Virginia, US
Earlier this month, the U.S. Supreme Court denied petitions for writs of certiorari and thus declined to review decisions of the Third and Fifth Circuit Courts of Appeals, respectively, which struck down immigration-related ordinances in the towns of Hazleton, Pennsylvania and Farmers Branch, Texas. See City of Hazleton, Pa. v. Lozano (U.S. Mar. 3, 2014), and City of Farmers Branch, Tex. v. Villas at Parkside (U.S. Mar. 3, 2014). In deciding against hearing the two towns’ appeals, the Court left intact the circuit court rulings which had found these local laws to be preempted by federal law. 
 
In Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), the Third Circuit held that city ordinances attempting to regulate the employment of unauthorized workers, and the provision of rental housing to noncitizens lacking lawful immigration status, were preempted by federal law. In Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524 (5th Cir. 2013), the Fifth Circuit held that a city ordinance requiring all adults living in rental housing within the city to obtain an occupancy license conditioned upon the occupant’s U.S. citizenship or lawful immigration status was preempted by federal immigration laws. 
 
The Hazleton ordinance, enacted in 2006, became somewhat of a national cause célèbre. It was the first local immigration-related ordinance in the nation to be challenged in federal court on the ground that it was preempted by federal law, and the district court judge agreed with the plaintiffs’ claims. Observers expected similar state and local immigration laws and ordinances around the nation to be struck down on similar grounds, but for a time the tide seemed to be turning with the February 2008 decision of a U.S. district court in Arizona to uphold the Legal Arizona Workers Act (LAWA), a law which requires all employers to use E-Verify to verify employees’ work eligibility, and which provides for the suspension or revocation of an employer’s business license for knowingly and intentionally hiring unauthorized foreign workers. The court in Arizona found that the law was not preempted by federal law because of specific language in the Immigration Reform and Control Act (IRCA) which created an exception or “savings clause” for “licensing and similar laws.” This decision was upheld by the Ninth Circuit in September 2008, and subsequently by the Supreme Court. Meanwhile, the Hazleton case was appealed to the Third Circuit, which—in contrast to the Ninth Circuit decision upholding LAWA—held that a state or local statute that might survive an express preemption challenge based on the savings clause in IRCA is nonetheless conflict preempted by the comprehensive scheme of employment eligibility compliance set out by Congress in IRCA. 
 
The city of Hazleton sought review by the Supreme Court. Soon after issuing its decision on the Arizona E-Verify law, the Supreme Court ordered the Third Circuit to review its decision in the Hazleton case in light of the new precedent. The Third Circuit subsequently vacated its earlier mandate which had declared Hazleton’s law to be unconstitutional. Later, in 2012, the Supreme Court issued its decision in Arizona v. United States, 132 S.Ct. 2492 (2012), which struck down key sections of Arizona’s notorious anti-immigrant law, S.B. 1070, affirming the federal government’s exclusive role in enforcing immigration law and effectively limiting the power of the states to act in this area independently of the federal government. The Court did not, however, strike down the so-called “papers please” provision of S.B. 1070, but allowed for the possibility for further review based on how the provision is applied in practice. In July 2013, the Third Circuit again ruled that both the housing and employment provisions in the Hazleton law are preempted by federal law. In October 2013, the city of Hazleton filed a petition with the U.S. Supreme Court seeking to overturn the Third Circuit’s decision. That is the petition the Supreme Court has now declined to review. 
 
The Farmers Branch case trod a similar path to the Supreme Court, with the Fifth Circuit declaring the town’s anti-immigrant ordinance unconstitutional after a hard-fought lawsuit brought against the town by plaintiffs represented by the American Civil Liberties Union and the Mexican-American Legal Defense and Education Fund. The Supreme Court’s denial of the Hazleton and Farmers Branch petitions for certiorari is the latest blow to local and state regulation of immigration, including the Court’s rejection of key aspects of Arizona’s S.B. 1070, and copy-cat laws in Alabama, Georgia, Indiana, South Carolina and Utah. 
 
Accordingly, it seems safe to assume that the Court will likely continue to be more circumspect in permitting local measures that have the effect of regulating immigration. Left standing in all of the litigation concerning state and local immigration laws are two key holdings. 
 
First, in addition to sanctions that already exist under federal law, states can penalize employers for knowingly hiring unauthorized foreign workers, and may require employers to engage in employment eligibility verification procedures not required under federal law, so long as the penalties for noncompliance can be characterized as business or licensing penalties. In other words, there is a narrow area in which states can act on immigration, but only when language in the federal Immigration and Nationality Law specifies that such action is not preempted by federal law. 
 
Second, states can empower local law enforcement to inquire into a person’s immigration status, but only when the person has otherwise been lawfully stopped, detained or arrested for some other legitimate reason, and only when there is a “reasonable suspicion” that the person in not in the United States legally. The Court reasoned in Arizona v. USA that it was premature to enjoin this provision of S.B. 1070 before state courts had an opportunity to construe it and without some showing that such inquiries violate a person’s civil rights or result in lengthy detention. 
 
The Court has thus left the door open to future challenges if the “papers please” provision is applied in a way that is discriminatory or otherwise conflicts with federal law. Such challenges are already underway in the lower courts, and may very well make their way up to the Supreme Court in the near future.