This article first appeared in the St. Louis Beacon, June 10, 2009 - Last week's federal appeals court decision upholding Valley Park's law against businesses hiring illegal aliens was highly unusual and less significant than first described.
Consider:
- Judge C. Arlen Beam wrote a testy decision for the three-judge panel criticizing both sides and suggesting they might be wasting the court's time. One lawyer called Beam's opinion "mean."
- The American Civil Liberties Union of Eastern Missouri, which had led the legal effort against the ordinance, reversed its position in the appeals court, arguing that it no longer had the legal standing to bring the lawsuit. Beam called that "unorthodox" at best and warned in a footnote that, if "this so-called tactical scheming pours the foundation for the unnecessary exertion of our judicial resources here, such abuse will not go unnoticed."
- At the same time that national supporters of the Valley Park law were issuing press releases about having stood up for the little town, current Mayor Grant Young was quoted in the Post-Dispatch saying he wouldn't enforce the ordinance and "didn't jump up and down" at the news of the ruling. Then the mayor wrote a comment on the Post-Dispatch site saying his quote had been taken out of context and that he would enforce the law.
- The Immigration Reform Law Institute, which seeks stronger enforcement of laws against illegal immigrants, called the ruling "an important decision of nationwide significance." But the appeals court didn't rule on the main issue - whether the federal regulation of immigration is so pervasive that it pre-empts local ordinances such as Valley Park's. Because the court didn't rule on the main issue, the national significance of the ruling is limited.
The appeals court was reviewing a lower court judgment by U.S. District Judge E. Richard Webber who had ruled that federal immigration law did not pre-empt the Valley Park ordinance, therefore upholding its validity.
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The ACLU seems to have been doing its best to make Webber's ruling evaporate by arguing on appeal that its client - Jacqueline Gray, owner of the Windhover Apartments - was not subject to the ordinance because she didn't have to obtain a business license from the city. That meant she didn't have the legal standing to sue, the ACLU maintained, so Webber's ruling should be set aside.
Judge Beam rejected that claim, ruling that Gray still could be affected by the law. But the appeals court did not address the core pre-emption issue because the ACLU had not appealed it. That leaves Judge Webber's decision in place, but it doesn't have the precedential value of an appeals court decision. Tony Rothert, legal counsel for the ACLU here, said in an interview that it was better to have no appeals court precedent than a bad one.
The lawyer who argued for Valley Park - Kris W. Kobach, a law professor at the University of Missouri at Kansas City - acknowledged in an interview that the 8th Circuit's decision to affirm Judge Webber's order did not necessarily mean that the 8th Circuit agreed with Webber on pre-emption.
Still, Kobach said the decision to uphold the Valley Park law provided legal support for the 2008 Missouri law that also prohibits employers from hiring illegal aliens and uses much the same language as the Valley Park ordinance. But Kobach conceded that the Missouri law could be challenged in the western district of Missouri where Judge Webber's ruling does not have to be followed.
Meanwhile, the 3rd U.S. Circuit Court of Appeals is expected to rule soon on a law in Hazleton, Pa., making it illegal to rent to or hire illegal aliens. A lower court struck down the law. If the 3rd Circuit goes along with the lower court, the issue could end up in the U.S. Supreme Court because there would be a split among the federal appeals courts. The 9th Circuit has ruled that federal law did not pre-empt an Arizona law requiring businesses to verify a worker's immigration status before employment.
The basics
Jacqueline Gray v. City of Valley Park, click here .
To read the 2008 Missouri Immigration law, click here .
For a summary of 9th Circuit ruling upholding Arizona law, click here .
The press release of Immigration Reform Law Institute can be found by clicking here .
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.
