No Supreme Court review for local laws against harboring illegal immigrants

The US Supreme Court on Monday let stand two appeals court decisions blocking local ordinances that sought to bar landlords from renting housing to illegal immigrants and to prevent employers from hiring workers who lack proper immigration authorization.

In both cases, the lower courts ruled that the ordinances are preempted by federal immigration statutes and national policies set by the Obama administration. 

The cases stem from local measures passed by the City of Hazelton, Pa., and the City of Farmers Branch, Texas.

Both appeals were being presented by Kris Kobach of Kansas City, the same lawyer who helped write Arizona’s controversial “show me your papers law” that was partly upheld and partly struck down by the high court in June 2012. Mr. Kobach is secretary of state of Kansas and also works as a lawyer with the conservative Immigration Law Reform Institute.

The action by the Supreme Court means that decisions by the Third US Circuit Court of Appeals in Philadelphia and the Fifth US Circuit Court of Appeals in New Orleans will remain in place. The high court announced its decision not to hear the cases in a one-line order, and offered no explanation.

The cases arose as part of a larger struggle over US immigration policy amid a growing number of undocumented immigrants in communities across the country. Some communities welcome the newcomers with open arms; others have sought to encourage them to go elsewhere.

The Hazelton ordinances were passed in an effort to prevent the employment and harboring of illegal immigrants in the city by requiring landlords and employers to provide information about their tenants and employees to the city.

In 2006, a group of landlords, tenants, employers, and employees filed suit to block the Hazelton ordinances. They argued that the local measures interfere with the federal government’s regulation of immigration, and are thus preempted.

A federal judge agreed and issued a permanent injunction blocking the measures from taking effect. The Third US Circuit Court of Appeals affirmed.

The case reached the US Supreme Court in 2010. The high court reversed the Third Circuit’s decision and remanded the case to the lower courts in light of a recent Supreme Court decision upholding a similar employment law in Arizona.

Despite the remand from the high court, the Third Circuit, again, struck down both Hazelton ordinances. The appeals court said that both measures impermissibly intrude on the efforts of the federal government to decide how best to regulate immigration and illegal immigrants.

In urging the Supreme Court to once again take up the Hazelton case, Mr. Kobach said the issue was whether municipalities can use their own police powers to help the federal government carry out its immigration mission.

Cities and states are struggling to find solutions to illegal immigration, he said. More than 500 immigration-related bills were debated in state legislatures in 2013.

The issue has resulted in conflicting rulings among as many as six federal appeals courts. The St. Louis-based Eighth Circuit has upheld a local immigration ordinance, but other appeals courts have ruled the measures preempted.

“This is an untenable situation; federal preemption has either occurred or it has not,” Kobach wrote in his brief. “One state in the Republic cannot be barred from enacting a statute that another state is permitted to enact.”

Lawyers challenging the Hazelton ordinances stressed in their brief that five of six federal appeals courts have invalidated state and local laws aimed at harboring illegal immigrants.

“The court of appeals correctly concluded that Hazelton may not establish a legal regime that conflicts with federal law by punishing immigrants and landlords without federal direction or supervision for conduct that Congress has decided not to prohibit,” wrote Omar Jadwat of the American Civil Liberties Union Foundation.

The second case involved the City of Farmers Branch in Texas. It included the same lineup of lawyers arguing the Hazelton case; Kobach for the city and Mr. Jadwat for those challenging the ordinances.

Like the Hazelton harboring ordinance, the Farmers Branch measure sought to require tenants to reveal their immigration status or face eviction.

Landlords and renters in the city filed suit challenging the ordinance in September 2008. They argued that the local measure is preempted by federal immigration law.

A federal judge blocked the measure. That decision was upheld by a three-judge panel of the Fifth Circuit. Later, the full Fifth Circuit ruled 9 to 6 that local law is preempted and invalid.

In urging the high court not to take up the Farmers Branch case, Jadwat noted that five of the six appeals courts that have examined similar harboring laws have ruled that they are preempted by federal immigration law.

“Any disagreements that do exist between the five circuits that have held the laws preempted and the one outlier circuit are not dispositive here, have little practical significance, and are not nationally important at this time,” Jadwat wrote. 

Kobach countered that the real split among the circuits involved three appeals courts – the Third, the Fifth, and the Eighth.

The Third Circuit invalidated two ordinances in Hazelton. The Fifth Circuit invalidated the ordinance in Farmers Branch. In contrast, the Eighth Circuit upheld a similar ordinance in Missouri.

“It is undeniable that those two circuits reviewed nearly identical ordinances and came to the opposite conclusions,” Kobach wrote. “It is also undeniable that four days after the Fifth Circuit ruled, the Third Circuit struck down a very similar ordinance [in the Hazelton case].”

The ruling in the Eighth Circuit case came in June 2013. The appeals court upheld an ordinance in Freemont, Neb., that required all renters in the city to obtain an occupancy license and face a possible immigration status check. The appeals court panel ruled 2 to 1 that the measure is not preempted by federal immigration law.