Scott Forsyth, The Daily Record Newswire
What do the cities of Hazleton and Farmers Branch have in common? Not their location. The former is a former coal mining town in eastern Pennsylvania. The latter is an inner suburb of Dallas.
But they do have the same population, approximately 25,000 persons; 37 percent are Hispanic, a percentage that is expanding.
How did the city governments respond to the expanding Hispanic population? They enacted ordinances to discourage the movement of “illegal aliens” into their cities.
Hazleton prohibited aliens residing in the country contrary to law from working in the city and from renting apartments. Farmers Branch just banned the rental of apartments to such persons.
Hazleton and Farmers Branch are not the first local governments to target Hispanics in the guise of regulating housing and employment. Inevitably the efforts fail in court. Just last month two appellate courts enjoined Hazleton and Farmers Branch from enforcing their ordinances on the grounds federal law preempted the ordinances, Lozano v. City of Hazleton, No. 07-3531, (3rd. Cir. 2013); Villas at Parkside Partners v. City of Farmers Branch, No. 10-10751, (5th. Cir. 2013).
The preemption doctrine derives from the Supremacy Clause. It provides that federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” U.S. Const. Art. VI, cl. 2.
Preemption can occur one of four ways. Congress can explicitly express an intent to regulate a field to the exclusion of state regulation. If Congress does not say so explicitly, the intent “can be inferred from a framework of regulation so pervasive ... that Congress left no room for the States to supplement it” or where there is a “federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” Arizona v. United States, 132 S. Ct. 2492, 2501 (2012).
The other ways involve conflicts — where “compliance with both federal and state regulations is a physical impossibility” or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Id.
Given the multiple ways preemption can arise, judicial decisions on the subject can be lengthy. Take the Farmers Branch decision as an example.
The city wanted to “aid in (the) enforcement” of federal immigration law by denying local benefits to “certain aliens not lawfully present in the United States.”
To achieve this goal the city required a person to obtain a license before occupying an apartment. A question on the application inquired about citizenship. If the person was not a citizen of the United States, the building inspector had to contact the federal government to determine whether he was “lawfully present” in the United States. Existing tenants had to go through the same process to get a license. Occupying an apartment without a license is a misdemeanor.
Leasing an apartment to a person lacking a license is also a misdemeanor. If a landlord learned a tenant did not possess a license or could not obtain one because of the tenant’s immigration status, the landlord had to terminate the tenancy. The failure to do so was a crime.
The court in Farmers Branch held that all of the provisions of the housing ordinance conflicted with federal immigration law. The fact the ordinance and the federal law had a common goal — the removal of aliens — did not neutralize the conflict.
The court pointed out several conflicts in particular. Federal law does not limit the ability of any alien to obtain rental housing. The ordinance does.
When the housing inspector contacts the federal government, he will only learn the specific immigration status of the non-citizen. He will not learn whether the applicant is lawfully present. The housing inspector will have to make that determination, interpreting a complex federal law.
Under federal law, that determination is only made after a lengthy process. The federal government may find a person not lawfully present but may decide not to remove him, if other considerations militate against this penalty.
The housing inspector and the local courts may end up removing an alien from the city which the executive would not remove from the country.
Last year the Supreme Court invalidated a section of an Arizona law, S.B. 1070, because it permitted the state to arrest and detain a person based on his immigration status without federal “direction and supervision.” To the majority, the section was not saved because the state had to turn over the person detained to INS for followup action, Arizona, 132 S. Ct. at 2509.
Farmers Branch’s ordinance one-upped Arizona’s law, permitting local officials to arrest, detain, prosecute and convict a renter because of his perceived immigration status. This the city cannot do.
Now that several courts have invalidated laws that target immigrants and Hispanics in particular, maybe proponents of the laws will back off. Then we can work on the real task of coming together and moving forward as a community.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
