E.D.Mo.: Anti-immigrant law not preempted

A Missouri federal district court upheld a local ordinance that permits a city to suspend or deny business permits of employers who employ undocumented immigrants, holding that the city’s ordinance was not preempted by federal immigration law. Gray v. City of Valley Park, Mo., No. 4:07-CV-00881-ERW (E.D.Mo. Jan. 31, 2008).

The court also rejected equal protection and due process challenges to the ordinance. The Missouri decision conflicts with a recent Pennsylvania district court decision preempting a similar ordinance. 

 

                 The City of Valley Park, Missouri (with the assistance of the conservative Immigration Reform Law Institute) enacted an ordinance subjecting employers to the suspension or denial of a business permit if they employ undocumented immigrants. The ordinance requires employers to obtain documentation of employees’ immigration status, and permits complainant to subject business to an investigation. Local businesses challenged the ordinance, claiming that it (1) is preempted by  the Immigration Reform and Control Act (IRCA), 8 U.S.C.A. § 1324 et seq.; (2) mandates or encourages discrimination in violation of the Equal Protection Clause; (3) violated the procedural Due Process rights of businesses; and (4) exceeded the city’s authority under Missouri law. The court granted summary judgment to the city on all claims.

 

                In a closely-watched case last year, a similar ordinance in a Pennsylvania town was held preempted. Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D.Pa. 2007) (summary here). The Hazleton court held that that ordinance did not fall within the licensing exception of IRCA’s express preemption provision, because that exception only permitted licensing authorities to respond to violations of federal law, not to use licenses to enforce local laws. The court also held that Congress had intended to occupy the field of immigration law, and that the ordinance directly conflicted with federal law in various ways. In the Missouri decision, the court made no attempt to distinguish Hazleton, simply stating in a footnote that it was not bound by the Pennsylvania court’s decision.

 

                The Missouri district court stated that the Valley Park ordinance fell squarely within the “licensing or similar laws” exception to IRCA’s preemption provision. See 8 U.S.C. § 1324a(h)(2). The court reasoned: 

The law in question specifically relates to the issuing of a business permit. The purpose of the law may indeed be…to address illegal immigration within the city…however, licensing laws may have any number of purposes.

Although stating that the preemption provision was unambiguous, the court found its conclusion that the ordinance was not preempted confirmed by the legislative history of the IRCA. The court cited a committee report stating that IRCA was not meant to preempt state or local decisions to suspend or deny licenses based on violations of IRCA. (The Hazleton court cited the same language in the same report, stating that the Hazleton ordinance fell outside the provision because it punished not violations of IRCA but violations of the local law itself, which differed from IRCA in some respects. The same could be said of the Valley Park law.)

 

                The court further stated that Congress could not have intended to occupy the entire field of immigration regulation, since it provided an exception to IRCA’s preemption provision that allowed some local regulation.

 

                The court also rejected several conflict preemption arguments:

• -- While IRCA regulations provided an exception for domestic workers not present in the ordinance, 8 C.F.R. § 274a.1, the court stated that this exception had no basis in the statutory language of IRCA, and even if valid was too small to create a conflict with the ordinance.
• -- Although IRCA does not require verification of the immigration status of independent contractors and the ordinances does, the court found no conflict because employers could comply with both laws.
• -- While IRCA does not require participation in the federal Basic Pilot employee verification program, the ordinance makes participation mandatory for businesses found in violation. The court found no problem with this, noting that businesses could comply with both laws and that states have some “concurrent jurisdiction…to enforce federal laws.”

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All of these rejected preemption arguments had been accepted by the court in Hazleton.

 

                The court also dismissed the plaintiffs’ claim that the ordinance violated their procedural due process rights. Although under the ordinance employers are not provided with a copy of complaints against them and have only three days to respond, the court found that this was sufficient, because “the only information which is relevant, is the employment status of the…employees….An individual either is or is not authorized to work in the United States.”

 

                One point on which the Missouri and Pennsylvania courts agreed was that these ordinances do not violate Equal Protection. As in Hazleton, the court noted evidence that the local legislature was aware of likely discriminatory effects of the law on the basis of national origin, but found no evidence of discriminatory intent. Both courts noted that the only discrimination on the face of the law was on the basis of immigration status, and that this distinction was rational and in line with federal policy. The Missouri court also questioned the employer plaintiffs’ standing to assert this claim.

 

                Finally, the Missouri court rejected the contention that the ordinance exceeded the city’s authority under state law. The court concluded that the ordinance was a licensing law, which state law permits cities to enact.