Divided Nation, Split Circuits: Keller v. City of Fremont Divides Circuits Regarding Preemption and Convolutes Immigration Law

• Publication year: 2022

48 Creighton L. Rev. 371. DIVIDED NATION, SPLIT CIRCUITS: KELLER V. CITY OF FREMONT DIVIDES CIRCUITS REGARDING PREEMPTION AND CONVOLUTES IMMIGRATION LAW

DIVIDED NATION, SPLIT CIRCUITS: KELLER V. CITY OF FREMONT DIVIDES CIRCUITS REGARDING PREEMPTION AND CONVOLUTES IMMIGRATION LAW

Rosemary A. Laughlin

I. INTRODUCTION

Immigration regulation is a polarizing topic for lawmakers in the United States.(fn1) This issue is further exacerbated by the complexity of immigration law.(fn2) Proponents of state and local immigration regulations cite discontent with the perceived lack of federal enforcement of immigration laws.(fn3) In response, states and municipalities passed their own legislation to address the problem of illegal immigration.(fn4) States and cities passed laws preventing persons without documentation from obtaining work and housing within their particular localities.(fn5) However, the federal circuit courts are split as to whether these local regulations are preempted by federal immigration law.(fn6)

In Keller v. City of Fremont,(fn7) the United States Court of Appeals for the Eighth Circuit addressed the issue of federal preemption.(fn8) The crux of the debate was a Fremont, Nebraska ordinance that effectively banned all immigrants without documentation from obtaining rental housing.(fn9) The ordinance was the subject of heated debate that ignited the city.(fn10) In Keller, the Eighth Circuit determined the housing ordinance was not preempted nor did it conflict with the federal scheme.(fn11) Within a month, the United States Courts of Appeals for the Third and Fifth Circuits delivered decisions that directly contradicted the Eighth Circuit's opinion.(fn12)

This Note will first discuss the ordinance at issue in Keller and the procedural history of its passage.(fn13) Additionally, this Note will detail the decision of the Eighth Circuit.(fn14) This Note will then provide an overview of the United States Supreme Court decisions regarding federal preemption of immigration laws.(fn15) This Note will then discuss Lozano v. City of Hazelton,(fn16) Villas at Parkside Partners v. City of Farmers Branch,(fn17) and the ordinances overturned in those cases.(fn18) Finally, this Note will juxtapose Keller, Lozano, and Farmers Branch and articulate reasons that the Keller court reached an erroneous decision on the housing ordinance.(fn19)

II. FACTS AND HOLDING

June 21, 2010 marked a landmark change in Nebraska immigration regulations when voters in the City of Fremont backed Ordinance No. 5165(fn20) (the "Fremont Ordinance"), a controversial statute addressed in Keller v. City of Fremont(fn21) in the United States Court of Appeals for the Eighth Circuit.(fn22) The stated purpose of the Fremont Ordinance itself was to prohibit the harboring of persons unlawfully residing in the country and to subsequently ban the hiring of such persons.(fn23) The portions of the Fremont Ordinance that reference housing and harboring state that it is unlawful for any person or business entity to knowingly or recklessly harbor any person residing in the United States without lawful authorization.(fn24) The method of ensuring this is to require that all persons who are at least eighteen years old obtain an occupancy license before entering into any contract to rent or lease a dwelling unit.(fn25) The licensing procedure requires that applicants provide basic information, such as name, address, and date of birth, in addition to declaring their status as either a United States citizen or national.(fn26) Individuals who are not citizens must provide an identification number assigned by the federal government that will enable the Fremont Police Department to ascertain the applicant's lawful status.(fn27) The Fremont Ordinance then details a method for sanctioning landlords who do not comply with the licensing requirement.(fn28) Specifically, landlords who violate the Fremont Ordinance will be fined $100 per day per unlawful tenant beginning forty-five days after a revocation license is served.(fn29) Additionally, the Fremont Police Department is mandated to verify the status of all occupants who have not declared themselves to be citizens or United States nationals with the federal government.(fn30)

The final part of the Fremont Ordinance requires all employers seeking a city license, permit, contract, or grant to execute an affidavit affirming they do not knowingly employ any person without lawful work authorization.(fn31) The Fremont Ordinance dictates that all of these employers, as well as all agencies of the city, register with the E-Verify program to validate each specific employee's authorization to work.(fn32) Opponents of the Fremont Ordinance challenged the law because it allegedly violated the Supremacy Clause(fn33) by encroaching on the regulation of matters reserved for the federal government and interfering with federal laws and regulations.(fn34) Opponents of the Fremont Ordinance argued that it was preempted on both field and conflict grounds.(fn35)

The United States District Court for the District of Nebraska first addressed the mandated use of the E-Verify employment authorization program.(fn36) Based on the precedent set by the United States Supreme Court in Chamber of Commerce of the United States v. Whiting,(fn37) federal law did not preempt the employment provisions of the Fremont Ordinance.(fn38) The district court drew parallels between the constitutionally valid Arizona law at issue in Whiting and the Fremont Ordinance.(fn39) The court determined that the section of the Fremont Ordinance regulating employment was a licensing law and therefore was not preempted.(fn40) The Eighth Circuit affirmed the validity of these employment provisions.(fn41)

The next issue addressed by the district court was the section regulating housing.(fn42) Although Congress has never expressly preempted municipal legislation comparable to the Fremont Ordinance, the district court determined that federal law preempted the housing provisions under both field and conflict preemption.(fn43) The district court noted that while the area of immigration regulation may be understood to be field preempted by Congress, states and municipalities have the authority to pass laws that are consistent with the federal objectives.(fn44) It emphasized states' rights to further their own legitimate interests with respect to persons unlawfully residing within those states.(fn45) However, the district court determined that the penalties of violating the Fremont Ordinance, which revoke licenses for occupancy and sanction landlords, would drive persons unlawfully residing in the United States from Fremont.(fn46) According to the district court, this interfered with the federal scheme of removal established by the Immigration and Nationality Act(fn47) ("INA") and the uniform application of the United States immigration laws.(fn48)

On review, the United States Court of Appeals for the Eighth Circuit reversed the decision of the district court finding the housing provisions of the ordinance to be preempted by federal law.(fn49) The appellate court noted that it would rely heavily on Arizona v. United States,(fn50) a then recent United States Supreme Court decision.(fn51) The appellate court then detailed the emphasis on federal preemption of immigration law and the reasoning behind the doctrine.(fn52) The Eighth Circuit explained the Supreme Court's reasoning for invalidating certain provisions because they (1) inhibited the accomplishment and execution of congressional laws, (2) disrupted the balance created by Congress by its decision to not impose criminal penalties on persons who engage in authorized employment, and (3) encroached on the discretion established in the federal removal process.(fn53) The appellate court rejected the argument that federal law preempted the Fremont Ordinance on the grounds that it expels persons from the city who are not lawfully residing in the United States.(fn54)

The appellate court maintained that the Fremont Ordinance does not remove people from the city, nor does it have an effect that determines who should be admitted into the country.(fn55) Further, it also does not have greater than marginal effects on the conditions under which persons who have entered lawfully reside.(fn56) There was additional emphasis placed on the notion that laws with an objective of deterring unlawful entrants from residing in particular cities do not reasonably amount to regulating immigration into the United States.(fn57) The appellate court also stated that the potential effect of E-Verify expelling persons from the state did not constitute an impermissible regulation of immigration.(fn58) Finally, the Eighth Circuit ruled out field preemption by asserting the rental provisions do not remove persons from the United States nor create a parallel removal process.(fn59)

The appellate court then rejected a preemption argument regarding harboring when the court asserted that the federal law need not expressly permit local regulation of harboring.(fn60) The court also stressed that field preemption only exists when Congress occupies a field with a framework of regulation so comprehensive and complete that Congress impliedly prohibits states from supplementing the federal scheme.(fn61) The court analyzed the harboring provisions of the INA and determined that these did not amount to field preemption.(fn62) Next, the court...