A Judicial Setback for the Rule of Law
by Kris W. Kobach (more by this author)
Posted 08/06/2007 ET
http://www.humanevents.com/article.php?id=21821

What do you get when you combine unchecked illegal immigration with judicial activism? A perfect storm for the rule of law. Unfortunately, that storm recently arrived in Pennsylvania.

On July 26, 2007, federal Judge James Munley of the Middle District of Pennsylvania issued an opinion striking down the efforts of Hazleton, Pennsylvania, to address the consequences of illegal immigration within its jurisdiction.

Hazleton -- a small town in the Pocono Mountains with just over 30,000 residents -- had enacted ordinances that prohibited landlords from knowingly renting apartments to illegal aliens and prohibited local businesses from knowingly employing illegal aliens.

In Hazleton, the impact of illegal immigration has been severe. Illegal aliens have committed several murders in the past two years in a town that previously saw murder occur only once about every seven years. Drug-trafficking and gun-running gangs comprised mostly of illegal aliens, MS-13 included, moved to this sleepy town. Drug crimes increased, with illegal aliens representing 30 percent of those arrested.

At the same time, the City’s budget became stretched to the breaking point. Illegal aliens working off the books were consuming city services without contributing anything to the City’s income tax base.

Predictably, as soon as Hazleton passed its ordinance, the ACLU, the Puerto Rican Legal Defense and Education Fund (PRLDEF), and liberal allies at the silk-stocking Philadelphia law firm of Cozen O’Connor took Hazleton to court.

The ACLU advanced a grab-bag of legal theories against Hazelton. It claimed that cities and states cannot impose sanctions on employers who hire unauthorized aliens -- when in fact federal law expressly permits cities and states to do impose licensing sanctions on such employers (8 U.S.C. § 1324a(h)(2)). The ACLU also claimed that landlords have a right to knowingly harbor illegal aliens in an apartment, even though federal law makes it a crime (8 U.S.C. §1324(a)(1)(A)). The ACLU’s arguments fall under the rubric of federal preemption -- the constitutional doctrine by which Congress may displace state and local authorities from regulating in particular areas.

Under normal circumstances, the ACLU would have a hard time selling these arguments. The Supreme Court has long made it clear that there is a heavy judicial presumption against finding a local law to be preempted. And the will of Congress must guide any judicial assessment of a preemption claim. The Hazleton ordinance had been painstakingly drafted to conform exactly to what Congress allows.

However, the ACLU lucked out when Judge Munley was assigned to the case. In a 206-page opinion, the judge bent over backward to agree with even the most far-fetched arguments offered by the plaintiffs.

For example the plain language of federal law clearly allows cities to impose “licensingâ€