Villas at Parkside Partners v. City of Farmers Branch

may may years, Carthorne “only” 25 have received feel fortunate to months) (300 prison. I do not

years at all.

believe he is “fortunate” majori-

I from the respectfully dissent the error in

ty’s refusal to find this case

“plain.” PARTNERS, AT PARKSIDE

VILLAS Parkside;

doing as Villas at business Partners, at Parkside Lim

Lakeview

ited, doing business as Lakeview at

Parkside; Partners, Ritz Chateau do Ville;

ing business as Chateau De Smith,

Mary Plaintiffs-Appel Miller

lees

v. BRANCH, OF FARMERS CITY

TEXAS, Defendant-Appellant. Reyes; Garza; Ginger Alicia

Valentin

Edwards; Arias; Guadalupe Jose Garza, Plaintiffs-Appellees

Aide Branch,

City of Farmers Defendant-

Appellant. 10-10751.

No. of Appeals, States Court

Fifth Circuit.

July Prosecutors, gave Judges, concept? which Arc the Pendulum: rise the career offender Discretion, 994(h) the Exercise Yale L.J. (mandating U.S.C. "career (2008)? justice will better Or be accom- offender” as defined in the statute receive a plished by ratcheting up top ap- from sentence near the maximum at or term au- guideline propriate offender non-career out of thorized). congressional deference mandate Brewer, III,

William A. Esq., Charles Dunham (argued), Biles Esq., James Ste- Renard, phen Esq., Jack George Breffney Teman, Brewer, Dallas, TX, Biekel & Nina Perales (argued), Esq., Rebecca McNeill Silva, Couto da Esq., Mexican-American Legal Fund, Defense & Educational San Antonio, TX, Broiles, R. David Fort Worth, TX, Jadwat, Omar C. American Foundation, Civil Liberties Union Immi- grants’ Rights York, NY, Project, New Newell, Jennifer C. American Civil Liber- Foundation, ties Union Immigrants’ Rights Francisco, CA, Project, San Rebec- Robertson, Houston, ca L. Attorney, TX, for Plaintiffs-Appellees.

Peter Jung, Michael Strasburger & Price, L.L.P., Dallas, TX, Kris William (argued), Kobach Esq., Immigration Re- Institute, KS, form Law City, Kansas Defendant-Appellant. STEWART, Judge,

Before Chief REAVLEY, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, 3(D)(2). 1(D)(2); States.” Id. at Re- Judges.* Circuit popular “aroused conscious- sponding to an HIGGINSON, Judge, joined by Circuit ness,” Carr, Baker v. STEWART, Judge, Chief CARL E. (Frankfurt- (1962) 691, 7 L.Ed.2d 663 S.Ct. DAVIS, LESLIE H. W. EUGENE er, J., frustration at the dissenting), and SOUTHWICK, HAYNES, Circuit perceived of federal enforcement of lack Judges. law, sought Farmers Branch long story has a history been “America’s from “prevent” persons renting such story, complicat- immigrants.”1 That housing city. The district court in the exclusion,2 ed inclusion and history of concluded, alia, that the Ordinance inter law, con- according to but also unfolded was under law. preempted conflict parte Ex Kumezo Kawa- trary to law. See Partners, 701 Villas Parkside to, 73-74, 87 317 U.S. F.Supp.2d Because we hold that at 861. (the “a United States is L.Ed. 58 pen- the Ordinance’s criminal offense and life blood came from an country whose alty provisions judicial and its state review stream.”). Supreme As the immigrant process conflict with federal we AF- indeed, emphasized as a Court has —and FIRM the of the district judgment court. imperative country’s constitutional —a non-citizens within its bor- treatment of Branch, Texas, 1. Farmers Ordinance foreign affect relations. gravely ders can 2952 Davidowitz, 52, 62-68, v. Hines forth licensing pro- Ordinance 2952 sets (1941); 61 85 L.Ed. 581 Arizona — The visions and criminal sanctions. Ordi- States, U.S.-, v. 132 United requires nance to obtain li- individuals (2012) (“It 2492, 2498-99, 183 L.Ed.2d 351 apartment cense a rented occupying before foreign is con- fundamental that countries “single-family residence.” Ordinance status, safety, and securi- cerned about 3(B)(1). 1(B)(1); persons §§ For ty in the of their nationals United States not citizens declaring themselves or na- to confer and communicate must be able States, tionals of subject sovereign, with one national the United Farmers States.”). separate the 50 building inspector verify Branch’s must “with the whether the in The Ordinance at issue this ease and occupant lawfully present an alien in the passed by City the active citizens of the 1(D)(1); 3(D)(1). §§at United States.” Id. (“Farmers Branch”) Farmers Branch govern- Upon inquiry, such if the federal regulate seeks to non-citizens who reside occupant ment that the “reports” twice contrary States to law. United lawfully “not present Branch, Tex., Farmers States,” building inspector must (Jan. then 22, 2008), permanently enjoined by after occupant’s notify- revoke license Partners Villas at Parkside ing both and the Branch, Tex., occupant landlord. F.Supp.2d Farmers 3(D)(l)-(4). l(D)(l)-(4); §§ (N.D.Tex.2010). Id. at The Or- Branch Farmers provides “[a]ny dinance landlord or persons classifies these non-citizens as occupant deficiency has received a lawfully present “not the United who * Shklar, Judge BCing participate Citizenship: J. did not in this decision. See American Inclusion, (1991). Quest for 66,951 Fed.Reg. 1. Proclamation No. (Dec. 23, (Presidential 1991) speech com- memorating anniversary the hundredth of El- Island). lis ues, Texas, notice or a revocation notice seek id. at 5. In local police may judicial by filing review of the notice suit make arrests for Class C misdemeanors. against building inspector in a court of 14.01(b), See Tex.Code Crim. Proc. Ann. art. 14.06(a)-(b)(West competent jurisdiction 2011). County, Dallas 3(E)(1). 1(E)(1); Texas.” Id. at Supremacy II. Litigation Clause provisions pro- Ordinance’s criminal Intervening Court’s persons

hibit occupying from a rented Decision in Arizona v. United States apartment or single-family residence with- groups Two plaintiffs, 0 comprised of license, obtaining out first a valid id. at tenants, landlords and City, sued the seek 1(C)(1); 3(C)(1); 5, §§ making and a false ing enjoin the Ordinance. Villas at statement of fact on a application, license Parkside Partners v. Farmers 1(C)(2); 3(C)(2); Landlords, §§ id. at in of Branch, (N.D.Tex. F.Supp.2d 701 835 turn, prohibited renting apart- from an 2010). The district court found the Ordi single-family ment or residence without nance to be preempted under the Suprem obtaining occupants, licenses from the id. Clause, acy both as an improper regulation 1(C)(4); 3(C)(4); 5, §§ at failing to main- of “applies because it tain copies of licenses from all known occu- purposes classifications for 1(C)(5); 3(C)(5); 5, §§ pants, id. at failing not authorized or contemplated by federal provision stating include a lease law,” 860; id. at generally see v. occupancy by person a DeCanas without a valid Bica, 424 933, U.S. default, 1(C)(6); license constitutes id. at (1976), L.Ed.2d 43 3(C)(6); 5, and also as an obstacle allowing and occupant an to the “comprehensive federal” scheme for inhabit an apartment without a li- valid “removing aliens or cense, 1(C)(7); adjudicating their sta 3(C)(7); id. at If5. a land- purpose,” tus which the district lord commits the criminal offense know- “structured, court part, described as in ingly an permitting occupant to remain in allow federal permit discretion and to apartment or single-family residence appropriate circumstances legal adjust license, 1(C)(7); §§ without a valid at id. status,” ment in an alien’s 3(C)(7), id. at 860-61. then the building inspector shall granted district court therefore sum suspend the landlord’s rental license until mary judgment plaintiffs on their the landlord submits a sworn affidavit stat- Supremacy claim permanently Clause ing ended, occupancy id. at (D)(5)-(7). enjoined enforcement of the Ordinance. (D)(5)-(7); §§ A landlord Id. at 860-61. appeal suspension of a rental license to city 1(D)(8); §§ council. Id. at After a panel of our court affirmed the 3(D)(8). The Ordinance also criminalizes judgment, district court at Villas Parkside creating, possessing, selling distributing Branch, v. City Partners Farmers 1(C)(3), §§ counterfeit license. Id. at (5th Cir.2012), F.3d 3(C)(3), 5. Arizona, Court issued its decision 2492, comprehensively which These set seven offenses are crimi Class C forth why nal reasons punishable by misdemeanors a fine of conviction, preempted provisions various upon see Tex. Penal of Arizona $500 Code 12.41(3) (West 2009); law relating Ann. to non-citizens. That case State v. Cha con, 375, Supremacy 273 S.W.3d 377 n. 2 concerned a (Tex.App. challenge Clause 2008); 1(C); 3(C); 5, Ordinance 2952 at to various sections of an Arizona law a separate offense deemed committed known S.B. 1070 that was enacted with “ day each that a violation or contin- purpose ‘discouraging] occurs the stated accom- an obstacle to the law ‘stands as entry pres- unlawful deter[ring] the ” pur- of the full and execution plishment an offi- by “establishing] aliens’ ence of ” Id. objectives Congress.’ poses and through en- of ‘attrition policy cial state ” 399). Hines, 61 S.Ct. (citing 312 U.S. 2497; 132 S.Ct.

forcement.’ is a matter of a sufficient obstacle “What is Ari- Inter Tribal Council Arizona cf. zona, Inc., — by examining informed to be judgment, U.S.-, 133 S.Ct. identify- a whole and statute as (2013). The Ari- Court’s L.Ed.2d 239 intended effects.” Id. purpose its today. our decision instructs zona decision Foreign Trade Crosby v. Nat’l (quoting provides Supremacy Clause Council, supreme be the law “shall that federal (2000)). preemption In 147 L.Ed.2d 352 every Land; Judges in and the Law of the po- “assume that ‘the historic analysis, we thereby, any Thing State shall be bound supersed- States’ are not lice powers any State to or Laws of the Constitution clear and manifest that was the ed ‘unless notwithstanding.” Contrary ” Rice, (quoting purpose Congress.’ Const, VI, in Arizona cl. 2. The Court art. 1146). 230, at 67 S.Ct. U.S. of an ex in the absence that reiterated a state or local provision, press preemption of Review III. Standard “give way to feder may required law be Generally, we review a district two circumstances: al law” under least injunction for grant permanent of a court’s Arizona, preemption. field and conflict Corp. discretion. Peaches Enter. abuse of First, states and locali at 2501.3 132 S.Ct. Assocs., Inc., 62 F.3d Repertoire v. Enter. conduct in a field “regulat[e] ties Cir.1995). (5th However, 690, we re acting proper within its Congress, that issue” in this case—the view the “ultimate regulat must be authority, has determined summary grant judg district court’s Id. “The by governance.” its exclusive ed grounds novo. preemption ment on —de altogether can state law displace intent to Dallas, 607, 460 F.3d LLC v. VRC regula inferred from a framework (5th Cir.2006); Baker v. Farmers Elec. no Congress ... that left pervasive tion ‘so Cir.1994). (5th Inc., 274, 278 Coop., 34 F.3d it’ or supplement room for the States so a ‘federal interest where there is Preemption Conflict IV. system will be that the federal dominant enforcement of We conclude that of state preclude enforcement assumed with federal law. the Ordinance conflicts ” (alterations subject.’ the same

laws on Arizona, 132 S.Ct. at 2501. Conflict See Ele Rice v. Santa Fe original) (quoting argument despite Farmers Branch’s exists 230, 67 S.Ct. Corp., 331 U.S. vator establishes “concurrent that its Ordinance (1947)). 1146, 91 L.Ed. 1447 of federal enforcement” Second, hardly and local laws are a common end state fact of “[t]he they conflicting Crosby, conflict with feder- means.” preempted “when neutralizes 379, 120 By setting where 2288. includes cases 530 U.S. at al law.” Id. “This “discourage and forth criminal offenses with both federal state ‘compliance or otherwise reinforce illegal immigration regulations physical impossibility,’ is a law,” by providing federal challenged those instances where argue Congress may plaintiffs do not with- is no doubt that 3. "There specified powers by any provision from the States expressly preempted draw containing express pre- enacting a statute law. 2500-01, here, provision,” id. at but emption judicial for state review of a non-citizen’s Ordinance pmbl. As the Supreme cautioned, however, presence, lawful or unlawful the Ordinance Court “conflict is separate creates such conflict. Ordinance 2952 at imminent” when “two remedies 1(C); 1(E); 3(C); 3(E); are brought to bear on the same activity.” Crosby, 530 120 S.Ct. 2288 A. Criminal Offense Provisions Indus, (quoting Dep’t Wisconsin v. Gould, Inc., Arizona, Applying we hold Farmers (1986)). Here, 89 L.Ed.2d 223 “ex Branch’s establishment of new criminal of amining federal statute as a whole and housing fenses based on the of non-citizens identifying its purpose and intended ef “disrupts] [immigration] fects,” we conclude that the Ordinance framework,” 132 S.Ct. at stands as an obstacle to “the accomplish by interfering both with federal anti-har ment and execution of the purposes full and, boring allowing state officers to objectives” Congress. See id. at custody possible aliens in un “hold[ ] 373, 120 2288.4 presence lawful without federal direction (“The Id.; supervision.” id. at 2499 of. It is a felony per dynamic nature of relations with other son, “knowing or in reckless disregard of requires countries the Executive Branch to to, entered, the fact that an alien has come ensure that [immigration] pol enforcement or remains in the United States in viola icies are consistent with this Nation’s for law,” “conceal[], harbor[], tion of eign policy.”); see also Latino Alli Ga. from detection ... such shield[ ] alien Rights Georgia, ance Human any place, including any building.” (11th Cir.2012), F.3d 1250 reh’g en banc 1324(a)(l)(A)(iii). § U.S.C. In enacting denied, (11th 27, No. 11-13044 Cir. Nov. provision, Congress this “intended to 2012); Alabama, United States v. 691 F.3d broadly proscribe any knowing or willful (11th Cir.2012), denied, cert. fairly conduct within of these terms -, 133 S.Ct. 185 L.Ed.2d 905 substantially tends to facilitate an (2013) (No. 12-884). remaining alien’s the United ille States gally----” United States v. Rubio-Gonza Applying 1. Offenses to Landlords lez, (5th Cir.1982). 1067, 1073 674 F.2d n. 5 Farmers Branch claims end, its Ordinance To that interpreted we have the statu concurrently will enforce federal anti-har- “harbor, shield, tory phrase or conceal” to boring by providing “a different mech- imply that “something being hidden against anism the same ... conduct” from detection.” United States v. Varko (5th by Cir.1981).5 government. criminalized the federal nyi, 645 F.2d 453 459 dissenting opinion’s 4. The preempted, assertion that Ordinance is conflict without rejected analysis Court reaching this in DeCa preemption. field The Court in De- nas, preemp confuses the field and conflict explicitly Canas based its decision on field inquiries. tion The Court in DeCanas noted preemption grounds ques- and remanded the then-exemption employment § 1324’s preemption. tion of conflict See at 360 n. id. "harboring” from the definition of was insuf (noting § 96 S.Ct. 933 1324 and other Congress ficient to conclude that intended to statutory provisions” "cited would be "rele- occupy employment the field of non-citizen analysis vant on remand of actual or pre-empt regula and therefore "to all potential [the conflicts between California tion” in that area. 424 U.S. at 360 & n. law.”). provision] and federal can, providing by S.Ct. 933. While shelter contrast, harboring harboring § requires constitute under 5. We have held that mak- Cantu, illegal presence see United States v. 557 F.2d a non-citizen’s in the (5th 1977), “substantially Cir. we conclude that United States easier or less dif- (or have immediately provide provided) provisions, criminal The Ordinance’s record of with a written contrast, Attorney that a landlord General require do (if any) a renter’s recklessly disregard telephone number an address and know that a landlord contacted.”); nor violation of federal see alien be at which the from detec- presence the renter’s shield Arizona, Farmers at 2504.6 also tion, removal potential adjudication, non- renting prohibition Branch’s Ordinance government. contrary to law thus not here citizens 3(C)(7). Instead, 1(C)(7); §§ 2952 at facilitate, goal obstructs the but fails mere a landlord’s criminalizes non-citizens removable bringing potentially to a non-citizen apartment of an renting authorities.7 of the federal to the attention lawfully present to be “not found features of 8 U.S.C. additional Several 1(C)(7), 1(D)(4); Id. at States.” illustrate this conflict.8 § 1324 further rule, 3(D)(4). 3(C)(7), it is general “As a First, retains sole government alien to re- for a removable not a crime prosecute, the statute to authority under Ari- States.” present main in the United convict, The stat- sentence offenders. zona, who at 2505. Persons one role: to make grants state officers ute are not nec- remain here while removable fed- proscribed violations of the arrests for fact, detection; in essarily evading federal 1324(c). § crimes. 8 U.S.C. eral a non- only contemplates federal law not categorized grant in Arizona States residence in the United citizen’s 1324(c) § one of several authority under but also re- potential deportation, until in which limited circumstances” “specific provide non-citizen to reliable quires the “per- law allows state officers guar- address to the federal of an offi- form the functions process. the removal See speed antee and General’s subject Attorney ... cer 1229(a)(l)(F)(I) (during remov- 8 U.S.C. under 8 U.S.C. supervision” direction and written notice “shall proceedings, al at 2506. 1357(g)(3). ... specifying to the alien given person Second, criminal to show that that the alien must requirement [t]he Shum, 390, immigration of law tion in the enforcement States v. 496 F.3d ficult." United see, Cir.2007); (5th e.g., United States v. immediate human concerns.... 392 embraces 368, (5th Hinojos-Mendez, Fed.Appx. country may 270 369 Returning be an alien to his own Cir.2008) (acting apartment as a lookout at an inappropriate even where he has deemed Shum, (providing complex); 496 at 390 F.3d fails to a removable offense or committed failing file social false identifications and to admission.”). meet the criteria for employees); security paperwork for Ramirez, 80, (5th Fed.Appx. v. 250 83 States ("Congress's Whiting, 131 S.Ct. at 1986 7. Cf. Cir.2007) (barring bedroom officers from authorizing development objective of in hiding, pro- where non-citizens were reliability employ- E-Verify in was to ensure viding including with necessities non-citizens verification, coun- authorization combat ment shelter, prevent attempting and food and documents, identity protect terfeiting officers); by probation being their discovered requirement privacy. Arizona’s employee (instructing Varkonyi, immi- 645 F.2d 453 operating borders employers within its that detection, interfer- grant employees to avoid way achieving E-Verify in use no obstructs agents, helping ing with federal one non- aims.”). those Cantu, escape custody); F.2d citizen from 557 (instructing employees to act like at 1180 Arizona, (A "[cjonflict at 2505 8. See 132 S.Ct. arrest). they could evade customers so fully disruptive technique to the in can be as course, Congress as a in overt system enacted conflict every will in remov- not case end 6.Of (internal quotation and cita- policy.”) marks immigration our al. is built into Discretion omitted). Arizona, ("Discre- system. tion 132 S.Ct. at 2499

531 occurred, removable,” Arizona, prosecution violation has “the 2506, 132 S.Ct. at in prove” must federal court “that importance reinforce the of the federal alien, transported who is or harbored government’s supervisory role over the defendant, to, entered, ‘has come contexts, limited including harboring, remains in the in United States violation of where the Attorney General delegated law,’” Esparza, United States v. 882 authority arrest to state officers. Id. We (5th Cir.1989) 143, F.2d (quoting 145 Unit- that, by conclude criminalizing conduct Rivera, 1204, ed States v. 859 F.2d 1209 that does not have the effect of evading (4th Cir.1988)), using statutorily limited detection, giving state offi- categories prima evidence: “rec- facie authority cials to act offi- any judicial ords of pro- or administrative cers outside the “limited circumstances” ceeding,” “official records of the [USCIS] specified law, by federal the State,” or of Department “testi- with the careful balance “interfere^ mony by officer,” an immigration 8 U.S.C. by Congress” struck respect 1324(b)(3); Arizona, § 132 cf. harboring of contrary non-citizens here (“Arizona provide could also officers law. 2505-06; See 132 S.Ct. at with a containing nonexclusive list forms of Crosby, see also 530 U.S. at 2(B) § identification sufficient under 2288; Constr., Odebrecht Inc. v. Sec’y, Fla. dispel any suspicion pres- of unlawful Dep’t Transp., 715 F.3d 1282-83 ence.”) (Alito, J., concurring part and (11th Cir.2013).9 held, dissenting part). haveWe for the purpose proving analogous crime of Applying 2. Offenses to Non- transporting non-citizens, certain Citizen Renters aliens’ status is an “[t]he element of the purpose Another stated of the Ordinance crime.” United States v. Alvarado-Ma- was to “aid in enforcement” of the (5th [the] chado, Cir.1989). 867 F.2d providing law “significant Ordinance’s complexities involved —in enforcing words—that “certain includ- aliens not lawfully ing the determination whether person present in the United States are eligi- 9. Other courts preempted also have found state anti- South Carolina law harboring provisions preempted by creating fed- harboring, state crimes for both re- themselves); eral law. See Ga. Latino lating Alliance Human to harborers and aliens (11th Rights Georgia, 10-1061, Whiting, F.3d Valle del Sol v. No. Cir.) (D.Ariz. (holding 2012) preempted Georgia Sept. (enjoin- WL 8021265 aliens), criminalizing harboring for, reh’g creating Arizona law state crimes denied, (11th alia, en banc No. 11-13044 transporting harboring Cir. Nov. inter and aliens 27, 2012); Alabama, 1324). United preempted by § States v. 691 F.3d The Eleventh Cir- (11th Cir.2012), held, here, 1269 cert. denied failing 569 U.S. cuit as we do that to limit -, 2022, 133 harboring activity 185 L.Ed.2d facilitating 905 to evasion from (No. 12-884) (holding § preempted that 1324 expan- federal authorities was an "untenable criminalizing concealing Alabama law harboring provision.” or har sion the federal Ala- bama, boring unlawfully present an alien and enter City 691 F.3d at 1288. But see Keller v. Fremont, 12-1702, ing agreement 931, into a rental with an unlawful No. 719 F.3d 2013 alien); Hazleton, (8th 28, ly present 2013) (holding WL 3242111 Cir. June Lozano 170, (3d Cir.) (holding 620 F.3d 223 prohibiting that a local ordinance rental hous- preempted § prohibit- 1324 illegal local ordinance preempted aliens was not field aliens), ing renting housing to cert. and did not conflict with the federal removal granted grounds,-U.S. and vacated process, specified on other and where the ordinance it -, 2958, (2011); prohibit 131 S.Ct. 180 L.Ed.2d "expressly permitted 243 did not conduct Carolina, law,” United States v. South 906 federal did not conflict with federal 463, (D.S.C.2012) law). F.Supp.2d (holding anti-harboring 467-68 con- bene- in DeCanas noted California’s public and local for certain State

ble fits, including licenses.” Ordinance that if its aliens with cession law reached seq.) § 1621 et (citing pmbl. U.S.C. authorization but without law- employment occupying an Branch criminalizes Farmers status, facially it would unconstitu- ful with- single-family or residence apartment DeCanas, at 96 S.Ct. tional. U.S. li- occupancy obtaining first a valid out case, In this Farmers Branch’s Ordi- 1(C)(1); §§ cense. Ordinance may who not nance reaches non-citizens 3(C)(3); provi- But the criminal 5.10 unlike ex- lawful status but face no federal have upheld laws employment sions housing, exposes clusion from rental and only Whiting, applied and DeCanas which arrests, detentions, to non-citizens those Govern- whom the Federal “to individuals Farmers prosecutions based on and already cannot work ment has declared pres- Branch’s assessment of “unlawful DeCanas, 424 at country,” only criminal- ence.” The Ordinance not 933; Whiting, see also 131 S.Ct. occupancy of a apartment izes rented the Arizona law (specifying residence, single-family puts but local offi- precise definition of adopted ar- impermissible position cials in the alien” under 8 U.S.C. “unauthorized resting persons based on detaining 1324a(h)(3)), predicates the Ordinance their status without federal arrests, detentions, prosecutions based supervision. direction See ability to obtain on a classification—the at 2505. 132 S.Ct. housing does not exist under rental —that Branch argues Farmers that the build- anywhere in federal law.11 1621 or else Doe, inquiry ing inspector’s presence” 212 n. “unlawful Plyler v. Cf. (1982) (“[I]f 2382, 72 inquiries L.Ed.2d 786 different from “made is no those government by uniform the federal daily of local governments hundreds ap- prescribed rule what it believes to be immi- government to ascertain for the treatment of propriate standards qualifications grants’ status and for bene- subclass, may, an alien the States ranging from housing fits assistance direction.”). course, follow the federal disability student loans to medical care and however, instances, In those income.” remanding the conflict Significantly, court, inquiry out preemption specific to the state has set noted, present previously occupancy mitting” license occu- 10. As an tense —such —in building inspec- only pancy. be revoked Id. A license valid after it is after is not ascertains, revoked, making inquiry "permit[ ongoing tor after twice nor can it occu- ]” government, occupant pancy. assuming, arguendo, a li- that "the Even granted lawfully present preliminaiy applica- who is after an alien cense revocation, dissenting States.” tion is valid until 1(D)(2),(4); 3(D)(2),(4). dissenting re- opinion's interpretation strained would rewriting language opinion applying quire asserts that after offense’s license, receiving occupancy moving apartment a renter criminalize into an obtaining liability protected from even if the without first a valid license. criminal it a license is revoked. The Ordinance makes also, an criminal offense for a renter to "be occu- Notably, regula- implementing 11. [single apart- pant family a or of residence Congress's E-Verify employment tions for occupan- obtaining without first a valid system employees ment] verification to contest allow cy occupy permitting person finding, taking license to employers and forbid from a against employee that” residence. action while a adverse 3(C)(1). 1(C)(1); pending. Programs refers to an The offense resolution is Pilot final condition; Confirmation, ongoing "be[ing] occupant” Employment Eligibility an 48,309, 48,312-13 15, 1997). obtaining "per- Fed.Reg. (Sept. without first a valid license carefully categories calibrated of non- under Immigration and Nationality See, Act”). qualify citizens who for such benefits. 1641(b) § e.g., (defining “qualified 8 U.S.C. provides While federal law carefully cali-

alien,” purpose conditioning for the of fed- brated definitions of the term “qualified eral, state, benefits, public and local as a alien” for purpose conferring bene- member of one of seven enumerated fits, the Ordinance specify does not which classes, or “an alien who been has battered of many federal immigration classifications subjected extremely cruelty” by a Farmers Branch officials would use to re- member); Act, household REAL ID solve whether a non-citizen “lawfully was 109-13, Pub.L. No. 119 Stat. present.” The Ordinance’s “generality 202(c)(2)(B) 11, 2005) § (May (conditioning stands at odds with the federal discrete- grant of state identification such as Crosby, ness.” 530 U.S. at driver’s on an applicant’s licenses member- 2288; Odebrecht, see also 715 F.3d at ship in one eight enumerated classes of (finding 1281-82 that a state law “squarely status); immigration § 8 C.F.R. 274a.l2 conflicts with the more nuanced federal (setting specific forth the “[classes regime” because “in stark contrast to the accept employment” aliens authorized to federal regime, penalizes [the law] pursuant to federal regula- statutes and ifs, buts.”). ands, or [conduct] In- —no tions); Definition of Lawfully the Term deed, because law does not limit Present in the Purposes United States for the ability of non-citizens to obtain rental of Applying for Title II Benefits Under housing,12there is no definition that would 401(b)(2) 104-193, Section Law Public applicable to Farmers Branch’s inqui- 1996) (defin- 47,039 61 Fed.Reg. (Sept. ry.13 ing a “lawfully present” non-citizen as fall- While Farmers Branch officials testified ing under one of five particular immigra- that they intended to classifications, use the federal tion providing program SAVE presence pres- definition of lawful determine lawful “is made sole- ence, ly for the chief of purpose program determining an alien’s testified eligibility payment II can provide only title social SAVE a non-citizen’s security status; specific immigration benefits and is not intended to it “does not any immigration confer status or benefit presence answer lawful or not.”14 Farm- 1621(c)(1)(B) § (limiting 8 U.S.C. inquiry ac- on an to administrative entities that Cf. status, "public housing” cess to provide only or assisted for non- immigration a renter’s criteria). citizens who do not meet certain not a conclusive determination of lawful or presence. unlawful dissenting opinion perceives 13. The an incon- sistency harboring with the Responsibility statute where 14.See also of Certain Entities obligates none Notify Immigration exists. Section 1324 the feder- and Naturalization government prove al Any that a non-citizen Entity Service of Alien Who the "Knows” to, entered, States, "come or remains in the Lawfully Is Not Present the United 58,301, 58, States Fed.Reg. 2000) violation of law.” (Sept. U.S.C. 1324(a)(l)(A)(iii). ("A Proving response this violation be- showing no [SAVE] Service rec- yond require proof reasonable doubt immigration ord on an individual or an status status, beyond making non-citizen’s ineligible the individual for a benefit adjudicative proceeding such as records of an finding is not a of fact or conclusion of law testimony or the of an lawfully present.”). officer. 8 that the individual is not 1324(a)(l)(A)(iii). U.S.C. Contrary Similarly, states in its brief as assertion, dissenting opinion’s Farmers provide amicus curiae that SAVE does not Branch independent, cannot erect a concurrent binary criminal determination of an indi- judicial and regime state enforcement presence.” based vidual's "lawful bring officers to allowed state testified Section 6 building inspector ers Branch’s authori- attention of federal gov- persons to the federal inquiry an that because action, whereas the Ordi- applicant’s further reveal ties for ernment would status, prose- would “have he himself local authorities immigration nance allows for whether perceived [of that determination on to make well as arrest based cute as Arizona, lawfully present.” Con- applicant is] presence. unlawful Cf. reg- and of statutes sidering labyrinth Arizona statute (noting that the at 2516 of non- the classification governing ulations contemplated arrests but authorized state citizens, necessity over 260 and lead on what to “following] their [federal] individual judges to oversee immigration next”) (Scalia, J., part in and concurring do however, cases, that the unsurprising it is (highlight- at 2517 dissenting part); in id. confusedly dis- inspector also building them entitled to arrest ing that “Arizona is capacity, stating adjudicatory that claimed bring them to federal officials’ and at least will presence] lawful that: decision of “[the attention, necessarily is all that which give us the infor- people with the rest (In view, go State can my entails. what that it have told us mation that this, punish them further than status is.” in Ari- entry presence their unlawful zona.)”) (Scalia, J., part in concurring on a classification does

Based (“[T]he at 2527 dissenting part); in id. in Farmers Branch has exist the discretion Federal Government retains occupancy of rental hous- criminalized is, the discretion matters most—that found to be “not ing by those non-citizens cases”; in particular to enforce the law lawfully Ordinance present.” decides, presum- 1(C)(1); 3(C)(3); “the Federal Government law allows 5. Texas ably priorities, enforcement detain individu- based on its local officers to arrest and or person Texas to have the released als for C misdemeanors. whether Class (Alito, 14.06; 14.01; custody.”) Proc. art. 15.17. transferred to Code Crim. J., in part dissenting concurring invali- Supreme Court Arizona part). (“Section 6”) provision a state law dated “without a war- allowing state officers to law does allow state Although federal person Attorney rant ... arrest a if the officer has with the “cooperate officers to person] identification, cause to believe probable [the apprehension, in the General any public detention, has committed offense that lawfully aliens not or removal of from the United States,” makes removable [him] 8 U.S.C. present Arizona, 132 at 2505. The States.” 1357(g)(10)(B), Court held that Section 6 “violates the that “unilateral state action to detain” held en- principle process that the removal understanding goes beyond any “coherent government” by al- trusted to “cooperation” under federal of the term” authorities to arrest and de- lowing state (providing at 2507 law. status without tain based “cooperation” “participating as examples of supervision.” federal “direction and prior officers, force with federal joint in a task local puts Id. at 2506-07. The Ordinance executing operational support providing impermissible position. officers in this warrant, allowing held in gain access to detainees officials Indeed, Farmers Branch’s facilities.”). conveys The Ordinance state more interference with federal authorizes authority unilateral prosecute such arrest-only au- law than did the Arizona Allowing state offi- well as to detain. thority invalidated As dis- Court. they whom to arrest an individual senting emphasized, Justices in Arizona cers lawfully present immigration believe to be not “would Branch’s inquiry. status See 3(C).15 1(C); §§ Ordinance 2952 at immigra- the State to achieve its own allow policy” “unnecessary tion and could be Supreme Court clarified that “it ... harassment of some aliens whom fed- disrupt would the federal framework to eral officials determine should not be re- put position state offices in the of holding moved.” Id. at 2506. aliens in custody possible unlawful presence without federal direction and su- The Ordinance is from distinguishable Arizona, pervision.” 132 S.Ct. at 2509. the section upheld by of the Arizona law argues Farmers Branch that the Ordi- Court, which allows state officers to nance entirely relies on the federal deter- attempt make a “reasonable to deter- mination of lawful or unlawful presence. the immigration any person mine status of But even a determinative federal answer detain, they stop, or arrest on some other question which, on this as explained — if legitimate suspicion basis reasonable ex- above, would impossible to obtain— person ists that is an alien and is would not bring the Ordinance’s arrest unlawfully present States.” procedures compliance into with federal Id. at 2507. upheld provi- The Court that law. “The statutory federal structure in- law, sion after that finding on its structs when it is appropriate to arrest an face, require prolong did not officers to alien during process.” removal Id. at purpose detention for the an conducting warrant, 2505. Without a federal federal immigration status check. Id. at 2509. officers have even more limited authority Ordinance, contrast, Farmers Branch’s to arrest. (citing at 2506 8 U.S.C. arrests, detentions, allows for prosecu- 1357(a)). § The Ordinance’s pro- criminal predicated occupant’s tions on an failure to visions exist statutory outside this struc- license, obtain a rental and the reasons, denial of ture.16 For these we conclude such a license is in turn based on Farmers the Ordinance’s criminal provisions, dissenting opinion prosecu- 15. The deficiency by seeking judicial states that notice review of question tion of both occupant renters landlords under the "the of whether the is law- licensing fully present Ordinance would rest violation of in the United States.” Id. at 1(E)(1), (3); 3(E)(1), (3). note, also, provisions, immigration §§ rather than the status We of the renter. This is a distinction without Court has used the state Odebrecht, 1324(c) authority granted difference. See at 1283- arrest F.3d as a (finding “purported "limited in which ] the state’s distinction’’ state offi- circumstance[ may perform punishing between cers a false statement rather functions of an immi- gration supervision. officer” "unpersua- than the "conduct under itself” to be Arizona, sive.”). 132 S.Ct. at 2506. This is ”be[ing] The Ordinance so because criminalizes significant complexities occupant ”[t]here involved single an of a leased or rented fami- enforcing includ- ly apartment] residence [or without first ob- person the determination whether a taining occupancy permitting a valid license removable,” persons that exist even where person occupy single family resi- prosecuted themselves are not for removabili- apartment],” "knowingly per- dence [or ty per se. Id. mitting] occupant occupy apartment an single family [or residence] without a valid license,” occupancy residential allowing 16. As the Court noted in 1(C)(1), 1(C)(7); 3(C)(1), 3(C)(7). §§ 2952 at state officers to make warrantless arrests occupancy give An greater license is revoked based on a would "even those officers au- finding occupant’s presence. thority possible unlawful to arrest aliens on the basis of 1(D)(4); 3(D)(4). removability Congress given Id. at link This is made than doubly apparent by the fact that the Ordi- trained officers.” 1226(a), occupants (citing nance allows landlords S.Ct. at 2506 8 U.S.C. (c)(1)). challenge a license revocation or a license lawfully present federal law. with federal anti-har- under Id. they conflict because authority status, the federal law and But a boring non-citizen’s un- persons possible arrest and detain may in proceedings, even federal not con- preempted by are federal presence, lawful clusively lawful or determine unlawful law. presence. Supreme the Court has made Whereas Review B. Judicial State “significant complexi clear that there are provides “[a]ny Ordinance also that The [making] ties in the determi involved occupant who has received a landlord or removable,” person nation whether a is a deficiency notice or revocation notice and the is “entrusted to the decision dis by may review the notice judicial seek Government,” cretion of the Federal Ari building inspector the in

filing against suit zona, 2506; Plyler, at see also jurisdiction competent in Dallas court of (Blackmun, 457 U.S. at 102 S.Ct. 2382 at County, Texas.” Ordinance 2952 J., (“[T]he concurring) structure of the im- 3(E)(1). 1(E)(1); §§ A or occu- landlord migration impossible makes it statutes pant may judicial review of two seek state the State which to determine aliens first, the questions: building whether in- residence, eventually entitled to and which law, second, spector with the complied will be the Ordinance deported”), allows occupant lawfully the is present “whether legality of 1(E)(3); state courts to assess the a non- §§ in the United States.” 3(E)(3). the question, presence “preclusive” In a suit over latter citizen’s absent the that “that question determination, Ordinance indicates the opening federal door to under shall be determined federal law” conflicting rulings and federal state by and “the court shall bound [state] question. immigra- conclusive determination of judicial The in provision review this case by government,” tion status distinguishable upheld from with a “conclusive determination” defined Whiting, even though Court which, law, as one under “would be they both give the federal determination a given effect on preclusive question.” presumption accuracy. rebuttable 3(E)(4). 1(E)(4); §§ Id. at 7; Whiting, n. 131 S.Ct. at 1981 Ordinance alone, however, The federal 3(E)(5). 1(E)(5); §§ 2952 at Crucially, as classify power non-citizens. the Supreme emphasized, the law in 2506; DeCanas, 132 S.Ct. Whiting that “a state specified court 933; U.S. at 8 U.S.C. determination,” ‘only’ consider 1229a(a)(3). Although, as crimi- with its meaning that the state could “establish provisions, nal enforcement the Ordinance apart unlawful from the status federal de- question indicates a non-citi- Whiting, termination.” 131 S.Ct. at 1981 presence unlawful zen’s lawful or shall be presumption given n. 7. rebuttable law,” “determined under federal it none- in Whiting, federal determination theless leaves determination noted, operated only give the Court “an hands of state courts. Ordinance 2952 at employer a chance to show that it did not 3(E)(4). 1(E)(4); pro- law,” break the a narrow mechanism vides that a determination of a with no counterpart Farmers Branch’s binds the if only

non-citizen’s status court Here, n. 7. Ordinance. 131 S.Ct. at 1981 words, it other is “conclusive”—in accord- similarly if, Ordinance does not confine Ordinance, under federal the state to the federal preclusive court determina- given it “would be effect on tion, providing only of whether the state court question” occupant Comm’n, must be bound federal determinations Corp. Co. v. Ref. having “preclusive effect.” Ordinance 234-35, (1932); 76 L.Ed. 1062 3(E)(4). 1(E)(4); Furthermore, §§ 2952 at Arizona, 132 S.Ct. at 2505 (invalidating Whiting the relevant determination in Arizona law seeking to achieve federal de on singular statutory turned a defi- goal terrence because of “a conflict in the nition: legal whether the alien has “the enforcement”). of method This restraint right or authorization under federal law to necessary elements, because these along work in the United States as described in with other interdependent requirements, 1324a(h)(3),” § 8 U.S.C. Ariz.Rev.Stat. notably that the Ordinance imple “shall be (2008). turn, §Ann. 23-211 In the statute mented in a fully manner consistent with defines such an alien “lawfully admitted law regulating immigration and permanent having residence” or re- protecting citizens, the civil rights of all ceived work authorization from the federal nationals, aliens,” and Ordinance 2952 at 1324a(h)(3). government. 8 U.S.C. 1(F); 3(F), §§ as well as its explicit, pro Those determinations do not involve the spective-only effective date tied to the in discretion variability inherent in a de- stant federal litigation, constitutional id. termination of whether an alien is “lawful- 7,§ create provisions that “are connected ly present in the United States.” See Or- subject-matter, dependent on each oth 3(E)(4). 1(E)(4); dinance 2952 at er, operating together for the same pur reasons, For these we hold because Rose, pose.” 844; See 801 S.W.2d at see power classify non-citizens is re- Tex., also Nat’l Fed. the Blind Inc. v. exclusively served govern- Abbott, (5th Cir.2011) 647 F.3d ment, the judicial review section of the (explaining that the severability of uncon preempted by Ordinance also is provisions stitutional aof state enactment 1229a(a)(3) law. See 8 (setting U.S.C. law). question is a of state out the “sole and procedure exclusive dissenting opinion describes Or- determining whether an alien be ad- merely dinance as “licensing-based regu- a or, mitted to the United States if the alien latory program” “pri- and asserts that its admitted, has been so removed from the mary purpose licensing is to effectuate States”).17

apartment single family rentals under Severability V. the supervision of the building inspector.” The idea that the primarily Ordinance is Because Ordinance lacks func designed promote licensing civil tional coherence without its criminal of scheme is only by contradicted not penalty provisions, fense and as well as Ordinance’s criminal enforcement appara- without its overarching judicial review pro tus, cess, supra, see but the Ordinance’s we decline to apply general sev explicit reference to erability federal criminal anti- clause to revise and leave intact harboring any remaining parts pmbl., of the Ordinance. See Hosp., Rose v. Doctors Farmers S.W.2d Branch’s consistent emphasis (Tex.1990); see generally Champlin the Ordinance’s “concurrent enforcement” below, 17. Because our judgment conclusion is based on a find affirm the we decline to preemption, of conflict issue, we need not reach speak preemption separate to field aas question preemption. of field Ode foreign power or to.... address[ ] the affairs Cf. Constr., Sec’y, brecht Dep’t Inc. v. Fla. Clause.”) Foreign or the dormant Commerce (11th Transp., 715 F.3d 1287 n. 7 Cir. (quoting Crosby, 530 U.S. at 2013) ("Because our conclusion that the state 2288). Act conflicts with federal law is sufficient to status, law,”18 A ence. verification of criminal “federal however, above, blunt exclusion- does nec- by City officials’ as discussed City essarily ary presence. record. determine lawful And statements admitted, contrary to unhesitatingly has Branch could assuming even Farmers ob- characterization, determination, dissenting opinion’s tain such it would serve purpose prevent “is to that the Ordinance’s purpose no without the Ordinance’s crimi- lawfully present in the United aliens not provisions. nal and civil enforcement See renting housing Rose, States from (severing 801 S.W.2d at 844 uncon- “discourag[e] Branch” and to Farmers only an Ordinance portions stitutional of unlawfully remaining in such aliens from of “capable being where the remainder is As one States.” Council the United apparent with the executed in accordance testified, try its “aim ... was to member intent, legislative wholly independent of make it more difficult individuals That rejected.”). that which leaves was country illegally who are in this to reside provi- the enforcement Ordinance’s civil in Branch.” Farmers dissenting opinion sion. The asserts that “hopes” Farmers Branch that civil enforce-

Furthermore, removing the Ordinance’s ment will and prompt landlords renters to review, offense, judicial penal- criminal and “generally” provisions, with its comply and ty only would leave three sub- provisions19 “make other housing non-citizens licensing, immigration stantive sections: only choices.” But the civil Ordinance’s verification, and enforcement. status Un- suspension of a enforcement which, licenses, like driver’s as the dissent- mechanism — premised landlord’s both on the license—is notes, promote safety ing opinion “road having landlord committed an offense un- insurance,” and vehicle rental licenses—as 1(C)(7) 3(C)(7), §§ der see Ordinance supporters ad- Ordinance’s themselves 3(D)(5), (7), 1(D)(5), (7); §§ 2952 at and any independent mit—do not confer bene- judicial (As appealable only through the review city fit. council Scott member Tim process preempted, to be testified, that we hold see “I don’t think that there’s a ne- 3(E)(1).20 1(E)(1); Thus, §§ id. at we con- benefit from having cessitated a license neutral.”). Instead, provisions clude the Ordinance’s ... kind of it’s benefit “essentially inseparably in so and connected purpose their the Ordinance’s scheme is that, consequences despite presence revo- substance” limited their clause, finding pres- they on a are not severability cation based unlawful severa- dissenting opinion 18. Farmers Branch's insistence that the Ordi- 20.The concludes that cer- portions judicial tain of the Ordinance's re- concurrently enforces nance federal criminal provisions view are also severable. Even ex- describing it before the court as district law — however, cising portions, these the Ordinance “clearly proscrib[ing] [as same conduct language "answering left with the 1324], harboring knowingly an unautho- question” occupant “the is law- whether apartment building”; rized alien in "a differ- fully present in the United States against proscribed ent mechanism the same by any court shall be bound determination of conduct; crime”; and "rein- [as the] govern- immigration by the federal status forc[ing] immigration the federal criminal 1(E)(4); ment.” 2952 at against harboring” goes unmentioned — 3(E)(4). above, however, a As set out deter- dissent. mination status from the fed- necessarily eral does answer penalty provision applies only 19. The after a question presence, of lawful Ordi- person is convicted under one the Ordi- nance without would leave state courts reme- nance's enumerated criminal Id. at offenses. dy conclusively if status did not § 5. question. answer the Rose, what preempts Texas law. See 801 fairs Farmers Branch has ble under at 844. done. S.W.2d The Constitution unites the states to

VI. Conclusion good better serve the common protect rights. of- revered Because Ordinance’s criminal — States, U.S.-, penalty provisions and its state Arizona v. fense and (2012), judicial process review conflict with L.Ed.2d 351 judgment applied we AFFIRM the giving Constitution as exclusive district court. effect to national control of immigration foreign Judges affairs. approve who

REAVLEY, Judge, joined Circuit any part of this ordinance evade that na- GRAVES, Judge, concurring Circuit authority. They tional by treating do so it judgment: housing regulation as mere by ignor- purpose its and effect: the exclusion requires Farmers Branch owners of res- the city Latinos from of Farmers Branch. property city in the lease their idential The no record leaves doubt of this. property only people lawfully who are City Preliminarily, in the offi- I present question United States.1 whether this explained that the was the problem qualifies cials ordinance to be called an exercise population and mentioned police power, Latino never of because it said cannot be any housing problem,2 City con- “to the promote safety, peace, and the public may deny illegal health, it housing good tends that convenience and order of its Monk, they people.”3 City aliens whether or not are removable Birmingham v. of (5th Cir.1950). country from the under the law. 185 861-62 F.2d But City may think its serves the police power ordinance is not above the Constitu- Id.; welfare public legitimate the and is a exer- tion. see also Ga. Latino Alliance for Ga., police power, my colleagues cise of its and Rights Human Governor of (11th Cir.2012) this, apparently agree with but under Su- F.3d 1265 n. 11 in preme holdings (“[Legislation the national of a field where tra- states immigration foreign ditionally power and the control of af- have does not defeat suggests City's City points nothing showing dissent issuance 1. The that the an [T]he occupancy non-discretionary public by illegal of an license is effect on welfare aliens’ "automatically” as the is insofar license is occupancy housing. mayor of rental of obligation sued and there is no affirmative City Farmers Branch confirmed that the presence declare one’s lawful in the United no studies on the un- conducted effects of receiving States before the This view license. property documented aliens on the value of City's operation mischaracterizes Branch, quality its Farmers regulation and its The Ordi onerous results. schools, rate, availability the crime or the nance demands that failure to declare either to its healthcare residents. One Coun- citizenship States number United or a federal member, Greer, Gary cil testified that there presence” trigger that establishes "lawful will showing was no data whether undocu- likely leading process more than not immigrants mented commit more crimes See, building inspector to revoke the license. in Farmers an- than others Branch. Still e.g., Farmers Branch, Tex., Ordinance member, Koch, agreed other council David (D). 1(B) § & that the was "not directed in way revitalization” was towards but rather 802, 805-06, panel opinion: See 675 3d solely removing "directed towards (5th Cir.2012). 809-10 immigrants.” panel opinion: 3. As noted 675 F.3d at 810. 1227(a)(1)(E)(iii) See, § e.g., id. tic abuse. The Court preemption.”).

claim of federal (a)(7). proce law is It further sets out a state & has often stated Clause alien’s status Supremacy adjudicating dures preempted to the an obstacle judge, speci it “stands as and it where before an of the full and execution accomplishment exclu are the procedures fies that those Congress.” objectives and purposes the remova determining means for sive 2501; Arizona, Hines v. Davi- 1229a(a)(3). § bility of an alien. 67-68, dowitz, 312 U.S. Moreover, scheme contains (1941). L.Ed. aliens who provisions under which various unlawful to the States have come Branch ordinance the Farmers Whether here, in to remain ly may permitted pur to the as an obstacle preempted § id. cancellation of objectives Congress cluding asylum, poses judg removal, 1229b, withholding § is a “matter of of re field of id. 1231(b)(3), informed federal scheme and moval, temporary ment” id. stat effects of the federal purpose status, In light id. 1254a. protected Foreign Nat’l Crosby v. ute as a whole. framework, statutory comprehensive 363, 373, 120 Council, Trade 530 U.S. process “the removal is entrusted (2000). We 147 L.Ed.2d of the Federal Government.” discretion Congress’s objec- must therefore consider 2506; also 132 S.Ct. at see Gal Nationality Immigration tives Press, 522, 531, 74 S.Ct. van v. “[fjederal (INA), gover- the Act where (1954) (“Policies 737, 743, 98 L.Ed. 911 and alien status is nance of entry to the of aliens and their pertaining Arizona, 132 complex.” and extensive here are ... entrusted right to remain 2499; see also Chamber Com- S.Ct. of Congress[J”). set exclusively to When — U.S.-, Whiting, merce v. of against the extensive federal scheme and 179 L.Ed.2d 131 S.Ct. allowances, discretionary the Farmers its Congress (stating that with the INA Branch ordinance interferes with Con- comprehensive federal stat- “established a objectives regulation and of immi- gress’s regulation of utory scheme id. at 2506-07. gration. See and naturalization and set the terms ordinance, First, premise the as country conditions of admission brief, City’s in the is that non- lawfully argued aliens subsequent the treatment of (internal “unlawfully” present in Farmers country” quotation marks citizen omitted)). ex- Congress present citation to be legal right Branch has no States, tensively may which aliens determined in the and there- anywhere aliens country, to this which admitted may the ordinance criminalize fore removed, process should be and the of such within presence persons continued Arizona, and removal. both admission is housing City. premise rental at 2499. S.Ct. one, however, gen- a false because “[a]s rule, for a removable eral it is not a crime multiple the INA creates example, For present alien to remain in the United removal, subject of aliens categories at 2505. For States.” expedited it for the removal provides reason, the held that Arizona this aliens. 8 1227-28. of certain U.S.C. persons not authorize the arrest of could expressly grants It also discretion for aliens thought probably illegal to be be- Attorney General to waive removal under may regulate pres- circumstances, human- cause such as for certain ence of removable aliens. purposes itarian or for victims of domes- Second, provision the ordinance more than of prohibit does an Alabama law that presence deter the Latinos from merely recognition of ed the of contracts entered Branch, and works to Farmers instead into by unlawful aliens. United States City’s and remove exclude aliens from (11th Alabama, 691 F.3d 1292-95 — borders. This is because no alien an Cir.2012), denied, U.S.-, cert. unlawful status will be able to obtain (2013). 185 L.Ed.2d 905 Be- through need of shelter a rental con- basic essentially cause the prevented aliens Illegal tract. aliens will therefore have no enforcing “from contracts for neces- basic self-deport but to Farmers recourse from derogation sities” in ability to live Hazleton, See Branch. Lozano v. affairs, daily and conduct con- court Cir.2010) (“It (3d 620 F.3d 220-21 forcing cluded that the measure’s effect of to conceive of effective difficult a more undocumented aliens out of the state inter- ensuring do not persons method fered with exclusive power locality by pre- remain in a enter or than aliens, expel as well as with the INA’s (internal ability their cluding to live in it.” comprehensive scheme re- governing the omitted)), quotation marks and citation va- moval of aliens. Id. at 1293-94. — U.S.-, grounds other cated on just Farmers Branch ordinance is invid- (2011). 180 L.Ed.2d 243 housing ious because its adverse effect on migration forced con- This aliens precludes also aliens from obtaining flicts with careful scheme created requirement. essential human id. Cf. preroga- the INA and burdens the national (recognizing depriving n. 25 which tive to decide aliens live needs, water, gar- aliens of “basic such as and which should be country illegal aliens bage, and sewer services ... amounted removed. policy an impermissible expulsion”). permissi- It that the ordinance is said Branch, Alabama, like Farmers “has es- regulation per- was employment ble as sentially that unlawfully present decided Bica, missible DeCanas v. aliens cannot be tolerated within terri- its (1976). 933, 47 96 L.Ed.2d 43 But S.Ct. tory, regard any without of the statuto- my position neither nor that of the Su- ry processes granting avenues for preme conflict with The Court DeCanas. alien to permission lawfully remain within statute there at an California was directed the Id. at country.”4 problem many acute economic left effectively unemployed. By removing illegal citizens The held that immi- police legal the power justified the state’s grants City, also from the Farmers Branch go for their priority employment to ahead the con- power interferes with national to people unlawfully present. police of The trol na- foreign and conduct relations with here, power not so clear the immi- is and relationship tions. concern about the This gration conflict did not exist there. affairs, immigration foreign between exclusivity power, and the of the national Eleventh a similar Circuit reached it recently by conclusion when considered a often has stated the Supreme been considering dissent cuit when 4. The concludes that the in Alabama similar laws, reality not "effect or affect” removal. and it is blind to the of this does aliens’ what judges by Judge Bright As This view is similar to that of two on ordinance does. noted Circuit, Keller, pur- Eighth Fre- can be no doubt that see Keller v. there "[t]he of 931, 941, 3242111, mont, pose ... 719 F.3d 2013 WL and effect of the ordinance is exclu- (8th 2013), persons.” it is con- at *5 Cir. June. 28 but sion and removal undocumented 3242111, Keller, 958, trary both at WL at to conclusion reached 719 F.3d 2013 J., (Bright, dissenting). Third Circuit in and the Eleventh Cir- *22 Lozano Arizona, See, opinion opens by emphasiz- at S.Ct. Arizona e.g., Court. Moreno, “broad, 2498-99; power undoubted” federal v. 458 U.S. see Toll also 2982, subject of and the 10, 2977, “over the 1, 73 L.Ed.2d 563 102 S.Ct. aliens,” (1982) power and the “inherent status of (noting authority over that federal to control rela- sovereign and conduct multiple from status of derives “the aliens Arizona, foreign tions nations.” sources, including the Fed- constitutional full gives 2498. The Court a at establish power ‘[t]o [a] eral Government’s how this description importance of the Naturalization,’ its uniform Rule of foreign nation coun- treats nationals of for- Commerce with power regulate ‘[t]o they country tries are in because when this Nations,’ authority ... and its broad eign “perceived mistreatment of aliens (alterations origi- foreign over affairs” may recipro- lead to United States harmful (citations Doe, nal) omitted)); Plyler v. cal citizens treatment American 2382, 19, n. 102 S.Ct. n. Id.; Hines, also at abroad.” see 312 U.S. (1982)(“With to respect 72 L.Ed.2d 786 (“One 64, 61 most of the Government, actions of Federal important and delicate of all international may intimately alienage classifications ... has to relationships protec- do with the foreign to the to policy, related conduct of just rights country’s tion of own to control to prerogative access in an- nationals when those nationals are States, plenary the United fed- In country.”). light potential other of the power eral who suffi- determine aliens in ramifications treatment of ciently allegiance his to become manifested states, country, “Congress,” may No State citizen the Nation. “specifie[s] may which aliens be removed power.”); a like id. independently exercise from States procedures the United and the (Powell, n. 2405 n. 1 at 237 102 S.Ct. at doing so.” 132 S.Ct. at 2499. J., (“Given that concurring) the States’ paramount importance Of to the federal limited, is power regulate in this area so scheme “is the broad discretion exercised peculiarly and that this an area of such is officials” “aliens because strong authority, necessity asylum discretionary seek other evident.”); leadership seems Hari- allowing relief them to coun- remain 588- Shaughnessy, siades try or least formal leave without 96 L.Ed. 586 discretionary Id. The decision removal.” (“It pertinent policy observe factors, involves includ- many removal vitally intricately toward aliens in- ..., an “equities of individual case contemporaneous policies terwoven with in including whether alien has children relations, foreign to the regard conduct of States, born in to the long the United ties power, the war a and maintenance of community, distinguished or a record of republican government. form of Such service,” as well choices military “policy as exclusively matters are so to entrusted that this bear on Nation’s international political government branches of as to be Therefore, dynamic Id. relations.” “[t]he largely judicial inquiry immune from or nature with of relations other countries interference.”); Hines, 312 U.S. at Branch,” requires the Executive not 402; Freeman, v. Chy Lung states, poli- “to ensure that enforcement (1875) 275, 279, (“If 23 L.Ed. 550 th[e] with for- cies are consistent this nation’s should into get [of California] eign other policy respect to these and difficulty a [because of its treatment of realities.” Id. war, lead to noncitizens] which would or to intercourse, suspension part would wrote this crucial California Court as a Union?”). suffer, analysis, ignored or its it legal alone all the formal but went by the dissenters. on decision on removability requires “[a] government’s to determination later address whether it is appropriate foreign to allow a removal national process discretion over the continue living in the United States. “embracing immediate human concerns” Decisions of this nature touch foreign will whether an alien relations affect should be and must be made with one voice.” Id. to remain in permitted country. this added). at 2506-07 (emphasis trying sup- “Unauthorized workers The Farmers Branch ordinance is but families, port example, likely pose their example one of a in country trend danger smugglers less than alien or aliens states and localities attempting to take who commit a serious crime.” Id. Other immigration matters into their own hands. “discretionary decisions involve policy single This trend to out illegal immigrants choices that bear on this Nation’s interna- for adverse treatment is reminiscent of the relations,” including tional whether re- “anti-Japanese fever” that in existed foreign turn alien to a state “mired in 1940s. See Takahashi Fish & Game war, civil complicit political persecution, in Comm’n, enduring conditions create a real J., 92 L.Ed. 1478 (Murphy, family risk alien or his will be concurring). powerfully As so articulated harmed upon return.” Id. Given the com- Murphy’s Justice concurrence in Tak- plexity myriad go and the factors that into ahashi, “[l]egislation of that type is not decision, the removal it is clear that “for- entitled to wear the cloak of constitutional- status, eign countries concerned about the ity.” Id. safety, and security of their nationals With the now support the United States must be able to confer decision, Court in the Arizona as well as subject communicate on this with one Alabama, the Eleventh repeat Circuit I national sovereign, separate the 50 panel what said about the Farmers States.” Id. at 2498. Branch ordinance: pur- Because the sole expressly Farmers Branch singled out pose and effect of this ordinance is to those aliens who cannot show or honestly target the presence aliens within residence, state their lawful imposed city of Farmers Branch and to cause burden on landlords realtors that can removal, their it contravenes the federal be avoided simply choosing them not to government’s authority exclusive on the deal with people they Latino when have an regulation and the condi- alternative. surely This ordinance is of- country, residence in this it tions fensive immigrants and to our neighbors constitutes an obstacle to federal authority My colleagues south. are complete- over and the conduct of for- ly silent about this. eign affairs. Congress’s framework for removal pro- DENNIS, Judge, joined by Circuit

vided in the INA and the discretion al- REAVLEY, PRADO, GRAVES, and by lowed framework show that Judges, specially Circuit concurring: Congress occupied the field of alien removal. The Farmers Branch ordi- I affirming concur in the district court’s ignores practical reality nance the of the judgment permanently enjoining Farmers federal government’s control of the re- Branch Ordinance 2592 because federal however, process, moval simply and re- law preempts and renders it invalid. Al- quires immigrants to though agree many remove I with of the reasons themselves from city’s Judge Higginson the borders. But assigns opin- the lead and execution result, accomplishment I believe reaching the same

ion for objectives of Con- and fundamentally purposes the full even more the Ordinance ” Davidowitz, v. view, (quoting Hines gress,’ id. my In the than he indicates.1 flawed 399, 52, 67, 85 L.Ed. 61 S.Ct. its core 312 U.S. in all of preempted Ordinance is (1941)). earli- I believe the Hines Court’s in- and comprehensive the provisions interplay and overlap of the er discussion gov- schemes legislative terrelated federal continues to noncitizens, related formulations of these classification erning the to the ultimate guidance as status, provide useful and the adjudication of preemption inquiry implied under practical of noncitizens deportation and exclusion States, doctrine: pursuant enacted the United from constitutional government’s very na- to the federal not—and from the There is national a uniform authority to administer cannot be— problem there ture policy.2 can be or rule which any rigid formula pattern to deter- as a universal used I of ev- meaning purpose mine the — Court, States, This ery Congress. act of In Arizona v. United validity laws in -, considering of state 183 L.Ed.2d 132 S.Ct. treaties or federal laws (2012), light reiterated the subject, has made touching local law is the same maxims that a state or familiar con- following expressions: Supremacy Clause use of under preempted to; contrary occupying ex- Congress flicting; enacts “an where field; difference; irrecon- repugnance; provision” but also preemption press violation; inconsistency; cur- displace cilability; “intent to congressional where tailment; interference. But none can be inferred from altogether an infalli- expressions provides of these pervasive ‘so regulation framework of an exclusive constitutional test or for the States ble Congress left no room ” (alteration yardstick. In the final it,’ constitutional at 2501 supplement id. crystal can be no one analysis, there v. Santa Fe Ele- original) (quoting Rice formula. Our distinctly clear marked Corp., vator determine (1947)), primary function is or “where the 91 L.Ed. 1447 whether, the circumstances of [a] under as an obstacle challenged state law ‘stands below, declining argue the see issue opinion 1. The lead concludes first judicial Corp., re- Specialty criminal offense and Chems. Ordinance’s Nasti v. CIBA Cir.2007) (”[T]o mechanisms provisions (5th view conflict preserve F.3d immigration law in purposes of federal litigant argument appeal, must [a] remaining respects; and then that the various court.”), press ... before the district [it] are not severable provisions of the Ordinance Hannigan, original panel, see Sama provisions under from the unconstitutional (5th Cir.2012) (”[I]ssues F.3d 589 n. 5 my In applicable principles of Texas law. waived.”), even appeal are not briefed on view, defects— the Ordinance’s fundamental brief, petition or see United in its en banc on the of noncitizens based its classification Hernandez-Gonzalez, 405 F.3d States v. purport- presence” and its concept of "lawful (5th Cir.2005) ("Absent extraordinary cir presence of regulation ed of the residence cumstances, is will not consider this court that classification —are noncitizens based on petition in a for the first time sues raised and run structure intrinsic to Ordinance’s rehearing.”). making provisions, throughout various its unnecessary. severability analysis In many as- agree of the reasons 2. I also event, however, and the has forfeited Reavley separate opin- signed by Judge in his any argument applicability the waived as to concurring judgment. severability clause ion the Ordinance's or effect of case, broad, challenged of the particular state or United States has [the undoubted an obstacle over power subject law stands as to the the local] and Arizona, execution of the status of accomplishment and aliens.” 132 S.Ct. Moreno, objectives (citing 1, full at 2498 purposes and Con- Toll v. 458 U.S. 10, 2977, (1982)). gress. S.Ct. 73 L.Ed.2d 563 rests, in authority part, “This on the Na- Hines, 67-68, 61 312 U.S. at S.Ct. 399. tional power Government’s constitutional join Like my colleagues opin- who lead to ‘establish an Rule uniform of Natural- ion, original panel as well and the as ization,’ Const., I, 8, 4, U.S. Art. cl. and below, district court I conclude that power sovereign its inherent control presents Farmers Branch Ordinance such and conduct with foreign relations na- purposes obstacle to the of federal tions.” Id. single “Federal law makes a and therefore cannot stand. sovereign for responsible maintaining a II comprehensive system keep and unified track of view, aliens within Nation’s bor- my largely In is con- this case ders,” 2502, id. at “[policies pertain- and trolled the longstanding, unremarkable entry and their principle government’s right that the federal au- aliens remain here are thority foreign to exclude or remove na- entrusted exclu- [likewise] tionals, sively to regulate Congress,” and to otherwise the resi- id. 2507 (quoting Press, 531, 522, dence within the Galvan v. of noncitizens 347 U.S. States, (1954)). 737, necessarily infringe- exclusive 98 L.Ed. 911 legislation. ment state or local In exercise exclusively of this national Supreme clear Court made this more than authority, of immi- governance “[f]ederal sixty years ago: gration and alien status extensive and The Federal has Government broad con- complex.” particular Id. at Of 2499. rele- powers determining stitutional in what here, specified vance “Congress which aliens shall be to the United admitted may aliens be removed from the United States, they remain, period reg- procedures doing States so.” ulation of their before natural- conduct Id. “A principal feature removal ization, terms conditions system” Congress has enacted “is the [,] their naturalization. Hines [312 U.S. by immigration broad discretion exercised 61 S.Ct. Under the Consti- 399]. instance, in officials.” Id. For “the initi- granted tution the no states are such prosecution stages ation or various powers; they can neither add to nor deportation process!,] the Execu- take lawfully from the conditions im- tive has discretion to abandon the endeav- admission, posed by upon Congress nat- or, engagfed] and ... has] Executive [the uralization and of aliens in the residence (which regular come practice ha[s] United States or the several states. action’) be known as of exercis- ‘deferred Comm’n, Takahashi v. Fish & Game 334 ing that discretion for humanitarian rea- 92 L.Ed. simply sons or own convenience.” its (1948). Comm., Reno v. Am.-Arab Anti-Discrim. 471, 484-85, past year, This (1999).3 The Court reaffirmed that Government L.Ed.2d 940 Court made “[t]he ” prosecu- In a notable of this been directed to action’ as to "some 'defe[r] recent exercise discretion, students, Secretary high torial in June 2012 "the 1.4 million school [noncitizen program” Security veterans, of Homeland announced graduates, under others] whereby "U.S. officials have id., Government,” see crim- a state law the Federal clear that or local in Arizona principle inalizing property that that the remov of residential “violates the rental to the discretion of process al is entrusted thereby in to certain noncitizens and effect cannot stand. Federal Government” process excluding them commencing (citing Am.-Arab Anti- S.Ct. at part from a “the States or the United Comm., 483-84, at Discrim. Takahashi, states,” several at see U.S. 936). S.Ct. Arizona, 1138; 419, 68 cf. (Scalia, J., case, dissenting) (complaining at 2521 present to the pertinent Most compre- government’s that this discretion- Arizona concluded federal scheme, and the legislative ary immigration hensive federal laws [of] “enforce[ment] significant it vests in federal discretion unprotected ... leaves the States’ borders authorities, necessarily- immigration against immigrants whom those laws legislation that would Arizona preempted added)). (emphasis would More- exclude” officer, have ‘without a allowed “a state over, renters “could be unneces- noncitizen warrant, person a if the officer arrest [to] sarily] prosecuted under harass[ed]” has to believe ... probable [the cause here, including a law like that individuals any public person] committed offense determine “whom federal officials should removable makes from Unit- [him] Arizona, not be See removed.” (final ed at 2505 altera- States.” Id. three Underscoring at 2506. the Ordinance’s original). tions in The Court held that the inconsistency with the fundamental impermissible as an obstacle statute stood system, specifically requires law design purposes largely proceed- noncitizen to removal subjected discretionary immigration enforcement ings provide federal authorities “with a system Congress created because it could written record of an address at which “unnecessary harassment of some result respecting the alien be contacted [the] (for veteran, instance, a college stu- aliens 1229(a)(1)(F)(i); proceeding.” 8 U.S.C. dent, assisting or someone with a criminal (“As Arizona, gener- 132 S.Ct. at 2505 cf. investigation) whom federal officials deter- rule, al it a crime for a is not removable mine not be removed” and ultimate- should present alien to remain ly “would allow the State achieve its States.”). immigration policy.” own Id. at 2506. Be- City argues that the Ordinance is cause such state-to-state variance “is not created,” the system Congress the Court consistent with federal held Arizona statute that the “violates because under the classification and en- process the removal en- principle that system forcement envisioned Ordi- trusted to the discretion the Federal nance, making City officials determinations Government.” Id. rely of “lawful are to presence” queries agents’ responses submitted

The Farmers Branch Ordinance likewise 1373(c), pursuant to 8 U.S.C. which di- principle the removal “violates process rects federal authorities to is entrusted discretion Dir., age Mayorkas, Citizenship ... who came to the United States U.S. & Imm. of 30 Servs.; Dir., Morton, age

under the of sixteen” without authoriza- & and John Imm. Enforcement, (June 15, tion and meet certain other 2012), criteria. I Customs J., (Scalia, (first dissenting) 132 S.Ct. at 2521 Cushman, H. citing Preston & John Julia original) (quoting alteration in Memorandum Jr., Migrants Young to Permit to Re- Obama Napolitano, Secy from Janet Homeland Times, U.S., main in N.Y. June Comm’r, Aguilar, Security, Acting to David V. Al). Protection; Alejandro U.S. Customs & Border

547 Federal, State, 2022, “respond inquiry by to an 133 (2013), S.Ct. 185 L.Ed.2d 905 government agency, seeking or local to which preempted an Alabama statute simi verify ascertain the citizenship or or immi- lar in effect to the Farmers Branch Ordi gration any status of individual within the nance. The Alabama law purported to jurisdiction agency any purpose “prohibit[ courts from enforcing ] or recog However, authorized law.” the Ordi- nizing contracts party between a and an nance’s enforcement scheme turns on de- unlawfully present alien,” including con terminations of whether a noncitizen ten- tracts for rental housing. Id. at 1292-93. ant is or is not “lawfully present in the Noting power expel “[t]he aliens States,” binary a blunt classifica- long recognized been an exclusively tion that is inconsistent with the extensive 1293, federal power,” id. at the Eleventh array immigration provided statuses un- Circuit held that the legislation Alabama der federal law complex, of- Congress’s “conflicts with comprehensive discretionary ten processes by which the statutory framework governing alien re adjudi- enforces and moval,” id. at 1294. Much as with the immigration cates law. See 132 Ordinance, case, instant in that “Alabama (“Federal officials, as an ini- upon taken it ha[d] itself to unilaterally matter, tial must it decide whether makes determine that unlawfully pres alien pursue sense to removal at all. If removal ent in the United States cannot live within commence, proceedings aliens may seek territory, regardless state’s of whether asylum and other discretionary relief al- the Executive Branch would exercise its lowing country them to remain in the or at permit discretion to presence.” the alien’s (ci- least to leave without formal removal.” Id. at 1295. As the Eleventh right Circuit (“There omitted)); tations id. at 2506 “[tjhis ly concluded, is not a decision for [a significant complexities involved in enforc- city] state or to make.” See id4 including the person determination whether a is remova- III ble.”). contexts, In many course, our federal- holding

In that state or local laws that ist system permits “try states to novel effectively exclude certain noncitizens are social and experiments economic without inconsistent with the federal government’s risk to the rest of the country.” New authority exclusive to define and deter Liebmann, 262, State Ice Co. v. 285 U.S. mine regulate status and 311, nationals, presence 76 L.Ed. 747 foreign the decision (Brandéis, J., dissenting). court today supremacy this reaches accords with law, however, post-Arizona Eleventh of federal Circuit’s decision in is fundamental to Alabama, Levine, United States v. Wyeth 691 F.3d 1269 federalism. v. — (11th Cir.2012), denied, U.S.-, cert. 129 S.Ct. 173 L.Ed.2d 51 considering (2011); prior 4. Courts similar enactments L.Ed.2d 243 Housing Cent. Ala. Fair likewise held them unconstitution- Arizona Magee, F.Supp.2d Ctr. v. Hazleton, al. See 620 F.3d (M.D.Ala.2011) Lozano (enjoining enforcement (3d Cir.2010) (holding preempted prohibiting since-amended Alabama law "un- municipal housing ordinance that would "ef- lawfully present” obtaining residents from fectively persons city] ‘remove’ from [the renewing permits manufactured home be- snapshot immigra- based on a of their current policy” cause the law "runs afoul of federal status, tion rather than based on a federal by "making impermissible leap from un- removal”), order vacated on other removal”). documented status to — -, grounds, La- incrementally the [National diminishes (2009). preemption and other Arizona en- Board’s control over Relations] bor Clause Supremacy teach that cases further and thus of the NLRA forcement from neces- divergence local will not abide of ‘integrated scheme from the detracts policies and laws national sarily uniform (footnote by Congress.” regulation’ created govern- adopted pursuant omitted)). Arizona, powers. ment’s constitutional (“If § 3 of the Arizona at 2502 132 S.Ct. policy law and Uniformity of national valid, give could every State statute were to this nation’s classification are essential authority prosecute independent itself of other na- of the citizens and treatment violations, dimin- registration at 2498 132 S.Ct. tions. See con- ishing] the [Federal broad, (“The Government’s ... Governmentfs] [Federal] detracting] and trol over enforcement of immi- subject over the power undoubted regulation integrated scheme from ... aliens[ ] the status of gration and (alterations origi- in by Congress.” created rests, Govern- part, in on the National omitted) nal) (internal marks quotation to ‘establish an power constitutional ment’s v. Indus. Gould (quoting Dep’t Wis. Naturalization,’ and its Rule of uniform 1057, 288-89, Inc., 106 S.Ct. 475 U.S. to control and power sovereign inherent Boats, (1986))); see Bonito 89 L.Ed.2d 223 foreign nations---- conduct relations with Inc., Boats, 489 U.S. trade, Inc. v. Thunder in- policy can affect Immigration Craft 141, 161-63, 103 L.Ed.2d tourism, vestment, rela- diplomatic (“The of all 50 States prospect Nation, as well as the tions for the entire pre- establishing protections similar expectations of aliens perceptions and re- rigorous without the ferred industries country protection who seek the full prescribed (citations omitted)); also, patentability quirements see its laws.” INS, threat pose could substantial Congress 322 F.3d e.g., Renteria-Gonzalez Cir.2002) ability (5th to accom- system’s patent (emphasizing progress promoting its mission of plish “uniformity of federal law importance of of the fundamen- arts.... One the im- consistency the useful in enforcement of Copy- laws”). the Patent and tal behind purposes As the Arizona Court migration was to of the Constitution right removability Clauses re- explained, decision “[a] uniformity in the realm national promote appro- it is a determination whether quires uni- Absent property.... [a of intellectual contin- foreign to allow a national to priate rule, afford each State could living form] States. Decisions ue fa- particularly patent-like protection foreign relations of this nature touch on industries, effectively insulat- home vored be made with one voice.” must outside added); from competition them from (emphasis at 2506-07 see S.Ct. Indus., State.”); (“Removal 475 U.S. Dep’t Wis. decisions[ ] also id. at 2507 (“[I]f 288-289, 106 S.Ct. 1057 Wiscon- with for- implicate relations [the Nation’s] repeat viola- debarring certain sin’s eign require [law consideration powers Relations Act of the National Labor circum- political tors and economic changing (NLRA)] (third doing business with the original) from alteration stances.” valid, nothing other prevents State is v. Imm. & En (quoting Jama Customs 335, 348, 125 against action taking from similar forcement, States Indeed, (2005))); at least four violators. Renteria-Gon labor law 160 L.Ed.2d (“[T]he zalez, already passed legisla- have at 814 executive other States 322 F.3d sen- especially ... ‘must exercise repeat continuing of- disqualifying branch[ ] tion for- implicate functions that competing political NLRA from sitive fenders of the Abudu, INS v. eign (quoting relations.’” Each additional statute state contracts. 94, 110, 108 99 L.Ed.2d “whether it appropriate to allow a for- (1988))). eign national to living continue in the Unit- States,” ed the Supremacy Clause does not Accordingly, perhaps more than in experimentation abide local that deviates context, prospect other of all 50 “[t]he system from “the Congress created.” Ari- establishing” States laws similar to Farm zona, 132 S.Ct. at 2506-07. pose ers Branch’s Ordinance “could a sub stantial threat uniform federal th[e]” IV immigration “system’s ability to accom sum, In I conclude that the Ordinance plish” its various competing highly and infringes on and comprehen- conflicts with Boats, sensitive functions. See Bonito sive and exclusively federal schemes for Inc., 161, 109 489 U.S. at 971. If S.Ct. classifying noncitizens enforcing and with valid, Ordinance “were every State could and adjudicating the implications of those give itself independent authority regu- to” federal classifications. It thus stands as noncitizens, late the presence of “diminish- an obstacle to the full achievement of the ing the Federal Government’s control over purposes objectives and of uniform federal [immigration] detracting enforcement and Therefore, immigration agree law. I that from the integrated regulation scheme of the Ordinance is preempted under the Su- by Arizona, created Congress.” See 132 premacy Clause. (brackets at 2502 quota- and internal omitted). tion marks If this law were OWEN, Judge, Circuit concurring and constitutional, all cities and by states could dissenting. similar laws seek to withdraw rental hous- I would hold that two provi- narrow and, from vast numbers of noncitizens sions of the Ordinance1 are preempted by effect, in accomplish their removal from They law. judicial within the the United States. Much likely, more and review sections of the Ordinance.2 One equally problematic, prospect is the of a subsection, (E)(4), and one sentence in patchwork po- “[s]tate (E)(5) subsection are in conflict with feder- licies],” Arizona, 2506, 132 al law. I would sever these some imposing states additional burdens provisions and hold that the remainder of on certain noncitizens based on the states’ the Ordinance preempted is not by federal own classification and enforcement law. schemes, see, Alabama, e.g., 691 F.3d at 1292-97. arrangement Such an would be I plainly incompatible with the “comprehen- agree I dissenting opinion with the au- and system” sive unified of exclusive feder- Judges by thored Jones Elrod al immigration regulations, see the Ordinance is not preempted by the 2502, 132 S.Ct. at and with “the limitations grant Constitution’s broad to the federal imposed by Clause,” Supremacy government of the power regulate immi- 584, Wyeth, 555 129 S.Ct. 1187. gration.3 The Ordinance does not deter-

Because the nation necessarily must mine “who should or should not be admit- speak “with one voice” pronouncing when ted into country” or “the conditions Branch, Tex., City 1. (to § of Farmers 2. be codified at Ordinances 26- 79(E)); (Jan. 2008), (to enjoined §id. permanently be codified at Ordinances 26-119(E)). Villas at Parkside Partners v. Farmers Branch, Tex., F.Supp.2d See, Bica, e.g., De Canas v. (N.D.Tex.2010). (1976). 47 L.Ed.2d 43 my to be examining entrant remain.”4 informed legal under which De explained pur- in its identifying statute as a whole As ”10 Bica,5 must pose have been unnec intended effects.’ We Canas it would pre the Court that anal- essary, preemption decisions of also mindful “[i]n Canas, ceded De to discuss the rele “even assume histor- ysis, courts should that ‘the finding enactments in congressional police vant ic of the States’ are not powers regulation if all state pre-emption superseded of state clear and ‘unless was the ”11 ipso regula facto regulation of aliens was purpose Congress.’ manifest immigration, for the existence vel tion of regulation leasing renting prop- real is wholly of federal irrele regulation non erty is police powers within the historic of its own force vant if the Constitution noted, however, certain States. As requires pre-emption regula such judicial provisions review sections tion.” with federal immi- Ordinance conflict gration law. I largely agree As to field preemption, specially Judge Higginson’s concur- II no ring opinion preemp- that there is field provisions Ordinance has section Congressional reg- tion of Ordinance. “ 1 that leasing single- or apply renting to subject of the ... ulation of ‘the nature ” family matter,’ housing virtually pro- identical case is which in this the avail- apartment visions in section 3 that ability housing unlawfully apply of rental aliens, complex rentals. Section 1 of the Ordi- present is not so extensive that it “ ” nance ‘permits pre- no amended Section 26-79 of the Code other conclusion’ than emption.7 Congress Nor has “unmistak- of Ordinances of of Farmers ably Branch, field preemp- so ordained” such that and section 3 of the Ordinance required.8 tion is 26-119. of ref- amended section For ease erence, I refer to both 1 and 3 in sections parts Other the Ordinance are Ordinance,” other- discussing “the unless all, if is preempted, if there a conflict “ wise I first provisions indicated. consider ‘compli- with federal law either because an offense Ordinance create ance with regula- both federal and state ” applicable obligations to—or that impose physical impossibility,’ tions is a which is upon individual. here, not the case the “state law ‘stands —an accomplishment an obstacle A purposes objec- execution the full ”9 (B)(1) requires each occu- Subsection Congress.’ tives of We admonished “ prior pant, occupying a or rented is leased ‘[w]hat judgment, occupancy sufficient a matter of a property, obstacle is to obtain residential 355, States,-U.S.-, 4. Id. at 9. v. United 132 96 S.Ct. 933. Arizona 2492, 2501, (2012) S.Ct. 183 L.Ed.2d 351 933, 351, Lime, 142, 5. 424 U.S. 47 43 96 S.Ct. L.Ed.2d (quoting Fla. 373 83 S.Ct. U.S. at (1976). 1210; Davidowitz, 52, 67, Hines v. 312 U.S. 399, (1941)). 61 L.Ed. 581 85 355, 6. Id. at 96 S.Ct. 933. (quoting Crosby Foreign Id. 10. Nat’l Trade 356, (quoting Council, 363, 373, 7. Id. at 96 S.Ct. 933 Fla. Lime U.S. 120 S.Ct. Paul, Growers, (2000)). & Avocado Inc. v. 147 L.Ed.2d 352 10 L.Ed.2d 248 (1963)). (quoting 11. Id. Rice v. Santa Fe Elevator Corp., (internal omitted). (1947)). quotation L.Ed. marks offense, It license.12 is an under subsection The explicitly provides that a (C)(1), person occupies if a leased or rental declaration that an applicant “does not property obtaining without first a valid any know of such number shall be occupancy provisions ap- license.13 These sufficient to satisfy this requirement.”15 ply both to citizens of the United States person This means that if a unlawfully question and to non-citizens. The present States, in the United she may provisions whether these are preempted truthfully declare that she does not know they apply federal law to the extent any federal identification number that lawfully aliens who are not present in the she believes establishes her lawful pres- United States. ence the United States. If an applica- To occupancy obtain an license under declaration, tion contains such a the build- Ordinance, person a must submit an ing inspector immediately “shall issue a application that contains one the follow- occupancy residential license.” The Or- ing: dinance continues in the next sentence: (1) a applicant statement ais building inspector deny “[t]he shall not national; United States citizen or occupancy residential license to occu- applicant if the is not a citizen or pant who submits completed application national, a federal government identifi- pays fee,”17 the application making it applicant cation number that the be- unmistakably clear that a declaration that lieves establishes lawful presence in the a States; prospective tenant knows of no United identification number that establishes law- or presence ful in the United States is not a applicant if the does not know of a bar receiving occupancy to an number, license. Ac- federal identification a declara- cordingly, person a unlawfully tion that he or she does not present know of in such a number.14 the occupan- United States obtain an Branch, Tex., (i) City of Farmers applicant if the is not a United States 12. (Jan. 22, 2008) (to § national, 1 be codified at citizen or an identification num- City assigned by government Branch, Tex, of Farmers Code of Ordi- ber 26-79(B)(l) (2011)), § permanently en- nances occupant believes establishes or his her joined by Villas at Parkside Partners v. (exam- presence lawful in the United States Branch, Tex., F.Supp.2d Fanners 701 859 include, ples but not limited to: resi- (N.D.Tex.2010); (to § id. 3 be codified at Or- number, number, dent alien card visa "A” 26-119(B)(1)). § dinances number, number, registration employ- 1-94 number, any ment authorization or other Id. 26- (to § 13. § 1 be codified at Ordinances number on a document issued 79(C)(1)); id. (to § 3 be codified at Ordinances Government). applicant If the does not 26-119(0(1)). § number, know of such he or she shall (to § 14. See 1 id. be codified at Ordinances so declare. Such a declaration shall be 79(B)(5)(h),(i)); (to § §id. be codified at satisfy requirement. sufficient to this 26— 26-119(B)(5)(h), (i)). § Each sec- Ordinances (to § provides pertinent § Id. part: tion in be codified at Ordinances 26- 15. 79(B)(5)(i)); (to § id. be codified at Ordi- require The following form shall infor- 26-119(B)(5)(i)). § mation: nances (to § § Id. be codified at Ordinances 26- (h) 16. applicant if the is a United citi- States 79(B)(6)); (to § id. be codified national, signed zen or Ordi- declaration that 26-119(B)(6)). § applicant is a United States citizen or nances national; -or- ”23 1304(e) 1306(a) The ].’ disclosing that she of U.S.C. truthfully [8 cy license pe- Branch Ordinance does Farmers documentation no federal knows of carry register in or to nalize the failure presence lawful permit would her occupancy It revokes documentation. country. status of an alien as because of license to someone who issuing a license After in the States. unlawfully present United a citizen or herself to be has not declared argument accepted, were Appellees’ If the States, the Ordi- national of United could refuse government or local no state building inspector to nance directs or licenses to someone grant permits 1373(c)18 of 8 U.S.C. avail herself States. unlawfully present the United government “verify with the would permit or revocation of The denial lawfully is an alien occupant whether scheme” registration deemed an “alien It is in the States.”19 present United it would affect those who simply because that the reports if the federal re- obtain federal documentation could not “lawfully present” an alien not occupant is flecting right present a lawful to be a conse- that there is in the United States reasoning States. Court’s consequence That quence to the alien. Arizona cannot be stretched this far. To As a occupancy license.20 revocation of in Ari- contrary, the decision Court’s matter, to lead designed this is practical that unless zona supports the conclusion unlawfully present evict an the landlord to regu- Congress comprehensively until because of the premises from the alien aliens, State housing ha[s] “a lates that are aimed provisions of the Ordinance authority pass its own laws on the sub- at the landlord.21 ject.” characterize the Ordi- appellees laws at issue in Arizona One of the state registration nance as “an scheme” alien “ ‘an unautho- made it a misdemeanor it into the an effort to shoehorn knowingly apply alien to for rized in Arizona v. United statement Court’s ”25 made clear work.’ The Court States that “the Federal Government has comprehensive was no fed- there “[w]hen registration.”22 of alien occupied the field regulating employment program eral preempted to be field The state law found aliens, this found of unauthorized Court in Arizona as a misdemeanor the penalized “ authority to its pass that a State had own complete carry or ‘willful failure subject.”26 Citing its decision in violation laws on the registration alien document 1373(c) § 26- provides: (to Id. § § 18. 8 U.S.C. 21. be codified at Ordinances 79(C)(6) (7)); (to id. (c) inquiries § Obligation respond be codified at Ordi- — 119(C)(6)—(7)). Immigration and Naturalization Ser- § nances 26— inquiry by a respond to an Feder- vice shall al, State, agency, government seek- - or local -, 2492, 2502, 183 22. citizenship verify or or ascertain (2012). L.Ed.2d any individual within status of any jurisdiction agency pur- of the for Id. at 2501. 23. law, by providing the pose authorized requested verification or status information. Id. at 2503. 24. (to § 1 be codified at 19. (to 26-79(D)(l)); § § 3 be co- id. Ordinances Id. 25. 26-119(D)(1)). § dified at Ordinances Id. 26. (to § 26- § 1 be codified at Ordinances 79(D)(4)); (to at Ordi- id. be codified 26-119(D)(4)). nances Canas, explained in De that at a rized employment.”32 Court It was because time “the Federal Government of the comprehensive when had nature of the federal expressed peripheral no more than ‘a con- scheme Congress’s intentional deci- employment cern with en- sion not to [the] make it a crime for aliens to ” trants,’ impose penal- a state could “civil or engage seek employ- unauthorized the employment ties on of aliens who were ment33 that the Court concluded that the ‘not entitled to lawful residence in the Arizona statute both conflicted with the ”27 States.’ The current method of enforcement of the federal law law governing housing of aliens and stood as “an regulatory obstacle to the indistinguishable system from the state of the Congress chose.”34 governing employment of aliens at By contrast, Congress regulated has the time that De was decided. The Canas narrowly in the area of aliens obtaining expressed has “no housing, and where it regulated, its ”28 more than ‘a peripheral concern’ with intent and are purposes not inconsistent availability housing to aliens. with, certainly foreclose, do not local decided, Congress

After De Canas was government regulation like the Ordinance. Immigration most, enacted the Reform provides all, and Con- Federal law if not (IRCA)29 trol Act of 1986 “as compre- aliens who unlawfully present are hensive framework for ‘combating the em- United eligible States are not for State ”30 Arizona, ployment of illegal aliens.’ In or local public including public or benefit— examined the Court substance of this assisted housing is provided by —that enactment, cataloguing the civil penalties State- or local-government-appropriated imposed under federal including funding, re- unless a affirmatively State so alien, moval of the engaging provides by unau- enacting a state law.35 Feder- employment thorized noting provides, crimi- al law also subject to certain penalty obtaining nal employment exceptions, narrow the States have through fraudulent means.31 The authority eligibility to limit of aliens who “Congress concluded that made a lawfully present deliber- in the United States ate choice not to impose penalties benefits, criminal for State public including public seek, in, on aliens who engage unautho- or housing.36 assisted Congress 27. Id. IRCA is that decided it would be inappropriate impose penalties to criminal Bica, (quoting 28. Id. De Canas v. 424 engage aliens who seek or in unauthorized 351, 360, 933, (1976)). 96 S.Ct. employment. 47 L.Ed.2d 43 It a follows that state law to the contrary regulatory sys- is an obstacle to the 99-603, (codi- 29. chose.”); (" Pub.L. No. 100 Stat. 3359 Congress tem id. ‘Where a com- U.S.C.). fied scattered sections of 8 prehensive intentionally scheme portion regulated leaves a of the field without States,-U.S.-, controls, 30. v. United 132 Arizona pre-emptive then inference can 2492, 2504, alone, 183 L.Ed.2d 351 be drawn —not from federal inaction ” (quoting Compounds, Plastic Inc. v. joined (quot- but from inaction with action.’ Hoffman NLRB, 137, 147, 1275, 535 U.S. 122 S.Ct. 152 Dep’t P.R. Consumer v. Isla of Affairs (2002)). L.Ed.2d 271 Corp., Petroleum (1988))). 99 L.Ed.2d 582 31. Id. 34. Id. 32. Id. § 35. 8U.S.C. 1621. ("The

33. Id. at 2505 correct instruction to text, structure, 1621(c)(1)(B), 1622(a). history draw from the 36. Id.

554 preempted by any provision not regu- It is comprehensively has not

Congress pertains only It to local occu- is no field federal law. There housing lated aliens. to licenses. pancy remain free The States preemption. area.

regulate in this Ill

B provisions The Ordinance has various lessors, to or as dis- apply license landlords occupancy for an applicant If an national, lessees. A les- tinguished from tenants or States citizen or is not a United of the notify lessees prospective a identification sor must may provide she This occupancy requirements.42 her license establishes number that she believes present not the of the provision is focus States.37 presence the United lawful event, not controversy, and in it does (C)(2) shall provides that “[i]t Subsection immigration reg- directly implicate federal knowingly a person offense for be an provisions The more ulation. contentious appli fact on an make a false statement of facilitate designed the Ordinance are li occupancy cation for a residential 38 aliens who are the termination leases-to similarly an offense under cense.” It is unlawfully present States. knowingly if person the Ordinance a she is or has makes a false statement that to a an offense if landlord rents It is a national.39 a States citizen or been United obtaining copy without occu tenant punish An offense under the Ordinance is if license.43 It an offense pancy No by able a fine to exceed $500.40 agreement specify fail to terms of the lease Or challenges party these sections without a li occupying premises dinance. an event of It is simi cense is default.44 permit larly an offense for a lessor to

C occupy premises without a someone (C)(3) license, provides The Ordinance has a although also valid the lessor create, possess, attempted that it is an offense “to if she to terminate defense sell, punisha residential Each of or distribute counterfeit lease.45 these offenses parties day that a up license.”41 None of ble a fine of each occupancy $500 If a lessor challenges provision of the Ordinance. violation occurs continues.46 Branch, Tex., (to at City § 41. Ordinance 1 be codified of Farmers 37. 26-79(0(3)); (to (Jan. 2008) (to § § § id. be co- be codified Ordinances 26-119(C)(3)). § dified at Ordinances City Branch, Tex., Ordi- of Farmers Code of 26-79(B)(5)(i) (2011)), permanently § nances § § 26- (to be codified at Ordinances enjoined Villas at Parkside Partners 79(B)(3)); § id. (to be codified at Ordi- Branch, Tex., F.Supp.2d Farmers 26-119(B)(3)). nances (to (N.D.Tex.2010); be codified id. 119(B)(5)(i)). § Ordinances 26— § 26- (to Id. 1 § 43. be codified at Ordinances 79(C)(4)); (to § id. 3 codified at Ordinances be § (to 26- Id. 1 § 26-119(0(4)). 38. be codified at Ordinances § 79(C)(2)); (to § id. 3 be codified at Ordinances § 26- (to Id. 1 § 44. be codified at Ordinances 26-119(0(2)). § 79(C)(6)); (to § id. 3 at Ordinances be codified 26-119(0(6)). § (to § 39. 1 be codified (C)(2)); 26-79(B)(5)(h), § § id. Ordinances § 1 (to 26- Id. § be at Ordinances 45. codified (to § codified 26- at Ordinances 79(C)(7)); (to id. § 3 at Ordinances be codified 119(B)(5)(h), (C)(2)). 26-119(0(7)). § § Id. 40. Id. 5. § 46. 5.

knowingly permits occupancy without a penalties than federal law for the same license, conduct, valid the lessor’s rental license will but because “the Federal Govern also be ment has occupied the field alien regist suspended.47 There was preemption. field ration.”50 provisions preempted None of these Supreme emphasized Court reasons, by federal law for the same dis- Congress field, occupies “[w]here an entire above, cussed that the provi- Ordinance’s as it has in the field of alien registration, sions aimed tenants or lessees who are even complimentary regulation is im unlawfully present in the United States permissible. preemption Field reflects a are not preempted. Congress has not congressional decision to foreclose comprehensively regulated housing for area, state regulation in the even if it is aliens. The Supreme Court’s decision in parallel to federal standards.”51 In such controls, De Canas unless and until Con- circumstances, “[p]ermitting the State to gress acts this area. impose penalties its own for the federal offenses ... would conflict with

IV the careful framework Congress adopted.”52 The appellees contend that federal law I regarding harboring unlawfully respectfully submit present that the preempts Court unequivocally Ordinance to the held in De Canas that aliens48 extent that the the federal harboring Ordinance creates an of give laws do not rise fense for landlords who “knowingly permit Canas, to field preemption. In De occupant an occupy single family resi federal harboring law in existence at the dence without a occupancy valid residential expressly time provided that “‘employ- requires license” or landlords to terminate ment (including the usual and prac- normal unlawfully present leases when an alien’s tices incidental to employment) shall not occupancy license has been revoked. be deemed to constitute harboring.’ ”53 However, there is no field preemption re But a California law knowing- criminalized aliens, garding housing for unlawful ly employing unlawfully present alien if therefore, the Ordinance under consider that employment would have an adverse ation differs from the state laws found effect on lawful resident workers.54 If the preempted in Arizona.49 The Supreme federal harboring statute occupied either held Arizona that a state law that the field of harboring aliens or the field of aliens, a state-law penalty “add[ed] for conduct employing then a state would not proscribed by federal preempted, law” was permitted have been to legislate at all in not because prohibited states are from en these and certainly, a state would areas,55 acting criminal impose laws that different permitted not be to criminalize conduct (to § § 47. Id. be codified at Ordinances 26- 52. 79(D)(5)); (to § id. be codified at Ordi- 26-119(D)(5)). § Bica, nances 53. De Canas v. (quoting 47 L.Ed.2d 43 48. 8 U.S.C. 1324. 1324(a) (1976) (amended 1986)). U.S.C. States,-U.S.-, 49. v. United Arizona 2492, 2501-03, (2012). 183 L.Ed.2d 351 Id. at 96 S.Ct. 933. 50. Id. at 2502. Arizona, (“Where 55. 132 S.Ct. at 2502 Con- field, gress occupies an entire as it has (citing Id. Corp., 51. Silkwood v. Kerr-McGee registration, complimentary field of alien even 464 U.S. 104 S.Ct. 78 L.Ed.2d regulation impermissible.”). (1984)). 443

556 terminate the no action to not thereafter takes said was explicitly the federal that Additionally, it is a defense squarely lease.60 an offense. diligently pur- if has the lessor harboring prosecution laws did that the federal held law and steps applicable under there- sued and preemption to field give not rise lease.61 to terminate the provisions lease law was not that the California fore contrary to though it was even preempted, is, overlap limited arguably, there While federal law.56 harboring the federal offense between Ordinance, the elements an alien and the the Ordi- made that The contention quite and local offenses it of the federal because preempted nance is conflict “ sought “evil” to be So is the distinct. accomplish- an obstacle ‘stands as respective laws. The by the purposes addressed of the full and execution ment ”57 pro- is aimed at harboring statute regard Congress’ objectives of secreting of individuals unlaw- hibiting the laws. It is true harboring to the federal in the States. fully present intent that United its Congress expressed has terminating aimed at lease Ordinance is is to be the exclu- government the federal only after a doing so agreements to whether someone sive decision maker as process which lengthy public prosecuted. should be harboring aliens determination, made a government at has However, is not aimed the Ordinance twice, unlawfully occupant was The Ordinance exacts that conduct. a local requires The Ordinance property present.62 continuing to lease penalty for bring the fact of an official to longer government knows no whom the lessor person unlawful- occupant’s potentially individual license. The lessor occupancy a valid (1) to the attention of ly-present status only after commits an offense determined, There is no “secret- government.63 once but have authorities by the lessor because of ing” of an alien twice, occupant of the leased government the notifications to the federal lawfully present is not premises (2) the Ordinance. It is not States;58 required by occupant harboring that is knowingly secreting given notice that the resi- lessor have been Ordinance. The actus the actus rea of the license will be revoked occupancy dent’s a lease once the failure to terminate days after the date of the rea is effective 15 a local notice;59 notice has been sent if the lessor revocation 360-61, Canas, (to § 26- § Id. 1 at be codified at Ordinances De 424 U.S. 60. 56. 79(C)(7)); (to 933. id. § at Ordinances 3 be codified 26-119(0(7)). § (quoting S.Ct. at 2501 Hines 132 57. Davidowitz, 52, 67, 61 S.Ct. (to § 26- § Id. 1 at Ordinances 61. be codified (1941)). 85 L.Ed. 581 79(C)(7)); (to § id. 3 be codified at Ordinances 26-119(0(7)). Branch, Tex., § City Farmers 58. 22, 2008) (to (Jan. § codified at 1 be City Branch, Tex., Code of Ordi- (to of Farmers § be codified at Ordinances 62. See id. 1 26-79(D)(2), (4) (2011)), permanently § (to nances 26-79(0(7), (D)(l)-(5)); § § id. be codi- enjoined by Partners v. Villas at Parkside 26-119(C)(7), (D)(l)-(5)). § fied at Ordinances Branch, Tex., F.Supp.2d Farmers (N.D.Tex.2010); (to § id. be codified (to § 26- § Id. be codified at Ordinances 63. 26-119(D)(2), (4)). § Ordinances 79(D)(1)); (to id. § 3 be codified at Ordi- 26-119(D)(1)). § nances (to § § 26- be codified Ordinances 79(D)(4)); (to at Ordi- id. codified 26-119(D)(4)). nances

557 occupancy official that an license is no or local-government-appropriated funding The unless a State longer required affirmatively provides lessor is not so by valid.64 enacting a state law. by the Ordinance to terminate the unlaw- Federal law even allows deny States to State public-housing ful alien’s lease unless and until the federal benefits to certain aliens who lawfully government gov- has twice advised local present in the official, United States.68 Requiring pursuant ernment to a federal stat- private lessors and landlords to terminate occupant unlawfully pres- that the is ute,65 leases when a determination has been ent in the United States.66 by made government that the The contemplates that a les- occupant unlawfully is present in the Unit- may gain knowledge occupant sor that an ed States is not in tension with this feder- unlawfully is in the present United States ally expressed policy. may permit nevertheless the alien to premises remain in the leased until V government process local is concluded and argument is made that if all or a determined, finally it is within poten- substantial number of states or gov- local tially lengthy processes set forth ernments had laws similar to the Ordi- Ordinance, alien unlawfully nance, then unlawfully present aliens statute, harboring The federal present.67 whom the government had decided contrast, by arguably would be violated deport not to or remove would be unable gains once the lessor actual knowledge This, to find housing. the appellees con- the alien unlawfully present and tend, would interfere with federal decisions continues to permit occupy the alien to about who is entitled to remain in the premises. leased United Alternatively, States. it is assert-

The Ordinance does not stand as an ed that there preemption. is conflict obstacle accomplishment execu- preemption field issue again is once tion of full congressional purposes resolved De Canas. The fact that the objectives enacting the harboring laws. undeniably ex- has the The harboring encompass laws pro- clusive power questions determine scribe conduct that is far broader than the deportation removal and does give rise harboring Ordinance. The federal laws preemption to field of all regulation and the Ordinance be enforced simul- upon immigration. touches “The earlier, taneously. Additionally, as noted comprehensiveness of the INA scheme for most, all, federal law provides that if not regulation and naturaliza- aliens unlawfully present who are tion, more, without cannot be said to draw eligible States are not State in the employment aliens as benefit, or local public including public within ... ‘plainly central aim of [that] housing, provided assisted that is State- Just as there was regulation.’”69 (to § 64. § be codified at 26- 68. 8 U.S.C. Ordinances 79(C)(7)); (to §id. be codified at Ordinances 26-119(0(7)). § Bica, 351, 359, 69. De Canas v. 424 U.S. (1976) (quoting 47 L.Ed.2d 43 San 1373(c). § 65. 8 U.S.C. Garmon, Diego Unions v. (to § 66. Ordinance be codified at (1959)) (altera- 3 L.Ed.2d 775 26-79(D)(2), (4)); (to § § id. Ordinances original). tions 26-119(D)(2), (4)). § codified at Ordinances (to § 67.See id. be codified at Ordinances 26-79(0(7), (D)(l)-(5)); (to §id. be codi- 26-119(C)(7), (D)(l)-(5)). fied at Ordinances is lawful- occupant whether an mination of employment regarding

no “more” building unlawfully ly present: “[t]he or decided, was De at the time Canas aliens an attempt to make shall not inspector regarding “more” no presently there is any occu- independent determination aliens. unlawfully present housing of in the presence or unlawful pant’s lawful the Ordi- reasons For the same States.”72 United by the preempted conflict nance is not responds government If the federal laws, the Ordinance harboring federal building inspector Farmers Branch authority of by the preempted not conflict present in the unlawfully an alien is to determine government States, no conflict then there is United alien unlawfully present an whether law. The conse- with There is States. remain in the United the eventual termi- to the alien is quence between conflict potential even less of a land- by the lessor or nation of her lease grant of general and the the Ordinance There is no There is no fine. lord. gov- authority to the federal The lessor or landlord criminal offense. potential conflict ernment than there is takes no an offense if it may commit laws. harboring with the lease, but terminate the alien’s steps to considered, already

for the reasons federal law. is not in conflict with VI that under Texas highly improbable It is Judge Higginson’s at opinion discusses would be arrested a lessor or landlord authorities whether length some offense, it is since committing such the Farmers able to advise would be within an offense would occur unlikely that if an individual building inspector Branch even were an officer.73 But plain view of in the “unlawfully present” Unit- alien was occur, provision allow- that to a state-law respect, great ed States.70 With is not ing arrest of a landlord lessor with whether nothing whatsoever to do allowing arrest or detention equivalent to If the conflict-preempted. Ordinance is decision of an alien. The Court’s in- to an government, response allowing with a state law in Arizona dealt 1373(c), § not or will quiry under 8 U.S.C. of an alien.74 arrest as to building inspector cannot advise that is lawfully present, whether an alien is VII The Ordinance the end of the matter. of the Or- judicial provisions review inspec- building that “the expressly directs degree, to some problematic dinance until final take further action tor shall no Higginson’s Judge though disagree I verification from the federal judicial review sec- opinion that all of immigration status concerning (E)(3) pro- preempted. tion is Subsection Ordinance received.”71 The occupant is to determine that a state court is vides lawfully in- building present that the occupant could not be clearer “whether the This section States.”75 authority make a deter- spector has no 14.01, 14.06, art. 73. See Tex.Code Crim. P. 70. Ante at 532-34. 15.17. (to § 1 be codified 71. States,-U.S. ——, 79(D)(3)); (to § 74. v. United § be co- id. Arizona Ordinances 26— (2012). 26-119(D)(3)). 183 L.Ed.2d 351 § dified at Ordinances (to (to § 1 be codified at § 75. Ordinance § 26- be codified at Ordinances (to 26-79(E)(3)); § 79(D)(3)); (to § id. be co- § codified at Ordi- id. Ordinances 26-119(E)(3)). 26-119(D)(3)). dified Ordinances nances law if the would be direct conflict with not conflict with federal in the federal would present” scheme, “lawfully immigration determination which leaves no room the infor- looking was limited to for a of immigration status determination status govern- provided by the federal through mation other than the immigration pro- 1373(c). § under 8 ment U.S.C. ceedings set forth under federal law. (E)(4), however, injects con- Subsection (E)(5) provides that Subsection the state re- uncertainty judicial into the siderable judicial any court shall take notice of immi- provides ques- It provisions. view that gration previously provided status by the lawfully of whether an is occupant tion federal government that the state in the “shall be present United States may, upon request court and shall of a Giving under determined federal law.”76 party, request the federal government words their natural construction these provide verification of “a new the citizen- mean that a is free might reviewing court immigration ship or status of the occu- make its own determination of whether 79 provisions pant.” These do not conflict “lawfully present” by examining an alien However, way federal law. only the immigration Clearly, law. (E)(5) provides subsection then that “[t]he government may make determi- most recent determination of the immigra- exclude, admit, as to whether to nation tion by status of individual the federal remove an alien.77 The next sentence create a pre- shall rebuttable (E)(4) the pro- subsection further clouds sumption as to the individual’s immigration review. during judicial cess that is to occur status.”80 This leaves room for a state says, answering question It “[i]n [of court to substitute its own determination occupant present lawfully whether status, immigration since the federal States], shall be the United the court government’s most recent determination is by any bound conclusive determination to a presump- entitled “rebuttable by govern- status the federal 81 tion.” This if implies ment.”78 sentence (E)(4) is no conclusive of im- I there determination would hold subsection (E)(5) govern- migration status the final sentence subsection However, ment, then the state determine preempted. court is to Ordinance con- clause,82 severability law. This applying that status tains and under (to 2952, (to § § § 1 at 76. Id. 1 be codified at Ordinances 26- 78. Ordinance be codified 79(E)(4)); (to § 79(E)(4)); (to id. 3 be codified § §id. 3 be co- Ordi- 26— Ordinances 26-119(E)(4)). § 26-119(E)(4)). § nances dified at Ordinances See, 522, Press, e.g., 77. Galvan v. 347 U.S. (to § § Id. 1 be codified at 26- 79. (1954) Ordinances 98 L.Ed. 911 (to 79(E)(5)); § 3 id. codified at Ordi- ("[T]hat policies [re- formulation of ... 26-119(E)(5)). § entry right garding the aliens and their nances exclusively remain is entrusted to Con- here] gress firmly has become embedded about as § § Id. 1 26- (to 80. be codified Ordinances legislative judicial tissues of our 79(E)(5)); § id. (to 3 be codified at Ordi- body politic any aspect govern- of our 26-119(E)(5)). § nances ment.”); Raich, 33, 42, Truax v. 239 U.S. (1915) ("The authority 60 L.Ed. 131 (to § § 81. be codified at 26- Ordinances to control admit or exclude —to 79(E)(5)); (to § id. be codified at Ordi- govern- solely in aliens —is vested the Federal 26-119(E)(5)). nances (quoting Fong Ting ment.” Yue v. United States, (1893))). 82. L.Ed. (internal quotation would doubtless be L.Ed.2d 73

Texas clause omitted)). analysis with the marks agree effect.83 I Court in given severability in the dis- held that a California law forbid and discussion DeCanas Judges Jones and El- senting opinion ding to certain employment “alien[s] not entitled to lawful residence in the Unit rod. ^{[*] [*] [*]} ed States” was not field preempted, be specific cause there was no indication that judg- in the respectfully I concur court’s Congress preclude “intended to even har part part, in in as indi- ment and dissent regulation touching monious state on ... above. cated of employment illegal aliens.” 424 365, 357-58, HIGGINSON, Judge, U.S. at 96 933. Ten specially S.Ct. Circuit later, concurring: years Congress, seeing the need for employer “some form of [federal] sanctions separately I write to make two further curtailed,”1 ... migration if to observations. Immigration enacted the Reform and Con First, plaintiffs contend that the Or- (IRCA), trol Act of 1986 which expressly by Congress’s preempted dinance is exclu- conflicting preempted state statutes.2 Im removal, occupancy the fields of sive of migration 1986, Reform and Control Act of view, harboring, registration. my and In 99-603, 100 Pub.L. No. Stat. 3359. Supreme Court’s unanimous decision no comprehensive Because such in by authored Brennan Justice DeCanas regulation emerged, been or identified Bica, 351, 933, 424 v. U.S. 96 S.Ct. 47 us, governs housing that of non- (1976), 43 argu- L.Ed.2d forecloses this contrary present country citizens regulates ability ment. law, I perceive do not that the Supremacy housing, of non-citizens to obtain rental “complete a Clause acts as ouster of state Congress and has not determined that DeCanas, power” in area. 424 U.S. at housing of non-citizens falls within its ex- 357, 933. We that presume 96 S.Ct. authority. clusive See Chamber Com- of — powers historic -, police the States not Whiting, merce U.S. v. U.S. 1968, “superseded ... unless 1985, that was the clear 131 S.Ct. 179 L.Ed.2d 1031 purpose Congress.” and manifest (holding “[ijmplied preemption that Levine, 565, 555, Wyeth v. 555 analysis justify ‘freewheeling does U.S. 129 1187, (2009). S.Ct. 173 L.Ed.2d 51 Until judicial inquiry into whether a state stat- ”) intercedes, objectives’ Congress clearly ute is tension as it did with with v. (quoting Mgmt. employment, suggests Gade Nat’l Solid DeCanas Wastes we Assn., 88, 111, 2374, 120 505 112 political process U.S. S.Ct. not interfere with the See, Austin, e.g., Quick upon 83. v. 7 S.W.3d civil criminal ... sanctions those 109, (Tex.1998); Lawyer employ, 115 Comm'n Dis who or recruit fee or refer for a Benton, 425, (Tex. aliens,” cipline employment, 980 S.W.2d unauthorized but ex- 1998). "licensing and cludes similar laws” from the 1324a(h)(2). preemption clause. 8 U.S.C. Immigration Policy recently U.S. Notably, 1. National held Report allowing Interest: Final Recommenda- Arizona law state courts an Immigra- suspend employer’s tions of the Select Commission on an or revoke business li- Refugee Policy Supplemental employer knowingly employed tion and with cense if the (1981). Views 65-66 alien” IRCA's Commissioners “unauthorized fell under "li- censing” exception and was therefore not savings expressly preempted Whiting, 2. IRCA clause IRCA. contains preempting "any imposing State or local law Jersey, 2531, police powers impliedly state U.S. “oust” (1978); 96 S.Ct. 933 57 preempted. U.S. L.Ed.2d 475 Dean Milk Co. v. (“[W]e Congress, presume Madison, will not 354 n. Nationality enacting [Immigration (1951) (dormant 95 L.Ed. 329 Com- Act], state authority intended to oust to merce applies municipal Clause as well relationship regulate employment as to protectionism); Serv. Mach. & pertinent a manner consistent fed- Edwards, Shipbuilding Corp. v. 617 F.2d laws.”).3 eral Cir.1980) (5th (“The 73-76 movement persons protection falls within the Second, taking more from Ari- guidance clause”). (“This zona, the commerce opinion 132 S.Ct. at 2510 preemption does not foreclose other and reasons, For the I above add this special challenges constitutional to the law as in- concurrence to judgment the of the court. terpreted goes after it applied and into effect.”), I out that point would several EDITH H. JONES and JENNIFER claims, under due pro- ELROD, other constitutional WALKER Judges, Circuit cess, the equal protection, Privileges and JOLLY, dissenting, joined by SMITH and Clauses, and Immunities and Commerce CLEMENT, Judges. Circuit by raised the below but not plaintiffs were written, Three opinions have been each by court. In particu- reached the district of which holds the City unconstitutional of Ordinance, lar, the as it inasmuch at- (“the Farmers Branch Ordinance 2952 Or- tempts to isolate Branch from Farmers a dinance”), which would establish a licens- problem common to other states bur- ing regime single-family for the rental of dening other il- localities with non-citizens apartments City, homes and in the States, may be inval- legally thereby discourage illegal seeks to immi- under the id dormant Commerce Clause.4 grants from there. Two of residing Justice As Cardozo wrote Baldwin v. J.) Dennis, opinions (Reavley, J. and assert Inc., Seelig, peoples of G.A.F. “the essentially that incompa- the Ordinance is or swim togeth- several states must sink government’s tible with the national exclu- 511, 523, 497, 294 55 er.” U.S. 79 authority regulate foreign sive to relations (1935); Oregon L.Ed. 1032 see also Waste immigration. (Higginson, third Quality Inc. v. Sys., Dep’t Envt’l of of J.) purports to find narrower conflicts be- Or., 93, 1345, 114 State of tween the Ordinance’s “criminal” enforce- (1994); L.Ed.2d South-Central judicial provisions ment and review Dev., Wunnicke, Timber Inc. v. prohibiting “harboring” federal law 81 L.Ed.2d 71 aliens, 1324(a)(l)(A)(iii), illegal 8 U.S.C. (“The state policy fact that the procedures, and federal removal before appears poli- to be consistent holding provisions these non-severable even that furthers cy policy —or from the rest of the Ordinance. goals might Congress we believe that had passed during pe- The Ordinance in mind—is an indicium of was insufficient con- intent.”); Philadelphia concerning v. riod of intense national debate gressional New Undoubtedly, complexity applying perceived po- there 4. The dissent's endorsement immigra- "sub-federal DeCanas field of fugitives power authority lice exclude regulation." generally Pratheepan tion See highlights the constitutional du- Ordinance's Villazor, Gulasekaram & Rose Cuison Sanctu- biety regard. in this ary Immigration Policies & Federalism: A Wayne Analysis, Dialectic L.Rev. (2009). 1707-15 no of this present preemption” There is “field people of millions of the fate or for- Ordinance country passing who entered without Otherwise, the relations law. recent eign overstayed visas inspection or who official would neither opinions A not have entry permits. court does approved regulations local bear- have some debate, nor luxury entering into this immigrants gone nor such ing on law. a local judge we the wisdom of explain conflicts lengths precise be- City at Parkside Partners Villas regulations those and federal law. tween Branch, Farmers F.3d 940-43, Keller, 719 2013 WL See F.3d (5th Cir.2012) (Elrod, J., Our dissenting). 3242111,at *3-7. is to determine whether responsibility licensing and fines pro- feder- The Ordinance’s accords with principles law. visions do conflict with Clause, alism, relevant Supremacy conflict with The Ordinance does not would hold Supreme Court decisions. We governing housing federal law positive an opinion just it In issued does. aliens, as no such exists. nearly local concerning identical Keller v. Eighth agreed with us. Circuit directly The Ordinance not conflict does Fremont, (a) 719 F.3d 2013 WL “as with or serve an obstacle” 2013). (8th “harboring” June against illegal Cir. law (b) aliens, for procedures removing highlight of the Ordi- aspects We first (c) States, aliens from or illegal the United mis- neglected nance that have been or in the provisions Higgin- other alluded to opposing opin- characterized three 46, 2013 opinion. son See id. at WL 943— then the standards ions. We address 3242111,at *7-9. review, been appellate which have also Finally, provi- Ordinance’s because the Next, by shortchanged opinions. those setting authorizing judicial sions fines and preemption principles applied from readily review are severable its li- licensing Finally, provisions. Ordinance’s opinion’s censing regime, Higginson we analyze preemption the conflict non-severability logically conclusion of fails severability arguments by Hig- raised and under Texas law. ginson opinion. may easily conclusions be summa- Our The I. Ordinance represents rized. The Ordinance an exer- The Ordinance in the Higgin- is outlined every “police power” cise of the inherent opinion, but several features should be son self-governing community to make laws regime emphasized. licensing applies perceived beneficial to its citizens. It is apartments to all landlords and renters of thus entitled to a of constitu- presumption residences, single family whether citi- tionality according every recent Su- Any applicant zens or not. rental preme regu- case dealing with local automatically by license receives one ei- presence lations that touch verifying citizenship legal ther or resi- aliens. by or he does not asserting dence know reg- does The Ordinance not constitute he has a relevant federal “num- whether is not ulation and thus identifying presence.1 ber” legal Farmers 1(B)(6), §§ Branch, Tex., preempted by the structure. Constitution’s Ordinance lawfully application requires potential gation present 1. While the to declare that one is receiving provide general occupancy prior renters to information such a valid license. name, address, birth, country date See Tex., Branch, Farmers citizenship, there no affirmative obli- is 1(B)(5)®, 3(B)(5)®. §§ 3(B)(6). applicant, lawfully present States,” For a non-citizen the United building inspector inquiry building inspector city conducts must send a revocation with federal authorities to determine notice to the renter and lessor. Id. Fif- days teen after the lawfully present whether the renter is revocation notice is issued, 3(D)(1). 1(D)(1), the previously §§ valid residential the United States. Id. oc- cupancy license is revoked. Id. government obliged by The federal is law respond inquiry, routinely as it After the renter’s residential occupancy responds inquiries by to similar all manner revoked, license has been the Ordinance of local agencies and enforcement. 8 specifies that the landlord commits an of- 1373(c).2 building inspector U.S.C. fense if it fails to initiate proceedings to to abide response. bound If the 1(C)(7), §§ terminate lease. Id. government that the states alien is 3(C)(7). Any renter applied who for and lawfully present, govern- or if the federal received a valid occupancy residential li- uncertainty ment’s records reveal about cense that the building inspector later re- status, the alien’s the applicant retains a offense, vokes has not committed even license. No further action is taken if the renter continues to reside in the building inspector govern- until the federal premises rental after the license is re- provides 3(C). ment final verification concerning 1(C), §§ voked.3 See id. occupant status of the A conviction violating the Ordinance

requests additional information. Ordi- punishable by a fine not to exceed $500 3(D)(3). 1(D)(3), nance day for each ongoing of an violation of the Only if Ordinance. states lawfully present that the renter is not does The Ordinance specifies that it “shall be building inspector pursue the inquiry. the applied uniformly, and enforcement proce- 3(D)(2). 1(D)(2), §§

Id. The Ordinance dures shall not differ based on a person’s provides then the renter and the landlord race, ethnicity, or religion, origin.” national days an additional 60 to clarify the alien’s 3(D)(9). 1(D)(9), §§ Id. day, status. Id. After the 60th if the build- Judicial sought by review be any ing inspector remains unsatisfied with the renter, or by City. landlord but not the explanation, the inspector may again con- 3(E). 1(E), §§ Id. The state court tact the government. The Ordi- by “any bound conclusive determination of nance allows revocation occupancy by govern- status the federal license if the federal government ment,” and the most recent determination again reports that the individual is “an of immigration by status the gov- lawfully present alien who is not ernment “shall a pre- create rebuttable 3(D)(4). 1(D)(4), §§ United States.” Id. at sumption as to the individual’s immigra- 1(E)(4)

After this second verification from the (5), §§ tion status.” Id. & 3(E)(4)(5). that the renter is Finally, “not the Ordinance “shall however, Immigration 2. "The may, and Naturalization Ser- 3. A renter commit an if offense Federal, (1) respond inquiry by vice shall occupies to an a he: apartment a leased or rented State, government agency, seeking obtaining or local occupancy to a residential li- before cense, 1(C)(1); 3(C)(1); (2) verify citizenship §§ or ascertain the or immi- knowingly id. gration any ju- status of individual within makes a false statement of fact on a residen- agency any purpose risdiction of the occupancy application, au- tial license id. 1(C)(2); creates, 3(C)(2); (3) by providing requested §§ thorized possesses, or sells, verification or status information." 8 U.S.C. or distributes a counterfeit residential 1373(c). license, 1(C)(3); 3(C)(3). occupancy §§ id. fully apply. nature of Appellees’ manner consis- law- in a implemented be facial, prospective challenge regulating immigra- federal law suit—a tent with —and rights housing civil of all the character of Ordinance—a protecting the tion and nationals, City’s police citizens, regulation aliens.” Id. that falls within the 3(F). 1(F), analysis. power necessarily affect our §§ — against legal To insulate the Ordinance Regarding Principle A. Salerno Fa- invalidation, severability clause. there is Challenges cial §Id. facial, Appellees waged That surrounding A few obvious facts the Or- prospective challenge to the Ordinance It should also be noted. does not dinance judicial standards of restraint invokes de- purchase of residences or apply signed to further interests of federal- any other apartment houses or real estate duly passed legisla- ism deference to §id. (regu- within Farmers Branch. Cf. Grange tion. See Wash. State Wash. lating single-family housing); rental Republican Party, State rentals). apartment complex (regulating 1184, 1191, 170 L.Ed.2d apply illegal aliens It does not who are (2008) (recognizing that facial chal- 1(A)(5), housing. in rental visitors lenges generally disfavored because 3(A)(5). hotels, It does apply not suite- they “threaten short circuit demo- residences, motels. It hotel or does cratic laws process preventing em- apply illegal to shelters where aliens do bodying the will of the from people be- It not reside as tenants. does not affect in a implemented manner consistent illegal hiring employment aliens. Constitution”). with the Ordinance, therefore, far from ban- Salerno, Pursuant United States v. from the ning aliens of Farm- should facially not be held City’s Branch. The enforcement of ers “no set unconstitutional toto unless way affects the Ordinance no exists circumstances under which Act whether to government’s decision remove alien, would valid.” 481 it any illegal nor does effect removal L.Ed.2d 697 alien’s from United States. added); (emphasis see also Anderson v. II. Standards Review/Relevant Edwards, 143, 6, 514 U.S. 155 n. 115 S.Ct. Preemption Principles 1291, 6, (1995) n. 131 1298 L.Ed.2d 178 pre- the in a (applying Salerno standard in case The ultimate issue is wheth- case); emption Cal. Comm’n v. Coastal correctly the er district court determined Co., 572, 593, Rock 480 Granite U.S. 107 the preempts Ordinance. (1987) 1419, 1431, 94 L.Ed.2d 577 The preemption district court’s determina- (“To Granite challenge, defeat Rock’s facial “a of law presents question tion that we merely the Coastal Commission needed to review de novo.” See Franks Inv. Co. Co., 404, set identify possible permit v. R.R. 593 conditions LLC Union Pac. F.3d (en banc) (citation law.”).4 (5th Cir.2010) not in conflict Under omit- ted). standard, however, Salerno, if there are only permissible appli- That the Ordinance, analytical of the rules of the we should beginning we must cations 702, Washington Glucksberg, Members of the Court have criti- v. "[S]ome 521 U.S. 739- formulation,” 7, 2302, 7, cized the Salerno Wash. State 117 S.Ct. & & n. 2304-05 n. 449, Grange, 552 U.S. at 128 S.Ct. at 1190 J., (1997) (Stevens, 138 L.Ed.2d 772 concur omitted), (citation also ana- omitted). (citation ring judgments) In by asking lyzed challenges facial whether a Stevens, States v. the Court declined to legitimate a "plainly sweep.” statute has controls; it on the completely invalidate basis of a include rent building codes that challenge. regulate facial safety the sake of or aesthet- ics; excluding establishments, certain Moreover, Salerno, concomitant with liquor clubs, from topless stores to from City given opportuni- should have been See, e.g., various areas. City Pennell v. Ordinance, needed, if ty to narrow the Jose, 1, 11-12, 849, San 485 U.S. 108 S.Ct. during the course of its enforcement activi- (1988) 857-58, 99 L.Ed.2d (permitting judicial ty proceedings. DeCanas v. price extensive rent and “legiti- controls as Bica, 351, 363-64, 933, 424 U.S. 96 S.Ct. mate ... police exercise of powers”). (1976) 940-41, (explaining 47 L.Ed.2d 43 petitioners part that the conceded of the police power no empowers doubt regulation California was unconstitutional Farmers Branch to enact a licensing re- face, recognizing on its but that the state gime to predators exclude child from living give provision limiting could con- in multifamily apartment complexes, and it struction and leaving therefore it for the would enable the City to ban federal or state courts to later decide the first fugitives justice from residing from instance whether provision would con- See, community. e.g., United States law). flict with federal Unfortunately, the Morrison, 598, 618, v. 529 U.S. 120 S.Ct. heed, opposing three fail opinions much 1740, 1754, (2000) (“In- 146 L.Ed.2d 658 apply, less these limits on pow- our review deed, we can think example of no better They ers. invalidate the Ordinance with- police power than the suppression acknowledging out application its valid to of violent crime and the vindication of its legally citizens and resident aliens. (footnote omitted)); victims.” and citations Jacksonville, City Erznoznik v. 422 U.S. B. The Ordinance Is Within the Po- 205, 212, 2274, 95 S.Ct. 45 L.Ed.2d lice Power (1975) (describing city’s “police power Ordinance, viewed, correctly falls protect “undoubted”); children” as see police power within the traditional Comm’n, also Nollan v. Cal. Coastal regulate housing by means of li- 3141, 3152, 107 S.Ct. censing. (“It (1987) L.Ed.2d 677 is also now commonplace that this Court’s review of Historically, police power extends to rationality of a State’s exercise of its whatever polity measures a chooses to en- police power demands the State act protect, preserve, and enhance the rationally ‘could have decided’ that lives of its citizens. See Gonzales Ore- adopted might measure achieve the State’s gon, objective.” (quoting Minnesota v. (describing 163 L.Ed.2d 748 Clover po- Co., 456, 466, Creamery power legislation lice 449 U.S. 101 related to “the Leaf 725, (1981))). lives, limbs, 715, protection health, 66 of the com- S.Ct. L.Ed.2d 659 It fort, would seem quiet” citizenry (quoting City’s power of the to follow that the Medtronic, Lohr, to illegal renting quali- Inc. v. 518 deter aliens from U.S. (1996))). 2240, 116 police power, 135 L.Ed.2d 700 fies as an exercise of the so police The extends so far power long as to as no invidious discrimination occurs.5 determine which precedent, binding formulation of the standard standard valid remains on 460, 1577, correct. See 559 U.S. 130 S.Ct. in us this case. 1587, (2010). Although 176 L.Ed.2d 435 we disagreement, Supreme note this the Court Judge Reavley’s opinion implies 5. invidious standard; has not overruled the Salerno discrimination, but such issues were not de- contrary, the the Court has continued to re- by pending. cided the trial court and remain See, Therefore, e.g., cite it. id. the Salerno. 566 omitted); as not see also Chamber Commerce Characterizing the of — U.S.-, Whiting, reach of 131 S.Ct. incredibly broad v.

within U.S. of (de- (2011) 1983, opposing 1968, City’s police power, as two 179 L.Ed.2d 1031 idea, do, very novel opinions dealing would is a with a clining preempt state law concern); au- by any Supreme Court unsupported of Doe v. area state traditional contrary, Supreme thority. (5th Cir.1980), On 448, 628 F.2d 452-53 Plyler, attempt confirmed Court that “California’s v. grounds Plyler other nom. on sub aff'd employment prohibit knowing 2382, 202, Doe, 457 U.S. 102 S.Ct. not employers persons by California charge of (upholding L.Ed.2d lawful in the United entitled to residence immigrants’ illegal for education of $1000 here, States, certainly let alone to work schools). Unfortunately, public children police pow- the mainstream such within opinions three ac- opposing none of the DeCanas, 356, at regulation.” U.S. er strong presump- the Ordinance cords added). at 937 (emphasis 96 S.Ct. tion, refers to it although Judge Higginson housing regu- applies same conclusion separate in his concurrence. touching illegal lations aliens. Preemption D. Rules Constitutionality Presumption C. set, background these rules With the local Because the Ordinance involves may be principles preemption of federal strong it is a police power, entitled to briefly Supremacy summarized. constitutionality. This presumption holds the Constitution and acts of Clause operates in federal presumption generally supreme, con- Congress displacing to be See, law. v. Le- preemption e.g., Wyeth “where trary legislation state or local vine, 565, 1187, 555 U.S. 129 S.Ct. conflict two there is an actual between the 1194-95, (2009); Altria 173 L.Ed.2d 51 cannot legislation sets of such that both Good, 70, 76-77, Group, Inc. v. & John E. stand.” Ronald D. Rotunda (2008). 129 S.Ct. 172 L.Ed.2d 398 Nowak, Law: Treatise Constitutional local operates specifically It in cases where (4th 12.1 Substance Procedure regulations police power within the ed.2007). Arizona, In Supreme Court by to be federal immi- preempted asserted may preempt that federal law explained DeCanas, In gration law. by express statutory provision; local law an treated statute Court California preemption, Congress’s placing field criminalized the aliens as a hiring of governance” field within “exclusive regulation employment and would law; preemption conflict Congress to oust presume that “intended fed- actually when state conflicts with authority regulate employment law. at 2500-01. eral 132 S.Ct. relationship by [the covered California Regarding preemption, field the Court in a manner with perti- consistent statute] “[fjederal regula- cautioned DeCanas: DeCanas, nent federal laws.” preemptive ... should not tion be deemed Likewise, in Arizona 96 S.Ct. power in the absence of regulatory — of state States, U.S.-, nature reasons either that the persuasive (2012), L.Ed.2d regulated subject permits matter no conducting preemption held that when conclusion, Congress or other that the analysis, “courts should assume that the unmistakably 424 at so ordained.” U.S. powers are not police historic of the States (alterations 356, original) in 96 S.Ct. at 937 unless the clear and superseded that was v. (quoting Fla. Lime & Avocado Growers purpose Congress.” manifest Id. at of (internal 1210, Paul, 142, 132, quotations 2501 and citations 373 U.S. 83 S.Ct.

567 (1963)). 1217, 10 Consequent interest in uniform enforcing immigration L.Ed.2d 248 Arizona, regulations narrowly leaves room the defined no whatsoever for ly, in experimentation “local that deviates from registration.” the field of “alien S.Ct. system ‘the Congress created.’” A with federal Dennis local law conflicts at 2502. Arizona, Op. at 549 (citing at with both S.Ct. compliance reg when law either 2506-07). impossibility” “is a or physical ulations the local as an obstacle

when law “stands required We are thus to address three execution of accomplishment to the and (1) separate arguments: the is Ordinance objectives of purposes the full and Con regulation immigration a of wholly outside (quot at 2501 gress.” or government powers local under Davidowitz, 52, 67, Hines v. U.S. (2) Constitution; the the Ordinance is (1941)). L.Ed. 581 preempted Congress “occupied because housing through the field” of alien its web Licensing The III. Ordinance’s Pro- of regulations governing aliens’ admission visions duration stay country; and of and Reavley opinions The and Dennis ex- impliedly the Ordinance conflicts with similar for their conclu- press grounds and stands as an obstacle to the enforce- wholly that the is sions Ordinance immigration ment of federal laws.6 We opinion preempted. Reavley The states: argument address and refute each turn. “Whether the Farmers Branch ordinance Preemption A. Constitutional pur- as an to the preempted obstacle objectives Congress and poses of the It that asserted of ‘matter immigration judg- field is a of a of “regulation immigration” amounts to ment’ informed the federal scheme and preventing because aliens from and of the federal purpose effects renting apartments single family dwell- Reavley Op. a statutes as whole.” 540 ings in Farmers Branch is tantamount (citation omitted). opinion Dennis determining they may that not reside with- infringes concludes “the Ordinance If in the United States. this assertion comprehensive on and conflicts and accurate, holding. were it be a would bold exclusively classifying schemes Regulation-of-immigration preemption de- enforcing adjudi- noncitizens and with Constitution, directly rives from the which implications those federal cating confers on the federal classifications,” stands and “thus ob- foreign to conduct relations and power to the full pur- stacle achievement a Rule of Naturaliza- promulgate “uniform objectives uniform poses Const, tion,” I, 4, art. cl. immigration Op. law.” Dennis at 549. “authority over vests exclusive control reasoning opinions of the two fre- to control admit or ex- —to language, uses quently preemption field solely in clude aliens — ... the Federal although speak pre- both also obstacle government.” Takahashi Fish & Game Comm’n, Neither identifies emption. opinion (1948). conflict

specific between Ordinance’s 92 L.Ed. 1478 State laws licensing provisions imposing “authority and federal law. on the to con- “constitutionally opinions open interpre- immigration” Both seem trol primacy regulation of the national proscribed tation opinion suggests squarely rejected that the osition 6. The Dennis unilat- Op. Court in Dennis policy eral enforcement Executive See note Arizona. Ordinance, might accompanying preempt prop- text. Branch “imposing criminal at issue as a labor to au- powerless would be Congress itself DeCanas, employers at state who against 424 U.S. sanctions approve.” thorize or Congress 355-56, Even aliens who have no fed- knowingly employ at 936. 96 S.Ct. the state power to delegate not this within the coun- right employment could eral governments. or local try.” Id. however, reject- DeCanas, the Court

In not, opinions Dennis do Reavley sim- paragraph reasoning single ed—in a cannot, they demonstrate — because and Dennis Reavley ilar to that runs afoul of the test DeCa- Brennan, writing for Justice opinions. does not determine nas. The Ordinance Court, it “never declared that unanimous anyone into or out of entry or exit of which in every state enactment held that States. It does not determine the United regulation of with aliens is a any way deals a “lawful” im- under which the conditions per pre-empted se and thus immigration the Ordi- may remain. And migrant la- power, whether by this constitutional of rental licenses grants nance’s or denials 355, at tent or exercised.” correspond with designed are to follow added). The (emphasis at Court concerning ap- each federal determinations upholding of cases “cer- string cited to a the end of the This should be plicant. discriminatory treatment of tain state preemption issue. constitutional lawfully within the United States.” aliens Nevertheless, im Reavley opinion that, authority “remain Id. Those cases plies that the Ordinance is alone, that aliens are the standing the fact illegal regulation may because it force render it subject a state statute does not of rental hous aliens to relocate from certain immigration, which is es- regulation in Branch. This view is Farmers who should or sentially a determination of Su authority from the consistent country, into the should not be admitted Court, court, Eighth preme legal under which a and the conditions upheld in Keller.7 The Court has Circuit (emphasis add- may remain." entrant that, criminal respectively, state statutes ed). rejected the California The Court knowing employment ized the that a labor underlying assumption court’s effectively forced them to relo aliens was a regulation targeting illegal aliens employed. to be they cate if wish Whit explaining “regulation immigration,” 1973; DeCanas, 424 ing, 131 have been no need that “there would 355-56, at 936-37. This circuit congressional relevant even to discuss the free denying a Texas statute has held that finding pre-emption enactments in illegal immigrant education to chil public of aliens regulation regulation if all state preempted not federal law. immigration.” dren was ipso regulation facto was Certainly, Plyler, 628 F.2d at 451-54.8 law See depicted Id. The Court California deter, Accordingly, they regulate designed bility. do not im- 7. Keller concluded: "Laws migration generally in the 'field' of or conduct unlawfully present prohibit, even aliens WL Id. at alien removal.” particular locality residing within a from 3242111, at *6. laws estab- not tantamount lishing remain in the coun- who enter or Plyler, this court held the Texas statute In Fremont, try.” 719 F.3d Keller v. preempted, found it to violate the but (8th WL at *5 Cir. June Plyler, equal Doe v. protection clause. Further, 28, 2013). provisions rental "[t]he 1980). (5th Cir. The Su F.2d 449-50 (or country do not remove aliens from this holding with preme upheld the latter decision, they parallel City), preemption do create a which ruling even the nor on the out law of this circuit. remains the process to determine an alien’s remova- local

569 excluding public one’s children from free purpose or effect would be an impermissi- illegal would be a deterrent to education regulation ble of immigration. The ulti- Texas, remaining although aliens’ it mate proof opinions’ of these error is the would not affect their residence elsewhere that, plain despite having fact ruled three country. times on preemption issues arising from aliens, local illegal laws affected Reavley

To the extent the and Dennis Court has refused to any treat of them as opinions would hold the an in- constitutionally impermissible regulations “regulation immigration” valid of because immigration. See generally legislators the intent of local was to 2492; 1968; 132 laws, Whiting, S.Ct. 131 reinforce federal alien removal S.Ct. DeCanas, 351, 424 Supreme rejected U.S. 96 933.9 argu- Court has their S.Ct. ments: Preemption B. Field Licensing Although the State has no direct inter- Provisions est in controlling entry country, into this n preemption Field preemp- differs from being by interest one reserved tion design constitutional because it Government,

Constitution to the Federal depends on affirmative Congressional migration might unchecked unlawful im- acts “occupy to the field” pair economy generally, sought regulat- the State’s to be ability provide the State’s to some im- ed. See Gade v. Nat’l Mgmt. Solid Wastes Ass’n, 88, portant Despite 115, 2374, service. the exclusive 505 U.S. 112 S.Ct. borders, 2392, control (Souter, J., Nation’s 120 L.Ed.2d 73 (“Field we cannot conclude that the States are dissenting) pre-emption wrought any power without to deter the by a congressional manifestation of intent influx of ” persons entering the States (citation to occupy an entire field.... law, against and whose numbers omitted)). Reavley opin- and Dennis might impact have a discernible on tra- ions both refer to preemption. field See ditional state concerns. Reavley atOp. (“Congress has occu- removal.”); 23, pied the field of alien Plyler, 457 at 228 n. Dennis S.Ct. at (“If added) atOp. 2400 n. 23 3 of the Arizona statute (emphasis (citing DeCa nas, 354-56, valid, every were give U.S. at State could itself 935- 36). disregard In language, independent authority prosecute of this Reavley opinions registration and Dennis violations....” (quoting would hold Ari- 2502)). zona, powerless that states are “to deter the 132 S.Ct. at Their conclu- influx” because local having apparently such a sions hinge proposition on the parties agreed any If the in DeCanas Respondents ers.” Id. at 16. concurred: thing, it was that both the intent and objective ultimate "[t]he [Section 2805] effect discourage illegal Section 2805 were to immi expel all ‘aliens entitled to lawful resi- gration passed California California. dence’ from California.” “Section 2805 explained, Petitioners "to diminish the to control seeks into the State of impact seemingly unstemmable flow of by seeking California ... to abolish their em- 5, illegal aliens.” Brief of Petitioners at De ployment opportunities.” Respon- Brief of Bica, Canas v. 424 U.S. Bica, dents at DeCanas v. (1976) (No. 74-882). L.Ed.2d 43 In no uncer- (1976) (No. 74-882). 47 L.Ed.2d 43 terms, underlying purpose tain "[t]he of [Sec- It is unfathomable that policy designed tion] 2805 is state labor uphold would the law in DeCanas if the intent protect wage-earners. California It seeks discouraging illegal and effect of were aliens curtail the influx of entrants” "fo- "regula- cus[ing] sufficient to transform a law into a directly problem, on the source of the namely hiring practice employ- immigration.” of local tion of for against individuals charges criminal requiring licenses municipal that a “in the officials violations where illegal revoking them from all renters and scheme” of comprehensive charge of analogous to fed- sufficiently immigrants is prosecution no registration determined are “the which procedures,” eral “removal Arizona, at 2503. occur. 132 S.Ct. should determin- procedure sole and exclusive the Arizona provision § Like another be ... removed may an alien ing whether § local law enforcement law— 6—enabled 8 U.S.C. States.” from the United “if the officer a warrantless arrest to effect 1229(a)(3). § arrestee cause” to believe the probable has wrong, argument this premise him rendering offense has committed an however, the Su- it conflicts with because States.” Id. from the United “removable explanation incontrovertible preme Court’s § field the Court held at 2505. Whether “A proceedings. “field” of removal unclear. preempted is somewhat conflict removability requires a deter- decision ruling was Assuming that the Court’s to allow appropriate whether it is mination its concern was preemption, on field based in living foreign a national to continue with the “field” government overlap local Arizona, at 132 S.Ct. United States.” country; of alien removal from this DeCanas, Whiting together, 2506. Taken that the principle provision “violate[d] how narrow and Arizona demonstrate is entrusted” to process removal regarding local scope preemption of field Thus, Id. at 2506. it “at- discretion. De- illegal that concerns aliens. legislation state officers even tempted] provide deny- rejected the contention Canas authority to arrest aliens on the greater in illegal employment aliens California removability than Con- possible basis of attempting to “remove” was the same as federal immi- gress given to trained them,, consequence despite practical gration officers.” Id. opportunities is employment lack of with and Arizona is consistent DeCanas insuperable pres- barrier to continued from Whiting distinguishable while 356-63, 96 S.Ct. ence. See U.S. at held at most Although case. the Court correspond- a Whiting represents 936-40. another— field-preempted, two sections Congress ing decision not to hold 2(B) upheld, § id. at provisionally —was the revocation “occupied the field” vis-a-vis 5(C) 2507-10, a fourth— over- —was would befall of state business licenses that preemption turned on conflict alone. hired aliens. Arizona businesses that cases, previous As in at 2503-05. See 131 S.Ct. at 1977-87. using in was cautious broad provi- most two Finally, authority that inheres proscription of local in conflict of SB 1070 were declared sions Moreover, § preemption. field im- carefully with defined “field” within a were intended to 6 of Arizona SB 1070 Sec- migration law. 132 S.Ct. at 2501-10. pur- enforcement not for employ local law tion of the bill allowed the arrest of ordinance, but poses enforcing a local carrying aliens not identification removing officers in solely to assist federal provision was cards. Id. at 2501. country. The Ordi- illegal aliens from this on the field of alien held to “intrude[] intent or mechanism. nance has no similar id., Congress had registration,” topic preempted. It is not field Hines v. Davidow- reserved to itself. See Licensing Preemption of Conflict C. 399, 408, itz, Provisions (1941). enforce- Separate L.Ed. 581 may could arise from registration preemption ment of federal rules Conflict command, from the im- legislative by allowing specific policies” “frustrate federal Although both federal tenants Farmers Branch. ille- compliance possibility revoked, gal the local law’s ob- aliens’ rental licenses local or from no contains device which purposes means struction government may local a official remit the See 132 S.Ct. regulation. federal to federal or Reavley custody attempt alien to com- opin- and Dennis at 2500-01. The the federal pel government against act rely preemption, they on as ions “obstacle” Third, alien purposes. the for removal Congress That must. is because depends enforcement of the Ordinance provision no passed expressly preemptive affirmations, solely on two federal ren- concerning illegal housing, alien and no days affirmatively regulates sixty apart, dered least that an federal law where is not in lawfully present in alien the illegally present who are the United aliens building inspector may States. The may Consequently, live.10 not States United independently decide a renter’s lawful sta- express impossibility preemp- neither nor opinions is at These in- tus. tion issue here. broadly focus the Ordinance’s stead on Furthermore, government the federal alleged alien removal conflict with federal required by respond City’s law to complexity the of alien classifi-

procedures, 1373(c).. One, inquiries. § 8 U.S.C. but cations, en- and the considerable discretion necessarily only,11system not the that the by immigration trusted law to federal offi- City may Systematic use is federal the cite Although opinions cials. both Arizona Alien Verification Entitlements extensively, Whiting, neither one mentions (“SAVE”) System. the govern- If which the Court two Supreme ment renders an that the alien opinion ago requir- Arizona law years held that an lawfully present or that his status is unre- verify their employers employees’ rental way, solved some license pose does not an lawful status not be revoked. The thus over- Ordinance of federal im- obstacle to the enforcement compensates, undercompen- rather than migration policy. Whiting, 131 S.Ct. at sates, possibility for the that a renter is be 1985-87. This case should controlled unlawfully present but removable. by analy- the Whiting implied preemption Certainly facially it is not inconsistent with sis. status determinations. our

Setting stage conclusion are In Whiting, upheld Court that several facts about the Ordinance requiring employers Arizona law to ver- Reavley opinions and Dennis minimize. ify of their employ- status First, does not effect or employers’ revoking ees and business deportation affect aliens’ removal for willful violations. The Su- licenses or otherwise from the States. Sec- of the disposed Court contention preme ond, parallel not a en- Ordinance is they insofar as concerned alien em- that regulations assist forcement scheme to intruded ployment, Arizona completing for- government initiating “uniquely regula- area[] on proceedings. mal detention or removal the balance” Con- “upset[ting] tion” Rather, licensing governs passed (post-DeCa- it is a that struck when it gress nas) specific concerning alien property prospective legislation subset owners amicus in scope proscription on "harbor- 11. The this case 10. explains Department that of Homeland ing” illegal aliens will considered in the Security programs several tai- has established next section. inquiries pursuant particular types lored to §to 1373(c) reveals Whiting, inquiry But if a employment. citizen, (Roberts, C.J., controlling opin- someone is a United States 1986-87 certainly question whether answers the ion).12 inherent con- found no The Court individual is authorized work. law because federal and state flict between response if the The same would be true “[r]egulating merely law was the Arizona 1373(c) to a disclosed that query licensing through businesses in-state permanent was a lawful resi- individual Similarly, the Ordi- at 1983. laws.” Id. or, hand, alien the other had dent regulates local businesses nance here event, In been ordered removed. also licensing laws. if through provided under the E-Veri- information claim that the federal rejected the 1373(c) that an § does not em- not use would confirm fy system employers that alien, is an then ployee unauthorized an alien’s yield concerning answers reliable case. prove the State cannot its work authorization: added) (internal (emphasis cita- Id. at 1982 the determination on which The federal omitted). tions rely under 8 provided must State 1373(c). § re- provision That U.S.C. dispositive answer to the concern to “veri- the Federal Government quires wrongful revocation about Ordinance’s an “citizen- fy or ascertain” individual’s alleged inconsistency rental licenses of response ship or status” federal determinations with BREYER is his request. building inspector prove to a Justice “cannot case” “says inquiry conclusively this information if a concerned federal does work Jus- is “not nothing lawfully about authorization.” establish the renter present.”13 that concern. tice SOTOMAYOR shares implied preemption analysis received States" is inconsistent 12. The either with fed votes, joined impossible define. The only as Justice Thomas eral law or district four judg- rejected argument, Villas at opinion and concurred in the court this Park rest of Branch, Tex., Whiting, 131 at 1973. Justice side Partners Farmers ment. (N.D.Tex.2010), disagree- previously expressed F.Supp.2d 701 835 so do Thomas present” implied preemption jurisprudence "lawfully we. The term is used in ment with See, Levine, See, e.g., generally. e.g., Wyethv. number of federal 8 more statutes. U.S.C. J., (Thomas, 1229a(c)(2); 1357(g)(10); §§ at at 1623; ("I 1182(a)(9)(B)(i)(II); 1621(d); judgment) sepa- concurring in the write however, join 1436(a)(3); 1436(a)(5); rately, 1437y; §§ because I cannot U.S.C. 4605; 3304; 2015(f); majority’s implicit § of far-reach- § endorsement 26 U.S.C. 7 U.S.C. partic- ing implied pre-emption In doctrines. see also Patient Protection and Affordable ular, Act, 111-148, increasingly skeptical have I become Care 124 Stat. Pub.L. pre- ‘purposes objectives’ (2010), (c)(2)(B)(ii)(II); 1402(e)(2); Court’s at approach, term, emption jurisprudence. l(c)(2)(B)(i)(l). Under this Clearly, this used routinely state laws (a) the Court invalidates ranging provision federal laws from the perceived conflicts with broad feder- based on govern- immigrant local status information to legislative history, gen- policy objectives, or (b) al ment entities to the status determinations congressional purposes eralized notions (c) denial of various themselves embodied the text of feder- that are not within newly qualification benefits and enact- implied pre-emption doc- Act, al law. Because ed Affordable Care must have statutory 478.11, far text (defin- trines that wander from the meaning. See also 21 C.F.R. Constitution, I con- States”). are inconsistent ing unlawfully the United "alien only judgment.”). cur The Ordinance this common federal term uses confusing potentially rather than a conflict- red-herring pre- ing illegal conflict local definition aliens that it 13. A variant of this argument possessing use exclude rental emption is that the Ordinance’s seeks to from licens- unlawfully present in the of the term “alien es. “[wjhen Judge Reavley’s opinion implies ject” also there was no comprehensive infirmity potential impo- in the Ordinance’s program regulating the employ- illegal violating sition of fines on aliens for ment of unauthorized aliens.” Id. at 2503. licensing requirements. implica- This No extant regulates federal law the hous- tion is derived from the Court’s illegal aliens. There is thus no 5(C) invalidation of of Arizona S.B. evidence of a deliberate congressional which illegal criminalized at- workers’ choice subject; on the if anything, we tempts employment. to find 132 ought congressional to infer ambivalence S.Ct. at 2503. The Court found a clear from Congress the fact that passed no law conflict between Arizona’s law and the fed- concerning or, either “sanctuary cities” Immigration eral Reform and Control Act the opposite pole, cities attempt- that have (“IRCA”), imposed which various sanctions ed to discourage influxes of illegal aliens. employers aliens. approach Court’s in DeCanas is Further, 2503-05. opinion Arizona more compelling here than Judge shows that the legislative background of Reavley’s, for DeCanas recognized that IRCA was critical to the Court’s decision. possess “States broad authority under legislative history Id. at 2504. That dem- their police powers to regulate employ- the onstrated “that Congress made a deliber- ment relationship protect to workers with- ate choice impose penalties not to criminal State.” U.S. at 96 S.Ct. at on for seeking employment. aliens” Id. decision, 937. At the time of that Because the Court viewed IRCA as con- federal government “had expressed no taining Congress’s judgment “considered more than peripheral ‘a concern with [the] making criminals out of aliens en- ” employment illegal entrants.’ gaged in work ... unauthorized would be DeCanas, 132 S.Ct. at 2503 (quoting inconsistent with policy objec- federal 939) (alteration U.S. at tives,” id., the conflicting state’s method of original). case, Relevant to this the feder- enforcement must be an “obstacle to the al expressed no more than regulatory system Congress chose.” Id. at peripheral concern housing with aliens’ Judge Reavley consequently 2505. opines choices. that “criminalizing” illegal aliens’ choice of housing similarly Congress’s conflicts with But Whiting stands as the most obdu- designated procedures. alien removal rate Reavley obstacle to the and Dennis opinions they insofar as pre- assert conflict complaint

This is at high too a level of emption of the Whiting Ordinance. held generality: Any licensing regulation local “[r]egulating in-state businesses touching immigrant in- status —for through licensing prohibited laws” that stance, the refusal to issue drivers’ licens- knowing employment aliens, illegal us- es—could be said to cosmieally conflict police means within the power, state’s with the goals of federal law. stands as no obstacle to the enforcement of concretely, More this view overlooks the even to federal preface part to this of the Arizona discus- sion, that, dealing employers illegal which -with acknowledged in DeCa- nas, approved had aliens.14 131 Court “State 1983. The Court authority pass its own laws on the sub- found that the mechanics of the Arizona savings provi- licensing regulation 14. The existence of a federal not to be conflict- "licensing” sion for state laws furnished an preempted. generally Whiting, See analytical part, but not the whole or decisive reasoning, why the Court held the Arizona overstated; fed- rather Class C mis- correspond but this is enacted law were impris- Id. at by of alien status. are punishable determinations demeanors eral Thus, definition state’s 1981-88. motor vehicle typified onment and law- alien” an alien “not as “unauthorized Higginson’s con- Judge violation citations. residence,” permanent fully admitted is conflict clusion to be em- otherwise authorized or not largely two preempted upon rests theories: Id. adopted the federal definition. ployed, (1) with federal the Ordinance “interfer[es] not al- investigators were at 1981. State law,” anti-harboring U.S.C. unau- determine independently lowed 1324(a)(A)(iii), the Ordinance “al- by the status but were bound thorized aliens ‘hold[] officers low[s] re- government’s determinations possible presence unlawful custody for under 8 from information furnished sulting supervi- without federal direction 1373(c). ” result, Id. As a U.S.C. Moreover, Higginson Op. sion.’ at 529. held, be no “there can definition opinion severability because his holds law as to between state and federal conflict the licensing clause ineffective to divorce authorization, at the investi- worker either fines, potential from provisions adjudicatory stage.” gatory Higginson opinion would overturn Or- that con- Rejecting general contentions in toto. an al- expressing dinance While was to maintain preemption required flict decision, narrow legedly rationale enacting Congress struck the “balance” is as broad Higginson opinion’s impact alien certain restrictions opinions. Reavley that of the and Dennis inapplicable the employment, Court found disagree Higginson opin- We with the “uniquely the cases involved Ordinance, interpretation with ion’s regulation,” “[rjegulating areas of because preemption analysis, and its conflict through licensing businesses laws in-state non-severability Higgin- ruling. its If has never been considered such an area opinion any fails one of these ele- son on Id. at 1983. dominant concern.” ments, upheld. must be We Ordinance noted, suspension Finally, “[licensing as it in discuss each of these elements turn. are sanctions. significant and revocation licens- they typical But attributes of a A. Possible Criminal Offenses under ing regime.” Id. the Ordinance repeat facts undisputed We need not examined, Carefully the Ordinance does analogy in the instant case to reinforce presence “criminalize” aliens’ in illegal not the Ordinance and the Arizona between Branch, expose it Farmers nor does les- Whiting. upheld law duplicate “harboring” sors to a for penalty opinion aliens. The mis- Higginson Preemption of IV. Conflict Criminal actions reads the that constitute offenses Provisions under the Ordinance. opinion Higginson principally turns view that levied on on the fines can be Impact Renters of Ordinance on potential violators of Ordinance. The Judge Higginson’s conclusion for is a fine not penalty criminal violations will be to hold aliens custo- officers able $500, it as a qualifies to exceed which presence unlawful is inaccu- dy possible Judge Hig- Texas C misdemeanor. Class plain rate under the terms of Ordi- correctly law enforce- ginson notes that Also, nance. because the Ordinance does and “detain” ment officers “arrest” offenses, a if he continues to penalize for such misdemeanor tenant violators Instead, after potential in a Farmers Branch rental status relevant to reside fines. occupancy license is re- his residential penalizes only Ordinance renters voked, is no there basis to conclude circumstance, when they first fail apply conflict- anti-harboring statute occupancy for a residential Even license.16 the Ordinance to rent- preempts applied if lawfully a renter is “not present,” he ers. automatically receives a residential occu- (ie., possi- A an individual who is renter and, pancy applies license when he for one lawfully present”) can violate the bly “not therefore, does not commit an offense. Id. only ways: Ordinance three 3(B)(6). 1(B)(6), §§ (1) by occupying a leased or rented Critically, Ordinance im- does not apartment obtaining a valid before pose liability criminal renter after license;15 occupancy applies occupancy renter an li- (2) by “knowingly mak[ing] false cense.17 This is because the Ordinance application statement fact on an penalize does not a renter for continuing license,” occupancy for a residential occupy housing rental after the re- 1(C)(2), 3(C)(2); §§ Ordinance vokes a occupancy residential license.18 or Rather, revoked, if a license is the Ordi- (3) by “creating], sell[ing], possess[ing], nance makes lessor’s conduct an distributing] resi- counterfeit sum, occupancy dential license.” offense. In at no City— time will the 3(C)(3). 1(C)(3), §§ determining that an after individual “not lawfully “arrest,” present” able to “de- In none of these three circumstances is the —be tain,” renter’s lawful or unlawful or “fine” the renter. (“It 1(C)(1),3(C)(1) 1(C)(2), §§

15. See Ordinance fense. See 3(C)(2). person be an shall offense for a to be occupant apartment of a leased or rented 18.Judge Higginson contends that the Ordi- obtaining occupancy li- without a valid first and, penalizes "ongoing an nance therefore, condition” permitting occupy person the that cense to any a tenant commits an offense at added)); apartment.” (emphasis occupant time he is an without a valid occu- 3(B)(1) (“Prior 1(B)(1), occupying any §§ Higginson pancy Op. 10. license. 532 n. apartment, occupant or rented leased each suggests reading that the While he our occupancy obtain a must residential license.” "strained,” his Ordinance is construction added)). (emphasis the would read "first Ordinance the words obtaining” Specifical- out of the Ordinance. Judge reading ly, Higginson's be would accu- apply 16. If renter does residential a not for a read; if an rate the Ordinance "It shall be license, occupancy City prompted the is never person a occupant offense for a to be an unlawfully to determine whether the renter is apartment leased or rented without -ob- first present in the United circum- States. In this occupancy taining permitting a valid license stance, (i.e., impos- if the fines the renter person occupy apartment.” the liability) es criminal for the lack of a valid 1(C)(1) 3(C)(1) (alteration added). & Con- license, occupancy solely then the fine is manner, struing er, the Ordinance howev- to obtain a the failure license—the renter’s obtaining” super- renders the words “first or lawful unlawful status is both unknown See, Walker, e.g., Duncan v. fluous. completely irrelevant. 174, 121 S.Ct. 150 L.Ed.2d (2001) (“[A] ought, upon statute the course, 17. Of to the extent a renter makes a that, whole, to be so construed if it can be application, of fact on such clause, sentence, false statement his prevented, no or word shall name, void, may (inter- providing a false renter insignificant.” as the superfluous, be or omitted)). quotation later be deemed to have committed an of- nal marks lease to whose residential occu- Ordinance on Lessors individuals Impact

2. revoked pancy license has been because that the Higginson also contends Judge they lawfully present.” are “not There is conflict-preempted because Ordinance is potential liability relating other a les- “by criminalizing conduct that does the sor’s administrative duties under Ordi- evading detec- have the effect of nance, a maintaining copy such as of the authority tion, state officials by giving occupancy residential license each outside the immigration to act as officers properties. of their None occupant known specified by federal ‘limited circumstances’ subject of these violations would lessor Ordinance with ‘interfere[s] § liability to criminal under 1324. by Congress’ struck careful balance harboring of respect non-citizens First, a “prosecution” under Ordi- contrary Higginson Op. to law.” here leasing nance for to an individual who nev- 2505). (quoting applies a er for nor obtains residential Indeed, violate lessors who the Ordinance occupancy rely, license would not subject to fines conduct that is way, on status of the rent- § not criminalized under 8 1324. U.S.C. Liability solely er. be based would on face, then, On its Ordinance does not failure to comply with the Ordinance’s li- overlap anti-harboring with the contrast, censing In requirements. pros- or retard the federal government’s crime ecution 1324 would necessarily under fo- prosecutorial exclusive discretion.19 cus on the immigration status renter elaborate, three whether the other elements of a To lessors Branch Farmers § 1324 criminally violation could be established.20 potentially liable under the (1) Higginson charges they opinion if: lease focus- to individuals (rather for or apply licensing regime who never obtain a residential than (2) individuals) license; occupancy they continue to status of the Second, recently 19. Circuit The Eleventh concluded remain in the United States. al- though Eleventh Circuit that an Alabama statute that criminalized concluded that unlawfully present "harboring conflict-preempted Alabama statute was alien en by § acknowledged agreement it rental tering a rental into with that provision penalize the same did not conduct conflict-preempted by § alien” was 1324. Alabama, Alabama, F.3d at 1288. United States 691 F.3d Instead, provision it concluded that the rental (11th Cir.2012), cert. denied 569 U.S. problematic was because it -, "effectuates an 185 L.Ed.2d 905 harboring expansion untenable of the federal (No. 12-884). Alabama did not seek review provision.” disagree Id. While we with the ruling of the Eleventh Circuit's on the rental Eleventh Circuit’s conclusion that a state Certiorari, provision. See Petition for Writ of conflict-preempted merely is it because crimi- Alabama, ——, (No. 133 S.Ct. 2022 not, nalizes conduct that federal law does as 12-884), at 10. infra, similarly discussed we find that apply inappropriate logic It is penalize the Ordinance does not same con- First, Alabama to this case for two reasons. duct as 1324. believes that even if one state cannot prohibit gov- the exact conduct as the federal harboring 20. The four elements of a violation involved, long (1) so ernment is unlawfully present are defined an as: alien; anti-harboring (2) conceals, an statute is about the "har- defendant that har- borer,” illegal bors, shelters; regu- (3) alien. not the It is not a knowing or while or reck- immigration except indirectly lessly lation of in that disregarding unlawfully the alien in that illegal it forecloses an means that could assist present; way substantially in a illegal staying in the remaining aliens in United States. facilitates the alien the United Shum, quite the legal This is different from discretion States. United States v. 496 F.3d (5th Cir.2007). illegal to allow 391-92 some aliens shown, a “distinction without a difference.” is As we have the Ordinance does “arrest,” provide “detention,” n. not Higginson Op. at 535 15. This character- or “prosecution” aliens, illegal not scrutiny ization does withstand closer nor does it create the local equivalent of anti-harbor- respective because the elements of the ing criminal offense. Without criminal “crimes” evince no conflict.21 prosecution as its pivot, Higginson con- Second, prosecution under the Ordi- analysis Moreover, flict fails. if there is continuing illegal nance for to lease to an doubt about the scope of the Ordinance’s occupancy alien whose residential license the Salerno provisions, criminal principle been trigger revoked could not a fed- provisions shields the from facial unconsti- eral anti-harboring prosecution. This vio- tutionality, elementary principles lation could occur after the renter judicial restraint would afford completes application. application opportunity courts the first at construing process requires provide a renter his the Ordinance.22 name and the address where he plans to Conflict-Preemption B. Flawed Therefore,

reside. even if the lessor con- Analysis tinued to lease to the renter after the revoked, renter’s license was it would be But even if we accept, counter-factually, impossible Judge Higginson’s to establish that the lessor was characterization of the Ordinance, “hiding” the his conflict-preemption analysis alien from detection as seriously is flawed. required is for an anti-harboring convic- tion. See Varkonyi, United States v. level, On general the most Higgin- (5th Cir.1981) F.2d (interpreting opinion son troubling embodies the concept “harbor, shield, statutory phrase statute, that a federal criminal standing conceal” to imply “something being alone, can preempt police power local reg- detection”). Instead, hidden from it would ulations. The fact govern- that the federal public knowledge where the “not lawful- ment has chosen to criminalize the behav- ly present” residing. alien was ior of harboring illegal aliens does Hig 21. The Odebrecht case relied policy subject. law or on this ginson opinion inapposite. shown, Odebrecht And as we have there are no obvious Const., Sec., Dept. Transp., Inc. v. Fl. single and direct conflicts with this statute. (11th Cir.2013). F.3d 1268 Odebrecht held reason, Higginson opinion's For this reli- (the recent Florida's statute "Cuba Council, Crosby Foreign ance on Trade Amendment”) preventing companies that do 147 L.Ed.2d 352 bidding business with Cuba from on state (2000) (overturning a Massachusetts statute public conflict-preempted contracts was Burma), preventing trade with is also mis- concerning federal law trade with Cuba. The placed. extensive, exact, length court described at explicit and "nuanced” federal statutes and DeCanas, In the Court remanded for fur- delegations power of Presidential in this sen ther consideration of such issues as whether foreign sitive area of relations. Id. at 1275- the state law defined unauthorized aliens in juxtaposed 78. The court the Florida stat conflict with federal law. The Court held that explicitly ute's broader definitions that re California courts should decide in the first “obvious, vealed an apparent direct and con instance whether and to what extent the state flict between” federal and state law. Id. at Odebrecht, appropriate regulations, enforced with Higginson 1280. Unlike opin the DeCanas, might conflict with federal laws. point ion can to one federal criminal 364-65, statute, crime, 424 at anti-harboring the U.S. 96 S.Ct. at 940-41. The that has anything Higginson opinion "housing” illegal displays to do with the no of such defer- aliens; simply there is no other direct federal ence. 578 for offense. prevent to local tween each Congress’s $500 intent $200

indicate within their legislating Among many arguments preemption, authorities from spheres That Con- traditional of concern. challengers a con- the statute’s asserted instance, enacted criminal crime, has gress, anti-harboring flict the federal with sales and trans- prohibiting laws certain expressly exempted time which at that implied preemptive no fers of firearms has (includ- felony “employment from status of firearms. impact regulation on states’ inci- the normal ing practices usual and a federal crime of Congress That enacted DeCanas, 424 employment).” dent to robbery prevent localities does not bank Despite at at the U.S. laws zoning to banks applying from local the exculpatory proviso, declared Court rob- for embezzlement or prosecuting of a con- peripheral this “at best evidence sover- bery victimizing the bank. Dual employment illegal cern entrants.” eignty system pre- in our envisions federal ‘due re- Id. The Court “admonished that such cisely possibility overlapping the em- gard presuppositions for the of our regulations. Certainly, when both bracing system, including the choose to states power a principle diffusion not as regulate activity, there will be occa- similar as a matter of doctrinaire localism but pur- when a enforcement officer sions local democracy, required us promoter of has agents go, sues a case that let to not find withdrawal from the States normally not vice versa. But courts do power activity reg- where regulate phenomenon preemp- call this “conflict merely peripheral ulated a concern of was Instead, it tion.” we call “federalism.” ” (federal 360-61, regulation).’ Id. at occur, implied preemption For conflict Bldg. (quoting Diego 96 S.Ct. at 939 San objectives a direct with federal conflict Council, Union, Trades Local Millmen’s must be shown. Garmon, 236, 243, 2020 v. U.S. emphasized “[ijmplied preemption (1959)). S.Ct. 3 L.Ed.2d In analysis ‘freewheeling does justify footnote, repeated: the Court judicial inquiry into whether a state stat- to 8 Accordingly, proviso neither objectives’; ute is with federal tension 1324(a) nor failure to Congress’ U.S.C. an such endeavor ‘would undercut criminalizing laws know- general enact principle Congress that it is rather than illegal employment justifies aliens ” the courts law.’ preempts state congressional inference of intent (Roberts, C.J., Whiting, at 1985 S.Ct. regulation all in the em- pre-empt Gade, controlling opinion) (quoting Indeed, ployment Congress’ fail- area. J., (Kennedy, at 2390 general ure rein- to enact such sanctions concurring concurring judg- part inference forces the be drawn ment)). Higginson opinion’s Despite the congressional from action that other attempt, between the Ordi- conflict Congress problem believes this does not harboring nance and crime of yet uniform rules and is require national illusory. aliens is States appropriately addressed In several ways, the rationale of as a matter. local Higginson opinion rejected by was Id. at n. 361 n. 939 9. DeCanas, Supreme Court in a case that analogy holding with the of DeCa- when arose Labor Code California anti- straightforward. nas is The federal knowing was amended em- prohibit periph- exhibits at best a ployment harboring aliens. The statute crime illegal potential housing illegal a be- eral with rental for imposed employers fine on concern aliens, housing regulations “arrest,” while are with- as an attempt “detain,” to powers government. in the core of local “prosecute” illegal aliens. But that is not Just as the in DeCanas could not way approached issue, DeCanas Congressional prevent infer intent to even though the California statute was from the regulation existence of one feder- passed with the intent illegal to deter paucity al criminal statute and the of other aliens from working, and gaining the law governing employment, alien reside, wherewithal to in the state. proscribe we should not infer an intent to local housing regulations where no other In departing from the commonsense De- statutory evidence of federal concern ex- analysis, Canas the Higginson opinion’s ists.23 That was a field preemp- DeCanas approach fundamentally mischaracterizes Judge tion case and Higginson asserts the Ordinance. It is a licensing-based reg- preemption conflict in this case is of no ulatory program, just as the licensing of exist, moment. For preemption conflict to regulatory foster, drivers is a program to there must be a direct conflict with or alia, inter safety road and vehicle insur- impairment anti-harboring of the criminal ance. No one characterizes drivers’ li- analogy statute. The to empha- DeCanas regulations cense principally “criminal” relation, sizes utter absence of a core though anyone, even including an illegal and thus the absence necessary alien, arrested, may detained, be and cited conflict, between the federal crime and the for a Class C misdemeanor having no Ordinance. producing license or a license to which he Moreover, contrary to methodology is not entitled. No one characterizes local of the Higginson opinion, DeCanas does zoning regulations as “criminal” because not treat the provi- California Labor Code if, fines imposed, instance, sion as a “criminal” despite statute its landlord knowingly rents a dwelling that enforcement prohibition fines. The in- fails to meet habitability minimum stan- authority volved “state to regulate the em- All regulatory dards. regimes must have ployment relationship.” Id. at mechanisms, enforcement object but their S.Ct. at 937. The Court also described is to voluntary compliance. secure No California’s law as “fashioned remedy doubt, hopes Farmers Branch that if it is problems, operating] only local finally Ordinance, permitted to enforce the local employers, only with respect to generally landlords and renters will com- individuals whom the Federal Government ply, and most aliens will avoid ob- already declared cannot work taining rental licenses and make other country.” Id. at 96 S.Ct. at 940. last, housing choices. Penalties Critically, Higginson are the opinion succeeds rare, if correctly it usually classifies the Ordinance step enforcement Judge Higginson obviously claims 8 U.S.C. federal authorities are aware of the Moreover, 1229(a)(l)(F)(i) requiring presence. aliens to have alien’s aliens who are — an address at pa unlawfully present which to receive removal yet subject but are not perwork evidence that proceedings requirement Ordinance of removal have no —is goal bringing potentially provide "obstructs the Attorney re an address to the Gener- movable suggest non-citizens to the attention of the al. It is odd to that the Ordinance— potentially govern- authorities.” This conclusion which does alerts the federal 1229(a)(1)(F)(i) logically presence unlawfully present flow from the ment requirement. Setting subject aside the fact that the aliens that are not of removal 1(B)(7), housing address proceedings, does not have to be owned see 3(B)(7) question, or rented the alien in once an obstructs re- —somehow subject proceedings, alien is power. Higginson Op. removal moval at 529-30. dog the Branch. This limited enforcement author- wagging not be the tail and must no role in the purposes. ity plays process whereby preemption for federal detains and exer- the if the Ordinance’s enforcement But even to deciding whom re- cises discretion pur be provisions highlighted should the Enforcing move from United States. they analysis, poses preemption conflict of is quite the Ordinance thus different from of enforcement impinge do not that, provision Arizona S.B. 1070 if the opinion Higginson as the Court, Supreme by the would have upheld First, the federal har because contends. to authorized local law enforcement arrest limited, any, if only boring statute persons being suspected and detain de- against licensing a local preemptive power solely to encourage fact that must sub assist and regime, portable landlords liable for a fíne regulation mit or be to federal removal efforts. The Court found crime no inherent with the involves conflict that the preemption, holding enforcement Indeed, compliance is con “harboring.” assigned laws has been sistent with the intent of anti-harbor by Congress to comprehensive reg- prevent statute to concealment ing at 2502. ulation. illegal from federal at shielding of aliens Ordinance, contrast, impinge- claims no tention. United States v. Rubio-Gon may Cf. of who ment on determinations re- (5th zalez, F.2d 1073 n. 5 Cir. deportation in or be main detained 1982) (“Congress broadly pro- intended country. from this any knowing or willful conduct scribe fair- Higginson opinion also criticizes the (conceal, terms ly [ within these because the federal anti-harbor- shield) harbor, or that tends to substan- ] penalizes ing only crime the individual who tially remaining facilitate an alien’s illegal alien, harbors the while under his added)); illegally.” (emphasis States United Ordinance, interpretation of alien Chon, 812, 819 States v. 713 F.3d United may penalized opinion be as well. The (5th Cir.2013) curiam) (“Chon’s (per con- support seeks from the Court’s simply prevent that he did not tention 5(C) rejection Arizona of of S.B. 1070 illegal renting aliens from a room at the (up that crafted criminal sanction Gateway Hotel his [active] belied imprisonment) fine six months $2500 presence of their will- facilitation his seeking employment. for an alien illegally allow to rent ingness smugglers alien thorough analysis The Court conducted a groups illegal rooms on behalf of provision of this in the context of recent aliens.”). degree, laws that regulate, to some “detention,” Second, “arrest,” In employment illegal aliens. find- of local officers “prosecution” functions lynchpin conflict preemption, enforce may who the Ordinance do “Congress was that reasoning Court’s regarding collide with federal decisions impose made a deliberate choice not to “removal” of aliens. As has been penalties who seek” criminal on aliens em- may violators of the Ordinance explained, Id. at ployment. argu- 2504. No similar bond for they post be detained until Congress ment can be made that intended They their fines.24 are not “removed” anti-harboring to preempt statute local subjected potential removal from the States, housing regulations Congress or even from Farmers or that de- again disagreement being "unlawfully present.” We note Even if our reading Higginson’s suggestion accepted, Judge that an individ- flawed it is not fatal to detained the Ordinance for the Ordinance. ual under liberately excluded aliens from the scope minology, frequently appears in federal regulations. of its non-existent cannot We statutes and regulations. See supra note infer properly Congressional intent from 13.25 The Eighth Circuit pithily rejected silence. this that, contention: “It seems obvious if government the federal will be unable to Higginson opinion further asserts definitively report that an alien is ‘unlaw- “impermissibly the Ordinance allows fully present,’ then the provisions rental for local officers to arrest and detain non- are simply ineffectual. Plaintiffs and the on citizens based a classification [“unlawful United States explain do not why a local presence”] that does not exist in federal law is conflict-preempted when the federal Relying generalities law.” about immi- government complete power to avoid gration classifications and discretionary Keller, conflict.” 719 F.3d at determinations, the opinion implies WL at *8. rogue local officials will inflict “criminal” might sanctions on aliens who Finally, fact be Higginson opinion declares authorized to be in the United States. that the Ordinance allows state officers to Like Reavley and opinions, Dennis custody aliens in possible “hold[ ] un- however, simply this fear overlooks the lawful presence without federal direction facts. The building inspector has no au- supervision.” Higginson atOp. thority immigration 2509). to decide (citing status inde- If pendently. true, He must defer to the binding were the Ordinance would fail under officials, result of inquiries to federal made the reasoning regard of Arizona in occasions, 5(C) on two at least sixty days apart, untrue, of S.B. 1070. But it is that a particular tenant significantly licensee is not so. The illegal alien who lawfully present in the United States. The might be held in “custody” attempted if he building inspector’s inquiries are no differ- to rent in Farmers Branch without a li- ent from those made hundreds of local cense or who falsified the information used governments daily to the govern- get custody license could be held in ment to ascertain immigrants’ violation, status and for one violating and one alone: qualifications ranging for benefits from the Ordinance. He could long held housing assistance to student loans to enough to have a citation issued and to medical care disability income. It potential secure a bond for the fine. This government’s duty get held, comparable being to the alien’s answers right, building fine, not the inspector’s procures until he a bond for the be- prerogative uninformed guess. Fur- he cause does not furnish a proper driver’s ther, presence” term “unlawful must license. If local improper detention is have meaning some govern- these circumstances without “federal di- ment, term, closely as that or related ter- rection supervision,” then aliens irony Higginson There is also rich building tion of inspector law.” If a cannot opinion’s presence” rely inquiries govern- assertion that "unlawful on two of the federal vague is too to allow enforcement pres- of the Ordi- ment for a determination of "unlawful ence,” nance consistent government with federal how could the federal true, If prove beyond law. this were it would be hard to see a reasonable doubt that a har- prosecute how the federal recklessly disregarded could borer knew or aliens’ anti-harboring felony violations of the status as law violators? Just as crime, anti-harboring statute. seriously vagueness as earlier no one asserts the noted, applies knowingly, if a anti-harboring felony, defendant so should the assertions disregard, vagueness reckless harbors or conceals in the Ordinance's "unlawful an alien who is “in the United presence” States in viola- determination fail. Higginson opin- immunity from at the heart of the dinance receive functional

would citizens do ion.26 ordinances that regulatory valid possess.

not Severability of Texas question raises a has ex- reasons, the Ordi- The Texas even if law. For all these severability as the test for follows: interpreted plained are provisions nance’s criminal they opinion, according Higginson When, therefore, the part to of a statute is a unconstitutional, enforcement are not an obstacle fact does not au- that immi- anti-harboring crime or federal the remain- thorize the courts to declare also, gration removal decisions. provisions void all the der unless depen- subject-matter, in are connected Severability “Criminal” C. other, together operating on each dent Provisions otherwise purpose, for the same so that the opinion asserts Higginson The that it cannot meaning connected be “lacks coherence Ordinance functional would have presumed legislature penalty without its criminal offense and the one the other. The passed without ...,” opin provisions accordingly, and provi- constitutional and unconstitutional strong sev disregards ion Ordinance’s may even in the same sions be contained The erability primary clause. rationale section, yet distinct perfectly opinion’s is the Higginson discussion so the first stand separable, assumption that the Ordinance’s incorrect point the last is though fall. not not provisions “interdependent” are so in the they whether are contained same v. under law. Rose section, to be severable Texas for the into sections distribution (Tex. 841, 801 844 Hosp., artificial; Doctors S.W.2d they whether are purely is but 1990). noted, have As we the non-sever- essentially and connected in inseparably If, non of ability qua determination is a sine substance. when the unconstitutional out, the “crimi Higginson opinion. Unless that which portion is stricken re- non-severable, itself, the Or provisions complete capable nal” mains being dinance cannot be overturned in full. executed in accordance fails, intent, wholly non-severability analysis apparent legislative opinion’s inde- however, rejected, it the mis of that which was it depends pendent because the Or- reading and mischaracterization of must stand. Judge importantly, applying our waiver

26. Dennis asserts that we should More doc- severability clause consider the Ordinance’s where the Ordinance trine text of the itself throughout because the failed to raise it language includes severance issue is matter, Judge proceedings. As a factual these problematic. give deeply We must effect to City’s brief Dennis is incorrect. The en banc statute, every regardless word of whether that the contains a sever- observed Ordinance applica- litigant draws our attention ability impact on our clause and described its See, particular statutory provision. bility of a Appellant's review. See En Banc Br. 13. SEC, 53, 181, e.g., v. 207 n. Lowe 472 U.S. 105 inappropriate because the Waiver is also here 53, 2557, 130 2572 n. 86 L.Ed.2d ques impact pure of the severance clause is a (”[W]e give every word must effect to such, "well- tion of law. As it falls within the statute.”); legislature] used [the discretionary exception to the waiver settled Menasche, 528, 538-39, v. States disputed exists issue con rule where a [that] ” (1955) ("It L.Ed. 615 our pure question cerns ‘a of law.’ New Orleans effect, every Servs., Dir., give duty possible, if clause Depot v. Inc. Worker’s Office of (5th (internal quotation Comp. Programs, 718 Cir. F.3d word of a statute.” 2013) (en banc) (quoting omitted)). Texas v. United States, (5th F.2d Cir. 358 n. 35 1984)). State, (quoting Id. W. Union Tel. Co. v. would have been enacted the City (1884)). Tex. Council without regard any such in- application. valid Texas is consistent “[i]n 2952, § statutes, if construction of it can be lawful done, ly duty it is the of the court to The severability clause here states that construe a statute so as to render it valid.” if an application of the Ordinance “to Florence, (quoting Sharber 131 Tex. person, entity, invalid, or circumstance” is (1938)). 115 S.W.2d invalidity When the does not any affect other application confronted with a “that given statute that is unconsti can be effect with- out the invalid part, application.” that, tutional in Texas routinely only courts de Not but incorporating a portion lete the reference to the of the statute that renders City’s general ordinance unconstitutional, governing sever- it leaving the remaining 1-12, ability, Section the Ordinance mani- statute, aspects of the long so as the re fests a clear intent that even general City maining “capable statute is being of exe regulations should not be allowed un- cuted in accordance with the apparent leg dermine its effectiveness. The severability intent, wholly independent islative of that emphasizes clause the City Council’s de- Id.; see, rejected.” which was e.g., termined attempt to maintain whatever Benton, Lawyer Discipline Comm’n v. part of the Ordinance is valid. (Tex.1998) (“The 980 S.W.2d un Contrary to Higginson constitutionality part opinion, of one a statute primary Ordinance’s purpose is to does not effectu- require us to invalidate the entire licensing apartment ate single and fami- statute unless the provi unconstitutional ly rentals under supervision sion is not separable from the remain inspector. building The requirements per- der.”); Quick Austin, City 7 S.W.3d tinent to obtaining and maintaining resi- (Tex.1998) (“If a reviewing court occupancy dential licenses are carefully were to determine that portion one of a spelled out. The “Offenses” that consti- invalid, water control ordinance was are, tute violations of the Ordinance first court would required therefore be to ‘mod foremost, grounds for civil enforce- ify5 the ordinance to delete the invalid ment by the building inspector, who can portion if the remainder of the ordinance suspend a landlord’s rental license and complete was in itself capable being prevent rent during collection the suspen- executed in accordance with the apparent sion period based on the violations. Id. intent.”). legislative l(D)(5)-(8), 3(D)(5)-(8). §§ The building The Ordinance states: inspector may also revoke a residential The terms provisions of this ordi- license, occupancy forcing the renter’s re- nance are severable and governed moval premises. 1(D)(4), §§ from the by Section 1-12 of the Code of Ordi- 3(D)(4). effective, These are stand-alone nances, Branch, City Texas, of Farmers enforcement measures. Although as amended. If the application of this might find criminal enforcement measures any ordinance to person, entity, or cir- desirable, they necessary are not to assure invalid, cumstance is invalidity does substantial local compliance. Licenses not affect applications other of the ordi- revoked, could still be regulatory under a nance given that can be effect without regime, without bringing criminal prosecu- the invalid application, since the same tions to bear.27 Put terms of Texas 27. That the complete regulato- Ordinance is a through language be seen of the statute. ry provisions scheme absent its criminal can the federal determi- invalidity present, giving Class while

severability prevent does not presumption measure nation “a as to the C misdemeanor rebuttable out carrying from building inspector immigration status” and mak- individual’s licenses, “un- duties, making providing his conclusive those determi- gov- to the federal inquiries lawful status” given preclusive nations that “would be ernment, shutting leasing down the 1(E)(4) (5), & question.” effect apartments single-family dwellings 3(E)(4) (5). Authorizing & courts renters. non-compliant of immigra- revisit federal determinations analysis of the Ordi- conflicting No other functional the door for opens tion status By driving analogy, if nance makes sense. rulings immigrant’s on an state-federal judicially disap- were without a license lawful This creates obstacle to status. offense, misdemeanor proved as a Class C Congress’s setting out “the sole and exclu- require qualify still drivers to Texas could determining procedure” sive whether licenses, on civil carry penalty of from an alien be admitted removed suspension for violations. As a further 1229a(a)(3). the 8 U.S.C. United States. judicially could excise analogy, a court Therefore, provisions the of the specific violation penalties, criminal environmental judicial that authorize state review section withholding dispose but licenses store or courts to federal determinations of revisit remain an substances would regulated immigration preempted status are conflict Farm- Regarding effective sanction. the by federal law. licensing ers Branch scheme as unwork- pro- however, able without its criminal enforcement with disagree, Judge Hig- We visions, sum, views the Ordinance in the ginson’s preempted conclusion that as- wrong telescope. end of through the the pects judicial of the review section are not favoring severability strong policy Texas’s severable. severability, if compels this court finds the authorities Based on the Texas cited provisions

“criminal” enforcement constitu- Section, the we preceding must deter- tionally infirm. mine whether the Ordinance—without the D. Provision Judicial-Review portion judicial review of the section allows to revisit state courts federal de- Judge Higginson We in one agree immigration terminations of status —is respect: preempts aspect federal law the itself, “complete capable being judicial review section that “allows the apparent executed in accordance with the legality a non- courts assess Rose, legislative at intent.” S.W.2d a ‘preclusive’ absent fed- presence citizen’s Here, 844. because the Ordinance con- Higginson eral Op. determination.” clause, severability legislative tains portion review judicial 536. The enacted, Ordinance, por- intent sever the unconstitutional as allows a state court lawfully only tion of is clear. occupant to review whether the is the Ordinance other, impose penalties inspector’s suspension prem- action not can lesser on the mis- is charge, prosecu- "criminal” ised on a formal Higginson opinion conduct. as the is As far tion, though, Judge or conviction —even concerned, you have is the if all hammer of out, Higginson points suspension is (crimi- every problem criminal then is a "premised having landlord on the committed nal) regulatory programs, Like most nail. Higginson Op. For ex- offense.” however, offers both the Ordinance civil ample, may it be an “offense” for a child to procedures, they criminal enforcement violation, truancy but need commit a the child interdependent. are not "prosecuted” before school authorities be remaining is whether the Ordi- vides that a state court is question bound is “complete nance itself.” immigration determination of status government. Pursuant we must question, To resolve this con- Ordinance, judicial terms of the review of operate how the will with- sider question “the the occupant of whether judicial of the preempted portions out lawfully present in the United deleting section. the conflict- States” oc- review After portions, judicial review curs if preempted only or occupant landlord Ordinance, in part, relevant section deficiency received a or revocation notice. provides: Id. Such issued notices are after the

(4) In a suit for review in which judicial government reports “federal the status of question the occupant of whether the occupant as an alien not lawfully pres- lawfully present in the United States is ent in 1(D), the United States.” decided, question shall be 3(D). Accordingly, any time judicial-re- law. In an- determined under federal initiated, view proceedings existing swering the the court question, shall be will determination bind the state by any bound conclusive determination court and it will be unable to make an by the gov- status independent determination of an individu- A ernment. determination is conclusive al’s status.28 Without if,-under federal-law, given -ii-would-be conflict-preempted language, the Ordi- preclusive question. effect on the judicial nance inquiry confines the state (5) judicial The court shall take notice determination, so there is no the citizenship of verification of or conflict between state federal law as to immigration occupant the pre- status of whether an occupant “lawfully present.” viously provided govern- federal by the Whiting, See at Again— 1981. may, request ment. The court the of Higginson’s and contra Judge conten- shall, any party the request gov- tions—if there is no conclusive determina- automated, provide, ernment to in docu- tion from the federal on the form, mentary, or a testimonial new question, no license will revoked. of citizenship verification or immi- the portions Because the preempted the gration occupant pursuant status of the can judicial review section be removed Code, to Title United States Section 1373(c). the impairing any from Ordinance without -The-most recent-determination Ordinance, aspect other including the immigration of-the status an individu- n ab4>y-the-federal government ability judicial shall cre- the review of a seek notice, presumption ate-a-rebuttable as to the deficiency or removal the Ordi- individual-s-immigratioB-statuSv itself, “complete capable nance remains with the legislature’s of execution in accord 1(E), 3(E) (altera- §§ Ordinance Rose, added). intent.” at 844. remaining S.W.2d There- part tions The of the fore, judicial pro- preempted judicial review section the portions Ordinance’s occupant's citizenship verification of or additional evidence would be the under the the Ordinance enables the tenant allowed terms of is a status —which citizenship existing verification to confirm new determina- government. place from the tion —does not Ordinance in conflict status See Ordi- 3(E)(5). 1(E)(5), Whiting, The state with federal law. See 131 S.Ct. at nance employer may request ("Giving court the new verification on its n. 7 chance to motion, required show it law cer- own and the state court is did not break regime request request tainly place the Arizona a new verification does not law.”). any party. ability to seek a new conflict with federal This severed, leaving a can be review section

valid law.

Y. Conclusion legal issue: presents

This case narrow the Ordi- preempts

whether federal The answer well-established

nance. under does not. straight-forward:

law is it a different opinions reach opposing

three (1) to afford based on a failure

conclusion (as housing regula- Ordinance local police power) presump-

tion within (2) deserves; constitutionality

tive that it unsupported constructions

broad and (3) misconcep- precedent, operates,

tions about how the Or- contrived conflicts between Furthermore, and federal

dinance law. accepts Higginson opinion’s

even if one opinion

conflict-preemption analysis, step judicial final

falters its because provi- criminal

review and enforcement law. For are severable under Texas

sions reasons, respectfully we dissent.

these America,

UNITED STATES of

Plaintiff-Appellee, ALANIZ; Galaviz;

Norberto Josefina

Mayra Lopez; Magana; Lean Yesica Salas-Galaviz, as

dro also known Lic, Obregon,

Daniel also known

Defendants-Appellants. 11-41376,

Nos. 11-41392. Appeals,

United States Court of

Fifth Circuit.

July

Case Details

Case Name: Villas at Parkside Partners v. City of Farmers Branch

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 23, 2013

Citation: 726 F.3d 524

Docket Number: 10-10751

Court Abbreviation: 5th Cir.