The Farmers Branch Absurdity

Special to FreeRepublic ^ | 22 May 2007 | John Armor (Congressman Billybob)

[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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[r9etb]

The judge noted, correctly, that the Constitution gives sole power to regulate immigration to Congress.... What Farmers Branch sought to do was well within the normal power of any city.

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.

[CPT Clay]

As a resident of Farmers Branch, Thanks John.

[dirtboy]

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.

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.

[CPT Clay]

You are aon to smething here.

[stephenjohnbanker]

Thanks for the post!!

BUMP

[CPT Clay]

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

[dirtboy]

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.

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.

[CPT Clay]

FB Bump

[MEGoody]

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.)

[Bigoleelephant]

From another Farmers Branch resident, thanks John.

[Kellis91789]

What is this world coming to, when you can’t count on even the IRS to enforce fines ?

If even the IRS has been cowed by political correctness, we are doomed. This is like that video of a startled bear running away from a housecat.

[Red Boots]

While I agree with the sentiment, I oppose any laws that make citizens criminals for dealing with the illegals. It is not the job of an ordinary citizen or business to become an investigative arm of the government.

I do agree.

Why is it that I as a small business have to do the job the government at all levels refuses to do, and be harshly penalized if I get the paperwork wrong ?

Despite all the claims by Freepers to the contrary, it's pretty hard to actually verify illegalness. Names and social security numbers can not match for a variety of reasons, and they're not all because of illegal status. To prove 100% illegal status is way beyond the ability of most small employers.

The federal i-9 laws are very complex, and actually warn employers against making any judgements.

You have to determine the illegality of documents you've never seen before. And when did I become a document expert ? I've never even seen a US passport in my life.

Then there are immigration lawyers waiting to get you for discriminating if you're wrong.

And did I mention that the government's own basic pilot program returns 20% false postives. Meaning that their own records are wrong 20 % of the time.

The only way to be 100% sure is not to hire any Hispanics. And that's also illegal discrimination.

NOw, since I'm basically the person enforcing federal immigration laws, since nobody else will, I sometimes wonder why we even bother to have a federal government ?

[tpaine]

Billybob claims:

>>> the Town asserted its "police power" to act to protect the "health, safety and general welfare" of its citizens.
What Farmers Branch sought to do was well within the normal power of any city.

The town is asserting its "police power", [supposedly acting 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.

While no one wants open borders or unrestrained immigration. - Far to many here are willing to allow unrestrained local police powers to solve national political problems.

You, again.

Yep, me again- trying to understand why you advocate using doubtful local police powers to fix a national political disgrace, unfettered illegal immigration.

Apparently you misunderstand that for a court decision on the constitutionality of any law to be legitimate, it must be based on an actual provision in the Constitution.

Apparently you don't understand that for a local law to be constitutionally legitimate, it must be based on an actual power delegated to the States in the Constitution.

This is not the "unfettered use of the police power." To the contrary, it is the unfettered use of judicial power.

Sorry, but local police power can't require [or authorize] landlords to be immigration agents.

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

Typically, you make personal remarks when you can't counter the facts of an issue.
I've read it, and understand it. - It's a poor 'law'.

[Congressman Billybob]

I took time to look at your personal page to see whether it provided clues to your hostile and uninformed positions. It did. You posted there, this comment: “If you want to be taken seriously on this forum you might think about cleaning up your act. 257 posted on 7/28/02 4:10 PM Pacific by Jim Robinson”

I agree with JimRob. You are not to be taken seriously.

John / Billybob

[tpaine]

Sorry, but local police power can't require [or authorize] landlords to be immigration agents.

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

Typically, you make personal remarks when you can't counter the facts of an issue.
I've read it, and understand it. - It's a poor 'law'.

I took time to look at your personal page to see whether it provided clues to your positions.

You're mischaracterizing my comments here as hostile. You are uninformed.

It did. You posted there, this comment: If you want to be taken seriously on this forum you might think about cleaning up your act. 257 posted on 7/28/02 4:10 PM Pacific by Jim Robinson

My disagreements with JR in '02 have nothing to do with your comments here and now.

I agree with JimRob. You are not to be taken seriously. John / Billybob

I agree with many here. Your grasp of constitutional immigration law as it applies to local police powers should not be taken seriously.

[Congressman Billybob]

Let me know when your experience in constitutional law matches my 33 years practicing in the US Supreme Court (usually suing governmental officials for violating the Constitution). My guess is, it will be about 33 years before I hear from you again. That would be fine by me.

John / Billybob

[tpaine]

Gotta love an argument from self authority. You've beat that 33 years thing to death billy.
- But, -whatever.

[altura]

Farmers Branch passed an ordinance last year that you couldn’t have empty flower pots in your front yard and nobody cared but me.

[NewRomeTacitus]

Apparently you don't understand that for a local law to be constitutionally legitimate, it must be based on an actual power delegated to the States in the Constitution.

Actually almost all power IS delegated to the states in the Constitution where the Constitution itself doesn't deem matters (trade, treaties, etc.) solely in the Federal domain. It's taken over 200 years of political obfuscation and legalistic BS to render that meaningless - but the job is done and our Constitution has been reduced to a quaint relic every new bureaucrat spits on for good luck. If anyone wants to attain a PhD on sheer boldness I suggest a treatise on how our current government adheres to the intentions of our founders.

At least it would get laughs.

[tpaine]

Actually almost all power IS delegated to the states in the Constitution
- I suggest a treatise on how our current government adheres to the intentions of our founders.

At least it would get laughs.

The Federalism Debate [And States Rights]
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