With some of its recent rulings, the U.S. Supreme Court may have breathed new life into the city of Hazleton's ordinance barring employers and landlords from hiring or renting to illegal immigrants, the chief judge of the U.S. Court of Appeals for the Third Circuit implied in questioning at a hearing last week.
In 2006, the city was the first to pass such a restrictive law, but it was promptly enjoined from taking effect by U.S. District Judge James Munley of the Middle District of Pennsylvania -- a ruling that was upheld by the Third Circuit in 2010.
However, in light of the Supreme Court's opinions from its most recent term and the previous term regarding immigration-related state laws, the Third Circuit heard arguments on Hazleton's ordinance on remand from the high court.
Although Chief Judge Theodore McKee wrote the opinion striking down the law in 2010, he told Omar Jadwat, of the American Civil Liberties Union Immigrants' Rights Project, "You are paddling against such stiff currents," when Mr. Jadwat started his argument by announcing that he wanted to focus on the employment portion of the ordinance.
Judge McKee suggested that spending his time on that argument might not be worth his while.
In light of the Supreme Court's 2011 holding in Chamber of Commerce v. Whiting, which held that states can revoke the licenses of businesses that intentionally hire illegal immigrants, Hazleton's ordinance is likely on firm ground.
The Whiting decision narrowly applies to employment regulations, Peter J. Spiro, a professor who teaches immigration law at Temple University, said earlier this week, but it clearly covers the ones in Hazleton's ordinance.
The U.S. Supreme Court basically acknowledged that when it granted certification, vacated the Third Circuit's opinion and remanded the case. That opinion gives state and local governments "carte blanche" to use business licensing as a tool for enforcing immigration laws, he said.
Everything about the relationship between an employer and an employee in Hazleton's ordinance, as in the Whiting case, "is pegged to federal law," Judge McKee said.
The Whiting court put a lot of emphasis on the fact that employers under the state law would be facing the same rules that they were already under, whereas the Hazleton ordinance imposes a three-day period after an employer is notified of a violation in which he must fire a worker who is not in the country legally, Mr. Jadwat told the court.
From an employee's perspective, under the Hazleton ordinance, he could be fired without knowing why, which is not how the federal law nor the Arizona law would work -- and also wouldn't allow for due process, he said.
The rental provision, which requires renters to get a permit by submitting identity information including their immigration status so that it can be checked with the federal government's records, falls under the U.S. Supreme Court's holding from June in Arizona v. United States, which sets a stiff pre-emption standard.
"Hazleton is basically saying, 'You're not allowed to have shelter,' " Judge McKee said, adding that earlier, Kris Kobach, the lawyer representing Hazleton's city government, had suggested that illegal immigrants could buy a home.
But Judge McKee said, even if that were a reasonable option, the law could easily be amended to preclude it. The fact that Hazleton basically says to a group of people, "You can't be here," seems to be "squirrelly within the very broad field of immigration policy," he said.
"There are many ways illegal immigrants stay," Mr. Kobach said, explaining that they often live in crowded houses with others. He cited several sections of the U.S. Code, saying that "federal law requires people to encourage illegal aliens to leave."
Mr. Kobach -- who is Kansas' secretary of state -- answered that the most important limiting principles in the ordinance are: first, that it doesn't require registration or card carrying and, second, that it wouldn't allow the city to take action on removing a person from a rental space until the federal government confirms that person's immigration status.
He noted the U.S. Supreme Court had addressed those issues in the Arizona case and Hazleton's rental ordinance doesn't conflict with federal law.
After allowing Mr. Kobach and Mr. Jadwat each roughly twice the allotted 15-minute argument time, Judge McKee concluded that, although it may not seem to be from the perspective of counsel, it will be a difficult case for the court to decide. The arguments in Lozano v. City of Hazleton were heard by a three-judge panel that also included Judge Thomas Vanaskie and Senior Judge Richard Nygaard.
Speculating on how the court might rule, Mr. Spiro said that when Whiting and Arizona are put together, "Licensing is OK -- everything else, the courts are going to be very wary," meaning the employment portion of the Hazleton law likely will stand, but the rental provision is up in the air.