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Immigrant Laws Tread Uncharted Legal Path

By Karin Brulliard
Washington Post Staff Writer
Tuesday, August 28, 2007

As officials in places such as Prince William County increasingly respond to public discontent over illegal immigration by passing ordinances, law scholars say a key question remains: Are local regulations legal?

The validity of the measures, designed to regulate an area long considered part of the federal domain, is among the murkiest territories in the already-Byzantine field of immigration law, they say, largely because local leaders have never before felt impelled to act, and so there are few specific court rulings to offer clarity.

"You have this complex overlay of statutes and regulations and court cases, and you've got this federalism question of . . . what has traditionally been federal power and what the states can do," said Jan Ting, a Temple University law professor. "There could not be an area of law that is less clear than this, I think."

Among the many likely results of congressional inaction on immigration, experts say, will be a flood of litigation over local laws. Ordinances in Farmers Branch, Tex., and Valley Park, Mo., are facing court challenges, and activists in Prince William have threatened to file a lawsuit over the county's resolution to crack down on illegal immigrants.

This year, state legislatures introduced more than 1,400 immigrant-related bills, at least 170 of which became law, according to the National Conference of State Legislatures. Municipalities have proposed more than 100 such ordinances, according to the American Civil Liberties Union.

Critics of local policies were emboldened last month by the first federal ruling on a local law, which struck down a Hazleton, Pa., ordinance aimed at ridding the town of illegal immigrants by denying business permits to employers who hire them and fining landlords who rent to them. In a 206-page opinion, Judge James Munley said such laws tread on federal terrain and violate illegal immigrants' constitutional right to due process. The town is appealing the decision.

"Whatever frustrations officials of the City of Hazleton may feel about the current state of federal immigration enforcement, the nature of the political system in the United States prohibits the City from enacting ordinances that disrupt a carefully drawn federal statutory scheme," Munley wrote.

Legal experts say that although the ruling is likely to discourage other localities, it applies only to part of Pennsylvania and is vulnerable to reversal by a federal appeals court -- whose decision would become law throughout the 3rd Judicial Circuit, which includes Delaware, New Jersey and Pennsylvania.

For now, they say, some things are clear. The Supreme Court has ruled that true immigration matters -- who enters and leaves the United States -- fall under the federal government's realm alone. When it comes to laws related to noncitizens, the Constitution invalidates, or "preempts," state laws that clearly conflict with federal laws or that courts interpret to be ground that Congress intended to dominate.

That is where things get hazy, experts say.

Take employment regulations. Congress has stated the invalidity of laws, passed by several states this year, that directly penalize employers for hiring illegal immigrants. But it provides an exception for sanctions involving licenses.

That gave Hazleton "clear authority" to deny business licenses to employers who hire illegal workers, said Kris Kobach, a law professor at the University of Missouri at Kansas City who represents the town and has helped other localities craft stiff measures against illegal residents.

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