One of the backbones of American immigration law is, in the words of the Supreme Court’s most recent immigration decision, a state or local government is not allowed to “achieve its own immigration policy.” As the Court explained more than 70 years ago, immigration policy is inexorably tied to foreign policy, and it matters of foreign policy the United States must speak with one voice — not fifty.
There are signs, however, that one of the most conservative federal appeals courts in the country does not get this. A three-judge panel of the United States Court of Appeals for the Fifth Circuit previously blocked a Dallas suburb’s ordinance prohibiting undocumented immigrants from renting housing, but the full court met today to reconsider that decision:
Farmers Branch was sued four years ago after it passed an ordinance allowing the city building inspector to evict any illegal immigrant renters. Its case will now go before the full membership of the 5th U.S. Circuit Court of Appeals, with 10 of its judges appointed by Republican presidents and just five by Democrats. . . .
So far, no court has allowed Farmers Branch to enforce any form of the ordinance. But the appeals court’s rare move to hear the case a second time, months after a different three-judge panel ruled against the city, could be a sign that the town might finally get a victory.
The current ordinance, which replaced an earlier 2006 version, would require all renters to obtain a $5 city license and fill out an application that asks about their legal status. Then, the city’s building inspector would have to check whether any immigrant applying for a license was in the United States legally. Illegal immigrants would be denied a permit, and landlords who knowingly allow illegal immigrants to stay as tenants could be fined or have their renters’ license barred.
Just last term, the Supreme Court struck down much of Arizona’s anti-immigrant law SB 1070, including a provision authorizing state law enforcement officers 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.” The Court deemed this provision to intrude too far upon the rule forbidding separate state immigration policies, noting that the Arizona law would effectively authorize state officials to target undocumented immigrants without any authorization whatsoever from the federal government. Because “[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer,” Arizona cannot authorize police to round up immigrants and a Texas town cannot authorize building inspectors to drive immigrants from their home.
So if the Fifth Circuit follows this established law, there is little doubt that they will strike down the Farmers Branch ordinance. There is reason to doubt, however, whether this very conservative court will do so. The Fifth Circuit recently suggested that undocumented immigrants have no rights whatsoever to be free from illegal searches and seizures under the Fourth Amendment. A Fifth Circuit panel sanctioned a former high school cheerleader because she brought a lawsuit claiming that she shouldn’t be required to cheer for her alleged rapist. Multiple Fifth Circuit judges attended expense-paid “junkets for judges” sponsored by an organization funded by the oil industry. One member of the Fifth Circuit recently tried to force a Justice Department attorney to write a letter attacking President Obama. The Court’s chief judge once yelled at one of her few progressive colleagues to “shut up” during a court hearing.
So the law is fairly clear in this case, but so is the Fifth Circuit’s ideology. The court will inform the country soon which one of these wins out.