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Tuesday, July 23, 2013

Ordinance Prohibiting Illegal Aliens From Renting Unconstitutional

The City of Farmers Branch, Texas adopted an ordinance requiring individuals to obtain a license before renting an apartment or home. The ordinance required proof of citizenship or other evidence that the licensee is lawfully present in the U.S. The ordinance provides criminal penalties for violations of the license requirement and for making any false statement on a license application.  Landlords can also be prosecuted for knowingly permitting an occupant to rent without a license. 
A group of landlords and tenants sued the City to challenge the ordinance.  The district court ruled in their favor, holding that the ordinance was preempted under the U.S. Constitution's Supremacy Clause, as an improper regulation of immigration. The City appealed to the Fifth Circuit Court of Appeals, which affirmed the ruling against the City.  Villas at Parkside Partners, et al. v. City of Farmers Branch
The opinion is 122 pages long, with multiple opinions, including a majority opinion, three concurring opinions, one concurring/dissenting opinion, and a dissenting opinion.  To make the opinion even more convoluted, the author of the majority opinion files a separate concurring opinion.
The appellate court first acknowledged the U.S. Supreme Court's recent decision in U.S. v. Arizona that struck down provisions in an Arizona law that required legal immigrants to carry registration documents at all times, allowed state police to arrest any individual for suspicion of being an illegal immigrant, and made it a crime for an illegal immigrant to be employed in the state.  In that case, the U.S. Supreme Court determined that the Arizona law was preempted by the Supremacy Clause of the U.S. Constitution because it conflicted with federal immigration laws and policies.  Similarly, the Fifth Circuit determined that enforcement of the Farmers Branch ordinance also conflicts with federal law because the establishment of criminal penalties based on the housing of non-citizens disrupts the federal immigration framework, allowing state police to hold aliens in custody for unlawful presence without any federal direction or supervision. 
The concurrence agreed with the majority's decision, but would go a step further and hold that the ordinance was not only preempted by federal law, but was also not a valid exercise of the City's police power in "effectively removing illegal immigrants from the City" by singling out illegal immigrants for adverse treatment "reminiscent of the anti-Japanese fever that existed in the 1940s." 
The dissent would uphold the ordinance as a valid exercise of the City's police power, stating that the police power "no doubt empowers Farmers Branch to enact a licensing regime to exclude child predators from living in multifamily apartment complexes" and, therefore, would seem to follow that the City could deter illegal aliens from renting through the same police powers, so long as no invidious discrimination occurs. 


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