GSB Vol. 13, NO. 4, Pg. 38. Immigration Policyand the Local HousingOrdinance Explosion: Are Local Communities Running Afoul of the Preemption Doctrine?.

Author:Anne E. Andrews

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 4, Pg. 38.

Immigration Policyand the Local HousingOrdinance Explosion: Are Local Communities Running Afoul of the Preemption Doctrine?

GSB JournalVol. 13, NO. 4December 2007Immigration Policyand the Local HousingOrdinance Explosion: Are Local Communities Running Afoul of the Preemption Doctrine?Anne E. AndrewsAs comprehensive immigration reform faltered in 2006 and again in 2007, local communities took immigration policy into their own hands by enacting housing ordinances aimed at excluding undocumented aliens from their communities. In courts across the United States, parties are fighting over whether these communities overstepped their constitutional boundaries by enacting these ordinances. By way of comparison, this article discusses one such Georgia community's attempt to exclude undocumented aliens.(fn1)

When Cherokee County commissioners approved an ordinance in December 2006, requiring landlords to verify their tenants' citizenship status, Georgia became the most recent in a rash of states to have governments enact measures aimed at preventing undocumented aliens from living in their communities.(fn2) Cherokee County Ordinance No. 2006-003 ("Cherokee Ordinance"), made it unlawful for any landlord in the county to "let, lease, or rent a dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law," or to "suffer or permit the occupancy" of such a person.(fn3) A landlord renting to an alien who is "not lawfully present in the United States" is deemed under the Cherokee Ordinance to be harboring an illegal alien, and is subject to having his business license suspended.(fn4) The Cherokee Ordinance also directs Cherokee County to pass on identifying information about such tenant(s) alleged to be the subject of the landlord's violation "to the appropriate state or federal enforcement agency."(fn5)

The consequences of the Cherokee Ordinance were short lived. Although the Cherokee Ordinance took effect on Jan. 1, 2007,(fn6) Cherokee County agreed to suspend it three days later, after the ACLU filed suit in the U.S. District Court for the Northern District of Georgia, alleging that the law represented an impermissible attempt by a local government to legislate in an area of law reserved solely to the federal government.(fn7) By agreeing to suspend the ordinance, at least temporarily, Cherokee County seemed to indicate that it would prefer to allow other communities with similar ordinances to test the constitutional issues presented and bear the cost of such litigation.(fn8) At the same time as the Cherokee County controversy, communities in Pennsylvania, Missouri, California, Texas and New Jersey were embroiled in litigation involving similar controversies.(fn9)

One such community was Hazleton, Penn., which was among the first to enact an immigrant housing ordinance.(fn10) The Hazleton ordinance ("Hazleton Ordinance") required tenants of residential properties to provide proof of citizenship or legal residency status in order to be granted a mandatory "occupancy permit."(fn11) A landlord found in violation of this requirement would be deemed to be housing an illegal alien and sanctioned accordingly.

Shortly after Hazleton passed its ordinance, opponents thereof sued Hazleton in response.(fn12) The plaintiffs in the action were composed of a group of documented and undocumented aliens and several nonprofit organizations.(fn13) Opponents of the Hazelton Ordinance argued that it would cause landlords to discriminate against potential tenants on the basis of ethnicity or national origin, something specifically prohibited by the Fair Housing Act.(fn14) Proponents of the Hazelton Ordinance responded that it made good sense, because their community was overburdened...

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