MOBILE, Ala. — Here in Alabama, Gov. Robert Bentley has just
signed the nation’s toughest immigration law, amidst the
predictable cries from the Left that states don’t have real
authority of their own to enforce laws against illegal immigration.
The information the professional Left hasn’t yet processed is that
the legal basis for its arguments continues to erode. The erosion
continued earlier this week in a new, little-noticed action by the
Supreme Court in a case called City of Hazleton v. Lozano
— the Pennsylvania
dispute that made Hazleton’s then-mayor Lou Barletta
famous, and launched him towards a seat in Congress.
To understand the import of the Hazleton case,
let’s first set the scene, which is framed by another high court
decision from just two weeks ago. When the Supreme Court ruled on
May 26 in Chamber of Commerce v. Whiting that the state of
Arizona did not exceed its authority in denying business licenses
from companies that knowingly employ illegals, the Left interrupted
its outraged squawking to try to minimize the case’s importance. On
the one hand, the Left said the decision was an awful affront to
federal executive power. On the other hand, it said the decision
didn’t mean much. The reach of the Whiting
case was limited, argued the immediate
revisionists, because it involved only business hiring rather than
broader immigration enforcement, and because it turned on a
specific clause in federal law giving states enforcement authority
through business licensing.
Aside from that specific clause regarding business
licenses, they said, and aside from the subject of employment,
states, and localities still are not free to enforce immigration
laws to an extent greater than the U.S. president (through his
appointees) desires.
Enter the Hazleton case. The city of Hazleton
went farther than Arizona did. The city doesn’t merely target
business hiring; instead, it also suspends the rental licenses of
landlords who knowingly and recklessly allow illegals to dwell in
the landlords’ property.
If one buys into the Left’s spin, one would think that
Whiting would have little bearing on Hazleton,
because the ordinance in the latter is so much broader. Surely,
according to this logic, the Supreme Court would reject Hazleton’s
law out of hand, just as the Third Circuit Court of Appeals had
done last Sept. 9.
Think again. On Monday, the Supreme Court vacated the
Third Circuit’s decision against Hazleton’s law, and remanded it
back to the appeals court to reconsider specifically in light of
the Whiting decision. In other words, Hazleton’s law still
stands against landlords who knowingly rent to immigrants, at least
for now.
While this is far from the final chapter in the
Hazleton case, and while it does not represent a full
ruling on its merits by the Supreme Court, it does mean that the
Left’s spin is out of control. The high court, if it so wanted,
could have remanded the case only for reconsideration of the
business-hiring part of Hazleton’s law, not for reconsideration of
the whole law. Instead, it sent the whole case back for review,
with specific reference to its Whiting
decision.
“This at least gives an indication that the Supreme Court
believes its Whiting decision is applicable not only to
employment but also to housing,” said Rich Samp, chief counsel at
the Washington Legal Foundation, in an interview with me yesterday.
The WLF had filed an amicus
brief supporting the city in the Hazleton case,
arguing that the Third Circuit ruling against the city “interferes
to an unwarranted degree with the authority of state and local
governments to exercise their traditional police powers —
including the regulation of employment and housing within their
jurisdictions.”
The WLF also argues that the Pennsylvania city really
hasn’t put itself at odds with federal law anyway:
In recent years, Congress has adopted legislation
requiring States to adopt practices designed to reduce the
incentives for illegal aliens to remain in the country…. It also
adopted numerous statutory provisions encouraging state and local
governments (and their employees) to cooperate with federal
authorities in enforcing the immigration laws…. It defies logic to
suggest that Congress demands that States ferret out illegal aliens
to ensure that they are not receiving welfare benefits and actively
solicits their cooperation in enforcing immigration laws, yet
simultaneously prohibits them from taking steps to prevent illegal
aliens from seeking rental housing.
Samp and the WLF are right. What is evident in Hazleton
and Arizona and now Alabama is anything but states or cities going
rogue. Instead, the states and cities are merely asserting their
own authority to implement laws passed by Congress that a
presidential administration, against congressional intent,
refuses to adequately enforce on its own. It is the national
executive, not the local governments, that is going
rogue.
It is in that light that the new Alabama law should be
weighed — at least from a legal standpoint. I make no judgment
whatsoever about the wisdom or advisability of any particular
provision of the new Alabama law. (I myself am sort of a moderate
on immigration policy, although I utterly oppose amnesty and its
various spin-offs.) What merits defending aren’t the policy choices
themselves, but the ability of the local governments to make those
choices. A form of federalism is under assault from the Left,
spearheaded by the Obama administration — but federalism merits
preservation. State and local governments have good reasons to want
to keep away illegal aliens; and even if their reasons weren’t
good, those governments have every right, under our constitutional
system, to make those judgments for themselves.
It is a derailment of the American tradition for a
presidential administration to be less interested in upholding
federal law than state and local governments are. It is an
abdication of order that should not be countenanced. States and
localities merit support, legal and otherwise, for their efforts to
ensure that the laws are faithfully executed.
