By Kent Jackson
Standard-Speaker

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,” Yannuzzi said.
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 case.
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.