Thread: TEXAS - Another Local Immigration Law Struck Down by Supremacy Clause

Another Local Immigration Law Struck Down by Supremacy Clause

TheNewAmerican.com

Written by Joe Wolverton, II

Friday, 23 March 2012 12:55

On Tuesday the U.S. Court of Appeals for the Fifth Circuit in New Orleans upheld a lower court ruling invalidating a Farmers Branch, Texas, city ordinance aimed at combating the presence of illegal aliens by forbidding those without proper immigration documentation from renting housing. This Circuit Court ruling keeps in force the injunction imposed by the lower district court against the law — Ordinance 2952. Two years ago the U.S. District Court for the Northern District of Texas issued a permanent injunction against this controversial addition to the city code. In her decision in the case filed by an apartment complex and a man denied housing under the provisions of the ordinance, Judge Jane Boyle held that Farmers Branch (a suburb of Dallas) could not legally enforce Ordinance 2952.
Ordinance 2952 required those applying to rent housing to actively affirm their legal residence status. Further, the municipality could revoke a person’s license to rent if he or she failed to comply with the immigration requirements imposed by the new law. The ultimate determination of a person’s immigration status would be made by recurring to available federal immigration records.

The obtaining of a license to rent is mandated by existing landlord-tenant regulations of Farmers Branch. Applicants must register with the city and qualify for an occupancy license. The ordinance at issue in the case makes it a criminal offense to make a false declaration on the occupancy license application. It is also a criminal offense for a person to occupy rental housing without a valid occupancy license or for a lessor to knowingly permit a person to occupy a rental unit without a valid license. The penalty for each offense is a fine of $500 per day of the occupancy.

As reported elsewhere, “This is the city's third attempt at such an ordinance — in what has become one of the most high-profile and controversial efforts to regulate immigration in the United States.”

City Ordinance 2892 was the first of three efforts to control illegal immigration through a rental housing mechanism. That ordinance required owners and property managers to demand submission of evidence of citizenship or immigration status for each family applying to occupy one of their units. Ordinance 2892 was later repealed in 2007 after a state court enjoined it due to possible violations of the Texas Open Meetings Act.

Undeterred, however, the Farmers Branch City Council passed Ordinance 2903, a measure substantially similar to 2892. Unlike the earlier law, however, the passage of Ordinance 2892 provided for a popular referendum on the measure.

Voters ultimately approved Ordinance 2903, but in May 2008 the courts intervened once again as a federal district court enjoined its enforcement. The district court judge held that the ordinance as written and applied violated due process, was void for vagueness, and that the municipal authority was barred from legislating in the realm of immigration under the Supremacy Clause.

This latest attempt — Ordinance 2952 — met with much the same fate. In the original order that was upheld by the Court of Appeals, Judge Boyle deemed the ordinance was unconstitutional and was therefore permanently enjoined from enforcement. The judge wrote:

This is not a situation where the City is aiding in the enforcement of federal immigration law based on federal standards through the means set forth by federal law; rather, the City is attempting to enforce its own scheme that incorporates federal standards for purposes not contemplated by Congress. The City may take appropriate action to enforce the nation’s immigration laws, but it may not, even if it were to incorporate the proper standard, independently enforce its own immigration rules.

Upon receiving the final ruling of the District Court, the City of Farmers Branch filed its appeal and oral argument before the Fifth Circuit began on October 4, 2011.

The Circuit Court affirmed the lower court’s ruling, holding in its March 12 opinion: "We conclude that the ordinance's sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration."

Further, the Court held that the federal government has “exclusive authority” to pass legislation regarding immigration policy. The opinion states:

Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the City of Farmers Branch and to cause their removal, it contravenes the federal government's exclusive authority over the regulation of immigration and the conditions of residence in this country, and it constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs.

Finally:

In light of this close relationship between immigration and foreign relations, then, it is necessary that the federal government, rather than individual states, have “broad” power over the presence of aliens, including the power to "determin[e] what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization."

In its opinion, the Fifth Circuit parroted the position held by other federal courts which have been called upon to rule on other state and local legislative efforts to address the problem of illegal immigration. Basically, a coterie of federal jurists has interpreted the Constitution to include a grant of exclusive immigration authority to the federal government. One after another they have insisted that the federal government has exclusive jurisdiction over immigration and states are preempted from entering that field.

The argument is that once the feds have “occupied the field” of this or that area of the law or policy, then no other government (state or local) may trespass therein.

Constitutionalists continue to ask these courts a very salient question: Where, exactly, in the Constitution is found congressional authority to regulate immigration? The enumeration in the Constitution of specific powers delegated to the federal government is the cornerstone of American political theory and of the constitutional Republic established in 1787. The basic definition of enumerated powers is that the best limitation on power is to not give it in the first place.

Powers, as understood by Madison, Jefferson, et al., were only legitimate if they had been granted to the government by the people and written specifically in the document through which the governed gave life to the government — the Constitution.

As stated above, the Constitution makes no such exclusive endowment of power over immigration to the federal government; therefore, the 10th Amendment guarantees that the right to rule in that area is reserved to the states and to the people.

Naturally, the plaintiffs/appellants were pleased with the Circuit Court’s decision to uphold the injunction.

"This decision sends an important message not only to the City of Farmers Branch, but to any other municipality that would consider adopting such a pernicious ordinance," said William A. Brewer III, an attorney for some of the plaintiffs. "This is a defining moment for those who appreciate that immigration is the province of the federal government,” he added.

The ACLU, which had filed a complaint seeking to block the Farmer's Branch ordinance, described the Fifth Circuit’s decision as “a warning” to other state and local legislators considering measures geared toward checking illegal immigration.

"Farmers Branch has invested over five years and literally millions of its residents' taxpayer dollars in costly litigation trying to regulate immigration," ACLU attorney Lisa Greybill said. "... immigration regulation is a 'national problem' that needs a national solution. It is time for Farmers Branch to give up its mean-spirited and quixotic efforts to do the federal government's job."

As with nearly every case that has come before the federal bench dealing with the legal locus of the power to regulate immigration, there was no mention by the defendant in the Farmers Branch case of the lack of an explicit grant of authority over immigration to the federal government. Decisions against state and local laws in this arena are likely to continue descending from federal judges until the matter is effectively and thoroughly litigated.





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