June 6, 2011
Update on Hazelton Immigration Ordinance: Back to the Third Circuit
Today, the United States Supreme Court rendered an Order in Hazelton, PA v. Lozano:
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___ (2011).
The Third Circuit panel, affirming the district court, rendered an extensive 188 page opinion in September 2010 which we discussed here. The Third Circuit panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme. The employment provision in Hazleton made it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and required employer affidavits. The ordinances also had a housing provision making it unlawful for landlords to rent to unlawful residents.
As we noted, the Third Circuit opinion conflicted in part with the Ninth Circuit's conclusion in Chamber of Commerce v. Whiting. And now that the United States Supreme Court has affirmed Whiting - - - in an opinion last week - - - it is not surprising that the Court would remand Hazelton to the Third Circuit.
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The court in Hazleton treated the housing and employment immigration ordinances quite differently, saying 'housing' ordinances did not have presumptive constitutionality. Whiting only dealt with employment regulation through the space IRCA allows states for imposing sanctions on businesses (the sanction is the real possibility the state could revoke the business' license). Housing is a very different animal than employment. The breadth of federal law and case law on housing discrimination and landlord-tenant relations makes access closer to a human right than access to employment. I find this remand quite disturbing and don't know how the Third Circuit is going to jam 'housing' into Whiting's protected preemption box where states can regulate immigration through licensing sanctions.
Posted by: Bianca C. | Oct 30, 2011 7:02:56 AM