August 31, 2008

Judge Rules Against City Ordinance Restricting Illegal Alien Tenants
— Gabriel Malor

This story got lost in all the convention coverage last week.

Farmers Branch, TX, a suburb of Dallas, has been trying for several years now to reduce the effects of illegal immigration in the city. In 2006 the city council passed ordinances to designate English the official language, to train police officers in immigration enforcement, to fine businesses who employ illegals, and to fine landlords who rent to illegals. The ordinance was then passed by a voter referendum 68% to 32%.

The city was promptly sued in federal district court and years of litigation resulted. The rental restriction has faced the most criticism. It requires landlords to obtain and keep evidence that tenants are U.S. citizens or legal residents.

Last Thursday, Judge Sam Lindsay issued a final judgment against the city declaring the rental ordinance unconstitutional and unenforceable. He ruled that it infringed upon the plenary power of Congress in immigration matters and that its use of the phrase "eligible immigration status" was too vague to meet the requirements of due process.

Farmers Branch isn't done yet. It already passed a replacement ordinance which would go into effect 15 days after a final judgment.

Ordinance 2952 [the replacement ordinance], by contrast, would require prospective renters to pay $5 to the city and declare their citizenship or legal U.S. residency to obtain a license to rent a house or apartment. Landlords could rent to anyone with a license. The city would be responsible for checking the tenants' information against a federal database to confirm their legal status.

This one was designed to avoid the constitutional deficiencies identified by the judge. It doesn't place any burden on landlords to decide the immigration status of prospective tenants, nor does it give that power to the city government. Instead, it simply withholds a rental license from anyone the federal government doesn't have listed as a legal resident. Increasingly, courts have upheld state and local laws involving immigration so long as they leave actual immigration enforcement or determinations of immigration status to the federal government.

Lawsuits are already pending over the replacement ordinance. Incidentally, Judge Lindsay has made statements that indicate to me he's already come to a conclusion on it:

"The new ordinance is yet another attempt to circumvent the court's prior rulings and further an agenda that runs afoul of the United States Constitution," he said at the time.

By coming to a hostile conclusion before the replacement ordinance even became operative, is it reasonable for the city to ask if he can carry out his duties with integrity and impartiality?

Posted by: Gabriel Malor at 07:28 AM | Comments (26)
Post contains 444 words, total size 3 kb.

1 sounds like Senor Sam should step aside for a rehearing, huh?

Posted by: Frank G at August 31, 2008 07:32 AM (P0rQD)

2 It sounds like an excellent ruling.

The Congress makes the law on enforcing immigration; it's a federal responsibility.

What other product or service (short of maybe a national defense issue) is prohibited to be sold or rented to non-citizens? If the city feels strongly a given person isn't a citizen, they should report it to ICE, and if ICE does squat, they should embarrass the federal government. They can even detain and turn the illegal immigrant over to ICE if they have sufficient legal grounds for the original detention.

I support your country's right to its own immigration law, to protect its border, to deport, etc. But I agree with the reasoning in this decision.

Posted by: Christoph at August 31, 2008 07:36 AM (hawOV)

3 Wonder if the good judge will recuse himself, seeing as he's already passed judgement prior to hearing the case.

Posted by: GarandFan at August 31, 2008 07:46 AM (eJ32B)

4 Grrrrrrrrrrrrrr.

Posted by: LiveFreeOrDie at August 31, 2008 07:49 AM (4HuGv)

5 The decision does strike me as correct on the old ordinance: it was overreaching by a local government into federal questions.  But the judge's statement about the new ordinance should be grounds for disqualification from any new suit if he does not recuse himself.

Posted by: Dave J at August 31, 2008 07:56 AM (qsGH+)

6 You're probably right on your last, DaveJ.

Posted by: Christoph at August 31, 2008 08:01 AM (hawOV)

7 Oh, but for what it's worth, even though the judge was wrong to comment on the replacement ordinance, he's still right about it.

Posted by: Christoph at August 31, 2008 08:02 AM (hawOV)

8 What other product or service (short of maybe a national defense issue) is prohibited to be sold or rented to non-citizens?

Firearms. Its on line #11 and question 12k on the ATF from 4473.

Posted by: Purple Avenger at August 31, 2008 08:13 AM (6L459)

9 That would be a national defense issue, Purple Avenger. Try again.

Posted by: Christoph at August 31, 2008 08:21 AM (hawOV)

10 One reason I hate Lawyers is because Judges used to be Lawyers, and the Law is what the Judge says it is.

Posted by: Smug at August 31, 2008 08:35 AM (baPuN)

11 National defense?  Christoph, you aren't in a hole, don't start digging.

For the record, because these stories never ever ever ever give this information: "appointed by Bill Clinton in 1997".

Posted by: AmishDude at August 31, 2008 08:39 AM (GlrN/)

12 Christoph,
In Oklahoma it is unlawful to purchase real estate unless the purchaser is a US citizen.

I've told you before about arguing the law when you know so little.

P.S. How's that Obama "bounce" going?

Posted by: Nom de Blog at August 31, 2008 08:44 AM (14k+t)

13 That would be a national defense issue

Explain how private firearms sales are a "national defense" issue.  Please be specific.

Posted by: Purple Avenger at August 31, 2008 08:50 AM (6L459)


I'm against co-opting private businesses into enforcing Federal laws.  Hell, I'm against the Feds co-opting anyone other than other Feds into enforcing Federal law.

But the revised version seems hunky dory with me.  If a municipality wants to pass a law that say no green card, no license, that's their perogative.

Posted by: ThomasD at August 31, 2008 09:13 AM (UK5R1)

15 In Oklahoma it is unlawful to purchase real estate unless the purchaser is a US citizen.

Correction: the law in Oklahoma prevents nonresident aliens from owning land in the state.

Posted by: Gabriel Malor at August 31, 2008 09:19 AM (1Ug6U)

16 Lindsay, Sam A. Born 1951 in San Antonio, TX

Federal Judicial Service:
Judge, U. S. District Court, Northern District of Texas
Nominated by William J. Clinton on November 8, 1997, to a new seat created by 104 Stat. 5089; Confirmed by the Senate on March 11, 1998, and received commission on March 17, 1998.

St. Mary`s University, B.A., 1974

University of Texas School of Law, J.D., 1977

Professional Career:
Staff attorney, Texas Aeronautics Commission, 1977-1979
Attorney, City Attorney's Office, Dallas, TX, 1979-1998
Head, Federal Litigation Section, 1979-1986
Chief of litigation division/executive assistant city attorney, 1986-1990
First assistant city attorney, 1990-1991
Acting city attorney, 1991
City attorney, 1992-1998

Race or Ethnicity: African American

Gender: Male

Posted by: Tinian at August 31, 2008 09:21 AM (1Mq7K)

17 A single shot .22 rifle is a national defense issue.

Yer killing me, Christoph.

Posted by: Tinian at August 31, 2008 09:29 AM (1Mq7K)

18 "...for what it's worth, even though the judge was wrong to comment on the replacement ordinance, he's still right about it."

It's arguable, but it's much more marginal, given that the city is actually relying on prior individualized federal determinations with respect to immigration issues.

Now keep in mind, Congress could themselves pass a statute expressly authorizing states and localities to do things like this.  Then such ordinances would be acting on a delegation of federal power and almost certainly constitutional.

Posted by: Dave J at August 31, 2008 09:47 AM (qsGH+)


I do not think the replacement ordinance is "hunky dory" at all.  The poster said "no green card, no license" is ok, but name ANY other US city, now or anytime since this country has been founded, that has required a license from the local city government before ANYONE is allowed to move to that town.  I don't care how easy the license is to get; the imposition of that requirement is a HUGE increase in governmental authority and one of the most outrageously liberal policies I have ever seen. How can this requirment ever be justified?  How can I, a natural born American Citizen, be required to go to City Hall and obtain a residence license before I am allowed to live in Farmers Branch?  But this is what the new ordinance will require for EVERYONE, and this is outrageous.  And who's to say they won't up the requirements in the future, since that's the trajectory that all of these governmental rules always take?  

One of the worst things about this illegal immigration fight is that angry conservatives are beginning to adopt shockingly liberal ideas that vastly expand the government's power out of frustration.  This is WRONG.  If conservatives begin to sell out their principles for victory at any cost, they will have already lost everything important to them. 

Posted by: wws at August 31, 2008 09:58 AM (z+U1w)

20 Gabriel Malor,
That wasn't so much a correction as an addendum.
But thanks anyway, ass hole.

Moby meat is tasty and delicious.
I find your moby posts go well with a chilled-the-fuck-out white whine.

Posted by: Nom de Blog at August 31, 2008 10:02 AM (14k+t)

21 I don't get it. It sounds like immigration positions on the Right boil down to the Purity of Essence argument. The same argument is always used to weed out undesirables. I have no objection to expanding the wall of the cozy Medieval town of American society. There are too many people who deserve social assimilation to not expand the town. What are people afraid of? Leftist-style redistribution of wealth? How about distribution of culture? Oh noe, that will allow unauthorized freedom. Where's Nehemiah when you need him?

Posted by: Squire of Dimness at August 31, 2008 10:04 AM (o4MaC)

22 I sure wish the judges and assorted bleeding heart riff-raff of America were as dedicated and proactive about defending the rights of law abiding US citizens as they are about smoothing the road for criminals.

Posted by: Flubber at August 31, 2008 11:48 AM (atCpK)


There's a certain practical side to this issue that is being ignored by the idealists.  The Fed has no intention of doing it's job, and in this case can not be shamed into doing it.  The localities are being required to lay down and tolerate the wave of illegals washing over them and keep quiet.  They are told to accept economic ruin for their own less educated citizens, clogged hospitals, clogged schools, crime waves, and all the other unmitigated blights that unrestricted immigration causes.  That's absurd - and measures like this are taken as a legitimate means of self defense.  An anaolgy - I keep guns in my house because the police don't get paid to protect me - they're paid to clean up the mess and maybe, if they feel like it, cast about half-heartedly for whoever robbed/killed me after the event.  The Fed handles illegal immigration (colonization, really) much the same way.  The towns must devise their own means of self defense.  Constitutional arguements about who is supposed to do what are all well and good, but thanks to the Left the real meaning of the Constitution has been ignored for many years now and shows no sign of making a come back.  Local governments, especially those boating 2/3+ majority votes on their ballot measures, are well justified in looking out for their own interests.  Hell - the Fed should be thanking them for taking up the slack and making the Fed's job easier.  And if legal means are exhausted, who can blame them for resorting to non-legal means?  Frankly I'm amazed at the heroic level of self restraint that Americans have exercised over the last several years.  In most other nations the Minute Men would have been sending hot rounds down range rather than using their radios, and we'd have already had a good purging of the Muslims.  How much more are Americans supposed to swallow before they can say ENOUGH?

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