Supreme Court gives Hazletons ordinance a second chance
By Kent Jackson
Hazleton won a second chance to defend its immigration law, courtesy of the U.S. Supreme Court.
The Supreme Court on Monday ordered the U.S. Court of Appeals for the Third Circuit in Philadelphia to reconsider Hazleton’s law, which was struck down in 2007.
“It’s a do-over in the Third Circuit,” said Kris Kobach, the attorney for Hazleton. “We re-brief it, re-argue it and have a helpful Supreme Court decision in our hip pocket.”
Kobach referred to a decision on May 26 in a case about an Arizona law.
In the Arizona case, known as U.S. Chamber of Commerce versus Whiting,
the Supreme Court upheld a law revoking the business licenses for
companies that knowingly hire illegal immigrants.
Hazleton’s law, which was enacted in 2006 but never took effect because
of the court challenge, contains nearly the same employment provisions
as Arizona’s law.
The Arizona decision, Kobach said, "put Hazleton on very strong ground" for the employment provision.
U.S. Rep. Lou Barletta, who backed the law when he was mayor of
Hazleton, said the order shows the Third Circuit’s ruling directly
conflicted with the Supreme Court’s decision in the Arizona case.
“This is great news for the City of Hazleton and all municipalities in
cities and states trying to cope with the burden of illegal
immigration,” Barletta said. “This certainly is not good news for those
that support illegal immigration.”
Hazleton Mayor Joseph Yannuzzi said he was pleased by the decision.
“After this struggle for five years, we'll go back to the Third Circuit.
They'll review it. There’s not much of a decision they can make. I
think they’re obligated to go with the Supreme Court, but we'll see,”
But in two of three cases remanded for re-evaluation, the Third Circuit
upheld its original decision, said Vic Walczak, attorney for the
American Civil Liberties Union, one of the plaintiffs in the Hazleton
Walczak said Hazleton’s law, which applies to employers who hire
independent contractors or homeowners who hire someone to mow their
lawn, might be broader than the Arizona law.
Another provision of Hazleton’s law lets the city deny or revoke permits
to landlords who rent to illegal immigrants. While their permit is
suspended, landlords cannot collect rent from any tenant in the
building, according to the law. Landlords guilty of a second infraction
also pay fines of $250 a day.
Arizona’s law contains no similar provision, but Kobach said the Supreme
Court’s order also sets a high hurdle for plaintiffs challenging the
housing portion of the law at the rehearing.
“As long as a city or state traces the outline of a court order or
federal law, they're going to be OK,” said Kobach, adding that the
Supreme Court decision used the word “traces.”
During the trial of Hazleton’s law in March 2007 in U.S. District Court
in Scranton, Kobach compared the opening that federal law leaves for
cities and states in immigration to the eye of a needle. But if cities
and states thread the needle, they can enact immigration laws, he said.
U.S. Judge James Munley rejected that argument when nullifying
Hazleton’s law in July 2007, as did the Third Circuit in September 2010.
Munley and the Third Circuit decided that federal law pre-empted
Hazleton from passing an immigration law. Munley also said the
employment provisions of Hazleton’s law violated state law and the right
to due process, issues that the Third Circuit didn't rule on in the
first hearing but probably will in the second hearing, Walczak said.
Temple Law School Professor Peter Spiro said the Arizona decision
removes the Third Circuit’s original basis for voiding Hazleton's law.
“I think that there is a good chance that the Hazleton ordinance gets
revived in the wake of it,” said Spiro, who specializes in immigration
and constitutional law.
There might be alternative arguments for ruling against Hazleton, but Spiro thinks those arguments are weaker.
He said he doesn't think there's “much of a distinction” between the housing and employment provisions of the law.
“There may be more of a material distinction because Hazleton is a locality and Arizona a state,” Spiro said.
Victor Romero, a professor at Penn State University’s Dickinson School
of Law, said that he will be interested to see how the Third Circuit
interprets the Supreme Court's decision in the Arizona case.
Omar Jadwat, Walczak’s co-counsel for ACLU, said the Arizona decision
doesn’t alter the analysis of the housing provisions of Hazleton's law.
The Supreme Court’s decision to return the Hazleton case to the Third
Circuit was expected, given that Hazleton's law has an employment
provision, Jadwat said in an email.
“So now that the Court has given its views on how the Arizona law should
be analyzed; they have sent Hazleton back down to the appeals court so
that it can figure out whether (and how) the Whiting decision affects
the analysis,” Jadwat said.
Walczak said he thinks it is conceivable that after the Third Circuit
re-examines Hazleton's case, the case might someday reach the Supreme
Court “if for no other reason than the housing provisions.”
Barletta said the Third Circuit might take a year or more to hold hearing and issue a new decision in Hazleton's case.
While the Supreme Court kept alive Hazleton’s case, the court ends more cases than it prolongs, as Monday's orders indicate.
When issuing the order in the Hazleton case, the court on Monday decided
to hear just two other cases, but denied requests to hear or rehear a
list of cases that filled 11 pages.