Pennsylvania Anti-Immigration Law Unconstitutional

An appellate court ruling last week affirming that a Pennsylvania town’s anti-immigration laws were unconstitutional could be good news for those fighting similar laws in Arizona.

But Dan Pochoda the legal director of the American Civil Liberties Union of Arizona doesn’t think the Hazleton decision sends much of a message to those behind the anti-immigration measures. Or rather, if it does, they’re not going to listen.

“Obviously it’s good news. But it’s hard to assess the impact. I doubt anyone here is going to view this as a deterrent. I certainly don’t think Russell Pearce [state senator and one of the chief architects of the recent anti-immigration law HB 1070] cares about Hazleton,” Pochoda said.

On Thursday, the U.S. Court of Appeals for the Third Circuit ruled unanimously against a Hazleton, Pa. law that would have punished landlords and employers accused of renting to or hiring anyone the city considered an “illegal alien.”

In the decision, Judge Theodore McKee wrote:

If Hazleton’s ordinance is permitted, then each and every state and locality would be free to implement similar schemes for investigating, prosecuting and adjudicating whether an employer has employed unauthorized aliens. A patchwork of state and local systems each independently monitoring, investigating and ultimately deciding (all concurrently with the federal government) whether employees have hired unauthorized aliens could not possibly be in greater conflict with Congress’ intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers.

Like the Hazleton law, Arizona’s HB 1070, which was signed into law in April, preempts federal authority in enforcing immigration law. Known by local opponents as the “Show Me Your Papers” law, it gives state and local police more power to question and detain suspected illegal immigrants and puts the burden of proof on suspects to prove they are here legally. “In a way, this is actually a clearer case of preemption,” Pochoda said. “The stated goal of 1070 is, ‘The federal government is not doing its job, so we’re going to do it for it. We’re going to get people to self-deport.’”

In July, a federal judge issued an injunction against most of the law’s provisions until its constitutionality can be tested in court.

Attorneys on the religious right have split on whether such local and state immigration ordinances are constitutional.

Sarah Posner wrote for RD in July:

Religious right reaction to yesterday’s federal court decision blocking implementation of some parts of Arizona’s anti-immigrant law, SB 1070, is illustrative of a split within the religious right on immigration reform.

Jay Sekulow of the American Center for Law and Justice, which filed an amicus brief on behalf of 81 members of Congress defending the Arizona statute, called the court’s ruling “an extremely disappointing decision that further harms the citizens of Arizona.”

But Mat Staver of Liberty Counsel, who has been part of a group of evangelicals lobbying for immigration reform (albeit without equal rights for LGBT people), said:

“I agree with the judge’s ruling because immigration is a federal, not a state issue. The rule of law expressly set forth in the U.S. Constitution regarding immigration compels me to conclude that the Arizona law is unconstitutional. If a state concluded that the federal government was doing an inadequate job of stabilizing the Iraqi government against insurgents, then that would not give that state the right to declare war against Al Qaeda. If a state concluded that the U.S. trade laws are bad, that does not give the state a right to develop its own trade policy with foreign countries. Neither may a state develop its own immigration law as Arizona sought to do. The remedy when the federal government fails in its duty to stop illegal immigration is to either change the Constitution to allow the states to do the job or change the federal elected officials and replace them with those who will do the job.”

Vic Walczak, the legal director for the Pennsylvania ACLU and a lead attorney for the Hazleton plaintiffs said, following the ruling:

Divisive laws like these destroy communities and distract from the very real problems that local governments are facing across the country. Immigration reform needs to come from the federal level. Local ordinances like these have a toxic effect on the community, injecting suspicion and discriminatory attitudes where they didn’t previously exist.

(Full disclosure: I am an active member of the ACLU of Pennsylvania and consider Walczak a friend.)

I left Arizona Monday after spending a week there. I witnessed exactly what Walczak describes. There is a fearfulness that seems to be hanging over the state. People are afraid to talk out of fear that they will be harassed or create harassment for someone else. On Monday, a minister kicked me off a church parking lot for trying to talk to day laborers.

Three years ago, U.S. District Judge James M. Munley wrote in the original decision:

The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public. Hazleton, in its zeal to control the presence of a group deemed undesirable, violated the rights of such people, as well as others within the community.

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