State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments

State and Local Restrictions on
Employing, Renting Property to, or
Providing Services for Unauthorized Aliens:
Legal Issues and Recent Judicial Developments
Updated February 21, 2008
Michael John Garcia, Jody Feder, and Alison M. Smith
Legislative Attorneys
American Law Division

State and Local Restrictions on
Employing, Renting Property to, or Providing Services
for Unauthorized Aliens: Legal Issues and
Recent Judicial Developments
Summary
An estimated 37 million foreign-born persons currently reside in the United
States, almost a third of whom may be present without authorization, and in recent
years the number of aliens who unlawfully reside in the United States has grown
significantly. The movement of aliens (both legal and nonlegal) to “nontraditional”
areas and the growth in the unauthorized alien population have led some states and
localities to enact measures geared at stopping unauthorized aliens from arriving and
settling within their communities. Typically, such measures have sought to (1) limit
the employment and hiring of unauthorized aliens, including through the denial of
permits to entities that employ such persons, as well as through the regulation of day
labor centers; (2) restrict the ability of such aliens to rent or occupy a dwelling within
a state or locality’s jurisdiction; and/or (3) deny such individuals access to state and
local services or benefits.
State or local restrictions upon unauthorized aliens’ access to employment or
housing and eligibility for public benefits have been challenged on at least one of the
following grounds: (1) such restrictions are preempted by federal law, including the
Immigration and Nationality Act (INA), and are, therefore, unenforceable by federal
or state courts; (2) the measures run afoul of the Equal Protection Clause of the
Fourteenth Amendment, which requires states and localities to accord all persons
equal protection under the law; (3) such restrictions deprive persons of a liberty or
property interest without providing them adequate due process, in violation of
Fourteenth Amendment requirements; and (4) the restrictions run afoul of federal
civil rights statutes, including the Fair Housing Act, Title VII of the Civil Rights Act,
and 42 U.S.C. § 1981. Arguably, these challenges are more significant with respect
to state and local restrictions on employing and renting property to illegal aliens than
they are with regard to state and local restrictions on unauthorized aliens’ access to
public services and benefits.
This report discusses the constitutional issues raised in relation to state and local
laws intended to deter the presence of unauthorized aliens, along with the
implications that federal civil rights statutes might have on the implementation and
enforcement of measures restricting such persons’ ability to obtain employment,
housing, or other state and local benefits or services. The report also discusses recent
judicial developments at the federal level concerning local ordinances aimed at
deterring the presence of unauthorized aliens within a locality’s jurisdiction.

Contents
In troduction ......................................................1
I. Factual Background..............................................2
II. Relevant Immigration-Related Legal Issues...........................3
Preemption ...................................................3
Equal Protection...............................................4
Procedural Due Process.........................................5
III. Immigration-Related Legal Issues Raised by State or Local Restrictions on
the Employment of Unauthorized Aliens............................7
Preemption ...................................................7
Procedural Due Process........................................10
IV. Immigration-Related Legal Issues Raised by State or Local Restrictions
upon Tenancy or Dwelling......................................12
Preemption .................................................12
Equal Protection..............................................14
Procedural Due Process........................................15
V. Immigration-Related Issues Raised by State and/or Local Restrictions on
Public Benefits/Services.......................................16
VI. Potential Limitations Imposed by Federal Civil Rights Statutes..........19
VII. Recent Federal Judicial Activity Concerning State and Local Ordinances.21
Arizona Contractors Ass’n, Inc. v. Candelaria......................22
Gray v. City of Valley Park.....................................24
National Coalition of Latino Clergy, Inc., v. Henry...................26
Lozano v. City of Hazleton.....................................27
Villas at Parkside Partners v. City of Farmers Branch.................30
Stewart v. Cherokee County....................................30
Garrett v. City of Escondido....................................31

State and Local Restrictions on Employing,
Renting Property to, or Providing Services
for Unauthorized Aliens: Legal Issues and
Recent Judicial Developments
Introduction
Recently, several states and localities have considered and/or enacted measures
intended to deter the presence of aliens who are present in the United States without
legal authorization (i.e., aliens commonly referred to in discourse as “illegal” or
“unauthorized” aliens). Typically, such measures have sought to (1) limit the
employment and hiring of unauthorized aliens, including through the denial of
permits to entities that employ such persons, as well as through the regulation of day
labor centers; (2) restrict the ability of such aliens to rent or occupy a dwelling within
a state or locality’s jurisdiction; and/or (3) deny such individuals access to state and
local services or benefits.
Several of these measures have been challenged in court, including on federal
preemption and Fourteenth Amendment grounds. Legal challenges brought in
federal court concerning restrictions on employment or the renting of property have
led to conflicting court rulings. In some cases, the relevant state or local measure has
been upheld as legally and constitutionally valid. In other cases, the measure has
been struck down. In still other instances, the parties have reached a settlement
agreement that precludes enforcement of the contested ordinance, or the presiding
court has enjoined the enforcement of the ordinance pending trial.
These cases illustrate the difficulties states and localities face in attempting to
regulate the presence and rights of aliens within their jurisdictions in a manner
consonant with federal law. Over time, the courts have narrowed the legal bases
upon which states and localities may enact legislation affecting aliens. State and
local authority to regulate aliens has also been limited, directly or impliedly, by the
growing scope of federal immigration law. With the enactment of federal employer
sanctions, welfare reform, and other recent immigration laws, Congress has left
increasingly few gaps and crevices for states and localities to fill. Significantly, these
laws have not only broadened the substantive regulation of aliens (e.g., employment
eligibility), but have also established discrete procedures for determining alien
eligibility for employment and certain benefits. Perhaps ironically then, even as new
state and local measures to deter illegal immigration are motivated in part by a
perceived lack of federal enforcement of immigration law, the degree to which states
and localities may regulate immigration-related matters has arguably been curbed by
the growing breadth of federal immigration law on the books. Conflicting court

rulings regarding the permissibility of state and local measures targeting illegal aliens
has further contributed to this legal ambiguity.
This report discusses the constitutional issues raised in relation to state and local
laws intended to deter the presence of unauthorized aliens, along with the
implications that federal civil rights statutes might have on the implementation and
enforcement of measures restricting such persons’ ability to obtain employment,
housing, or other state and local benefits or services. This report also discusses
recent judicial developments at the federal level concerning state and local measures
aimed at deterring the presence of illegal aliens.
I. Factual Background
An estimated 37 million foreign-born persons currently reside in the United¹
States, almost a third of whom may be present without authorization. Over the past
several years, the number of aliens who unlawfully reside in the United States has
grown significantly, from an estimated 3.2 million in 1986 to more than 11 million
in 2005.² The number of unauthorized aliens in the United States is estimated to³
increase by 500,000 annually.
The movement of aliens (both legal and nonlegal) to “nontraditional” areas,⁴ and
the growth in the unauthorized alien population⁵ have led some states and localities
to enact measures geared at stopping unauthorized aliens from arriving and settling
within their communities. Since early 2006, several dozen localities have considered
and/or passed legislation aimed at deterring the presence of unauthorized aliens
within their jurisdictions.⁶ In many cases, such legislation has sought to deny or
revoke licenses for businesses that employ unauthorized aliens, bar such aliens from

¹ The other two-thirds of foreign-born U.S. residents are legal permanent residents (i.e.,
“legal immigrants”) or naturalized citizens. See CRS Report RS22574, Immigration Reform:
Brief Synthesis of Issue, by Ruth Ellen Wasem. The foreign-born figure does not include
aliens who have been admitted into the United States on a temporary basis
(“nonimmigrants”) — e.g., temporary workers, foreign students, diplomats, business
travelers, and tourists.
² See CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates
Since 1986, by Ruth Ellen Wasem. See also Jeffrey S. Passel, Pew Hispanic Center, The
Size and Characteristics of the Unauthorized Migrant Population in the U.S.: Estimates
Based on the March 2005 Current Population Survey, March 7, 2006, available at
[http://pewhispanic.org/files/reports/61.pdf] (hereinafter “Pew Study”).
³ Pew Study, supra note 2.
⁴ Pew Hispanic Center, The New Latino South: The Context and Consequences of Rapid
Population Growth, presented at the conference “Immigration to New Settlement Areas,”
July 26, 2005, available at [http://pewhispanic.org/files/execsum/50.pdf].
⁵ CRS Report RL33874, supra note 2.
⁶ The Fair Immigration Reform Movement, an immigration advocacy group, maintains a
database listing local legislative activity concerning immigration, which may be accessed
at [http://www.fairimmigration.org/learn/immigration-reform-and-immigrants/local-level/].

renting, leasing, or owning property, and prohibit such aliens from receiving various
public benefits.
II. Relevant Immigration-Related Legal Issues
State or local restrictions upon unauthorized aliens’ access to employment or
housing and eligibility for public benefits have been challenged on at least one of the
following grounds: (1) such restrictions are preempted by federal immigration law,
and are, therefore, unenforceable by federal or state courts; (2) the measures run afoul
of the Equal Protection Clause of the Fourteenth Amendment, which requires states
and localities to accord all persons equal protection under the law; or (3) such
restrictions deprive persons of a liberty or property interest without providing them
adequate due process, in violation of Fourteenth Amendment requirements.
The following sections describe these legal concepts in more detail, particularly
as they relate to state and local regulation of unauthorized aliens within their territory.
Preemption
While federal and state power to regulate certain matters overlaps, the Supreme
Court has long recognized that authority to determine which foreigners may enter and
remain in the United States “is unquestionably exclusively a federal power.”⁷ “States
cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail
or complement, the federal law, or enforce additional or auxiliary regulations.”⁸
Further, the Supremacy Clause of the U.S. Constitution provides that federal
laws and treaties are “the supreme Law of the Land.”⁹ Accordingly, when Congress
acts within the scope of its constitutional authority, the laws it enacts may preempt
otherwise permissible state or local action within that field. State or local action may
be either expressly or impliedly preempted by federal law. In general, a valid act of
Congress may preempt state or local action in a given area if (1) an express
legislative statement of preemption is given (express preemption); (2) a court
concludes that Congress intended to occupy the regulatory field, thereby implicitly
precluding state or local action in that area (field preemption); or (3) state or local
action directly conflicts with or otherwise frustrates the purpose of the federal scheme
(conflict preemption).¹⁰
Through the Immigration and Nationality Act (INA),¹¹ the federal government
has instituted a comprehensive framework to regulate the admission and removal of

⁷ DeCanas v. Bica, 424 U.S. 351, 354 (1976).
⁸ Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (internal citations omitted).
⁹ U.S.C^ONST. art. VI, cl. 2.
¹⁰ See, e.g., Silkwood v. Kerr-McGee Corp, 464 U.S. 238, 248-249 (1984); Pacific Gas &
Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S.

190, 203-204 (1983).

¹¹ 8 U.S.C. §§ 1101 et seq.

aliens, as well as the conditions of aliens’ continued presence in the United States.
Additionally, the INA was amended pursuant to the Immigration Reform and Control
Act of 1986 (IRCA) to establish a scheme to combat the employment of illegal
aliens, and this system is now “central to the policy of immigration law.¹² On the one
hand, the INA sets forth various categories of legal aliens, and grants certain rights
to aliens falling within those categories. On the other hand, the INA establishes an
enforcement regime to deter the unlawful presence of aliens, including through the
use of employer sanctions, criminal and/or civil penalties, and deportation.
Although there is little room for state or local action addressing immigration,
the Supreme 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.”¹³ In the 1976
case of DeCanas v. Bica, the Supreme Court held that state regulation of matters only
tangentially related to immigration would, “absent congressional action[,] ... not be
an invalid state incursion on federal power.”¹⁴ The Court further indicated that field
preemption claims against state action that did not conflict with federal law could
only be justified when the “complete ouster of state power ... was the clear and
manifest purpose of Congress.”¹⁵
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no
state shall “deny to any person within its jurisdiction the equal protection of the
laws.”¹⁶ Being entitled to “equal protection” does not equate to “equal treatment.”
Generally, the judicial review standard applied to state and local laws that treat
different categories of persons differently — the “rational basis” test — is highly
deferential. However, if a distinction disadvantages a “suspect class” or relates to a
“fundamental right,” a reviewing court will require the state or locality to
demonstrate that the distinction is justified by a compelling government interest
(“strict scrutiny”). Other tests falling between rational basis and strict scrutiny have
also been applied on occasion.
All persons in the United States are entitled to “equal protection” under the
Fourteenth Amendment, and states are limited in the degree to which they may

¹² Hoffman Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137, 147 (2002) (internal
quotations omitted).
¹³ DeCanas, 424 U.S. at 355. Indeed, during the nineteenth century, when federal regulation
of immigration was far more limited in scope, state legislation limiting the rights and
privileges of certain categories of aliens was common. See Gerald L. Neuman, The Lost
Century of American Immigration Law (1776 -1875), 93C^OLUM.L.R^EV. 1833 (1993).
Many of these restrictions would now be preempted by federal immigration law.
¹⁴ DeCanas, 424 U.S. at 356.
¹⁵ Id. at 357.
¹⁶ U.S.C^ONST., amend. XIV, § 1.

restrict rights and privileges to persons on account of unauthorized alienage.¹⁷ In the
1982 case of Plyler v. Doe, the Supreme Court held that a Texas statute that would
have prohibited unauthorized student aliens from receiving a free public elementary
and secondary education violated the Constitution.¹⁸ The Court determined that
unauthorized immigrants are entitled to protection under the Equal Protection Clause
of the Fourteenth Amendment.¹⁹ Finding that unauthorized immigrants are not a
“suspect class” and education is not a “fundamental right,” but also sensitive to the
hardship that could result to a discrete class of children not accountable for their
unauthorized immigration status, the Court evaluated the Texas statute under an
“intermediate” standard of review, requiring that the statute further a substantial state
goal. The Plyler Court ruled that the state’s interests in enacting the statute —
namely, to conserve the state’s educational resources, to prevent an influx of illegal
immigrants, and to maintain high-quality public education — were not legitimately
furthered by the legislation. As a result, the Court struck down the Texas statute.²⁰
Procedural Due Process
The Fourteenth Amendment provides that no state may “deprive any person of
life, liberty, or property, without due process of law.”²¹ The Supreme Court has long
recognized that the Due Process Clause contained in the Fifth and Fourteenth
Amendments²² “applies to all ‘persons’ within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary, or permanent.”²³
States and localities may not arbitrarily interfere with certain key interests
possessed by persons. Such interests may only be deprived through fair and just
procedures. “Procedural due process rules are meant to protect persons not from the
deprivation, but from the mistaken or unjustified deprivation of life, liberty, or

¹⁷ Because of its broad plenary power over immigration and naturalization, the federal
government has significantly greater leeway than states in the measures it may take with
respect to aliens. See Matthews v. Diaz, 426 U.S. 67, 84-87 (1976). “The equal protection
analysis also involves significantly different considerations because it concerns the
relationship between aliens and the States rather than between aliens and the Federal
Government.” Id. at 84-85. However, the Supreme Court has suggested that “undocumented
status, coupled with some articulable federal policy, might enhance state authority with
respect to the treatment of undocumented aliens.” Plyler v. Doe, 457 U.S. 202, 226 (1982).
¹⁸ 457 U.S. 202 (1982).
¹⁹ Id. at 210.
²⁰ Plyler, 457 U.S. at 227-31 (1982).
²¹ U.S.C^ONST., amend. XIV, § 1
²² Both the Fifth and Fourteenth Amendments protect persons from government action
depriving them of life, liberty, or property. However, the Fifth Amendment concerns
obligations owed by the federal government, whereas the Fourteenth Amendment covers
activities by state and local governments.
²³ Zadvydas v. Davis, 533 U.S. 678, 693 (2001). See also, e.g., Plyler, 457 U.S. 202, 210
(1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been
recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth
Amendments.”).

property.”²⁴ The type of procedures necessary to satisfy due process may depend
upon the circumstances and interests involved. In the case of Matthews v. Eldridge,
the Supreme Court announced the prevailing standard for assessing the requirements
of due process, finding that:
Identification of the specific dictates of due process generally requires
consideration of three distinct factors: first, the private interest that will be
affected by the official action; second, the risk of erroneous deprivation of such
interest through the procedures used, and probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the administrative and fiscal burdens that the
additional or substitute procedural requirements would entail.²⁵
Although the requirements of due process may vary depending on the particular
context, states and localities must provide persons with the ability to contest the basis
upon which they are to be deprived of a protected interest. Essential requirements
of due process are notice and a hearing before an impartial tribunal.²⁶ Due process
may also require additional procedural protections to minimize the occurrence of
unfair or mistaken deprivations of protected interests.²⁷
The Supreme Court has long recognized that the procedural protections of the
Due Process Clause only apply to direct government action that deprives a person of
a protected interest;²⁸ it “does not apply to the indirect adverse effects of²⁹
governmental action.” While persons who are indirectly affected by government
action may, in some cases, posses a legal cause of action against the government or

²⁴ Carey v. Piphus, 435 U.S. 247, 259 (1978) (ital. added).
²⁵ Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (ital. added).
²⁶ See, e.g., Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950) (describing
notice of a proposed deprivation of interest as “[a]n elementary and fundamental
requirement of due process”); Matthews, 424 U.S. at 333 (“[S]ome form of hearing is
required before an individual is finally deprived of a ... [protected] interest.”); In re
Murchison, 349 U.S. 133, 135 (1955)(“A fair trial in a fair tribunal is a basic requirement
of due process.”).
²⁷ In many circumstances, due process may require an opportunity to confront and cross
examine adverse witnesses; discovery of evidence being used by the government to support
its action; an obligation by the decisionmaker to base his or her ruling solely upon the
administrative or judicial record; and a right to be represented and assisted by counsel. See
C^ONGRE^S^S^I^ONALR^ESEARCHS^ERVI^CE,C^ONSTI^TUTI^{ON OF THE}U^NI^TEDS^TATES:A^NALYSI^S
^ANDI^NTERP^R^ETATI^ON1795-1800 (Johnny H. Killian, et al. eds., 2004) (hereinafter
“C^ONSTI^TUTI^ONA^NNOTATED”).
²⁸ E.g., O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (finding that nursing
home residents had no constitutional right to a hearing before a state or federal agency
revoked the home’s authority to provide them with nursing care at government expense);
Legal Tender Cases, 79 U.S. 457, 451 (1870) ( “[The Due Process Clause] has always been
understood as referring only to a direct appropriation, and not to consequential injuries
resulting from the exercise of lawful power. It has never been supposed to have any bearing
upon, or to inhibit laws that indirectly work harm and loss to individuals.”).
²⁹ O’Bannon, 447 U.S. at 789.

another party, this cause of action would not be based upon a procedural due process
claim.
III. Immigration-Related Legal Issues Raised by
State or Local Restrictions on the Employment of
Unauthorized Aliens
The ability of states and localities to restrict the employment or hiring of
unauthorized aliens may depend upon the form that those restrictions take.
Regardless, such restrictions may potentially be subject to preemption and procedural
due process challenges.
Preemption
Pursuant to IRCA, Congress amended the INA to establish a comprehensive
federal scheme regulating the employment of unauthorized aliens. INA§ 274A
generally prohibits the hiring, referring, recruiting for a fee, or continued employment
of illegal aliens. Violators may be subject to cease and desist orders, civil monetary
penalties, and (in the case of serial offenders) criminal fines and/or imprisonment for
up to six months. Notably, INA § 274A(h)(2) expressly preempts any state or local
law imposing civil or criminal sanctions upon those who employ, or recruit or refer
for a fee for employment, unauthorized aliens.³⁰ However, state and local regulation
of such practices through licensing and similar laws is exempted from this
provision.³¹ Accordingly, while federal law clearly preempts the imposition of any
additional criminal or civil penalties upon those involved in the unlawful
employment of aliens, states and localities are not expressly preempted from denying
a business license to an entity that hires or employs unauthorized aliens. As will be
discussed later,³² it is a question of ongoing legal debate as to whether this exclusion
from preemption is intended to apply to all state and local measures denying licenses
to employers of unauthorized aliens, or only to those that deny licenses to businesses
that have been found to have violated INA § 274A.
INA § 274A(h)(2) does not expressly preempt every state or local measure
denying licenses to businesses that employ illegal aliens, nor does it expressly
authorize such measures. However, even if state or local regulation of certain
conduct involving immigration is not preempted in all circumstances, the manner
and scope of such regulation may nevertheless trigger preemption or other
constitutional concerns.

³⁰ INA § 274A(h)(2); 8 U.S.C. § 1324a.
³¹ Id. See generally H.R. R^EP. 99-682(I), at 58 (1986) (describing purpose behind licensing
exemption).
³² See infra at 22-32 (discussing litigation concerning scope of preemption exemption to
INA § 274A).

The manner in which a locality chooses to implement an ordinance might raise
significant preemption issues, especially if it authorizes local authorities to make an
independent assessment of a person’s immigration status. The power to regulate
immigration and determine which aliens may enter or remain in the United States is
exclusively a federal power. The INA generally vests authority in the Attorney
General and Secretary of Homeland Security, along with immigration judges within
the Department of Justice’s Executive Office of Immigration Review, to administer
and enforce all laws relating to immigration and naturalization, including
determinations regarding the immigration status of aliens (though such
determinations are subject to judicial review in many circumstances).³³ Accordingly,
states and localities are preempted by federal law from substantively categorizing
aliens or making an independent assessment as to whether an alien has committed an
immigration violation.³⁴ Such authority is conferred exclusively to designated federal
authorities by the INA.³⁵ A state or local measure targeting unauthorized aliens may
have a better chance of surviving a preemption challenge if its penalties are triggered

³³ E.g., INA §§ 103, 240, 242, 287; 8 U.S.C. §§ 1103, 1239a, 1252, 1357.
³⁴ League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 769-771 (C.D.Cal.
1995) (finding that voter-approved California initiative requiring state personnel to verify
immigration status of persons with whom they came into contact was preempted, in part,
because it required the state to make an independent determination as to whether a person
was in violation of federal immigration laws).
³⁵ It should be noted that states and localities are not prohibited from assisting in the
enforcement of (as opposed to adjudicating) federal immigration laws in some
circumstances. It is generally recognized that states and localities may make arrests for
criminal violations of the INA. E.g., Gonzalez v. City of Peoria, 722 F.2d 468, 474 (9th Cir.^th
1983); United States v. Vasquez-Alvarez, 176 F. 3d 1294 (10 Cir. 1999). See generally
CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local Law
Enforcement, by Blas Nuñez-Neto, Michael John Garcia, and Karma Ester. Further, under
INA § 287(g), the Attorney General is permitted to enter agreements with states and
localities to permit their law enforcement officers to perform additional duties relating to
immigration law enforcement. However, the ability of states and localities to enforce
federal immigration law does not permit them to impose new and additional penalties upon
persons on account of federal immigration violations. While the former is permitted in
certain circumstances, the latter is generally precluded pursuant to the Supremacy Clause.
But see Arizona v. Salzar, Case No. CR2006-005932 (Ariz. Sup. Ct. June 9, 2006) (lower
state court ruling upholding state’s alien smuggling law against preemption challenge, as
federal and state laws criminalizing alien smuggling had “compatible purposes”)^;contra
State of New Hampshire v. Barros-Batistele, Case. No. 05-CR-1474, 1475 (N.H. Dist. Ct.
August 12, 2005) (lower state court ruling dismissing on preemption grounds trespassing
charges brought against an alien on account of his suspected unlawful entry and presence
in the United States).

by a federal determination of an alien’s unlawful status,³⁶ rather than pursuant to an
independent determination that an alien is not lawfully present in the United States.
Additionally, state or local measures penalizing businesses that employ
unauthorized aliens arguably may be preempted if they impose different or more
onerous employment eligibility verification requirements than used by the federal
government.³⁷ Likewise, a state or local employer sanction regime likely could not
penalize persons for employing unauthorized aliens using a lower scienter (i.e.,
degree of awareness) threshold than used by the federal government.³⁸
Although the preemption clause in INA § 274A is, by its own language, not
intended to preempt every state and local licensing measure affecting the employment
of unauthorized aliens, some measures may still be unenforceable on field or conflict
preemption grounds. One factor that courts may consider in determining if a local

³⁶ There is some dispute regarding when aliens may be determined to be unlawfully present.
Compare United States v. Lucio, 428 F.3d 519 (5^th Cir. 2005) (upholding conviction of alien
pursuant to a criminal statute barring aliens who are illegally present in the United States
from possessing a firearm, even though deportation proceedings against the alien had not
been initiated pending resolution of alien’s application for adjustment to legal status);^th
United States v. Atandi, 376 F.3d 1186 (10 Cir. 2004) (“an alien who commits a status
violation is illegally or unlawfully in the United States, regardless of whether a removal
order has been issued”); with Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D. Pa.
2007) (finding that local prohibition on renting or leasing dwelling units to unauthorized
aliens was preempted by federal law, in part because the aliens had not been ordered
removed, and the federal government could ultimately adjust their status and permit them
to remain in the United States); Plyler, 457 U.S. at 241 n. 6 (“Until an undocumented alien
is ordered deported by the Federal Government, no State can be assured that the alien will
not be found to have a federal permission to reside in the country.”)(Powell, J., concurring).
It should be noted that certain federal immigration statutes appear to permit or require states
and localities to take action against aliens who are unlawfully present in the United States,
even if such aliens have not been ordered removed by federal authorities. See 8 U.S.C. §
1621 (requiring states and localities to deny public benefits to nonqualified aliens, including
those who are present in the United States without legal authorization). Further, section 642
of the Illegal Immigration Reform and Immigrant Responsibility Act (P.L. 104-208, Div. C.)
requires that immigration authorities respond to the inquiry of any federal, state, or local
government entity “seeking to verify or ascertain the citizenship or immigration status of any
individual within the jurisdiction of the agency for any purpose authorized by law, by
providing the requested verification or status information.” 8 U.S.C. § 1373(c).
³⁷ Under INA § 274A, employers are required to participate in a paper-based employment
verification system (commonly referred to as the “I-9 system”), which requires employers
to examine certain documents presented by new hires (e.g., a driver’s license, U.S. passport,
or resident alien card) to verify identity and work eligibility, and complete and retain I-9
verification forms. INA § 274A(b); 8 U.S.C. § 1324a(b). See generally CRS Report
RL33973, Unauthorized Employment in the United States: Issues and Options, by Andorra
Bruno.
³⁸ For example, a state or locality would likely be preempted from penalizing any business
that hires an unauthorized alien, given that federal law only penalizes employers who
knowingly hire such persons (except in cases where the employer fails to comply with
proscribed employment verification requirements). See INA § 274A(a)(1); 8 U.S.C. §

1324a(a)(1).

ordinance is preempted by federal immigration law is whether the ordinance “focuses
directly upon ... essentially local problems and is tailored to combat effectively the
perceived evils.”³⁹ Prior to the enactment of federal employer sanctions pursuant to
IRCA, the DeCanas Court upheld a California statute restricting the employment of
illegal aliens, stating that “Employment of illegal aliens in times of high
unemployment deprives citizens and legally admitted aliens of jobs; acceptance by
illegal aliens of jobs on substandard terms as to wages and working conditions can
seriously depress wage scales and working conditions of citizens and legally admitted
aliens; and employment of illegal aliens under such conditions can diminish the
effectiveness of labor unions.”⁴⁰ Because INA § 274A(h)(2) recognizes the ability of
states and localities to, at least in certain circumstances, deny business permits to
entities that employ unauthorized aliens, such measures appear more likely to survive
legal challenges when they are narrowly tailored and based on legitimate purposes,
as was the case for those that were upheld in DeCanas.
States and localities may have greater leeway in restricting the establishment of
day labor centers within their jurisdictions, though such facilities may indirectly
facilitate the hiring of unauthorized aliens. As previously mentioned, states and
localities are not preempted from regulating matters only tangentially related to
federal immigration law.⁴¹ Federal immigration law is silent on the matter of day
labor centers. Based on the Court’s reasoning in DeCanas, it would appear that
states and localities could generally restrict the construction of day labor centers, at
least so long as it could be demonstrated that such restrictions were addressed at
“essentially local problems” and were tailored to “combat effectively the perceived
evils.”⁴²
Procedural Due Process
State and local restrictions on the hiring and employment of illegal immigrants
also may be challenged on procedural due process grounds, depending upon the form
such restrictions take. If, for example, a state or locality revoked the business permit
of an entity that employed or hired unauthorized aliens, the employer’s interests
under the Due Process Clause would be implicated. The liberty interest protected by
the Due Process Clause extends to the “right of the individual to contract, to engage

³⁹ DeCanas, 424 U.S. at 357. Case law following DeCanas has addressed working
conditions and labor rights of illegal aliens under federal labor statutes. See, e.g., Hoffman
Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137 (2002); Sure-Tan, Inc. v. N.L.R.B., 467
U.S. 883 (1984).
⁴⁰ Id. at 356-357.
⁴¹ Id.
⁴² Id. This is not to say that every state or local restriction on day labor centers, regardless
of its scope, would be equally likely to withstand a preemption challenge. For example, it
might be argued that a measure imposing civil or criminal penalties on day labor centers that
facilitate the employment of illegal aliens is preempted by federal laws barring the harboring
of such persons. See INA § 274(a); 8 U.S.C. § 1324(a) (discussing penalties for harboring
an illegal alien, or encouraging or inducing an alien to reside in the United States).

in any of the common occupations of life,”⁴³ and this interest would be implicated by
state or local action penalizing employers on account of the employment contracts
they enter. Further, the granting of a business license may accord the licensee with
a property interest that may not be revoked unless procedural due process
requirements are met,⁴⁴ though no such property interest exists which guarantees the
issuance of a license.⁴⁵
Accordingly, states and localities must provide employers with the ability to
contest the basis upon which they are to be deprived of a protected interest. At a
minimum, employers would need to be provided with notice and a hearing before an
impartial tribunal, during which they could challenge state or local findings regarding
their employment practices. State and local measures that provide employers with
similar procedural protections as those accorded to businesses by the federal
government under INA § 274A may be more likely to withstand a procedural due
process challenge than those measures that do not.⁴⁶
State and local measures that sanction business entities employing unauthorized
aliens arguably could not be challenged on procedural due process grounds by
employees of the affected businesses. As discussed previously, the procedural
requirements of the Due Process Clause are triggered by a direct deprivation of a
protected interest by the government.⁴⁷ Persons who are indirectly affected by the
government’s deprivation of a third party’s protected interests “have no constitutional
right to interject themselves into the dispute.”⁴⁸ Arguably then, a state or local
restriction upon a business that employs unauthorized aliens only directly affects the
rights of the business itself, and not those persons who depend upon the business for
their livelihood. Indeed, while INA § 274A accords certain procedural protections
to persons accused of employing unauthorized aliens, no similar procedural
protections are given to employees of businesses affected by this regime (though
federal law does prohibit businesses from engaging in, and allows affected

⁴³ Board of Regents v. Roth, 408 U.S. 564, 572 (1972).
⁴⁴ Bell v. Burson, 402 U.S. 535, 539 (1971). In addition, “[t]he assets of a business
(including its good will) unquestionably are property, and any state taking of those assets
is unquestionably a ‘deprivation’ under the Fourteenth Amendment ... [, although] business
in the sense of the activity of doing business, or the activity of making a profit is not
property in the ordinary sense....” College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 675 (1999) (ital. in original). See also Duplex Printing Press
Co. v. Deering, 254 U.S. 443, 465 (1921) (“complainant’s business ... is a property right,
entitled to protection against unlawful injury or interference”).
⁴⁵ Bell, 402 U.S. at 539.
⁴⁶ Before the federal government may sanction a business for unlawful employment
practices relating to unauthorized aliens, the business must be provided with notice of the
proposed action and a hearing before an administrative law judge in which the basis for the
proposed order may be challenged. The administrative judge’s decision is subject to
administrative appellate and judicial review within specified time periods. INA § 274A(e);

8 U.S.C. § 1324a(e).

⁴⁷ Supra at 6.
⁴⁸ O’Bannon, 447 U.S. at 788.

individuals to make complaints for, employment discrimination against persons on
account of race, nationality, or — in the case of U.S. citizens and certain protected
categories of aliens — citizenship status⁴⁹). Similarly, a state or locality penalizing
a business that hired or employed unauthorized aliens probably would not be
constitutionally required to provide any sort of process to employees of the affected
business, though an affected employee might still be able to obtain legal remedy on
a separate statutory or constitutional ground.
It should be noted that a federal district court recently held that a local ordinance
denying business permits to entities that hired unauthorized aliens failed to provide
sufficient procedural protections to employees of affected businesses,⁵⁰ who might
be terminated by a business attempting to avoid violating the ordinance.
Additionally, it could be argued that employees affected by the actions of a business
attempting to comply with ordinance requirements would be owed due process to the
extent that those actions were compelled by regulatory requirements.⁵¹ However, it
is unclear whether such an argument would deemed compelling by a reviewing court,
as the Supreme Court has held that the government is responsible for the actions of
private parties only in a very limited number of circumstances.⁵²
IV. Immigration-Related Legal Issues Raised by
State or Local Restrictions upon
Tenancy or Dwelling
The ability of states and localities to bar illegal aliens from renting or occupying
a dwelling unit raises issues under both the preemption doctrine and the Fourteenth
Amendment. The following sections describe these issues in detail.
Preemption
Measures to restrict unauthorized aliens from renting or occupying a dwelling
unit could possibly be challenged on preemption grounds, especially if such measures

⁴⁹ INA § 274B; 8 U.S.C. § 1324b.
⁵⁰ Lozano, 496 F. Supp.2d 477 at 533-537. The Supreme Court has recognized that “the
right to hold specific private employment and to follow a chosen profession free from
unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts
of the [Due Process Clause].” Greene v. McElroy, 360 U.S. 474, 492 (1959). See also, e.g.,
Truax v. Ruch, 239 U.S. 33, 41 (1915) (“It requires no argument to show that the right to
work for a living in the common occupations of the community is of the very essence of the
personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment
to secure.”); Conn v. Gilbert, 526 U.S. 286, 291-292 (1999) (discussing Court’s recognition
of due process right to choose one’s field of private employment). Accordingly, it would
appear that state or local measures that directly penalized unauthorized aliens on account
of their employment would implicate the Due Process Clause of the Fourteenth Amendment.
⁵¹ C^O^N^S^TI^TUTI^ONA^NNOTATED, supra note 27, at 1896-1897 (discussing Supreme Court
recognition of this argument in a limited set of circumstances).
⁵² Id.

impose civil or criminal penalties upon violators. The INA establishes grounds by
which an alien may be excluded or removed from the United States, and also entrusts
the federal government with exclusive authority over removal and exclusion. In
addition, INA § 274 criminalizes various activities relating to the bringing in and
harboring of aliens who lack the lawful authority to enter or remain in the United
States, and also criminalizes certain other activities concerning the transportation of
such aliens or the encouragement or inducement of such aliens to reside in the United
States. Courts have generally interpreted the scope of INA § 274 broadly, and it may
very well cover renting property to an illegal alien or otherwise permitting him to
dwell in an occupancy, at least when it is done in knowing or reckless disregard of
the alien’s illegal status.⁵³ A reviewing court might consider arguments that state or
local measures barring persons from renting property to unauthorized aliens, or
otherwise permitting such persons from occupying a dwelling unit, constitute
“additional or auxiliary regulation[s]” to a federal scheme. This argument is
probably strongest in cases where criminal penalties are imposed upon persons who
violate a nonfederal dwelling restriction, but it may also be applicable in cases where
noncriminal penalties are imposed.⁵⁴
Even assuming that federal immigration law does not necessarily preempt states
and localities from restricting aliens’ ability to rent or lease property, the manner and
scope of such restrictions may nevertheless trigger preemption concerns.⁵⁵ Arguably,
a state or locality also could not deny an alien a benefit or privilege, including the
right to rent or occupy a property, on account of an independent assessment that the
person was in violation of federal immigration law. The INA generally vests
authority in specific federal authorities to administer and enforce all laws relating to
immigration and naturalization, including determinations regarding the immigration
status of aliens.⁵⁶ Accordingly, states and localities would apparently be preempted

⁵³ E.g., United States v. Aguilar, 883 F.2d 662 (9^th Cir. 1989) (finding that a church official
violated the harboring provision when he invited an illegal alien to stay in an apartment
behind his church, and interpreting harboring statute as not requiring an intent to avoid^th
detection); United States v. Rubio-Gonzalez, 674 F.2d 1067 (5 Cir. 1982) (suggesting that
“harboring” an alien is a broader concept than other smuggling provisions relating to the
concealment of an alien or the shielding of an alien from detection); United States v. Acosta^th
De Evans, 531 F.2d 428 (9 Cir. 1976) (upholding harboring conviction of defendant who
provided illegal aliens with apartment, and concluding that harboring provision was not
limited to clandestine sheltering only). See also Cristina Rodriguez, et al., Migration Policy
Institute, National Center on Immigrant Integration Policy, Testing the Limit: A Framework
for Assessing the Legality of State and Local Immigration Measures, at 24-27 (discussing
merits and weaknesses of argument that federal alien smuggling statute preempts local
restrictions on renting to unauthorized aliens)
⁵⁴ But see Arizona v. Salzar, Case No. CR2006-005932 (Ariz. Sup. Ct. June 9, 2006)(lower
state court ruling upholding state’s alien smuggling law against preemption challenge, as
federal and state laws criminalizing alien smuggling had “compatible purposes”)^;contra
State of New Hampshire v. Barros-Batistele, Case. No. 05-CR-1474, 1475 (N.H. Dist. Ct.
August 12, 2005) (lower state court dismissal on preemption grounds of trespassing charges
brought against an alien on account his suspected unlawful entry into the United States).
⁵⁵ See supra at 7-9.
⁵⁶ INA §§ 103, 240, 242, 287; 8 U.S.C. §§ 1103, 1239a, 1252, 1357.

from making an independent assessment as to whether an alien has committed a
federal immigration violation (e.g., that the alien is an “illegal alien”), and imposing
penalties against such aliens on the basis of that assessment.⁵⁷ An even more serious
preemption challenge would exist if a state or locality denied persons housing access
using a different alien classification system than that employed by the federal
government (e.g., if a state or locality denied residency to any alien who entered the
United States unlawfully, even though some such aliens — asylees, for example —
have legal immigration status under federal law).⁵⁸
Equal Protection
The degree to which states and localities may restrict persons’ ability to obtain
private housing on account of alienage remains unsettled. As early as 1886, the
Supreme Court recognized that Equal Protection Clause applied to state
classifications based on alienage.⁵⁹ Nevertheless, during the early part of the
twentieth century, the Supreme Court upheld a number of state laws denying rights
and privileges to persons on account of their alienage (regardless of whether such
aliens were lawfully present in the United States),⁶⁰ in part because states were able
to demonstrate a “special public interest” that was advanced through such measures.⁶¹
However, these decisions came at an earlier period of Fourteenth Amendment
jurisprudence, and over time “the Court’s decisions gradually have restricted the
activities from which States are free to exclude aliens.”⁶² Although none of these
decisions has been expressly overruled, in at least some cases their precedential value

⁵⁷ On the other hand, states and localities would not appear to be preempted from using a
federal determination that an alien was unlawfully present in the United States as a basis for
denying the alien a benefit or privilege, though such a denial might be preempted or
constitutionally barred on other grounds.
⁵⁸ League of United Latin American Citizens, 908 F.Supp. at 769-771 (finding that
voter-approved California initiative requiring state personnel to verify immigration status
of persons with whom they came into contact was preempted, in part, because it required
the state to make an independent determination as to whether a person was in violation of
federal immigration laws).
⁵⁹ See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
⁶⁰ E.g., Heim v. McCall, 239 U.S. 175 (1915) (upholding state law barring noncitizens from
being employed on public works projects); Patsone v. Pennsylvania, 232 U.S. 138 (1914)
(upholding conviction of person under state law prohibiting an alien from owning a rifle or
shotgun); Clarke v. Deckebach, 274 U.S. 392 (1927) (upholding local ordinance barring an
alien from being licensed to operate a pool hall); Frick v. Webb, 263 U.S. 326 (1923);
Porterfield v. Webb, 263 U.S. 225 (1923); Terrace v. Thompson, 263 U.S. 197, 220 (1923);
Webb v. O’Brien, 263 U.S. 313 (1923) (all upholding states’ ability to deny aliens the right
to own or lease agricultural lands).
⁶¹ See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420-421 (1948); see also Peter J.
Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 V^A.J.I^NT’^LL.121,

149-151 (1994).

⁶² Ambach v. Norwick, 441 U.S. 68, 72-73 (1979).

has been questioned.⁶³ Nevertheless, it appears well-established, even following the
Court’s decision in Plyler, that states may impose greater restrictions upon the rights
of unauthorized aliens than may be imposed upon citizens or legal immigrants, at
least when the direct subjects of regulation are not children.⁶⁴
Additionally, alienage-based restrictions that directly or indirectly impact the
legal rights of the U.S.-born children of illegal immigrants might face more
significant legal challenges. In the 1948 case of Oyama v. California,⁶⁵ the Court
found that a California statute banning alien landholding impermissibly discriminated
against the citizen child of an alien, because it required the child to prove that his
alien parent did not purchase property in the child’s name to circumvent alien
ownership restrictions — a burden not imposed upon the children of U.S. citizens.⁶⁶
Depending on the manner and scope of a state or local housing restriction on illegal
immigrants, the measure could trigger an Oyama-like challenge by a U.S. citizen
directly or indirectly impacted by the rule (e.g., a citizen child or spouse of an illegal
immigrant whose property rights are impaired on account of family membership).
Procedural Due Process
State or local measures that seek to bar unauthorized aliens from renting or
occupying property very likely implicate a “property” interest affected by the Due
Process Clause. The right to “maintain control over ... [one’s] home, and to be free
from governmental interference, is a private interest of historic and continuing
importance.”⁶⁷ A government measure requiring the termination of a lease between
a property owner and lessee deprives one or both of the parties of several property-
related interests, including “the right of sale, the right of occupancy, the right to

⁶³ See Takahashi, 334 U.S. at 410 (1948) (finding that California statute barring issuance
of fishing licenses to lawfully present aliens ineligible for citizenship denied such aliens
equal protection, and could not be justified as protecting special interest of the state in
conserving public fishing); Sei Fujii v. State 242 P.2d 617 (Cal. 1952) (finding California
law restricting land ownership by aliens to violate the Fourteenth Amendment, and also
concluding that earlier Supreme Court decisions upholding alien land laws were not in
accord with subsequent Court jurisprudence).
⁶⁴ Compare Graham v. Richardson 403 U.S. 365, 372 (1971) (finding state classifications
based on alienage, as such, to be “inherently suspect and subject to close judicial scrutiny”)
with Plyler, 457 U.S. at 219 n. 19 (finding that the unauthorized presence of illegal aliens
is not a “constitutional irrelevancy,” and such aliens do not constitute a “suspect class”).
⁶⁵ 332 U.S. 633 (1948).
⁶⁶ It should be noted that the Court only ruled the California alien land law unconstitutional
as applied in the case before it. It did not reach the question of whether states could
constitutionally bar aliens from owning real property, nor expressly overrule earlier Court
decisions upholding alien land laws. In separate concurrences, Justice Black (joined by
Justice Douglas) and Justice Murphy (joined by Justice Rutledge) argued that the California
statute unconstitutionally abridged the property rights of aliens. Id. at 647 (Black, J.,
concurring); id. at 650 (Murphy, J., concurring).
⁶⁷ United States v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993) (holding
that the Due Process Clause compels government to give notice and meaningful opportunity
to be heard before seizing real property subject to civil forfeiture).

unrestricted use and enjoyment, and the right to receive rents.”⁶⁸ In addition, a
number of local ordinances barring persons from leasing real property to
unauthorized aliens are enforced through the imposition of monetary penalties upon
offenders. Those who are compelled to pay such fines are deprived of an additional
property interest. Ordinances that subject violators to incarceration would also
deprive offenders of a liberty interest. State or local measures barring the housing
of illegal immigrants therefore appear likely to deprive property owners and/or
tenants of an interest protected by the Fourteenth Amendment’s Due Process Clause.
Accordingly, states and localities enacting such measures must provide procedural
protections to minimize the occurrence of unfair or mistaken deprivations of
protected interests.⁶⁹
V. Immigration-Related Issues Raised by
State and/or Local Restrictions on
Public Benefits/Services
Some localities are attempting to deter the presence of illegal aliens within their
borders via the denial of services and/or benefits.⁷⁰ Such denials may be less prone
to legal challenges than measures pertaining to housing and employment. Court
cases recognizing federal and/or state restrictions based on unlawful presence in the

⁶⁸ See id. See also Greene v. Lindsey, 456 U.S. 444, 450-451 (1982) (recognizing that
tenants have a significant property interest in “the right to continued residence in their
homes”).
⁶⁹ Although some state or local housing restrictions may directly affect the property interests
of both tenants and lessors, others may not. For example, a state or locality may choose to
impose civil penalties upon persons who lease real property to unauthorized aliens, while
imposing no direct penalty upon an alien who leases or occupies such property. An
unauthorized alien might not be able to challenge such a measure on procedural due process
grounds, as the government action only affects the alien’s property interests indirectly (e.g.,
if a property owner breaks a lease with an unauthorized alien tenant to avoid incurring a
civil fine). While the alien may have a cause of action against the government or, more
directly, the lessor (e.g., for breach of the lease agreement), he or she may not be able to
raise a procedural due process claim against the government. See supra at 6.
⁷⁰ See e.g., Ariz. Stat. § 15-232 (restricting adult education services to U.S. citizens, legal
residents or persons otherwise lawfully present in the United States); Ariz. Stat. §§ 15-1803
and 15-1825 (restricting in-state tuition and state financial aid for state university and
community colleges to the same); Ariz. Stat. Rev. § 46-803 (denying child care assistance
to illegal immigrants); Colo Rev. Stat. § 24-76.5-103 (requiring agencies and state political
subdivisions to verify the lawful presence in the United States of any applicant applying for
state or local benefits excluding services needed for emergency medical conditions). On
July 10, 2007, the Prince William County Board of Supervisors passed a resolution which
would: (1) require police to check the immigration status of people they detain if they have
reason to believe that the person is an illegal alien; and (2) require the County Executive to
provide the Board with a plan outlining which benefits the county has the discretion to deny
to those who are illegally present. Services recommended for restriction from illegal
immigrants include: adult services to allow elderly and disabled individuals to remain in
homes; in-home services; sheriff adult identification services; rental and mortgage assistance
programs; substance abuse program; elderly/disabled tax relief programs.

United States are less likely to raise equal protection and preemption challenges.
Instead, such challenges are likely to hinge on the scope of benefit being denied, as
well as whether states can constitutionally make an independent assessment of a
person’s immigration status when deciding to deny such benefits.
The degree to which states and localities may deny services or benefits based
on unlawful presence in the United States remains unclear. During the 1970s and
early 1980s, the U.S. Supreme Court decided a series of cases on governmental
authority to discriminate against aliens in providing governmental benefits.
Collectively, these cases set forth the following basic constitutional principles: state
governments generally cannot discriminate between aliens who are authorized to live
here indefinitely and U.S. citizens when setting eligibility requirements for state
benefits;⁷¹ states have broader but limited authority to discriminate against aliens who
are here illegally;⁷² and the federal government, by contrast, has wide discretion to
discriminate both between citizens and legal aliens, as well as between classes of
legal aliens.⁷³
Federal law has established a general rule as to which benefits must be denied
to aliens unlawfully residing in the United States. In addition, federal law delineates
which local public benefits must be provided regardless of immigration status. The
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA) prohibits many classes of noncitizens, legal and illegal alike, from
receiving assistance. Generally, illegal aliens are denied federal benefits and may
qualify for state benefits only under laws passed by the states after the PRWORA’s
enactment.⁷⁴ The class of benefits denied is broad and covers: (1) grants, contracts,
loans, and licenses, and (2) retirement, welfare, health, disability, housing, food,
unemployment, postsecondary education,⁷⁵ and similar benefits. Notably, PRWORA
delineates exceptions to the aforementioned bars. These exceptions include the
following:
^!treatment under Medicaid for emergency medical conditions (other
than those related to an organ transplant);

⁷¹ See Graham v. Richardson, 403 U.S. 365 (1971)(declaring state-imposed welfare
restrictions on legal immigrants unconstitutional, both because the state statutes violated the
Fourteenth Amendment’s equal protection clause and because they encroached upon the
exclusive federal power to regulate immigration).
⁷² See Plyler v. Doe, 457 U.S. 202 (1982)(recognizing that illegal aliens are due lesser
constitutional protection than legal aliens are). For discussion of the Plyer decision, see
CRS Report 97-542A, The Right of Undocumented Alien Children to Basic Education: An
Overview of Plyler v. Doe.
⁷³ See Mathews v. Diaz, 426 U.S. 67, 84 (1976)(declaring that the federal government’s
broad plenary power over immigration and naturalizing provides the federal government
leeway to draw distinctions among aliens in providing benefits so long as the distinctions
are not “wholly irrational.”)
⁷⁴ See 8 U.S.C. § 1621(d)(defining the term “federal public benefit”).
⁷⁵ As noted above, the U.S. Supreme Court has held that states cannot deny elementary and
secondary education on the basis of unauthorized immigration status.

^!short-term, in kind emergency disaster relief;
^!immunizations against immunizable diseases and testing for and
treatment of symptoms of communicable diseases; and
^!services or assistance (such as soup kitchens, crisis counseling and
intervention, and short-term shelters) designated by the Attorney
General as: (i) delivering in-kind services at the community level,
(ii) providing assistance without individual determinations of each
recipient’s needs, and (iii) being necessary for the protection of life
and safety.
The PRWORA also expressly bars unauthorized aliens from most state and locally
funded benefits. The restrictions on these benefits parallel the restrictions on federal
benefits.⁷⁶ As such, unauthorized aliens are generally barred from state and local
government contracts, licenses, grants, loans, and assistance.⁷⁷ However, states and
localities are prohibited from denying benefits and/or services for emergency medical
care, disaster relief, and immunizations.
Although federal law has established a general framework as to what services
may or not be denied to illegal aliens, courts have yet to weigh in on the issue of
when localities have discretion to make lawful presence a requirement for services
to be made available.⁷⁸ Some of these services may include bus tours for senior
citizens, leadership training programs for adults, rental and mortgage assistance, drug
treatment, health care for the uninsured, access to libraries and parks. Courts will
have to interpret how broadly the term “local public benefit” should be interpreted
and whether it is consistent with a congressional purpose. This interpretation may
depend on which services can be construed as to encourage illegal immigration.
While services such as health care for the uninsured or rental assistance arguably fall
within the purview of “local public benefit,” others such as access to parks or
libraries are less clear cut.
Another potential challenge may arise as to the implementation of the denial of
services to illegal aliens. Specifically, who will make the determination as to
whether an alien is legally in the United States or not. As previously discussed, the
manner in which a locality chooses to implement an ordinance or statute might raise
significant preemption issues.

⁷⁶ 8 U.S.C. § 1621.
⁷⁷ 8 U.S.C. § 1621(c)(defining “state or local public benefit”).
⁷⁸ On November 30, 2007, a federal judge dismissed a lawsuit challenging a local resolution
restricting services to illegal aliens. The court found that the plaintiffs lacked standing to
challenge the resolution passed by the Prince William County Board of Supervisors.

VI. Potential Limitations Imposed by
Federal Civil Rights Statutes
Some state and local measures restricting the hiring or housing of unauthorized
aliens could also potentially conflict with existing federal anti-discrimination laws.
Under Title VII of the Civil Rights Act,⁷⁹ employers are prohibited from
discriminating on the basis of race, color, religion, sex, or national origin.⁸⁰ The
Supreme Court has ruled that, with respect to Title VII, “the term ‘national origin’
does not embrace a requirement of United States citizenship.”⁸¹ In reaching this
result, the Court reasoned that national origin refers to the country in which someone
is born or from which his or her ancestors came. Because individuals who share the
same national origin do not necessarily share the same citizenship status, the Court
determined that Title VII’s prohibition on national origin discrimination does not
necessarily make it illegal for employers to discriminate on the basis of citizenship
status or alienage. Any state or local measure restricting the hiring or employment
of unauthorized aliens must comply with Title VII requirements.⁸² Thus, for
example, a local ordinance that authorized the enforcement of an employment
complaint that alleged violations solely on the basis of an employee’s race or national
origin would not be legally enforceable.
However, it is possible that an ordinance restricting the employment of
unauthorized aliens could, when implemented, encourage violations of Title VII in
situations where discrimination on the basis of citizenship would have the effect or
purpose of discriminating on the basis of national origin. For example, employers
who are concerned about inadvertently hiring unlawful workers may become
reluctant to hire individuals from certain ethnic backgrounds, and such reluctance
could have the unlawful effect of discriminating on the basis of national origin. In
other cases, an employer might use a citizenship test as a pretext to disguise what is
in fact national origin discrimination. As the Court has noted, “Title VII prohibits
discrimination on the basis of citizenship whenever it has the purpose or effect of
discriminating on the basis of national origin.”⁸³ In an effort to comply with such
ordinances, therefore, some employers may engage in practices that could give rise
to legal challenges under Title VII.

⁷⁹ 42 U.S.C. §§ 2000e et seq.
⁸⁰ Id. at §2000e-2. INA § 274B contains a similar prohibition with respect to employment-
based discrimination on the basis of national origin or citizenship. 8 U.S.C. § 1324b.
⁸¹ Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
⁸² Title VII contains a preemption provision that states, “Nothing in this title shall be deemed
to exempt or relieve any person from any liability, duty, penalty, or punishment provided
by any present or future law of any State or political subdivision of a State, other than any
such law which purports to require or permit the doing of any act which would be an
unlawful employment practice under this title.” 42 U.S.C. § 2000e-7. In other words, state
laws that conflict with Title VII are preempted.
⁸³ Farah, 414 U.S. at 92.

Like Title VII, the Fair Housing Act (FHA) prohibits discrimination on a
number of grounds, including national origin, although the FHA forbids
discrimination in the sale or rental of housing rather than employment.⁸⁴ In the
housing context, as in the employment context, courts have found that citizenship
discrimination does not automatically constitute national origin discrimination under
the FHA, although courts have held that the FHA would prohibit citizenship
discrimination if such discrimination had the purpose or effect of discriminating on
the basis of national origin.⁸⁵ As a result, any state or local measure that authorizes
the enforcement of housing complaints based solely on the national origin of a
dwelling’s inhabitants would be impermissible.⁸⁶ Further, if landlords who are
attempting to comply with an ordinance barring the tenancy of illegal aliens engage
in national origin discrimination, then such actions may give rise to legal challenges
under the FHA.
Thus far, only one federal court has considered the question of whether a local
ordinance intended to deter the housing of unauthorized aliens constitutes a violation
of the FHA. In Lozano v. City of Hazleton,⁸⁷ the court dismissed the plaintiffs’ facial
challenge to the FHA, concluding that the plaintiffs had failed to show that there was
no set of circumstances under which the ordinance would be valid. The court did,
however, leave the door open to a possible “as applied” challenge to the local
ordinances in question, noting, “Because the statutes have not yet gone into effect,
we cannot know whether they would have the discriminatory effect that plaintiffs
cl ai m . ”⁸⁸
It is also possible that an employment or housing ordinance aimed at
unauthorized aliens could give rise to violations of 42 U.S.C. § 1981. This provision,
which was originally enacted as part of the Civil Rights Act of 1870, states that:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.

⁸⁴ 42 U.S.C. §§ 3604(a).
⁸⁵ See, e.g., Espinoza v. Hillwood Square Mut. Asso., 522 F. Supp. 559 (D. Va. 1981).
⁸⁶ Like Title VII, the FHA contains a preemption provision that states, “Nothing in this title
shall be construed to invalidate or limit any law of a State or political subdivision of a State,
or of any other jurisdiction in which this title shall be effective, that grants, guarantees, or
protects the same rights as are granted by this title; but any law of a State, a political
subdivision, or other such jurisdiction that purports to require or permit any action that
would be a discriminatory housing practice under this title shall to that extent be invalid.”

42 U.S.C. § 3615.

⁸⁷ Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D. Pa. 2007).
⁸⁸ Id. at 546.

Although the Supreme Court has held that an alien is a “person” for purposes
of § 1981,⁸⁹ the Court has not addressed whether unauthorized aliens are
encompassed within the statute’s definition of “person.” The Court, however, has
held that unauthorized aliens are “persons” in the context of the Fourteenth
Amendment,⁹⁰ and, therefore, might be inclined to make a similar finding with
respect to the definition of “person” under § 1981. If unauthorized aliens are
protected from discrimination by governmental actors under the statute, then states
or localities that pass employment or housing ordinances aimed at unauthorized
aliens may be liable for violations of § 1981. Indeed, a federal district court recently
held in the Lozano case that a local ordinance intended to deter the employment and
housing of unauthorized aliens was a violation of § 1981.⁹¹
In addition, although the Supreme Court has held that § 1981 prohibits alienage
discrimination by governmental actors,⁹² the Court has never addressed the question
of whether § 1981 bars alienage discrimination by private actors. Until 1991, when
Congress amended § 1981, the federal courts of appeals that had considered the issue
were split with regard to this question. Since the amendments to § 1981, some courts
have confirmed that the statute applies to private discrimination against aliens.⁹³ As
a result, it is possible, but not certain, that a court might find that an employer or
landlord who, in complying with a state or local measure, refused to employ or rent
to an unauthorized alien was in violation of § 1981.
VII. Recent Federal Judicial Activity Concerning
State and Local Ordinances
Several state and local measures attempting to deter the housing or employment
of unauthorized aliens have been the subject of ongoing litigation. In some cases, the
relevant state or local measure has been upheld as legally and constitutionally valid.
Pre-trial injunctions have been issued in a few other cases, either following
settlement by the parties or pending a final determination by a reviewing court
regarding the legality of the contested ordinance. Still other cases have been
dismissed because plaintiffs’ have lacked standing. The following sections briefly
describe recent judicial activity at the federal level.⁹⁴

⁸⁹ Takahashi, 334 U.S. at 419.
⁹⁰ Plyler, 457 U.S. at 210.
⁹¹ Lozano, 496 F. Supp. 2d. at 547-48. See infra at 28-30.
⁹² Takahashi, 334 U.S. at 419.
⁹³ See, e.g., Anderson v. Conboy, 156 F.3d 167, 169 (2^nd Cir. 1998).
⁹⁴ Some legal challenges of local immigration ordinances have been made in state courts on
state legal grounds. See, e.g., Reynolds v. City of Valley Park, Findings of Fact,
Conclusions of Law, Order and Judgment, Case No. 06-CC-3802 (E.D.Mo. 2006) (ruling
that local ordinance restricting property owners from allowing illegal immigrants to occupy
dwelling was contrary to Missouri law); Riverside Coalition of Business Persons v.
Township of Riverside, Case No. L-2965-06 (N.J. Sup. Ct. Law Div.) (challenging local
(continued...)

Arizona Contractors Ass’n, Inc. v. Candelaria
This case involves a challenge brought by non-profit employer organizations
against the facial validity of an Arizona statute, the Legal Arizona Workers Act,
which was enacted in July 2007. The statute provides the Arizona Superior Court
with the power to suspend or revoke the business licenses of employers that
intentionally or knowingly employ unauthorized aliens, and also requires employers
to verify employee eligibility using the federal government’s voluntary employment
verification system (Basic Pilot program).⁹⁵ The statute was originally subject to
challenge in the case of Arizona Contractors Ass’n, Inc. v. Napolitano,⁹⁶ which was
dismissed in December 2007 by the U.S. District Court for Arizona on the grounds
that plaintiffs lacked standing and failed to name the proper state officials as
defendants. The consolidated cases were subsequently refiled with some changes
in parties as Arizona Contractors Ass’n, Inc. v. Candelaria.⁹⁷ On February 7, 2008,
following bench trial, the U.S. District Court for Arizona upheld the Arizona statute.
The district court rejected petitioners’ argument that the Arizona statute was
preempted by federal immigration law. Here, the court took notice of the language
of INA § 274A(h)(2) preempting states and localities from imposing “civil or
criminal sanctions (other than through licensing and similar laws)” upon employers
of unauthorized aliens. The court interpreted this provision as expressly authorizing,
state and local licensing sanctions like the Arizona statute.⁹⁸ The court rejected
plaintiffs’ argument that the legislative history of INA § 274A(h)(2) indicated that
Congress intended only to permit state licensing sanctions for employers already
found liable under federal employer sanction proceedings. Finding that the
legislative history did not support the plaintiffs’ contention, the court ruled that
“language of the statute that Congress approved, not language from the House Report
concerning the statute, controls.”⁹⁹ According to the court, nothing in the structure,
purpose, or language of IRCA evidenced an intent to prevent states from
independently revoking or suspending the business licenses of entities that knowingly
employed unauthorized aliens.¹⁰⁰
The court also disagreed with arguments that the Arizona statute was
unenforceable on field preemption grounds. According to the court, “the
employment of unauthorized aliens is neither intrinsically nor historically an

⁹⁴ (...continued)
ordinance banning the renting of dwelling units to unauthorized aliens, with offenders
subject to a civil fine for each violation, and denying business permits to entities that hire
or employ such aliens).
⁹⁵ A^RI^Z.R^EV.S^TAT.A^NN. §§ 23-211 to 23-214 (Supp. 2007).
⁹⁶ 2007 WL 4293641 (D.Ariz. Dec. 7, 2007).
⁹⁷ Arizona Contractors Ass’n, Inc. v. Candelaria, 2008 WL 343082 (D.Ariz. Feb. 7, 2008).
⁹⁸ Id. at *6 (“if the Act constitutes a licensing or similar law, it is expressly authorized by
IRCA’s savings clause”).
⁹⁹ Id. at *7.
¹⁰⁰ Id. at *7-11.

exclusive concern of the federal government.”¹⁰¹ The court noted that the Supreme
Court had recognized in DeCanas v. Bica that the states have “strong local interests
in prohibiting the employment of unauthorized aliens.”¹⁰² While the federal
government, through IRCA, had enacted a comprehensive scheme to regulate the
employment of unauthorized aliens in the aftermath of Decanas, the district court did
not deem this regulation to be so pervasive as to preempt all state action in this area.
Rather, “preservation of that state power was itself part of Congress’ careful
balancing of policy objectives” in crafting IRCA.¹⁰³ According to the district court,
neither the structure nor the purpose of IRCA evidenced an intent by Congress to
prevent states from independently revoking the business licenses of those who
knowingly employ unauthorized aliens.
The district court rejected plaintiffs’ argument that the Arizona statute intruded
upon the federal government’s plenary power over the field of immigration. The
court characterized the statute as a permissible regulation of licensing and
employment, rather than an impermissible regulation of immigration.¹⁰⁴ The court
held that the state statute did not infringe upon the federal government’s plenary
power over immigration because it did not attempt to regulate the entry or removal
of aliens, or the conditions under which aliens may remain in the United States.
According to the court, the Arizona statute properly adopted federal standards
governing the substantive classification of aliens for purposes of sanctioning
employers that knowingly employ aliens with no federal right to employment within
the United States.¹⁰⁵
The court dismissed plaintiffs’ argument that the Arizona statute was
unenforceable on conflict preemption grounds. First, the court found that the
licensing sanction provisions “carefully track the federal employer sanctions law.”¹⁰⁶
The court disagreed with plaintiffs’ contention that the statute’s requirement that
employers use the Basic Pilot program was preempted by federal law. While
Congress had not passed legislation requiring employers to use the Basic Pilot
program, the court did not see this as reflecting a congressional intent to bar states
from mandating employer participation in the program.¹⁰⁷ The court concluded that
federal policy “encourages the utmost use” of the Basic Pilot program by employees,
and found nothing within the Arizona statute was inconsistent with this policy.¹⁰⁸

¹⁰¹ Id. at *9.
¹⁰² Id.
¹⁰³ Candelaria, 2008 WL 343082 at *9.
¹⁰⁴ Id. at *12-13.
¹⁰⁵ Id.
¹⁰⁶ Id. at *14.
¹⁰⁷ Id. at *17.
¹⁰⁸ Id. at *17. The court also took judicial notice that the Department of Homeland Security
had used billboard and radio advertisements in the Phoenix area to encourage greater
participation in the Basic Pilot Program. Id. at *16.

The court also dismissed plaintiffs’ procedural due process challenge, finding
that under both the defendants’ and plaintiffs’ interpretation of the Arizona statute,
employers were accorded fair and adequate procedural protections. It acknowledged
that circumstances could occur where the Arizona statute might be applied in a
manner that did not accord adequate procedural protections, but such hypothetical
situations were not sufficient for the court to find the statute to be facially
unconstitutional. ¹⁰⁹ Finally, the court dismissed plaintiffs’ claim that the Arizona
statute violated the Commerce Clause of the U.S. Constitution, finding that the
statute did not regulate employees outside the state.¹¹⁰
Following the district court’s ruling, plaintiffs filed a notice of appeal with the
U.S. Court of Appeals for the Ninth Circuit.
Gray v. City of Valley Park
On January 31, 2008, in Gray v. City of Valley Park,¹¹¹ the U.S. District Court
for the Eastern District of Missouri granted summary judgment in favor Valley Park,
Missouri, in a case brought by business entities challenging a Valley Park ordinance
authorizing the suspension of the business license of any local entity employing
illegal aliens. An earlier ordinance restricting both the hiring and leasing of property
to illegal aliens had been struck down by a Missouri state court as invalid under state
law.¹¹² Valley Park thereafter enacted a new employment ordinance which was at
issue in Gray.¹¹³ The ordinance, as amended, requires all business entities applying
for a business license to submit an affidavit to the city affirming that they do not
knowingly hire or use the services of persons who are not lawfully present within the
United States.¹¹⁴ Upon receipt of a valid complaint that a business violated ordinance
requirements, the city could request the business to submit identity information
regarding persons alleged to be unlawful workers. The city would thereafter attempt
to verify an allegedly unlawful employee’s immigration status with the federal
government, and businesses found to have violated the ordinance would have their
licenses suspended pending correction of the violations, except in cases where they
had previously verified the work authorization of an allegedly unlawful worker
pursuant to the Basic Pilot program.¹¹⁵ Enrollment in the Basic Pilot program is

¹⁰⁹ Candelaria, 2008 WL 343082 at *21.
¹¹⁰ Id.
¹¹¹ Gray v. City of Valley Park, 2008 WL 294294 (E.D.Mo. Jan. 31, 2008)
¹¹² Reynolds v. City of Valley Park, Findings of Fact, Conclusions of Law, Order and
Judgment, Case No. 06-CC-3802 (E.D.Mo. 2006).
¹¹³ Valley Park also enacted a separate housing ordinance, but this ordinance was
subsequently repealed and its legality was not adjudicated by the district court in Gray.
¹¹⁴ Valley Park, Mo., Ordinance 1736 (approved Aug. 9, 2007 and amending Ordinance

1722), available at [http://clearinghouse.wustl.edu/chDocs/public/IM-MO-0002-0011.pdf].

¹¹⁵ Id.

required under the ordinance for reinstatement of a business license when two or
more violations have occurred.¹¹⁶
In upholding the Valley Park ordinance, the district court ruled against
plaintiffs’ claim that the measure was preempted by federal immigration law. The
court began by noting Supreme Court jurisprudence recognizing a strong
presumption against preemption of the historical police powers of states, “unless that
was the clear and manifest purpose of Congress.”¹¹⁷ The district court applied this
presumption in consideration of preemption arguments against the ordinance,
characterizing the measure as a regulation of business licenses , an area historically
occupied by states and localities, rather than a regulation directly concerned with
immigration, an area falling under the clear purview of the federal government.¹¹⁸
The court rejected plaintiffs’ argument that the Valley Park ordinance was
expressly preempted by INA § 274A(h)(2). While INA § 274A(h)(2) clearly
preempts states and localities from imposing criminal or civil sanctions against
employers of unauthorized aliens, the court held that the Valley Park ordinance
constituted a “licensing or similar law” expressly exempted from preemption.¹¹⁹ The
court also disagreed with plaintiffs’ contention that the legislative history of IRCA
indicated that the exemption contained in INA § 274A(h)(2) should be read narrowly,
so as to only permit state or local licensing restrictions upon entities that were already
found by the federal government to have violated federal immigration law
requirements. The court found the portions of the legislative history relied upon by
plaintiffs to be, at best, “ambiguous,” and insufficient to contravene the “plain
meaning of the statute [,which] clearly provides for state and local governments to
pass licensing laws which touch on the subject of illegal immigration.”¹²⁰
Turning to the issue of field preemption, the court concluded that federal law
regulating the employment of unauthorized aliens was not so pervasive as to preempt
every state or local action on the subject. According to the court, the inclusion of “a
provision in INA § 274A, as well as comments in the legislative history, allowing
some state licensing regulations to exist, clearly conflicts with an intent to preempt
the entire field of immigration regulation.”¹²¹

¹¹⁶ Gray, 2008 WL 294294 at *17.
¹¹⁷ Id. at *8, quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947).
¹¹⁸ Gray, 2008 WL 294294 at *8.
¹¹⁹ Id. at *9-12.
¹²⁰ Id. at *12. The court also noted that the Valley Park Ordinance provides that the federal
government must verify that an employee is an unauthorized alien before local enforcement
measures can be taken. According to the court, “The only circumstance in which the
Ordinance would not comply, would be if the Federal Law required that an employer be
found to be in violation of the Federal statute before any state action could be taken.
However, nowhere in the legislative history cited by Plaintiffs, nor, more importantly, within
the language of the statute, is this requirement stated.” Id. at n.15.
¹²¹ Id. at *13.

The court disagreed with plaintiffs’ contention that the Valley Park ordinance
was unenforceable on conflict preemption grounds. The court concluded that the
differences between the requirements of federal law and the local measure were not
significant enough to constitute a conflict sufficient to support a finding of
preemption.¹²² Among other things, the Grey court held that the ordinance’s
requirement that certain employers participate in the Basic Pilot program did not
conflict with federal law, which generally does not mandate participation in the
program.¹²³
The Grey court ruled against plaintiffs with respect to their equal protection and
due process claims under the Fourteenth Amendment, as well as their claim that the
ordinance was inconsistent with Missouri state law. The court found that plaintiffs
lacked standing to bring an equal protection claim on behalf of employees or
potential employees of Hispanic origin who would allegedly be discriminated against
under the ordinance.¹²⁴ In the alternative, the court held that plaintiffs had failed to
provide evidence supporting a constitutional violation, finding that the ordinance was
not facially discriminatory against Hispanics and that insufficient evidence had been
presented to establish that the ordinance had a discriminatory purpose.¹²⁵ With
respect to plaintiffs’ due process claims, the Grey court held that the ordinance
provided affected business entities with sufficient procedural protections to satisfy
due process requirements.¹²⁶ Finally, the court held that the ordinance did not violate
Missouri state law concerning local authority to suspend or revoke business
licenses.¹²⁷
National Coalition of Latino Clergy, Inc., v. Henry
In National Coalition of Latino Clergy, Inc., v. Henry,¹²⁸ a recent case related
to an immigration law enacted in the state of Oklahoma, a federal district court judge
dismissed the lawsuit on the grounds that the plaintiffs lacked the standing to bring
suit. The district court found that some of the plaintiffs, including an association of
Latino clergymen, several churches, and several businesses, did not have
constitutional standing for a variety of reasons, including failing to identify a specific
association member with standing and alleging injuries that were speculative and
non-imminent. However, the court noted that these plaintiffs would easily be able to
cure these defects by filing a well-pled complaint. With regard to the remaining
individual plaintiffs, all of whom were illegal immigrants, the court found that
several of them did have constitutional standing to sue. Nevertheless, the court,

¹²² Id. at *15.
¹²³ Gray, 2008 WL 294294 at *18-19.
¹²⁴ Id. at *21-23.
¹²⁵ Id. at *25-26.
¹²⁶ Id. at *27-29.
¹²⁷ Id. at *29-30.
¹²⁸ National Coalition of Latino Clergy, Inc. v. Henry, 2007 WL 4390650 (N.D.Okla. Dec.

12, 2007).

reasoning that judicial limits may be imposed in unique cases, articulated a new
prudential limitation on standing:
An illegal alien, in willful violation of federal immigration law, is without
standing to challenge the constitutionality of a state law, when compliance with
federal law would absolve the illegal alien’s constitutional dilemma —
particularly when the challenged state law was enacted to discourage violation¹²⁹
of the federal immigration law.
Because the case was ultimately dismissed on standing grounds, the court did not
consider the merits of the plaintiffs’ claims.
Lozano v. City of Hazleton
In the case of Lozano v. City of Hazleton, decided on July 26, 2007, the U.S.
District Court for the Middle District of Pennsylvania struck down an ordinance
enacted by Hazleton, Pennsylvania intended to deter the housing and employment of
unauthorized aliens. Hazleton initially enacted an ordinance in July 2006 that denied
business permits to entities that employed illegal aliens and imposed civil penalties
upon persons who rented dwelling units to such aliens. In the following months,
Hazleton enacted a substitute ordinance and thereafter amended this replacement
ordinance to further clarify its scope and application.¹³⁰ In general, the Hazleton
ordinance at issue in Lozano: (1) denied or suspended the business permit of any
entity that employed unauthorized aliens; (2) created a cause of action for “lawful”
employees against their employer, if they were discharged at a time when the
business employed unauthorized aliens; and (3) barred persons from letting, leasing,
or renting a dwelling unit to an unauthorized alien, with offenders subject to a
revocation of their rental license and, in the case of a second or subsequent violation,
a civil fine. The district court found that the ordinance was unconstitutional on
preemption and procedural grounds, and also violated 42 U.S.C. § 1981, though the
court did reject plaintiffs’ claims that the ordinance violated the Equal Protection
Clause or the FHA.¹³¹
The district court held that the Hazleton ordinance’s restrictions on the
employment of unauthorized aliens were unconstitutional on express, field, and
conflict preemption grounds. In ruling that the Hazleton ordinance was expressly
preempted, the court interpreted the licensing exception to preemption found in INA
§ 274A(h)(2) narrowly. According to the court, the legislative history of INA §
274(h)(2) indicated that the only state or local licensing requirements intended to be
excluded from preemption were those which denied licensing permits to entities

¹²⁹ Id. at *9.
¹³⁰ Hazleton, Pa., Ordinance 2006-18, Illegal Immigration Relief Act (September 12, 2006),
available at [http://www.aclu.org/pdfs/immigrants/hazleton_secondordinance.pdf];
Ordinance 2006-40, Illegal Immigration Relief Act Implementation Amendment (December

13, 2006) available at [http://www.aclu.org/pdfs/immigrants/hazleton_ordinance_200635.

pdf].
¹³¹ The court also held that parts of the ordinance violated certain state law requirements.
Lozano, 496 F. Supp.2d at 548-553.

found to have violated the requirements of INA § 274A.¹³² States and localities were
not authorized to impose their own, separate requirements on businesses with respect
to the employment of unauthorized aliens, and deny permits to those businesses on
account of violating these nonfederal requirements. The Lozano court also held that
the employment-related provisions of the Hazleton ordinance were impliedly
preempted under field preemption grounds. The court reasoned in enacting IRCA,
the federal government had created a comprehensive scheme to control the
employment of unauthorized aliens. This scheme left no room for state or local
regulation of such matters,¹³³ except by allowing states and localities to impose
licensing restrictions upon entities found to have violated federal requirements.
Finally, the court held that the employment-related provisions of the ordinance were
unenforceable on conflict preemption grounds because they imposed supplemental
requirements on employers above and beyond what was required under federal law.¹³⁴
The district court also held that the Hazleton ordinance’s restrictions on the
housing of illegal aliens were unenforceable on conflict preemption grounds. The
court stated that while the ordinance would deny housing to any alien lacking legal
immigration status,
the federal government permits several categories of persons who may not be
technically lawfully present in the United States to work and presumably live
here....[including]: 1.) aliens who have completed an application for asylum or
withholding of removal; 2) aliens who have filed an application for adjustment
of status to lawful permanent resident; 3) aliens who have filed an application for
suspension of deportation; 4) aliens paroled into the United States temporarily
for emergency reasons or reasons deemed strictly in the public interest; [and] 5)
aliens who are granted deferred action an act of administrative convenience to¹³⁵
the government which gives some cases lower priority.
The court also noted that federal law may permit certain unlawfully present aliens to¹³⁶
adjust to legal status and eventually become U.S. citizens. The court therefore
concluded that the Hazleton ordinance conflicted with federal law and was

¹³² The court did not clearly specify whether a state or locality may “find” that a business
violated the requirements of INA § 274A, or whether such a finding must be made by the
federal government before a licensing restriction may be imposed.
¹³³ Lozano, 496 F. Supp. 2d. at 523-525.
¹³⁴ Id. at 525-529.
¹³⁵ Id. at 530-531 (internal quotations omitted).
¹³⁶ Id. at 531.

preempted,¹³⁷ because it denied city residency to aliens who may be legally permitted
to stay in the United States.
The Lozano court also held that the housing and employment components of the
Hazleton ordinance did not provide procedural safeguards sufficient to fulfill the due
process requirements of the Fourteenth Amendment, as affected individuals were
provided with insufficient notice and opportunity to be heard before being susceptible
to city action that deprived them of a liberty or property interest.¹³⁸ Notably, the court
found procedural safeguards were owed not only to affected businesses and property
owners, but also to employees who might be fired or tenants who might be evicted
by entities attempting to comply with ordinance requirements.¹³⁹
The court dismissed plaintiffs’ claim that the ordinance violated the Equal
Protection Clause of the Fourteenth Amendment,¹⁴⁰ as well as the claim that the
ordinance violated the Fair Housing Act’s prohibition on discrimination in residential
real estate-related transactions on the basis of race or national origin.¹⁴¹ In doing so,
the court held that the ordinance did not facially discriminate against a suspect class
or implicate a fundamental right.¹⁴² The court also found that the ordinance was
rationally related to legitimate government interests in reducing crime caused by
illegal immigrants in the city and safeguarding community resources spent on law
enforcement, education, and heath care.¹⁴³ However, the court found that the
ordinance violated 42 U.S.C. § 1981 by effectively barring unauthorized aliens from
entering leases.¹⁴⁴
Hazleton has appealed the court’s ruling to the U.S. Court of Appeals for the
Third Circuit.

¹³⁷ The Lozano court also held that the housing provisions of the ordinance, which
authorized Hazleton officials to examine paperwork of tenants to determine whether they
were lawfully present in the United States, were in direct conflict with federal law
purportedly providing that an alien’s legal status may only be determined by an immigration
judge. Id. at 533 (quoting language in INA § 240(a)(3) that states that a removal proceeding
before an immigration judge is 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”). But see supra note 36 (discussing conflicting court opinion
regarding when an alien may be considered unlawfully present).
¹³⁸ Lozano, 496 F. Supp.2d at 533-537.
¹³⁹ Id. at 536-537.
¹⁴⁰ Id. at 538-542.
¹⁴¹ Id. at 545-546.
¹⁴² Id. at 538-542.
¹⁴³ Id. at 542.
¹⁴⁴ Lozano, 496 F. Supp.2d at 547-548.

Villas at Parkside Partners v. City of Farmers Branch
On May 12, 2007, the voters of Farmers Branch, Texas, approved an ordinance
requiring property owners and/or managers, as a prerequisite to entering into any
lease or rental arrangement, to verify the citizenship or lawful immigration status of
the applicants for tenancy (Ordinance 2903).¹⁴⁵ Ordinance 2903 superseded a similar
ordinance, adopted in November 2006, that had been the subject of state litigation
and a temporary restraining order barring its enforcement. A violation of the new
ordinance would constitute a misdemeanor offense, with offenders subject to a $500
fine. If a family was denied tenancy on account of their immigration status, they
would be entitled to a hearing in which they could challenge the eligibility
determination.
Ordinance 2903 is the subject of a legal challenge before the U.S. District Court
for the Northern District of Texas. The plaintiffs argue, among other things, that the
ordinance is preempted by federal law and violates equal protection and due process
requirements of the Fourteenth Amendment. On May 21, 2007, the district court
granted plaintiffs’ request for the issuance of a temporary restraining order precluding
enforcement of the ordinance, based on a preliminary determination pending trial that
the ordinance was preempted by federal law.¹⁴⁶ Specifically, the court found that the
ordinance “adopts federal housing regulations that govern which noncitizens may
receive housing subsidies from the federal government, not federal immigration
standards that determine which noncitizens are legally in this country.”¹⁴⁷ Based on
this finding, the court made an initial determination, pending trial, that the ordinance
regulated conduct relating to alienage using different categorizations from those used
in federal immigration law. Accordingly, the ordinance conflicted with federal law
and was therefore preempted. Litigation regarding the Farmers Branch ordinance is
ongoing.
In January 2008, the Farmers Branch City Council approved another ordinance
intended to deter unlawfully present aliens from renting homes or apartments
(Ordinance 2952).¹⁴⁸ The ordinance will take effect following a final judgment by
federal district court in the ongoing litigation involving Ordinance 2903.
Stewart v. Cherokee County
This case involves a challenge to an ordinance enacted by Cherokee County,
Georgia in December, 2006, which barred persons from renting dwelling units to

¹⁴⁵ Farmers Branch, Tx., Ordinance 2903 (approved May 12, 2007), available at
[ ht t p: / / www.ci .f ar me r s -br a nch.t x.us/ Communi cat i on/ Immi gr at i on% 20Or di nances.ht ml ] .
¹⁴⁶ Vazquez v. City of Farmers Branch, Memorandum Opinion and Order Granting
Temporary Restraining Order, 2007 WL 1498763, Case No. 3-06CV2376-R (N.D. Tex.,
May 21, 2007).
¹⁴⁷ Id. at *10.
¹⁴⁸ Farmers Branch, Tx., Ordinance 2952 (approved January 22, 2008), available at
[ ht t p: / / www.ci .f ar me r s -br a nch.t x.us/ Communi cat i on/ Immi gr at i on% 20Or di nances.ht ml ] .

unauthorized aliens.¹⁴⁹ On January 4, 2007, plaintiff filed suit in the U.S. District
Court for the Northern District of Georgia claiming that the ordinance, among other
things, was preempted by federal immigration laws, conflicted with the equal
protection and procedural due process requirements of the Fourteenth Amendment,
and violated various federal civil rights statutes.¹⁵⁰ That same day, with the consent
of Cherokee County, the presiding judge issued a temporary restraining order
preventing enforcement of the ordinance and staying the case, pending judicial
resolution of challenges to similarly worded ordinances in Hazleton, Pennsylvania
and Riverside, New Jersey.¹⁵¹ Subsequently, Riverside repealed its ordinance and a
federal district court struck down the Hazleton ordinance on a number of
constitutional and statutory grounds. On August 28, 2007, the presiding court
administratively closed the case concerning the Cherokee County ordinance and
advised the parties that the case could be reopened if the parties filed a motion to that
effect .¹⁵²
Garrett v. City of Escondido
This case concerned a legal challenge to an ordinance adopted by Escondido,
California that barred the renting of dwelling units to illegal immigrants.¹⁵³
Offending property owners were potentially subject to civil and criminal penalties.
Plaintiffs challenged the ordinance on preemption and procedural due process
grounds. On November 20, 2006, the U.S. District Court for the Southern District
of California issued a temporary restraining order barring enforcement of the
ordinance pending trial, finding that serious preemption and due process concerns
were raised by the measure.¹⁵⁴ Shortly thereafter, the parties entered into a settlement
agreement in which Escondido agreed not to enforce the ordinance. On December
15, 2006, the district court issued a permanent injunction implementing the
settlement agreement and barring enforcement of the ordinance.¹⁵⁵

¹⁴⁹ Cherokee County, Ga., Ordinance 2006-03, To Establish Penalties for the Harboring of
Illegal Aliens in Cherokee County (December 5, 2006), available at [http://clearinghouse.
wustl.edu/chDocs/public/IM-GA-0001-0003.pdf].
¹⁵⁰ Stewart v. Cherokee County, Complaint, filed Jan 4, 2007, Case No. 07 CV 0015 (N.D.
Ga.), available at [http://clearinghouse.wustl.edu/chDocs/public/IM-GA-0001-0001.pdf].
¹⁵¹ Stewart v. Cherokee County, Consent Order Granting Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction and for Stay, Case No. 07 CV 0015 (N.D.
Ga., January 4, 2007), available at [http://www.aclu.org/pdfs/immigrants/cherokeecounty_
tro.pdf].
¹⁵² Stewart v. Cherokee County, Case No. 07 CV 0015 (N.D. Ga., August 28, 2007).
¹⁵³ Escondido, Ca., Ordinance No. 2006-38 R: An Ordinance of the City of Escondido,
California Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido
(October 18, 2006), available at [http://clearinghouse.wustl.edu/chDocs/public/IM-CA-

0001-0002.pdf].

¹⁵⁴ Garrett v. City of Escondido, Order Granting Plaintiffs’ Application For Temporary
Restraining Order, 465 F.Supp.2d 1043 (S.D. Ca. 2006).
¹⁵⁵ Garrett v. City of Escondido, Order re: Stipulated Final Judgment and Permanent
Injunction, Case No. IM-CA-0001-0006 (S.D. Ca., December 15, 2006), available at

¹⁵⁵ (...continued)
[http://clearinghouse.wustl.edu/chDocs/public/IM-CA-0001-0009.pdf].