HIGGINSON, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and W. EUGENE DAVIS, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges.
"America's history has long been a story of immigrants."
The Ordinance at issue in this case and passed by the active citizens of the City of Farmers Branch ("Farmers Branch") seeks to regulate non-citizens who reside in the United States contrary to law. Farmers Branch, Tex., Ordinance 2952 (Jan. 22, 2008), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F.Supp.2d 835, 861 (N.D.Tex.2010). Farmers Branch classifies these non-citizens as persons "not lawfully present in the United States." Id. at §§ 1(D)(2); 3(D)(2). Responding to an "aroused popular consciousness," Baker v. Carr, 369 U.S. 186, 270, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting), and frustration at the perceived lack of federal enforcement of immigration law, Farmers Branch sought to "prevent" such persons from renting housing in the city. The district court concluded, inter alia, that the Ordinance was conflict preempted under federal law. Villas at Parkside Partners, 701 F.Supp.2d at 861. Because we hold that the Ordinance's criminal offense and penalty provisions and its state judicial review process conflict with federal law, we AFFIRM the judgment of the district court.
Ordinance 2952 sets forth licensing provisions and criminal sanctions. The Ordinance requires individuals to obtain a license before occupying a rented apartment or "single-family residence." Ordinance 2952 at §§ 1(B)(1); 3(B)(1). For persons not declaring themselves citizens or nationals of the United States, Farmers Branch's building inspector must verify "with the federal government whether the occupant is an alien lawfully present in the United States." Id. at §§ 1(D)(1); 3(D)(1). Upon such inquiry, if the federal government twice "reports" that the occupant is "not lawfully present in the United States," then the building inspector must revoke the occupant's license after notifying both the occupant and the landlord. Id. at §§ 1(D)(1)-(4); 3(D)(1)-(4). The Ordinance provides that "[a]ny landlord or occupant who has received a deficiency
The Ordinance's criminal provisions prohibit persons from occupying a rented apartment or single-family residence without first obtaining a valid license, id. at §§ 1(C)(1); 3(C)(1); 5, and making a false statement of fact on a license application, id. at §§ 1(C)(2); 3(C)(2); 5. Landlords, in turn, are prohibited from renting an apartment or single-family residence without obtaining licenses from the occupants, id. at §§ 1(C)(4); 3(C)(4); 5, failing to maintain copies of licenses from all known occupants, id. at §§ 1(C)(5); 3(C)(5); 5, failing to include a lease provision stating that occupancy by a person without a valid license constitutes default, id. at 1(C)(6); 3(C)(6); 5, and allowing an occupant to inhabit an apartment without a valid license, id. at 1(C)(7); 3(C)(7); 5. If a landlord commits the criminal offense of knowingly permitting an occupant to remain in an apartment or single-family residence without a valid license, id. at §§ 1(C)(7); 3(C)(7), then the building inspector shall suspend the landlord's rental license until the landlord submits a sworn affidavit stating that the occupancy has ended, id. at §§ (D)(5)-(7); (D)(5)-(7). A landlord may appeal the suspension of a rental license to the city council. Id. at §§ 1(D)(8); 3(D)(8). The Ordinance also criminalizes creating, possessing, selling or distributing a counterfeit license. Id. at §§ 1(C)(3), 3(C)(3), 5.
These seven offenses are Class C criminal misdemeanors punishable by a fine of $500 upon conviction, see Tex. Penal Code Ann. § 12.41(3) (West 2009); State v. Chacon, 273 S.W.3d 375, 377 n. 2 (Tex.App. 2008); Ordinance 2952 at §§ 1(C); 3(C); 5, with a separate offense deemed committed each day that a violation occurs or continues, id. at § 5. In Texas, local police may make arrests for Class C misdemeanors. See TEX.CODE CRIM. PROC. ANN. art. 14.01(b), 14.06(a)-(b) (West 2011).
Two groups of plaintiffs, 0 comprised of landlords and tenants, sued the City, seeking to enjoin the Ordinance. Villas at Parkside Partners v. City of Farmers Branch, 701 F.Supp.2d 835 (N.D.Tex. 2010). The district court found the Ordinance to be preempted under the Supremacy Clause, both as an improper regulation of immigration because it "applies federal immigration classifications for purposes not authorized or contemplated by federal law," id. at 860; see generally DeCanas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), and also as an obstacle to the "comprehensive federal" scheme for "removing aliens or adjudicating their status for that purpose," which the district court described as "structured, in part, to allow federal discretion and to permit in appropriate circumstances a legal adjustment in an alien's status," id. at 860-61. The district court therefore granted summary judgment to the plaintiffs on their Supremacy Clause claim and permanently enjoined enforcement of the Ordinance. Id. at 860-61.
After a panel of our court affirmed the district court judgment, Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir.2012), the Supreme Court issued its decision in Arizona, 132 S.Ct. 2492, which comprehensively set forth the reasons why federal law preempted various provisions of Arizona law relating to non-citizens. That case concerned a Supremacy Clause challenge to various sections of an Arizona law known as S.B. 1070 that was enacted with the stated purpose of "`discourag[ing] and
The Supremacy Clause provides that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. The Court in Arizona reiterated that in the absence of an express preemption provision, a state or local law may be required to "give way to federal law" under at least two circumstances: field and conflict preemption. Arizona, 132 S.Ct. at 2501.
Second, state and local laws are preempted "when they conflict with federal law." Id. "This includes cases where `compliance with both federal and state regulations is a physical impossibility,' and those instances where the challenged state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. (citing Hines, 312 U.S. at 67, 61 S.Ct. 399). "What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id. (quoting Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000)). In preemption analysis, we "assume that `the historic police powers of the States' are not superseded `unless that was the clear and manifest purpose of Congress.'" Id. (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146).
Generally, we review a district court's grant of a permanent injunction for abuse of discretion. Peaches Enter. Corp. v. Enter. Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir.1995). However, we review the "ultimate issue" in this case — the district court's grant of summary judgment on preemption grounds — de novo. VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir.2006); Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5th Cir.1994).
We conclude that enforcement of the Ordinance conflicts with federal law. See Arizona, 132 S.Ct. at 2501. Conflict exists despite Farmers Branch's argument that its Ordinance establishes "concurrent enforcement" of federal immigration law, as "[t]he fact of a common end hardly neutralizes conflicting means." Crosby, 530 U.S. at 379, 120 S.Ct. 2288. By setting forth criminal offenses that "discourage illegal immigration or otherwise reinforce federal immigration law," and by providing
Applying Arizona, we hold that Farmers Branch's establishment of new criminal offenses based on the housing of non-citizens "disrupt[s] the federal [immigration] framework," Arizona, 132 S.Ct. at 2509, both by interfering with federal anti-harboring law and by allowing state officers to "hold[] aliens in custody for possible unlawful presence without federal direction and supervision." Id.; cf. id. at 2499 ("The dynamic nature of relations with other countries requires the Executive Branch to ensure that [immigration] enforcement policies are consistent with this Nation's foreign policy."); see also Ga. Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250 (11th Cir.2012), reh'g en banc denied, No. 11-13044 (11th Cir. Nov. 27, 2012); United States v. Alabama, 691 F.3d 1269 (11th Cir.2012), cert. denied, 569 U.S. ___, 133 S.Ct. 2022, 185 L.Ed.2d 905 (2013) (No. 12-884).
Farmers Branch claims its Ordinance will concurrently enforce federal anti-harboring law by providing "a different mechanism against the same ... conduct" criminalized by the federal government. Ordinance 2952, pmbl. As the Supreme Court has cautioned, however, "conflict is imminent" when "two separate remedies are brought to bear on the same activity." Crosby, 530 U.S. at 380, 120 S.Ct. 2288 (quoting Wisconsin Dep't of Indus. v. Gould, Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986)). Here, "examining the federal statute as a whole and identifying its purpose and intended effects," we conclude that the Ordinance stands as an obstacle to "the accomplishment and execution of the full purposes and objectives" of Congress. See id. at 373, 120 S.Ct. 2288.
It is a federal felony for any person, "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law," to "conceal[], harbor[], or shield[] from detection ... such alien in any place, including any building." 8 U.S.C. § 1324(a)(1)(A)(iii). In enacting this provision, Congress "intended to broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an alien's remaining in the United States illegally...." United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 n. 5 (5th Cir.1982). To that end, we have interpreted the statutory phrase "harbor, shield, or conceal" to imply that "something is being hidden from detection." United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir.1981).
Several additional features of 8 U.S.C. § 1324 further illustrate this conflict.
Another stated purpose of the Ordinance was to "aid in [the] enforcement" of the federal law providing — in the Ordinance's words — that "certain aliens not lawfully present in the United States are not eligible
Significantly, in remanding the conflict preemption inquiry to the state court, the Court in DeCanas noted California's concession that if its law reached aliens with employment authorization but without lawful status, it would be facially unconstitutional. DeCanas, 424 U.S. at 364, 96 S.Ct. 933. In this case, Farmers Branch's Ordinance reaches non-citizens who may not have lawful status but face no federal exclusion from rental housing, and exposes those non-citizens to arrests, detentions, and prosecutions based on Farmers Branch's assessment of "unlawful presence." The Ordinance not only criminalizes occupancy of a rented apartment or single-family residence, but puts local officials in the impermissible position of arresting and detaining persons based on their immigration status without federal direction and supervision. See Arizona, 132 S.Ct. at 2505.
Farmers Branch argues that the building inspector's "unlawful presence" inquiry is no different from those inquiries "made by hundreds of local governments daily to the federal government to ascertain immigrants' status and qualifications for benefits ranging from housing assistance to student loans to medical care and disability income." In those instances, however, the federal government has set out specific
While federal law provides carefully calibrated definitions of the term "qualified alien" for the purpose of conferring benefits, the Ordinance does not specify which of many federal immigration classifications Farmers Branch officials would use to resolve whether a non-citizen was "lawfully present." The Ordinance's "generality stands at odds with the federal discreteness." Crosby, 530 U.S. at 379, 120 S.Ct. 2288; see also Odebrecht, 715 F.3d at 1281-82 (finding that a state law "squarely conflicts with the more nuanced federal regime" because "in stark contrast to the federal regime, [the state law] penalizes any [conduct] — no ifs, ands, or buts."). Indeed, because federal law does not limit the ability of non-citizens to obtain rental housing,
While Farmers Branch officials testified that they intended to use the federal SAVE program to determine lawful presence, the chief of that program testified that SAVE can provide only a non-citizen's specific immigration status; it "does not answer lawful presence or not."
Based on a classification that does not exist in federal law, Farmers Branch has criminalized the occupancy of rental housing by those non-citizens found to be "not lawfully present." Ordinance 2952 §§ 1(C)(1); 3(C)(3); 5. Texas law allows local officers to arrest and detain individuals for Class C misdemeanors. Texas Code Crim. Proc. art. 14.01; 14.06; 15.17.
The Supreme Court in Arizona invalidated a state law provision ("Section 6") allowing state officers to "without a warrant... arrest a person if the officer has probable cause to believe ... [the person] has committed any public offense that makes [him] removable from the United States." Arizona, 132 S.Ct. at 2505. The Court held that Section 6 "violates the principle that the removal process is entrusted to the federal government" by allowing state authorities to arrest and detain based on immigration status without prior federal "direction and supervision." Id. at 2506-07. The Ordinance puts local officers in this impermissible position.
Indeed, Farmers Branch's Ordinance authorizes more interference with federal law than did the Arizona arrest-only authority invalidated by the Court. As dissenting Justices in Arizona emphasized, Section 6 allowed state officers to bring persons to the attention of federal authorities for further action, whereas the Ordinance allows for local authorities to prosecute as well as arrest based on perceived unlawful presence. Cf. Arizona, 132 S.Ct. at 2516 (noting that the Arizona statute authorized state arrests but contemplated "follow[ing] their [federal] lead on what to do next") (Scalia, J., concurring in part and dissenting in part); id. at 2517 (highlighting that "Arizona is entitled to arrest them and at least bring them to federal officials' attention, which is all that § 6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)") (Scalia, J., concurring in part and dissenting in part); id. at 2527 ("[T]he Federal Government retains the discretion that matters most — that is, the discretion to enforce the law in particular cases"; "the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody.") (Alito, J., concurring in part and dissenting in part).
Although federal law does allow state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," 8 U.S.C. § 1357(g)(10)(B), the Supreme Court has held that "unilateral state action to detain" goes beyond any "coherent understanding of the term" "cooperation" under federal law. Arizona, 132 S.Ct. at 2507 (providing examples of "cooperation" as "participating in a joint task force with federal officers, providing operational support in executing a warrant, or allowing federal immigration officials to gain access to detainees held in state facilities."). The Ordinance conveys such unilateral state authority to prosecute as well as to detain. Allowing state officers to arrest an individual whom they
The Ordinance is distinguishable from the section of the Arizona law upheld by the Court, which allows state officers to make a "reasonable attempt ... to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Id. at 2507. The Court upheld that provision only after finding that the law, on its face, did not require officers to prolong detention for the purpose of conducting an immigration status check. Id. at 2509. Farmers Branch's Ordinance, by contrast, allows for arrests, detentions, and prosecutions predicated on an occupant's failure to obtain a rental license, and the denial of such a license is in turn based on Farmers Branch's immigration status inquiry. See Ordinance 2952 at §§ 1(C); 3(C).
The Supreme Court clarified that "it would disrupt the federal framework to put state offices in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision." Arizona, 132 S.Ct. at 2509. Farmers Branch argues that the Ordinance relies entirely on the federal determination of lawful or unlawful presence. But even a determinative federal answer on this question — which, as explained above, would be impossible to obtain — would not bring the Ordinance's arrest procedures into compliance with federal law. "The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process." Id. at 2505. Without a federal warrant, federal officers have even more limited authority to arrest. Id. at 2506 (citing 8 U.S.C. § 1357(a)). The Ordinance's criminal provisions exist outside this statutory structure.
The Ordinance also provides that "[a]ny landlord or occupant who has received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas." Ordinance 2952 at §§ 1(E)(1); 3(E)(1). A landlord or occupant may seek state judicial review of two questions: first, whether the building inspector complied with the law, and second, "whether the occupant is lawfully present in the United States." Id. at §§ 1(E)(3); 3(E)(3). In a suit over the latter question, the Ordinance indicates that "that question shall be determined under federal law" and "the [state] court shall be bound by any conclusive determination of immigration status by the federal government," with a "conclusive determination" defined as one which, under federal law, "would be given preclusive effect on the question." Id. at §§ 1(E)(4); 3(E)(4).
The federal government alone, however, has the power to classify non-citizens. Arizona, 132 S.Ct. at 2506; DeCanas, 424 U.S. at 354, 96 S.Ct. 933; 8 U.S.C. § 1229a(a)(3). Although, as with its criminal enforcement provisions, the Ordinance indicates that the question of a non-citizen's lawful or unlawful presence shall be "determined under federal law," it nonetheless leaves the determination in the hands of state courts. Ordinance 2952 at §§ 1(E)(4); 3(E)(4). The Ordinance provides that a federal determination of a non-citizen's status binds the court only if it is "conclusive" — in other words, according to the Ordinance, only if, under federal law, it "would be given preclusive effect on the question" of whether an occupant is lawfully present under federal law. Id. But a non-citizen's immigration status, even in federal proceedings, may not conclusively determine lawful or unlawful presence.
Whereas the Supreme Court has made clear that there are "significant complexities involved in [making] ... the determination whether a person is removable," and the decision is "entrusted to the discretion of the Federal Government," Arizona, 132 S.Ct. at 2506; see also Plyler, 457 U.S. at 236, 102 S.Ct. 2382 (Blackmun, J., concurring) ("[T]he 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."), the Ordinance allows state courts to assess the legality of a non-citizen's presence absent a "preclusive" federal determination, opening the door to conflicting state and federal rulings on the question.
The judicial review provision in this case is distinguishable from that upheld by the Supreme Court in Whiting, even though they both give the federal determination a rebuttable presumption of accuracy. Whiting, 131 S.Ct. at 1981 n. 7; Ordinance 2952 at §§ 1(E)(5); 3(E)(5). Crucially, as the Supreme Court emphasized, the law in Whiting specified that "a state court may consider `only' the federal determination," meaning that the state could not "establish unlawful status apart from the federal determination." Whiting, 131 S.Ct. at 1981 n. 7. The rebuttable presumption given to the federal determination in Whiting, as the Court noted, operated only to give "an employer a chance to show that it did not break the state law," a narrow mechanism with no counterpart in Farmers Branch's Ordinance. 131 S.Ct. at 1981 n. 7. Here, the Ordinance does not similarly confine the state court to the federal determination, providing only that the state court
For these reasons, we hold that because the power to classify non-citizens is reserved exclusively to the federal government, the judicial review section of the Ordinance also is preempted by federal law. See 8 U.S.C. § 1229a(a)(3) (setting out the "sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States").
Because the Ordinance lacks functional coherence without its criminal offense and penalty provisions, as well as without its overarching judicial review process, we decline to apply the general severability clause to revise and leave intact any remaining parts of the Ordinance. See Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.1990); see generally Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 234-35, 52 S.Ct. 559, 76 L.Ed. 1062 (1932); Arizona, 132 S.Ct. at 2505 (invalidating Arizona law seeking to achieve federal deterrence goal because of "a conflict in the method of enforcement"). This restraint is necessary because these elements, along with other interdependent requirements, notably that the Ordinance "shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens, nationals, and aliens," Ordinance 2952 at §§ 1(F); 3(F), as well as its explicit, prospective-only effective date tied to the instant federal constitutional litigation, id. at § 7, create provisions that "are connected in subject-matter, dependent on each other, operating together for the same purpose." See Rose, 801 S.W.2d at 844; see also Nat'l Fed. of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 210 (5th Cir.2011) (explaining that the severability of unconstitutional provisions of a state enactment is a question of state law).
The dissenting opinion describes the Ordinance as merely a "licensing-based regulatory program" and asserts that its "primary purpose is to effectuate licensing of apartment and single family rentals under the supervision of the building inspector." The idea that the Ordinance is primarily designed to promote a civil licensing scheme is contradicted not only by the Ordinance's criminal enforcement apparatus, see supra, but by the Ordinance's explicit reference to federal criminal anti-harboring law, Ordinance 2952, pmbl., by Farmers Branch's consistent emphasis on the Ordinance's "concurrent enforcement"
Furthermore, removing the Ordinance's criminal offense, judicial review, and penalty provisions
Because the Ordinance's criminal offense and penalty provisions and its state judicial review process conflict with federal law, we AFFIRM the judgment of the district court.
REAVLEY, Circuit Judge, joined by GRAVES, Circuit Judge, concurring only in the judgment:
Farmers Branch requires owners of residential property in the city to lease their property only to people who are lawfully present in the United States.
The Constitution unites the states to better serve the common good and protect revered rights. The Supreme Court in Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), applied the Constitution as giving exclusive effect to national control of immigration and foreign affairs. Judges who approve any part of this ordinance evade that national authority. They do so by treating it as a mere housing regulation and by ignoring its purpose and effect: the exclusion of Latinos from the city of Farmers Branch. The record leaves no doubt of this.
Preliminarily, I question whether this ordinance qualifies to be called an exercise of police power, because it cannot be said "to promote the safety, peace, public health, convenience and good order of its people."
Whether the Farmers Branch ordinance is preempted as an obstacle to the purposes and objectives of Congress in the field of immigration is a "matter of judgment" informed by the federal scheme and the purpose and effects of the federal statute as a whole. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 2294, 147 L.Ed.2d 352 (2000). We must therefore consider Congress's objectives in the Immigration and Nationality Act (INA), where the "[f]ederal governance of immigration and alien status is extensive and complex." Arizona, 132 S.Ct. at 2499; see also Chamber of Commerce of U.S. v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 1973, 179 L.Ed.2d 1031 (2011) (stating that with the INA Congress "established a comprehensive federal statutory scheme for regulation of immigration and naturalization and set the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country" (internal quotation marks and citation omitted)). Congress has extensively determined which aliens may be admitted to this country, which aliens should be removed, and the process for both admission and removal. Arizona, 132 S.Ct. at 2499.
For example, the INA creates multiple categories of aliens subject to removal, and it provides for the expedited removal of certain aliens. 8 U.S.C. §§ 1227-28. It also expressly grants discretion for the Attorney General to waive removal under certain circumstances, such as for humanitarian purposes or for victims of domestic abuse. See, e.g., id. § 1227(a)(1)(E)(iii) & (a)(7). It further sets out the procedures for adjudicating an alien's status before an immigration judge, and it specifies that those procedures are the exclusive means for determining the removability of an alien. Id. § 1229a(a)(3). Moreover, the federal scheme contains various provisions under which aliens who have come to the United States unlawfully may be permitted to remain here, including asylum, id. § 1158, cancellation of removal, id. § 1229b, withholding of removal, id. § 1231(b)(3), and temporary protected status, id. § 1254a. In light of this comprehensive statutory framework, "the removal process is entrusted to the discretion of the Federal Government." Arizona, 132 S.Ct. at 2506; see also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 743, 98 L.Ed. 911 (1954) ("Policies pertaining to the entry of aliens and their right to remain here are ... entrusted exclusively to Congress[.]"). When set against the extensive federal scheme and its discretionary allowances, the Farmers Branch ordinance interferes with Congress's objectives and regulation of immigration. See id. at 2506-07.
First, the premise of the ordinance, as argued in the City's brief, is that any non-citizen "unlawfully" present in Farmers Branch has no legal right to be present anywhere in the United States, and therefore the ordinance may criminalize the continued presence of such persons within rental housing in the City. The premise is a false one, however, because "[a]s a general rule, it is not a crime for a removable alien to remain present in the United States." Arizona, 132 S.Ct. at 2505. For this reason, the Court held that Arizona could not authorize the arrest of persons thought probably to be illegal aliens because the state may not regulate the presence of removable aliens.
It is said that the ordinance is permissible as regulation of employment was permissible in DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). But neither my position nor that of the Supreme Court conflict with DeCanas. The California statute there was directed at an acute economic problem that left many citizens unemployed. The Court held that the state's police power justified the legal priority for their employment to go ahead of people unlawfully present. The police power is not so clear here, and the immigration conflict did not exist there.
The Eleventh Circuit reached a similar conclusion when it recently considered a provision of an Alabama law that prohibited the recognition of contracts entered into by unlawful aliens. United States v. Alabama, 691 F.3d 1269, 1292-95 (11th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 2022, 185 L.Ed.2d 905 (2013). Because the law essentially prevented aliens "from enforcing contracts for basic necessities" in derogation of the ability to live and conduct daily affairs, the court concluded that the measure's effect of forcing undocumented aliens out of the state interfered with the exclusive federal power to expel aliens, as well as with the INA's comprehensive scheme governing the removal of aliens. Id. at 1293-94. The Farmers Branch ordinance is just as invidious because its adverse effect on housing also precludes aliens from obtaining an essential human requirement. Cf. id. at 1299 n. 25 (recognizing that depriving aliens of "basic needs, such as water, garbage, and sewer services ... amounted to an impermissible policy of expulsion"). Farmers Branch, like Alabama, "has essentially decided that unlawfully present aliens cannot be tolerated within its territory, without regard for any of the statutory processes or avenues for granting an alien permission to remain lawfully within the country."
By effectively removing illegal immigrants from the City, Farmers Branch also interferes with the national power to control and conduct relations with foreign nations. This concern about the relationship between immigration and foreign affairs, and the exclusivity of the national power, often has been stated by the Supreme
The Arizona opinion opens by emphasizing the "broad, undoubted" federal power "over the subject of immigration and the status of aliens," and the "inherent power as sovereign to control and conduct relations with foreign nations." Arizona, 132 S.Ct. at 2498. The Court gives a full description of the importance of how this nation treats the nationals of foreign countries when they are in this country because "perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad." Id.; see also Hines, 312 U.S. at 64, 61 S.Ct. at 402 ("One of the most important and delicate of all international relationships ... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country."). In light of the potential ramifications of the treatment of aliens in this country, "Congress," not the states, "specifie[s] which aliens may be removed from the United States and the procedures for doing so." Arizona, 132 S.Ct. at 2499. Of paramount importance to the federal scheme "is the broad discretion exercised by immigration officials" because "aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal." Id. The discretionary decision on removal involves many factors, including the "equities of an individual case ..., including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service," as well as "policy choices that bear on this Nation's international relations." Id. Therefore, "[t]he dynamic nature of relations with other countries requires the Executive Branch," not the states, "to ensure that enforcement policies are consistent with this nation's foreign policy with respect to these and other realities." Id.
The Court wrote this as a crucial part of its formal legal analysis, but it is ignored
"Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime." Id. Other "discretionary decisions involve policy choices that bear on this Nation's international relations," including whether to return an alien to a foreign state "mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return." Id. Given the complexity and the myriad factors that go into the removal decision, it is clear that "foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States." Id. at 2498.
Farmers Branch expressly singled out those aliens who cannot show or honestly state their lawful residence, and imposed a burden on landlords and realtors that can be avoided by them simply choosing not to deal with Latino people when they have an alternative. This ordinance is surely offensive to immigrants and to our neighbors to the south. My colleagues are completely silent about this.
Congress's framework for removal provided in the INA and the discretion allowed by that framework show that Congress has occupied the field of alien removal. The Farmers Branch ordinance ignores the practical reality of the federal government's control of the removal process, however, and simply requires illegal immigrants to remove themselves from the city's borders. But "[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice." Id. at 2506-07 (emphasis added).
The Farmers Branch ordinance is but one example of a trend in this country of states and localities attempting to take immigration matters into their own hands. This trend to single out illegal immigrants for adverse treatment is reminiscent of the "anti-Japanese fever" that existed in the 1940s. See Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 422, 68 S.Ct. 1138, 1144, 92 L.Ed. 1478 (1948) (Murphy, J., concurring). As so powerfully articulated in Justice Murphy's concurrence in Takahashi, "[l]egislation of that type is not entitled to wear the cloak of constitutionality." Id.
With the support now of the Supreme Court in the Arizona decision, as well as the Eleventh Circuit in Alabama, I repeat what the panel said about the Farmers Branch ordinance: Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the city of Farmers Branch and to cause their removal, it contravenes the federal government's exclusive authority on the regulation of immigration and the conditions of residence in this country, and it constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs.
DENNIS, Circuit Judge, joined by REAVLEY, PRADO, and GRAVES, Circuit Judges, specially concurring:
I concur in affirming the district court's judgment permanently enjoining Farmers Branch Ordinance 2592 because federal law preempts and renders it invalid. Although I agree with many of the reasons Judge Higginson assigns in the lead opinion
In Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), the Supreme Court reiterated the familiar maxims that a state or local law is preempted under the Supremacy Clause not only where Congress enacts "an express preemption provision" but also where congressional "intent to displace state law altogether can be inferred from a framework of regulation `so pervasive ... that Congress left no room for the States to supplement it,'" id. at 2501 (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)), or "where the challenged state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,'" id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). I believe the Hines Court's earlier discussion of the overlap and interplay of these related formulations continues to provide useful guidance as to the ultimate practical inquiry under implied preemption doctrine:
Hines, 312 U.S. at 67-68, 61 S.Ct. 399. Like my colleagues who join the lead opinion, as well as the original panel and the district court below, I conclude that the Farmers Branch Ordinance presents such an obstacle to the purposes of federal law, and therefore cannot stand.
In my view, this case largely is controlled by the longstanding, unremarkable principle that the federal government's authority to exclude or remove foreign nationals, and to otherwise regulate the residence of noncitizens within the United States, is necessarily exclusive of infringement by state or local legislation. The Supreme Court made this clear more than sixty years ago:
Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948).
This past year, in Arizona, the Supreme Court reaffirmed that "[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Arizona, 132 S.Ct. at 2498 (citing Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982)). "This authority rests, in part, on the National Government's constitutional power to `establish an uniform Rule of Naturalization,' U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations." Id. "Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders," id. at 2502, and "[p]olicies pertaining to the entry of aliens and their right to remain here are [likewise] entrusted exclusively to Congress," id. at 2507 (quoting Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954)).
In exercise of this exclusively national authority, "[f]ederal governance of immigration and alien status is extensive and complex." Id. at 2499. Of particular relevance here, "Congress has specified which aliens may be removed from the United States and the procedures for doing so." Id. "A principal feature of the removal system" Congress has enacted "is the broad discretion exercised by immigration officials." Id. For instance, in "the initiation or prosecution of various stages in the deportation process[,] ... the Executive has discretion to abandon the endeavor, and ... [the Executive has] engag[ed] in a regular practice (which ha[s] come to be known as `deferred action') of exercising that discretion for humanitarian reasons or simply for its own convenience." Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 484-85, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999).
Most pertinent to the present case, the Arizona Court concluded that this comprehensive federal legislative scheme, and the significant discretion it vests in federal immigration authorities, necessarily preempted Arizona legislation that would have allowed "a state officer, `without a warrant, [to] arrest a person if the officer has probable cause to believe ... [the person] has committed any public offense that makes [him] removable from the United States." Id. at 2505 (final three alterations in original). The Court held that the statute stood as an impermissible obstacle to the design and purposes of the largely discretionary immigration enforcement system Congress created because it could result in "unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed" and ultimately "would allow the State to achieve its own immigration policy." Id. at 2506. Because such state-to-state variance "is not the system Congress created," the Court held that the Arizona statute "violates the principle that the removal process is entrusted to the discretion of the Federal Government." Id.
The Farmers Branch Ordinance likewise "violates the principle that the removal process is entrusted to the discretion of the Federal Government," see id., by criminalizing the rental of residential property to certain noncitizens and thereby in effect commencing the process of excluding them from a part of "the United States or the several states," see Takahashi, 334 U.S. at 419, 68 S.Ct. 1138; cf. Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting) (complaining that the federal government's discretionary "enforce[ment] [of] immigration laws... leaves the States' borders unprotected against immigrants whom those laws would exclude" (emphasis added)). Moreover, noncitizen renters "could be unnecessar[ily] harass[ed]" and prosecuted under a law like that here, including individuals "whom federal officials determine should not be removed." See Arizona, 132 S.Ct. at 2506. Underscoring the Ordinance's fundamental inconsistency with the federal system, federal law specifically requires a noncitizen subjected to removal proceedings to provide federal authorities "with a written record of an address ... at which the alien may be contacted respecting [the] proceeding." 8 U.S.C. § 1229(a)(1)(F)(i); cf. Arizona, 132 S.Ct. at 2505 ("As a general rule, it is not a crime for a removable alien to remain present in the United States.").
The City argues that the Ordinance is consistent with federal immigration law because under the classification and enforcement system envisioned by the Ordinance, City officials making determinations of "lawful presence" are to rely on federal agents' responses to queries submitted pursuant to 8 U.S.C. § 1373(c), which directs federal immigration authorities to
In holding that state or local laws that effectively exclude certain noncitizens are inconsistent with the federal government's exclusive authority to define and determine immigration status and regulate the presence of foreign nationals, the decision this court reaches today accords with the Eleventh Circuit's post-Arizona decision in United States v. Alabama, 691 F.3d 1269 (11th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 2022, 185 L.Ed.2d 905 (2013), which preempted an Alabama statute similar in effect to the Farmers Branch Ordinance. The Alabama law purported to "prohibit[] courts from enforcing or recognizing contracts between a party and an unlawfully present alien," including contracts for rental housing. Id. at 1292-93. Noting that "[t]he power to expel aliens has long been recognized as an exclusively federal power," id. at 1293, the Eleventh Circuit held that the Alabama legislation "conflicts with Congress's comprehensive statutory framework governing alien removal," id. at 1294. Much as with the instant Ordinance, in that case, "Alabama ha[d] taken it upon itself to unilaterally determine that any alien unlawfully present in the United States cannot live within the state's territory, regardless of whether the Executive Branch would exercise its discretion to permit the alien's presence." Id. at 1295. As the Eleventh Circuit rightly concluded, "[t]his is not a decision for [a state or city] to make." See id.
In many contexts, of course, our federalist system permits states to "try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). The supremacy of federal law, however, is fundamental to this federalism. Wyeth v. Levine, 555 U.S. 555, 584, 129 S.Ct. 1187, 173 L.Ed.2d 51
Uniformity of national law and policy are essential to this nation's classification and treatment of the citizens of other nations. See Arizona, 132 S.Ct. at 2498 ("The [Federal] Government['s] ... broad, undoubted power over the subject of immigration and the status of aliens[] ... rests, in part, on the National Government's constitutional power to `establish an uniform Rule of Naturalization,' and its inherent power as sovereign to control and conduct relations with foreign nations.... Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws." (citations omitted)); see also, e.g., Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir.2002) (emphasizing the importance of "uniformity of federal law and consistency in enforcement of the immigration laws"). As the Arizona Court explained, "[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice." 132 S.Ct. at 2506-07 (emphasis added); see also id. at 2507 ("Removal decisions[] ... implicate [the Nation's] relations with foreign powers and require consideration of changing political and economic circumstances." (third alteration in original) (quoting Jama v. Imm. & Customs Enforcement, 543 U.S. 335, 348, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005))); Renteria-Gonzalez, 322 F.3d at 814 ("[T]he executive branch[] ... `must exercise especially sensitive political functions that implicate foreign relations.'" (quoting INS v. Abudu,
Accordingly, perhaps more than in any other context, "[t]he prospect of all 50 States establishing" laws similar to Farmers Branch's Ordinance "could pose a substantial threat to th[e]" uniform federal immigration "system's ability to accomplish" its various competing and highly sensitive functions. See Bonito Boats, Inc., 489 U.S. at 161, 109 S.Ct. 971. If the Ordinance "were valid, every State could give itself independent authority to" regulate the presence of noncitizens, "diminishing the Federal Government's control over [immigration] enforcement and detracting from the integrated scheme of regulation created by Congress." See Arizona, 132 S.Ct. at 2502 (brackets and internal quotation marks omitted). If this law were constitutional, all cities and states could by similar laws seek to withdraw rental housing from vast numbers of noncitizens and, in effect, accomplish their removal from the United States. Much more likely, and equally problematic, is the prospect of a patchwork of "[s]tate ... immigration polic[ies]," Arizona, 132 S.Ct. at 2506, with some states imposing additional burdens on certain noncitizens based on the states' own classification and enforcement schemes, see, e.g., Alabama, 691 F.3d at 1292-97. Such an arrangement would be plainly incompatible with the "comprehensive and unified system" of exclusive federal immigration regulations, see Arizona, 132 S.Ct. at 2502, and with "the limitations imposed by the Supremacy Clause," Wyeth, 555 U.S. at 584, 129 S.Ct. 1187.
Because the nation must necessarily speak "with one voice" when pronouncing "whether it is appropriate to allow a foreign national to continue living in the United States," the Supremacy Clause does not abide local experimentation that deviates from "the system Congress created." Arizona, 132 S.Ct. at 2506-07.
In sum, I conclude that the Ordinance infringes on and conflicts with comprehensive and exclusively federal schemes for classifying noncitizens and with enforcing and adjudicating the implications of those federal classifications. It thus stands as an obstacle to the full achievement of the purposes and objectives of uniform federal immigration law. Therefore, I agree that the Ordinance is preempted under the Supremacy Clause.
OWEN, Circuit Judge, concurring and dissenting.
I would hold that only two narrow provisions of the Ordinance
I agree with the dissenting opinion authored by JUDGES JONES and ELROD that the Ordinance is not preempted by the Constitution's broad grant to the federal government of the power to regulate immigration.
As to field preemption, I largely agree with JUDGE HIGGINSON's specially concurring opinion that there is no field preemption of the Ordinance. Congressional regulation of "`the nature of the ... subject matter,'" which in this case is the availability of rental housing to unlawfully present aliens, is not so extensive that it "`permits no other conclusion'" than preemption.
Other parts of the Ordinance are preempted, if at all, if there is a conflict with federal law either because "`compliance with both federal and state regulations is a physical impossibility,'" which is not the case here, or the "state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"
The Ordinance has provisions in section 1 that apply to leasing or renting single-family housing and virtually identical provisions in section 3 that apply to apartment complex rentals. Section 1 of the Ordinance amended Section 26-79 of the Code of Ordinances of the City of Farmers Branch, and section 3 of the Ordinance amended section 26-119. For ease of reference, I refer to both sections 1 and 3 in discussing "the Ordinance," unless otherwise indicated. I first consider provisions of the Ordinance that create an offense applicable to — or that impose obligations upon — an individual.
Subsection (B)(1) requires each occupant, prior to occupying leased or rented property, to obtain a residential occupancy
To obtain an occupancy license under the Ordinance, a person must submit an application that contains one of the following:
The Ordinance explicitly provides that a declaration that an applicant "does not know of any such number ... shall be sufficient to satisfy this requirement."
This means that if a person is unlawfully present in the United States, she may truthfully declare that she does not know of any federal identification number that she believes establishes her lawful presence in the United States. If an application contains such a declaration, the building inspector "shall immediately issue a residential occupancy license."
After issuing a license to someone who has not declared herself to be a citizen or national of the United States, the Ordinance directs the building inspector to avail herself of 8 U.S.C. § 1373(c)
The appellees characterize the Ordinance as "an alien registration scheme" in an effort to shoehorn it into the Supreme Court's statement in Arizona v. United States that "the Federal Government has occupied the field of alien registration."
One of the state laws at issue in Arizona made it a misdemeanor for "`an unauthorized alien to knowingly apply for work.'"
After De Canas was decided, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA)
By contrast, Congress has regulated narrowly in the area of aliens obtaining housing, and where it has regulated, its intent and purposes are not inconsistent with, and certainly do not foreclose, local government regulation like the Ordinance. Federal law provides that most, if not all, aliens who are unlawfully present in the United States are not eligible for any State or local public benefit — including public or assisted housing — that is provided by State- or local-government-appropriated funding, unless a State affirmatively so provides by enacting a state law.
If an applicant for an occupancy license is not a United States citizen or national, she may provide a federal identification number that she believes establishes her lawful presence in the United States.
The Ordinance also provides in (C)(3) that it is an offense "to create, possess, sell, or distribute a counterfeit residential occupancy license."
The Ordinance has various provisions that apply to landlords or lessors, as distinguished from tenants or lessees. A lessor must notify prospective lessees of the occupancy license requirements.
It is an offense if a landlord rents to a tenant without obtaining a copy of an occupancy license.
None of these provisions are preempted by federal law for the same reasons, discussed above, that the Ordinance's provisions aimed at tenants or lessees who are unlawfully present in the United States are not preempted. Congress has not comprehensively regulated housing for aliens. The Supreme Court's decision in De Canas controls, unless and until Congress acts in this area.
The appellees contend that federal law regarding harboring of unlawfully present aliens
I respectfully submit that the Supreme Court unequivocally held in De Canas that the federal harboring laws do not give rise to field preemption. In De Canas, the federal harboring law in existence at the time expressly provided that "`employment (including the usual and normal practices incidental to employment) shall not be deemed to constitute harboring.'"
The contention is made that the Ordinance is conflict preempted because it "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'"
While there is, arguably, limited overlap between the federal offense of harboring an alien and the Ordinance, the elements of the federal and local offenses are quite distinct. So is the "evil" sought to be addressed by the respective laws. The federal harboring statute is aimed at prohibiting the secreting of individuals unlawfully present in the United States. The Ordinance is aimed at terminating lease agreements and doing so only after a lengthy public process in which the federal government has made a determination, twice, that the occupant was unlawfully present.
The Ordinance contemplates that a lessor may gain knowledge that an occupant is unlawfully present in the United States and may nevertheless permit the alien to remain in the leased premises until the local government process is concluded and it is finally determined, within the potentially lengthy processes set forth in the Ordinance, that the alien is unlawfully present.
The Ordinance does not stand as an obstacle to the accomplishment and execution of the full congressional purposes and objectives in enacting the harboring laws. The harboring laws encompass and proscribe conduct that is far broader than the Ordinance. The federal harboring laws and the Ordinance may be enforced simultaneously. Additionally, as noted earlier, federal law provides that most, if not all, aliens who are unlawfully present in the United States are not eligible for any State or local public benefit, including public or assisted housing, that is provided by State- or local-government-appropriated funding unless a State affirmatively so provides by enacting a state law. Federal law even allows States to deny State public-housing benefits to certain aliens who are lawfully present in the United States.
The argument is made that if all or a substantial number of states or local governments had laws similar to the Ordinance, then unlawfully present aliens whom the federal government had decided not to deport or remove would be unable to find housing. This, the appellees contend, would interfere with federal decisions about who is entitled to remain in the United States. Alternatively, it is asserted that there is conflict preemption.
The field preemption issue is once again resolved by De Canas. The fact that the federal government undeniably has the exclusive power to determine questions of removal and deportation does not give rise to field preemption of all state regulation that touches upon immigration. "The comprehensiveness of the INA scheme for regulation of immigration and naturalization, without more, cannot be said to draw in the employment of illegal aliens as `plainly within ... [that] central aim of federal regulation.'"
For the same reasons that the Ordinance is not conflict preempted by the federal harboring laws, the Ordinance is not conflict preempted by the authority of the federal government to determine whether an unlawfully present alien may remain in the United States. There is even less of a potential conflict between the Ordinance and the general grant of immigration authority to the federal government than there is a potential conflict with the harboring laws.
JUDGE HIGGINSON'S opinion discusses at some length whether federal authorities would be able to advise the Farmers Branch building inspector if an individual alien was "unlawfully present" in the United States.
If the federal government responds to the Farmers Branch building inspector that an alien is unlawfully present in the United States, then there is no conflict with any federal law. The only consequence to the alien is the eventual termination of her lease by the lessor or landlord. There is no fine. There is no criminal offense. The lessor or landlord may commit an offense if it takes no steps to terminate the alien's lease, but for the reasons already considered, that is not in conflict with federal law.
It is highly improbable that under Texas law, a lessor or landlord would be arrested for committing such an offense, since it is unlikely that an offense would occur within plain view of an officer.
The judicial review provisions of the Ordinance are problematic to some degree, though I disagree with JUDGE HIGGINSON'S opinion that all of the judicial review section is preempted. Subsection (E)(3) provides that a state court is to determine "whether the occupant is lawfully present in the United States."
Subsection (E)(4), however, injects considerable uncertainty into the judicial review provisions. It provides that the question of whether an occupant is lawfully present in the United States "shall be determined under federal law."
Subsection (E)(5) provides that the state court shall take judicial notice of any immigration status previously provided by the federal government and that the state court may, and shall upon request of a party, request the federal government to provide "a new verification of the citizenship or immigration status of the occupant."
I would hold that subsection (E)(4) and the final sentence of subsection (E)(5) are preempted. However, the Ordinance contains a severability clause,
I respectfully concur in the court's judgment in part and dissent in part, as indicated above.
HIGGINSON, Circuit Judge, specially concurring:
I write separately to make two further observations.
First, the plaintiffs contend that the Ordinance is preempted by Congress's exclusive occupancy of the fields of removal, harboring, and registration. In my view, the Supreme Court's unanimous decision authored by Justice Brennan in DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), forecloses this argument. The Ordinance regulates the ability of non-citizens to obtain rental housing, and Congress has not determined that the housing of non-citizens falls within its exclusive authority. See Chamber of Commerce of U.S. v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 1985, 179 L.Ed.2d 1031 (2011) (holding that "[i]mplied preemption analysis does not justify a `freewheeling judicial inquiry into whether a state statute is in tension with federal objectives'") (quoting Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (internal quotation marks omitted)). The Supreme Court in DeCanas held that a California law forbidding employment to certain "alien[s] ... not entitled to lawful residence in the United States" was not field preempted, because there was no specific indication that Congress "intended to preclude even harmonious state regulation touching on ... the employment of illegal aliens." 424 U.S. at 365, 357-58, 96 S.Ct. 933. Ten years later, Congress, seeing the need for "some form of [federal] employer sanctions... if illegal migration is to be curtailed,"
Because no such comprehensive federal regulation has emerged, or been identified to us, that governs the housing of noncitizens present in the country contrary to law, I do not perceive that the Supremacy Clause acts as a "complete ouster of state power" in this area. DeCanas, 424 U.S. at 357, 96 S.Ct. 933. We presume that the historic police powers of the States are not "superseded ... unless that was the clear and manifest purpose of Congress." Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). Until Congress clearly intercedes, as it did with employment, DeCanas suggests that we not interfere with the political process and
Second, taking more guidance from Arizona, 132 S.Ct. at 2510 ("This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."), I would point out that several other constitutional claims, under due process, equal protection, and the Privileges and Immunities and Commerce Clauses, were raised by the plaintiffs below but not reached by the district court. In particular, the Ordinance, inasmuch as it attempts to isolate Farmers Branch from a problem common to other states by burdening other localities with non-citizens illegally in the United States, may be invalid under the dormant Commerce Clause.
For the above reasons, I add this special concurrence to the judgment of the court.
EDITH H. JONES and JENNIFER WALKER ELROD, Circuit Judges, dissenting, joined by JOLLY, SMITH and CLEMENT, Circuit Judges.
Three opinions have been written, each of which holds unconstitutional the City of Farmers Branch Ordinance 2952 ("the Ordinance"), which would establish a licensing regime for the rental of single-family homes and apartments in the City, and thereby seeks to discourage illegal immigrants from residing there. Two of the opinions (Reavley, J. and Dennis, J.) assert essentially that the Ordinance is incompatible with the national government's exclusive authority to regulate foreign relations and immigration. The third (Higginson, J.) purports to find narrower conflicts between the Ordinance's "criminal" enforcement and judicial review provisions and federal law prohibiting the "harboring" of illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(iii), and federal removal procedures, before holding these provisions non-severable from the rest of the Ordinance.
The Ordinance was passed during a period of intense national debate concerning
We first highlight aspects of the Ordinance that have been neglected or mischaracterized in the three opposing opinions. We then address the standards of appellate review, which have also been shortchanged by those opinions. Next, preemption principles are applied to the Ordinance's licensing provisions. Finally, we analyze the conflict preemption and severability arguments raised by the Higginson opinion.
Our conclusions may easily be summarized. The Ordinance represents an exercise of the "police power" inherent in every self-governing community to make laws perceived beneficial to its citizens. It is thus entitled to a presumption of constitutionality according to every recent Supreme Court case dealing with local regulations that touch on the presence of illegal aliens.
The Ordinance does not constitute a regulation of immigration and thus is not preempted by the Constitution's structure.
There is no "field preemption" of this Ordinance by federal immigration or foreign relations law. Otherwise, the recent Supreme Court opinions would neither have approved some local regulations bearing on immigrants nor gone to such lengths to explain precise conflicts between those regulations and federal law. See Keller, 719 F.3d at 940-43, 2013 WL 3242111, at *3-7.
The Ordinance's licensing and fines provisions do not conflict with federal law. The Ordinance does not conflict with any positive federal law governing the housing of illegal aliens, as no such law exists.
The Ordinance does not conflict directly with or serve "as an obstacle" to (a) the federal law against "harboring" illegal aliens, (b) federal procedures for removing illegal aliens from the United States, or (c) other provisions alluded to in the Higginson opinion. See id. at 943-46, 2013 WL 3242111, at *7-9.
Finally, because the Ordinance's provisions setting fines and authorizing judicial review are readily severable from its licensing regime, the Higginson opinion's conclusion of non-severability fails logically and under Texas law.
The Ordinance is outlined in the Higginson opinion, but several features should be emphasized. The licensing regime applies to all landlords and renters of apartments and single family residences, whether citizens or not. Any applicant for a rental license receives one automatically by either verifying citizenship or legal residence or by asserting he does not know whether he has a relevant federal "number" identifying legal presence.
Only if the federal government states that the renter is not lawfully present does the building inspector pursue the inquiry. Id. §§ 1(D)(2), 3(D)(2). The Ordinance then provides the renter and the landlord an additional 60 days to clarify the alien's status. Id. After the 60th day, if the building inspector remains unsatisfied with the explanation, the inspector may again contact the federal government. The Ordinance allows revocation of the occupancy license only if the federal government again reports that the individual is "an alien who is not lawfully present in the United States." Id. at §§ 1(D)(4), 3(D)(4).
After this second verification from the federal government that the renter is "not lawfully present in the United States," the building inspector must send a revocation notice to the renter and lessor. Id. Fifteen days after the revocation notice is issued, the previously valid residential occupancy license is revoked. Id.
After the renter's residential occupancy license has been revoked, the Ordinance specifies that the landlord commits an offense if it fails to initiate proceedings to terminate the lease. Id. §§ 1(C)(7), 3(C)(7). Any renter who applied for and received a valid residential occupancy license that the building inspector later revokes has not committed any offense, even if the renter continues to reside in the rental premises after the license is revoked.
A conviction for violating the Ordinance is punishable by a fine not to exceed $500 for each day of an ongoing violation of the Ordinance. Id. § 5.
The Ordinance specifies that it "shall be applied uniformly, and enforcement procedures shall not differ based on a person's race, ethnicity, religion, or national origin." Id. §§ 1(D)(9), 3(D)(9).
Judicial review may be sought by any landlord or renter, but not by the City. Id. §§ 1(E), 3(E). The state court is bound by "any conclusive determination of immigration status by the federal government," and the most recent determination of immigration status by the federal government "shall create a rebuttable presumption as to the individual's immigration status." Id. §§ 1(E)(4) & (5), 3(E)(4)(5). Finally, the Ordinance "shall
To insulate the Ordinance against legal invalidation, there is a severability clause. Id. § 6.
A few obvious facts surrounding the Ordinance should also be noted. It does not apply to the purchase of residences or apartment houses or any other real estate within Farmers Branch. Cf. id. § 1 (regulating single-family rental housing); § 3 (regulating apartment complex rentals). It does not apply to illegal aliens who are visitors in rental housing. Id. §§ 1(A)(5), 3(A)(5). It does not apply to hotels, suite-hotel residences, or motels. It does not apply to shelters where illegal aliens do not reside as tenants. It does not affect the hiring or employment of illegal aliens. The Ordinance, therefore, is far from banning illegal aliens from the City of Farmers Branch. The City's enforcement of the Ordinance in no way affects the federal government's decision whether to remove any illegal alien, nor does it effect any alien's removal from the United States.
The ultimate issue in this case is whether the district court correctly determined that federal law preempts the Ordinance. The district court's preemption determination presents "a question of law that we review de novo." See Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.2010) (en banc) (citation omitted). That standard, however, is only the beginning of the analytical rules we must apply. The nature of the Appellees' lawsuit — a facial, prospective challenge — and the character of the Ordinance — a housing regulation that falls within the City's police power — necessarily affect our analysis.
That the Appellees waged a facial, prospective challenge to the Ordinance invokes standards of judicial restraint designed to further the interests of federalism and deference to duly passed legislation. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 1191, 170 L.Ed.2d 151 (2008) (recognizing that facial challenges are generally disfavored because they "threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution").
Pursuant to United States v. Salerno, the Ordinance should not be held facially unconstitutional in toto unless "no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) (emphasis added); see also Anderson v. Edwards, 514 U.S. 143, 155 n. 6, 115 S.Ct. 1291, 1298 n. 6, 131 L.Ed.2d 178 (1995) (applying the Salerno standard in a preemption case); Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 593, 107 S.Ct. 1419, 1431, 94 L.Ed.2d 577 (1987) ("To defeat Granite Rock's facial challenge, the Coastal Commission needed merely to identify a possible set of permit conditions not in conflict with federal law.").
Moreover, concomitant with Salerno, the City should have been given the opportunity to narrow the Ordinance, if needed, during the course of its enforcement activity or in judicial proceedings. DeCanas v. Bica, 424 U.S. 351, 363-64, 96 S.Ct. 933, 940-41, 47 L.Ed.2d 43 (1976) (explaining that the petitioners conceded part of the California regulation was unconstitutional on its face, but recognizing that the state could give the provision a limiting construction and therefore leaving it for the state courts to later decide in the first instance whether the provision would conflict with federal law). Unfortunately, the three opposing opinions fail to heed, much less apply, these limits on our review powers. They invalidate the Ordinance without acknowledging its valid application to citizens and legally resident aliens.
The Ordinance, correctly viewed, falls within the traditional police power of the City to regulate housing by means of licensing.
Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve, and enhance the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270, 126 S.Ct. 904, 923, 163 L.Ed.2d 748 (2006) (describing the police power as legislation related to "the protection of the lives, limbs, health, comfort, and quiet" of the citizenry (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996))). The police power extends so far as to include rent controls; building codes that regulate for the sake of safety or aesthetics; and excluding certain establishments, from liquor stores to topless clubs, from various areas. See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 11-12, 108 S.Ct. 849, 857-58, 99 L.Ed.2d 1 (1988) (permitting extensive rent and price controls as "legitimate exercise of ... police powers").
The police power no doubt empowers Farmers Branch to enact a licensing regime to exclude child predators from living in multifamily apartment complexes, and it would enable the City to ban federal or state fugitives from justice from residing in the community. See, e.g., United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 1754, 146 L.Ed.2d 658 (2000) ("Indeed, we can think of no better example of the police power ... than the suppression of violent crime and the vindication of its victims." (footnote and citations omitted)); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975) (describing city's "police power to protect children" as "undoubted"); see also Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 843, 107 S.Ct. 3141, 3152, 97 L.Ed.2d 677 (1987) ("It is also by now commonplace that this Court's review of the rationality of a State's exercise of its police power demands only that the State `could rationally have decided' that the measure adopted might achieve the State's objective." (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981))). It would seem to follow that the City's power to deter illegal aliens from renting qualifies as an exercise of the police power, so long as no invidious discrimination occurs.
Because the Ordinance involves the local police power, it is entitled to a strong presumption of constitutionality. This presumption operates generally in federal preemption law. See, e.g., Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51 (2009); Altria Group, Inc. v. Good, 555 U.S. 70, 76-77, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008). It operates specifically in cases where local regulations within the police power are asserted to be preempted by federal immigration law. In DeCanas, the Supreme Court treated a California statute that criminalized the hiring of illegal aliens as a regulation of employment and would not presume that Congress "intended to oust state authority to regulate the employment relationship covered by [the California statute] in a manner consistent with pertinent federal laws." DeCanas, 424 U.S. at 357, 96 S.Ct. at 938. Likewise, in Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), the Court held that when conducting preemption analysis, "courts should assume that the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress." Id. at 2501 (internal quotations and citations omitted); see also Chamber of Commerce of U.S. v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 1983, 179 L.Ed.2d 1031 (2011) (declining to preempt state law dealing with a traditional area of state concern); Doe v. Plyler, 628 F.2d 448, 452-53 (5th Cir.1980), aff'd on other grounds sub nom. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (upholding charge of $1000 for education of illegal immigrants' children in public schools). Unfortunately, none of the three opposing opinions accords the Ordinance this strong presumption, although Judge Higginson refers to it in his separate concurrence.
With these background rules set, the principles of federal preemption may be briefly summarized. The Supremacy Clause holds the Constitution and acts of Congress to be supreme, displacing contrary state or local legislation "where there is an actual conflict between the two sets of legislation such that both cannot stand." 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 12.1 (4th ed.2007). In Arizona, the Supreme Court explained that federal law may preempt local law by an express statutory provision; by field preemption, Congress's placing a field within the "exclusive governance" of federal law; or by conflict preemption when state law actually conflicts with federal law. Arizona, 132 S.Ct. at 2500-01. Regarding field preemption, the Court cautioned in DeCanas: "[f]ederal regulation... should not be deemed preemptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." 424 U.S. at 356, 96 S.Ct. at 937 (alterations in original) (quoting Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210,
The Reavley and Dennis opinions express similar grounds for their conclusions that the Ordinance is wholly preempted. The Reavley opinion states: "Whether the Farmers Branch ordinance is preempted as an obstacle to the purposes and objectives of Congress in the field of immigration is a `matter of judgment' informed by the federal scheme and the purpose and effects of the federal statutes as a whole." Reavley Op. at 540 (citation omitted). The Dennis opinion concludes that "the Ordinance infringes on and conflicts with comprehensive and exclusively federal schemes for classifying noncitizens and with enforcing and adjudicating the implications of those federal classifications," and "thus stands as an obstacle to the full achievement of the purposes and objectives of uniform federal immigration law." Dennis Op. at 549. The reasoning of the two opinions frequently uses field preemption language, although both also speak of obstacle preemption. Neither opinion identifies any specific conflict between the Ordinance's licensing provisions and federal law. Both opinions seem open to the interpretation that the primacy of the national interest in enforcing uniform immigration regulations leaves no room whatsoever for "local experimentation that deviates from `the system Congress created.'" Dennis Op. at 549 (citing Arizona, 132 S.Ct. at 2506-07).
We are thus required to address three separate arguments: (1) the Ordinance is a regulation of immigration wholly outside state or local government powers under the Constitution; (2) the Ordinance is preempted because Congress "occupied the field" of alien housing through its web of regulations governing aliens' admission and duration of stay in this country; and (3) the Ordinance impliedly conflicts with and stands as an obstacle to the enforcement of federal immigration laws.
It is asserted that the Ordinance amounts to a "regulation of immigration" because preventing illegal aliens from renting apartments or single family dwellings in Farmers Branch is tantamount to determining that they may not reside within the United States. If this assertion were accurate, it would be a bold holding. Regulation-of-immigration preemption derives directly from the Constitution, which confers on the federal government the power to conduct foreign relations and to promulgate a "uniform Rule of Naturalization," U.S. CONST. art. I, § 8, cl. 4, and vests exclusive control over the "authority to control immigration — to admit or exclude aliens — ... solely in the Federal government." Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 415, 68 S.Ct. 1138, 1141, 92 L.Ed. 1478 (1948). State laws imposing on the federal "authority to control immigration" are a "constitutionally proscribed regulation of immigration that
In DeCanas, however, the Court rejected — in a single paragraph — reasoning similar to that in the Reavley and Dennis opinions. Justice Brennan, writing for a unanimous Court, declared that it "never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised." 424 U.S. at 355, 96 S.Ct. at 936 (emphasis added). The Court cited to a string of cases upholding "certain discriminatory state treatment of aliens lawfully within the United States." Id. Those cases "remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. (emphasis added). The Court rejected the California court's underlying assumption that a labor regulation targeting illegal aliens was a "regulation of immigration," explaining that "there would have been no need ... even to discuss the relevant congressional enactments in finding pre-emption of state regulation if all state regulation of aliens was ipso facto regulation of immigration." Id. The Court depicted the California law at issue as a labor law "imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country." Id.
The Reavley and Dennis opinions do not, because they cannot, demonstrate that the Ordinance runs afoul of the test in DeCanas. The Ordinance does not determine the entry or exit of anyone into or out of the United States. It does not determine the conditions under which a "lawful" immigrant may remain. And the Ordinance's grants or denials of rental licenses are designed to follow and correspond with federal determinations concerning each applicant. This should be the end of the constitutional preemption issue.
Nevertheless, the Reavley opinion implies that the Ordinance is an immigration regulation because it may force illegal aliens to relocate from certain rental housing in Farmers Branch. This view is inconsistent with authority from the Supreme Court, this court, and the Eighth Circuit in Keller.
To the extent the Reavley and Dennis opinions would hold the Ordinance an invalid "regulation of immigration" because the intent of the local legislators was to reinforce federal alien removal laws, the Supreme Court has rejected their arguments:
Plyler, 457 U.S. at 228 n. 23, 102 S.Ct. at 2400 n. 23 (emphasis added) (citing DeCanas, 424 U.S. at 354-56, 96 S.Ct. at 935-36). In disregard of this language, the Reavley and Dennis opinions would hold that states are powerless "to deter the influx" because any local law having such a purpose or effect would be an impermissible regulation of immigration. The ultimate proof of these opinions' error is the plain fact that, despite having ruled three times on preemption issues arising from local laws that affected illegal aliens, the Court has refused to treat any of them as constitutionally impermissible regulations of immigration. See generally Arizona, 132 S.Ct. 2492; Whiting, 131 S.Ct. 1968; DeCanas, 424 U.S. 351, 96 S.Ct. 933.
Field preemption differs from preemption by constitutional design because it depends on affirmative Congressional acts to "occupy the field" sought to be regulated. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 115, 112 S.Ct. 2374, 2392, 120 L.Ed.2d 73 (1992) (Souter, J., dissenting) ("Field pre-emption is wrought by a manifestation of congressional intent to occupy an entire field...." (citation omitted)). The Reavley and Dennis opinions both refer to field preemption. See Reavley Op. at 543 ("Congress has occupied the field of alien removal."); Dennis Op. at 549 ("If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations...." (quoting Arizona, 132 S.Ct. at 2502)). Their conclusions apparently hinge on the proposition
The premise of this argument is wrong, however, because it conflicts with the Supreme Court's incontrovertible explanation of the "field" of removal proceedings. "A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States." Arizona, 132 S.Ct. at 2506. Taken together, DeCanas, Whiting and Arizona demonstrate how narrow the scope of field preemption is regarding local legislation that concerns illegal aliens. DeCanas rejected the contention that denying illegal aliens employment in California was the same as attempting to "remove" them, despite the practical consequence that lack of employment opportunities is an insuperable barrier to continued presence. See 424 U.S. at 356-63, 96 S.Ct. at 936-40. Whiting represents a corresponding decision not to hold that Congress "occupied the field" vis-a-vis the revocation of state business licenses that would befall Arizona businesses that hired illegal aliens. See 131 S.Ct. at 1977-87.
Finally, in Arizona, at most two provisions of SB 1070 were declared in conflict with a carefully defined "field" within immigration law. 132 S.Ct. at 2501-10. Section 3 of the bill allowed the arrest of aliens not carrying federal identification cards. Id. at 2501. The provision was held to "intrude[] on the field of alien registration," id., a topic Congress had reserved to itself. See Hines v. Davidowitz, 312 U.S. 52, 74, 61 S.Ct. 399, 408, 85 L.Ed. 581 (1941). Separate state enforcement of federal registration rules could "frustrate federal policies" by allowing criminal charges against individuals for federal violations where the officials "in charge of the comprehensive scheme" of registration determined no prosecution should occur. Arizona, 132 S.Ct. at 2503. Like § 3, another provision of the Arizona law — § 6 — enabled local law enforcement to effect a warrantless arrest "if the officer has probable cause" to believe the arrestee has committed an offense rendering him "removable from the United States." Id. at 2505. Whether the Court held § 6 field or conflict preempted is somewhat unclear. Assuming that the Court's ruling was based on field preemption, its concern was local government overlap with the "field" of alien removal from this country; the provision "violate[d] the principle that the removal process is entrusted" to federal discretion. Id. at 2506. Thus, it "attempt[ed] to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers." Id.
Arizona is consistent with DeCanas and Whiting while distinguishable from this case. Although the Court held at most two sections field-preempted, another — § 2(B) — was provisionally upheld, id. at 2507-10, and a fourth — § 5(C) — was overturned on conflict preemption alone. Id. at 2503-05. As in previous cases, the Court was cautious in using the broad proscription of local authority that inheres in field preemption. Moreover, § 3 and § 6 of Arizona SB 1070 were intended to employ local law enforcement not for purposes of enforcing a local ordinance, but solely to assist federal officers in removing illegal aliens from this country. The Ordinance has no similar intent or mechanism. It is not field preempted.
Conflict preemption may arise from a specific legislative command, from the impossibility
Setting the stage for our conclusion are several facts about the Ordinance that the Reavley and Dennis opinions minimize. First, the Ordinance does not effect or affect illegal aliens' removal by deportation or otherwise from the United States. Second, the Ordinance is not a parallel enforcement scheme to assist the federal government in initiating or completing formal detention or removal proceedings. Rather, it is a licensing law that governs a subset of property owners and prospective tenants in Farmers Branch. Although illegal aliens' rental licenses may be revoked, the Ordinance contains no device by which a local government official may remit the alien to federal custody or attempt to compel the federal government to act against the alien for removal purposes. Third, enforcement of the Ordinance depends solely on two federal affirmations, rendered at least sixty days apart, that an alien is not lawfully present in the United States. The building inspector may not independently decide a renter's lawful status.
Furthermore, the federal government is required by law to respond to the City's inquiries. 8 U.S.C. § 1373(c). One, but not necessarily the only,
In Whiting, the Supreme Court upheld an Arizona law requiring employers to verify the immigration status of their employees and revoking the employers' business licenses for willful violations. The Supreme Court disposed of the contention that insofar as they concerned alien employment, the Arizona regulations intruded on a "uniquely federal area[] of regulation" by "upset[ting] the balance" Congress struck when it passed (post-DeCanas) specific legislation concerning alien
Id. at 1982 (emphasis added) (internal citations omitted).
The dispositive answer to the concern about the Ordinance's wrongful revocation of rental licenses and alleged inconsistency with federal determinations is that the building inspector "cannot prove his case" if a federal inquiry does not conclusively establish that the renter is "not lawfully present."
This complaint is at too high a level of generality: Any local licensing regulation touching the immigrant status — for instance, the refusal to issue drivers' licenses — could be said to conflict cosmically with the goals of federal immigration law. More concretely, this view overlooks the preface to this part of the Arizona discussion, which acknowledged that, in DeCanas, the Court had approved "State ... authority to pass its own laws on the subject" "[w]hen there was no comprehensive federal program regulating the employment of unauthorized aliens." Id. at 2503. No extant federal law regulates the housing of illegal aliens. There is thus no evidence of a deliberate congressional choice on the subject; if anything, we ought to infer congressional ambivalence from the fact that Congress passed no law concerning either "sanctuary cities" or, at the opposite pole, cities that have attempted to discourage influxes of illegal aliens.
The Court's approach in DeCanas is more compelling here than Judge Reavley's, for DeCanas recognized that "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State." 424 U.S. at 356, 96 S.Ct. at 937. At the time of that decision, the federal government "had expressed no more than `a peripheral concern with [the] employment of illegal entrants.'" Arizona, 132 S.Ct. at 2503 (quoting DeCanas, 424 U.S. at 360, 96 S.Ct. at 939) (alteration in original). Relevant to this case, the federal government has expressed no more than a peripheral concern with aliens' housing choices.
But Whiting stands as the most obdurate obstacle to the Reavley and Dennis opinions insofar as they assert conflict preemption of the Ordinance. Whiting held that "[r]egulating in-state businesses through licensing laws" that prohibited the knowing employment of illegal aliens, using means within the state's police power, stands as no obstacle to the enforcement of federal immigration law, even to federal law dealing with employers of illegal aliens.
Rejecting general contentions that conflict preemption was required to maintain the "balance" Congress struck in enacting certain federal restrictions on illegal alien employment, the Court found inapplicable the cases that involved "uniquely federal areas of regulation," because "[r]egulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern." Id. at 1983. Finally, as it noted, "[l]icensing suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime." Id.
We need not repeat the undisputed facts in the instant case to reinforce the analogy between the Ordinance and the Arizona law upheld in Whiting.
The Higginson opinion turns principally on the view that fines can be levied on violators of the Ordinance. The potential criminal penalty for violations is a fine not to exceed $500, which qualifies it as a Texas Class C misdemeanor. Judge Higginson correctly notes that law enforcement officers may "arrest" and "detain" violators for such misdemeanor offenses, but this is rather overstated; Class C misdemeanors are not punishable by imprisonment and are typified by motor vehicle violation citations. Judge Higginson's conclusion that the Ordinance is conflict preempted largely rests upon two theories: (1) the Ordinance "interfer[es] with federal anti-harboring law," 8 U.S.C. § 1324(a)(A)(iii), and (2) the Ordinance "allow[s] state officers to `hold[] aliens in custody for possible unlawful presence without federal direction and supervision.'" Higginson Op. at 529. Moreover, because his opinion holds a severability clause ineffective to divorce the licensing provisions from the potential fines, the Higginson opinion would overturn the Ordinance in toto. While expressing an allegedly narrow rationale for decision, the Higginson opinion's impact is as broad as that of the Reavley and Dennis opinions.
We disagree with the Higginson opinion's interpretation of the Ordinance, with its conflict preemption analysis, and with its non-severability ruling. If the Higginson opinion fails on any one of these elements, the Ordinance must be upheld. We discuss each of these elements in turn.
Carefully examined, the Ordinance does not "criminalize" illegal aliens' presence in Farmers Branch, nor does it expose lessors to a duplicate penalty for "harboring" illegal aliens. The Higginson opinion misreads the actions that constitute offenses under the Ordinance.
Judge Higginson's conclusion that law officers will be able to hold aliens in custody for possible unlawful presence is inaccurate under the plain terms of the Ordinance. Also, because the Ordinance does not penalize a tenant if he continues to
A renter (i.e., an individual who is possibly "not lawfully present") can violate the Ordinance in only three ways:
In none of these three circumstances is the renter's lawful or unlawful immigration status relevant to potential fines. Instead, the Ordinance penalizes renters only in the first circumstance, when they fail to apply for a residential occupancy license.
Critically, the Ordinance does not impose criminal liability on any renter after the renter applies for an occupancy license.
Judge Higginson also contends that the Ordinance is conflict-preempted because "by criminalizing conduct that does not have the effect of evading federal detection, and by giving state officials authority to act as immigration officers outside the `limited circumstances' specified by federal law, the Ordinance `interfere[s] with the careful balance struck by Congress' with respect to the harboring of non-citizens here contrary to law." Higginson Op. at 531 (quoting Arizona, 132 S.Ct. at 2505). Indeed, lessors who violate the Ordinance may be subject to fines for conduct that is not criminalized under 8 U.S.C. § 1324. On its face, then, the Ordinance does not overlap with the federal anti-harboring crime or retard the federal government's exclusive prosecutorial discretion.
To elaborate, lessors in Farmers Branch are potentially criminally liable under the Ordinance if: (1) they lease to individuals who never apply for or obtain a residential occupancy license; or (2) they continue to lease to individuals whose residential occupancy license has been revoked because they are "not lawfully present." There is other potential liability relating to a lessor's administrative duties under the Ordinance, such as maintaining a copy of the residential occupancy license of each known occupant of their properties. None of these violations would subject the lessor to criminal liability under § 1324.
First, a "prosecution" under the Ordinance for leasing to an individual who never applies for nor obtains a residential occupancy license would not rely, in any way, on the immigration status of the renter. Liability would be based solely on a failure to comply with the Ordinance's licensing requirements. In contrast, a prosecution under § 1324 would necessarily focus on the immigration status of the renter and whether the other three elements of a § 1324 violation could be established.
Second, a prosecution under the Ordinance for continuing to lease to an illegal alien whose residential occupancy license has been revoked could not trigger a federal anti-harboring prosecution. This violation could occur only after the renter completes an application. The application process requires a renter to provide his name and the address where he plans to reside. Therefore, even if the lessor continued to lease to the renter after the renter's license was revoked, it would be impossible to establish that the lessor was "hiding" the illegal alien from detection as is required for an anti-harboring conviction. See United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir.1981) (interpreting the statutory phrase "harbor, shield, or conceal" to imply that "something is being hidden from detection"). Instead, it would be public knowledge where the "not lawfully present" alien was residing.
As we have shown, the Ordinance does not provide for "arrest," "detention," or "prosecution" of illegal aliens, nor does it create the local equivalent of anti-harboring criminal offense. Without criminal prosecution as its pivot, the Higginson conflict analysis fails. Moreover, if there is doubt about the scope of the Ordinance's criminal provisions, the Salerno principle shields the provisions from facial unconstitutionality, and elementary principles of judicial restraint would afford the state courts the first opportunity at construing the Ordinance.
But even if we accept, counter-factually, Judge Higginson's characterization of the Ordinance, his conflict-preemption analysis is seriously flawed.
On the most general level, the Higginson opinion embodies the troubling concept that a federal criminal statute, standing alone, can preempt local police power regulations. The fact that the federal government has chosen to criminalize the behavior of harboring illegal aliens does not
For implied conflict preemption to occur, a direct conflict with federal objectives must be shown. The Supreme Court has emphasized that "[i]mplied preemption analysis does not justify a `freewheeling judicial inquiry into whether a state statute is in tension with federal objectives'; such an endeavor `would undercut the principle that it is Congress rather than the courts that preempts state law.'" Whiting, 131 S.Ct. at 1985 (Roberts, C.J., controlling opinion) (quoting Gade, 505 U.S. at 111, 112 S.Ct. at 2390 (Kennedy, J., concurring in part and concurring in judgment)). Despite the Higginson opinion's attempt, the conflict between the Ordinance and the federal crime of harboring illegal aliens is illusory.
In several ways, the rationale of the Higginson opinion was rejected by the Supreme Court in DeCanas, a case that arose when the California Labor Code was amended to prohibit the knowing employment of illegal aliens. The statute imposed a potential fine on employers between $200 and $500 for each offense. Among many arguments for preemption, the statute's challengers asserted a conflict with the federal anti-harboring crime, which at that time expressly exempted from felony status "employment (including the usual and normal practices incident to employment)." DeCanas, 424 U.S. at 360, 96 S.Ct. at 939. Despite the exculpatory proviso, the Court declared this "at best evidence of a peripheral concern with employment of illegal entrants." Id. The Court "admonished that `due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the (federal regulation).'" Id. at 360-61, 96 S.Ct. at 939 (quoting San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959)). In a footnote, the Court repeated:
Id. at 361 n. 9, 96 S.Ct. at 939 n. 9.
The analogy with the holding of DeCanas is straightforward. The federal anti-harboring crime exhibits at best a peripheral concern with rental housing for illegal
Moreover, contrary to the methodology of the Higginson opinion, DeCanas does not treat the California Labor Code provision as a "criminal" statute despite its enforcement by fines. The prohibition involved "state authority to regulate the employment relationship." Id. at 357, 96 S.Ct. at 937. The Court also described California's law as "fashioned to remedy local problems, and operat[ing] only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country." Id. at 363, 96 S.Ct. at 940. Critically, the Higginson opinion succeeds only if it correctly classifies the Ordinance as an attempt to "arrest," "detain," and "prosecute" illegal aliens. But that is not the way DeCanas approached the issue, even though the California statute was passed with the intent to deter illegal aliens from working, and gaining the wherewithal to reside, in the state.
In departing from the commonsense DeCanas analysis, the Higginson opinion's approach fundamentally mischaracterizes the Ordinance. It is a licensing-based regulatory program, just as the licensing of drivers is a regulatory program to foster, inter alia, road safety and vehicle insurance. No one characterizes drivers' license regulations as principally "criminal" even though anyone, including an illegal alien, may be arrested, detained, and cited for a Class C misdemeanor for having no license or producing a license to which he is not entitled. No one characterizes local zoning regulations as "criminal" because fines may be imposed, if, for instance, a landlord knowingly rents a dwelling that fails to meet minimum habitability standards. All regulatory regimes must have enforcement mechanisms, but their object is to secure voluntary compliance. No doubt, Farmers Branch hopes that if it is finally permitted to enforce the Ordinance, landlords and renters will generally comply, and most illegal aliens will avoid obtaining rental licenses and make other housing choices. Penalties are the last, and usually a rare, step in enforcement
But even if the Ordinance's enforcement provisions should be highlighted for purposes of conflict preemption analysis, they do not impinge on federal enforcement of immigration law, as the Higginson opinion contends. First, because the federal harboring statute has only limited, if any, preemptive power against a local licensing regime, the fact that landlords must submit to the regulation or be liable for a fine involves no inherent conflict with the crime of "harboring." Indeed, compliance is consistent with the intent of the anti-harboring statute to prevent concealment and shielding of illegal aliens from federal attention. Cf. United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 n. 5 (5th Cir. 1982) ("Congress intended to broadly proscribe any knowing or willful conduct fairly within any of these terms [ (conceal, harbor, or shield) ] that tends to substantially facilitate an alien's remaining in the United States illegally." (emphasis added)); United States v. Chon, 713 F.3d 812, 819 (5th Cir.2013) (per curiam) ("Chon's contention that he simply did not prevent illegal aliens from renting a room at the Gateway Hotel is belied by his [active] facilitation of their presence and his willingness to allow alien smugglers to rent rooms on behalf of groups of illegal aliens.").
Second, the "arrest," "detention," and "prosecution" functions of local officers who may enforce the Ordinance do not collide with federal decisions regarding "removal" of illegal aliens. As has been explained, violators of the Ordinance may be detained only until they post bond for their fines.
The Higginson opinion also criticizes the Ordinance because the federal anti-harboring crime penalizes only the individual who harbors the illegal alien, while under his interpretation of the Ordinance, the alien may be penalized as well. The opinion seeks support from the Supreme Court's rejection in Arizona of § 5(C) of S.B. 1070 that crafted a criminal sanction (up to $2500 fine and six months imprisonment) for an alien illegally seeking employment. The Court conducted a thorough analysis of this provision in the context of recent federal laws that regulate, to some degree, the employment of illegal aliens. In finding conflict preemption, the lynchpin of the Court's reasoning was that "Congress made a deliberate choice not to impose criminal penalties on aliens who seek" employment. Id. at 2504. No similar argument can be made that Congress intended the anti-harboring statute to preempt local housing regulations or that Congress deliberately
The Higginson opinion further asserts that the Ordinance "impermissibly allows for local officers to arrest and detain noncitizens based on a classification ["unlawful presence"] that does not exist in federal law." Relying on generalities about immigration classifications and discretionary determinations, the opinion implies that rogue local officials will inflict "criminal" sanctions on aliens who might in fact be authorized to be in the United States. Like the Reavley and Dennis opinions, however, this fear simply overlooks the facts. The building inspector has no authority to decide immigration status independently. He must defer to the binding result of inquiries to federal officials, made on two occasions, at least sixty days apart, that a particular tenant licensee is not lawfully present in the United States. The building inspector's inquiries are no different from those made by hundreds of local governments daily to the federal government to ascertain immigrants' status and qualifications for benefits ranging from housing assistance to student loans to medical care and disability income. It is the federal government's duty to get the answers right, not the building inspector's uninformed prerogative to guess. Further, the term "unlawful presence" must have some meaning to the federal government, as that term, or closely related terminology, frequently appears in federal statutes and regulations. See supra note 13.
Finally, the Higginson opinion declares that the Ordinance allows state officers to "hold[] aliens in custody for possible unlawful presence without federal direction and supervision." Higginson Op. at 535 (citing Arizona, 132 S.Ct. at 2509). If this were true, the Ordinance would fail under the reasoning of Arizona in regard to § 5(C) of S.B. 1070. But it is untrue, and significantly so. The illegal alien who might be held in "custody" if he attempted to rent in Farmers Branch without a license or who falsified the information used to get a license could be held in custody for one violation, and one alone: violating the Ordinance. He could only be held long enough to have a citation issued and to secure a bond for the potential fine. This is comparable to the alien's being held, until he procures a bond for the fine, because he does not furnish a proper driver's license. If local detention is improper in these circumstances without "federal direction and supervision," then illegal aliens
For all these reasons, even if the Ordinance's criminal provisions are interpreted according to the Higginson opinion, they are not an obstacle to the enforcement of the anti-harboring crime or federal immigration removal decisions.
The Higginson opinion asserts that the Ordinance "lacks functional coherence without its criminal offense and penalty provisions ...," and accordingly, the opinion disregards the Ordinance's strong severability clause. The primary rationale in the Higginson opinion's discussion is the incorrect assumption that the Ordinance's provisions are so "interdependent" as not to be severable under Texas law. Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990). As we have noted, the non-severability determination is a sine qua non of the Higginson opinion. Unless the "criminal" provisions are non-severable, the Ordinance cannot be overturned in full. The opinion's non-severability analysis fails, however, because it depends on the misreading and mischaracterization of the Ordinance at the heart of the Higginson opinion.
Severability raises a question of Texas law. The Texas Supreme Court has explained the test for severability as follows:
Texas law is consistent that "[i]n the construction of statutes, if it can be lawfully done, it is the duty of the court to construe a statute so as to render it valid." Id. (quoting Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604, 606 (1938)). When confronted with a statute that is unconstitutional in part, Texas courts routinely delete the portion of the statute that renders it unconstitutional, leaving the remaining aspects of the statute, so long as the remaining statute is "capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected." Id.; see, e.g., Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 441 (Tex.1998) ("The unconstitutionality of one part of a statute does not require us to invalidate the entire statute unless the unconstitutional provision is not separable from the remainder."); Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex.1998) ("If a reviewing court were to determine that one portion of a water control ordinance was invalid, the court would therefore be required to `modify' the ordinance to delete the invalid portion if the remainder of the ordinance was complete in itself and capable of being executed in accordance with the apparent legislative intent.").
The Ordinance states:
ORDINANCE 2952, § 6.
The severability clause here states that if an application of the Ordinance "to any person, entity, or circumstance" is invalid, the invalidity does not affect any other application "that can be given effect without the invalid application." Not only that, but by incorporating a reference to the City's general ordinance governing severability, Section 1-12, the Ordinance manifests a clear intent that even general City regulations should not be allowed to undermine its effectiveness. The severability clause emphasizes the City Council's determined attempt to maintain whatever part of the Ordinance is valid.
Contrary to the Higginson opinion, the Ordinance's primary purpose is to effectuate licensing of apartment and single family rentals under the supervision of the building inspector. The requirements pertinent to obtaining and maintaining residential occupancy licenses are carefully spelled out. The "Offenses" that constitute violations of the Ordinance are, first and foremost, grounds for civil enforcement by the building inspector, who can suspend a landlord's rental license and prevent rent collection during the suspension period based on the violations. Id. §§ 1(D)(5)-(8), 3(D)(5)-(8). The building inspector may also revoke a residential occupancy license, forcing the renter's removal from the premises. Id. §§ 1(D)(4), 3(D)(4). These are effective, stand-alone enforcement measures. Although the City might find criminal enforcement measures desirable, they are not necessary to assure substantial local compliance. Licenses could still be revoked, under a regulatory regime, without bringing criminal prosecutions to bear.
No other functional analysis of the Ordinance makes sense. By analogy, if driving without a license were judicially disapproved as a Class C misdemeanor offense, Texas could still require drivers to qualify for and carry licenses, on penalty of civil suspension for violations. As a further analogy, a court could judicially excise criminal environmental violation penalties, but withholding licenses to store or dispose of regulated substances would remain an effective sanction. Regarding the Farmers Branch licensing scheme as unworkable without its criminal enforcement provisions, in sum, views the Ordinance through the wrong end of the telescope. Texas's strong policy favoring severability compels severability, if this court finds the "criminal" enforcement provisions constitutionally infirm.
We agree with Judge Higginson in one respect: federal law preempts the aspect of the judicial review section that "allows state courts to assess the legality of a noncitizen's presence absent a `preclusive' federal determination." Higginson Op. at 536. The judicial review portion of the Ordinance, as enacted, allows a state court to review whether the occupant is lawfully present, while giving the federal determination "a rebuttable presumption as to the individual's immigration status" and making conclusive only those federal determinations that "would be given preclusive effect on the question." §§ 1(E)(4) & (5), 3(E)(4) & (5). Authorizing state courts to revisit federal determinations of immigration status opens the door for conflicting state-federal rulings on an immigrant's lawful status. This creates an obstacle to Congress's setting out "the sole and exclusive procedure" for determining whether an alien may be admitted or removed from the United States. 8 U.S.C. § 1229a(a)(3). Therefore, the specific provisions of the judicial review section that authorize state courts to revisit federal determinations of immigration status are conflict preempted by federal law.
We disagree, however, with Judge Higginson's conclusion that the preempted aspects of the judicial review section are not severable.
Based on the Texas authorities cited in the preceding Section, we must determine whether the Ordinance — without the portion of the judicial review section that allows state courts to revisit federal determinations of immigration status — is "complete in itself, and capable of being executed in accordance with the apparent legislative intent." Rose, 801 S.W.2d at 844. Here, because the Ordinance contains a severability clause, the legislative intent to sever the unconstitutional portion of the Ordinance is clear. The only
To resolve this question, we must consider how the Ordinance will operate without the preempted portions of the judicial review section. After deleting the conflict-preempted portions, the judicial review section of the Ordinance, in relevant part, provides:
ORDINANCE 2952, §§ 1(E), § 3(E) (alterations added). The remaining part of the Ordinance's judicial review section provides that a state court is bound by the determination of immigration status by the federal government. Pursuant to the terms of the Ordinance, judicial review of "the question of whether the occupant is lawfully present in the United States" occurs only if a landlord or occupant has received a deficiency or revocation notice. Id. Such notices are issued only after the "federal government reports the status of the occupant as an alien not lawfully present in the United States." Id. §§ 1(D), 3(D). Accordingly, any time judicial-review proceedings are initiated, the existing federal determination will bind the state court and it will be unable to make an independent determination of an individual's immigration status.
Because the preempted portions of the judicial review section can be removed from the Ordinance without impairing any other aspect of the Ordinance, including the ability to seek judicial review of a deficiency or removal notice, the Ordinance remains "complete in itself, capable of execution in accord with the legislature's intent." Rose, 801 S.W.2d at 844. Therefore, the preempted portions of the judicial
This case presents a narrow legal issue: whether federal law preempts the Ordinance. The answer under well-established law is straight-forward: it does not. The three opposing opinions reach a different conclusion based on (1) a failure to afford the Ordinance (as a local housing regulation within the police power) the presumptive constitutionality that it deserves; (2) broad and unsupported constructions of Supreme Court precedent, (3) misconceptions about how the Ordinance operates, and (4) contrived conflicts between the Ordinance and federal law. Furthermore, even if one accepts the Higginson opinion's conflict-preemption analysis, that opinion falters in its final step because the judicial review and criminal enforcement provisions are severable under Texas law. For these reasons, we respectfully dissent.
675 F.3d at 810.
It is inappropriate to apply the logic of Alabama to this case for two reasons. First, even if one believes that the state cannot prohibit the exact conduct as the federal government so long as immigration is involved, an anti-harboring statute is about the "harborer," not the illegal alien. It is not a regulation of immigration except indirectly in that it forecloses an illegal means that could assist illegal aliens in staying in the United States. This is quite different from the legal discretion of the government to allow some illegal aliens to remain in the United States. Second, although the Eleventh Circuit concluded that the Alabama statute was conflict-preempted by § 1324, it acknowledged that the rental provision did not penalize the same conduct as § 1324. Alabama, 691 F.3d at 1285, 1288. Instead, it concluded that the rental provision was problematic because it "effectuates an untenable expansion of the federal harboring provision." Id. While we disagree with the Eleventh Circuit's conclusion that a state law is conflict-preempted merely because it criminalizes conduct that federal law does not, as discussed infra, we similarly find that the Ordinance does not penalize the same conduct as § 1324.
More importantly, applying our waiver doctrine where the text of the Ordinance itself includes the severance language at issue is deeply problematic. We must give effect to every word of a statute, regardless of whether a litigant draws our attention to the applicability of a particular statutory provision. See, e.g., Lowe v. SEC, 472 U.S. 181, 207 n. 53, 105 S.Ct. 2557, 2572 n. 53, 86 L.Ed.2d 130 (1985) ("[W]e must give effect to every word that [the legislature] used in the statute."); United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute." (internal quotation omitted)).
