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Nebraska city immigration law challenged

Two lawsuits were filed Wednesday seeking injunctive relief against a Fremont, Nebraska ordinance [No 5165 text, PDF] banning the hiring, harboring or renting property to illegal immigrants [JURIST news archive]. The ordinance, passed by city voters in a referendum [JURIST report] last month, requires all employers in the city to register for the E-Verify program [DHS website] and makes it a crime to rent to illegal immigrants. The ordinance also voids any lease entered into by an illegal immigrant and requires every person seeking to rent residential property to obtain an occupancy permit from the city, which will require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. 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 challenges the law based on the Equal Protection and the Supremacy [Cornell LII backgrounder] clauses of the US Constitution [text]. The ACLU alleges that the ordinance was passed with the intent of discriminating against people based on their race or national origin, violating Equal Protection. It argues that the law violates the Supremacy Clause because immigration is a matter solely within federal jurisdiction and Congress has enacted a comprehensive immigration scheme. 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 law will become effective July 29.

The ordinance was passed in June, with 57 percent in favor, in response to a wave of immigration to the region due to the availability of jobs in the meatpacking industry. The Nebraska Supreme Court [official website] ruled [opinion, PDF] that the vote could occur, denying the city's request for declaratory relief on the basis that the ordinance would be preempted by federal law. A similar initiative was narrowly voted down [BBC report] by the Fremont City Council [official website] in 2008. Shortly after the ordinance's passage, the American Civil Liberties Union of Nebraska [advocacy website] promised to challenge the ordinance in court [press release], describing the law as "un-American and unconstitutional" and arguing that the ordinance will "cause discrimination and racial profiling against Latinos and others who appear to be foreign born, including U.S. citizens." The ACLU is also challenging [JURIST report] Arizona's new immigration law [SB 1070; JURIST news archive] on similar grounds.

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