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Excerpted From: L. Darnell Weeden, Local Laws Restricting the Freedom of Undocumented Immigrants as Violations of Equal Protection and Principles of Federal Preemption, 52 Saint Louis University Law Journal 479 (Winter 2008) (150 Footnotes) (Full Document)

LDarnellWeedenA number of cities across America have enacted local regulations that restrict the ability of persons to engage in contractual relations with individuals classified as undocumented immigrants. Undocumented immigrants and their supporters have challenged the validity of laws that make it illegal for landlords and other providers of services to enter into contracts or agreements with them. The topic presented for discussion here is whether local laws restricting the freedom to contract with undocumented immigrants are either prohibited by the suspect class rationale of the Equal Protection Clause or preempted by federal immigration law.

Not all cities have enacted laws hostile toward undocumented immigrants. New Haven, Connecticut, for instance welcomes immigrants regardless of their official immigration status. However, in nearby Suffolk County on Long Island, laws keep undocumented day laborers off the streets and punish companies that hire them. Suffolk County executives, like other local government officials, cite the economic and social harms that accompany undocumented immigrants as the reasoning behind such openly hostile laws. This Article focuses on this latter type of local law, laws which evince hostility toward undocumented immigrants. The Article evaluates whether such laws violate equal protection or are preempted by federal immigration law.

Part I of this Article presents the context of America's current failure to articulate a single voice on the issue of undocumented immigrants.

Part II examines whether the Equal Protection Clause should prohibit local government from imposing group-based hostility against all immigrants, including undocumented immigrants.

Part III addresses whether the Constitution's express grant of power to the federal government to regulate immigration as a general matter preempts local laws regulating immigration.

The Article concludes that local immigration laws which are hostile toward undocumented immigrants violate the Equal Protection Clause and are, in any case, preempted by federal immigration law.


I think one can easily conclude that America as a nation is substantially in need of a political and constitutional reality check as to how to use its legal processes to treat undocumented immigrants with moral justice. The court recognized this much in Parkside Partners:

The court recognizes that illegal immigration is a major problem in this country, and one who asserts otherwise ignores reality. The court also fully understands the frustration of cities attempting to address a national problem that the federal government should handle; however, such frustration, no matter how great, cannot serve as a basis to pass an ordinance that conflicts with federal law.

Until Congress can adequately address the immigration issue, I believe the courts should continue to use the Supremacy Clause to protect undocumented immigrants from hostile legal action by local governmental actors. Applying the suspect class rationale and the Supremacy Clause when addressing issues of undocumented immigration are excellent means to protect those individuals unable to protect themselves in the local political process from local governmental attempts to regulate immigration.

The Carolene Products goal of protecting those unable to protect themselves in the political process, when extended to illegal immigrants, prohibits local governmental actors from regulating the conditions in which they remain in this country without congressional approval. Local communities are served well when they are properly advised that the United States Constitution grants the United States Congress the exclusive power to establish uniform rules for regulating immigration. I think federal courts should apply the rationale of Carolene Products to the exclusive power of the federal government to regulate immigration to protect illegal immigrants from local regulations designed to determine the conditions under which those illegal or undocumented immigrants remain in this country.

In the framework of immigration, local efforts to regulate immigration by placing hostile burdens exclusively on illegal immigrants who, by definition, cannot vote, are appropriately treated as suspect and are preempted by the Supremacy Clause because only Congress has the power to regulate immigration. Until the executive branch of the federal government has the political courage to enforce federal law prohibiting illegal immigration, the federal courts are obligated to protect all immigrants from local laws designed to regulate immigration. When a city establishes exclusively local laws for determining the conditions under which an undocumented immigrant remains in that community it is regulating immigration in violation of the Supremacy Clause.

Associate Dean and Roberson King Professor, Texas Southern University; B.A., J.D., University of Mississippi.