The Lozano court’s decision, while admirable for emphasizing immigrants’ substantive rights,453 was a disservice to the immigration
reform debate. While the Hazleton ordinance was overly broad and some of its language was problematic, certain provisions mirrored LAWA and should have survived.454 The court’s broad preemption approach allowed it
to engage in an unusual, labored, and results-oriented reasoning process.455
Such a broad approach set the Hazleton ordinance up to be preempted, so much so that the court’s decision in the case prohibited the City from fixing the ordinance. Thus, even though the local ordinance had other problems, the court mistakenly determined that Hazleton’s sanctioning scheme was not within IRCA’s savings provision.456
Through its broad preemption analysis, the court quashed the debate at the local level. The subsequent events in Hazleton illustrate what can happen when the polity is blocked from employing legal means to address
450. See supra note 398 and accompanying text. 451. See supra text accompanying notes 96–113, 398. 452. See supra note 398.
453. See supra text accompanying note 394. See generally Lozano v. City of Hazleton,
496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010).
454. See supra text accompanying notes 199–200, 406; supra notes 225–31 and
accompanying text.
455. See supra notes 225–31 and accompanying text. 456. See supra text accompanying notes 94–95, 225–39.
what it perceives to be communal problems.457 Sadly, the murder of Luis
Ramirez, an undocumented immigrant, represents the extra-legal methods to excise the community of “problems.”458 The murder is likely to increase
the outflow of immigrants from these cities.459 Thus, new brown sundown
towns may emerge throughout states and cities that are denied the legal opportunity to determine how to allocate limited resources or how to accommodate population increases and demographic changes. The broad preemption approach rewards the status quo and does not create a sense of urgency at the national level to address the reality that the immigration regulatory landscape has changed dramatically since 1893, when the Supreme Court announced federal exclusivity in the area.460
In contrast, the Ninth Circuit’s narrow preemption approach to LAWA can move the immigration debate forward. The Arizona law was saved by the Ninth Circuit’s nuanced inquiry about both the federal and the state level interests, actual conflicts, and recognition of the iterative opportunities in the Arizona law.461 While the law still produced an exodus of
undocumented immigrants and the rhetoric continues to be inflammatory, the incidence of violent communal crime towards undocumented aliens appears to be lower.462 Additionally, by allowing the Arizona law to stand,
LAWA has been propelled to the national level, attracting the attention of the Supreme Court, the Obama Administration, and the Department of Homeland Security.463 LAWA also encouraged Arizona to pass S.B. 1070,
which inflamed passions and catapulted the Department of Justice to act.464
Finally, employment and public benefits regulations at the state and local levels are appropriate within the current regulatory scheme when they mirror federal standards. However, they should also represent the outer limit of what is permissible at the subnational level during the transition from the status quo towards cooperative federalism. Housing and harboring regulations, however, may be beyond state and local authority within the current immigration scheme.465 The lack of clarity in federal standards as
to what constitutes harboring, as well as the invasiveness of the housing regulations, risk violating federal law and constitutional protections such as the Fair Housing Act and privacy rights, respectively.466 In the meantime,
the public benefits and employment regulations at the state and local levels
457. See supra notes 19–28, 39–47, 241–52 and accompanying text. 458. See supra notes 19–28, 39–47, 188–94, 245–52 and accompanying text. 459. See supra text accompanying notes 243–44.
460. See supra notes 59–74 and accompanying text; supra text accompanying note 124. 461. See supra notes 283–91 and accompanying text; see also supra text accompanying
notes 376–78, 390–96.
462. See supra notes 307–12, 419 and accompanying text. More statistical and empirical
research may prove otherwise; however, the goal of this Note is to bring attention to the relation among preemption analysis, federal activity, and anti-immigrant sentiment to set the stage for a new explosion of sundown towns.
463. See supra text accompanying notes 421–24. 464. Supra Part II.B.
465. See supra note 234 and accompanying text. See generally Oliveri, supra note 221. 466. See supra note 234 and accompanying text; see also Oliveri, supra note 221, at
address the same concerns that the housing and harboring prohibitions intend to solve. Because there is more background, both in jurisprudence and statutes,467 to add precision to the employment and public benefits
legislation, legislative use of such provisions for inappropriate purposes is more visible and thus, presumably, preventable.
It is unclear whether S.B. 1070 or LAWA will survive Ninth Circuit and Supreme Court review. However, increased harassment and profiling threats are creating sundown towns. Nevertheless, the laws have also contributed to reopening the immigration debate and can pave the way for cooperative federalism. Although a narrow preemption analysis may not completely eliminate the formation of sundown towns, it may have a positive effect in reducing ethnically-motivated violence.468
State empowerment within a revamped immigration scheme is a key element to any comprehensive immigration reform. Clearly defined federal limits are required to prevent ethnic and racial backlash that will convert American cities into brown sundown towns. Recognition of the fiscal burdens that unfettered immigration can have on states and localities and the vital role these subnational entities play is crucial to tighten and create a durable federal immigration scheme.
CONCLUSION
The raging debate about comprehensive immigration reform is ripe ground to overhaul the current federally oriented scheme. The divergent preemption approaches and scholarship models provide important background to inform the legislative process. As exemplified by Lozano v. City of Hazleton, Chicanos Por La Causa, Inc. v. Napolitano, and their aftermath, a narrow preemption approach is preferable to evaluate immigrant-related state-local legislation. A narrow and complex approach better weighs state-local concerns and does not appear to increase anti- immigrant violence. It also generates notoriety at the federal level and incentivizes action. Accordingly, courts and legislators should recognize the correlation between preemption, analytical clarity, and the practical reality at the state-local level—a reality that is a brewing ground for a new wave of sundown towns—brown sundown towns.
467. See supra notes 80–118 and accompanying text. 468. Compare supra Part II.A.1, with Part II.A.2, II.B.