Nebraska city immigration law challenged

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.

See our last posts on the politics of immigration and struggle in Nebraska.

  1. Government neglecting American People on Immigration
    It is predictable that at least 8.5 million illegal workers are employed in America. That the Federation for American Immigration Reform states, that yearly taxpayer pays out 113 billion dollars in extra taxes to underwrite welfare programs for illegal aliens and their families. This does not embrace $60 billion a year that leaves America in workers remittances to other countries. Those who want to keep more money in their pockets, better start bombarding their Senator and Congressmen- Women in their home state. Democratic majority leader Incumbent Harry Reid (D-NV) in the Senate virtually killed E-Verify, 287 (G) enforcement.

    There’s an affirmative purpose to need universal policing laws on July 29 enacted in Arizona, until the US government does its job. So far they have failed to build the double fence between the Mexico and the US. If the federal courts state that Arizona’s law is unconstitutional, then they had better be ready for a public outcry like never before. This will place the focus on cities that have remained outside federal law in encouraging Sanctuary Cities. This is a betrayal of the American taxpayer as they are subsidizing illegal nationals living in a Sanctuary states like California. Again, the federal government has failed to take into custody those responsible for repudiating federal law.

    Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A): A person ( including a group of persons, business, organization, or local government ) commits a federal felony when she or he: (1) assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or (2) encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way. Another fact is why bother with any immigration law, if illegal entry is not a felony as with most industrialized nations of the world?

    In addition, the federal government is charged to defend each state under the US Constitution. Learn the implications of overpopulation growth, the millions legal immigrants forthcoming, costs and other paramount problems that we all share through run away immigration—legal and illegal? Start imposing your interests on all your Washington Senators and House Representatives, including state politicians, who seemed to have forgotten who they work for at 202-224-3121. Carefully analyze who have your best interests at heart, not those who want to impose on you and your family more taxes to pay for illegal aliens squatting here in the US. Can we trust Sen. John McCain, who has made a 90 degree turn on illegal immigration? Whereas we cannot trust Sen. Harry Reid of Nevada who has a high percentage of illegal labor and families and one of the largest treasury deficits in our country. More details and what you can do for America’s survival at NumbersUSA.

    1. Get lost, “Brittanicus”
      Brittanicus,” we know that is you because (in violation of our posting policy) you posted exactly the same ill-informed screed here. Among other inaccuracies in your venom, “illegal entry” is not a felony in most industrialized countries. Italy just passed a law criminalizing undocumented immigration last year—to widespread international protest. More to the point—have you noticed that there’s a devastating oil spill, an escalating war in Afghanistan, a still bloody one in Iraq, a huge tax-payer rip-off in the name of the bank bail-out, cops getting away with murder in Oakland, and, oh yeah, a global ecological collapse in the works? And this is all you have to be angry about—the fact that the guy being exploited at the meat-packing plant may not have his paperwork intact? What is wrong with you people?

  2. Nebraska: city council suspends controversial immigration law
    The Fremont City Council on July 27 voted unanimously to suspend the ordinance banning hiring, harboring or renting property to “illegal immigrants” pending the outcome of litigation challenging its constitutionality. The suspension of the ordinance, which was to go into effect July 29, was taken in light of a pending injunction against the ordinance and as a cost saving measure, according to council members, who have stated that enforcing the law would cost the city $200,000 annually and defending it would cost the city up to $1 million per year. The vote occurred without debate, and the council also voted to hire Kris Kobach to defend the city against the lawsuits. Kobach, a law professor and political candidate in Kansas, assisted in the drafting of the ordinance and the Arizona immigration law and offered his assistance to Fremont pro bono. (Jurist, July 28)

  3. Nebraska high court declines to rule on immigration law
    The Nebraska Supreme Court on Nov. 5 declined to rule on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants. The US District Court for the District of Nebraska had asked the court to decide whether Fremont Ordinance 5156 violates state law. The court declined to act, saying that there is no need to decide this question because:

    the US Supreme Court has held that federal courts are not required to obtain a state court’s construction of a state statute or ordinance before deciding a federal constitutional challenge to the law and should not certify such question unless the law is fairly susceptible to a narrowing construction. Also, the Court has held that it is “manifestly inappropriate to certify a question in a case where … there is no uncertain question of state law whose resolution might affect the pending federal claim.”

    The city of Fremont has suspended enactment of the ordinance until the district court decides the issue, and the city has raised its property taxes to fund the court fight. (Jurist, Nov. 5)