Thursday, August 1, 2013

Third Circuit on Hazleton Immigration Ordinance Redux

The Third Circuit has had yet another opportunity to review the constititionality of the city of Hazleton's extensive immigration ordinances in its new opinion in Lozano v. City of Hazleton [Pennsylvania].   Recall that the United States Supreme Court granted the City's petition for a writ of certiorari and vacated the Third Circuit's previous  decision  in light of Chamber of Commerce of United States of America v. Whiting.

In 2010, the Third Circuit panel, affirming the district court, had rendered an extensive 188 page opinion in unanimously finding that the two ordinances of Hazleton, Pennsylvania regulating immigration were 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.

 

Miners’_children_and_houses_near_Hazelton,_Pa.,_U.S.A,_by_Singley,_B._L._(Benjamin_Lloyd)
Miners' children, Hazleton Pennsylvania circa 1900

In its new opinion, the panel - - - again consisting of Chief Judge McKee and Judge Nygaard, with the previous designated judge now replaced by Judge Vanaskie - - - found that Whiting, as well as the Court's subsequent decision in Arizona v. United States regarding the notorious SB1070, did not command a different result.  Instead, the court again concluded that " both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law.”

 

Regarding the employment provisions of the Hazleton ordinance, the Third Circuit panel found that the Court's opinions in Whiting and Arizona did alter some of its previous analysis, but that the employment provisions of the Hazleton ordinance were so broad in their coverage of both actors and activities that they were an obstacle to the federal immigration law and were thus pre-empted. 

As to the housing provisions, the court found:

No part of Whiting or Arizona considered provisions of a state or local ordinance that, like the housing provisions here, prohibit, and define “harboring” to include, allowing unauthorized aliens to reside in rental housing. Moreover, nothing in Whiting or Arizona undermines our analysis of the contested housing provisions here. On the contrary, the Court‟s language reinforces our view that Hazleton‟s attempt to prohibit unauthorized aliens from renting dwelling units in the City are pre-empted.

Thus, the Third Circuit reaffirmed its view that the Hazelton ordinance is unconstitutional as pre-empted.

In considering whether or not to pursue a second petition for writ of certiorari to the United States Supreme Court, the City of Hazleton will undoubtedly be considering the extensive litigation costs it has already expended and deciding whether it should spend even more, although reportedly some costs have been paid by private contributions.

RR
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