Two lawsuits were filed July 21 seeking injunctive relief against a Fremont, Neb., ordinance banning the hiring, harboring or renting property to “illegal immigrants.” The ordinance, passed by city voters in a referendum last month, requires all employers in the city to register for the E-Verify program and makes it a crime to rent to “illegal” immigrants. The ordinance also voids any lease entered into by an undocumented immigrant and requires every person seeking to rent residential property to obtain an occupancy permit from the city, requiring the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number.
The American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) filed their lawsuits in the US District Court for the District of Nebraska. In its suit, the ACLU challenges the law based on the Equal Protection and the Supremacy clauses of the US Constitution.
The ACLU alleges that the ordinance was passed with the intent of discriminating against people based on their race or national origin, violating Equal Protection. It argues that the law violates the Supremacy Clause because immigration is a matter solely within federal jurisdiction and Congress has enacted a comprehensive immigration scheme. MALDEF’s lawsuit makes nearly identical arguments, adding that the ordinance violates Article 11 of the Nebraska Constitution, because the Fremont municipal government has not been empowered by the Nebraska Legislature to enforce immigration law. Additionally, MALDEF cites five cases of similar local laws that were struck down by federal and state courts, including a nearly identical law struck down by a federal district court in Texas. The law will become effective July 29.
The ordinance was passed in June, with 57% in favor, in response to a wave of immigration to the region due to the availability of jobs in the meatpacking industry. The Nebraska Supreme Court ruled that the vote could occur, denying the city’s request for declaratory relief on the basis that the ordinance would be preempted by federal law. A similar initiative was narrowly voted down by the Fremont City Council in 2008. Shortly after the ordinance’s passage, the American Civil Liberties Union of Nebraska promised to challenge the ordinance in court, describing the law as “un-American and unconstitutional” and arguing that the ordinance will “cause discrimination and racial profiling against Latinos and others who appear to be foreign born, including US citizens.”
From Jurist, July 21. Used with permission.