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Nebraska city council suspends immigration law pending litigation

The Fremont City Council [official website] on Tuesday voted unanimously to suspend an ordinance [No 5165 text] banning hiring, harboring or renting property to illegal immigrants [JURIST news archive] pending the outcome of litigation challenging its constitutionality. The ordinance would require all employers in the city to register for the E-Verify program [DHS website] and would make it a crime to rent to illegal immigrants. It would also void any lease entered into by an illegal immigrant and would require every person seeking to rent residential property to obtain an occupancy permit from the city, which would require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. The suspension of the ordinance, which was to go into effect Thursday, was taken in light of a pending injunction [Omaha World-Herald report] against the ordinance and as a cost saving measure, according to council members, who have stated that enforcing the law would cost the city $200,000 annually and defending it would cost the city up to $1 million per year. The vote occurred without debate, and the council also voted to hire Kris Kobach [academic profile] to defend the city [KPTM report] against the lawsuits. Kobach, a law professor and political candidate in Kansas, assisted in the drafting of the ordinance and the Arizona immigration law [SB 1070 materials; JURIST news archive] and offered his assistance to Fremont pro bono. A previous version of the ordinance was narrowly voted down [BBC report] by the city council in 2008.

Two lawsuits were filed last week seeking injunctive relief against the ordinance, which was passed by city voters in a referendum [JURIST reports] last month. The American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] filed their lawsuits in the US District Court for the District of Nebraska [official website]. In its lawsuit [complaint, PDF], the ACLU challenged the law based on the Equal Protection and Supremacy [Cornell LII backgrounder] clauses of the US Constitution [text]. MALDEF's lawsuit [complaint, PDF] makes nearly identical arguments, adding that the ordinance interferes with a person's right to enter into and enforce contracts under federal law [42 USC § 1981 text] and violates Article 11 of the Nebraska Constitution [text] because the Fremont municipal government has not been empowered by the Nebraska Legislature [official website] to enforce immigration law. Additionally, MALDEF cites five cases of similar local laws that were struck down by federal and state courts, including a nearly identical law struck down [JURIST report] by a federal district court in Texas. The ACLU is also challenging the Arizona immigration law [JURIST report] on similar grounds.

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