More than four years after we became involved in the case, the United States Court of Appeals for the Third Circuit affirmed the vast majority of a July 2007 opinion striking down Hazleton, Pennsylvania’s immigration-related ordinances as preempted by federal law. The Court found that Hazleton’s ordinances, which sought to punish the local employment and rental of housing to undocumented aliens, interfered with the federal government’s interests in regulating immigration.
After finding that the plaintiff’s had standing to sue, a threshold issue forcefully challenged by the city, the Third Circuit concluded that Hazleton’s attempts to regulate the employment of undocumented immigrants within its city limits were impliedly preempted because its provisions stand as an obstacle to the purposes of the federal immigration scheme. Specifically, the Third Circuit found that:
• Hazleton’s ordinances fail to strike the requisite balance between enforcement and avoidance of discrimination;
• Hazleton imposes on employers greater verification requirements than federal law; and
• Hazleton’s ordinances create a separate and independent adjudicative system for determining whether an employer is guilty of employing unauthorized aliens, which provides considerably less procedural safeguards than the federal system.
The Third Circuit found troubling Hazleton’s very decision to establish an alternate employer sanctions system at all. In the words of the Court:
If Hazleton’s ordinance is permissible, then each and every state and locality would be free to implement similar schemes for investigating, prosecuting, and adjudicating whether an employer has employed unauthorized aliens. […] A patchwork of state and local systems each independently monitoring, investigating, and ultimately deciding – all concurrently with the federal government – whether employers have hired unauthorized aliens could not possibly be in greater conflict with Congress’s intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers.
The Third Circuit also ruled that Hazleton could not compel its residents to use a federal pilot employment verification system known as E-Verify. E-Verify, the Court found, continues to have serious reliability problems, and Congress has authorized it only as a purely voluntary program.
Finally, Hazleton’s employment-related ordinance was found preempted because it imposes stricter verification requirements with respect to independent contractors and casual hires. Hazleton sought to mandate that all employers verify work eligibility for these workers, while federal law does not.
As for Hazleton’s efforts to outlaw the rental of residential properties to undocumented immigrants, the Third Circuit found that it was expressly and impliedly preempted by federal law. The Court found that Hazleton could not equate a simple landlord-tenant relationship with the criminal act of “harboring” absent an affirmative effort or intent to conceal anyone from federal immigration authorities. Notably, at oral argument, Hazleton argued that the ordinance did not preclude undocumented aliens from living in Hazleton, but only from renting there. The Court stated that “[a]lthough the federal government does not intend for aliens here unlawfully to be harbored, it has never evidenced an intent for them to go homeless.”
In essence, the Third Circuit summarized its conclusions as follows:
It is, of course, not our job to sit in judgment of whether state and local frustration about federal immigration policy is warranted. We are, however, required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress.
Cozen O’Connor was lead private counsel for the immigrants, landlords and a coalition civic organizations, in cooperation with several civil rights organizations. Amici briefs in support of our position were submitted by numerous private and governmental groups, including law enforcement associations, city governments across the country, the U.S. and more than a dozen State Chambers of Commerce, labor union coalitions, religious organizations, U.C. Berkeley and Columbia Law Schools, the Southern Poverty Law Center, the Anti-Defamation League and the Mexican American Legal Defense and Educational Fund.