Posted on 05/22/2007 3:20:55 PM PDT by Congressman Billybob
Farmers Branch, a small Texas town near Dallas, passed an ordinance imposing penalties on landlords who might rent their apartments to illegal aliens. The act included a requirement that the voters must approve it. In an exceptional turnout last Saturday, the voters did approve, 68% to 32%.
The ACLU and various parties took the Town to court, claiming that the ordinance was unconstitutional. The court ruled that the Councilmen and residents of Farmers Branch are too stupid to govern themselves, substituted its judgment for theirs, and struck the ordinance as unconstitutional.
No, that’s not the stated reason for the decision of US District Judge Sam Lindsay for issuing an injunction against the ordinance. But that is the effect of his decision. This was a “temporary” injunction, that will probably remain in effect for the years that the decision is on appeal.
The judge noted, correctly, that the Constitution gives sole power to regulate immigration to Congress. But then he dives right into the argument of the ACLU and others that Farmers Branch was preempted by federal laws on immigration. He did quote, but then pass quickly over, the preamble to the ordinance in which the Town asserted its “police power” to act to protect the “health, safety and general welfare” of its citizens.
Had the court bothered to look at the history of cities, he would have discovered that “municipal corporations” were making decisions about how and where people could live and work, to protect their health and safety, centuries before the United States was a gleam in anyone’s eye. What Farmers Branch sought to do was well within the normal power of any city.
The judge also failed to note that self-government through elected representatives is the most basic right possessed by all Americans. The Declaration of Independence states that “to secure these [unalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed....” The Constitution in Article IV turns that statement of philosophy into a principle of law, when it guarantees to every state (and all its cities and counties) “a Republican Form of Government.” And, in case the judge didn’t know what that means, that is a government in which “the supreme power is held by the citizens entitled to vote and is exercised by elected officers and representatives.” The court based much of its analysis on DeCanas, a 1976 Supreme Court case, which approved a California law dealing with employment of illegal immigrants to the detriment of “lawful resident workers.” In that case the Supreme Court said that states (or cities) are engaging in forbidden “regulation of immigration” when they determine who should or should not be admitted to the country.
The court notes that Farmers Branch did not make any new determination of who should be admitted. Its Councilmen and citizens accepted federal definitions, down the line. However, the court noted that the Town adopted definitions and forms developed by the Department of Housing and Urban Development, to be used in its regulation of landlord tenant law in the Town. Presuming that the HUD laws and regulations have been tested and found constitutional, the court does not explain why Farmers Branch is “creating a new definition” when it is using existing federal documents, word for word.
The court did not consider any other issues in the case.
The law that this court denied to the Town and its citizens, would have required that landlords ask all tenants to provide a declaration that they are citizens, or in the alternative, a declaration that they are legal aliens, and sign an immigration form created by ICE (Immigration and Customs Enfoircement). These documents would be kept on file, and would be available as need be to both state and federal officials. Landlords who failed to follow these conditions would be subject to fines.
One aspect of this decision is pathetic. The court told Farmers Branch that it could not enact an ordinance solely within its own boundaries, because it was interfering with federal control of immigration. The double and obvious defects of that position are that the federal government is NOT controlling immigration now, and that the Town did not say that anyone could not be in the US, only that certain illegals could not rent apartments in that Town, no more, no less.
There is also litigation in Hazleton, Pennsylvania, against similar ordinances concerning both illegals being employed, and renting apartments. These two cases are the leading edge of what will become dozens of cases around the country. Ultimately, it is the Supreme Court which will decide whether or not cities and towns can act with respect to illegal aliens within their own boundaries.
Since this is a matter of simple. local decision-making, the towns should ultimately prevail. And when they do, they should seek costs and fees against the ACLU for assaulting the most basic civil right of all, the right to self-government.
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About the Author: John Armor practiced law in the US Supreme Court for 33 years. John_Armor@aya.yale.edu He wrote this at the request of the American Civil Rights Union. www.theacru.org
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I think y'all will find this interesting.
John
Bump
When a gubamint and its officials , sworn to enforce and uphold the laws of the nation, refuse to do their duty, what are communities supposed to do as they are over-run.. Just take it?
Thank you for the post.
Once upon a time, judges derred to legislators and presumed the validity of legisaltion, laying the burden of proof on the plaintif. Now a local body has to prove to the satisfaction of the judge that they have any authority to act. Even referendums are habitually overturned, making a mockery of the very notion of state soverignty. It goes beyond this. In another case they want the judge to rule that the city has to change its mode of representation to give the local barrio its own rep. Minority rule! WTF!
Then it's Second Amendment Time...!
ping
Then would this same law apply to those towns that have made themselves a sanctuary?
Apparently so. The fed reaction to this is pretty predictable - the administration and the congress are both on the side of the illegals, so they have to fight it. I wonder if the town will pursue the case, or if they will allow some of the local lawyers to help them fight it.
The third and obvious defect of that position was that the actions of the town were in direct support both explicitly and implicitly of existing US Immigration Law.
The judge noted, correctly, that the Constitution gives sole power to regulate immigration to Congress.
And municipalities and states governments are required to follow those regulations.
ML/NJ
John / Billybob
“Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it...”
And, yes, there is this”
“...and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
But then there IS this:
“But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Question: When do we know we’re there?
John / Billybob
I have been trying to say that law and order in the US rests on the proper relationship between different levels of government. In this case, that is broken, with many screaming out to the feds to enforce laws throughout the land in the face of lawlesness and apathy of citizens and opposition of other law enforcement. That just won’t work.
I am still confused as to why the government, sanctuary cities, and the ACLU have not been sued for violation of the existing Federal Immigration laws.
Why can the people not sue the government for failure to perform its duties ?
This Judge should not have been able to issue his ruling without also issuing another ruling ordering the Federal government to perform such that the town’s local ordinance is not necessary.
I’m tempted by a vision of fighting fire with fire in a sense.
Judges have exceeded their authority in setting aside local authority without regard for common sense or precedence. Congress has shirked its responsibility to perform. Police are afraid of the appearance of racism.
What agency do we know that regularly exceeds their authority, isn’t afraid to use their power, and is relentless is performing its duty ?
I suggest we start sicking the IRS on people that aid and abet illegal aliens. Let them use their power to seize assets and scare the bejeezus out of business owners and non-profit organizations acting politically. After all, they are violating requirements to report wages and pay employment taxes accurately to the IRS. The non-profits should lose their status for dabbling in politics. The IRS is about the only government agency that isn’t trying to find new ways to spend taxpayer money, but to collect as much as possible.
You might think the beedy eye of the IRS constitutes cruel and unusual punishment, but I think the employers of illegal aliens deserve no less.
If I was a mayor or city councilman, etc. in one of these places I would make a statement.
If immigration is federal and local is not allowed to touch it in any way, then we are going to apply the same rationality to all federal laws.
Then I would put out a list.
Well, what about a bartender who serves a person who is legally intoxicated? There are laws against that.
Besides, the good citizens in Texas determined that they would take on this function. What was that dusty old phrase about "government of the people, by the people and for the perple..."?
Excellent. I hope there is a good foundation supporting the case. It looks like it will get expensive.
I wonder what our founding fathers would say about today’s judges.
John / Billybob
Jefferson was a man of vision alright.
[Besides, the good citizens in Texas determined that they would take on this function. What was that dusty old phrase about “government of the people, by the people and for the perple...”?]
Oh, you mean the one that makes distinctions between people ? As though we are all equal under the law ?
Dusty, indeed, as our tax laws, campaign finance laws, affirmative action, Roe vs. Wade, etc. have shown us again and again.
Didn’t you get the memo ? We switched to a fearful politically-correct combination mobocracy/plutocracy decades ago.
Bttt!
I heard someone refer to it as a “kleptocracy” today. Good luck, Hazleton!
Silly. There are no criminal acts here either on the part of the drinker or the bartender in so far as I am aware. What you are thinking about is civil liability in the case where the drinker causes damage to a third part due to his drunken state. IAMAL, but I think this has something to do with the notion of proximate cause.
As for the citizens of Texas, maybe their constitution permits such laws. I don't know. I just know they are a bad idea.
ML/NJ
ML/NJ
A few years ago one third of our people said no.
...But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. - Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained and when so suspended, he has utterly neglected to attend to them.
BTTT
Thanks for the great post
:)
Who appointed US District Judge Sam Lindsay, an obvious political hack, to rule over us for the rest of his life?
So as long as the coyote that deals in human goods is a U.S. citizen then it's OK with you?
ML/NJ
bump
John / Billybob
John / Billybob, how is it that all of these cases are allowed to be shopped to one of these liberal political hack judges seemingly without fail? Who decides which judge hears the case?
The town is asserting its "police power", [supposedly to act to protect the "health, safety and general welfare" of its citizens] by requiring landlords [in effect] to become police agents who determine citizenship, or face criminal charges themselves.
Indeed; - "municipal corporations" were making decisions about how and where people could live and work, ~ostensibly~ to protect their health and safety, [in reality just because they held the power] - centuries before the United States was a gleam in anyone's eye.
-- We restrained that type of communitarian power under our Constitution.
What Farmers Branch seeks is unrestrained majority rule, cloaked within the normal police power of any city.
No one wants open borders or unrestrained immigration. - Far to many are willing to allow unrestrained local police powers to solve national political problems.
I'll bet you haven't read the court's decision, have you? Or, if you have read it, you obviously didn't understand it.
John / Billybob
If the senate bill becomes law, this will all be moot. The aliens will have ‘probation’ and can’t be bothered. In other words, the cities trying to solve this problem will be told there are no ILLEGAL ALIENS, only legal guest workers and they’ll get all the tax payer legal help they want to prove it.
Yes. By being a American citizen, you are entitled to be over-run by illegal aliens, shot if necessary by gangs, runover by drunk illegals, but you are not entitled to protect yourself or your property because immigration is the fiefdom of the feds.
Contradictory statements. By limiting this strictly to imposing penalties for renting to illegal immigrants, Farmers Branch was clearly attempting to impinge on Congress's authority to regulate immigration.
Moreover, the precedent would open the door for some rather intrusive requirements on you and me -- showing proof of legal residence for ... well, whatever business transactions Farmers Branch might choose to regulate down the road. Do you really want to go there?
I understand what the town is trying to do, and for the most part I agree with the sentiment. But their proposed solution is not a very clever one.
As a resident of Farmers Branch, Thanks John.
Nonsense. State governments, for example, write sex-offender laws. So using your logic, localities could not limit where sex offenders live within their boundaries because that infringes on the state's perogative to regulate the prosecution of sex offenders.
It is a perfectly logical and legal requirement to limit renting properties to those legally allowed to LIVE HERE.
You are aon to smething here.
Thanks for the post!!
BUMP
The Ordinance amends Chapter 26, Article IV of the City’s Code of Ordinances relating to apartment complex rental. Specifically, the Ordinance adds language to section 26-116(d)(3) and creates a new section 26-116(f) titled “Citizenship or Immigration Status Verification.” Id. § 3(A)-( B).
Subsection (1) of the new section (f) defines various terms used in the section, and states that the definitions are consistent with 24 CFR 5.504. Id. § 3(B)(f)(1). The term “Evidence of citizenship or eligible immigration status” is defined as “the documents which must be submitted to evidence citizenship or eligible immigration status for residency in the United States.” Id. “Citizen” is defined as “a citizen or national of the United States.” Id. “National means a person who owes permanent allegiance to the United States, for example, as a result of birth in a United States territory or possession.” Id. Noncitizen is defined as “a person who is neither a citizen nor national of the United States.” Id.
Subsection (2) provides: “The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family consistent with subsection (3).” Id. § 3(B)(f)(2).
Subsection (3) relates to “Evidence of citizenship or eligible immigration status” and lists the evidence required to show tenants’ citizenship or immigration status. Id. § 3(B)(f)(3). This section sets out the documentation that tenants must provide. Noncitizens must provide: (1) a signed declaration of “eligible immigration status;” (2) a “form designated by [United States Immigration and Customs Enforcement]2 as acceptable evidence of immigration status;” and (3) a “signed verification consent form.” Id. § 3(B)(f)(3)(ii)(a)-(c).
Subsection (4) outlines the owner and/or property managers’ obligations with regard to the evidence of citizenship or “eligible immigration status:”
(i) The owner and/or property manager shall request and review original documents of eligible citizenship or immigration status. The owner and/or property manager shall retain photocopies of the documents for its own records and return the original documents to the family. Copies shall be retained by the owner and/or property manager for a period of not less than two (2) years after the end of the family’s lease or rental.
(ii) The owner and/or property manager shall require that each family member submit evidence of citizenship or immigration status only once during continuous occupancy. The owner and/or property manager is prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status under this Section . . . .
end snip
Thanks to FReeper Deport
You Know not of what you speak
Great idea. In fact, someone already thought of that. Unfortunately, it was ignored like just about all other enforcement provisions:
http://www.freerepublic.com/focus/f-news/1838514/posts
There is an Illinois employer that over five years filed 131,991 inaccurate documents with the Internal Revenue Service. That's right: 131,991.
Now, you might think law enforcement would be swarming all over this employer. You would be wrong, however.
You see, the 131,991 false documents were W-2 forms reporting taxes paid on behalf of workers whose names and Social Security Numbers (SSNs) did not match. The Social Security Administration (SSA) inspector general has told Congress that illegal-alien workers are "the primary cause" cause for this type of "non-match" W-2.
According to an October 2004 report by the SSA inspector general ("Employers With the Most Suspended Wage Items in the 5-Year Period 1997 Through 2001"), the Illinois employer with 131,991 "non-match" W-2s was the national champion for that period. But there were other employers in the same league.
A Texas employer, for example, filed 108,302 "non-match" W-2s in that period -- when a man named George Bush happened to be Texas governor. Indeed, according the inspector general, 15 employers in Gov. Bush's Texas ranked among the Top 100 for filing "non-match" W-2s. From 1997 to 2001, these Texas employers sent the IRS a combined 401,167 "non-match" W-2s, reporting $1.7 billion in wages paid to workers using someone else's -- or a phony -- SSN.
Hiring illegal aliens was not a small business when George Bush governed Texas. It was big business.
So, why didn't the IRS do anything about it? The 1986 immigration amnesty bill empowered the IRS to fine employers for filing inaccurate W-2s. A 1989 amendment increased the fines, allowing the IRS to assess up to $50 for every bad W-2, with total annual fines capped at $100,000 for small businesses and $250,000 for larger businesses. In 2004, however, the Government Accountability Office (GAO) discovered that the IRS had never enforced this law. "IRS does not have any information documenting that any employer has ever been assessed such a penalty," said GAO.
Ever? Yep.
In effect, the IRS has already granted amnesty to those on the demand side of the illegal-alien labor market. Illegal aliens are sometimes caught and deported. But the IRS never -- never! -- enforces the law that prohibits employers from filing inaccurate W-2 forms on their behalf.
FB Bump
So it is unconstitutional for a town to pass an ordinance that forbids a landlord from renting an apartment to a criminal? If so, it’s time to change the constitution. (But somehow, I think this judge got it wrong.)
From another Farmers Branch resident, thanks John.
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