An increasing number of local- and municipal-level governments nationwide have considered or passed ordinances that require apartment residents to secure government-issued renter licenses. Additionally, the measures impose criminal penalties upon apartment owners who rent to illegal immigrants.
These ordinances in recent years effectively force landlords to assume the role of immigration police and have elicited stiff opposition from a broad range of stakeholders, including the apartment industry, civil liberties groups, immigrant rights organizations and, in some cases, law enforcement officials.
In 2010, federal circuit and district court judges ruled illegal immigration ordinances targeting apartment owners and renters in Farmers Branch, Texas, and Hazelton, Pa., unconstitutional. In both cases, the judges cited the Supremacy Clause of the U.S. Constitution, which grants the federal government, not states, the authority to make laws concerning illegal immigration.
On June 7, however, the U.S. Supreme Court ordered the Third U.S. Circuit Court of Appeals to re-examine the Hazelton case. That order stemmed from a May 26 ruling by the court, which upheld portions of an unrelated Arizona law passed in 2007—the Legal Arizona Workers Act (LAWA). That law requires employers to use E-Verify to determine employees’ citizenship status and permits the state to revoke and suspend business licenses of employers who knowingly hire illegal immigrants.
Opponents of the law argued that the federal Immigration Reform and Control Act (IRCA), which prohibits state and local governments from imposing sanctions on businesses that employ illegal aliens, “expressly” invalidated the measure. IRCA does, however, provide an exemption to that prohibition by allowing states to adopt licensing laws aimed at curbing illegal immigration. Opponents further argued that because federal law makes use of E-Verify voluntary, Arizona’s law is “impliedly” preempted by federal law, as it requires employers to use the program.
Supreme Court Makes Ruling
The trial-level court and the Ninth Circuit Court of Appeals took issue with the assertion maintained by opponents of LAWA that the law is preempted by the IRCA because it allows for the revocation of licenses but does not direct the state to adopt a new form of licensure. Both courts held that the licensing sanctions imposed under the Arizona law met the definition of licensing provided for within the IRCA. The Supreme Court agreed.
Writing for the majority in the high court’s 5-3 ruling, Chief Justice John Roberts said, “[T]here is no basis for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those licenses [is] something else altogether.” The majority dismissed opponents’ arguments that Congress intended federal immigration law to preclude states from imposing sanctions—such as revoking or suspending an employer’s business license—as a means of curbing illegal immigration. In its majority opinion, the court maintained that “Congress did not intend to prevent states from using appropriate tools”—including licensing schemes and E-Verify—to exercise its authority.”
That decision prompted the court to issue its June 7 order that the Third Circuit Court of Appeals reconsider its decision concerning the Hazelton ordinance. The ordinance created a mandatory rental licensure program for apartment residents and provided for the revocation of such licenses if a resident was found to be in the country illegally. Additionally, the ordinance granted the city authority to revoke business licenses of employers found to have employed illegal immigrants.
“The high court’s decision in the Arizona case,” reports The Christian Science Monitor, “is providing new momentum to efforts at the state and local level to enact measures to counter perceived lax federal enforcement of immigration laws.”
NAA will continue to monitor the Third Circuit’s review of its decision in the Hazelton case and will keep members abreast of developments concerning the legality of state and local immigration enforcement laws.
Erik Taylor is NAA’s Manager, State & Local Government Affairs, and can be reached at 703/797-0672.