By Kevin O'Neil, Princeton University
WASHINGTON - Voters in Fremont, Nebraska, approved a ballot initiative last June intended to prevent the town's employers and landlords from doing business with unauthorized immigrants. In doing so, Fremont joined about 107 US towns, cities, or counties since 2000 to approve policies intended to regulate immigration or limit its effects on the local community.
Fremont's law shows how far-reaching these local policies on immigration can be. If it clears legal hurdles, the town's ordinance will require holders of business licenses to use the federal government's E-Verify database to ensure their workers have the right to work. It would also require town residents to obtain licenses to rent housing and the town government to verify the immigration status of all noncitizens seeking a license.
Only about 193 localities, of thousands of US jurisdictions, are known to have seriously considered policies intended to restrict immigration or its impact. Hazleton, Pennsylvania, is probably the locality most associated with the recent trend in local policymaking on immigration.
However, the Hazleton and other cases are noteworthy because the federal government has primary responsibility for regulating immigration according to the US Constitution. Many of these local actions followed unproductive and often vitriolic national debates on immigration reform legislation.
A number of other localities, on the other hand, have voted on measures intended to support immigrants or reinforce their role in the community. These include so-called sanctuary city declarations stating that the local government will not ask for immigration status in providing services or conducting routine police work.
This article, however, addresses only policies intended to limit the effects of immigration — termed here "restrictive policies." Described in detail in the next section, these policies may attempt to reduce illegal immigration, address perceived consequences of immigration, or shape language usage.
Analysis reveals that most restrictive policies sought to control employment and that rapid growth in the area's immigrant population was the best predictor of restrictive action.
There is no comprehensive database of legislation and policymaking at the town, city, and county level. Thus, the figures in this article rely on a comprehensive database search of national, regional, and local newspaper articles from 2000 through 2009, as well as reports of local policy debates published by advocacy organizations representing various perspectives on immigration issues. These include the Fair Immigration Reform Movement, American Civil Liberties Union, the Mexican American Legal Defense and Education Fund, the Immigration Reform Law Institute, US English, and ProEnglish.
Although citizens of a great many communities may have discussed or petitioned for immigration restrictions, the figures throughout this article include only communities where elected or appointed officials voted on a specific policy proposal or gave it formal public consideration, or where the public voted on such a proposal.
In most cases, a town or county council, or similar representative body, voted on restrictive policies. In a smaller number of localities, popular petition put proposed laws on the public ballot.
In Fremont, for example, both occurred. The town's council had voted down a similar proposal in July 2008, leading local citizens, with support from nationally active experts and organizations, to successfully petition for a special election.
However, not all important local policies included require a public or governing-body vote. In the case of some local immigration enforcement policies, including agreements with the federal government, many police and sheriff's departments have been able to implement significant changes through administrative decision.
Origins of Local Policy on Immigration
Efforts to regulate immigration and its effects at the state and local level in the United States date back to at least the 19th century and in fact predate federal laws controlling immigrant admission.
Laws passed by New York state in 1824 and 1847 gave the mayor of New York City the power to register immigrants and collect bonds and taxes against their use of public support. Although they were not used to restrict the numbers of immigrants entering the city, these laws provoked some of the first Supreme Court cases outlining federal supremacy on immigration issues.
The national rise of the "Know Nothing" Party and violent conflicts between primarily Irish Catholic immigrants and Protestant natives made immigration an issue in many cities in the 1850s. The party had limited successes in municipal politics, such as the election in Chicago of Mayor Levi Boone. Boone, who took office vowing to exclude immigrants from city employment, used liquor-licensing laws to combat immigrant-run taverns, which had provided a base for immigrants to organize politically.
Immigration continued to be a minor issue at the local level into the 20th century. During World War I, a number of localities responded to anti-German sentiment by declaring English to be their official language.
Later, as debates about immigration flared in the mid-1980s, a limited number of counties and towns followed many states and the US Congress in debating making English their government's official or exclusive language. Only a handful are reported to have passed such measures.
Local lawmaking surrounding immigration became markedly more common, aggressive, and consequential in the 21st century, however. This trend arguably originated in the late spring of 2006 in San Bernardino, California, where immigration restrictionists attempted a ballot initiative that would have fined landlords who rented housing to unauthorized immigrants. The initiative also would have made English the only language used in city business and would have regulated the hiring of day laborers.
The San Bernardino proposal closely followed a vitriolic national debate on immigration and illegal immigration in particular. The US Congress failed to pass comprehensive immigration reform legislation in 2006 amid public protests for and against reform.
Hazleton and a New Era of Local Immigration Policy
Although the San Bernardino ballot initiative failed to gain enough signatures to be put to a vote, much of the proposal's language was used by Hazleton, Pennsylvania, Mayor Lou Barletta to craft his own policy proposal.
That town's council passed the Illegal Immigration Relief Act in July 2006. The law was never enforced, however, as a result of an injunction resulting from lawsuits supported by the American Civil Liberties Union and other civil rights organizations.
Hazleton's ordinance immediately attracted national attention, in part because the law seemed extreme. The ordinance and subsequently passed related ordinances would have required employers to submit employees' identification documents to the town for work eligibility verification upon the city's request and would have allowed legal workers to sue employers who hired unauthorized workers.
Hazleton's laws would also have imposed substantial fines on those who provided housing "knowingly or in reckless disregard" to a person without legal status, required tenants to obtain occupancy licenses from the city, and imposed a fine of over $1,000 per tenant on landlords who failed to request this license. It would have also had the town investigate the legal status of an employee or tenant upon request from any citizen, business, or organization.
Hazleton provides a compelling example of how immigration has changed smaller cities and towns across the United States and the difficulty of adapting to that change. Immigrants, largely from the Dominican Republic, made up 14 percent of Hazleton's population around 2007, up from 3.7 percent in 2000, according to US Census Bureau estimates. Barletta charged that immigrants had raised the city's crime rate and were straining its budget, assertions that opponents of the ordinance contested.
A US District Court rejected Hazleton's initiative in July 2007, after a legal battle that reportedly cost the city $5 million. The decision in Lozano v. City of Hazleton relied on due process concerns and preemption by federal law to declare both the employment and rental aspects of Hazleton's law unconstitutional.
The US Court of Appeals for the Third Circuit upheld the Lozano decision in September 2010, and Barletta has said the city will appeal to the Supreme Court. However, Barletta will not lead that fight as he was elected to the US House of Representatives in November 2010 and will resign as Hazleton mayor.
The controversy over Hazleton's proposal attracted protests and counter-protests by civil rights groups and supporters of immigration restriction. It also prompted a flurry of similar measures across the country (see Figure 1).
Between the proposal's approval in July 2006 and the court's decision in July 2007, towns and counties seriously considered around 118 immigration restriction proposals, many of them copying all or part of the Hazleton law. Nationally active organizations advocating for restriction of immigration or illegal immigration played a role in introducing and promoting at least some of these proposals.
Types of Restrictive Policies
Between 2000 and 2009, US localities considered and implemented a number of types of policies intended to restrict the effects immigration has on their communities (see Figure 2). A number of proposed laws combined several types of policies. In a handful of places, such as Fremont, there were repeated attempts to pass different immigration-related bills.
The most commonly proposed policies sought to prevent unauthorized immigrants from obtaining employment. In general, these laws had the goal of sanctioning employers who hired unauthorized workers or imposing additional verification requirements on local employers and/or holders of contracts with the local government.
However, these efforts often ran into legal or political difficulty. Of the more than 86 localities that debated employment-related policies from 2000 through 2009, only about 51 made them law. It is not known how many localities have actually enforced employment-related laws.
Nineteen towns and counties considered, and 11 passed, policies that sought to engage local law enforcement in enforcing federal immigration law. For example, some of these localities passed laws directing local law enforcement to notify Immigration and Customs Enforcement of all arrestees who could not present proof of legal status.
"English-only" laws — either those limiting the services local governments could provide in other languages or those declaring English a locality's official language — were a popular way for localities to make a symbolic declaration about cultural and linguistic change. These proposals were not uncontroversial, however. Of the estimated 61 localities considering such laws, about 33 passed them.
A number of localities broke new ground, in a sense, by passing laws intended to prevent unauthorized immigrants from obtaining housing. Most of these would have either required landlords to verify the legal status of their tenants or required tenants to obtain rental licenses from the local authorities, as in Fremont. Although 17 of the 46 localities considering such policies passed them, several of these policies ran into legal challenges; there are no reported cases of them being implemented on a sustained basis.
In many communities, immigrant day laborers became a point of friction. At least 19 communities considered, and 16 passed, restrictions on soliciting work in public places or prohibiting the creating of hiring centers. An unknown number of communities, not considered in this analysis, instead chose to create hiring centers or zones to order the activities of day laborers.
Eleven localities considered, and seven passed, ordinances restricting county benefits and services for unauthorized immigrants. These ordinances rarely had much impact as unauthorized immigrants were already largely excluded from federal and state-funded programs that localities administer.
The two services that unauthorized immigrants arguably make the most use of — public primary education and emergency health care — are protected to a large extent by constitutional and federal law, respectively. This did not stop one locality from attempting to require schoolchildren to provide a Social Security number to enroll, which many viewed as an attempt to intimidate unauthorized immigrants.
Finally, localities considered around 22 policies that defied categorization, of which around 17 passed. For example, Pahrump, Nevada, passed a law that, among other things, banned the flying of the flags of foreign nations.
Key Factor in Restrictive Policies: Growth of the Immigrant Population
Social scientists have begun to use statistical analysis to identify which factors are associated with a locality considering a restrictive ordinance. Not surprisingly, growth of the immigrant population as a share of the total population appears to be an important provocation for restrictive ordinances.
Although localities that consider restrictive proposals have larger immigrant population shares than those that do not, once the percentage-point change in the foreign-born population share after 1990 is considered, the size of the immigrant population itself appears to be unimportant.
Because of this association with immigrant population growth, the places that consider restrictive policies tend to be more populous, more likely to be within a metropolitan area, and to have lower unemployment rates and higher overall population growth rates than US towns and counties as a whole. These places tend not to have the well-established immigrant and Hispanic populations that exist in the major immigration gateway cities, however.
In addition, immigrant population growth in areas that considered restrictive ordinances also tends to be dominated by immigrants from Mexico and other Latin American countries.
Table 1 presents selected characteristics of counties where either a town or county government considered a restrictive ordinance, compared with counties where no such ordinance was considered at either the town or county level.
A few factors aside from the growth of the immigrant population may predispose localities to consider restrictive policies. Location in a county that voted Republican in the 2004 presidential election is associated with a higher probability of proposing a restrictive ordinance, statistical analysis shows.
There is some evidence that places with high levels of agricultural employment are less likely to implement restrictive policies and that under specific circumstances, rising unemployment rates may make localities more likely to consider them.
California and Pennsylvania had the most restrictive policy proposals (22 each), followed by the "new immigrant destination" states of Virginia (15) and North Carolina (12).
On the other hand, crime rates and growth in crime rates appear to be statistically unrelated to the proposal or passage of restrictive ordinances. Likewise, school crowding and housing overcrowding have not been found to be strong predictors that a locality will try to implement a restrictive proposal.
Other factors that might lead localities to consider restrictive ordinances resist statistical analysis.
Anecdotally, a number of drives for restrictive policies — including the one in Hazleton — followed high-profile crimes or auto accidents involving unauthorized immigrants.
Conflicts over the existence and location of hiring centers for day laborers also have prompted campaigns for local laws on immigration.
In many cases, nationally active organizations that advocate for greater control of immigration have supported efforts to implement local policies related to immigration with model legislation and legal expertise. The Immigration Reform Law Institute and University of Missouri-Kansas City Law Professor Kris Kobach have been especially active in helping cities write and defend restrictive ordinances through the present day.
Hazleton and other cities facing expensive legal battles have also attempted to defray their costs by appealing for donations locally and nationally.
How Localities Have Changed Their Approach to Policy on Immigration
The cost of defending Hazleton's ordinance and its 2007 legal defeat encouraged a large number of localities to reject or refrain from voting on their own proposals, meaning that only about 56 percent of policy proposals formally considered between July 2006 and July 2007 were eventually approved.
In Riverside, New Jersey, an ordinance based on the Hazleton model was rescinded, with town officials and residents faulting both the cost of defending the policy in court and its effects on town life.
The court's 2007 rejection of the Hazleton ordinance did not end localities' interest in regulating immigration, however. At least 59 restrictive local policies received formal consideration after July 2007, of which as many as 70 percent were passed or implemented.
Broad, aggressive proposals modeled on the Hazleton ordinance largely fell from favor. Instead, restrictive policies at the local level took three overlapping paths.
First, in many places, localities implemented low-impact policies that brought less controversy or invited less constitutional scrutiny. One example of these policies is the requirement that all holders of contracts with the local government assert that they comply with employment law. Largely symbolic "official English" or "English only" laws are another example of these modest policies.
Second, localities continued using relatively new tools that the federal government provided. A number of towns and counties and a few states have mandated that either all local employers or government contract holders use the E-Verify database — an otherwise optional system through which employers may quickly check the employment eligibility of a new hire.
The E-Verify database thus provided a way for localities to potentially improve enforcement of immigration law in hiring while provoking fewer constitutional complications.
The federal government's 287(g) program, not included in the figures cited above, is another "tool" localities began using. At least 49 localities enrolled in this local enforcement program after July 2007.
Finally, localities have tested the courts with policies inspired by Hazleton but that are carefully tailored to survive legal challenges.
Valley Park, Missouri, for example, repealed parts of its ordinances regarding the housing of unauthorized immigrants in the wake of the Hazleton suit, but has thus far successfully defended in federal court other parts of its law regarding hiring. Fremont's ballot measure, which was written with assistance from lawyers involved in defending Hazleton's and other ordinances, is another example of this approach.
The pace of proposal and adoption of restrictive ordinances appears to have slackened for a couple of reasons.
First, the cost of defending these ordinances continues to be a deterrent to passing them. In Fremont earlier this year, the town government cited accumulated costs of $5 million, $3.2 million, and $270,000 to the towns of Hazleton, Farmers Branch, Texas, and Valley Park, respectively. It also noted that in the first two cases, the towns' insurance carriers refused reimbursement.
Second, the nationwide recession has also brought other public issues to the fore and tightened the budgets of local governments, dampening enthusiasm for legislation that is potentially expensive to defend. The recession beginning in late 2007 also brought about a decline in immigration rates nationwide and a decrease in the unauthorized immigrant population since mid-2007. This may have reduced pressure to take local action on immigration.
Limited But Uncertain Impacts
The effects of restrictive local immigration policies on immigrants, natives, and economies are not simple to assess. There have been anecdotes of immigrants leaving towns in response to the passage of Hazleton-style policies and cases, such as that of Prince William County, Virginia, where there is evidence that the Hispanic immigrant population declined modestly following implementation of restrictive policies beginning in 2007.
However, this evidence should be interpreted with caution for two reasons. First, measurement of the unauthorized immigrant population is impractical at the local level, forcing researchers to use the general immigrant or Hispanic population as a proxy. These populations, too, cannot be estimated precisely on a year-to-year basis in most localities.
Second, drastically changed economic circumstances have had a strong effect on immigrant population growth nationwide. Many of the localities that implemented restrictive policies were especially hard hit by the recession and the decline of the construction industry.
Data from school enrollments suggests that on average nationwide, restrictive policies had little or no effect on the growth of the population of Hispanic families with school-age children through 2008, when economic conditions became an overwhelming factor.
There is some evidence that localities that passed restrictive ordinances lost jobs in sectors employing large numbers of immigrants, but the effects of generalized economic changes are again difficult to disentangle.
The most aggressive policies, in fact, have not been implemented. Legal injunctions and the fear of escalating costs in the event of a legal defeat have prevented the towns that passed Hazleton-style ordinances from moving forward.
A large number of the implemented policies are either explicitly or effectively symbolic, with limited direct practical effects. In the case of English-only laws, for example, a number of localities made exceptions to allow other languages for critical services, such as fire and emergency medical response.
In other cases, federal civil rights law and/or state law requires bilingual services for voting and other aspects of civic life. The bilingual services provided by many of the localities that passed such laws were generally limited, meaning that the short-term, direct effects of an English-only policy appear to be negligible in these cases.
Local enforcement of immigration law, especially under 287(g) agreements, may have the most consequential direct impacts of any local immigration policy. The program, which also includes some state law enforcement agencies, identified 143,185 individuals for removal from 2006 to 2009.
Assessments of the 287(g) program have raised concerns about the quality of oversight and training and have shown that it leads to the removal of many individuals following very minor crimes or even traffic violations. The program's effect on relationships between police and local immigrant communities has not been systematically studied.
Looking Forward on Local Policy
In the absence of federal immigration reform, local officials may face increased pressure to take action — although their appetite for doing so depends on the results of legal challenges to laws in cities like Hazleton and elsewhere.
As localities change their approach to restricting immigration, their actions raise further questions about the interaction between federal and local policy, with or without immigration reform. The role of local law enforcement in immigration enforcement, in particular, is relatively new and continues to evolve.
The prospect that federal or state assistance could help localities adapt to growing immigrant populations so that they do not need to consider restrictive policies has yet to be explored.
The Independent Task Force on Immigration and America's Future is co-chaired by former Senator Spencer Abraham (R-MI) and former Congressman Lee Hamilton (D-IN). MPI is partnering with Manhattan Institute and the Woodrow Wilson International Center for Scholars in sponsoring this Task Force.