Don't You Dare Live Here: the Constitutionality of the Anti-immigrant Employment and Housing Ordinances at Issue in Keller v. City of Fremont

• Publication year: 2022

45 Creighton L. Rev. 503. DON'T YOU DARE LIVE HERE: THE CONSTITUTIONALITY OF THE ANTI-IMMIGRANT EMPLOYMENT AND HOUSING ORDINANCES AT ISSUE IN KELLER V. CITY OF FREMONT

DON'T YOU DARE LIVE HERE: THE CONSTITUTIONALITY OF THE ANTI-IMMIGRANT EMPLOYMENT AND HOUSING ORDINANCES AT ISSUE IN KELLER V. CITY OF FREMONT

ASHLEIGH BAUSCH VARLEY(fn*) MARY C. SNOW(fn*)

I. INTRODUCTION

In 1973, the United States Supreme Court in Plyler v. Doe(fn1) acknowledged the existence of a "shadow population" of undocumented immigrants "numbering in the millions - within our borders."(fn2) The Court noted:

This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.(fn3)

It is, in part, because of the complexity and difficulty of this issue that comprehensive immigration reform has not yet been successful at a national level. As a result of perceived federal inactivity and discomfort with growing immigrant populations, some local governments have passed laws restricting immigration at the state or municipal level. One of these communities is Fremont, Nebraska, which passed Ordinance No. 5165 (the "Fremont Ordinance") in June 2010. The Fremont Ordinance restricts the employment and housing of undocumented immigrants(fn4) in an attempt to encourage these individuals to move elsewhere.(fn5)

One month after passage of the Fremont Ordinance, a lawsuit was filed in the United States District Court for the District of Nebraska against the City of Fremont and certain city officials.(fn6) The plaintiffs in Keller v. City of Fremont(fn7) claim, in part, that the Fremont Ordinance is preempted by federal law and violates the Equal Protection Clause of the United States Constitution.(fn8) Both parties moved for summary judgment, and on February 20, 2012, the district court granted Fremont's motion with respect to the employment provisions of the Ordinance, but partially granted the plaintiffs' motion with respect to the housing provisions.(fn9) Although "both sides claimed victory" after this decision,(fn10) the parties have appealed to the United States Court of Appeals for the Eighth Circuit.(fn11) On February 28, 2012, the Fremont City Council voted to implement the employment provisions of the Ordinance, but "not to implement the housing provisions . . . until the appeal is decided."(fn12) The implementation of the employment provisions began on March 5, 2012.(fn13)

In Part II of this Article, we will discuss the atmosphere that led to the passage of the Fremont Ordinance and the language of the Ordinance itself. We will also discuss the lawsuit challenging the Ordinance, which is currently on appeal to the United States Court of Appeals for the Eighth Circuit. In Part III, we will discuss the recent lawsuit challenging the Fremont Ordinance. In Part IV, we will discuss the employment provisions of the Fremont Ordinance in light of the recent case Chamber of Commerce of the U.S. v. Whiting(fn14) in which the Supreme Court upheld a similar Arizona state law restricting the employment of undocumented immigrants.(fn15) In Part V, we will consider the formidable constitutional challenges to the housing provisions under the preemption doctrine and equal protection as clarified in the immigration context by Plyler.(fn16)

Upon examination of these arguments, we will conclude that, although the employment provisions are potentially constitutional under Whiting, the housing provisions are neither constitutional nor good public policy. In Part VI, we will discuss how the housing provisions are not severable from the Ordinance as a whole, thereby rendering the entire Fremont Ordinance invalid. As a result, we will recommend that the Eighth Circuit strike down the Ordinance in its entirety. In Part VII, we will discuss the policy implications of the Fremont Ordinance, which support repeal. Finally, we will discuss how we as a nation need to find a better solution to fix our immigration system.

II. THE FREMONT ORDINANCE

On June 21, 2010, the voters of the City of Fremont, Nebraska, approved Ordinance No. 5165 (the "Fremont Ordinance") "to prohibit the harboring of illegal aliens or hiring of unauthorized aliens."(fn17) The Fremont Ordinance requires agencies of the city and organizations conducting business with the city to register with the federal E-Verify program and to execute affidavits stating that they do not "knowingly" hire unauthorized aliens.(fn18) The Ordinance also

makes it unlawful for any person or business entity in Fremont to knowingly or recklessly lease or rent property to an illegal alien unless expressly permitted by federal law; requires tenants and occupants to obtain an occupancy license from the Fremont Police Department prior to occupying any leased or rented dwelling unit; [and] requires the Fremont Police Department to contact the federal government to determine whether each potential occupant is lawfully present in the country . . . .(fn19)

A. BACKGROUND

According to United States Census data, Nebraska's overall population increased by 6.7% between 2000 and 2010,(fn20) while its Latino population increased by 77.3%.(fn21) In Fremont, Nebraska, the increase in the Latino population has been even more dramatic. Fremont's total population increased by 4.9% between 2000 and 2010.(fn22) Its Latino population increased by 190.2% during that time.(fn23) This change was based on a small overall Latino population in Fremont, so the total number of Latino residents is still quite small (3,149) and the total non-Hispanic white population is still over 88%. The change, however, has had a significant impact in a small city that had not experienced substantial new immigration in many decades.

Specifically, this increase in the Latino population paralleled the perception of problems allegedly caused by illegal immigration in the community. There are two meatpacking plants just outside the city limits, which rely on immigrant workers.(fn24) At one of those plants, Fremont Beef, "17 workers were arrested in March [2010] on federal charges of identity theft, document fraud and false claims of U.S. citi-zenship."(fn25) It is unclear how many undocumented immigrants are working in Fremont. According to a news report from the Omaha World-Herald, "Ordinance opponents, extrapolating estimates from the Pew Hispanic Center, estimate fewer than 350 people. Ordinance supporters think the problem is far more widespread and costly."(fn26)

In 2010, some voices in the community were "angry over the problems they say are caused by illegal immigration and over the government's failure to take action."(fn27) They had concerns about "illegal immigrants . . . using the hospital system without paying; overtaxing the school system with English classes for their children; and committing crimes."(fn28) With respect to crime, the city attorney stated that crime had risen over time, but knew of "no data compiled [in Fremont] on crimes by ethnicity or national origin."(fn29)

Other members of the community, however, were opposed to legislative action locally restricting immigration. Opponents to such action argued that it would "lead to discrimination and racial profiling, further driving a wedge between Hispanics and the rest of the community, even though the majority of the Hispanics in Fremont are in this country legally."(fn30) They argued that "the concerns [regarding undocumented immigrants] are misplaced and exaggerated,"(fn31) and that any anti-immigrant legislation would cost the community money.(fn32)

In this conflicted atmosphere, Former City Councilman Bob Warner proposed an ordinance in 2008, which would have restricted employment and housing of undocumented immigrants. Mr. Warner stated that he introduced the ordinance "because of citizen complaints about unpaid hospital bills at the Fremont hospital and about growing numbers of Spanish-speaking students enrolled in Fremont schools."(fn33) Warner is quoted as saying "he is suspicious of the number of adults in Fremont who seem to have no knowledge of English."(fn34) A divided city council defeated the ordinance in July 2008.(fn35)

In 2009, three private citizens circulated a city initiative petition to bring the ordinance regulating immigration to a citywide vote.(fn36) One of these citizens stated that he joined the petition drive "because Fremont residents were growing more concerned about the changes they were seeing in Fremont."(fn37) He said that when he "worked out at the YMCA, he heard people griping about visitors struggling with the weight machines who didn't speak English. At the Fremont Wal-mart [sic], he heard other customers speaking in Spanish."(fn38) On February 23, 2009, the citizens filed complete petitions in support of the measure with the Fremont city clerk.(fn39)

On March 11, 2009, Fremont filed for declaratory relief with the Dodge County District Court on the grounds that the measure was unconstitutional because it was preempted by federal law.(fn40) The district court held that "substantive constitutional challenges are not justiciable before an initiative is approved by the voters" and dismissed Fremont's...