The Fifth Circuit Court of Appeals has held that a Farmer’s Branch, Texas municipal housing ordinance was actually an attempt by the city to regulate immigration and therefore is unconstitutional. The ordinance required all tenants in the city to obtain licenses demonstrating their citizenship or immigration status.
First, the court concluded that both the purpose and effect of the ordinance was to regulate immigration, not housing, which meant that the ordinance addressed a subject that was traditionally of federal rather than state concern. The court focused closely on the legislative language used in the preamble of the measure, which referenced federal immigration policy many times. “Although the ordinance provides no express removal mechanism,” the court nonetheless saw through the city’s claims that the measure merely addressed a matter of public health and welfare. “[R]emoval is the practical result of the ordinance because it regulates who may be an occupant based solely on immigration status.”
Thus, the court held the ordinance had the intended and practical effect of making it impossible for unlawfully present persons to live in the city. From that determination, the court had no problem finding the measure unconstitutional: “Because we conclude that the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy.” Villas at Parkside Partners v. Farmers Branch, 2012 U.S. App. LEXIS 6043, *23 (5th Cir. March 21, 2012). The court held that the ordinance “determines which aliens may reside in Farmer’s Branch,” which “necessarily compels our conclusion about preemption of the ordinance as a regulation of immigration contrary to federal authority.” It appears from this decision that the Fifth Circuit takes a dim view of state and local laws that are designed to discourage the residence of unlawfully present persons. See CLINIC’s analysis of the lower district court’s 2010 decision on this ordinance here .
For more information, contact CLINIC’s State and Local Advocacy Attorney, Karen Siciliano Lucas at firstname.lastname@example.org .