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Policing the Undocumented

Passing anti-'illegal alien' laws may make politicians popular, but the result will be costly litigation that their localities will lose.

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In recent months, a number of localities -- including Avon Park, Fla., and Hazleton, Pa. -- have proposed ordinances to regulate immigration by punishing those who aid and abet "illegal aliens." While this might sound like a reasonable idea -- who, after all, wants to support illegal behavior? -- the ordinances are deeply flawed, unconstitutional, and will lead to discrimination against all immigrants and many minorities.

A "model" ordinance has been making the rounds of various cities around the country. What it proposes to do is to punish people who hire, rent to, or sell to so-called "illegal aliens." But what the law does not do is tell local employers, landlords and businesspeople how to do that without running afoul of other laws -- like the Fair Housing Act and civil rights laws that prohibit racial and ethnic profiling. It does not tell a landlord how to identify an illegal alien; in many cases, it does not even tell a landlord who would qualify as an illegal alien.

In practice, it is not that easy to pick out an "illegal alien." Even the phrase lacks definition. The immigration code acknowledges literally hundreds of immigration categories, but illegal alien is not one of them. Asking local landlords and businesspeople to decide who is illegal is not only unfair to them; it will inevitably lead to landlords and businesspeople deciding that renting or selling to some categories of people -- all people who look foreign or speak with an accent, for example -- is just too risky. That is called discrimination. We can all agree that it is illegal and unfair. And if these ordinances pass, it is inevitable.

The federal government already regulates the hiring of all employees by requiring workers to complete I-9 forms and by prohibiting the knowing employment of workers without proper authorization. Whatever we think of the federal scheme, states and localities are not free to enact their own, alternate programs. The legislative history of the federal law governing the hiring of workers -- the Immigration Reform and Control Act -- is pretty clear about this: "[t]he penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens... ."

Passing anti-"illegal alien" laws may make local politicians popular, but the result will be costly litigation that their localities will lose. The ordinances will never take effect, and the localities will lose lots of money as a result because they will have to pay not only their own lawyers, but the lawyers who challenge the ordinances as well. In the meantime, they will send the message to many of their residents -- including Latinos and immigrants legally present in the U.S -- that they are not wanted. How's that for a lose-lose proposal?

The proposed ordinance recently defeated in Avon Park is based on one being circulated in the anti-immigrant camp. It contained a proposal to prohibit the city from operating in a language other than English. At first blush, this may make some sense to some people, too. Virtually everyone agrees that it's a good idea for people in the U.S. to learn English. But learning another language is not merely a question of will; it takes a long time to become even moderately proficient in a second language, especially as an adult. These kinds of provisions violate the legal rights of both community members and government officials and employees. The provision infringes upon the fundamental constitutional right of residents to petition government and to express their views. Courts have declared such provisions to be illegal in a number of cases, including the well-known case involving Arizona's English-only provision in Yniguez v. Mofford 730 F. Supp. 309 (D. Az. 1990).

In the end, it is the responsibility of our federal government to address the many policy issues associated with immigration. Localities would best serve their citizenry by calling on Congress to deal with those issues, rather than by passing illegal ordinances that will land them in hot water.

Mary Bauer is the director of the Southern Poverty Law Center's Immigrant Justice Project. Prior to the defeat of Avon Park's proposed resolution, she sent a letter (PDF) to the town's mayor and City Council members, warning them of problems with the law.