"not the Place for You": Anti-immigrant Housing Ordinances, Federal Preemption, and Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013), Cert. Denied, 134 S. Ct. 2140 (2014)

• Publication year: 2021

93 Nebraska L. Rev. 226. "Not the Place for You": Anti-Immigrant Housing Ordinances, Federal Preemption, and Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013), cert. denied, 134 S. Ct. 2140 (2014)

"Not the Place for You"(fn1): Anti-Immigrant Housing Ordinances, Federal Preemption, and Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013), cert. denied, 134 S. Ct. 2140 (2014)

TABLE OF CONTENTS

I. Introduction..........................................227

II. Background...........................................233
A. Federal Preemption ...............................233
B. Federal Authority in the Area of Immigration......236
1. The Naturalization Clause, Foreign Affairs, and Foreign Commerce .............................237
2. Congressional Enactments .....................238
C. Supreme Court Immigration Jurisprudence ........239
1. Early Supreme Court Cases....................239
2. Hines v. Davidowitz ...........................241
3. DeCanas v. Bica ...............................241
4. Arizona v. United States .......................242
D. Lower Court Decisions on AIHOs ..................243

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1.Lozano v. City of Hazleton ..................... 245
2. Villas at Parkside Partners v. City of Farmers Branch ........................................ 247
E. Keller v. City of Fremont .......................... 249

III. Argument-Why the Fremont Ordinance Is Preempted............................................ 251
A. The Police Power Presumption Against Preemption Should Not Apply ................................. 251
B. The Ordinance Is Structurally Preempted as a Removal Policy .................................... 255
C. Keller's Locality Distinction Undermines the Objectives of Federal Authority over Immigration .. 258
D. The Ordinance Is Field Preempted by the Immigration and Nationality Act.................. 260
E. The Ordinance Is an Obstacle to the INA's Objectives ......................................... 262

IV. Conclusion............................................ 266

I. INTRODUCTION

In 2008, the City of Fremont, Nebraska passed an ordinance that, among other things, prohibited undocumented immigrants(fn2) from renting housing within its borders.(fn3) This ordinance is part of a trend by state and local governments-developing since the mid-2000s-to deter the influx of undocumented immigrants into their communities and dispel those already present.(fn4) This trend ostensibly reflects two concerns.(fn5) First, states enact these measures citing pressures created

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by the presence of large populations of undocumented immigrants.(fn6) The resulting increase in the number of workers raises the supply of labor, putting downward pressure on wages for low-skill jobs.(fn7) There is concern that undocumented immigrants create higher crime rates and put pressure on local law enforcement services.(fn8) There is also a perception that undocumented immigrants burden emergency medical services for health care(fn9) and place an increased demand for educational services on local schools.(fn10) Several states estimate undocumented immigrant populations do not fully offset their fiscal impact on state budgets with contributions to state tax revenues.(fn11) Based on these concerns, communities have felt compelled to dispel and deter the presence of undocumented immigrants to protect local interests.(fn12)

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Second, this increase in state and local anti-undocumented immigrant laws reflects frustration with the federal government.(fn13) Many feel strongly the federal government should effectively implement and enforce federal immigration law to alleviate the pressures undocumented immigrants place on states and localities.(fn14) The perceived local pressures outlined above are viewed as symptomatic of lax enforcement and inadequate concern for communities affected by immigration.(fn15) If the federal government is not going to hold up its end-so the thinking goes-then affected communities must pick up the slack.

States have attempted to control the influx of these unwanted populations through statutes and local ordinances that take a variety of approaches. Some require the use of E-Verify(fn16) by employers,(fn17) im-

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posing civil and criminal sanctions on those who hire undocumented immigrants. (fn18) Others require proof of lawful presence in the country on driver's license applications,(fn19) or tighten federal eligibility requirements for access to public benefits.(fn20) Arizona famously has required

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law enforcement officers to check the immigration status of persons they suspect of being in the country illegally(fn21) and permitted such suspicion to be the basis for warrantless detainment.(fn22) Arizona also imposed criminal sanctions on undocumented immigrants for seeking employment.(fn23) Several states have proscribed the transit and concealment of undocumented immigrants.(fn24) Another tactic on this score-and the subject of this Note-are anti-immigrant housing ordinances (AIHOs).(fn25) AIHOs generally require prospective tenants to apply for and obtain a rental license, then deny these licenses to those who cannot prove lawful presence in the country.(fn26)

The increase in state and local regulation of undocumented immigrants has been accompanied by a rise in legal challenges to these laws.(fn27) Plaintiffs often invoke the due process or equal protection clauses of the Fourteenth Amendment.(fn28) The most common challenges, however, have been claims that federal law preempts these state and local efforts.(fn29) When courts have struck down AlHOs, they have done so in recognition of the federal government's preemptive authority over immigration.(fn30)

Federal preemption of state immigration law is a topic of some controversy. Immigration policies are hotly debated(fn31) and federal pre-

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emption is an unsettled legal doctrine at the heart of perennial issues of federalism.(fn32) The Eighth Circuit's split panel decision in Keller v. City of Fremont(fn33) is quintessential. The ordinance at the heart of the case was a subject of contention among Fremont voters and in the me-dia.(fn34) The decision put the Eighth Circuit in a position at odds with holdings in the Third,(fn35) Fourth,(fn36) Fifth,(fn37) Ninth,(fn38) and Eleventh Circuits,(fn39) and produced a strongly worded dissent.(fn40) As such, Keller provides a useful illustration of federal preemption in the area of immigration and AIHOs specifically.

The significance of Keller stems from two aspects of the opinion. First, it presents a green light to states and municipalities in the Eighth Circuit to enact AIHOs, ending an unbroken record of success-

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ful challenges to these laws nationwide. As one commentator has noted, the doctrine of federal preemption does not necessarily provide a sufficiently predictable legal tool for challenging AIHOs.(fn41) But preemption has, until Keller, proved to be an effective and consistently successful basis for striking down these laws. By upholding Fremont's ordinance, Keller clears a path for cities and states to remove undocumented immigrants from their borders by precluding them from entering into private contracts for housing.(fn42)

Second, Keller is significant because the language of the ordinance at issue is substantially identical to AIHOs struck down by other circuits. Fremont did not discover a new way to write AIHOs that satisfied the objections of the courts. Instead, the Eighth Circuit adopted a narrow view of federal preemptive authority over immigration and characterized the AIHO at issue as nothing more than a "local property licensing scheme."(fn43) Furthermore, the Eighth Circuit based its view in part on a heightened standard for preemption which was inapplicable and which the court did not make an effort to justify.(fn44)

This Note argues the Fremont ordinance, and other AIHOs, should be federally preempted. Part II reviews the doctrine of federal preemption and describes the historic recognition of federal authority over immigration. It also summarizes Supreme Court case law on immigration and preemption, lower court decisions on AIHOs, and the Keller decision. Part III argues for preemption of the Fremont ordinance.

II. BACKGROUND

A. Federal Preemption

Federal preemption arises as a necessary consequence of the dual sovereignty of state and federal governments, and the primacy of federal law in particular areas.(fn45) Thus, "in cases of concurrent authority,

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where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority."(fn46) Federal law- the Constitution, federal statutes, and treaties-preempts expressly or by implication.(fn47) Both express and implied preemption often stem from a judicial assessment of what Congress has purposed.(fn48) Express preemption occurs when Congress, pursuant to its Constitutional authority, unequivocally states its intent that state governments refrain from regulating in a particular area.(fn49)

Federal law preempts by implication where the courts infer that an entire subject area, or "field," is to be occupied by federal law to the exclusion of the states, or where compliance with a state law directly conflicts with federal law.(fn50) The first of these implied forms of pre-emption-the inference that federal law occupies a field...