The U.S. Eighth Circuit Court of Appeals has upheld a controversial Fremont ordinance that limits hiring and providing rental housing to "illegal" and "unauthorized aliens."
In a split decision, the three-judge panel reversed an Omaha judge's ruling that certain rental provisions were pre-empted by the Immigration and Nationality Act and violated the Fair Housing Act.
The court sent the case back to Omaha with directions to dismiss it.
Kris Kobach, the Kansas attorney who has represented Fremont in the case since 2009, hailed the court outcome.
“It's very satisfying to have the city win such a complete victory and have the court agree with virtually all our arguments,” said Kobach, also Kansas secretary of state and senior counsel to the Immigration Reform Law Institute in Washington, D.C.
John Wiegert, a Fremont resident who campaigned hard for the immigration restrictions, was equally elated.
“It's actually a great day for Fremont, a great day for America,” Wiegert said, “because, basically, we've put this in place, and a lot of other cities will see what we've done here.”
The ACLU quickly condemned Friday's ruling, saying it was out of step with other federal courts and the rest of the country, and it pointed to a strong dissenting opinion.
"The court majority failed to recognize that Fremont's attempt to exclude undocumented immigrants from the city's borders is not only un-American, it's unconstitutional," said Jennifer Chang Newell, attorney for the ACLU Immigrants' Rights Project.
In the majority opinion, Circuit Judge James B. Loken of Minneapolis wrote that the only serious issue was whether provisions of the Fremont ordinance "stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in providing a federal procedure for removing people in the country unlawfully.
The court found they did not.
The provisions neither determine who should be admitted into the country nor do more than marginally affect conditions under which they may stay, Loken said.
"Laws designed to deter, or even prohibit, unlawfully present aliens from residing within a particular locality are not tantamount to immigration laws establishing who may enter or remain in the country," the judge said.
In 2010, Fremont voters approved an ordinance requiring every potential apartment renter to get an occupancy license from the Fremont Police Department and to show proof they are in the country legally.
The ordinance also required businesses to use federal E-verify software to check on potential employees' residency status.
Attorneys representing landlords, tenants, employers and the ACLU Nebraska Foundation challenged the ordinance in federal court, saying it violated state and federal laws.
Last year, U.S. District Judge Laurie Smith Camp upheld parts of it that would require potential renters to prove legal status and pay $5 for an occupancy license.
But she ruled against portions that would have given the city eviction powers over tenants determined to have entered the U.S. illegally, saying it was discriminatory and interfered with federal law.
Both sides appealed.
A three-judge panel of the Eighth Circuit heard arguments in the case in December.
"The biggest problem for the plaintiffs here ... is that they can't identify a single federal statute that clearly conflicts with the Fremont ordinance in any way," Kobach told judges then as attorney for the city.
He said even if people who aren't legally in the country can't get a city-issued permit, they still can live in mobile homes or stand in the street. They just cannot rent apartments.
"It's intended to discourage unlawful employment in Fremont. It's intended to discourage unlawful residence in the U.S., at least in Fremont, because the fiscal burdens of illegal immigration fall on Fremont taxpayers," he said.
But Newell contended the Fremont ordinance conflicts with -- and undermines -- federal control over immigration.
"Here, Fremont is trying to bypass the removal process that Congress put in place and take into its own hands the power to decide who's allowed to live here," she said.
"And if the city of Fremont can do it, then any city, county or state in this country can do it."
In Friday's ruling, the Appeals Court cited the same reason the U.S. Supreme Court gave in March when it dismissed an attack on an Arizona immigration law: It was too early.
The high court rejected arguments about how state sanctions for willful violation of federal alien registration laws would be enforced.
Here, Loken said, judges declined to speculate whether provisions of the Fremont ordinance might stand as an obstacle because they don't yet know.
Circuit Judge Steven M. Colloton of Des Moines, Iowa, said he concurred in part with the opinion and the judgment, because the plaintiffs lacked standing to bring the claim.
The third judge, Senior Circuit Judge Myron Bright, of Fargo, N.D., said he strongly dissented and said Smith Camp's ruling didn't go far enough.
In response to Friday's opinion, Amy Miller, legal director for ACLU of Nebraska, expressed frustration, saying the court "stepped far afield" from federal decisions on similar issues.
"Judge Bright's dissent makes clear what the real impact of this ordinance will be on the people of Fremont: a climate of fear, of exclusion and distrust. These are not Nebraska values. It is a sad day for those who trust in Nebraska's motto of 'equality before the law,'" she said.
In his dissent, Bright said the ordinance seeks to make life so difficult for undocumented people that they are forced to retreat.
By doing so, he said, the city was seeking to usurp power reserved to the federal government by identifying undocumented people and forcing them out.
"The ordinance prevents undocumented persons from renting in Fremont, which is tantamount to preventing them from living in the city at all," Bright wrote.
He found the housing provisions conflict with the federal system for removal, which he said was supported by three sister circuits -- "every circuit yet to speak on this issue."
Miller said the ACLU has not had time to talk to their clients and evaluate their options moving forward.
They have 14 days to petition for a rehearing by the same panel or the entire circuit court.
The Fremont outcome came a day after the U.S. Senate passed a bill that would give an estimated 11 million undocumented people a path to citizenship while tightening border security.
Wiegert was not happy with that development. “It sounds to me like these guys want to reward people who have successfully broken the law by giving them citizenship,” he said.
Kobach said the court outcome shows that the federal government is not the only shaper of immigration law.
“It shows that cities and states that take action to protect taxpayers and protect lawful workers against the ill effects of illegal immigration are within their rights when they do so.”