No, The States Aren’t Allowed To Kick Immigrants Out Of Their Homes

Rep. Lou Barletta (R-PA)

Last September, the U.S. Court of Appeals for the Third Circuit struck down two Hazelton, Pennsylvania ordinances targeting undocumented immigrants. The first ordinance strips business licenses from companies that employ workers who are not in the country legally, and the second strips rental licenses from landlords who rent to tenants without papers. Yesterday, the Supreme Court issued what is known as a grant, vacate and remand — or GVR order — telling the Third Circuit to reconsider it’s opinion in light of Chamber of Commerce v. Whiting, a recent case upholding an Arizona law imposing similar penalties on business who hire undocumented workers.

Almost immediately, nativist lawmakers from Pennsylvania declared victory. In the words of Rep. Lou Barletta (R-PA),

“This is great news for the city of Hazleton and all municipalities and states who are trying to cope with the substantial burden imposed by illegal immigrants,” Barletta, accompanied by Hazleton Mayor Joe Yannuzzi, said at a press conference Monday afternoon. “The Supreme Court was very clear. It rejected the Third Circuit Court opinion. […] We believe it puts our ordinance in a very good position.

Barletta is simply not telling the truth about the significance of yesterday’s order. Because the Supreme Court is the court of final review, the justices generally do not like to even think about a legal issue until lower courts have had the full opportunity to weigh in. If the Supreme Court jumps in too soon, it may miss an essential argument that would have come up in a lower court, and erroneous Supreme Court decisions are not easily overruled.

For this reason, GVR orders are a routine practice when the Court issues a new decision that could in any way affect the analysis of a pending case. Because the Supreme Court just issued a new decision governing how the preemption doctrine applies to immigration cases, it would be highly unusual if the Court did not GVR every single immigration preemption case on its docket. A GVR is hardly a rejection of a lower court’s opinion, however, and it is not at all unusual for a lower court to simply reinstate its previous opinion with a few new paragraphs explaining why the Supreme Court’s most recent opinion does not change the outcome.

Whiting rested on a provision of federal law forbidding states from regulating the employment of immigrants “other than through licensing and similar laws.” Because this language gives states authority over the licensing of employers, it is reasonably likely that the Third Circuit will step back from its decision striking down Hazelton’s employment sanctions.

No law exists, however, creating a similar free space for state regulation of immigrant housing, and Whiting‘s reasoning focused narrowly on the special rule governing employers. Accordingly, there is little reason to think that Hazelton’s housing law will survive a reexamination in light of the Court’s most recent immigration opinion.