The Shrouded Borderland Between Preemption and Discrimination: A Framework for the Analysis of City Ordinances That Require Proof of Citizenship or Legal Residency as a Condition to Rent a Dwelling Place

Abstract

In the absence of a comprehensive reform of the federal immigration system, numerous cities, counties, and local governments have passed various local laws and ordinances aimed at addressing the externalities of a growing influx of undocumented immigrants. Recently, there has been a proliferation of local ordinances that establish licensing schemes intended to prohibit a landlord from leasing his property to individuals who lack proof of citizenship or legal immigration status. Three federal circuit courts have addressed potential preemption issues that arise from such ordinances. Due to the lack of clarity in the U.S. Supreme Court’s preemption jurisprudence within the context of immigration law, the three circuits have split over the validity of these local efforts to deny undocumented immigrants the right to basic housing. While one of the federal circuit courts examined in this Note has found such ordinances to not be preempted by federal immigration law, the other two courts to consider the issue have reached the opposite conclusion. In so doing, each federal circuit court decision has relied on the ambiguities of the doctrine of preemption to advance or hinder local laws that discriminate against undocumented foreigners. In light of this background, this Note analyzes the discriminatory implications of such local immigration laws. More importantly, this Note proposes an analytical framework that will offer a unified, non-discriminatory federal answer concerning the authority of state and local governments to adopt laws that encumber undocumented immigrants’ rights to housing.