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In his work on North American society, Alexis de Tocqueville recognized the social and political significance of the municipality as an instance and source of popular sovereignty in the United States. The importance of the local government unit rested with the direct participation in and identification with the local mechanism of government. This identification had a nativist foundation: Americans, de Tocqueville noted, attach themselves to their home "as the mountaineer clings to his hills."

De Tocqueville’s observation was not the product of 19th century prejudice. Hannah Arendt also observed the significance of the local government unit in North America, which provided a foundation for popular self-rule when the colonists broke from England. The colonists already identified with their own home, finding themselves in their local communities already constituted on the established practices of participatory government.

The same sentiments pervade mainstream political theory today. After the birth of "new federalism" in the 1970s, the states were seen as possessing unique local traditions that were embedded in their constitutions, an organic unity of a people. At the same time, "Dillon’s rule," which posited local units as mere creatures of the state, was being replaced by an increased use of "home rule," which invested more power in local units, reflecting, in part, a turn to the unique local "community" identity located by de Tocqueville and Arendt. In the theory of popular sovereignty, the municipality is the lifeblood of self-government.

So say the political theorists. From a legal standpoint, the popular sovereignty of the local unit gives rise to considerations of another sort. The local government unit, like any other "state," possesses the "force of law" with the power to compel and sanction. As Hobbes already recognized in another connection, law is identical with, or at least emerges out of, self-preservation, and so the local government unit has the power to preserve itself through legal means, a process that becomes the self-reflection of its participants.

Nothing could be truer than in the case of the city of Hazleton, Pa., which has directly confronted the issue of identity and difference through a licensing ordinance that purports to battle the influx of illegal immigration. Hazleton’s Illegal Immigration Relief Act Ordinance (IIRA), passed in September 2006, declares the city’s interest in abating the "nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration." The ordinance seeks to undercut the material support base of illegal immigration by sanctioning the businesses and landlords who employ and house unauthorized aliens.

Section 4 of IIRA provides for revocation of city issued licenses of businesses that recruit, hire or employ "unlawful workers," a term that is predicated on the definition of "unauthorized alien" in Section 274A of the Immigration and Nationality Act, as amended (INA). The ordinance contemplates an enforcement scheme that requires verification of an employee’s authorization to work through city-initiated inquiries submitted to federal authorities, presumably the U.S. Citizenship and Immigration Services (USCIS).

Section 5 of IIRA provides for revocation of city-issued licenses of landlords who let, lease or rent a dwelling unit to an "illegal alien." A separate violation is deemed to have been committed on each day that such harboring occurs. Again, the enforcement scheme involves verification of the subject alien’s status with USCIS. During the period that the landlord’s license is suspended, the landlord is not permitted to collect any rent, payment, fee or any other form of compensation from any tenant.

Given the possible adverse results of failure to comply with IIRA, employers and landlords are well-advised to verify the status of employees and tenants prior to engaging in contractual relations with them. In the case of employers, this may not be so complicated, as federal law already requires verification under the I-9 regulation. In the case of landlords, the situation is very different, since inquiries into a person’s status may give rise to allegations of discrimination and may run afoul of other federal housing regulations.

At first blush, the terms of IIRA would appear to be pre-empted by federal law, since immigration is the province of the federal government. Indeed, the doctrine of pre-emption forms the basis of an on-going civil action challenging the enforcement of IIRA. Late last year, U.S. District Judge James Munley of the Middle District of Pennsylvania ordered a preliminary injunction blocking the enforcement of IIRA based, in part, on the reasonable probability that IIRA is pre-empted by federal law. The case is Lozano, et al. v. City of Hazleton. Of course, Munley did not rule on the merits of the pre-emption challenge in granting the preliminary injunction, so the final outcome of this issue is still unresolved.

The problem is that contrary to first appearances, pre-emption does not necessarily cut contrary to Hazleton’s ordinance. INA Section 274A(h)(2) does contain an express pre-emption provision concerning the regulation of immigration related employment practices, but that provision specifically exempts state and local "licensing and similar laws." Clearly, Hazleton had this clause in mind, as it fashioned IIRA in terms of its power to grant and revoke business licenses.

Another problem for the plaintiffs in the Hazleton litigation is that there appears to be a U.S. Supreme Court case directly on point that supports Hazleton’s position. In De Canas v. Bica, the court upheld a similar California law that provided that no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States. The court stated that it has never held that every state enactment that in any way deals with aliens is a regulation of immigration and per se pre-empted by the Supremacy Clause. Rather, pre-emption in this area only comes into play where the "nature" of the regulated subject matter implicates pre-emption, or where Congress has unmistakenly "occupied the field."

The De Canas court held that the states might regulate employment, as this falls clearly within their traditional police power. As a result, the "nature" of the regulated subject matter in De Canas was not pre-empted by the INA. In addition, the court held that the enactment of the INA did not support the conclusion that Congress intended to oust state authority to regulate employment relationships in a manner "consistent with pertinent federal law." Hazleton appears to be on solid legal ground.

Yet, the situation is more complicated. The second holding of De Canas may be problematic after the enactment of the Illegal Immigration Reform and Control Act of 1986 (IRCA), which added provisions to the INA governing the employment of "unauthorized aliens." Arguably, through IRCA, Congress expressed its intent to occupy the field of immigration-related employment practices, excluding state and local control in this area.

Hazleton has two responses to this point: First, IRCA specifically exempts state and local "licensing and similar laws," as mentioned above. Second, IIRA is in no way inconsistent with pertinent federal law. By its terms, IIRA is predicated on the definitions and requirements established under IRCA. Moreover, in enacting IRCA, Congress established a basic pilot program allowing employers to verify whether an individual seeking employment is authorized to work in the United States. IIRA simply contemplates the use of this federal system. Finally, federal law requires USCIS to respond to any inquiry by a state or local government agency that seeks to verify the immigration status of any individual. Clearly, the pre-emption issue is not stacked against Hazleton by any means.

Setting aside the legal arguments, many critics have pointed out the practical impossibility of implementing the enforcement scheme contemplated under IIRA. Since the city’s enforcement power is predicated on receiving verification of an alien’s status from USCIS, the enforcement action will become a protracted nightmare for employers, landlords and aliens.

The reason for this conclusion is simple: The agency responsible for verifying an alien’s status is already under-funded and facing dismal backlogs in its own adjudication programs. It is unclear how long a response from USCIS would take, and taxing the system further with verification requests from local government units will only serve to complicate the backlog problem even further. Critics also note that a preponderance of local immigration related ordinances will create an unclear patchwork system for enforcing immigration, which only serves to complicate even further an already dismally obscure area of law. Compliance for large-scale companies doing business across the United States would require a superhuman effort.

The predictions of gloom and doom from critics may not be far from the truth. The move to enforce immigration through licensing requirements that regulate businesses, employment and housing has become a trend. Ordinances similar to IIRA have passed in Bridgeport and West Hazleton, Pa., and in Riverside, N.J., Pahrump, Nev., Cherokee County, Ga., Pickens County, S.C., and Farmers Branch, Texas, to name a few. Many other municipalities and counties are in the process of considering similar ordinances. Recently, Colorado joined the frontal assault on illegal immigration by requiring employers to affirm that they have verified the work authorization of newly hired employees in accordance with federal standards.

Of course, some observers blame this situation on the Bush administration’s failure to address the obvious problem of illegal immigration. Local communities would not be forced to confront the problem if federal authorities would enforce existing laws, according to popular argument. Others blame Congress, saying legislators consistently appear to lack the will to address comprehensive immigration reform. As a result, local governments are forced to fill in the gaps left open by a broken federal immigration system.

Doubtless, the issue goes beyond legal concepts. Litigation, disquisitions on pre-emption and preliminary injunctions will not even serve as temporary fixes to the growing social and economic problems associated with immigration. Both the left and the right agree on this point, regardless of their ultimate positions. So, this problem is necessarily pushed into the political domain.

Perhaps this point becomes clear when the briefs in the Hazleton litigation are subjected to a semiotic analysis, going beyond the legal points. For example, the plaintiffs’ brief in support of preliminary injunction consistently uses the term "undocumented workers" and "undocumented aliens" in reference to aliens unlawfully present in the United States. By contrast, the defendant’s brief consistently uses the term "unauthorized alien," which is the term of art used in the INA.

The point may be obscure, but it offers an opening into the way in which the political lines are drawn in this debate. Plaintiffs may assume that anyone physically present in the United States potentially "belongs" by virtue of positive law, the Legislature’s ability to grant membership through the enactment of statute law. The defendant might assume that belonging requires more than positive law; it requires membership in a certain community, "authorized" by participation in certain local customs and traditions. After all, Americans cling to their homes like a mountaineer to his hills.

In law school, I was puzzled by Carl Schmitt’s remark that the state is the political unity of a people, whereas the rule of law represents the non-political. The Hazleton affair, I think, sheds some light on his remark.

The political unity of a people requires more than some vague attachment to abstract institutions, such as legal norms. With the advent of globalization and the increase in immigration, Americans will need to reflect long and hard on what it means to be a "political unity." Merely passing laws and instituting civil actions will not resolve what it means to "belong."

At the heart of the Hazleton ordinance may lay a search for identity. Perhaps the local ordinances are an expression of what de Tocqueville recognized as the local tendency to identify with one’s home. Of course, such identification means drawing lines of difference and determining who will be excluded.

GEOFFREY FORNEY is an associate at Klasko Rulon Stock & Seltzer, specializing in immigration and nationality law. He may be reached at 215-825-8615 or [email protected].

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