Federal appeals court agrees Farmers Branch renters’ ordinance targeting immigrants is unconstitutional

Dianne Solis, Dallas Morning News, Mar. 21, 2012: "A federal appeals court has upheld a lower court’s ruling that a Farmers Branch ordinance banning illegal immigrants from renting in the city.

The decision by the Fifth U.S. Circuit Court of Appeals in New Orleans Wednesday echoed a lower court ruling that the power to control immigration rests only with the federal government — not states or cities.

“This is a national problem, needing a national solution. And it impacts the nation’s relations with Mexico and other nations,” the decision said.

The appeals court judges said that the ordinance was more than a housing regulation and was “designed to burden aliens, both documented and undocumented, in Farmers Branch. As such, the ordinance serves no legitimate city interest.”

Farmers Branch Mayor Bill Glancy said he hadn’t read the decision, or spoken to the city’s outside lawyers about it.

But he said, “I have supported our stance on illegal immigration because I feel something must be done.”

Glancy said he couldn’t say whether the city would appeal to the U.S. Supreme Court — something former mayor Tim O’Hare vowed the city would do.

So far, the city has spent more than $4 million on legal fees fighting for the ordinance.

Glancy said the city has tried to help immigrants by offering English classes and a citizenship class in the city’s library but said few residents have taken the classes.

Nina Perales, vice president of litigation for the Mexican American Legal and Education Defense Fund, said the decision was a “resounding rejection of the Farmers Branch ordinance.”

“The federal courts have made clear that cities cannot make their own immigration laws and target residents for expulsion simply because of their race or nationality,” Perales, who argued the case before the Fifth Circuit.

William Brewer III, another attorney who challenged the city's ordinances, said the opinion makes it “clear that this ordinance was intended to discriminate against Hispanics.”

“The decision makes clear what we have contended all along — that the ordinance is unconstitutional and that the city is attempting to interfere in an area that is clearly the province of the federal government,” said Brewer, a partner at Bickel & Brewer Storefront in Dallas.

Lisa Graybill, legal director for the ACLU of Texas, said that Farmers Branch should end its expensive legal fight.

“It is time for Farmers Branch to give up its mean-spirited and quixotic efforts to do the federal government’s job,” she said.

Kris Kobach, part of the legal team for Farmers Branch, said he was disappointed. The former law school professor who is now Kansas Secretary of State has crafted many pieces of legislation around the country that would crack down on illegal immigration.

The legislation includes rental ordinances, business licenses and expanding policing authority of local law enforcement.

“This opinion begs for further review,” he said, adding he hasn’t been told whether city officials want to appeal

The fight over illegal immigration in Farmers Branch began in 2006, when the first ordinance was proposed that would require renters to prove they are legal U.S. residents. O’Hare, who was a council member at the time, was the driving force behind the measure.

Since the ordinance was approved, voters in the city of 30,000 have continued to elect candidates who supported it. In 2007, voters overwhelmingly approved a referendum backing the ordinance.

But the two versions of the ordinance were both struck down by federal judges, who also barred the city from enforcing them.

The New Orleans decision reflected the complexities of immigration laws and the patchwork attempts by states and municipalities to fashion their own laws that focus on employment, housing or greater local police power.

The appeals court noted other attempts to regulate illegal immigration in Arizona, Alabama and in Hazleton, Pa.

“This increasing treatment — some might say mistreatment — of illegal immigrants around the country only reinforces what the Supreme Court has said in explaining why a national policy on immigration unimpeded by the whims of the various states is paramount,” said the decision, written by Judge Thomas Reavley.

In a partial dissent, Judge Jennifer Elrod said her colleagues asked and answered the wrong question. She said the panel should have decided whether the power to regulate rental housing is power of local government.

Elrod mentioned a U.S. Supreme Court decision last year that upheld a 2007 immigration law in Arizona. That law — different from another sweeping Arizona bill passed in 2010 — focused on the suspension or revocation of business licenses of employers who were found to knowingly hire workers in the U.S. illegally.

Fewer immigration laws have gone after employers and their business licenses. Nor did the ordinance in Farmers Branch, where businesses provide about three-fourths of city tax revenue.

Judge Elrod did agree with the other judges that the Farmers Branch ordinance went beyond what was approved in the Arizona case."