The Farmers Branch Absurdity
May 22, 2007
Farmers Branch, a small Texas town near Dallas, passed an ordinance imposing penalties on landlords who might rent their apartments to illegal aliens. The act included a requirement that the voters must approve it. In an exceptional turnout last Saturday, the voters did approve, 68% to 32%.
The ACLU and various parties took the town to court, claiming that the ordinance was unconstitutional. The court then ruled that the councilmen and residents of Farmers Branch are too stupid to govern themselves, substituted its judgment for theirs, and struck the ordinance as unconstitutional.
No, that’s not the stated reason for the decision of US District Judge Sam Lindsay for issuing an injunction against the ordinance. But that is the effect of his decision. This was a “temporary” injunction, one that will probably remain in effect for years while the decision is on appeal.
The judge noted, correctly, that the Constitution gives sole power to regulate immigration to Congress. But then he dives right into the argument of the ACLU and others that Farmers Branch was preempted by federal laws on immigration. He did quote, but then passed quickly over, the preamble to the ordinance in which the town asserted its “police power” to act to protect the “health, safety and general welfare” of its citizens.
Had the court bothered to look at the history of cities, he would have discovered that “municipal corporations” were making decisions about how and where people could live and work, to protect their health and safety, centuries before the United States was a gleam in anyone’s eye. What Farmers Branch sought to do was well within the normal power of any city.
The judge also failed to note that self-government through elected representatives is the most basic right possessed by all Americans. The Declaration of Independence states that “to secure these [unalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”
The Constitution in Article IV turns that statement of philosophy into a principle of law, when it guarantees to every state (and all its cities and counties) “a Republican Form of Government.” And, in case the judge didn’t know what that means, that is a government in which “the supreme power is held by the citizens entitled to vote and is exercised by elected officers and representatives.”
The court based much of its analysis on De Canas, a 1976 Supreme Court case, which approved a California law dealing with employment of illegal immigrants to the detriment of “lawful resident workers.” In that case, the Supreme Court said that states (or cities) are engaging in forbidden “regulation of immigration” when they determine who should or should not be admitted to the country.
The court notes that Farmers Branch did not make any new determination of who should be admitted. Its councilmen and citizens accepted federal definitions, down the line. However, the court noted that the town adopted definitions and forms developed by the Department of Housing and Urban Development, to be used in its regulation of landlord tenant law in the town. Presuming that the HUD laws and regulations have been tested and found constitutional, the court does not explain why Farmers Branch is “creating a new definition” when it is using existing federal documents, word for word.
The court did not consider any other issues in the case.
The law that this court denied to the town and its citizens, would have required that landlords ask all tenants to provide a declaration that they are citizens, or in the alternative, a declaration that they are legal aliens, and sign an immigration form created by Customs. These documents would be kept on file, and would be available as need be to both state and federal officials. Landlords who failed to follow these conditions would be subject to fines.
One aspect of this decision is pathetic. The court told Farmers Branch that it could not enact an ordinance solely within its own boundaries, because it was interfering with federal control of immigration. The double and obvious defects of that position are that the federal government is NOT controlling immigration now, and that the town did not say that anyone could not be in the US, only that certain illegals could not rent apartments in that town, no more, no less.
There is also litigation in Hazleton, Pennsylvania, against similar ordinances concerning both illegals being employed and renting apartments. These two cases are the leading edge of what will become dozens of cases around the country. Ultimately, it is the Supreme Court which will decide whether or not cities and towns can act with respect to illegal aliens within their own boundaries.
Since this is a simple matter of local decision-making, the towns should ultimately prevail. And when they do, they should seek costs and fees against the ACLU for assaulting the most basic civil right of all, the right to self-government.