Full opinion text
OPINION PFAELZER, District Judge. Proposition 187 is an initiative measure which was submitted to the voters of the State of California in the November 8, 1994 general election. It was passed by a vote of 59% to 41% and became effective the following day. The stated purpose of Proposition 187 is to “provide for cooperation between [the] agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California.” Prop. 187, § 1. The initiative’s provisions require law enforcement, social services, health care and public education personnel to (i) verify the immigration status of persons with whom they come in contact; (ii) notify certain defined persons of their immigration status; (in) report those persons to state and federal officials; and (iv) deny those persons social services, health care, and education. After the initiative was passed, several actions challenging the constitutionality of Proposition 187 were commenced in state and federal courts in California. Ultimately, five actions filed in the United States District Court were consolidated in this Court for purposes of motions, hearings, petitions and trial (collectively, the “consolidated actions”)., The plaintiffs in the consolidated actions have brought suit for declaratory and injunc-tive relief seeking to bar California Governor Pete Wilson (“Wilson”), Attorney General Dan Lungren (“Lungren”), and other state actors (collectively, defendants) from enforcing the provisions of Proposition 187. On November 16, 1994, the Court entered a temporary restraining order enjoining the implementation of sections 4, 5, 6, 7 and 9 of the initiative. On December 14, 1995, the Court granted plaintiffs’ motions for preliminary injunction, enjoining the implementation and enforcement of those sections. On May 1, 1995, the League of United Latin American Citizens (“LULAC”) and Gregorio T. plaintiffs brought motions for summary judgment in which they contend that Proposition 187 is unconstitutional on the sole ground that the initiative is preempted by the federal government’s exclusive constitutional authority over the regulation of immigration, Congress’ exercise of that powr er through the Immigration and Nationality Act (“INA”), and other federal statutes.’ Defendants oppose the LULAC and Gregorio T. motions on the grounds that Proposition 187 is not preempted and, alternatively, that if any portion of the initiative is preempted, the remaining portions are valid and must be upheld. The Court grants in part and denies in part the motions for summary judgment in accordance with the conclusions reached below. Because the Court’s ruling with respect to these motions does not dispose of this case in its entirety, the preliminary injunction shall remain in effect until further order of the Court. I. Purpose and Effect of Proposition 187 Proposition 187 consists of ten sections: a preamble (section 1), a section pertaining to the amendment and severability of the initiative (section 10) and eight substantive sections (sections 2-9). Within the eight substantive sections of the initiative, there are the following five types of provisions: (1) provisions which require state officials to verify or determine the immigration status of arrestees, applicants for social services and health care, and public school students and their parents, by either classifying persons based on state-created categories of immigration status (the “classification” provisions) or verifying immigration status by ref-erenee to federal immigration laws (the “remaining verification” provisions) (Prop. 187 §§ 4(b), 5(b), (c); 6(b), (c); 7(a)-(e); 8(a)-(c)); (2) provisions which require state officials to notify individuals that they are apparently present in the United States unlawfully and that they must “either obtain legal status or leave the United States” (the “notification” provisions) (Prop. 187 §§ 4(b)(2); 5(c)(2); 6(c)(2)); (3) provisions which require state agencies to report immigration status information to state and federal authorities, and to cooperate with the INS regarding persons whose immigration status is suspect (contained in Sections 4-9) (the “cooperation/reporting” provisions) (Prop.. 187 §§ 4(b)(3); 5(c)(3); 6(e)(3); 7(e); 8(c); 9); (4) provisions which require facilities to deny social services, health care services and public education to individuals based on immigration status (the “benefit denial” provisions) (Prop. 187 §§ 5(b), (e)(1); 6(b), (c)(1); 7(a)-(c); 8(a)-(b)); and (5) criminal penalties for falsifying immigration documents (Prop. 187 §§ 2, 3). The full text of the initiative is set forth in Appendix A. The initiative has a dual purpose and effect. The classification, notification and cooperation/reporting provisions taken together constitute a regulatory scheme designed to deter illegal aliens from entering or remaining in the United States by (1) detecting those persons present in the United States in violation of either state-created criteria for lawful immigration status or federal immigration laws; (2) notifying those persons of their purported unlawful status and ordering them to obtain legal status or leave the country; and (3) maintaining a system of reporting and cooperation between state and federal agencies to effect the removal of those persons. These provisions cannot be read except as a regulatory scheme; and indeed, defendants have not seriously urged any other reading. While the benefits denial provisions also have the purpose of deterring illegal aliens from entering or remaining in the United States, and arguably may be viewed as part of the same regulatory scheme, they have the additional purpose of forbidding the use of public funds to provide social services, health care and education to persons deemed to be present in the United States illegally. II. Severability of the Initiative In determining the validity of Proposition 187, the Court is mindful of its obligation to uphold the initiative to the fullest extent possible. California law holds that “all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient.” Legislature v. Eu, 54 Cal.3d 492, 501, 286 Cal.Rptr. 283, 287, 816 P.2d 1309, 1313 (1991). Initiatives “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” Id. A finding that a section, subsection or subpart of Proposition 187 is preempted by federal law does not end the Court’s inquiry with respect to the validity of the initiative. Rather, a finding that any provision is preempted requires the Court to determine whether that provision is severable from the balance of the initiative so that the remainder may take effect. See Calfarm Ins. Co. v. Deukmejian, 48 Cal.3d 805, 821, 258 Cal.Rptr. 161, 170, 771 P.2d 1247, 1255 (1989) (a holding that a subdivision of an initiative is invalid under the state and federal Constitutions requires a determination as to whether the invalid provision is severable from the initiative). Whether any preempted provision of Proposition 187 is severable from the remainder of the initiative is determined pursuant to California law. National Broiler Council v. Voss, 44 F.3d 740, 748 n. 12 (9th Cir.1994). Section 10 of Proposition 187 provides: In the event that any portion of this act or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect any other provision or application of the act, which can be given effect without the invalid provision or application, and to that end the provisions of this act are severable. “ ‘Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable ... [citation]’” Calfarm, 48 Cal.3d at 821, 258 Cal.Rptr. at 170, 771 P.2d at 1256 (citation omitted). The existence of a severability clause does not conclusively resolve the sev-erability inquiry, however. Rather, “[t]he final determination depends on whether ‘the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... ’ and ‘is not so connected with the rest of the statute as to be inseparable.’” Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 331, 118 Cal.Rptr. 637, 650, 530 P.2d 605, 618 (1975) (citations omitted). California courts have prescribed three criteria by which a reviewing court must assess the severability of invalid provisions of statutes. In order to be severable, “the invalid provision must be grammatically, functionally, and volitionally separable.” Calfarm, 48 Cal.3d at 821, 258 Cal.Rptr. at 170, 771 P.2d at 1256. A provision is grammatically severable if “it constitutes a distinct and separate provision ... which can be removed as a whole without affecting the wording of any other provision,” 48 Cal.3d at 822, 258 Cal.Rptr. at 170, 771 P.2d at 1256, or “where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase or even single words.” Santa Barbara Sch. Dist., 13 Cal.3d at 330, 118 Cal.Rptr. at 649, 530 P.2d at 617. However, where “the defect cannot be cured by excising any word or group- of words, the problem is quite different,” and severance is inappropriate. Santa Barbara Sch. Dist., 13 Cal.3d at 331, 118 Cal.Rptr. at 649, 530 P.2d at 617. A provision is functionally severable if the remaining provisions can “stand on their own,” are capable of “separate enforcement,” People’s Advocate, Inc. v. Superior Court, 181 Cal.App.3d 316, 331-32, 226 Cal.Rptr. 640, 649 (1986), can be “given effect,” Raven v. Deukmejian, 52 Cal.3d 336, 355, 276 Cal.Rptr. 326, 338, 801 P.2d 1077, 1089 (1990), or can “operate ... independently” of the invalid provisions. Eu, 54 Cal.3d at 535, 286 Cal.Rptr. at 310, 816 P.2d at 1336. The remaining provisions must neither be “rendered vague” by the absence of the invalid provisions nor “inextricably connected to them by policy considerations.” People’s Advocate, 181 Cal.App.3d at 332, 226 Cal.Rptr. at 649. Finally, an invalid provision is volitionally severable if the remaining provisions “would likely have been adopted by the people had they foreseen the -invalidity” of the challenged provision, or if the provision was not “so critical to the enactment of [the initiative] that the measure would not have been enacted in its absence.” Calfarm, 48 Cal.3d at 822, 258 Cal.Rptr. at 170, 771 P.2d at 1256. Stated differently, “[t]he test [for volitional severability] is whether it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.” People’s Advocate, 181 Cal.App.3d at 333, 226 Cal.Rptr. at 650. Under the volitional sever-ability test, even if the “ ‘heart of [the] [proposition’ ” is found invalid, if some “ ‘substantive provisions remain,’ ” the invalid part should be severed to enforce the valid provisions and achieve at least “some substantial portion of [the voters’] purpose.” Gerken v. Fair Political Practices Co., 6 Cal.4th 707, 714-15, 25 Cal.Rptr.2d 449, 457, 863 P.2d 694, 702 (1993) (quoting City of Woodlake v. Logan, 230 Cal.App.3d 1058, 1070, 282 Cal.Rptr. 27 (1991); Santa Bar bara Sch. Dist., 13 Cal.3d at 332, 118 Cal.Rptr. at 650, 530 P.2d at 618). Plaintiffs contend that Proposition 187 is not severable because its “pervasive unconstitutionality” leaves nothing to salvage. In addition, they argue that the provisions of the initiative fail to meet the three criteria for severability. They contend, for example, that the classification provisions are not grammatically severable because their absence would render the remaining verification provisions unintelligible. They argue that none of the verification provisions are functionally severable because their absence would render the denial of benefits provisions inoperable. Finally, they argue that the notification and reporting provisions are not volitionally severable from the benefits denial provisions because the intention of the electorate in passing the initiative was to enact a comprehensive scheme to “stop illegal aliens,” and severing the notification and reporting provisions to salvage the benefits denial provisions would frustrate the electorate’s intent. Defendants counter that the initiative meets all three severability tests. That is, defendants argue that the initiative is voli-tionally severable because the severability clause reflects the electorate’s intent to accept the implementation of any valid provisions notwithstanding the invalidation of others, grammatically severable because each section, subsection and subpart of the initiative can be severed from the others without rendering remaining sections unintelligible and functionally severable because each section, subsection and subpart is capable of operating independently from the others. • Before analyzing the severability of each of the challenged provisions of Proposition 187, two general comments on the grammatical and volitional severability of the initiative as a whole are warranted. First, defendants are correct that each of Proposition 187’s ten sections, .and their respective subsections, is a distinct grammatical unit and thus is capable of being severed from the other sections and subsections without affecting the wording of any other section or rendering what remains unintelligible. Accordingly, any section or subsection within Proposition 187 which is found to be invalid is grammatically severable from the remainder of the initiative. Second, defendants are also correct that the initiative is volitionally severable. Plaintiffs’ contention to the contrary — that, for example, the denial of benefits or criminal penalties provisions would not have been adopted had the people foreseen the success of challenges to the reporting and notification provisions — is unavailing. Proposition 187’s declaration of intent explicitly states that a substantial purpose of the initiative is to “prevent illegal aliens in the United States from receiving benefits or public services in the State of California.” § 1. Elsewhere in the initiative it is stated that it is “the intention of the People of California that only citizens of the United States and aliens lawfully admitted ... may receive the benefits” of public social services, health care, and education. §§ 5(a); 6(a); 7(a); 8(a). Further, “[e]ven though ... the full purpose of [the initiative] cannot be realized, it seems eminently reasonable to suppose that those who favor the proposition would be happy to achieve at least some substantial portion of their purpose.” Santa Barbara Sch. Dist., 13 Cal.3d at 331-32, 118 Cal.Rptr. at 650, 530 P.2d at 618. It cannot be disputed that the denial of benefits to “illegal aliens” (in sections 5 through 8) and the criminalization of the manufacture and use of false immigration documents (in sections 2 and 3) serve a significant part of the initiative’s purpose. The Court is therefore convinced that if the voters had' known that some of the ihiti'ative’s provisions would be held invalid, they would have preferred the implementation of the remaining portions, rather than the invalidation of the entire initiative. Any provisions of Proposition 187 found to be invalid are volitionally severable from the remainder. Thus, the provisions of Proposition 187 which are preempted must be severed from the initiative. A copy of the initiative as severed in accordance with this Opinion follows in Appendix B. The Court’s preemption analysis follows. III. Whether Proposition 187 is Preempted Under Federal Law The question of whether provisions of Proposition 187 are preempted by federal law is governed by the Supreme Court’s decision in De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (California statute prohibiting an employer from knowingly employing an alien who is not entitled to lawful residence in the United States held not preempted under federal law). In De Canas, the Supreme Court set forth three tests to be used in determining whether a state statute related to immigration is preempted. Pursuant to De Canas, if a statute fails any one of the three tests, it. is preempted by federal law. Under the first test, the Court must determine whether a state statute is a “regulation of immigration.” Since the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” id. at 354, 96 S.Ct. at 936, any state statute which regulates immigration is “constitutionally proscribed.” Id. at 356, 96 S.Ct. at 936. Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the “clear and manifest purpose of Congress” to effect a “complete ouster of state power—including state power to promulgate laws not in conflict with federal laws” with respect to the subject matter which the statute attempts to regulate. Id. at 357, 96 S.Ct. at 937. In other words, under the second test, a statute is preempted where Congress intended to “occupy the field” which the statute attempts to regulate. Under the third test, a state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 363, 96 S.Ct. at 940 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible. Michigan Canners & Freezers v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963). A. Whether Proposition 187 Constitutes an Impermissible Regulation of Immigration. The federal government possesses the exclusive power to regulate immigration. De Canas, 424 U.S. at 354-355, 96 S.Ct. at 936 (“Power to regulate immigration is unquestionably exclusively a federal power.”) That power derives from the Constitution’s grant to the federal government of the power to “establish a uniform Rule of Naturalization,” U.S. Const. art. I, § 8, el. 4., and to “regulate Commerce with foreign Nations.” Id., cl. 3. In addition, the Supreme Court has held that the federal government’s power to control immigration is inherent in the nation’s sovereignty. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892) (recognizing inherent power of sovereign nation to control its borders); Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 2399, 72 L.Ed.2d 786 (1982) (“Drawing upon [its Article I, section 8] power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its, borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders”); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (“Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments ...’” (citation omitted)). Congress has exercised its power over immigration in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the “INA”). The INA is a comprehensive regulatory scheme which regulates the authorized entry, length of stay, residence status and deportation of aliens. See Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir.1983) (recognizing that the regulatory scheme created by the INA is so pervasive as to be consistent with the exclusive federal power over immigration). The INA delegates enforcement duties to the Immigration and Naturalization Service (“INS”). Because the federal government bears the exclusive responsibility for immigration matters, the states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948). See also Plyler v. Doe, 457 U.S. 202 at 225, 102 S.Ct. 2382 at 2399, 72 L.Ed.2d 786 (1982) (“The States enjoy no power with respect to the classification of aliens.” (citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941))). In De Canas, in reasserting the rule that “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court emphasized that the mere fact that a state statute pertains to aliens does not require a finding that it is preempt-éd: “the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power ...” 424 U.S. at 355, 96 S.Ct. at 936. The Court stressed that “the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” 424 U.S. at 355, 96 S.Ct. at 936. In this case, plaintiffs urge that the entirety of Proposition 187 constitutes a scheme to regulate immigration and is therefore preempted. They assert that the initiative as a whole is a regulation of immigration because it forces state employees to make judgments as to an individual’s immigration status, gives them the power to effectuate removal of immigrants from the country and thereby establishes California’s own INS. Defendants counter that pursuant to De Canas, “regulation of immigration” has a “narrow, technical meaning”; that a facial challenge to this statute requires a “painstaking line-by-line analysis” of the statute; and that such analysis reveals that, standing alone, none of Proposition 187’s individual sections or subsections is “essentially a determination of who should or should not be admitted into the country and on what terms those lawfully admitted can remain here.” De Canas, 424 U.S. at 355, 96 S.Ct. at 936. In De Canas, the statute at issue provided that “[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352 n. 1, 96 S.Ct. at 935; Cal.Lab.Code § 2805. Noting that in that case, California had “sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ - aliens who have no federal right to employment within the country,” the Supreme Court found that the statute did not constitute an immigration regulation, but rather, had only “some purely speculative and indirect impact on immigration.” Id. at 355, 96 S.Ct. at 936. Unlike the statute at issue in De Canas, various of Proposition 187’s provisions have much more than a “purely speculative and indirect impact on immigration.” Indeed, Proposition 187’s verification, notification and cooperation/reporting requirements directly regulate immigration by creating a comprehensive scheme to detect and report the presence and effect the removal of illegal aliens. The scheme requires state agents to question all arrestees, applicants for medical and social services, students, and parents of students about their immigration status; to obtain and examine documents relating to the immigration status of such persons; to identify “suspected” “illegal” immigrants present in California; to report suspected “illegal” immigrants to state and federal authorities; and to instruct people suspected of being in the United States illegally to obtain “legal status” or “leave the country.” Thus, Proposition 187’s scheme has a direct and substantial impact on immigration. Further, certain of Proposition 187’s provisions require state agents to make independent determinations of who is subject to the initiative’s benefits denial, notification and cooperation/reporting provisions and who may lawfully remain in the United States. Unlike the statute at issue in De Canas, which adopted federal standards to determine whether an individual’s immigration status subjected an employer to liability, Proposition 187’s classification provisions create an entirely independent set of criteria by which to classify individuals based on immigration status. See, e.g., Prop. 187 §§ 5(b); 6(b); 7(d). On the other hand, the benefits deni al provisions of sections 5 through 8 may be likened to the statute at issue in De Canas. While the denial of benefits to persons not lawfully present in the United States may indirectly or incidentally affect immigration by causing such persons to leave the state or deterring them from entering California in the first place, such a denial does not amount to a “determination of who should or should not be admitted into the country.” De Canas, 424 U.S. at 355, 96 S.Ct. at 936. Accordingly, the benefits denials provisions are not impermissible regulations of immigration and thus are not preempted under the first De Canas test. It is true, as plaintiffs argue, that benefits denial can only occur after an applicant’s legal status has been “determined.” That is, absent some verification process, eligibility for benefits based on immigration status would be impossible. Moreover, state agents are unqualified — and also unauthorized — to make independent determinations of immigration status. Congress has exclusively reserved that power to the INS and to immigration judges pursuant to the INA. See 8 U.S.C. § 1252(b); 8 C.F.R. § 242.1(a). Indeed, determinations of immigration status by state agents amounts to immigration regulation whether made for the purposes of notifying aliens of their unlawful status and reporting their presence to the INS or for the limited purpose of denying benefits. Defendants contend that because state agents are required to and do make determinations of immigration status in administering benefits under certain federal-state cooperative programs, eligibility for which Congress has conditioned on lawful immigration status, such determinations may also be made by state agents for purposes of denying benefits under Proposition 187. Indeed, the Systematic Alien Verification for Entitlements program (“SAVE”), 42 U.S.C. § 1320b-7, is an existing federal eligibility system used to verify status for various federal-state cooperative programs such as the Aid to Families with Dependent Children (“AFDC”), Food Stamps, Medicaid and Unemployment Compensation programs under which eligibility is dependent on lawful immigration status. See 42 U.S.C. § 1320b-7(b)(1) and 45 C.F.R. § 233.50 (AFDC); 42 U.S.C. §§ 1320b-7(b)(2) and 1396b(v)(l) (Medicaid); 7 U.S.C. § 2015(f) and 42 U.S.C. § 1320b-7(b)(4) (Food Stamps). These benefits programs require state agents to verify immigration status by accessing federal immigration status information through SAVE. In administering state-federal cooperative benefits programs, however, state agents perform a ministerial rather than a discretionary function in verifying immigration status. That is, state agents merely access INS information to verify an applicant’s immigration status — no independent determinations are made and no state-created criteria are applied. A requirement that state agents merely verify immigration status by referring to INS information is much different from a requirement that state agents actually make determinations as to who is, and who is not, deportable under federal law. Permitting state agents, who are untrained — and unauthorized — -under federal law to make immigration status decisions, incurs the risk that inconsistent and inaccurate judgments will be made. On the other hand, requiring state agents simply to verify a person’s status with the INS involves no independent judgment on the part of state officials and ensures uniform results consistent with federal determinations of immigration status. The benefits denial provisions of Proposition 187 may therefore be implemented without impermissibly regulating immigration if state agencies, in verifying eligibility for services and benefits, rely on federal determinations of status made by the INS and accessible through SAVE. Because state regulations implementing Proposition 187 could require state agencies to verify immigration status through reference to INS information and could deny state actors discretion to apply non-federal criteria for benefits eligibility, Proposition 187’s benefits denial provisions are not an impermissible regulation of immigration and therefore withstand scrutiny under the first De Canas test. Accordingly, the classification, notification and cooperation/reporting provisions of the initiative, contained in sections 4 through '9 and in the preamble, which are aimed solely at regulating immigration, are preempted. The provisions which have the permissible purpose and effect of denying state-funded benefits to persons who are unlawfully present in the United States are not a regulation of immigration and therefore survive the first De Canas test. 1. Section 4 Section 4, entitled “Law Enforcement Cooperation with the INS,” requires law enforcement agencies to verify the legal status of every arrestee who is “suspected of being present in the United States in violation of federal immigration laws” by “questioning the person” and “demanding documentation.” § 4(b)(1). Section 4 requires law enforcement agencies to “[n]otify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that ... he or she must either obtain legal status or leave the United States. § 4(b)(2). In addition, section 4 requires the agency to “[n]otify the Attorney General ... and the [INS] of the apparent illegal status.” § 4(b)(3). Finally, section 4 requires law enforcement agencies to “fully cooperate with the [INS] regarding any person who is arrested if he or she is suspected” of being in the United States illegally and prohibits any local governmental agency from limiting such cooperation in any way. § 4(a), (c). Under the first De Canas test, a state may not require its agents to (i) make independent determinations of who is and who is not in this country “in violation of immigration laws;” (ii) report such determinations to state and federal authorities; or (iii) “cooperate” with the INS, solely for the purpose of ensuring that such persons leave the country. The sole stated purpose and the sole effect of section 4 is to impermissibly regulate immigration. Accordingly, section 4 is entirely preempted by federal law under the first De Canos test. 2. Sections 5 and 6 Section 5, entitled “Exclusion of Illegal Aliens from Public Social Services,” and section 6, entitled, “Exclusion of Illegal Aliens from Publicly Funded Health Care,” differ from section 4 in that their stated purpose and effect is not solely to ensure the ouster of persons suspected of being in this country unlawfully. Rather, they have the additional purpose and effect of excluding persons from obtaining püblic social and health care services. To the extent that state actors deny benefits to persons based on determinations by federal'authorities that those individuals are deportable pursuant to federal law, benefits denial is not a direct regulation of immigration, but rather, has only the possible indirect effect of deterring “illegal” aliens from coming to California or causing them to leave. Sections 5 and 6 do not merely deny benefits, however. Both sections contain classification, notification and cooperation/reporting provisions which'are roughly parallel to those contained in section 4. See §§ 5(b), (e)(1), (c)(2); 6(b), (c)(1), (e)(2). These provisions are entirely unnecessary to the implementation of the . benefits denial provisions. That is, without those three sets of provisions, both sections 5 and 6 still require public entities and publicly-funded health care.facilities to deny benefits to persons who are determined to be in the United States in violation of federal law. See §§ 5(c)(1), 6(c)(1). The classification, notification and cooperation/reporting provisions in sections 5 and 6 add nothing to the statute except that they expand Proposition 187’s impermissible scheme of immigration regulation — by requiring agents of the state (i) to make independent determinations of who is and who is not “lawfully admitted” in this country, based on state-created criteria (subsection (b)); and (ii) to report such determinations to state and federal authorities solely for the purpose of ensuring that such persons leave the country (subsections (c)(1) and (c)(2)). In addition, subsection (b) is an impermissible immigration regulation because, unlike the statute at issue in De Canas, the classification of persons as (1) citizens; (2) lawfully admitted as a permanent resident or (3) lawfully admitted for a temporary period is not in any way tied to federal standards. Thus, the state has created its own scheme setting forth who is, and who is not, entitled to be in the United States. As discussed below, the INS’s standards for who is and who is not deportable are entirely different from those set forth in subsection (b). See, e.g., 8 U.S.C. § 1251(a). As the Supreme Court held in De Canas, a state cannot, on its own, determine who is or is not entitled to be present in the United States. See De Canas, 424 U.S. at 355, 96 S.Ct. at 936. Defendants contend that the Court should construe the term “lawfully admitted” in subsections (b)(1) and (b)(2) as applying “to persons who are present in the United States unlawfully, not to those who entered unlawfully.” They argue that such a construction avoids preemption, because “lawfully present” is an immigration status standard applied under the INA, and thus the classification of persons required under subsection (b) of sections 5 and 6 would be tied to federal standards, rather than to state-created criteria. This argument is not persuasive. As plaintiffs point out, the term “lawfully admitted” has its own established meaning under the INA. See 8 U.S.C. § 1182. Thus, there is no basis for the Court to replace the word “admitted,” with the word “present.” Moreover, even if the Court were to do so, the statute still would not be tied to federal standards. The impermissible classification, notification, and cooperation/reporting requirements of sections 5 and 6, subsections (b), (c)(2), and (c)(3), are therefore preempted. In the absence of the scheme created by those sections, the remaining substantive provisions of sections 5 and 6 are contained in subsections 5(c)(1) and 6(c)(1). Those provisions, standing alone, require that state agents deny benefits to persons who are determined or suspected to be “in the United States in violation of federal law.” Defendants contend that (c)(1) is not an immigration regulation because, absent the classification, notification, and reporting provisions, (c)(l)’s effect is solely to deny benefits — not to determine who should or should not be permitted to remain in the United States. Indeed, in the absence of subsections (b), (c)(2) and (c)(3), subsection (c)’s verification component is utilized solely for the purpose of denying benefits. Unlike subsection (b), subsection (e)(l)’s verification component is tied to federal immigration standards, so that under subsection (e)(1), benefits are denied based on an individual’s federally-determined immigration status and not on any independent criteria developed by the state. Plaintiffs counter that (e)(1) is not tied to any federal or state immigration standards and is therefore preempted because, on its face, subsection (c)(1) would deny benefits not only to aliens who are deportable under federal immigration law but also to aliens who have, for example, failed to file their tax returns, because technically such persons would be “alienfs] in the United States in violation of federal law.” This is a tortured, reading of the provision. The Court is obliged to uphold subsection (c)(1) if there is. any construction of the provision’ which is constitutional. Clearly (c)(1) can, and should, be understood to require denial of benefits solely to deportable aliens (i.e., those aliens whose presence in the United States is in violation of federal immigration law). The Court must conclude that subsection (c)(1) denies benefits based on federal determinations of immigration status and is not an impermissible regulation of immigration. Such benefits denial is not preempted under the first De Canas test. One additional problem remains. Subsection (c)(1) requires state agents to deny benefits to any individual who is “determinefd] or “reasonably suspeetfed]” to be present in the United States in violation of federal law. Thus, on its face, (c)(1) requires state actors to make independent determinations as to whether a person is deportable under federal law. As discussed above, under the first De Canas test, state actors may not make independent determinations as to persons’ immigration status. Only the INS can make such determinations, and so (c)(1) may survive only if benefits are denied only to those persons determined to be deportable by the INS. This problem is not irremediable, however. If the words “or reasonably suspects, based on the information provided to it,” are severed from the subsection (c), sections 5 and 6 no longer would deny benefits to persons who are merely suspected by a state agent, rather than determined by the INS, to be deportable. And those words indeed are grammatically, functionally, and volitionally severable. The language “or reasonably suspects, based on the information provided to it,” is grammatically severable, since when it is omitted, the remaining language makes sense. The offending language is also functionally severable, because denial of benefits can be implemented in its absence. That is, a person can be denied benefits if the administrating agent “determines,” rather than merely “reasonably suspects ...” that the person is present in the country in violation of federal laws. Finally, the “reasonably suspects” language is volitionally severable because the severability clause evidences the intent of the electorate to permit the severance of offending portions, and because it cannot be argued that the language was crucial to the passage of the initiative. Even in the absence of the “reasonably suspects” language, however, it is still possible that under subsection (c)(1) state actors could be required to deny benefits based on their own independent determinations as to persons’ immigration status. To avoid this result, the state could implement a regulation requiring officials to verify eligibility for services and benefits by accessing INS determinations of individuals’ immigration status through the SAVE system. If the “reasonably suspects”' language is omitted, and a regulation implementing the benefits denial provisions required state agencies to utilize INS determinations in denying benefits, subsection (c)(1) would not impermissibly regulate immigration. It would then withstand scrutiny under the first De Canas test. The question remains whether the invalid provisions of sections 5 and 6 are severable from the remainder of the initiative. Plaintiffs contend that subsections (b), (c)(2) and (3) are not functionally severable from the remaining provisions in sections 5 and 6 and that a finding that subsections (b), (e)(2) and (c)(3) are preempted requires a finding that all of sections 5 and 6 are preempted. However, as set forth above, subsection (c)(1) can operate independently as a benefits denial provision absent the impermissible immigration-regulation scheme. Therefore, subsections (b), (c)(2) and (c)(3) are functionally severable from the initiative. Because it is reasonable to conclude that the electorate would have preferred the implementation of the benefits denial provisions rather than the invalidation of the entire initiative had they foreseen the invalidity of the classification, notification and cooperation/reporting provisions, subsections (b), (c)(2) and (c)(3) are volitionally severable. Finally, subsection (c)(1) makes grammatical sense absent the severed provisions. Accordingly, subsections (b), (e)(2) and (c)(3) are severable. 3. Section 7 Section 7 is entitled “Exclusion of Illegal Aliens From Public Elementary and Secondary Schools.” Like sections 5 and 6, section 7 contains classification, notification and cooperation/reporting requirements that, taken together, serve only to further the scheme to regulate immigration and are unnecessary to the denial of public education. In section 7, subsections (a) through (c) require schools to verify the immigration status of children for the purposes of denying access to public elementary and secondary education. Subsection (d) requires verification of the immigration status of parents of school children. Subsection (e) requires school districts to report the “illegal” status of any parent, guardian, enrollee or pupil to state agencies and the INS. Subsection (f) requires school districts to “fully cooperate” in “accomplish[ing] an orderly transition to a school in the child’s country of origin.” Subsections (a), (b) and (c), together, assure that undocumented children will be denied access to public education. Subsection (d) is wholly unnecessary to implementing the denial of education mandated by section 7, because the state has no need to know the immigration status of parents in order to deny benefits to children. Like subsection (b) in sections 5 and 6, the only purpose and effect of subsections (d), (e), and (f) is to ensure that persons determined by the state to be in the United States unlawfully are “transitioned” to the “country of their origin.” Subsections (d), (e) and (f) are part of an impermissible scheme to regulate immigration and are therefore preempted under the first De Canas test. In any event, an analysis of section 7 under the rigors of the first De Canas test is not necessary to sustain the Court’s ruling on these motions. In light of the United States Supreme Court’s decision in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), in which the Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits states from excluding undocumented alien children from public schools, section 7 in its entirety conflicts with and is therefore preempted by federal law. 4. Section 8 Subsection (a) of Section 8 prohibits public postsecondary educational institutions from providing education to persons who are not “authorized under federal law” to be in the United States. Subsection (b) requires such institutions to verify the immigration status of each person enrolled or attending to ensure that education is provided only to persons who are “authorized under federal law” to be in the United States. Subsection (e) requires admissions officers to report any persons who are “determined to be, or ... under reasonable suspicion of being in the United States in violation of federal immigration laws” to state and federal authorities. Subsection 8(c), like the reporting requirements in sections 5 and 6, cannot survive because it has no purpose other than to regulate immigration. On the other hand, subsections (a) and (b), like the denial of benefits in sections 5 and 6, are not regulations of immigration since they do not amount to determinations of who may and may not remain in this country. In the absence of subsection (c)’s reporting requirements, the verification components of subsections (a) and (b) are permissible because their only purpose is to determine who may and who may not receive postsecondary education. Also, the verification components of subsections (a) and (b) are tied to federal standards rather than to an impermissible state classification scheme. Because subsections (a) and (b) may be implemented by requiring state actors to rely on federal determinations rather than their own independent determinations of immigration status to deny public postsecondary education, subsections (a) and (b) are not preempted under the first De Canas test. The final question is whether subsection (c) is functionally, volitionally and grammatically severable from the remaining provisions of section 8. Since the absence of the impermissible reporting requirements does not impair the state’s ability to deny public post-secondary education, subsection (c) is functionally severable. Subsection (c) is grammatically severable because the removal of subsection (e) does not render the remaining provisions of section 8 unintelligible. Finally, because it is reasonable to conclude that the electorate would have preferred the implementation of the remaining provisions rather than the invalidation of the entire section had they foreseen the invalidity of the eooperation/reporting provision, subsection (c) is volitionally severable. 5. Section 9 Section 9, entitled, “Attorney General Cooperation with the INS,” requires the state attorney general to maintain records of, and to transmit to the INS, all reports received from state agencies pertaining to persons who are “suspected of being present in the United States in violation of federal immigration laws.” This section is preempted under the first De Canas test because it has no purpose or effect except to further Proposition 187’s impermissible immigration regulation scheme. Section 9 is a separate and distinct section of Proposition 187, the severance of which does not impair the meaning of any remaining sections. It is, therefore, grammatically severable from the remainder of the initiative. Section 9 is functionally severable because it merely imposes additional reporting and record-keeping requirements beyond those required by the other sections of the initiative and eliminating these additional requirements does not impair the operation of the remaining sections. Finally, because the initiative’s remaining benefits denial and criminal penalty provisions serve a substantial purpose of the electorate and would have been approved even absent the invalid provisions, section 9 is volitionally severable. 6. Sections 2 and 3 Sections 2 and 3 criminalize making and using false documents “to conceal” the “true citizenship or resident alien status” of a person. These provisions, though they may indirectly affect immigration in some way, can hardly' be said to be a “determination of who should or should not be admitted in to the country.” Like the benefit denial provisions, the criminal penalties, criminalizing conduct that is dishonest and deceptive, are a legitimate exercise of the police power of the state. Plaintiffs contend that criminal penalties are part of the overall immigration regulation scheme. Absent the verification, notification and eooperation/reporting elements of the initiative, however, the criminal penalties do not serve the impermissible goal of ensuring that “illegal” aliens leave the country. Accordingly/sections 2 and 3 are not preempted under the first De Canas test. B. Whether Proposition, 187 Is Preempted Because Congress Intended to Occupy the Field. Under the second De Canas test, even if a statute is not an impermissible regulation of immigration, it may still be preempted if there is a showing that Congress intended to “occupy the field” which the statute attempts to regulate. De Canas, 424 U.S. at 357, 96 S.Ct. at 937. As discussed above, the Constitution commits the power tó regulate immigration ex7 elusively to the federal government. De Canas, 424 U.S. at 354, 356, 96 S.Ct. at 936. Congress has fully occupied the field of immigration regulation through enactment and implementation of the INA. See, e.g., Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983) (“We assume that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.”)- Since the classification, notification and cooperation/reporting requirements contained in sections 1 and 4 through 9 constitute a scheme to regulate immigration, those provisions are necessarily preempted under the second De Canas test as well. Because the Court has determined that the benefits denial and criminal provisions in sections 2 and 3 are not impermissible regulations of immigration, the question remains whether these provisions are nevertheless preempted because Congress has intended to occupy the field on which they touch. Under the second De Canas test, the benefits- denial provisions of sections 5 through 8 are preempted only if they regulate a field in which Congress intended a “complete ouster” of state power, even if a state regulation in that field is not in conflict with federal law. See De Canas, 424 U.S. at 356, 357, 96 S.Ct. at 936, 937. In De Canas, the Supreme Court defined the field on which the statute in question touched not as the broad field of immigration regulation, but, rather, the more narrow field of employment of illegal aliens. Id. Finding nothing in the INA which indicated Congressional intent to preclude state regulation touching on the employment of illegal aliens, the Court refused to “presume that Congress ... intended to oust state authority to regulate the employment relationship covered by the [statute],” and held that the statute was not preempted. Id. at 357, 96 S.Ct. at 937. Similarly, the field on which Proposition 187’s benefits denial provisions touch is not the broad field of immigration regulation but, rather, the public benefits field, specifically alien eligibility for public benefits. Since nothing in the wording or legislative history of the INA “unmistakably confirms” an intent to oust state authority to regulate in the public benefits field, and because, as in De Canas, such an intent cannot be “derived from the scope and detail of the INA ... governing entry and stay of aliens,” id. at 359, 96 S.Ct. at 938, Proposition 187’s benefits denial provisions are not preempted under the second De Canas test. Likewise, the criminal provisions set forth in sections 2 and 3 are not preempted under the second De Canas test. Plaintiffs have made no showing whatsoever that Congress intended to effect a “complete ouster of state power — including state power to promulgate laws not in conflict with federal laws” with respect to criminalizing the falsification and use of forged identification documents. 424 U.S. at 357, 96 S.Ct. at 937. The field on which sections 2 and 3 touch is not the broad field of immigration regulation but, rather, the field of the criminal law as it relates to false documents. Since nothing in the legislative history of the INA, or in the INA itself, reveals an intent to oust state authority to criminalize the production or use of false identification, sections 2 and 3 are not preempted under the second De Canas test. C. Whether Proposition 187 Is Preempted Because It Directly Conflicts With Federal Law .The final inquiry under De Canas is whether, “although the INA contemplates some room for state legislation,” De Canas, 424 U.S. at 363, 96 S.Ct. at 940, Proposition 187 is preempted in whole or in part because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Stated differently, the provisions of Proposition 187 may be preempted because they conflict with federal law making compliance with both state and federal law impossible. Michigan Canners & Freezers, 467 U.S. at 469, 104 S.Ct. at 2523. 1. Classification, Notification, and Reporting Provisions As set forth above, Proposition 187’s classification, notification and cooperation/reporting provisions are preempted under the first and second De Canas tests because taken together, they constitute an impermissible scheme for the regulation of immigration. Those same provisions also violate the third De Canas test, because they are in conflict with federal laws governing the deportation of aliens. The INA specifies an exclusive list of grounds for deportation, 8 U.S.C. § 1251(a), and provides that that procedure shall be the “sole and exclusive procedure for determining the deportability of an alien.’’ 8 U.S.C. § 1252(b) (emphasis added). The procedure requires, among other things, that only a “special inquiry officer” (an immigration judge) may conduct deportation proceedings. Id. The INA’s accompanying regulations require “[e]very proceeding to determine the deportability of an alien in the United States [to be] commenced by the filing of an order to show cause with the Office of the Immigration Judge.” 8 C.F.R. § 242.1(a); 8 U.S.C. § 1252a. The authority to issue such orders is delegated to a discrete list of federal officers. Id. Only specified federal officials can commence deportation proceedings, and only an immigration judge in deportation proceedings can determine that an alien is deportable and order the alien to leave the United States. Id.; 8 ' U.S.C. §§ 1252(a), 1252(b). Then, after a “final order” of deportation issues, only the Attorney General may “effect the alien’s departure from the United. States.” 8 U.S.C. § 1252(c). Proposition 187’s classification, notificátion and cooperation/reporting provisions directly contradict the INA’s mandate that the procedure outlined in the INA “shall be the sole and exclusive procedure for determining the deportability of an alien.” These provisions create a new, wholly independent procedure, pursuant to which state law enforcement, welfare, health care, and education officials— rather than federal officials and immigration judges — are required to determine the de-portability of aliens and effect their deportation. The classification, notification and cooperation/reporting provisions delegate to state agents tasks which federal law delegates exclusively to federal agents. These provisions are in direct conflict with and are. preempted by federal law. 2. Denial of Benefits Provisions a. Conflicts based ón classification and remaining verification provisions Proposition 187 requires, for the implementation of its benefits denial provisions, that public social service agencies, public health care facility personnel, public school districts and postsecondary educational institutions classify or verify the immigration status of applicants for benefits and services. Plaintiffs argue that because the classification provisions define legal immigration status more narrowly than federal law, and because the remaining verification provisions require state agents to classify persons’ immigration status based on “suspicion,” those provisions will result in the denial of benefits to persons who fail to meet state criteria but are nevertheless lawfully present in the United States under federal law. The plaintiffs contend that both types of verification provisions are preempted under the third De Canas test. Defendants argue that the initiative “does not set up a classification system” at all and that the classification provisions, like the remaining verification provisions which are tied to federal standards, should be construed as applying only to persons who are present in the United States in violation of federal immigration laws. (1) The classification provisions As discussed above, Proposition 187 establishes three state-created categories of lawful immigration status on .which the denial of benefits is based. These categories define persons as “legal” and entitled to receive benefits if they are citizens of the United States, aliens lawfully admitted as permanent residents and aliens lawfully admitted for a temporary period of time. See §§ 5(b)(1)— (3), 6(b)(1) — (3), 7(d)(1) — (3). These three categories, however, fail to recognize several federal categories of persons who are not citizens, not admitted as permanent residents and not admitted for a temporary period of time but who- are 'nevertheless present in the United States, authorized to remain here and eligible for certain benefits in accordance with federal law. For example, federal law authorizes certain refugees, asylees, persons granted withholding of deportation, parolees, persons protected by “family unity” status, persons present under temporary protected status, persons granted deferred enforced departure (“DED”), persons eligible for suspension or stay of deportation and battered immigrant women and children to remain in the United States permanently, indefinitely or temporarily. None of these categories of lawful immigration status is accounted for by Proposition 187’s classification scheme. Sections 5, 6 and 7 utilize this uriderinclu-sive classification scheme to deny benefits and services to persons who fail to meet state criteria for lawful immigration status but are lawfully present in the United States and entitled to receive benefits and services under federal law. Congress-has conditioned eligibility for some federal-state cooperative benefits programs covered by sections 5 and 6 on lawful immigration status under federal immigration laws. For example, eligibility for the Medicaid, Aid to Families with Dependent Children (“AFDC”) and Food Stamps programs depends on verification of immigration status through the SAVE system. In administering these programs, state agencies verify recipient immigration status by accessing INS information. Since some persons otherwise eligible for benefits under federal standards would be excluded by Proposition 187’s underinclusive classification scheme, denying services based on the classification scheme conflicts with the existing federal eligibility system for programs administered under SAVE. This classification scheme, preempted under the first and second De Canos tests, is also preempted under the third De Canas test as used to deny social and health services under sections 5 and 6 and education under section 7. The question remains whether the impermissible classification scheme in subsection (b) of sections 5 and 6 and subsection (d) of section 7 is severable from the remainder of the initiative. The subsections are gramati-cally severable because their absence does not render the remaining subsections unintelligible. The subsections are functionally sev-erable because the benefits denial provisions may be implemented by utilizing the remaining verification provisions in subsection (c) of sections 5 and 6 and subsections (b) and (c) of section 7 which bases denial of benefits and services on federal immigration standards. Finally, the subsections are volition-ally severable because it cannot be said that voter approval of the initiative was dependent on any particular classification scheme as long as the effect was the denial of benefits and services to illegal aliens. Thus, subsection (b) of section 5 and 6 and subsection (d) of section 7 are preempted by federal law but may be severed from the remainder of the initiative. (2) The remaining verification provisions Subsection (e) of sections 5 and 6 provides that if any public entity “determines or reasonably suspects, based on the information provided to it,” that an app