Immigrant Laws Tread Uncharted Legal Path
With Local, Federal Powers Not Fully Defined, Officials Look to the Courts

By Karin Brulliard
http://www.washingtonpost.com/wp-dyn/co ... 01735.html
Washington Post Staff Writer
Tuesday, August 28, 2007; Page B01

As officials in places such as Prince William County increasingly respond to public discontent over illegal immigration by passing ordinances, law scholars say a key question remains: Are local regulations legal?

The validity of the measures, designed to regulate an area long considered part of the federal domain, is among the murkiest territories in the already-Byzantine field of immigration law, they say, largely because local leaders have never before felt impelled to act, and so there are few specific court rulings to offer clarity.


"You have this complex overlay of statutes and regulations and court cases, and you've got this federalism question of . . . what has traditionally been federal power and what the states can do," said Jan Ting, a Temple University law professor. "There could not be an area of law that is less clear than this, I think."

Among the many likely results of congressional inaction on immigration, experts say, will be a flood of litigation over local laws. Ordinances in Farmers Branch, Tex., and Valley Park, Mo., are facing court challenges, and activists in Prince William have threatened to file a lawsuit over the county's resolution to crack down on illegal immigrants.

This year, state legislatures introduced more than 1,400 immigrant-related bills, at least 170 of which became law, according to the National Conference of State Legislatures. Municipalities have proposed more than 100 such ordinances, according to the American Civil Liberties Union.

Critics of local policies were emboldened last month by the first federal ruling on a local law, which struck down a Hazleton, Pa., ordinance aimed at ridding the town of illegal immigrants by denying business permits to employers who hire them and fining landlords who rent to them. In a 206-page opinion, Judge James Munley said such laws tread on federal terrain and violate illegal immigrants' constitutional right to due process. The town is appealing the decision.

"Whatever frustrations officials of the City of Hazleton may feel about the current state of federal immigration enforcement, the nature of the political system in the United States prohibits the City from enacting ordinances that disrupt a carefully drawn federal statutory scheme," Munley wrote.

Legal experts say that although the ruling is likely to discourage other localities, it applies only to part of Pennsylvania and is vulnerable to reversal by a federal appeals court -- whose decision would become law throughout the 3rd Judicial Circuit, which includes Delaware, New Jersey and Pennsylvania.

For now, they say, some things are clear. The Supreme Court has ruled that true immigration matters -- who enters and leaves the United States -- fall under the federal government's realm alone. When it comes to laws related to noncitizens, the Constitution invalidates, or "preempts," state laws that clearly conflict with federal laws or that courts interpret to be ground that Congress intended to dominate.

That is where things get hazy, experts say.

Take employment regulations. Congress has stated the invalidity of laws, passed by several states this year, that directly penalize employers for hiring illegal immigrants. But it provides an exception for sanctions involving licenses.

That gave Hazleton "clear authority" to deny business licenses to employers who hire illegal workers, said Kris Kobach, a law professor at the University of Missouri at Kansas City who represents the town and has helped other localities craft stiff measures against illegal residents.

But Munley rejected the provision on several grounds, calling the loss of a license the "ultimate sanction" because it would force employers out of business. Congress, he wrote, would not have drawn up such intricate federal employment regulations had it meant to allow states this kind of opening.

Law enforcement is another gray area. Congress allows state and local authorities to make arrests under some criminal immigration laws and enter into agreements with federal authorities to enforce immigration law more broadly, experts said. But federal appeals courts have offered varying interpretations of how far those powers go and whether they extend to the enforcement of civil violations, such as overstaying a visa.


Those judgments mean little for Virginia and Maryland, whose 4th Circuit appeals court has not weighed in, experts said.

Prince William and Loudoun counties have passed resolutions designed to limit illegal immigrants' access to public benefits. Although illegal immigrants are entitled to schooling from kindergarten through 12th grade, immunizations and emergency medical treatment, the federal Welfare Act denies them most other assistance, including public housing, disability benefits or "any similar benefit to which payment or assistance is provided."

The line is fuzzier when it comes to locally funded benefits. What about, say, checkout privileges at public libraries?

"It wouldn't shock me if a court were to say this is a reasonable, measured response," said Washington University law professor Stephen Legomsky. "On the other hand, a court is just as likely to say that the states have no business distinguishing those of its residents who have broken federal immigration laws and its other residents."

For some local lawmakers, it adds up to a conundrum.

The ambiguity was on public display in Richmond last month, when Virginia's illegal-immigration task force -- a new panel of state lawmakers, community leaders and law enforcement officials -- sat through a crash course on what federal law allows states to do about the issue. With each PowerPoint slide, the members' brows grew more furrowed.

Several recent immigrant-related bills would have been void if the General Assembly had passed them, explained their two instructors, lawyers from a Richmond firm and the state attorney general's office. In fact, one Virginia law on the books since 1977 -- making employment of illegal immigrants a misdemeanor -- has no teeth.

Did state authorities have the right, lawmakers asked, to enforce criminal immigration laws? The lawyers were not sure. Could they yank business licenses from the employers of illegal immigrants? Probably, one said. But not without a challenge, the other added.

As the Virginia task force's co-chairman, Del. David B. Albo (R-Fairfax), put it: "I've been working on this for three years, and everybody is confused about what you can and can't do. . . . You ask four attorneys, and you'll get four answers."

Albo, himself a lawyer, asked whether state police could arrest people who approached them and said they had expired visas. Probably not, the lawyers said, because that is a civil immigration violation. And if the person said he had entered the country illegally? Probably so, he was told, because that is a criminal violation.

"It's crazy. It's just a nuance of a difference," Albo said later. "We wouldn't have to have these stupid meetings if the federal government had enforced its own laws."

To some, the confusion means local officials should butt out.


"If local officials are asking what they can do, I'd say, "Call your congressman,' " said John Ammann, a St. Louis University law professor who is part of a legal team challenging a Valley Park, Mo., ordinance identical to Hazleton's.

But lawmakers say explanations of federal preemption hold little sway with fed-up constituents.

"They're not interested in going to law school," said Del. John S. "Jack" Reid (R-Henrico), a task force member. "I tried to explain it at a civic club meeting one day, and they were all, 'Look, what are you going to do?' And I was all, 'Well, I'm going to stop explaining this!' "

Reid said he thinks it is "silly" for states and counties to have different immigrant-related laws. But, he said, "I just don't think you can turn your back on such a wholesale breach of the law and still have any credibility."

And so local laws will keep coming, he predicted. So will lawsuits, experts say.

"Can they do what they're doing? We'll find out as these things pop up across the country and as there are challenges," said David Wolfe Leopold, a Cleveland lawyer and adjunct law professor at Case Western Reserve University. "But what's best for the country is if Congress does its job and fixes the broken system that we have."