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Federal Reform Must Bar State and Local Regulation of Immigration

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As the Senate Judiciary Committee debates S.744, the bipartisan immigration reform bill, few would question that last November's election vote -- particularly the disproportionate support of Latinos for the president -- motivated congressional consideration of immigration reform after many years with no progress. The key question is whether lawmakers will properly interpret the November vote and pass a bill whose provisions reflect the interests and concerns of the Latino community, or will make another foolishly reductionist mistake and conclude that Latinos will accept any bill labeled "immigration reform." As S.744 moves through the legislative process, we will learn the answer to this question -- and a sense of how serious the two parties are in courting the growing Latino vote.

Yet, still missing from the bill is one matter of great interest in the Latino community -- a clear congressional preemption of state and local immigration regulation. A strong United States Supreme Court decision last June in Arizona v. United States struck down three provisions (pointedly questioning the validity of a fourth) of Arizona's infamous SB 1070, and reaffirmed the longstanding constitutional principle that, particularly in the area of immigration, federal law is supreme and preempts state and local regulation. Still, there remain widespread attempts to enact and implement local and state laws that seek to regulate immigration and immigrants. Most such attempts seem to focus on Latino immigrants, creating a palpable sense of being targeted in the broader Latino community across the nation. Arizona and the five states that have replicated and expanded upon SB 1070 headline this trend, but there are other, more egregious, examples.

Among the most troubling of such laws are local ordinances that seek to drive immigrants out of a city through requiring a license to rent a home. In the city of Farmers Branch, Texas, for example, an ordinance requires every potential tenant to obtain a license before renting an apartment. If you are a United States citizen, you simply pay a small fee and receive a license. If you are not a citizen, obtaining a license involves the promise of further investigation of your status and the threat of losing your license and being evicted -- landlords coerced into evicting by the prospect of forfeiting the right to do business in Farmers Branch.

In design and practice, this draconian ordinance seeks to drive certain immigrants from the city, which seems to self-evidently intrude upon the federal government's exclusive authority to regulate immigration. Indeed, coerced eviction is tantamount to deportation, at least from the city of Farmers Branch. If other cities follow suit, immigrants could be driven from place to place and ultimately out of the country, yet such deportation is a quintessentially federal function. Still, in a court challenge to the ordinance, the Fifth Circuit Court of Appeals decided -- after the Supreme Court issued its strong decision in Arizona -- to lift a three-judge panel's decision striking down the ordinance, and to re-hear the case en banc, before the full complement of Fifth Circuit judges. The full court has had the case under consideration for months, with no indication of how it might rule.

Forestalling such inhumane occupancy licensing ordinances -- and obviating the need for costly legal challenges -- offers sufficient reason for Congress to express a clear intent to bar such local and state laws in S.744. The often unremarked breadth of local and state lawmaking in the area of immigration provides further support. A wide variety of laws -- touching on a multitude of matters -- have been enacted in the name of addressing purported concerns about immigration. A voting rights case currently pending before the Supreme Court epitomizes that broad sweep.

Arizona v. Inter-Tribal Council of Arizona involves a voter registration requirement enacted as part of a 2004 statewide ballot initiative, six years before the infamous SB 1070. Championed by anti-immigrant groups, Proposition 200 had a stated purpose of discouraging undocumented immigration. The "Arizona Taxpayer and Citizen Protection Act" dealt primarily with immigrant eligibility for public benefits, but also incorporated voting-related elements. Although there is no evidence of significant non-citizen voting in Arizona or elsewhere -- much less any indication that the prospect of fraudulent voting has any effect on encouraging undocumented immigration -- Proposition 200 nonetheless requires that every new Arizona voter provide proof of citizenship by presenting one of a small list of documents, not easily accessible to many eligible voters, before being allowed to register. The major impact of the law has been to prevent many non-Latino citizens -- most likely the elderly, the young, and others less likely to have the requisite documents readily at hand -- from registering.

Although the legal question before the Court is whether another important federal law, the National Voter Registration Act (NVRA), preempts Arizona's voter proof-of-citizenship requirement, a congressional bar on state immigration regulation would also prevent laws like Proposition 200, ostensibly addressing immigration but touching on disparate matters. Here, like the overarching connection to the Latino vote in November 2012, an intersection of voting and immigration demonstrates an important conclusion for S.744: It must include a clearly-stated congressional intent to bar state and local regulation of immigration.