The U.S. Supreme Court today vacated the decision of the U.S. Court of Appeals for the Third Circuit, which had joined the District Court in finding the Hazleton, Pennsylvania, licensing ordinances aimed at illegal immigrants unconstitutional.
The Hazleton case hinged on the proper interpretation of a federal statute recognizing state and local authority over licensing as not pre-empted by federal sanctions aimed at employers of illegal aliens. The lower courts thought that the interpretation of “licensing” as used in the statute could not be broad enough to include the Hazleton municipal licensing ordinances.
But the Supreme Court recently upheld a similar licensing statute in Arizona, also aimed at penalizing the hiring of illegal aliens. In vacating the 3rd Circuit’s decision in the Hazleton case, the Supreme Court ordered the 3rd Circuit to reconsider its position in light of the Supreme Court decision in the Arizona case.
The Supreme Court is authorizing the states and localities to take action to deter illegal immigration as long as the enactments are consistent and not in conflict with federal immigration law. The next big Supreme Court decision will be on Arizona’s SB 1070, which is also aimed at deterring illegal immigration, but which is not a licensing statute. I predict that the Supreme Court will also be modifying the 9th Circuit opinion enjoining parts of that statute.
At the root of these disputes over pre-emption is the question whether, when the federal government fails to enforce its own immigration laws, states and localities are barred from acting on their own to enforce federal law. The Supreme Court seems to be finding that they are not.