Grass Roots Immigration Reform

• Author: Susan M. Bartlett
• Pages: 989-1026

The author wishes to thank Professor John Devlin for his unlimited support and guidance.

Page 989

I Introduction

Immigration issues are increasingly becoming a political hotbed as federal immigration reforms have floundered, illegal immigration continues to rise, and governments fight to control the unwanted consequences of a perceived inadequate federal policy.¹ Page 990 Former Commissioner of the U.S. Immigration and Naturalization Service, Dorris Meisner, summarized the current state of immigration affairs within the nation, "I don't think there's been a time like this in our lifetime . . . . Even though immigration is always unsettling and somewhat controversial, we haven't seen this kind of intensity and widespread, deep-seated anger for almost 100 years."²

Cities and states have responded to the immigration influx in a variety of ways, but most recently there has been a bevy of legislative and enforcement activities. Legislative actions range from English-only ordinances to occupancy ordinances, which aim to prevent the harboring of illegal immigrants, to employer ordinances that suspend and even revoke business licenses for employers who persistently employ illegal workers. This list is far from comprehensive, as states and cities have created numerous other ordinances in efforts to control the consequences of increased illegal immigration.

According to the National Conference of State Legislatures, 570 pieces of immigration legislation were introduced in 2006.³ Of these, eighty-four bills were signed into law, which is more than double the number that were enacted in 2005. In 2006, thirty-two states enacted immigration laws.⁴ More recently, the New York Times reported that state legislatures across the nation have considered 1,404 pieces of legislation concerning immigration.⁵The increase in statutes that address illegal immigration seems to suggest that illegal immigration is a primary concern for many state and local governments. Page 991

Illegal immigration imposes a heavy burden upon cities and states because they are forced to absorb the increased costs.⁶ In response to the suburban immigration influx, cites have begun to enact municipal ordinances that attempt to reduce incentives for illegal entrants to remain in their cities. The two types of ordinances that prevail throughout the nation, and those that are receiving the most criticism, are the so called tenancy provisions and employer provisions."

The tenancy provisions attempt to rely upon federal prohibitions against harboring illegal aliens by barring landlords from renting residential property to illegal immigrants. The procedures for enacting these ordinances differ slightly from city to city, but in all cases a tenant is required to submit identity documentation to either the landlord or the city that then retains the information. If there is a valid complaint filed that alleges illegal immigrants are being harbored, then the identity data is collected and the legal status of the individual is verified with the federal government. If the report verifies that the renter has an illegal status, the city notifies the landlord. Thereafter, the landlord must either evict the tenant or face repercussions: prohibition from gathering rent and possible license revocation by city or state officials.

In contrast, the employer provisions invoke local licensing power, as provided to states and cities in United States Code Title 8, section 1324, to suspend or revoke business licenses from those who employ illegal workers.⁷ Pursuant to a valid complaint, a city code enforcement officer obtains identity documentation from the employer and verifies the worker's legal status with the federal government. If the federal government reports that the applicant is an illegal immigrant, the employer is thereafter required to fire the employee or face license suspension or revocation. Page 992

These ordinances have been challenged as a violation of the Supremacy Clause.⁸ Despite recent rulings, this Comment argues that employer provisions are not preempted by federal law.⁹Congress expressly reserved to states and cities the power to revoke licenses for employers knowingly employing illegal entrants. Therefore, states and cities are authorized to use their inherent police power to protect their citizens. On the other hand, this Comment argues that the tenancy provisions are likely preempted and thus unconstitutional under the Supremacy Clause. The tenancy provisions appear to constitute an attempt to institute an alien registration system that imposes additional burdens upon aliens that federal immigration policy does not and thus are preempted. More generally, this Comment argues that not all state or local ordinances that indirectly impact immigration issues are preempted and examines the employer and tenancy ordinances as a means to illustrate ordinances that are preempted and those that are not. This Comment asserts that if an ordinance is to avoid being preempted it must ensure the following criteria are met: (1) the ordinance must utilize inherent police power to protect citizens; (2) it must not undermine Congressional policy objectives; (3) it must not conflict with federal law, nor may it impose additional burdens upon aliens that Congress has not imposed; and (4) it must not directly regulate aliens. If these factors are met, then legislation that indirectly impacts immigration issues will not be preempted.

Part II of this Comment examines the current preemption challenges to the ordinances by detailing the jurisprudential test and the recent cases where this test has been applied. Part III analyzes recent rulings and applies the three prong preemption test as identified in DeCanas v. Bica to evaluate the constitutionality of the employer provision and the illegality of tenancy ordinances.¹⁰The July 2007 decision in Lozano v. City of Hazleton is the most in-depth court analysis of the preemption debate on these two provisions and thus serves as a framework for the analysis. Part IV is a brief examination of the policy concerns associated with state and local ordinances. Part V provides recommendations for creating legislation that both serves local interests in reducing the negative effects of increased illegal immigration and withstands constitutional scrutiny. Page 993

II Background

A Supremacy Clause

Recent municipal ordinances that attempt to reduce the negative impact of illegal immigration upon communities have been declared invalid pursuant to the Supremacy Clause.¹¹ The Supreme Court created a three-prong preemption test in order to determine whether federal law preempts and thus invalidates subordinate government legislation: express preemption, conflict preemption, and field preemption.¹² If any prong of this test is met, then the federal law will preempt the subordinate legislation.

Express preemption exists when federal law explicitly, specifically, and expressly precludes state or local laws. If federal law expressly precludes local concurrent regulation or enforcement, then the local ordinance is invalid both statutorily and constitutionally.¹³ Courts have found that the employer provisions are expressly preempted reasoning that section 1324 prohibits concurrent legislation.¹⁴

A statute is "conflict preempted" if it conflicts with federal law and thus makes compliance with both state and federal law impossible.¹⁵ Conflict preemption also may occur if congressional objectives or policy goals are undermined. Because a conflict preemption analysis not only encompasses the express provisions of the statute but also congressional objectives, which may be vague and ambiguous, it is a difficult area to analyze.

Field preemption occurs when Congress has so pervasively regulated within an area that there is no room left for states and local governments to regulate or when Congress has expressly held that the states are preempted. As described in Lozano v. City of Hazleton, "field preemption exists where the federal regulatory scheme is 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.'"¹⁶ Page 994

In determining whether the ordinances are preempted, the first step is to establish whether the ordinances are regulating immigration law or other local issues. Immigration regulation is an exclusive power of the federal government and thus ordinances that attempt to regulate in this area are inherently invalid under the Supremacy Clause. The United States Supreme Court stated in DeCanas v. Bica that only the federal government may issue "a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain."¹⁷ However, the Supreme Court also stated the following: "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised."¹⁸ Furthermore, the Eastern District Court of Virginia stated:

it is the creation of standards for determining who is and is not in this country legally that constitutes a regulation of immigration in these circumstances, not whether a state's determination in this regard results in the actual removal or inadmissibility of any particular alien . . . .¹⁹

Given the United States Supreme Court's ruling...