ACRU

Let the Voters Decide—For a Day, Anyway

Many readers will remember that Farmers Branch, Texas, a Dallas suburb, recently enacted an ordinance to the effect that landlords may not rent to illegal immigrants. The ordinance went to a vote after a pro-illegal immigrant group waged a vigorous campaign to, as they put it, “Let the Voters Decide.” The voters promplty did so. By a margin of 68% to 32%, they decided to adopt the ordinance.

Without missing a beat, it then became time to “Let the Court Decide,” a strategy the previously pro-vote group has now pursued. Yesterday they obtained, from a federal judge appointed by President Clinton, a preliminary injunction barring enforcement of the ordinance the voters decided upon. The gist of the court’s reasoning is that because the law makes regulating immigration an exclusively federal concern, the Farmers Branch ordinance is an impermissible encroachment on federal power.

My astutue colleague John Armor has thoroughly analysed the court’s opinion, and I would add only a few thoughts. The ordinance does not actually enforce or have anything directly to do with the enforcement of federal law. It never says an illegal immigrant can’t live in Farmers Branch, take residence in a house there or buy property. It says only that landlords may not rent to illegal immigrants. But that does not affect any specifically FEDERAL interest in immigration, since federal law does not cover rental agreements with aliens, legal or illegal. To whatever extent the ordinance may tangentially affect federal law, however, it is not inconsistent with it, but instead acts in aid of it, just as drug enforcement by local police acts in aid of federal drug statutes.

One might point out that sanctuary city ordinances, which actually DO affect the enforcement of federal law (namely by frustrating it), have never, on that account, been declared unconstitutional as an impermissible local infringement on matters exclusively reserved for federal control.

Finally, under the court’s “reasoning,” a “reverse sanctuary city” ordinance would a fortiori have to go. That is, if a city adopted an ordinance requiring its police to inquire after immigration status and report illegals to the federal government, that would (hopefully) have an effect on federal immigration enforcement far greater than the no-renting ordinance does. This would plainly meet the court’s definition of local “infringement.” So it turns out that anything a local government wants to do to assist enforcement of federal law, even ever so indirectly (as in the Farmers Branch case), is verbotten, while anything that turns its back on federal law is consistent with exclusive federal authority.

Translation: If your city wants to assist federal immigration enforcement, such of it as there is, that constitutes infringement, but if your city wants to squelch federal enforcement, that constitutes good government.

Go figure.