In Nebraska, residents of the City of Fremont grew concerned about the influx of unlawful aliens into their community, many drawn by jobs at two nearby meat-packing plants. Concerned residents sought to pass an ordinance meant to deter unlawful aliens from living or working in the community. The Fremont City Council initially rejected the proposed ordinance in 2008, but voters continued to pursue the matter with a city initiative petition. The City challenged the validity of the initiative, but the Nebraska Supreme Court found the initiative procedurally proper and refused to render an advisory opinion on the substantive constitutionality of the proposed ordinance. On June 21, 2010, voters in the City of Fremont adopted the controversial Ordinance No. 5165 (the “Ordinance”) pursuant to a voter referendum. The stated purpose of the Ordinance was to “prohibit the harboring of illegal aliens or hiring of unauthorized aliens” in the City of Fremont. It sought to achieve these goals by implementing occupancy and business licensing schemes requiring inquiry into individuals’ immigration status and providing penalties for non-compliance. On July 6, 2010, the federal government made good on its promise to challenge S.B. 1070 and filed a lawsuit in the United States District Court for the District of Arizona, seeking “to declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070.” The federal government claimed S.B. 1070 is “preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.” The United States specifically argued facial challenges to six of S.B. 1070’s provisions. District Court Judge Susan R. Bolton granted in part the United States’ motion for preliminary injunction and enjoined enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6. Arizona appealed the district court’s ruling, and the Ninth Circuit affirmed. The United States Supreme Court granted Arizona’s petition for certiorari on December 12, 2011, and heard oral arguments on April 25, 2012. Similarly, opponents of the Fremont, Nebraska Ordinance filed suit in the United States District Court for the District of Nebraska on July 21, 2010, challenging the Ordinance’s constitutionality and seeking to enjoin its enforcement. The City of Fremont then resolved to suspend implementation and enforcement of the ordinance pending the resolution of the litigation. On February 20, 2012, Chief Judge of the United States District Court for the District of Nebraska, Laurie Smith Camp, entered a Memorandum and Order on cross motions for summary judgment. The court granted in part the plaintiffs’ motions for summary judgment and permanently enjoined enforcement of section 1, Parts 2, 3.L, and 4.D of the Ordinance. The City of Fremont filed its notice to appeal on March 21, 2012. This Note analyzes the Ninth Circuit’s decision in United States v. Arizona, as well as the United States District Court for the District of Nebraska’s decision in Keller v. City of Fremont. It will first discuss the background of the cases, including an overview of the general preemption standards the applied by the Arizona court, an overview of Supreme Court preemption decisions in the immigration context, and a summary of the United States v. Arizona and Keller v. City of Fremont decisions. The Note will then analyze the Arizona decision, concluding the Arizona court correctly upheld the district court’s injunction of S.B. 1070. However, this Note will argue the Arizona court’s reasoning was flawed because general preemption standards are an inadequate analytical tool for determining the constitutionality of state laws attempting to regulate immigration. Rather, S.B. 1070 is unconstitutional because the Constitution gives the federal government exclusive authority to regulate immigration and the enjoined sections of S.B. 1070 exceed the authority Congress has delegated to states to regulate immigration. Next, the Note will analyze the Keller decision in light of the Note’s analysis of the Arizona decision, concluding the Keller court correctly enjoined portions of the Ordinance. Finally, this Note will conclude by offering insights into the implications of the Arizona and Keller decisions.
Christopher C. Cassiday,
State Power to Regulate Immigration: Searching for a Workable Standard in Light of United States v. Arizona and Keller v. City of Fremont,
91 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol91/iss2/7