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August 31, 2008

Judge Rules Against City Ordinance Restricting Illegal Alien Tenants

This story got lost in all the convention coverage last week.

Farmers Branch, TX, a suburb of Dallas, has been trying for several years now to reduce the effects of illegal immigration in the city. In 2006 the city council passed ordinances to designate English the official language, to train police officers in immigration enforcement, to fine businesses who employ illegals, and to fine landlords who rent to illegals. The ordinance was then passed by a voter referendum 68% to 32%.

The city was promptly sued in federal district court and years of litigation resulted. The rental restriction has faced the most criticism. It requires landlords to obtain and keep evidence that tenants are U.S. citizens or legal residents.

Last Thursday, Judge Sam Lindsay issued a final judgment against the city declaring the rental ordinance unconstitutional and unenforceable. He ruled that it infringed upon the plenary power of Congress in immigration matters and that its use of the phrase "eligible immigration status" was too vague to meet the requirements of due process.

Farmers Branch isn't done yet. It already passed a replacement ordinance which would go into effect 15 days after a final judgment.

Ordinance 2952 [the replacement ordinance], by contrast, would require prospective renters to pay $5 to the city and declare their citizenship or legal U.S. residency to obtain a license to rent a house or apartment. Landlords could rent to anyone with a license. The city would be responsible for checking the tenants' information against a federal database to confirm their legal status.

This one was designed to avoid the constitutional deficiencies identified by the judge. It doesn't place any burden on landlords to decide the immigration status of prospective tenants, nor does it give that power to the city government. Instead, it simply withholds a rental license from anyone the federal government doesn't have listed as a legal resident. Increasingly, courts have upheld state and local laws involving immigration so long as they leave actual immigration enforcement or determinations of immigration status to the federal government.

Lawsuits are already pending over the replacement ordinance. Incidentally, Judge Lindsay has made statements that indicate to me he's already come to a conclusion on it:

"The new ordinance is yet another attempt to circumvent the court's prior rulings and further an agenda that runs afoul of the United States Constitution," he said at the time.

By coming to a hostile conclusion before the replacement ordinance even became operative, is it reasonable for the city to ask if he can carry out his duties with integrity and impartiality?

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posted by Gabriel Malor at 12:28 PM

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