State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments Page: 2 of 35
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State and Local Restrictions on
Employing, Renting Property to, or Providing Services
for Unauthorized Aliens: Legal Issues and
Recent Judicial Developments
Summary
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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State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, report, February 21, 2008; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc816411/m1/2/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.