Texas 'Occupancy License' Housing Ordinance is Unconstitutional

By Robyn Hagan Cain on March 22, 2012 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals ruled today that a Texas city housing ordinance that requires citizenship or lawful immigration status as a precondition to renting housing is unconstitutional.

The New Orleans-based appellate court concluded that the Farmers Branch, Texas ordinance's sole purpose was not to regulate housing, but to exclude undocumented aliens -- specifically Latinos -- from the city, which is an impermissible regulation of immigration.

Farmers Branch adopted Ordinance 2952 in January 2008. The ordinance required every adult wishing to rent or lease any single family residence or apartment within Farmers Branch to apply for a residential occupancy license from the city's Building Inspector. A non-citizen prospective occupant had to provide an identification number establishing his or her lawful presence in the U.S. in order to get an occupancy license. The Building Inspector was required to verify each non-citizen's lawful presence with the federal government.

The housing ordinance also criminalized making false statements on an occupancy license application, occupying rental housing with a license, and knowingly permitting a person to occupy a rental unit without a valid license.

MALDEF and the American Civil Liberties Union, which challenged the law, say that the Farmers Branch occupancy license case should serve as a cautionary tale for other Texas towns considering similar immigration laws posing as housing ordinances. Lisa Graybill, Legal Director for the ACLU of Texas, said in a statement, "Farmers Branch has invested over 5 years and literally millions of its residents' taxpayer dollars in costly litigation trying to regulate immigration. As the [Fifth Circuit Court of Appeals] held, immigration regulation is a 'national problem that needs a national solution.'"

Appellate courts across the ideological spectrum have rejected state and local laws that attempt to combat illegal immigration. The Ninth Circuit Court of Appeals ruled last year that the Arizona immigration law is unconstitutional, and the notoriously conservative Eleventh Circuit has already enjoined multiple provisions of the Alabama immigration law.

Thursday's Fifth Circuit ruling that the Farmers Branch housing ordinance is unconstitutional further proves that even the more conservative appellate courts are hesitant to endorse laws that contravene the federal government's exclusive authority over immigration regulation.

The Supreme Court, however, will have the final say on localized attempts at combating illegal immigration. The Court will hear oral arguments in Arizona v. U.S., the case challenging the Arizona immigration law, in April and is expected to issue an opinion on state immigration laws in June.

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