In 2006 the city of Hazleton, in northeastern Pennsylvania (pop. approx. 25,000,) enacted a series of local ordinances aimed at unauthorized aliens living and working in Hazleton. "Hazleton’s mayor, as well as other local officials ... concluded that aliens lacking lawful status were to blame for certain social problems in the City ... and that the federal government could not be relied upon to prevent such aliens from moving into the City, or to remove them... . Accordingly, City officials decided to take independent action to regulate the local effects of unlawful immigration." (Lozano v. Hazleton, p. 12.)
This was not an isolated effort. The National Conference of State Legislatures (NCSL) reported that in 2009 over 200 state laws relating to immigration were enacted, and over 300 such laws and resolutions were enacted in the first half of 2010.
The Hazleton ordinances were designed to prevent unauthorized aliens from obtaining employment or rental housing. Individuals and groups sued the city, alleging the ordinances are unconstitutional and violate federal and state statutes.
In 2007 the federal district court ruled that the ordinances were indeed unconstitutional because they are preempted by controlling federal immigration laws. Hazleton appealed to the U.S. Court of Appeals for the Third Circuit.
On September 9, 2010 the Third Circuit issued its 188-page decision, upholding the district court's finding of unconstitutionality, though on somewhat different reasoning. The plaintiffs' advocates were pleased: "This is a major defeat for the misguided, divisive and expensive anti-immigrant strategy that Hazleton has tried to export to the rest of the country," said Omar Jadwat, a staff attorney with the American Civil Liberties Union Immigrants' Rights Project. "The Constitution does not allow states and cities to interfere with federal immigration laws or to adopt measures that discriminate against Latino and immigrant communities." The defendants' advocates were subdued: "Kris Kobach, a law professor who represents ... Hazleton ... told The Associated Press that Hazleton's ruling was on the 'extreme end of the spectrum when it comes to these issues.'" Hazleton's mayor, Lou Barletta, vowed to take the case up to the U.S. Supreme Court.
Beyond the constitutional issues of interest to lawyers and legislators, what lessons can the general public draw from the Third Circuit's opinion? There are two main points that should be emphasized.
First, and most importantly, the Court discussed a "fundamental misconception" at the heart of the Hazleton ordinances: "Hazleton goes to great lengths to defend its housing provisions as providing for an accurate assessment of tenants’ immigration status, and only denying housing to those whom the federal government confirms are here unlawfully. Even assuming Hazleton is correct, this argument does not advance Hazleton’s cause; rather, it highlights the fundamental misconception at the heart of these ordinances. Through its housing provisions, Hazleton attempts to remove persons from the community based on current immigration status. However, as Justice Blackmun explained in Plyler: “the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” 457 U.S. at 236 (Blackmun, J., concurring). ...Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law. Hazleton would effectively remove from its City an alien college student the federal government has purposefully declined to initiate removal proceedings against.38 So too would Hazleton remove an alien battered spouse, currently unlawfully present, but eligible for adjustment of status to lawful permanent resident under the special protections Congress has afforded to battered spouses and children. See 8 U.S.C. § 1229b(b)(2). In each of these instances, as in every single instance in which Hazleton would deny residence to an alien based on immigration status rather than on a federal order of removal, Hazleton would act directly in opposition to federal law." (Lozano at 138-140.)
Second, the Court addressed the issue of language: "Hazleton refers to persons who are not lawfully present within the United States as “illegal aliens.” Plaintiffs refer to them as “undocumented immigrants.” We recognize that there are significant criticisms of each term. See, e.g., Beth Lyon, When More “Security” Equals Less Workplace Safety: Reconsidering U.S. Laws that Disadvantage Unauthorized Workers, 6 U. Pa. J. Lab. & Empl. L. 571, 576 (2004) (“Scholarly and popular concerns about the phrase ‘illegal alien’ abound, pointing out that the phrase is racially loaded, ambiguous, imprecise, and pejorative.”); Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 522 n.2 (Cal. Ct. App. 2008) (“[T]he term ‘illegal alien’ [is] less ambiguous [than the term ‘undocumented immigrant.’]”), rev. granted, 198 P.3d 1 (Cal. 2008). Federal immigration law defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). “Immigrant” is defined as “every alien except an alien who is within [certain specified] classes of nonimmigrant aliens,” and generally refers only to lawful permanent residents. 8 U.S.C. § 1101(a)(15). Congress has preferred the term “alien” to describe those persons who lack lawful immigration status, see, e.g., 8 U.S.C. §§ 1182, 1227, 1228. We will use the word “alien” rather than “immigrant” because “alien” is more precise, and precision is important to discussions in this area. When discussing issues of employment, we will use the official term: “unauthorized alien.” 8 U.S.C. § 1324a. However, when discussing issues of immigration status, we will use either: “aliens not lawfully present” or “aliens lacking lawful immigration status,” rather than “illegal aliens.”" (Lozano at 11-12.)
In sum, the Court said that immigration law is federal law rather than state or local law, that an alien's immigration status can change, and that aliens should not be stigmatized by labels, regardless of immigration status.
In coming U.S. Supreme Court terms, as this and other state cases make their way up the appellate chain, the federal preemption issue will remain uppermost in the minds of the lawyers. All of us, though, as voters and as civic participants, should keep in mind the other, broader lessons of Hazleton. And in the end, we must also keep in mind the hard economic realities driving migration, laws or no laws. As noted by veteran border watcher Charles Bowden, "The only way you’ll stop Mexicans coming to the U.S. is if you lower American wages to the same level as Vietnam. ... What we’re seeing is something right out of the Bible. This is an exodus."
