Alabama," forcing staff to "devote[]additional time outside of their regular activities and objectives to training existing volunteers and newvolunteers on Section 10 and its impact on our members and the broader immigrant community.”Xiuhtecutli Decl. ¶¶ 32–33. “Staff have been forced to spend time on calls rather than their normalwork, which has resulted in delayed Medicaid applications, food stamps applications, and applicationsfor U.S. Department of Agriculture Farm and Food Worker Relief.” Id. ¶ 35. Mr. Xiuhtecutliconcludes, based on his experience, that the “impact of Section 10, including arrests and detentions,will continue to divert FWAF's resources from its core mission of strengthening farmworkercommunities through its different programs and normal organizing work.” Id. ¶ 38.Trying to parry, the Defendants say that the "Association has not explained how § 787.07forc[es] the organization to divert resources to counteract' illegal acts." Response at 7 (quoting Browning,522 F.3d at 1165). The Defendants also argue that the Association hasn't “show[n] ‘what harm [it] isseeking to counteract and how its diversion of resources is aimed at preventing that harm.” Id. at 8(quoting Cousins v. Sch. Bd. of Orange Cnty., 2023 WL 5836463, at *6 (M.D. Fla. Aug. 16, 2023) (Berger,J.)). But the Association has described that harm. For example, Mr. Xiuhtecutli declared that:33

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 34 of 40Approximately 600 families that include dues-paying FWAF members left Florida atthe end of the harvest season in May 2023. Most of these members are from theImmokalee and Fellsmere areas, who travel back and forth between Florida andnorthern states based on the growing season. Typically, these members would returnin September 2023 for the squash, zucchini, chili pepper, tomatoes, lettuce, and othervegetable planting season. However, based on .. our organizers' conversations withmembers, I anticipate that approximately 100 member families will not return if SB1718 remains in effect, because they do not want to risk a felony charge. These samemember families are unlikely to return for the vegetable harvesting seasons in theFlorida winter and spring. FWAF will lose many of these members, the dues fromthose members, and the critical in-kind donations from those members that help runFWAF's programs.Xiuhtecutli Decl. ¶ 39. He also explains that the Association specifically diverted resources to preventthese harms, noting that staff has devoted additional time-outside of their regular activities—to provide"information and communications to [the Association's] members," who have “inundated [theAssociation] with questions and requests for assistance relating to travel between Florida, Georgia,and Alabama." Id. ¶¶ 32, 34; see also id. ¶ 34 ("Since SB 1718 passed, and even before Section 10 wentinto effect, FWAF began providing Know Your Rights presentations to specifically prepare for andeducate our members on the impacts of SB 1718, including Section 10. FWAF has conducted twelveKnow Your Rights presentations thus far.”). Finally, on the Defendants' claim that the Associationhasn't been forced to divert its resources, see Response at 7, we think this argument parses the matter abit too finely. As the Eleventh Circuit held in Georgia Latino, “an organizational plaintiff suffer[s]cognizable injury when it [is] forced to divert resources from its regular activities to educate and assistaffected individuals in complying with the challenged statute.” 691 F.3d at 1260 (cleaned up). That'sprecisely what Mr. Xiuhtecutli alleges in his Declaration. See, e.g., Xiuhtecutli Decl. ¶ 35 (“Staff havebeen forced to spend time on calls rather than their normal work, which has resulted in delayed Medicaidapplications, food stamps applications, and applications for U.S. Department of Agriculture Farm andFood Worker Relief." (emphasis added)); id. ¶ 11.b. (“Until 2021, FWAF had three communitygardens: one in Florida City (near our Homestead office), one in Pierson, and one in Apopka. In 2021,Florida City sold the land for our garden, forcing us to move many of the plantings to our smaller34

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 35 of 40office gardens. This year, because we were forced to respond to the crisis brought on by SB 1718, andin particular concerns from our members about Section 10, we have struggled to maintain our gardenin Pierson." (emphasis added)).The Defendants also note that SB 1718 contains provisions outside of Section 10, and theycontend that "many of the Association's allegations tie its diversion to the entirety of SB 1718, notmerely" Section 10. Response at 8. They take issue, for example, with Mr. Xiuhtecutli's attestation thatthe Association has begun providing “Know Your Rights presentations... on the impacts of SB 1718,including [Section 10].” Ibid. (quoting Xiuhtecutli Decl. ¶ 34). They also point to Mr. Xiuhtecutli'sclaims that the Association has “held member meetings regarding SB 1718, including Section 10,” andthat “staff received more calls each day since SB 1718 passed than we received prior to its passage."Ibid. (quoting Xiuhtecutli Decl. ¶ 35). We're not so troubled by these passages. There's no questionthat Mr. Xiuhtecutli's Declaration is focused specifically on the impact of Section 10. See, e.g., XiuhtecutliDecl. ¶ 30 ("Not only are individual FWAF members harmed by Section 10, but FWAF as anorganization has and will continue to suffer harm because of Section 10.”); id. ¶ 36 ("The increase inFWAF staff's time and focus on Section 10 is driven by the needs of FWAF's membership."); id. ¶ 37("FWAF lacks the funds to increase its staffing to educate the community on Section 10 and itsconsequences. FWAF must now divert even more resources to fundraising in an attempt to addressthis deficit.”). The vast majority of the references by Xiuhtecutli (a non-lawyer) to SB 1718 as a wholeeither use the term as a metonym for Section 10, see id. ¶ 39 (“I anticipate that approximately 100member families will not return if SB 1718 remains in effect, because they do not want to risk a felonycharge.”), or expressly cabin the language to “Section 10 in particular,” id. ¶ 11(c). We therefore findthat the Farmworker Association will suffer irreparable harm as an organization if Section 10 of SB1718 is not enjoined.5535

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 36 of 40Outside of their standing arguments, the Defendants advance just one argument for theirposition that the Plaintiffs aren't suffering irreparable injury: The Plaintiffs (the Defendants say) movedtoo slowly to “properly serve the pending motion on the State Defendants”—and this delay (theDefendants contend) suggests that “they are not seriously concerned about irreparable harm.”Response at 18-19. We disagree. Governor DeSantis signed SB 1718 into law on May 10, 2023; itwent into effect in early July; and the Plaintiffs filed this lawsuit on July 17, 2023. See generallyComplaint. All the Defendants were served by August 22, 2023. See generally Docket. While it's truethat a plaintiff concerned about irreparable harm “would and should act swiftly to protect itself,” CarBody Lab Inc. v. Lithia Motors, Inc., 2021 WL 2652774, at *10 (S.D. Fla. June 21, 2021) (Goodman, Mag.J.), report and recommendation adopted, 2021 WL 3404040 (S.D. Fla. Aug. 4, 2021) (Moreno, J.), we don'tthink a week or two between a statute's enactment and the filing of the lawsuit challenging itconstitutes unreasonable delay. And, given that the Plaintiffs filed their Motion for PreliminaryInjunction on August 24, 2023—just two days after the last Defendant was served—we don't thinkthey took too long to serve their motion either.IV.Equitable FactorsThe final two factors of the preliminary-injunction test are whether the “threatened injuryoutweighs the harm the relief would inflict on the non-movant" and whether the “entry of th[at] reliefwould serve the public interest.” Schiavo, 403 F.3d at 1225–26. These two factors “merge when, ashere, the government is the opposing party.” Gonzalez v. Governor of Ga., 978 F.3d 1266, 1271 (11thCir. 2020) (cleaned up). The Defendants imply that an injunction against Section 10 will harm Florida's“interest in ensuring individuals in its territory are inspected[.]" Response at 19. Such an injunction(the Defendants fear) would prevent the state from identifying “drug traffickers [who] are successfullysmuggling mass quantities of deadly illicit fentanyl past federal agents, wreaking havoc on Florida'scitizens." Ibid. (cleaned up). We're unmoved.36

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 37 of 40For one thing, the Defendants never actually argue that their interest in rooting out drugtraffickers outweighs the threatened injury to the Plaintiffs. They simply say that "Florida's interest inensuring individuals in its territory are inspected is certainly legitimate.” Ibid. But even a “legitimate”governmental interest can be outweighed by the harm the challenged statute imposes on the Plaintiffsand the public. See, e.g., Ron Grp., LLC v. Azar, 2021 WL 5576616, at *7 (M.D. Ala. Nov. 29, 2021)(holding that the "balance of harms weigh[ed] in favor of granting the preliminary injunction,” eventhough “the state and the public certainly have an interest” in recouping a portion of the plaintiff'sMedicaid claims); Deferio v. City of Syracuse, 193 F. Supp. 3d 119, 131 (N.D.N.Y. 2016) (finding that the“hardship faced by [p]laintiff”—“the loss of his right to demonstrate in a traditional public forum”-outweighed the city's interest in “maintaining peace and order in the community, preventing violence,and avoiding congestion," which are "[u]ndoubtedly . . . legitimate governmental interests" (cleanedup)).For another, we've already determined that the Plaintiffs are likely to succeed on the merits oftheir preemption claim, and a state “has ‘no legitimate interest' in enforcing an unconstitutional law.”Honeyfund.com Inc. v. Governor, 94 F.4th 1272, 1283 (11th Cir. 2024) (quoting KH Outdoor, LLC v. City ofTrussville, 458 F.3d 1261, 1271–72 (11th Cir. 2006)); see also Odebrecht Constr., Inc. v. Sec'y, Fla. Dep't ofTransp., 715 F.3d 1268, 1290 (11th Cir. 2013) (“[T]he State's alleged harm is all the more ephemeralbecause the public has no interest in the enforcement of what is very likely an unconstitutionalstatute."); Ga. Latino, 691 F.3d at 1269 (“[E]nforcement of a state law at odds with the federalimmigration scheme is neither benign nor equitable.”); Alabama, 691 F.3d at 1301 (“[W]e discern noharm from the state's nonenforcement of invalid legislation.”). In other words, if a state law ispreempted, then the state can suffer no harm from a court order that enjoins that law. Indeed, “[t]heUnited States suffers injury when its valid laws in a domain of federal authority are undermined byimpermissible state regulations.” Ibid. In this case, any harm the state may suffer from an injunction is37

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 38 of 40outweighed by the harm Section 10 poses both to the Plaintiffs and to the United States, which has theultimate interest in protecting federal supremacy in the realm of immigration.The Defendants proffer one final argument on the equities: that the “Plaintiffs come to thisCourt with unclean hands.” Response at 19. The Supreme Court has long adhered to the age-oldmaxim that “he who comes into equity must come with clean hands." Precision Instrument Mfg. Co. v.Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945). The Defendants' theory is that the Plaintiffs haveunclean hands because their goal in requesting this preliminary injunction is to facilitate “illegalconduct such as driving without a license, working without authorization, and avoiding detection forcriminal illegal entry." Response at 19. But this argument—alluring at first glance—fails on closerinspection because the Defendants haven't met the elements of the unclean-hands defense. “To assertan unclean hands defense,” after all, “a defendant must show that (1) the plaintiff's wrongdoing isdirectly related to the claim, and (2) the defendant was personally injured by the wrongdoing.” Baileyv. TitleMax of Ga., Inc., 776 F.3d 797, 801 (11th Cir. 2015). The party seeking equitable relief must alsohave committed an “unconscionable act.” Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245(1933).The Defendants never argue that all the Plaintiffs—some of whom are U.S. citizens—areengaged in wrongdoing. Ms. Mendoza, for instance, is a “U.S. citizen” who “ha[s] been a resident ofGeorgia for nearly forty years." Mendoza Decl. ¶ 2. The Defendants never suggest that Ms. Mendozais driving without a license, working without authorization, or avoiding detection for criminal illegalentry. See generally Response. Nor do the Defendants allege that they were “personally injured” by anyof the Plaintiffs' wrongdoing—or that the Plaintiffs' wrongful conduct (e.g., driving without a licenseor working without authorization) comes anywhere near constituting an “unconscionable act.” Wherethe party invoking the unclean-hands doctrine fails to establish a “close nexus” between "the'unconscionable act' and the pending issue,” the court “cannot apply unclean hands against [the]38

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 39 of 40[p]laintiffs." Stewart v. Hooters of Am., Inc., 2007 WL 1752843, at *2 (M.D. Fla. June 18, 2007)(Kovachevich, J.).*In a Notice of Supplemental Authority [ECF No. 97], the Plaintiffs "inform the Court of adecision. . . by the Fifth Circuit, holding that a Texas immigration law is likely preempted.” Id. at 1.In United States v. Texas, the Fifth Circuit held that SB 4—a Texas statute prohibiting noncitizens fromillegally entering or reentering the state—was “likely field preempted,” affirming the district court'sconclusion that “the federal government has both a dominant interest and a pervasive regulatoryframework to control immigration into the United States, precluding state regulation in the area.” 97F.4th 268, 278, 288 (5th Cir. 2024). That holding, of course, is consistent with our Circuit's decisionin Georgia Latino—and, by extension, with our decision today. In dissent, however, Judge Oldhamcautioned that "[t]he Supreme Court has never extended field preemption to any part of theimmigration laws beyond alien registration." Id. at 298 (Oldham, J., dissenting). Judge Oldham maywell be right: The Supreme Court, after all, seems never to have squarely held that the INA'sframework for regulating the transportation, concealment, or harboring of aliens preempts the entirefield. And we're sympathetic to Judge Oldham's admonition against “extend[ing] field preemptionbeyond the INA's alien-registration provisions." Ibid.Without express guidance from the Supreme Court, however, we remain bound by thepronouncements of our Circuit, which has held that the “unlawful transport and movement of aliens"is a fully preempted field. Ga. Latino, 691 F.3d at 1264; see also United States v. Files, 63 F.4th 920, 923(11th Cir. 2023) (“Under our [Circuit's] prior-panel-precedent rule, an earlier panel's holding iscontrolling 'unless and until it is overruled or undermined to the point of abrogation by the SupremeCourt or by this court sitting en banc.” (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008))); NLRB v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Unit A Apr. 1981) (“Without a clearly39

Case 1:23-cv-22655-RKA Document 99 Entered on FLSD Docket 05/22/2024 Page 40 of 40contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision ofa prior panel of this court[.]" (emphasis added)). In our Circuit's view, “[g]iven the federal primacy inthe field of enforcing prohibitions on the transportation, harboring, and inducement of unlawfullypresent aliens, the prospect of fifty individual attempts to regulate immigration-related matterscautions against permitting states to intrude into this area of dominant federal concern." Ga. Latino,691 F.3d at 1266. Bound by Eleventh Circuit precedent, we hold that the Plaintiffs are likely to prevailon their claim that Section 10 of SB 1718 is preempted by federal law-and that they have satisfiedeach of the other elements of their preliminary-injunction request.CONCLUSIONWe therefore ORDER and ADJUDGE as follows:1. The Motion for Preliminary Injunction [ECF No. 30] is GRANTED.2. FLA. STAT. § 787.07 is PRELIMINARILY ENJOINED.3. The Defendants must take no steps to enforce FLA. STAT. § 787.07 until otherwise ordered.This preliminary injunction binds the Defendants and their officers, agents, servants,employees, and attorneys—and others in active concert or participation with them—whor*ceive actual notice of this injunction by personal service or otherwise.DONE AND ORDERED in the Southern District of Florida on May 22, 2024.CC:counsel of record40ROY K. ALTMANUNITED STATES DISTRICT JUDGE