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An estimated 37 million foreign-born persons currently reside in the United States, almost a third
of whom may be present without authorization, and in recent years the number of aliens who
unlawfully reside in the United States has grown significantly. The movement of aliens (both
legal and nonlegal) to “nontraditional” areas and the growth in the unauthorized alien population
have led some states and localities to enact measures geared at stopping unauthorized aliens from
arriving and settling within their communities. Typically, such measures have sought to (1) limit
the employment and hiring of unauthorized aliens, including through the denial of permits to
entities that employ such persons, as well as through the regulation of day labor centers; (2)
restrict the ability of such aliens to rent or occupy a dwelling within a state or locality’s
jurisdiction; and/or (3) deny such individuals access to state and local services or benefits.
State or local restrictions upon unauthorized aliens’ access to employment or housing and
eligibility for public benefits have been challenged on at least one of the following grounds: (1)
such restrictions are preempted by federal law, including the Immigration and Nationality Act
(INA), and are, therefore, unenforceable by federal or state courts; (2) the measures run afoul of
the Equal Protection Clause of the Fourteenth Amendment, which requires states and localities to
accord all persons equal protection under the law; (3) such restrictions deprive persons of a
liberty or property interest without providing them adequate due process, in violation of
Fourteenth Amendment requirements; and (4) the restrictions run afoul of federal civil rights
statutes, including the Fair Housing Act, Title VII of the Civil Rights Act, and 42 U.S.C. § 1981.
Arguably, these challenges are more significant with respect to state and local restrictions on
employing and renting property to illegal aliens than they are with regard to state and local
restrictions on unauthorized aliens’ access to public services and benefits.
This report discusses the constitutional issues raised in relation to state and local laws intended to
deter the presence of unauthorized aliens, along with the implications that federal civil rights
statutes might have on the implementation and enforcement of measures restricting such persons’
ability to obtain employment, housing, or other state and local benefits or services. The report
also discusses recent judicial developments at the federal level concerning local ordinances aimed
at deterring the presence of unauthorized aliens within a locality’s jurisdiction.
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Introduction ..................................................................................................................................... 1
I. Factual Background ..................................................................................................................... 2
II. Relevant Immigration-Related Legal Issues............................................................................... 3
Preemption ................................................................................................................................ 3
Equal Protection ........................................................................................................................ 4
Procedural Due Process............................................................................................................. 5
III. Immigration-Related Legal Issues Raised by State or Local Restrictions on the
Employment of Unauthorized Aliens ........................................................................................... 6
Preemption ................................................................................................................................ 6
Procedural Due Process............................................................................................................. 9
IV. Immigration-Related Legal Issues Raised by State or Local Restrictions upon Tenancy
or Dwelling..................................................................................................................................11
Preemption ...............................................................................................................................11
Equal Protection ...................................................................................................................... 12
Procedural Due Process........................................................................................................... 13
V. Immigration-Related Issues Raised by State and/or Local Restrictions on Public
Benefits/Services........................................................................................................................ 14
VI. Potential Limitations Imposed by Federal Civil Rights Statutes............................................. 16
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Author Contact Information .......................................................................................................... 18
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In recent years, some states and localities have considered, and in a few cases enacted, measures
intended to deter the presence of aliens who are present in the United States without legal
authorization (i.e., aliens commonly referred to in discourse as “illegal” or “unauthorized” aliens).
Typically, such measures have sought to (1) limit the employment and hiring of unauthorized
aliens, including through the denial of permits to entities that employ such persons, as well as
through the regulation of day labor centers; (2) restrict the ability of such aliens to rent or occupy
a dwelling within a state or locality’s jurisdiction; and/or (3) deny such individuals access to state
and local services or benefits.
Several of these measures have been challenged in court, including on federal preemption and
Fourteenth Amendment grounds. Legal challenges brought in federal court concerning
restrictions on employment or the renting of property have led to conflicting court rulings. In
some cases, the relevant state or local measure has been upheld as legally and constitutionally
valid. In other cases, the measure has been struck down. In still other instances, the parties have
reached a settlement agreement that precludes enforcement of the contested ordinance, or the
presiding court has enjoined the enforcement of the ordinance pending trial.
These cases illustrate the difficulties states and localities face in attempting to regulate the
presence and rights of aliens within their jurisdictions in a manner consonant with federal law.
Over time, the courts have narrowed the legal bases upon which states and localities may enact
legislation affecting aliens. State and local authority to regulate aliens has also been limited,
directly or impliedly, by the growing scope of federal immigration law. With the enactment of
federal employer sanctions, welfare reform, and other recent immigration laws, Congress has left
increasingly few gaps and crevices for states and localities to fill. Significantly, these laws have
not only broadened the substantive regulation of aliens (e.g., employment eligibility), but have
also established discrete procedures for determining alien eligibility for employment and certain
benefits. Perhaps ironically then, even as new state and local measures to deter illegal
immigration are motivated in part by a perceived lack of federal enforcement of immigration law,
the degree to which states and localities may regulate immigration-related matters has arguably
been curbed by the growing breadth of federal immigration law on the books. Conflicting court
rulings regarding the permissibility of state and local measures targeting illegal aliens have
further contributed to this legal ambiguity.
This report discusses the constitutional issues raised in relation to state and local laws intended to
deter the presence of unauthorized aliens, along with the implications that federal civil rights
statutes might have on the implementation and enforcement of measures restricting such persons’
ability to obtain employment, housing, or other state and local benefits or services. This report
also discusses recent judicial developments at the federal level concerning state and local
measures aimed at deterring the presence of illegal aliens.
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An estimated 37 million foreign-born persons currently reside in the United States, almost a third
of whom may be present without authorization.1 Over the past several years, the number of aliens
who unlawfully reside in the United States has grown significantly, from an estimated 3.2 million
in 1986 to more than 11 million in 2008.2 The number of unauthorized aliens in the United States
is estimated to have increased by 500,000 annually over the past few years, though the
unauthorized migration rate appears to have slowed.3
The movement of aliens (both legal and nonlegal) to “nontraditional” areas,4 and the growth in
the unauthorized alien population5 have led some states and localities to enact measures geared at
stopping unauthorized aliens from arriving and settling within their communities. Since early
2006, some states and localities have considered legislation aimed at deterring the presence of
unauthorized aliens within their jurisdictions, including through measures to deny or revoke
licenses for businesses that employ unauthorized aliens, bar such aliens from renting, leasing, or
owning property, and prohibit such aliens from receiving various public benefits. Although local
measures to restrict unauthorized aliens’ access to housing or employment have received
significant media attention, it appears that very few of these measures have actually been
enacted.6 State action on these matters has been more significant, with several states adopting
measures to restrict public and private employers from hiring or employing unauthorized aliens.7
While a few localities have adopted measures barring unauthorized aliens from renting or
occupying private dwellings, it does not appear that any states have adopted similar measures.
1 The other two-thirds of foreign-born U.S. residents are legal permanent residents (i.e., “legal immigrants”) or
naturalized citizens. See CRS Report RS22574, Immigration Reform: Brief Synthesis of Issue, by Ruth Ellen Wasem.
The foreign-born figure does not include aliens who have been admitted into the United States on a temporary basis
(“nonimmigrants”)—e.g., temporary workers, foreign students, diplomats, business travelers, and tourists.
2 See CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, by Ruth Ellen
Wasem. See also Jeffrey S. Passel, Pew Hispanic Center, Trends in Unauthorized Immigration: Undocumented Inflow
Now Trails Legal Inflow, October 2, 2008, available at http://pewhispanic.org/files/reports/94.pdf (hereinafter “Pew
Study”).
3 Pew Study, supra note 2.
4 Pew Hispanic Center, The New Latino South: The Context and Consequences of Rapid Population Growth, presented
at the conference “Immigration to New Settlement Areas,” July 26, 2005, available at http://pewhispanic.org/files/
execsum/50.pdf.
5 CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, by Ruth Ellen
Wasem, supra note 2.
6 See Ramakrishnan, S. Karthick and Tak Wong, “Immigration Policies Go Local: The Varying Responses of Local
Governments to Undocumented Immigration,” University of California – Riverside Campus (November 9, 2007)
(finding that less than 1% of all municipalities have enacted measures addressing unauthorized immigration); Emily
Gunn, et al., “Assessment of Local Ordinances to Reduce Illegal Immigration,” Texas A & M University, George Bush
School of Government and Public Service (2008) (on file with author) (finding 21 localities that had passed legislation
between 2006 and early 2008 restricting unauthorized aliens’ access to housing and employment.
7 See National Council of State Legislatures, “E-Verify: Frequently Asked Questions” (updated January 9, 2009)
(reporting that 12 states require the use of E-Verify, the federal employment eligibility verification system, for public
and/or private employers), available at http://www.ncsl.org/programs/immig/EVerifyFAQ.htm#require.
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State or local restrictions upon unauthorized aliens’ access to employment or housing and
eligibility for public benefits have been challenged on at least one of the following grounds: (1)
such restrictions are preempted by federal immigration law, and are, therefore, unenforceable by
federal or state courts; (2) the measures run afoul of the Equal Protection Clause of the Fourteenth
Amendment, which requires states and localities to accord all persons equal protection under the
law; or (3) such restrictions deprive persons of a liberty or property interest without providing
them adequate due process, in violation of Fourteenth Amendment requirements.
The following sections describe these legal concepts in more detail, particularly as they relate to
state and local regulation of unauthorized aliens within their territory.
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While federal and state power to regulate certain matters overlaps, the Supreme Court has long
recognized that authority to determine which foreigners may enter and remain in the United
States “is unquestionably exclusively a federal power.”8 “States cannot, inconsistently with the
purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce
additional or auxiliary regulations.”9
Further, the Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are
“the supreme Law of the Land.”10 Accordingly, when Congress acts within the scope of its
constitutional authority, the laws it enacts may preempt otherwise permissible state or local action
within that field. State or local action may be either expressly or impliedly preempted by federal
law. In general, a valid act of Congress may preempt state or local action in a given area if (1) an
express legislative statement of preemption is given (express preemption); (2) a court concludes
that Congress intended to occupy the regulatory field, thereby implicitly precluding state or local
action in that area (field preemption); or (3) state or local action directly conflicts with or
otherwise frustrates the purpose of the federal scheme (conflict preemption).11
Through the Immigration and Nationality Act (INA),12 the federal government has instituted a
comprehensive framework to regulate the admission and removal of aliens, as well as the
conditions of aliens’ continued presence in the United States. Additionally, the INA was amended
pursuant to the Immigration Reform and Control Act of 1986 (IRCA) to establish a scheme to
combat the employment of illegal aliens, and this system is now “central to the policy of
immigration law.13 On the one hand, the INA sets forth various categories of legal aliens, and
grants certain rights to aliens falling within those categories. On the other hand, the INA
8 DeCanas v. Bica, 424 U.S. 351, 354 (1976).
9 Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (internal citations omitted).
10 U.S. CONST. art. VI, cl. 2.
11 See, e.g., Silkwood v. Kerr-McGee Corp, 464 U.S. 238, 248-249 (1984); Pacific Gas & Electric Co. v. State Energy
Resources Conservation & Development Comm’n, 461 U.S. 190, 203-204 (1983).
12 8 U.S.C. §§ 1101 et seq.
13 Hoffman Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137, 147 (2002) (internal quotations omitted).
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establishes an enforcement regime to deter the unlawful presence of aliens, including through the
use of employer sanctions, criminal and/or civil penalties, and deportation.
Although there is little room for state or local action addressing immigration, the Supreme Court
has never held that “every state enactment which in any way deals with aliens is a regulation of
immigration and thus per se preempted.”14 In the 1976 case of DeCanas v. Bica, the Supreme
Court held that state regulation of matters only tangentially related to immigration would, “absent
congressional action[,] ... not be an invalid state incursion on federal power.”15 The Court further
indicated that field preemption claims against state action that did not conflict with federal law
could only be justified when the “complete ouster of state power ... was the clear and manifest
purpose of Congress.”16
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The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to
any person within its jurisdiction the equal protection of the laws.”17 Being entitled to “equal
protection” does not equate to “equal treatment.” Generally, the judicial review standard applied
to state and local laws that treat different categories of persons differently—the “rational basis”
test—is highly deferential. However, if a distinction disadvantages a “suspect class” or relates to
a “fundamental right,” a reviewing court will require the state or locality to demonstrate that the
distinction is justified by a compelling government interest (“strict scrutiny”). Other tests falling
between rational basis and strict scrutiny have also been applied on occasion.
All persons in the United States are entitled to “equal protection” under the Fourteenth
Amendment, and states are limited in the degree to which they may restrict rights and privileges
to persons on account of unauthorized alienage.18 In the 1982 case of Plyler v. Doe, the Supreme
Court held that a Texas statute that would have prohibited unauthorized student aliens from
receiving a free public elementary and secondary education violated the Constitution.19 The Court
determined that unauthorized immigrants are entitled to protection under the Equal Protection
Clause of the Fourteenth Amendment.20 Finding that unauthorized immigrants are not a “suspect
class” and education is not a “fundamental right,” but also sensitive to the hardship that could
result to a discrete class of children not accountable for their unauthorized immigration status, the
Court evaluated the Texas statute under an “intermediate” standard of review, requiring that the
14 DeCanas, 424 U.S. at 355. Indeed, during the nineteenth century, when federal regulation of immigration was far
more limited in scope, state legislation limiting the rights and privileges of certain categories of aliens was common.
See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993).
Many of these restrictions would now be preempted by federal immigration law.
15 DeCanas, 424 U.S. at 356.
16 Id. at 357.
17 U.S. CONST., amend. XIV, § 1.
18 Because of its broad plenary power over immigration and naturalization, the federal government has significantly
greater leeway than states in the measures it may take with respect to aliens. See Matthews v. Diaz, 426 U.S. 67, 84-87
(1976). “The equal protection analysis also involves significantly different considerations because it concerns the
relationship between aliens and the States rather than between aliens and the Federal Government.” Id. at 84-85.
However, the Supreme Court has suggested that “undocumented status, coupled with some articulable federal policy,
might enhance state authority with respect to the treatment of undocumented aliens.” Plyler v. Doe, 457 U.S. 202, 226
(1982).
19 457 U.S. 202 (1982).
20 Id. at 210.
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statute further a substantial state goal. The Plyler Court ruled that the state’s interests in enacting
the statute—namely, to conserve the state’s educational resources, to prevent an influx of illegal
immigrants, and to maintain high-quality public education—were not legitimately furthered by
the legislation. As a result, the Court struck down the Texas statute.21
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The Fourteenth Amendment provides that no state may “deprive any person of life, liberty, or
property, without due process of law.”22 The Supreme Court has long recognized that the Due
Process Clause contained in the Fifth and Fourteenth Amendments23 “applies to all ‘persons’
within the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.”24
States and localities may not arbitrarily interfere with certain key interests possessed by persons.
Such interests may only be deprived through fair and just procedures. “Procedural due process
rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property.”25 The type of procedures necessary to satisfy due process
may depend upon the circumstances and interests involved. In the case of Matthews v. Eldridge,
the Supreme Court announced the prevailing standard for assessing the requirements of due
process, finding that:
Identification of the specific dictates of due process generally requires consideration of three
distinct factors: first, the private interest that will be affected by the official action; second,
the risk of erroneous deprivation of such interest through the procedures used, and probable
value, if any, of additional or substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the administrative and fiscal burdens that the
additional or substitute procedural requirements would entail.26
Although the requirements of due process may vary depending on the particular context, states
and localities must provide persons with the ability to contest the basis upon which they are to be
deprived of a protected interest. Essential requirements of due process are notice and a hearing
before an impartial tribunal.27 Due process may also require additional procedural protections to
minimize the occurrence of unfair or mistaken deprivations of protected interests.28
21 Plyler, 457 U.S. at 227-31 (1982).
22 U.S. CONST., amend. XIV, § 1
23 Both the Fifth and Fourteenth Amendments protect persons from government action depriving them of life, liberty,
or property. However, the Fifth Amendment concerns obligations owed by the federal government, whereas the
Fourteenth Amendment covers activities by state and local governments.
24 Zadvydas v. Davis, 533 U.S. 678, 693 (2001). See also, e.g., Plyler, 457 U.S. 202, 210 (1982) (“Aliens, even aliens
whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by
the Fifth and Fourteenth Amendments.”).
25 Carey v. Piphus, 435 U.S. 247, 259 (1978) (ital. added).
26 Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (ital. added).
27 See, e.g., Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950) (describing notice of a proposed
deprivation of interest as “[a]n elementary and fundamental requirement of due process”); Matthews, 424 U.S. at 333
(“[S]ome form of hearing is required before an individual is finally deprived of a ... [protected] interest.”); In re
Murchison, 349 U.S. 133, 135 (1955)(“A fair trial in a fair tribunal is a basic requirement of due process.”).
28 In many circumstances, due process may require an opportunity to confront and cross examine adverse witnesses;
discovery of evidence being used by the government to support its action; an obligation by the decisionmaker to base
(continued...)
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The Supreme Court has long recognized that the procedural protections of the Due Process
Clause only apply to direct government action that deprives a person of a protected interest;29 it
“does not apply to the indirect adverse effects of governmental action.”30 While persons who are
indirectly affected by government action may, in some cases, posses a legal cause of action
against the government or another party, this cause of action would not be based upon a
procedural due process claim.
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The ability of states and localities to restrict the employment or hiring of unauthorized aliens may
depend upon the form that those restrictions take. Regardless, such restrictions may potentially be
subject to preemption and procedural due process challenges.
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Pursuant to IRCA, Congress amended the INA to establish a comprehensive federal scheme
regulating the employment of unauthorized aliens. INA§ 274A generally prohibits the hiring,
referring, recruiting for a fee, or continued employment of illegal aliens. Violators may be subject
to cease and desist orders, civil monetary penalties, and (in the case of serial offenders) criminal
fines and/or imprisonment for up to six months. Notably, INA § 274A(h)(2) expressly preempts
any state or local law imposing civil or criminal sanctions upon those who employ, or recruit or
refer for a fee for employment, unauthorized aliens.31 However, state and local regulation of such
practices through licensing and similar laws is exempted from this provision.32 Accordingly, while
federal law clearly preempts the imposition of any additional criminal or civil penalties upon
those involved in the unlawful employment of aliens, states and localities do not appear to be
expressly preempted from denying a business license to an entity that hires or employs
unauthorized aliens.33 It is still a question of ongoing legal debate as to whether this exclusion
(...continued)
his or her ruling solely upon the administrative or judicial record; and a right to be represented and assisted by counsel.
See CONGRESSIONAL RESEARCH SERVICE, CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION 1795-
1800 (Johnny H. Killian, et al. eds., 2004) (hereinafter “CONSTITUTION ANNOTATED”).
29 See, e.g., O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (finding that nursing home residents had no
constitutional right to a hearing before a state or federal agency revoked the home’s authority to provide them with
nursing care at government expense); Legal Tender Cases, 79 U.S. 457, 451 (1870) ( “[The Due Process Clause] has
always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the
exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work
harm and loss to individuals.”).
30 O’Bannon, 447 U.S. at 789.
31 INA § 274A(h)(2); 8 U.S.C. § 1324a.
32 Id. See generally H.R. REP. 99-682(I), at 58 (1986) (describing purpose behind licensing exemption).
33 See Chicano Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009) (holding that the Legal Arizona Workers
Act, a state law that allowed Arizona state courts to suspend or revoke business licenses of employers who knowingly
or intentionally hired unauthorized aliens, was not expressly preempted by INA § 274A(h)(2) because the state law fell
within the INA § 274A’s savings clause excluding state licensing schemes from express preemption); Gray v. City of
(continued...)
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from preemption is intended to apply to all state and local measures denying licenses to
employers of unauthorized aliens, or only to those that deny licenses to businesses that have been
found to have violated INA § 274A.34
INA § 274A(h)(2) does not expressly preempt every state or local measure denying licenses to
businesses that employ illegal aliens, nor does it expressly authorize such measures. However,
even if state or local regulation of certain conduct involving immigration is not preempted in all
circumstances, the manner and scope of such regulation may nevertheless trigger implied
preemption.35
The manner in which a state or locality chooses to implement a policy might raise significant
preemption issues, especially if it the policy permits state or local authorities to make an
independent assessment of a person’s immigration status. The power to regulate immigration and
determine which aliens may enter or remain in the United States is exclusively a federal power.
The INA generally vests authority in the Attorney General and Secretary of Homeland Security,
along with immigration judges within the Department of Justice’s Executive Office of
Immigration Review, to administer and enforce all laws relating to immigration and
naturalization, including determinations regarding the immigration status of aliens (though such
determinations are subject to judicial review in many circumstances).36 Accordingly, states and
localities are preempted by federal law from substantively categorizing aliens or making an
independent assessment as to whether an alien has committed an immigration violation.37 Such
authority is conferred exclusively to designated federal authorities by the INA.38 A state or local
(...continued)
Valley Park, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008) (holding that a state ordinance revoking the business licenses
of firms which hired unauthorized aliens was not preempted by INA § 274A(h)(2) because of the savings clause). But
see Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D. Pa. 2007) (interpreting the savings clause in INA
§274A(h)(2) to only exempt from preemption those state or local licensing requirements which denied licensing to
businesses for violating INA §274A, and that other state schemes that revoked licenses based on other immigration-
related hiring violations were still preempted).
34 See Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D. Pa. 2007)
35 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (recognizing that a state law that falls within an express
preemption savings clause is still nonetheless subject to the ordinary workings of implied preemption principles).
36 E.g., INA §§ 103, 240, 242, 287; 8 U.S.C. §§ 1103, 1239a, 1252, 1357.
37 League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 769-771 (C.D.Cal. 1995) (finding that voter-
approved California initiative requiring state personnel to verify immigration status of persons with whom they came
into contact was preempted, in part, because it required the state to make an independent determination as to whether a
person was in violation of federal immigration laws).
38 It should be noted that states and localities are not prohibited from assisting in the enforcement of (as opposed to
adjudicating) federal immigration laws in some circumstances. It is generally recognized that states and localities may
make arrests for criminal violations of the INA. E.g., Gonzalez v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983);
United States v. Vasquez-Alvarez, 176 F. 3d 1294 (10th Cir. 1999). See generally CRS Report RL32270, Enforcing
Immigration Law: The Role of State and Local Law Enforcement, by Blas Nuñez-Neto, Karma Ester, and Michael John
Garcia. Further, under INA § 287(g), the Attorney General is permitted to enter agreements with states and localities to
allow their law enforcement officers to perform additional duties relating to immigration law enforcement. However,
the ability of states and localities to enforce federal immigration law does not permit them to impose new and
additional penalties upon persons on account of federal immigration violations. While the former is permitted in certain
circumstances, the latter is generally precluded pursuant to the Supremacy Clause. But see Arizona v. Salzar, Case No.
CR2006-005932 (Ariz. Sup. Ct. June 9, 2006) (lower state court ruling upholding state’s alien smuggling law against
preemption challenge, as federal and state laws criminalizing alien smuggling had “compatible purposes”); contra State
of New Hampshire v. Barros-Batistele, Case. No. 05-CR-1474, 1475 (N.H. Dist. Ct. August 12, 2005) (lower state
court ruling dismissing on preemption grounds trespassing charges brought against an alien on account of his suspected
unlawful entry and presence in the United States).
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measure targeting unauthorized aliens may have a better chance of surviving a preemption
challenge if its penalties are triggered by a federal determination of an alien’s unlawful status,39
rather than pursuant to an independent determination that an alien is not lawfully present in the
United States.
Additionally, state or local measures penalizing businesses that employ unauthorized aliens
arguably may be preempted if they impose different or more onerous employment eligibility
verification requirements than used by the federal government.40 Likewise, a state or local
employer sanction regime likely could not penalize persons for employing unauthorized aliens
using a lower scienter (i.e., degree of awareness) threshold than used by the federal government.41
Although the preemption clause in INA § 274A is, by its own language, not intended to preempt
every state and local licensing measure affecting the employment of unauthorized aliens, some
measures may still be unenforceable on field or conflict preemption grounds. One factor that
courts may consider in determining if a local ordinance is preempted by federal immigration law
is whether the ordinance “focuses directly upon ... essentially local problems and is tailored to
combat effectively the perceived evils.”42 Prior to the enactment of federal employer sanctions
pursuant to IRCA, the DeCanas Court upheld a California statute restricting the employment of
illegal aliens, stating that “Employment of illegal aliens in times of high unemployment deprives
citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard
terms as to wages and working conditions can seriously depress wage scales and working
conditions of citizens and legally admitted aliens; and employment of illegal aliens under such
39 There is some dispute regarding when aliens may be determined to be unlawfully present. Compare United States v.
Lucio, 428 F.3d 519 (5th Cir. 2005) (upholding conviction of alien pursuant to a criminal statute barring aliens who are
illegally present in the United States from possessing a firearm, even though deportation proceedings against the alien
had not been initiated pending resolution of alien’s application for adjustment to legal status); United States v. Atandi,
376 F.3d 1186 (10th Cir. 2004) (“an alien who commits a status violation is illegally or unlawfully in the United States,
regardless of whether a removal order has been issued”); with Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D.
Pa. 2007) (finding that local prohibition on renting or leasing dwelling units to unauthorized aliens was preempted by
federal law, in part because the aliens had not been ordered removed, and the federal government could ultimately
adjust their status and permit them to remain in the United States); Plyler, 457 U.S. at 241 n. 6 (“Until an
undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be
found to have a federal permission to reside in the country.”)(Powell, J., concurring). Certain federal immigration
statutes appear to permit or require states and localities to take action against aliens who are unlawfully present in the
United States, even if such aliens have not been ordered removed by federal authorities. See 8 U.S.C. § 1621 (requiring
states and localities to deny public benefits to nonqualified aliens, including those who are present in the United States
without legal authorization). Further, section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act
(P.L. 104-208, Div. C.) requires that immigration authorities respond to the inquiry of any federal, state, or local
government entity “seeking to verify or ascertain the citizenship or immigration status of any individual within the
jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status
information.” 8 U.S.C. § 1373(c).
40 Under INA § 274A, employers are required to participate in a paper-based employment verification system
(commonly referred to as the “I-9 system”), which requires employers to examine certain documents presented by new
hires (e.g., a driver’s license, U.S. passport, or resident alien card) to verify identity and work eligibility, and complete
and retain I-9 verification forms. INA § 274A(b); 8 U.S.C. § 1324a(b). See generally CRS Report RL33973,
Unauthorized Employment in the United States: Issues, Options, and Legislation, by Andorra Bruno.
41 For example, a state or locality would likely be preempted from penalizing any business that hires an unauthorized
alien, given that federal law only penalizes employers who knowingly hire such persons (except in cases where the
employer fails to comply with proscribed employment verification requirements). See INA § 274A(a)(1); 8 U.S.C. §
1324a(a)(1).
42 DeCanas, 424 U.S. at 357. Case law following DeCanas has addressed working conditions and labor rights of illegal
aliens under federal labor statutes. See, e.g., Hoffman Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137 (2002); Sure-
Tan, Inc. v. N.L.R.B., 467 U.S. 883 (1984).
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conditions can diminish the effectiveness of labor unions.”43 Because INA § 274A(h)(2)
recognizes the ability of states and localities to, at least in certain circumstances, deny business
permits to entities that employ unauthorized aliens, such measures appear more likely to survive
legal challenges when they are narrowly tailored and based on legitimate purposes, as was the
case for those that were upheld in DeCanas.44
States and localities may have greater leeway in restricting the establishment of day labor centers
within their jurisdictions, though such facilities may indirectly facilitate the hiring of
unauthorized aliens. As previously mentioned, states and localities are not preempted from
regulating matters only tangentially related to federal immigration law.45 Federal immigration law
is silent on the matter of day labor centers. Based on the Court’s reasoning in DeCanas, it would
appear that states and localities could generally restrict the construction of day labor centers, at
least so long as it could be demonstrated that such restrictions were addressed at “essentially local
problems” and were tailored to “combat effectively the perceived evils.”46
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State and local restrictions on the hiring and employment of illegal immigrants also may be
challenged on procedural due process grounds, depending upon the form such restrictions take. If,
for example, a state or locality revoked the business permit of an entity that employed or hired
unauthorized aliens, the employer’s interests under the Due Process Clause would be implicated.
The liberty interest protected by the Due Process Clause extends to the “right of the individual to
contract, to engage in any of the common occupations of life,”47 and this interest would be
implicated by state or local action penalizing employers on account of the employment contracts
they enter. Further, the granting of a business license may accord the licensee with a property
interest that may not be revoked unless procedural due process requirements are met,48 though no
such property interest exists which guarantees the issuance of a license.49
Accordingly, states and localities must provide employers with the ability to contest the basis
upon which they are to be deprived of a protected interest. At a minimum, employers would need
to be provided with notice and a hearing before an impartial tribunal, during which they could
43 Id. at 356-357.
44 See Gray v. City of Valley Park, 2008 WL 294294, 13 (E.D. Mo. Jan. 31, 2008) (noting that the presence of an
express preemption provision allowing some state licensing regulations to exist bolsters the argument that field
preemption of all regulations affecting illegal aliens was not intended).
45 DeCanas, 424 U.S. at 356-57.
46 Id. This is not to say that every state or local restriction on day labor centers, regardless of its scope, would be
equally likely to withstand a preemption challenge. For example, it might be argued that a measure imposing civil or
criminal penalties on day labor centers that facilitate the employment of illegal aliens is preempted by federal laws
barring the harboring of such persons. See INA § 274(a); 8 U.S.C. § 1324(a) (discussing penalties for harboring an
illegal alien, or encouraging or inducing an alien to reside in the United States).
47 Board of Regents v. Roth, 408 U.S. 564, 572 (1972).
48 Bell v. Burson, 402 U.S. 535, 539 (1971). In addition, “[t]he assets of a business (including its good will)
unquestionably are property, and any state taking of those assets is unquestionably a ‘deprivation’ under the Fourteenth
Amendment ... [, although] business in the sense of the activity of doing business, or the activity of making a profit is
not property in the ordinary sense.... ” College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 675 (1999) (ital. in original). See also Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465 (1921)
(“complainant’s business ... is a property right, entitled to protection against unlawful injury or interference”).
49 Bell, 402 U.S. at 539.
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challenge state or local findings regarding their employment practices. State and local measures
that provide employers with similar procedural protections as those accorded to businesses by the
federal government under INA § 274A may be more likely to withstand a procedural due process
challenge than those measures that do not.50
State and local measures that sanction business entities employing unauthorized aliens arguably
could not be challenged on procedural due process grounds by employees of the affected
businesses. As discussed previously, the procedural requirements of the Due Process Clause are
triggered by a direct deprivation of a protected interest by the government.51 Persons who are
indirectly affected by the government’s deprivation of a third party’s protected interests “have no
constitutional right to interject themselves into the dispute.”52 Arguably then, a state or local
restriction upon a business that employs unauthorized aliens only directly affects the rights of the
business itself, and not those persons who depend upon the business for their livelihood. Indeed,
while INA § 274A accords certain procedural protections to persons accused of employing
unauthorized aliens, no similar procedural protections are given to employees of businesses
affected by this regime (though federal law does prohibit businesses from engaging in, and allows
affected individuals to make complaints for, employment discrimination against persons on
account of race, nationality, or—in the case of U.S. citizens and certain protected categories of
aliens—citizenship status53). Similarly, a state or locality penalizing a business that hired or
employed unauthorized aliens probably would not be constitutionally required to provide any sort
of process to employees of the affected business, though an affected employee might still be able
to obtain legal remedy on a separate statutory or constitutional ground.
It should be noted that a federal district court recently held that a local ordinance denying
business permits to entities that hired unauthorized aliens failed to provide sufficient procedural
protections to employees of affected businesses,54 who might be terminated by a business
attempting to avoid violating the ordinance. Additionally, it could be argued that employees
affected by the actions of a business attempting to comply with ordinance requirements would be
owed due process to the extent that those actions were compelled by regulatory requirements.55
However, it is unclear whether such an argument would deemed compelling by a reviewing court,
50 Before the federal government may sanction a business for unlawful employment practices relating to unauthorized
aliens, the business must be provided with notice of the proposed action and a hearing before an administrative law
judge in which the basis for the proposed order may be challenged. The administrative judge’s decision is subject to
administrative appellate and judicial review within specified time periods. INA § 274A(e); 8 U.S.C. § 1324a(e).
51 Supra at 6.
52 O’Bannon, 447 U.S. at 788.
53 INA § 274B; 8 U.S.C. § 1324b.
54 Lozano, 496 F. Supp.2d 477 at 533-537. The Supreme Court has recognized that “the right to hold specific private
employment and to follow a chosen profession free from unreasonable governmental interference comes within the
‘liberty’ and ‘property’ concepts of the [Due Process Clause].” Greene v. McElroy, 360 U.S. 474, 492 (1959). See also,
e.g., Truax v. Ruch, 239 U.S. 33, 41 (1915) (“It requires no argument to show that the right to work for a living in the
common occupations of the community is of the very essence of the personal freedom and opportunity that it was the
purpose of the [Fourteenth] Amendment to secure.”); Conn v. Gilbert, 526 U.S. 286, 291-292 (1999) (discussing
Court’s recognition of due process right to choose one’s field of private employment). Accordingly, it would appear
that state or local measures that directly penalized unauthorized aliens on account of their employment would implicate
the Due Process Clause of the Fourteenth Amendment.
55 CONSTITUTION ANNOTATED, supra note 27, at 1896-1897 (discussing Supreme Court recognition of this argument in
a limited set of circumstances).
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as the Supreme Court has held that the government is responsible for the actions of private parties
only in a very limited number of circumstances.56
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The ability of states and localities to bar illegal aliens from renting or occupying a dwelling unit
raises issues under both the preemption doctrine and the Fourteenth Amendment. The following
sections describe these issues in detail.
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Measures to restrict unauthorized aliens from renting or occupying a dwelling unit could possibly
be challenged on preemption grounds, especially if such measures impose civil or criminal
penalties upon violators. The INA establishes grounds by which an alien may be excluded or
removed from the United States, and also entrusts the federal government with exclusive
authority over removal and exclusion. In addition, INA § 274 criminalizes various activities
relating to the bringing in and harboring of aliens who lack the lawful authority to enter or remain
in the United States, and also criminalizes certain other activities concerning the transportation of
such aliens or the encouragement or inducement of such aliens to reside in the United States.
Courts have generally interpreted the scope of INA § 274 broadly, and it may very well cover
renting property to an illegal alien or otherwise permitting him to dwell in an occupancy, at least
when it is done in knowing or reckless disregard of the alien’s illegal status.57 A reviewing court
might consider arguments that state or local measures barring persons from renting property to
unauthorized aliens, or otherwise permitting such persons from occupying a dwelling unit,
constitute “additional or auxiliary regulation[s]” to a federal scheme. This argument is probably
strongest in cases where criminal penalties are imposed upon persons who violate a non-federal
dwelling restriction, but it may also be applicable in cases where non-criminal penalties are
imposed.58
56 Id.
57 E.g., United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) (finding that a church official violated the harboring
provision when he invited an illegal alien to stay in an apartment behind his church, and interpreting harboring statute
as not requiring an intent to avoid detection); United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982)
(suggesting that “harboring” an alien is a broader concept than other smuggling provisions relating to the concealment
of an alien or the shielding of an alien from detection); United States v. Acosta De Evans, 531 F.2d 428 (9th Cir. 1976)
(upholding harboring conviction of defendant who provided illegal aliens with apartment, and concluding that
harboring provision was not limited to clandestine sheltering only). See also Cristina Rodriguez, et al., Migration
Policy Institute, National Center on Immigrant Integration Policy, Testing the Limit: A Framework for Assessing the
Legality of State and Local Immigration Measures, at 24-27 (discussing merits and weaknesses of argument that
federal alien smuggling statute preempts local restrictions on renting to unauthorized aliens).
58 But see Arizona v. Salzar, Case No. CR2006-005932 (Ariz. Sup. Ct. June 9, 2006)(lower state court ruling upholding
state’s alien smuggling law against preemption challenge, as federal and state laws criminalizing alien smuggling had
“compatible purposes”); contra State of New Hampshire v. Barros-Batistele, Case. No. 05-CR-1474, 1475 (N.H. Dist.
Ct. August 12, 2005) (lower state court dismissal on preemption grounds of trespassing charges brought against an
alien on account his suspected unlawful entry into the United States).
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Even assuming that federal immigration law does not necessarily preempt states and localities
from restricting aliens’ ability to rent or lease property, the manner and scope of such restrictions
may nevertheless trigger preemption concerns.59 Arguably, a state or locality also could not deny
an alien a benefit or privilege, including the right to rent or occupy a property, on account of an
independent assessment that the person was in violation of federal immigration law. The INA
generally vests authority in specific federal authorities to administer and enforce all laws relating
to immigration and naturalization, including determinations regarding the immigration status of
aliens.60 Accordingly, states and localities would apparently be preempted from making an
independent assessment as to whether an alien has committed a federal immigration violation
(e.g., that the alien is an “illegal alien”), and imposing penalties against such aliens on the basis of
that assessment.61 An even more serious preemption challenge would exist if a state or locality
denied persons housing access using a different alien classification system than that employed by
the federal government (e.g., if a state or locality denied residency to any alien who entered the
United States unlawfully, even though some such aliens—asylees, for example—have legal
immigration status under federal law).62 A District Court has even held that a blanket denial of
housing to all aliens lacking legal immigration status would be preempted because this restriction
would deny housing to some aliens, specifically those awaiting legal status, who are otherwise
permitted by the federal immigration laws to stay within the United States.63
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The degree to which states and localities may restrict persons’ ability to obtain private housing on
account of alienage remains unsettled. As early as 1886, the Supreme Court recognized that Equal
Protection Clause applied to state classifications based on alienage.64 Nevertheless, during the
early part of the twentieth century, the Supreme Court upheld a number of state laws denying
rights and privileges to persons on account of their alienage (regardless of whether such aliens
were lawfully present in the United States),65 in part because states were able to demonstrate a
“special public interest” that was advanced through such measures.66
59 See supra at 7-9.
60 INA §§ 103, 240, 242, 287; 8 U.S.C. §§ 1103, 1239a, 1252, 1357.
61 On the other hand, states and localities would not appear to be preempted from using a federal determination that an
alien was unlawfully present in the United States as a basis for denying the alien a benefit or privilege, though such a
denial might be preempted or constitutionally barred on other grounds.
62 League of United Latin American Citizens, 908 F.Supp. at 769-771 (finding that voter-approved California initiative
requiring state personnel to verify immigration status of persons with whom they came into contact was preempted, in
part, because it required the state to make an independent determination as to whether a person was in violation of
federal immigration laws); Vazquez v. City of Farmers Branch, 2007 WL 1498763 (N.D. Tex., May 21, 2007) (making
an initial determination that a housing ordinance was preempted since it relied on different categorizations of alienage
than that used in federal immigration laws).
63 Lozano, 496 F. Supp.2d at 530-31.
64 See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
65 E.g., Heim v. McCall, 239 U.S. 175 (1915) (upholding state law barring noncitizens from being employed on public
works projects); Patsone v. Pennsylvania, 232 U.S. 138 (1914) (upholding conviction of person under state law
prohibiting an alien from owning a rifle or shotgun); Clarke v. Deckebach, 274 U.S. 392 (1927) (upholding local
ordinance barring an alien from being licensed to operate a pool hall); Frick v. Webb, 263 U.S. 326 (1923); Porterfield
v. Webb, 263 U.S. 225 (1923); Terrace v. Thompson, 263 U.S. 197, 220 (1923); Webb v. O’Brien, 263 U.S. 313
(1923) (all upholding states’ ability to deny aliens the right to own or lease agricultural lands).
66 See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420-421 (1948); see also Peter J. Spiro, The States and
Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT’L L. 121, 149-151 (1994).
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However, these decisions came at an earlier period of Fourteenth Amendment jurisprudence, and
over time “the Court’s decisions gradually have restricted the activities from which States are free
to exclude aliens.”67 Although none of these decisions has been expressly overruled, in at least
some cases their precedential value has been questioned.68 Nevertheless, it appears well-
established, even following the Court’s decision in Plyler, that states may impose greater
restrictions upon the rights of unauthorized aliens than may be imposed upon citizens or legal
immigrants, at least when the direct subjects of regulation are not children.69 For example, a
District Court ruled that an ordinance regulating the hiring and leasing of housing to illegal aliens
did not violate the Equal Protection clause because it did not facially discriminate against a
suspect class because of race, ethnicity, or national origin, and was otherwise rationally related to
a legitimate government interest in reducing crime by illegal immigrants and safeguarding
community resources.70
Additionally, alienage-based restrictions that directly or indirectly impact the legal rights of the
U.S.-born children of illegal immigrants might face more significant legal challenges. In the 1948
case of Oyama v. California,71 the Court found that a California statute banning alien landholding
impermissibly discriminated against the citizen child of an alien, because it required the child to
prove that his alien parent did not purchase property in the child’s name to circumvent alien
ownership restrictions—a burden not imposed upon the children of U.S. citizens.72 Depending on
the manner and scope of a state or local housing restriction on illegal immigrants, the measure
could trigger an Oyama-like challenge by a U.S. citizen directly or indirectly impacted by the rule
(e.g., a citizen child or spouse of an illegal immigrant whose property rights are impaired on
account of family membership).
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State or local measures that seek to bar unauthorized aliens from renting or occupying property
very likely implicate a “property” interest affected by the Due Process Clause. The right to
“maintain control over ... [one’s] home, and to be free from governmental interference, is a
private interest of historic and continuing importance.”73 A government measure requiring the
67 Ambach v. Norwick, 441 U.S. 68, 72-73 (1979).
68 See Takahashi, 334 U.S. at 410 (1948) (finding that California statute barring issuance of fishing licenses to lawfully
present aliens ineligible for citizenship denied such aliens equal protection, and could not be justified as protecting
special interest of the state in conserving public fishing); Sei Fujii v. State 242 P.2d 617 (Cal. 1952) (finding California
law restricting land ownership by aliens to violate the Fourteenth Amendment, and also concluding that earlier
Supreme Court decisions upholding alien land laws were not in accord with subsequent Court jurisprudence).
69 Compare Graham v. Richardson 403 U.S. 365, 372 (1971) (finding state classifications based on alienage, as such, to
be “inherently suspect and subject to close judicial scrutiny”) with Plyler, 457 U.S. at 219 n. 19 (finding that the
unauthorized presence of illegal aliens is not a “constitutional irrelevancy,” and such aliens do not constitute a “suspect
class”).
70 Lozano, 496 F.Supp.2d at 542.
71 332 U.S. 633 (1948).
72 It should be noted that the Court only ruled the California alien land law unconstitutional as applied in the case
before it. It did not reach the question of whether states could constitutionally bar aliens from owning real property, nor
expressly overrule earlier Court decisions upholding alien land laws. In separate concurrences, Justice Black (joined by
Justice Douglas) and Justice Murphy (joined by Justice Rutledge) argued that the California statute unconstitutionally
abridged the property rights of aliens. Id. at 647 (Black, J., concurring); id. at 650 (Murphy, J., concurring).
73 United States v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993) (holding that the Due Process Clause
compels government to give notice and meaningful opportunity to be heard before seizing real property subject to civil
forfeiture).
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termination of a lease between a property owner and lessee deprives one or both of the parties of
several property-related interests, including “the right of sale, the right of occupancy, the right to
unrestricted use and enjoyment, and the right to receive rents.”74 In addition, a few local
ordinances barring persons from leasing real property to unauthorized aliens are enforced through
the imposition of monetary penalties upon offenders. Those who are compelled to pay such fines
are deprived of an additional property interest. Ordinances that subject violators to incarceration
would also deprive offenders of a liberty interest. State or local measures barring the housing of
illegal immigrants therefore appear likely to deprive property owners and/or tenants of an interest
protected by the Fourteenth Amendment’s Due Process Clause. Accordingly, states and localities
enacting such measures must provide procedural protections to minimize the occurrence of unfair
or mistaken deprivations of protected interests.75
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Some localities are attempting to deter the presence of illegal aliens within their borders via the
denial of services and/or benefits.76 Such denials may be less prone to legal challenges than
measures pertaining to housing and employment. Court cases recognizing federal and/or state
restrictions based on unlawful presence in the United States are less likely to raise equal
protection and preemption challenges. Instead, such challenges are likely to hinge on the scope of
benefit being denied, as well as whether states can constitutionally make an independent
assessment of a person’s immigration status when deciding to deny such benefits.
The degree to which states and localities may deny services or benefits based on unlawful
presence in the United States remains unclear. During the 1970s and early 1980s, the U.S.
74 See id. See also Greene v. Lindsey, 456 U.S. 444, 450-451 (1982) (recognizing that tenants have a significant
property interest in “the right to continued residence in their homes”).
75 Although some state or local housing restrictions may directly affect the property interests of both tenants and
lessors, others may not. For example, a state or locality may choose to impose civil penalties upon persons who lease
real property to unauthorized aliens, while imposing no direct penalty upon an alien who leases or occupies such
property. An unauthorized alien might not be able to challenge such a measure on procedural due process grounds, as
the government action only affects the alien’s property interests indirectly (e.g., if a property owner breaks a lease with
an unauthorized alien tenant to avoid incurring a civil fine). While the alien may have a cause of action against the
government or, more directly, the lessor (e.g., for breach of the lease agreement), he or she may not be able to raise a
procedural due process claim against the government. See supra at 6.
76 See e.g., Ariz. Stat. § 15-232 (restricting adult education services to U.S. citizens, legal residents or persons
otherwise lawfully present in the United States); Ariz. Stat. §§ 15-1803 and 15-1825 (restricting in-state tuition and
state financial aid for state university and community colleges to the same); Ariz. Stat. Rev. § 46-803 (denying child
care assistance to illegal immigrants); Colo Rev. Stat. § 24-76.5-103 (requiring agencies and state political subdivisions
to verify the lawful presence in the United States of any applicant applying for state or local benefits excluding services
needed for emergency medical conditions). On July 10, 2007, the Prince William County Board of Supervisors passed
a resolution which would: (1) require police to check the immigration status of people they detain if they have reason to
believe that the person is an illegal alien; and (2) require the County Executive to provide the Board with a plan
outlining which benefits the county has the discretion to deny to those who are illegally present. Services recommended
for restriction from illegal immigrants include: adult services to allow elderly and disabled individuals to remain in
homes; in-home services; sheriff adult identification services; rental and mortgage assistance programs; substance
abuse program; elderly/disabled tax relief programs.
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Supreme Court decided a series of cases on governmental authority to discriminate against aliens
in providing governmental benefits. Collectively, these cases set forth the following basic
constitutional principles: state governments generally cannot discriminate between aliens who are
authorized to live here indefinitely and U.S. citizens when setting eligibility requirements for
state benefits;77 states have broader but limited authority to discriminate against aliens who are
here illegally;78 and the federal government, by contrast, has wide discretion to discriminate both
between citizens and legal aliens, as well as between classes of legal aliens.79
Federal law has established a general rule as to which benefits must be denied to aliens
unlawfully residing in the United States. In addition, federal law delineates which local public
benefits must be provided regardless of immigration status. The Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA) prohibits many classes of noncitizens,
legal and illegal alike, from receiving assistance. Generally, illegal aliens are denied federal
benefits and may qualify for state benefits only under laws passed by the states after the
PRWORA’s enactment.80 The class of benefits denied is broad and covers: (1) grants, contracts,
loans, and licenses, and (2) retirement, welfare, health, disability, housing, food, unemployment,
postsecondary education,81 and similar benefits. Notably, PRWORA delineates exceptions to the
aforementioned bars. These exceptions include the following:
• treatment under Medicaid for emergency medical conditions (other than those
related to an organ transplant);
• short-term, in kind emergency disaster relief;
• immunizations against immunizable diseases and testing for and treatment of
symptoms of communicable diseases; and
• services or assistance (such as soup kitchens, crisis counseling and intervention,
and short-term shelters) designated by the Attorney General as: (i) delivering in-
kind services at the community level, (ii) providing assistance without individual
determinations of each recipient’s needs, and (iii) being necessary for the
protection of life and safety.
The PRWORA also expressly bars unauthorized aliens from most state and locally funded
benefits. The restrictions on these benefits parallel the restrictions on federal benefits.82 As such,
unauthorized aliens are generally barred from state and local government contracts, licenses,
77 See Graham v. Richardson, 403 U.S. 365 (1971)(declaring state-imposed welfare restrictions on legal immigrants
unconstitutional, both because the state statutes violated the Fourteenth Amendment’s equal protection clause and
because they encroached upon the exclusive federal power to regulate immigration).
78 See Plyler v. Doe, 457 U.S. 202 (1982)(recognizing that illegal aliens are due lesser constitutional protection than
legal aliens are). For discussion of the Plyer decision, see CRS Report 97-542, The Right of Undocumented Alien
Children to Basic Education: An Overview of Plyler v. Doe, by Larry M. Eig.
79 See Mathews v. Diaz, 426 U.S. 67, 84 (1976)(declaring that the federal government’s broad plenary power over
immigration and naturalizing provides the federal government leeway to draw distinctions among aliens in providing
benefits so long as the distinctions are not “wholly irrational”).
80 See 8 U.S.C. § 1621(d)(defining the term “federal public benefit”).
81 As noted above, the U.S. Supreme Court has held that states cannot deny elementary and secondary education on the
basis of unauthorized immigration status.
82 8 U.S.C. § 1621.
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grants, loans, and assistance.83 However, states and localities are prohibited from denying benefits
and/or services for emergency medical care, disaster relief, and immunizations.
Although federal law has established a general framework as to what services may or not be
denied to illegal aliens, courts have yet to weigh in on the issue of when localities have discretion
to make lawful presence a requirement for services to be made available.84 Some of these services
may include bus tours for senior citizens, leadership training programs for adults, rental and
mortgage assistance, drug treatment, health care for the uninsured, access to libraries and parks.
Courts will have to interpret how broadly the term “local public benefit” should be interpreted
and whether it is consistent with a congressional purpose. This interpretation may depend on
which services can be construed as to encourage illegal immigration. While services such as
health care for the uninsured or rental assistance arguably fall within the purview of “local public
benefit,” others such as access to parks or libraries are less clear cut.
Another potential challenge may arise as to the implementation of the denial of services to illegal
aliens. Specifically, who will make the determination as to whether an alien is legally in the
United States or not. As previously discussed, the manner in which a locality chooses to
implement an ordinance or statute might raise significant preemption issues.
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Some state and local measures restricting the hiring or housing of unauthorized aliens could also
potentially conflict with existing federal anti-discrimination laws. Under Title VII of the Civil
Rights Act,85 employers are prohibited from discriminating on the basis of race, color, religion,
sex, or national origin.86 The Supreme Court has ruled that, with respect to Title VII, “the term
‘national origin’ does not embrace a requirement of United States citizenship.”87 In reaching this
result, the Court reasoned that national origin refers to the country in which someone is born or
from which his or her ancestors came. Because individuals who share the same national origin do
not necessarily share the same citizenship status, the Court determined that Title VII’s prohibition
on national origin discrimination does not necessarily make it illegal for employers to
discriminate on the basis of citizenship status or alienage. Any state or local measure restricting
the hiring or employment of unauthorized aliens must comply with Title VII requirements.88
Thus, for example, a local ordinance that authorized the enforcement of an employment
83 8 U.S.C. § 1621(c)(defining “state or local public benefit”).
84 On November 30, 2007, a federal judge dismissed a lawsuit challenging a local resolution restricting services to
illegal aliens. The court found that the plaintiffs lacked standing to challenge the resolution passed by the Prince
William County Board of Supervisors.
85 42 U.S.C. §§ 2000e et seq.
86 Id. at §2000e-2. INA § 274B contains a similar prohibition with respect to employment-based discrimination on the
basis of national origin or citizenship. 8 U.S.C. § 1324b.
87 Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
88 Title VII contains a preemption provision that states, “Nothing in this title shall be deemed to exempt or relieve any
person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political
subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be
an unlawful employment practice under this title.” 42 U.S.C. § 2000e-7. In other words, state laws that conflict with
Title VII are preempted.
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complaint that alleged violations solely on the basis of an employee’s race or national origin
would not be legally enforceable.
However, it is possible that an ordinance restricting the employment of unauthorized aliens could,
when implemented, encourage violations of Title VII in situations where discrimination on the
basis of citizenship would have the effect or purpose of discriminating on the basis of national
origin. For example, employers who are concerned about inadvertently hiring unlawful workers
may become reluctant to hire individuals from certain ethnic backgrounds, and such reluctance
could have the unlawful effect of discriminating on the basis of national origin. In other cases, an
employer might use a citizenship test as a pretext to disguise what is in fact national origin
discrimination. As the Court has noted, “Title VII prohibits discrimination on the basis of
citizenship whenever it has the purpose or effect of discriminating on the basis of national
origin.”89 In an effort to comply with such ordinances, therefore, some employers may engage in
practices that could give rise to legal challenges under Title VII.
Like Title VII, the Fair Housing Act (FHA) prohibits discrimination on a number of grounds,
including national origin, although the FHA forbids discrimination in the sale or rental of housing
rather than employment.90 In the housing context, as in the employment context, courts have
found that citizenship discrimination does not automatically constitute national origin
discrimination under the FHA, although courts have held that the FHA would prohibit citizenship
discrimination if such discrimination had the purpose or effect of discriminating on the basis of
national origin.91 As a result, any state or local measure that authorizes the enforcement of
housing complaints based solely on the national origin of a dwelling’s inhabitants would be
impermissible.92 Further, if landlords who are attempting to comply with an ordinance barring the
tenancy of illegal aliens engage in national origin discrimination, then such actions may give rise
to legal challenges under the FHA.
Thus far, only one federal court has considered the question of whether a local ordinance intended
to deter the housing of unauthorized aliens constitutes a violation of the FHA. In Lozano v. City of
Hazleton,93 the court dismissed the plaintiffs’ facial challenge to the FHA, concluding that the
plaintiffs had failed to show that there was no set of circumstances under which the ordinance
would be valid. The court did, however, leave the door open to a possible “as applied” challenge
to the local ordinances in question, noting, “Because the statutes have not yet gone into effect, we
cannot know whether they would have the discriminatory effect that plaintiffs claim.”94
It is also possible that an employment or housing ordinance aimed at unauthorized aliens could
give rise to violations of 42 U.S.C. § 1981. This provision, which was originally enacted as part
of the Civil Rights Act of 1870, states that:
89 Farah, 414 U.S. at 92.
90 42 U.S.C. §§ 3604(a).
91 See, e.g., Espinoza v. Hillwood Square Mut. Asso., 522 F. Supp. 559 (D. Va. 1981).
92 Like Title VII, the FHA contains a preemption provision that states, “Nothing in this title shall be construed to
invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this title
shall be effective, that grants, guarantees, or protects the same rights as are granted by this title; but any law of a State,
a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a
discriminatory housing practice under this title shall to that extent be invalid.” 42 U.S.C. § 3615.
93 Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D. Pa. 2007).
94 Id. at 546.
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All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.
Although the Supreme Court has held that an alien is a “person” for purposes of § 1981,95 the
Court has not addressed whether unauthorized aliens are encompassed within the statute’s
definition of “person.” The Court, however, has held that unauthorized aliens are “persons” in the
context of the Fourteenth Amendment,96 and, therefore, might be inclined to make a similar
finding with respect to the definition of “person” under § 1981. If unauthorized aliens are
protected from discrimination by governmental actors under the statute, then states or localities
that pass employment or housing ordinances aimed at unauthorized aliens may be liable for
violations of § 1981. Indeed, a federal district court recently held in the Lozano case that a local
ordinance intended to deter the employment and housing of unauthorized aliens was a violation of
§ 1981.97
In addition, although the Supreme Court has held that § 1981 prohibits alienage discrimination by
governmental actors,98 the Court has never addressed the question of whether § 1981 bars
alienage discrimination by private actors. Until 1991, when Congress amended § 1981, the
federal courts of appeals that had considered the issue were split with regard to this question.
Since the amendments to § 1981, some courts have confirmed that the statute applies to private
discrimination against aliens.99 As a result, it is possible, but not certain, that a court might find
that an employer or landlord who, in complying with a state or local measure, refused to employ
or rent to an unauthorized alien was in violation of § 1981.
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Yule Kim
Alison M. Smith
Legislative Attorney
Legislative Attorney
ykim@crs.loc.gov, 7-9138
amsmith@crs.loc.gov, 7-6054
Jody Feder
Legislative Attorney
jfeder@crs.loc.gov, 7-8088
95 Takahashi, 334 U.S. at 419.
96 Plyler, 457 U.S. at 210.
97 Lozano, 496 F. Supp. 2d. at 547-48. See infra at 28-30.
98 Takahashi, 334 U.S. at 419.
99 See, e.g., Anderson v. Conboy, 156 F.3d 167, 169 (2nd Cir. 1998).
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