Deasey, Mahoney, Valentini & North a national defense litigation law firm headquartered in Philadelphia PA

Lozano v. City of Hazleton: A Review of Recent U.S. Court Decisions on Express and Implied Preemption, by Carla P. Maresca and Christopher C. Negrete
December 2008

Unauthorized immigration has become one of the most divisive political issues of our time. It has had wide-ranging economic and social effects the United States at all levels: federal, state and local. While the federal government has largely failed to address the impact of the arrival of unauthorized aliens in local communities, some states and municipalities have enacted innovative state laws and local ordinances that sought to address the impact of unauthorized aliens, on a community infrastructure, sometimes through measures that may also discourage unauthorized aliens from settling or remaining in a particular community.

One such municipality is the city of Hazleton, Pennsylvania, a small, Northeastern Pennsylvania city nestled in the foothills of the Pocono Mountains. By enacting a number of local ordinances concerning the employment and housing of unauthorized aliens, Hazleton became ground zero of the national immigration debate. The Hazelton ordinances have been challenged, providing one of the first opportunities for a court to examine the constitutional authority of a municipality to enact such ordinances. The case that resulted is Lozano v. The City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), which addressed a myriad of legal issues, including standing, due process, equal protection, and, importantly, federal preemption. The case is currently on appeal before the United States Court of Appeals for the Third Circuit and was argued on October 30, 2008.

What prompted Hazleton to pass the ordinances that resulted in its label the “Most Racist City in America,” by the newspaper, La Prensa San Diego? From 2000 to 2006, Hazleton’s population rose from 23,329 to approximately 33,000. This dramatic population increase was due, at least in part, to an unusually high influx of undocumented immigrants. Because many of these immigrants worked “off the books,” the city did not experience a corresponding increase in tax revenue from its 1.9 percent earned income tax.
Additionally, the population increase strained the budgets of many city agencies, including the school district and police department. For example, the Hazleton Area School District’s budget for English as a Second Language instruction increased from $500 in 1999 to $1,100,045 in 2007. This represented an increase of 220,009 percent in eight short years. Coupled with stagnating tax revenue, the increased costs of city services caused budget deficits where it had previously experienced surpluses.

Hazleton also claims to have experienced increased crime since 2000. The city linked the crime rate increase to the activity of gangs, such as the Latin Kings and MS-13, which actively recruit undocumented aliens. The city claimed increased gang activity resulted in an increase in violent and drug-related crimes in particular. In addition to making Hazleton a less desirable place to live and work, the increase in crime strained the Hazleton Police Department’s budget and personnel.

Although the city recognized that unauthorized immigration was one potential cause of city problems, it did not act immediately. That all changed on March 10, 2006, with the murder of Derek Kichline in front of his girlfriend’s home. It was the second murder in approximately eight months. Murders occur rarely in Hazleton; on average, one murder occurs every seven to eight years. Two unauthorized aliens were eventually arrested in connection with the Kichline murder, although they were later released when two key witnesses changed their stories. The Kichline killing was the catalyst that prompted Hazleton to enact ordinances in an attempt to curb the population influx, which the city believed consisted mostly of unauthorized aliens.

Pursuant to its police power to protect the health, safety, welfare and morality of its residents, the city of Hazleton passed the Illegal Immigration Relief Act Ordinance (IIRA), which contained two distinct prohibitions. First, it prohibited the employment of unauthorized aliens, as defined by federal law. An employer in violation could have its business license suspended until the violation was rectified. The IIRA also barred landlords from knowingly harboring an unauthorized alien by providing occupancy to such an alien. Thus, the IIRA indirectly targeted unauthorized immigration by imposing sanctions against violating employers and landlords.

Under the IIRA, the city played absolutely no role in determining whether an individual was an unauthorized alien. Rather, such determination was made by an employer or landlord from federal verification systems, such as the E-Verify Program (formerly the “Basic Pilot Program”) and the Systematic Alien Verification for Entitlements system (SAVE). Employers and landlords could only be penalized if the federal government ultimately confirmed that individuals they employed or to whom they rented were unauthorized under federal law.

Immediately upon enactment, suit was filed in the Middle District of Pennsylvania on behalf of a certain businesses, Hispanic organizations and individuals, some of whom were unauthorized aliens, challenging the ordinances on constitutional grounds. To address the concerns raised by the plaintiffs, the city passed numerous amendments to the IIRA, none of which were satisfactory to the plaintiffs. Eventually, the case was tried without a jury before the Honorable James M. Munley in the Middle District of Pennsylvania in March 2007.

The case presented a plethora of legal issues, such as whether the plaintiffs had standing to sue, whether unauthorized aliens could sue anonymously, and, most importantly, whether federal law expressly or implicitly preempted the Hazelton ordinances. Despite the city’s vigorous defense, the court ruled in favor of the plaintiffs. One of the primary reasons cited by the court in its 206-page decision was that the ordinances violated the Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2, which “invalidates state laws that ‘interfere with or are contrary to’ federal law.” Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The court agreed with the plaintiffs that the federal law completely preempted state and local law in the field of immigration, essentially precluding states and municipalities from taking action to stem the flow of undocumented aliens into their respective jurisdictions. The city has appealed the court’s ruling to the U.S. Court of Appeals for the Third Circuit. Lozano v. Hazleton, Case No. 07-3531 (3d Cir.). The case was argued before a three-judge panel on October 30, 2008, and the parties are awaiting a decision.

After the Lozano decision, both the Middle District of Missouri and the District of Arizona heard cases concerning similar ordinances and statutes. Gray v. City of Valley Park, Missouri, 2008 U.S. Dist. LEXIS 7238 (M.D. Mo. 2008); Arizona Contractors Ass’n, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 2008).

However, the courts’ analyses in Gray and Arizona Contractors differed from the analysis of the Lozano court; both held that federal law did not entirely preempt the ordinances in question. Gray has been appealed to the Eighth Circuit (No. 08-1681) while Arizona Contractors, and its related cases, have been appealed to the Ninth Circuit (Nos. 08-15357, 08-15359 and 08-15360). Both cases are currently awaiting oral argument. In light of the differing interpretations, it appears that a showdown before the United States Supreme Court may ultimately be asked to resolve the differences among the various circuits.

Presumption against Preemption

Typically, state and local laws are not preempted by federal action “unless that was a clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). However, the Lozano court did not apply this presumption, removing a significant barrier to determining that Hazelton’s actions were preempted by federal law. In its holding, the Lozano court relied on U.S. v. Locke, 529 U.S. 89, 108 (2000), which held that “an assumption of non pre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence.” The Lozano court held that because Hazelton’s ordinances addressed the employment and harboring of unauthorized immigrants, they essentially attempted to regulate immigration, which “is a federal concern, not a state or local matter.”

However, the Eastern District of Missouri, in Gray stated that the presumption against preemption could only be set aside if the local ordinance actually attempted to regulate “who should or should not be admitted into the country, and the condition under which a legal entrant may remain.” Gray, 2008 U.S. Dist. LEXIS 7238 at *25 (quoting De Canas v. Bica, 424 U.S. 351, 355 (1976)). The Gray court concluded that the Valley Park, Missouri ordinances at issue did not attempt to regulate immigration because they did “not address the question of who may or may not enter the United States.” Id. Rather, the Valley Park, Missouri ordinances simply regulated business licenses, an area historically reserved for the states.

Express Preemption

After determining that the presumption against federal preemption was inapplicable, the Lozano court held that Hazelton’s ordinances were expressly preempted by federal law. Express preemption occurs when Congress has explicitly stated that federal law is exclusive in a given field. Thus, states or municipalities cannot regulate in that field, even if their efforts complement federal objectives. Morales v. TWA, 504 U.S. 374, 387 (1992).

The Lozano court held that the federal Immigration Reform and Control Act of 1986 (IRCA), which criminalized the employment of unauthorized aliens, expressly preempting the IIRA’s employment provisions. Under the IRCA, employers must verify the identity and eligibility for work of any potential new hires.

Although the Lozano court stated that the preemption clause in the IRCA expressly preempted Hazelton’s ordinances, it actually does not preclude all state and local regulation of the employment of unauthorized aliens. Specifically, 8 U.S.C. § 1324a(h)(2) provides:

Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

8 U.S.C. §1324a(h)(2) (emphasis added). Thus, according to the parenthetical IRCA savings clause, the IRCA does not preempt a municipal law that imposes licensing sanctions against an employer. Because the sanction imposed under the IIRA is temporary suspension of an employer’s business permit, the IRCA permits, rather than preempts, the IIRA’s licensing sanctions.
However, the Lozano court disagreed for two distinct reasons. The Lozano court reasoned that (1) the suspension of a business license is a harsher sanction than the civil or criminal sanctions, and as such, is prohibited under the IRCA; and (2) a House Judiciary Committee Report indicated that Congress only intended to permit municipalities to suspend business licenses in the event of a prior IRCA violation.

Severity of the Sanctions Imposed

In examining the preemption provision of the IRCA, the Lozano court evaluated whether the licensing sanctions imposed under the IIRA were more severe than fines or imprisonment, which the IRCA expressly precludes.

In holding that suspension of a business license is more severe, the court actually stated that, under Hazelton’s interpretation of the IIRA, the city could properly impose any penalty it wished “as long as the sanction imposed is to force the employer out of business by suspending its business permit—what we could call the ‘ultimate sanction.’” Lozano, 496 F. Supp.2d at 519. Questioning Congress’ intent, the court held that “It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity to provide the ultimate sanction, but no lesser penalty.” Id. The Lozano court did not indicate what would pass muster under the IRCA as a “lesser penalty.”

Furthermore, in holding that temporary suspension of a business license is the “ultimate sanction,” the Lozano court failed to acknowledge that Hazelton had absolutely no desire to force employers out of business. According to the IIRA language, the suspension of a business license is only a temporary sanction that is lifted once violation ceased. The city argued that a temporary suspension is akin to a temporary restaurant closure after a health inspection due to discovery of unsanitary conditions. Once the restaurant rectified the violation, it could reopen for business. Moreover, the city argued that a policy of forcing employers out of business would be suicidal for a small city that relies heavily on income tax revenue.

The plaintiffs in both Gray and Arizona Contractors, understandably emboldened by the Lozano decision, made identical arguments—that Congress did not intend to permit states and municipalities to impose licensing sanctions that were more harsh than the IRCA’s expressly prohibited civil and criminal sanctions. However, both courts held that the IRCA’s language unambiguously carved out an exception that permitted states and municipalities to impose licensing sanctions against businesses that employed unauthorized aliens. Generally, “courts must presume that a legislature says what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Gray, 2008 U.S. Dist. LEXIS 7238 at *31–32 (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992)).

Finding the IRCA’s preemption language unambiguous, the Gray court held that the only question is “whether the ordinance is a licensing or other similar law.” Id. at *31. As a result, the Gray court held that “whether or not the denial of a business permit is a greater or lesser sanction than fines and imprisonment is an irrelevant inquiry.” Id.

The court in Arizona Contractors likewise stated that “the plain language of 8 U.S.C. § 1324a(h)(2) authorizes State licensing sanctions.” Arizona Contractors, 534 F. Supp.2d at 1045. Thus, once it is determined that a statute or ordinance at issue is a licensing law, further analysis is irrelevant, regardless of the severity of the licensing sanctions relative to the IRCA’s penalties.

In its appellate brief to the Third Circuit, the city of Hazleton has relied upon both the Gray and Arizona Contractors decisions to bolster its argument that the Lozano court’s interpretation of the IRCA’s provision is improper. The Third Circuit will be required to determine which approach is consistent with the intent of the federal IRCA.

Examination of Legislative History

Seeking to further bolster its holding, the Lozano court examined its legislative history. However, rather than reviewing the legislative history in toto, the Lozano court focused only on language of the July 16, 1986, House Judiciary Committee Report, which provides as follows:

The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.

H.R. No. 99-682(I) at 5662 (emphasis added).
Thus, the Lozano court accepted the plaintiffs’ argument that Congress intended to apply the licensing exception only if an entity is “an entity found to have violated the sanction provisions of the IRCA.” Lozano, 496 F. Supp. 2d at 520. Because “Hazleton suspends the business permit of those who violate its Ordinance, not those who violate the IRCA,” the Lozano court held that “the licensing exception to State and local pre-emption is not applicable.” Id. The practical result of Lozano is that federal enforcement under the IRCA is required before a municipality can suspend an employer’s business license.

The Lozano court did not accept the city of Hazelton’s argument that its ordinance and the IRCA precluded identical conduct. Under both the IRCA and IIRA, it is unlawful to hire, employ or continue to employ an unauthorized alien. See 8 U.S.C. § 1324a(a)(1)(A); 8 U.S.C. § 1324a(a)(1)(B)(ii); IIRA § 4.A. Thus, the IIRA does not impose any additional requirements upon employers that are not already imposed under federal law. Because both the IRCA and IIRA proscribe identical conduct, an employer violating the city’s ordinance also violates federal law.

In its brief to the Third Circuit, the city of Hazelton has argued that in relying on language contained in a single House Judiciary Committee Report—language that actually appears to support the authority of municipalities to enact ordinances such as Hazelton’s IIRA—the Lozano court discounted the plain language of the IRCA. The city has noted that the court’s opinion did not point to any IRCA language that demonstrates Congress’ intent to permit imposing sanctions against a business, such as suspending a license, only if it had first received sanctions for violating the IRCA. In fact, if that were the case, the licensing exception would be devoid of any meaningful impact.

The courts in Arizona Contractors and Gray thoroughly rejected the Lozano court’s analysis of the legislative history of the IRCA. First, both courts held that, because the IRCA’s language was unambiguous, examining legislative history was inappropriate. Specifically, the Arizona Contractors court stated that the statutory language, as approved by Congress, controls,. Arizona Contractors, 534 F. Supp. 2d at 1046 (citing Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005)). Even if Arizona’s legislative history did indicate that Congress intended to require prior federal enforcement before a state or municipality imposed sanctions against a business, congressional intent does not override the plain language of the statute. Because the IRCA “does not contain any language indicating that prior federal enforcement action is necessary before a state may sanction an employer’s license,” as long as the state or municipality imposes a licensing sanction against an employer in violation of a state law or municipal ordinance, the sanction actions are not subject to federal preemption. Id. at 1046–1047.

Further, Arizona Contractors specifically noted that the language regarding prior federal enforcement only appears in one of four House Committee Reports, which Lozano failed to acknowledge. Additionally, the Senate had already passed the bill by the time the July 16, 1986, House Report was issued. Therefore, “whatever the meaning of the House Judiciary Committee Report’s comment, it was not before the Senate when it approved the bill.” Id. at 1047. The Arizona Contractors court also took a swipe at activist courts, stating, “if the House Report did mean what Plaintiffs contend, such an attempt to override the plain language of the statute should be precisely the kind of excess that the modern view of legislative history illegitimates.” Id. at 1048.

Implied Preemption
Implied preemption occurs when Congress’ intent to preempt is implied by the structure and purpose of a statute. More specifically, implied preemption takes two forms. It occurs when (1) the scheme of federal regulation pervades to the extent that it is reasonable to infer that Congress had left no room for state or municipal law to supplant the federal scheme—referred to as field preemption; and (2) state or local law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress—referred to as conflict preemption. In its decision, the Lozano court held that Hazleton’s ordinances were preempted under both field and conflict preemption. Gade v. Nat’l Solid Waste Mgt. Ass’n, 505 U.S. 88, 98 (1992).

Field Preemption

The Lozano court first held that Congress intended to preempt the entire field of immigration regulation to the exclusion of states and municipalities. However, the city of Hazleton has argued that the Lozano court’s position is inconsistent with the Supreme Court’s decision in De Canas v. Bica, 424 U.S. 351 (1976), in which the Supreme Court expressly stated that Congress had not preempted the entire field of immigration law. In De Canas, the Court upheld a California law that imposed penalties on employers who “knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352. The Supreme Court held that states and municipalities possess wide leeway to “deal with aliens” without invoking federal preemption. “Only a demonstration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify [the] conclusion” that Congress intended to entirely preempt the field of immigration, to the exclusion of all state law. Id. at 357–58.

The Lozano court declined to follow De Canas, reasoning that, after the De Canas decision, Congress created a comprehensive legislative scheme through the IRCA, which preempted the field of regulation of the employment of unauthorized aliens, to the exclusion of state law. The Lozano Court held that De Canas is no longer good law. Thus, the Lozano court ultimately determined that the federal government occupies the field of regulation of employment of unauthorized aliens to the exclusion of state law. Lozano, 496 F. Supp. 2d at 525 (citing Abdullah v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999)).

The court in Gray, however, arrived at a different conclusion. Quoting De Canas, the Gray court held that while the “power to regulate immigration is unquestionably exclusively a federal power, . . . the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power.” Gray, 2008 U.S. Dist. LEXIS 7238 at 40-41 (quoting De Canas, 424 U.S. at 355). Although the IRCA was enacted after the De Canas decision, the Gray court stated that the IRCA preemption clause language actually bolsters the De Canas holding. Specifically, “allowing some state licensing regulations to exist, clearly conflicts with an intent to preempt the entire field of immigration regulation.”

On appeal, the city of Hazleton has argued that the Lozano court overstepped its authority in declining to follow the precedent established in De Canas. In addition to the Middle District of Missouri in Gray and the District of Arizona in Arizona Contractors, the Second Circuit has also concluded that the IRCA does not entirely preempt the field of immigration. Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 240–41 (2d Cir. 2006). In the event that there remains a conflict among the various circuits regarding whether the field of immigration has been completely preempted by federal law, it may be necessary for the Supreme Court to revisit the De Canas decision.

Conflict Preemption

The Lozano court also concluded that Hazleton’s IIRA ordinance was preempted through the doctrine of conflict preemption. Conflict preemption can occur when (1) compliance with both state or local and federal law is impossible, or (2) the state or local law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade, 505 U.S. at 98.

While acknowledging that the IRCA’s and IIRA’s goals are essentially identical, the Lozano court concluded that the means through which each sought to achieve the goals are different. Lozano, 496 F. Supp. 2d at 526. The Lozano court pointed out a number of differences between the IIRA and IRCA to support its conclusion that the IIRA conflicted with federal law. For example, the Court noted that, under federal law participation in the E-Verify Program is not mandatory, whereas it is under the IIRA. Additionally, contrary to federal law, the IIRA requires employers to verify the immigration status of casual domestic workers and independent contractors. While noting that the IRCA and IIRA similarly seek to prevent the employment of unauthorized aliens while not overburdening employers, the Lozano court held that these two laws “strike a different balance between these interests,” and, therefore, the IIRA was conflict preempted. Id. at 528.

By simply listing differences between federal law and the IIRA, the city has argued on appeal that the Lozano court failed to apply the correct standard for conflict preemption. Under the Lozano court’s interpretation, to escape a finding of conflict preemption, the IIRA would have to be virtually identical in language and application to the IRCA. The city of Hazelton claims this is too narrowly restrictive and that it also ignores that states and localities may undertake concurrent enforcement where such activities “do not impair federal regulatory interests.” Gonzales v. Peoria, 772 F.2d 468 (9th Cir. 1983) (citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).

Moreover, conflict preemption arises only when federal and state laws “actually conflict.” Arizona Contractors, 534 F. Supp. 2d at 1053. (citing English v. General Electric Co., 496 U.S. 72, 79 (1990)). A mere difference between a state and federal law is not a conflict. Paul, 373 U.S. 132. Rather, the conflict must be “irreconcilable.” Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982). Thus, “a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” Gade, 505 U.S. at 110 (Kennedy, J., concurring). In the immigration context, “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” Lynch v. Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987).

The city of Hazelton also argues that the different approaches of the IIRA and federal law are either nonexistent or insufficient to constitute conflict preemption. First, the Lozano court stated that the IIRA and federal law conflict regarding mandatory participation in the E-Verify Program. However, the city has noted that under both the IIRA and federal law, the city and the federal government, as well as their contractors, are required to participate in the E-Verify Program. Additionally, the IIRA compels participation in the E-Verify Program when a business has been found to have employed two or more unauthorized aliens and has failed to rectify the violation. Similarly, under the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) § 401(e)(2), a business can be compelled to participate in the E-Verify Program as a consequence of violating 8 U.S.C. § 1324a. As a result, the city argues that local and federal practice mirror each other, making E-Verify Program participation mandatory in limited circumstances.

Additionally, the Lozano court held that the IIRA and federal law conflicted because the IIRA requires employers to verify the immigration status of casual domestic employees and independent contractors. However, the city of Hazleton claims in its appellate brief that the Lozano court misread the IIRA. Under federal law, it is illegal to hire an individual without complying with certain employment eligibility verification requirements. 8 U.S.C. 1324a(a)(1)(B)(i). But federal law provides a narrow exception for casual domestic workers extending only to “casual employment by individuals” who “provide domestic service in a private home that is sporadic, irregular or intermittent.” 8 C.F.R. § 274a.1(h) (emphasis added); see also Jenkins v. INS, 108 F.3d 195, 197 (9th Cir. 1997). Similarly, the IIRA employment eligibility verification requirement applies only to employment relationships involving a “business entity.” It does not apply to a homeowner employing someone to perform household tasks, such as cleaning and gardening, in his or her private home. Id. As such, the city posits that no conflict exists on that point between the IIRA and federal law.

The Lozano court also determined that the IIRA required employers to verify the immigration status of independent contractors, in opposition to federal law. While employers have no duty to determine the employment eligibility of independent contractors, federal law expressly prohibits any employer from knowingly obtaining the labor of an unauthorized alien through a contract. 8 U.S.C. § 1324a(a)(4). If an employer becomes aware that an independent contractor is an unauthorized alien, federal law effectively transforms the independent contractor relationship into an employer-employee relationship, which appears to be completely consistent with IIRA provisions. Id.

In its appellate brief, the city of Hazelton argues that a vast body of federal law exists that expresses the congressional objective of encouraging state and local efforts, such as the IIRA, to reinforce federal immigration law. Importantly, Congress created a federal statutory structure to accommodate local programs by enacting 8 U.S.C. § 1373 in 1996. This statute required the Immigration and Naturalization Service (INS, now known as the U.S. Citizenship and Immigration Services) to respond to all local immigration status inquires by verifying immigration status to any “local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the [INS] for any purpose authorized by law.” 8 U.S.C. § 1373(c). In that same statutory section, Congress recognized the interest of localities in “sending” and “maintaining” such “information regarding the immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(b)(1)-(2). This is definitive evidence that Congress expected and intended state and local governments to implement programs to inquire into the legal status of aliens.

While the city of Hazelton argues in its appellate brief that examining federal legislative history is irrelevant to determining whether the IRCA expressly preempts the IIRA, it notes that § 1373’s legislative history further amplifies Congress’ intent to cooperatively participate in immigration law enforcement:

Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act.

Sen. Rep. No. 104-249, 104th Cong., 2d Sess. At 19-20 (1996) (emphasis added).
In reality, the Hazleton IIRA was drafted and enacted with 8 U.S.C. § 1373, and the cooperative immigration law enforcement effort Congress envisioned, in mind. In its appellate brief, the city of Hazelton argues that Congress’ intent was to promote, rather than hinder or preclude, the enforcement of immigration law by states and municipalities.

Conclusion
In the near future, three circuit courts of appeals will address the role, if any, of local and state governments have in the area of unauthorized immigration regulation and law enforcement. However, the authors believe that appeal to the Supreme Court will follow, regardless of the holdings of the circuit courts. Because the unauthorized immigration issue is national in scope, involves potential conflicts between various circuit court holdings, concerns distinguishing between federal powers typically reserved for states and municipalities, and requires balancing among federal, state and local interests, the Supreme Court may accept the opportunity to settle the issues involved in the near future.

Carla P. Maresca is a partner in the Philadelphia office of Deasey, Mahoney, & Valentini, Ltd. Ms. Maresca concentrates her litigation practice in employment discrimination, civil rights and immigration law. She is a member of the Employment Law and Governmental Liability Committees of DRI. Christopher C. Negrete is an associate in the Philadelphia office of Deasey, Mahoney & Valentini, Ltd. He concentrates his practice in the fields of civil rights litigation, governmental liability, product liability, premises liability and insurance coverage.