# Lozano v. City of Hazleton > Court of Appeals for the Third Circuit · September 9, 2010 · 620 F.3d 170 URL: https://www.frixlaw.com/law-library/cases/175018 ## Case - **Full name:** Pedro LOZANO; Humberto Hernandez; Rosa Lechuga; John Doe 1; John Doe 2; John Doe 3, a Minor, by His Parents; Jane Doe 1; Jane Doe 2; Jane Doe 3; John Doe 4, a Minor by His Parents, Brenda Lee Mieles; Casa Dominicana of Hazleton, Inc.; Hazleton Hispanic Business Association; Pennsylvania Statewide Latino Coalition; Jane Doe 5; John Doe 7; Jose Luis Lechuga v. CITY OF HAZLETON, Appellant - **Court:** Court of Appeals for the Third Circuit - **Decided:** September 9, 2010 - **Citations:** 620 F.3d 170; 31 I.E.R. Cas. (BNA) 129; 2010 U.S. App. LEXIS 18835; 2010 WL 3504538 - **Precedential status:** Published - **Opinion:** Opinion by McKEE - **Judges:** McKee, Nygaard, Siler - **Cited by:** 70 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated by City of Hazleton v. Lozano, 180 L. Ed. 2d 243 (2011). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/175018 ## How later opinions describe it (automated extraction) - holding preempted municipal housing ordinance that would "effectively ‘remove’ persons from [the city] based on a snapshot of their current immigration status, rather than based on a federal order of removal” - finding that standing existed where the plaintiffs were "direct targets of an ordinance they allege to be unconstitutional, complaining of what that ordinance would compel them to do" - declining to adopt Henry’s prudential rule because, among other reasons, Supreme Court has certainly “considered judicial challenges brought by persons lacking lawful immigration status, see, e.g., [Plyler v. Doe, 457 U.S. 202 (1982)], even when ‘compliance with federal law’ w… - affirming district court’s order permitting use of pseudonyms where plaintiffs, “because of their unlawful status, would face an exponentially greater risk of harassment, and even physical danger, if their identities were revealed” - holding that § 1324 preempted a local ordinance prohibiting renting housing to illegal aliens ## Opinion text PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 07-3531 _____________ PEDRO LOZANO; HUMBERTO HERNANDEZ; ROSA LECHUGA; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, a Minor, by His parents; JANE DOE 1; JANE DOE 2; JANE DOE 3; JOHN DOE 4, a Minor by His parents, BRENDA LEE MIELES; CASA DOMINICANA OF HAZLETON, INC.; HAZLETON HISPANIC BUSINESS ASSOCIATION; PENNSYLVANIA STATEWIDE LATINO COALITION; JANE DOE 5; JOHN DOE 7; JOSE LUIS LECHUGA v. CITY OF HAZLETON, Appellant Appeal from the United States District Court for the Middle District of Pennsylvania (No. 3:06-cv-01586) District Judge: Honorable James M. Munley Argued October 30, 2008 Before: McKEE, Chief Judge, and NYGAARD and SILER,* Circuit Judges (Opinion filed September 9, 2010) Witold J. Walczak, Esq. (ARGUED) American Civil Liberties Union of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Omar Jadwat, Esq. (ARGUED) Lee P. Gelernt, Esq. American Civil Liberties Union Immigrant Rights’ Project 125 Broad Street 18 th Floor New York, NY 10004-2400 Jennifer Chang, Esq. Lucas Guttentag, Esq. American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Jackson Chin, Esq. Foster Maer, Esq. * Honorable Eugene E. Siler, Jr., Senior Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 2 Ghita Schwarz, Esq. Puerto Rican Legal Defense & Education Fund 99 Hudson Street 14 th Floor New York, NY 10013 Thomas B. Fiddler, Esq. White & Williams 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Elena Park, Esq. Cozen & O’Connor 200 Four Falls Corporate Center P.O. Box 800, Suite 400 West Conshohocken, PA 19428-0800 Ilan Rosenberg, Esq. Thomas G. Wilkinson, Jr., Esq. Cozen & O’Connor 1900 Market Street 3 rd Floor Philadelphia, PA 19103 Shamaine A. Daniels, Esq. Community Justice Project 118 Locust Street Harrisburg, PA 17101 Counsel for Plaintiffs-Appellees 3 Kris W. Kobach, Esq. (ARGUED) Professor of Law University of Missouri (Kansas City) 5100 Rockhill Road Kansas City, MO 64110-2499 Harry G. Mahoney, Esq. Carla P. Maresca, Esq. Andrew B. Adair, Esq. Deasey Mahoney, Valentini & North 1601 Market Street Suite 3400 Philadelphia, PA 19103-2978 Elizabeth S. Gallaway, Esq. Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227 Michael M. Hethmon, Esq. Immigration Reform Law Institute 25 Massachusetts Avenue, N.W. Suite 330 B Washington, DC 20001 Counsel for Defendant-Appellant Damon Scott 1446 Fair Oaks Lane Florence, SC 29506-5733 4 Paul J. Orfanedes, Esq. James F. Peterson, Esq. Judicial Watch, Inc. 501 School Street, S.W. Washington, DC 20024 Richard A. Samp, Esq. Washington Legal Foundation 2009 Massachusetts Avenue, N.W. Washington, DC 20036 Andrew L. Schlafly, Esq. 17th Floor 521 Fifth Avenue New York, NY 10175 Counsel for Amicus Appellants Robin S. Conrad, Esq. National Chambers Litigation Center 1615 H Street, N.W. Washington, DC 20062 Carter G. Phillips, Esq. Eric A. Shumsky, Esq. Sidley Austin 1501 K Street, N.W. Washington, DC 20005 Burt M. Rublin, Esq. Ballard Spahr 1735 Market Street 51st Floor Philadelphia, PA 19103 5 Diana S. Andsager, Esq. Mayer Brown 71 South Wacker Drive Chicago, Il 60603 Nancy Winkelman, Esq. Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103 Kenneth J. Pfaehler, Esq. Sonnenschein, Nath & Rosenthal 1301 K Street, N.W. Suite 600 East Tower Washington, DC 20005 Charles D. Weisselberg, Esq. Berkley Law School 688 Simon Hall Berkley, CA 94720 Jacob S. Pultman, Esq. Allen & Overy 1221 Avenue of the Americas New York, NY 10020 John W. West, Esq. Bredhoff & Kaiser 805 Fifteenth Street, N.W. Suite 1000 Washington, DC 20005 6 Mark D. McPherson, Esq. Morrison & Foerster 1290 Avenue of the Americas New York, NY 10104 Counsel for Amicus Appellees OPINION McKEE, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 II. FACTUAL AND PROCEDURAL BACKGROUND. . . . . . . 10 A. Hazleton and its Ordinances. . . . . . . . . . . . . . . . . . . . 10 1. The Illegal Immigration Relief Act Ordinance. 14 2. The Rental Registration Ordinance.. . . . . . . . . 21 B. The Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 III. JURISDICTION AND STANDARD OF REVIEW. . . . . . . . 26 IV. SEVERABILITY AND STANDING. . . . . . . . . . . . . . . . . . . 26 A. General Principles of Standing.. . . . . . . . . . . . . . . . . . 30 B. Constitutional Standing. . . . . . . . . . . . . . . . . . . . . . . . 33 1. The Employment Provisions.. . . . . . . . . . . . . . 33 2. Private Cause of Action. . . . . . . . . . . . . . . . . . 41 3. Housing Provisions. . . . . . . . . . . . . . . . . . . . . . 43 a. Landlord Plaintiffs.. . . . . . . . . . . . . . . . 44 b. Tenant Plaintiffs. . . . . . . . . . . . . . . . . . 52 C. Prudential Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . 56 7 V. ANONYMITY AND CONFIDENTIALITY.. . . . . . . . . . . . . 62 VI. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 A. Federal Immigration Law.. . . . . . . . . . . . . . . . . . . . . . 67 1. The Immigration and Nationality Act. . . . . . . . 67 2. The Immigration Reform and Control Act. . . . 73 3. The Illegal Immigration Reform and Immigrant Responsibility Act. . . . . . . . . . . . . . . . . . . 78 B. State and Local Immigration Laws.. . . . . . . . . . . . . . . 81 C. Pre-emption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 1. Employment Provisions. . . . . . . . . . . . . . . . . . 94 a. Presumption Against Pre-emption. . . . 94 b. Express Pre-emption. . . . . . . . . . . . . . . 97 c. Conflict Pre-emption.. . . . . . . . . . . . . 105 2. Housing Provisions. . . . . . . . . . . . . . . . . . . . . 132 VII. CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 VIII. APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 A. The Illegal Immigration Relief Act Ordinance. . . . . 147 B. Rental Registration Ordinance. . . . . . . . . . . . . . . . . . 167 I. INTRODUCTION “Since the late 19th century, the United States has restricted immigration into this country. . . . But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United 8 States, and now live within [the] various States.” Plyler v. Doe, 457 U.S. 202, 205 (1982). The dispute we are now called upon to address is one of an increasing number of cases that have arisen from actions that state and local governments have taken because of illegal immigration. The City of Hazleton, Pennsylvania (“Hazleton” or the “City”) is appealing a permanent injunction that the district court entered prohibiting Hazleton’s enforcement of two local ordinances that attempt to regulate employment of, and provision of rental housing to, certain aliens. Several individuals and organizations sued to enjoin enforcement of the ordinances arguing that they violate the United States Constitution, as well as federal and state statutes. The district court agreed and enjoined Hazleton from enforcing the ordinances in their entirety. We now hold that the district court erred in reaching the 9 merits of the challenge to the private cause of action provision because no plaintiff has standing to challenge that provision. Accordingly, that portion of the district court’s order will be vacated. However, although our reasoning differs somewhat from the analysis used by the district court, we conclude that it correctly enjoined the rest of the challenged ordinances. We will therefore affirm the district court’s order in all other respects. II. FACTUAL AND PROCEDURAL BACKGROUND A. Hazleton and its Ordinances The City of Hazleton is located in Luzerne County in northeastern Pennsylvania. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 484 (M.D. Pa. 2007). Under Pennsylvania law, Hazleton is classified as a City of the Third Class and operates under an “Optional Plan B” form of government. Id. Its executive is a mayor, and its legislature is a city council. Id. 10 Hazleton's population was only 23,000 in 2000. Id. Between 2000 and the time of trial, however, its population increased to between 30,000 and 33,000. Id. Much of this growth was due to an influx of Latino families who migrated from New York and New Jersey to Pennsylvania in the early 2000s. Id. These newcomers included United States citizens and lawful permanent residents, as well as persons lacking lawful immigration status, who are often referred to as “undocumented immigrants” or “illegal aliens.” 1 Id. 1 Hazleton refers to persons who are not lawfully present within the United States as “illegal aliens.” Plaintiffs refer to them as “undocumented immigrants.” We recognize that there are significant criticisms of each term. See, e.g., Beth Lyon, When More “Security” Equals Less Workplace Safety: Reconsidering U.S. Laws that Disadvantage Unauthorized Workers, 6 U. Pa. J. Lab. & Empl. L. 571, 576 (2004) (“Scholarly and popular concerns about the phrase ‘illegal alien’ abound, pointing out that the phrase is racially loaded, ambiguous, imprecise, and pejorative.”); Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 522 n.2 (Cal. Ct. App. 2008) (“[T]he term ‘illegal alien’ [is] less ambiguous [than the term ‘undocumented immigrant.’]”), rev. granted, 198 P.3d 1 (Cal. 2008). (continued...) 11 Hazleton’s mayor, as well as other local officials, subsequently concluded that aliens lacking lawful status were to blame for certain social problems in the City, see J.A. 1672-85, and that the federal government could not be relied upon to prevent such aliens from moving into the City, or to remove them, see Lozano, 496 F. Supp. 2d at 522 n.44. Accordingly, City officials decided to take independent action to regulate the local effects of unlawful immigration. See J.A. 1385, 1486-87. 1 (...continued) Federal immigration law defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). “Immigrant” is defined as “every alien except an alien who is within [certain specified] classes of nonimmigrant aliens,” and generally refers only to lawful permanent residents. 8 U.S.C. § 1101(a)(15). Congress has preferred the term “alien” to describe those persons who lack lawful immigration status, see, e.g., 8 U.S.C. §§ 1182, 1227, 1228. We will use the word “alien” rather than “immigrant” because “alien” is more precise, and precision is important to discussions in this area. When discussing issues of employment, we will use the official term: “unauthorized alien.” 8 U.S.C. § 1324a. However, when discussing issues of immigration status, we will use either: “aliens not lawfully present” or “aliens lacking lawful immigration status,” rather than “illegal aliens.” 12 Beginning on July 13, 2006, Hazleton’s City Council began enacting a series of ordinances designed to address these concerns. Lozano, 496 F. Supp. 2d at 484. This litigation concerns two of those ordinances: the Illegal Immigration Relief Act Ordinance (“IIRAO”), which consists of Ordinance 2006-18, as amended by Ordinance 2006- 40 and Ordinance 2007-6; and the Rental Registration Ordinance (“RO”), which consists of Ordinance 2006-13.2 These ordinances attempt to regulate the employment of unauthorized aliens, and the provision of rental housing to aliens 2 On July 13, 2006, Hazleton enacted Ordinance 2006-10, the first version of the IIRAO. On August 15, 2006, the City enacted Ordinance 2006-13, the RO. On September 21, 2006, Hazleton enacted Ordinance 2006-18, a revised version of the IIRAO, which replaced Ordinance 2006-10 in its entirety. On December 28, 2006, Hazleton enacted Ordinance 2006-40, which amended the IIRAO by adding an “implementation and process” section. Finally, during trial, the City enacted Ordinance 2007-6, which again amended the IIRAO to provide that complaints based, in full or in part, on national origin, ethnicity, or race, would be considered invalid. The full-text of these ordinances is attached as an Appendix. 13 lacking lawful immigration status, within Hazleton. 1. The Illegal Immigration Relief Act Ordinance The IIRAO begins with a statement of findings and a declaration of purpose, which asserts: [t]hat unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributed to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life. IIRAO § 2C.3 In response to these concerns, the IIRAO: seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free from the threat [of] crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania. 3 It is important to note that the parties hotly contest whether aliens in Hazleton actually caused any of these purported problems and whether Hazleton officials had any valid reason to think they did. The district court did not make any factual findings about the cause of any social or fiscal problems Hazleton may be facing, and our discussion should not be interpreted as supporting either side of that debate. 14 IIRAO § 2F. Section 4 of the IIRAO asserts that it is unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton.4 IIRAO § 4A. Under the IIRAO, an “unlawful worker” is defined as: “a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as defined by [8 U.S.C. § 1324a(h)(3)].” IIRAO § 3E. Section 4A requires “[e]very business entity that applies for a business permit” to “sign an 4 The IIRAO defines “business entity” broadly to mean “any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” IIRAO § 3A. The term encompasses (but is not limited to) “self- employed individuals, partnerships, corporations, contractors, and subcontractors.” IIRAO § 3A(1). It includes “any business entity that possesses a business permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit.” IIRAO § 3A(2). 15 affidavit . . . affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.” IIRAO § 4A. Section 4 also provides for public monitoring, prosecution, and sanctions. Any City resident may submit a complaint to Hazleton’s Code Enforcement Office alleging that a local business entity is violating the section’s prohibition on utilizing the services of an unlawful worker. IIRAO § 4B(1). Upon receipt of such complaint, the Code Enforcement Office requests identity information about the alleged unlawful worker from the employing business, and that business must provide the information within three business days, or Hazleton will suspend its business license. IIRAO § 4B(3). If the worker is alleged to be an unauthorized alien, the Code Enforcement Office submits any identity information received from the business to the federal government, pursuant to 8 U.S.C. § 1373, for verification of “the immigration status of such person(s).” 5 Id. 5 8 U.S.C. §1373(c) states: “The Immigration and (continued...) 16 If the Code Enforcement Office confirms that the worker lacks authorization to work in the United States, the business must terminate that person within three business days or the City will suspend its business license.6 IIRAO § 4B(4). Safe harbor from this sanction is provided to businesses that verify the work authorization of its workers through use of the “Basic Pilot Program” (which has since been named “E-Verify”). IIRAO § 4B(5). E-Verify is a federal program for verifying work authorization which Congress has authorized for use on a trial basis. A business whose license is suspended under the IIRAO 5 (...continued) Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” 6 This three business day period is tolled if the business entity acquires further information about the worker and requests a secondary verification from the federal government of the worker’s authorization, or if the business entity tries to terminate the worker and that worker challenges the termination in Pennsylvania state court. IIRAO § 7C. 17 regains its license one business day after it submits an affidavit affirming that it has terminated the unlawful worker. IIRAO § 4B(6). If a business is found to have employed two or more unauthorized aliens at one time, it must also confirm its enrollment in E-Verify in order to recover its license.7 IIRAO § 4B(6)(b). If a business entity violates the IIRAO a second time, Hazleton suspends its license for a minimum of twenty days and reports the violation, whether or not eventually corrected, to the federal government. IIRAO § 4B(7). The IIRAO further creates a private cause of action against businesses that employ unlawful workers. Section 4E of the IIRAO makes it “an unfair business practice” for a business entity to discharge “an employee who is not an unlawful worker,” if, on the date of the discharge, “the business entity was not participating in [E-Verify] and the business entity was employing an unlawful worker.” IIRAO § 4E(1). An employee 7 City agencies and business that contract with the City for amounts greater than $10,000 are also required to enroll in E- Verify. IIRAO § 4C-D. 18 discharged under these conditions may sue the business entity under the IIRAO for treble actual damages, as well as reasonable attorney’s fees and costs.8 IIRAO § 4E(2). The IIRAO also addresses the “harboring” of persons lacking lawful immigration status. Section 5 makes it “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law.” 9 IIRAO § 5A. “Harboring” is broadly defined. The ordinance states: “to let, lease, or rent a dwelling unit to an illegal alien . . . shall be deemed to constitute harboring.” IIRAO § 5A(1). Additionally, Section 7 of the IIRAO makes legal immigration status a condition precedent to entering into a valid lease. IIRAO § 7B. All leases entered into by persons lacking lawful status are deemed breached. Id. 8 Even an employee who is properly terminated for cause (or without cause in the case of an employee at will) has a cause of action under this provision. The ordinance uses “lost” wages as a measure of “damages.” IIRAO § 4E(2). 9 The IIRAO defines an “illegal alien” as “an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” IIRAO § 3D. 19 The mechanisms for enforcing the housing provisions of the IIRAO are similar to those set forth above for enforcing the employment provisions. Thus, any City resident may file a complaint with Hazleton’s Code Enforcement Office alleging that a property owner is illegally “harboring” a tenant who is an “illegal alien.” IIRAO § 5B(1). Once such a complaint is received, the Code Enforcement Office may request identifying information about the named tenant from the property owner, and the property owner must provide that information within three days. IIRAO § 5A(3). The City then verifies the legality of the tenant’s immigration status with the federal government, pursuant to 8 U.S.C. § 1373(c). IIRAO § 5B(3). If the federal government confirms that the tenant lacks lawful immigration status, the IIRAO gives the property owner five business days to evict that tenant. IIRAO § 5B(4). If the owner fails to do so, the City suspends the owner’s rental license and bars the owner from collecting any rent for the applicable dwelling unit.10 IIRAO § 5B(4)-(5). These sanctions end one 10 This five business day period is tolled if the property owner acquires further information about the tenant and requests a secondary verification from the federal government of the tenant’s immigration status, or if the property owner tries to evict the tenant (continued...) 20 business day after the owner submits an affidavit affirming that s/he has corrected the violation. IIRAO § 5B(6). Any subsequent violation subjects the owner to a fine of $250.00 per day per “adult illegal alien” harbored in a dwelling unit, as well as suspension of her/his rental license. IIRAO §§ 5A(2), 5B(8). 2. The Rental Registration Ordinance The RO operates in conjunction with the anti-harboring provisions of the IIRAO. Section 7 of the RO requires that any prospective occupant of rental housing over the age of eighteen apply for and receive an occupancy permit. RO §§ 1m, 7b. To receive that permit, the prospective occupant must pay a ten- dollar fee and must submit certain documents, including “[p]roper identification showing proof of legal citizenship and/or residency” to Hazleton’s Code Enforcement Office. RO § 7b. Hazleton landlords are required to inform all prospective occupants of this requirement, and they are prohibited from allowing anyone over the age of eighteen to rent or occupy a rental unit, unless that person has a permit. Id. Section 10 of the RO provides that a landlord found 10 (...continued) and that tenant challenges the eviction in Pennsylvania state court. IIRAO § 7D. 21 guilty of renting to someone without a permit must pay an initial fine of $1000 per unauthorized occupant, and an additional fine of $100 per day per unauthorized occupant until the violation is corrected. RO § 10b. An authorized occupant of rental housing who is found guilty of permitting someone without a rental permit to live in her/his apartment must pay the same fine. Id. B. The Plaintiffs The following six plaintiffs claim that they have standing to bring this suit: Pedro Lozano, John Doe 1, John Doe 3, John Doe 7, Jane Doe 5, and the Hazleton Hispanic Business Association (“Plaintiffs”).11 These Plaintiffs include Hazleton business entities, landlords, and tenants, as well as an organization whose members include Hazleton business entities and landlords. We briefly describe these Plaintiffs, and the basic facts underlying each Plaintiff’s claim to standing. Pedro Lozano is a lawful permanent resident who immigrated to the United States from Colombia in January 2002. Lozano, 496 F. Supp. 2d at 485-86. He owns a duplex in 11 Eleven plaintiffs filed the operative complaint. The district court dismissed three of them for lack of standing, and that portion of the district court’s decision is not being appealed. Of the eight plaintiffs the district court found to have standing, only six press their cases on appeal. 22 Hazleton and rents out half of it to help pay his mortgage. Id. at 488. He hires contractors to perform repairs on his property as needed. Id. at 489. John Doe 1 was born in Mexico, and had lived in Hazleton for six years at the time of trial. Id. at 486. He is unsure of his immigration status, but believes that he could be removed from the United States. Id. He is similarly unsure of his work authorization. Id. John Doe 1's landlord evicted him because of the risk of being fined pursuant to the aforementioned provisions of the IIRAO and the RO. Id. at 497. John Doe 3 had lived in Hazleton for four years at the time of trial. Id. at 486. He understands his immigration status to be “illegal,” and he rents an apartment within Hazleton. Id. at 497. John Doe 7 and Jane Doe 5 were born in Columbia and had lived in Hazleton for more than five years at the time of trial. Id. at 486. They rent a house in Hazleton, but fear eviction and being forced to leave Hazleton if the ordinances are enforced. Id. at 497. The Hazleton Hispanic Business Association (“HHBA”) is an organization of business owners from the Hazleton area 23 that exists to “promote the interest of [its] business members and to project the image of the Hispanic business community.” Id. at 492 (internal quotation marks omitted). HHBA’s president, Rudolfo Espinal, owns three rental properties in Hazleton and hires contractors to perform repairs on those properties as needed. Id. at 492-93. C. Procedural History As noted above, numerous plaintiffs filed this action for injunctive relief based upon challenges to the validity of the IIRAO and the RO. Lozano, 496 F. Supp. 2d at 485. The district court granted these plaintiffs’ motion for a temporary restraining order, and the parties agreed to extend that order until the case could be resolved on its merits. Id. These ordinances have never been enforced, and the challenges asserted are facial. The amended complaint alleges that the ordinances violate the Supremacy Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution; 42 U.S.C. § 1981; the federal Fair Housing Act, 42 U.S.C. §§ 3601- 31; plaintiffs' privacy rights; Pennsylvania’s Home Rule Charter Law, 53 Pa. Cons. Stat. §§ 2961-67; Pennsylvania’s Landlord 24 and Tenant Act, 68 Pa. Cons. Stat. §§ 250.101-50.602; and the limits of Hazleton’s police powers. Id. At the conclusion of a nine-day bench trial, the district court issued a thorough opinion and order permanently enjoining the City from enforcing the ordinances. The court concluded that eight of the eleven plaintiffs had standing to challenge the IIRAO and the RO, and that it was appropriate for the John and Jane Doe Plaintiffs to proceed anonymously. The court held that the IIRAO and the RO violate the Supremacy and Due Process Clauses of the United States Constitution, as well as 42 U.S.C. § 1981. The court also held that Hazleton, as a City of the Third Class, lacked authority under Pennsylvania’s Home Rule Charter Law to create the IIRAO’s private cause of action, and that it exceeded its police powers in enacting these ordinances.12 This appeal followed. Hazleton argues that Plaintiffs lack standing, and that the district court abused its discretion both in permitting the John and Jane Doe Plaintiffs to proceed anonymously and in issuing a confidentiality order prohibiting 12 The district court dismissed the Equal Protection, Fair Housing Act, privacy, and Pennsylvania Landlord and Tenant Act claims, and those portions of its order have also not been appealed. 25 Hazleton from disclosing the Doe Plaintiffs’ identity information to the federal government. Hazleton further contends that Plaintiffs’ claims are meritless, and that the ordinances are valid under federal and state law. III. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s conclusions of law de novo and its factual findings for clear error. See, e.g., McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009). We review a district court’s grant of a motion to proceed anonymously and grant of a confidentiality order for abuse of discretion. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 371 & n.2 (3d Cir. 2008). IV. SEVERABILITY AND STANDING We first address the threshold question of Plaintiffs’ standing. Here, however, standing implicates the issue of severability – an issue which has yet to be explicitly discussed in this suit. As we explained in Contractors Ass’n v. City of Philadelphia, “[c]ourts considering constitutional challenges to 26 statutes often analyze standing problems in terms of the severability doctrine. . . . The severability doctrine governs whether [plaintiffs] have standing to challenge [an] entire [o]rdinance, or just [certain provisions].” 6 F.3d 990, 996 (3d Cir. 1993). Severability, however, like any non-jurisdictional issue, can be waived, and it is clear that Hazleton has, with one exception, waived issues of severability here. The district court considered whether Plaintiffs have standing to challenge the “employment provisions” and the “housing provisions” of these ordinances as collective wholes, and conducted its merits inquiries accordingly. See, e.g., Lozano, 496 F. Supp. 2d at 518 (“[T]he ordinances at issue have two distinct provisions, one directed to employment issues and one aimed at landlord/tenant issues, [and] we will discuss each topic separately with regard to pre-emption.”). On appeal, Hazleton does not contest the district court’s failure to further sever the ordinances. Rather, Hazleton’s brief characterizes the ordinances the same way the district court did. Thus, Hazleton argues that Plaintiffs lack standing to challenge the “employment provisions” and the “housing provisions,” and that the “employment provisions” and 27 the “housing provisions” are not pre-empted, without further differentiating among those provisions.13 The sole severability issue Hazleton has not waived concerns the IIRAO’s private cause of action. Hazleton has argued that the private cause of action is severable from the rest of the IIRAO’s “employment provisions” both in its brief and at oral argument. Severability of a local ordinance is a question of state law, and Pennsylvania law favors severability. Contractors Ass’n, 6 F.3d at 997. Additionally, there is a presumption in favor of severability where, as here, the ordinances contain a severability provision. Id. For an ordinance to be severable, “[t]he legislating body must have intended that the act or ordinance be separable and the statute or ordinance must be capable of separation in fact. The valid portion of the enactment must be independent and complete within itself.” Saulsbury v. Bethlehem Steel Co., 196 A.2d 664, 667 (Pa. 1964) (emphasis omitted). 13 We note that Hazleton’s waiver of this issue likely speaks to the merits of a severability analysis as well, as severability often turns significantly on intent. If Hazleton had truly intended each provision of the IIRAO and the RO to operate independently, and to stand or fall independently of the other provisions of this regulatory scheme, it surely would have pressed that point sometime during this litigation. It has not done so. 28 Here the IIRAO’s severability provision indicates that Hazleton’s City Council did intend the private cause of action provision to be severable from the balance of its regulatory scheme. Furthermore, the private cause of action is not intertwined with the other “employment provisions,” most of which concern business licensing requirements. It can operate independently and is “capable of separation in fact.” Id. We therefore conclude that it is severable. Accordingly, we will evaluate Plaintiffs’ standing to challenge the IIRAO’s private cause of action independently of their standing to challenge the other “employment provisions” and the “housing provisions.” In essence, the question of standing asks “whether the litigant[s] [are] entitled to have the court decide the merits of the dispute.” Warth v. Seldin, 422 U.S. 490, 498 (1975). As we will explain, we conclude that there is at least one Plaintiff with standing to challenge the employment and housing provisions of these ordinances. Accordingly, we must consider the merits of the challenges to those provisions. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”). 29 However, as we will also explain, we find that no Plaintiff has standing to challenge the IIRAO’s private cause of action. Accordingly, review of the legality of that provision must await a challenge by a plaintiff who can establish an Article III injury. A. General Principles of Standing The irreducible minimum of any standing inquiry derives directly from Article III of the United States Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Article III limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Lujan, 504 U.S. at 559-60. The judicial power established by Article III is therefore not “an unconditioned authority to determine the constitutionality of legislative or executive acts.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 598 (2007) (internal quotation marks omitted). Rather, federal courts are permitted to address these questions only if actually adjudicating “the rights of individuals.” Id. (internal quotation marks omitted). Thus, the inquiry into standing must focus on whether a claim is being brought “by a party whose interests entitle him to raise it.” Id. (internal quotation marks omitted). A plaintiff’s “interests” satisfy Article III when the following three elements 30 are present: First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61 (internal citations, quotation marks, and alterations omitted). In addition to these constitutionally required elements of standing, federal courts have developed a body of self-imposed limitations on the exercise of their judicial power. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004); see also Oxford Assocs. v. Waste Sys. Auth., 271 F.3d 140, 145 (3d Cir. 2001). Accordingly, “[e]ven in cases concededly within our jurisdiction under Article III,” we will decline to decide the merits of a case when these “prudential standing” requirements are not satisfied. Elk Grove Unified Sch. Dist., 542 U.S. at 11. Prudential standing encompasses: “the general prohibition on a litigant's raising another person's legal rights, the rule barring 31 adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751 (1984). An organization wishing to bring suit on behalf of its members must satisfy a specific combination of constitutional and prudential standing requirements. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 556-57 (1996) (explaining that the first two prongs of the associational standing test are constitutional, while the third prong is prudential). To establish that it has “associational standing” and can represent its members’ interests in federal court, an organization must show that: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Here, Plaintiffs claim that Lozano and the HHBA have 32 standing to challenge the employment provisions of the IIRAO, and that Lozano, the HHBA, and the Doe Plaintiffs have standing to challenge the housing provisions of the IIRAO and the RO. B. Constitutional Standing 1. The Employment Provisions As discussed above, the IIRAO’s employment provisions require businesses to submit affidavits affirming that they do not utilize the services of unlawful workers; incentivize, and in certain circumstances mandate, the use of E-Verify; create procedures for adjudicating independently of federal law whether a business has employed an unauthorized alien; and penalize a business for doing so by suspending its business license. The district court held that Lozano had standing to challenge these provisions for himself, and that the HHBA had standing to challenge them on behalf of its member, Rudolfo Espinal.14 Lozano is a landlord, and Espinal is a landlord and 14 Assuming the other requirements of associational standing are met, one member with standing is sufficient for an organization to have standing. See Hunt, 432 U.S. at 342 (“[A]n association may have standing solely as the representative of its (continued...) 33 owner of a real estate agency. Both are business entities under the IIRAO,15 and both sometimes hire contractors to perform work on their rental properties. Accordingly, the district court found that they faced imminent concrete injury, because if the IIRAO were enforced, they would be compelled “to comply with [its] employer requirements . . . adding a burden of time 14 (...continued) members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.”) (alteration in original) (internal quotation marks omitted) (emphasis added). 15 The employment provisions of the IIRAO regulate the behavior of all “business entities,” a term which as we noted above, is defined expansively and includes even those entities that do not have or need business licenses. At the same time, compliance with these provisions is primarily, although not entirely, coerced through regulating the provision of business licenses. Lozano and Espinal are plainly business entities under the IIRAO; however, neither has testified as to whether he has a business license. We agree with the Court of Appeals for the Eighth Circuit when faced with the same issue in Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009), that this does not deprive them of standing. Regardless of whether these Plaintiffs have business licenses, the IIRAO applies to them as business entities, and they “must, as law-abiding citizens, comply and conform their conduct according to [the ordinance’s] directives.” Id. at 985; see also id. at 986 (“At the very least, as a business entity covered by the ordinance, [plaintiffs] may not knowingly recruit, hire for employment, or continue to employ, an unlawful worker to perform work within the City. And, when a valid complaint is lodged, [plaintiffs] would be required to . . . provide identity information to the . . . Code Enforcement Office.”) (internal citation omitted). 34 and expense to [their] operations.” See Lozano, 496 F. Supp. 2d at 489. Hazleton challenges the district court’s conclusion on several grounds. Hazleton’s primary argument on appeal is that the “injury” these Plaintiffs face is nothing more than the “cost of compliance” with the IIRAO, and that this is a generalized burden insufficiently particularized to satisfy the injury-in-fact requirement of Article III. It is well-established that an injury must be particularized to support standing. A “particularized” injury is one that “affect[s] the plaintiff in a personal and individual way,” Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir. 2009) (quoting Lujan, 504 U.S. at 560 n.1) (internal quotation marks omitted), and is established when a plaintiff shows that s/he has “sustained or is immediately in danger of sustaining some direct injury . . . and not merely that [s/]he suffers in some indefinite way in common with people generally,” Ams. United for Separation of Church & State v. Reagan, 786 F.2d 194, 199 (3d Cir. 1986) (internal quotation marks omitted). Thus, the Supreme Court has rejected attempts by taxpayers to bring suits challenging the government’s use of tax 35 dollars. For instance, in Frothingham v. Mellon, 262 U.S. 447 (1923), the Supreme Court held that a taxpayer lacked standing to challenge a federal appropriations act that she alleged violated the Tenth Amendment. The Court explained that the harm a taxpayer suffers when the government unlawfully uses taxpayer funds is “shared with millions of others [and] comparatively minute and indeterminable.” Id. at 487. Because such an injury is a matter “of public and not of individual concern,” it is not particularized, and therefore insufficient to give rise to Article III standing. Id. The Court has reaffirmed this conclusion many times since, explaining that: a plaintiff raising only a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large – does not state an Article III case or controversy. Lujan, 504 U.S. at 573-74. Hazleton attempts to transpose these principles into a quite different context. Hazleton suggests that because all business entities in Hazleton are required to comply with the IIRAO, the burden of complying with the ordinance is “generalized” and not “particularized.” Accordingly, it argues 36 that Lozano and Espinal – and presumably all business entities in Hazleton – lack standing to challenge the IIRAO’s provisions affecting them. The argument could not be more misguided. Plaintiffs here are not members of the general public complaining of some indefinite and indeterminable harm, such as the unconstitutional expenditure of their tax-dollars. Rather, Lozano and Espinal are direct targets of an ordinance they allege to be unconstitutional, complaining of what that ordinance would compel them to do. Thus, the appropriate comparison is not to taxpayers seeking invalidation of government expenditures, but to taxpayers seeking invalidation of taxes imposed on them. As the Supreme Court explained in Hein, 551 U.S. at 599, it is incontrovertible that taxpayers in this second category have standing: “[o]f course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.” Furthermore, Hazleton’s insistence that these Plaintiffs lack standing because their injuries are widely-shared (at least among business entities in Hazleton) is misplaced. The fact that an injury is widely-shared is not the primary focus of the 37 particularized inquiry. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 23-24 (1998). As the Supreme Court explained in United States v. Students Challenging Regulatory Agency Procedures (“SCRAP”), 412 U.S. 669, 688 (1973), “[t]o deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept this conclusion.” The question of particularity turns on the nature of the harm, not on the total number of persons affected. Lozano and Espinal will not suffer in some “indefinite way in common with people generally” if the IIRAO is enforced. Frothingham, 262 U.S. at 488. Rather, they will be affected in a “personal and individual way” by what the IIRAO requires of them. Lujan, 504 U.S. at 561 n.1. Enforcement of the IIRAO would create coercive pressures compelling them to investigate the work authorization status of the prospective contractors they seek to hire. Additionally, they would be required to submit affidavits to Hazleton’s Code Enforcement Office affirming that they do not knowingly utilize the services of “unlawful workers.” Failure to comply with either directive 38 could result in significant sanctions. These costly requirements, imposed directly and purposefully on these Plaintiffs, are a particularized injury-in-fact. Hazleton also argues that even if the “cost of compliance” is a theoretically sufficient injury under Article III, these Plaintiffs fail to show that the cost of compliance with the IIRAO is greater than the cost of compliance with federal law. Thus, argues Hazleton, these Plaintiffs fail to show that there would be any actual cost of compliance with the IIRAO itself. Hazleton is mistaken. Federal law certainly does not require anyone to submit an affidavit to Hazleton’s Code Enforcement Office. Though relatively small, that cost is sufficient for standing purposes. “[A]n identifiable trifle is enough for standing.” See SCRAP, 412 U.S. at 689 n.14 (internal quotation marks omitted). The IIRAO is also much broader than federal law, and coerces as well as incentivizes different behaviors. Lozano and Espinal testified that they only hire workers to perform discrete repair projects on their rental properties as needed. See J.A. 1116, 1122 (Lozano has “problems with [his] roof” and intends to hire “a contractor” to make repairs.); J.A. 1216, 1221 (Espinal 39 intends to hire someone to do “plumbing” and “electrical” repairs as part of the ongoing renovations of his rental properties. He also anticipates hiring someone for tasks such as “shoveling snow.”). Such workers would almost certainly be considered independent contractors under federal law. As we discuss in greater detail below, the federal requirement that employers verify the work authorization status of their employees does not apply to independent contractors. Thus, federal law would not require either Lozano or Espinal to determine such persons’ work authorization status. In contrast, the IIRAO prohibits Plaintiff business owners from “permit[ting], dispatch[ing], or instruct[ing] any person who is an unlawful worker to perform work” (regardless of whether the person is an employee or an independent contractor), and thus compels them to verify the work authorization of any worker whose services they utilize. IIRAO § 4A; see also J.A. 1444. Therefore, we reject Hazleton’s attempt to refute the standing of Lozano and Espinal by arguing that the IIRAO imposes no burdens beyond those imposed by federal law. It clearly does. Lozano and Espinal have established that if the IIRAO is enforced, it will cause them particularized injury redressable by 40 this court. Since the employment provisions of the IIRAO apply to independent contractors, Lozano and Espinal (and therefore the HHBA) have standing to challenge those provisions. However, it is much less clear whether the private cause of action applies to independent contractors, and we must separately evaluate whether Lozano or Espinal have standing to challenge that provision 2. Private Cause of Action Unlike the other employment provisions of the IIRAO, which impose restrictions on a business entity not only when it “hire[s] for employment, or continue[s] to employ” an employee, but also whenever it “permit[s], dispatch[es], or instruct[s] any person . . . to perform work,” IIRAO § 4A, the private cause of action on its face affords rights only to an “aggrieved employee.” IIRAO § 4E (emphasis added). Under Section 4E of the IIRAO, it is an “unfair business practice” for a business entity to terminate “any employee who is not an unlawful worker” while it continues to employ an unlawful worker. Id. If it does so, the business entity is liable to the “aggrieved employee” for treble damages. Id. Whereas the rest of the IIRAO speaks of “workers,” the section creating the 41 private cause of action appears to inure solely to the benefit of “employees.” Lozano and Espinal have not testified that they currently employ anyone who would be considered an “employee,” nor has either testified about any intent to do so. Moreover, even if they had – or even if we were to construe this section as also inuring to the benefit of discharged independent contractors – Lozano and Espinal have not testified that they have plans to hire more than one person, employee or contractor, at any one time, and the record is insufficient to support such a finding. Yet, the IIRAO’s private cause of action arises only if at least two persons work for the same business entity at the same time. Additionally, unlike other provisions they testified about, Lozano and Espinal did not testify that they fear prosecution under the private cause of action provision or that they have any reason to fear such prosecution. We realize, of course, that the threat of future prosecution can certainly be a sufficiently “imminent” injury to support Article III standing. See Pa. v. W. Va., 262 U.S. 553, 593 (1923) (“One does not have to await the consummation of threatened injury to obtain preventive relief.”). However, that 42 threat must be more than a possibility dependent on multiple contingencies that may never occur. See, e.g., Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988) (explaining that fears of liability reliant on multiple contingencies do not give a plaintiff standing). Lozano and Espinal would be injured by Section 4E of the IIRAO only if they proceeded to hire multiple employees, terminated one while retaining another, and were sued by (or had reason to fear suit by) the terminated employee. This attenuated sequence of events is not even suggested by this record, and it is therefore too tenuous to support a conclusion that either has the requisite personal interest to establish a “case” or “controversy.” Accordingly, we conclude that the district court lacked jurisdiction to consider the merits of these Plaintiffs’ challenges to the IIRAO’s private cause of action. 3. Housing Provisions The housing provisions of the IIRAO prohibit the knowing or reckless harboring of “illegal aliens” (defined to include the knowing or reckless provision of rental housing); subject landlords who violate this prohibition to significant monetary sanctions; and invalidate any lease entered into by 43 persons lacking lawful immigration status. The RO requires all persons over the age of eighteen who seek to live in rented property to obtain an occupancy permit; makes possession of documentation of lawful immigration status a requirement for receiving that permit; prohibits landlords from renting to persons who lack a permit; and subjects landlords who do so to suspension of their rental license and a concomitant prohibition on collecting rent from the dwelling units involved. The district court held that Lozano, the HHBA (again on behalf of its member Espinal), and the Doe Plaintiffs have standing as landlords and tenants to challenge the housing provisions of the IIRAO and the RO. a. Landlord Plaintiffs The district court concluded that landlords Lozano and Espinal had suffered a constitutionally sufficient injury-in-fact because the housing provisions made it more difficult for them to rent apartments. The court also concluded they had standing because Hazleton’s enforcement of the housing provisions would directly impose certain requirements on them, costing them both time and money. See Lozano, 496 F. Supp. 2d at 488- 89. Hazleton contests the court’s conclusions on several 44 grounds. Hazleton first argues that the record fails to support the district court’s finding that the housing provisions made it more difficult for Lozano and Espinal to rent their properties. According to Hazleton, the record reveals that the landlords had the same “mixed success” in renting apartments both before and after passage of the ordinances. Hazleton’s Br. 23. Hazleton therefore claims that Lozano and Espinal have suffered no injury at all. We cannot agree. The district court’s finding that both Lozano and Espinal had more difficulty finding tenants for their properties following passage of the IIRAO and the RO is supported by the record, and certainly not clearly erroneous. Lozano testified that tenants who had been renting from him since he acquired his rental property in 2005 “ran away” upon learning about the ordinances in mid-2006. J.A. 1108. Lozano further testified that he has been able to find tenants only sporadically since then, and that at least one prospective tenant, who had been quite interested in an apartment, reacted with concern and quickly departed after Lozano informed him about the requirements of the IIRAO and the RO. J.A. 1111-12. Espinal similarly testified that he has 45 had more difficulty in renting apartments since passage of the ordinances, and that on at least one occasion, he showed an apartment to potential tenants, who “were going to take [it],” but after telling these applicants about the ordinances, “they never called [him] back.” J.A. 1215. The record therefore supports the district court’s conclusion that Lozano and Espinal suffered sufficient injury to establish Article III standing. Hazleton next argues that even if Lozano and Espinal did lose tenants and rental income because of these ordinances, such an injury is not “legally cognizable” because landlords have no right to rent to illegal aliens. Hazleton makes the rather hyperbolic metaphor of comparing these Plaintiffs to “drug dealers” asserting a claim to the proceeds of their unlawful activity. The City states: “[j]ust as a drug dealer has no legally- cognizable interest in income derived from violations of federal drug laws, a landlord has no legally-cognizable interest in income derived from continuing violations of federal immigration law.” Hazleton’s Br. 24. Hazleton’s comparison is as regrettable as it is unsound. It is unfortunate that we must point out that there is no evidence in the record that the prospective tenants who chose 46 not to rent from Plaintiffs were here unlawfully, as Hazleton’s argument presumes. There are certainly other reasons why such invasive ordinances might dissuade a prospective tenant from renting in Hazleton. However, even if we were to assume that all deterred tenants were here unlawfully, we would still conclude that Plaintiffs assert an injury cognizable under the law. By comparing landlords to persons who sell drugs in direct contravention of federal law, Hazleton distorts both the applicable law and the interests these Plaintiffs assert. Federal law simply does not prohibit landlords from renting (in the ordinary course of business) to persons who lack lawful immigration status. Nor does federal law directly prohibit persons lacking lawful status from renting apartments. As we discuss in further detail below, there is a federal prohibition against “harboring” of aliens lacking lawful presence. However, this prohibition is not nearly so broad as Hazleton’s, and has never been held to apply to a landlord who does nothing more than rent to a tenant who happens to be here unlawfully. In light of these realities, we think the interest that these Plaintiffs assert is more appropriately characterized as an interest in continuing 47 to operate their rental businesses consistent with the less costly mandates of federal law, and that is an interest which supports Article III standing. Hazleton also argues that these Plaintiffs fail to establish that the IIRAO and the RO caused whatever injury they have suffered because actions of independent third-parties (the potential tenants) are responsible for that injury, not the ordinances themselves. Hazleton draws its argument from the discussion of causation in Lujan. There, the Supreme Court explained that when the “plaintiff is himself an object” of a challenged government action, “there is ordinarily little question that the action . . . has caused him injury, and that a judgment . . . will redress it.” Lujan, 504 U.S. at 561-62. However, when a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction – and perhaps on the response of others as well. . . . Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish. Lujan, 504 U.S. at 562 (internal quotation marks omitted). 48 Hazleton contends that the landlord Plaintiffs cannot satisfy this higher burden. In Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000), we discussed when the regulation of a third-party “causes” a plaintiff’s injury for the purposes of Article III. There, Pennsylvania had amended its Liquor Code to impose criminal sanctions on businesses that advertised alcoholic beverages in publications directed at educational institutions. The Pitt News, a student-run newspaper at the University of Pittsburgh, sued to enjoin enforcement of this amendment, and asserted standing based on the fact that its advertising revenues had suffered because of advertisers’ compliance with the law. The district court held that “indirect economic effects resulting from a regulation aimed at third parties” were insufficient to give The Pitt News standing. Id. at 358. In reversing that ruling, we explained that the advertisers would not have cancelled their contracts with The Pitt News were it not for the regulation. The fact that advertisers would cancel their contracts, thereby reducing advertising revenues, “was not only reasonably foreseeable when the Commonwealth decided to enact and enforce [the Act], it was the very goal of 49 the statute.” Id. at 361 (internal citation omitted). Accordingly, we concluded that the injury the newspaper suffered was “fairly traceable” to enforcement of the statute against its advertisers. The situation in Pitt News is analogous to the situation here. The housing provisions of the IIRAO and the RO have already deterred certain renters from contracting for housing with Lozano and Espinal, and these ordinances will continue to deter other renters if they are enforced. This deterrence “was not only reasonably foreseeable” when Hazleton enacted these ordinances, it was Hazleton’s “very goal.” Id. The injuries Lozano and Espinal assert are a direct, predictable, and anticipated consequence of the regulation. Accordingly, their injuries are “fairly traceable” to the ordinances. Moreover, Hazleton’s argument ignores that Lozano and Espinal are not just directly impacted by the ordinances, but directly regulated as well. The housing provisions of the IIRAO and the RO regulate both tenants and landlords. Although the injury on which Hazleton focuses, the injury of lost rental income, is caused by the requirements imposed on tenants, the district court found, and we certainly agree, that these landlords would be equally injured by the requirements the IIRAO and the 50 RO impose on them. Thus, even if we agreed with all of Hazleton’s arguments thus far, we would still conclude that Lozano and Espinal have standing. The housing provisions of the IIRAO and the RO regulate the ability of landlords to contract with certain persons. They require landlords to explain the ordinances to all prospective renters and to examine those renters’ occupancy permits. More generally, they compel landlords to act as local enforcers of immigration law in ways that far exceed their obligations under federal law. Compliance with these requirements elevates the cost of doing business as a landlord, and that alone gives them Article III standing.16 16 We note, however, that the RO explicitly exempts from its registration and license requirements those “[p]roperties which consist of a double home, half of which is let for occupancy and half of which is Owner-occupied as the Owner’s residence.” RO § 11d. At trial, Lozano testified that he owns a “two-family” home. J.A. 1107. He lives in one unit with his family, and rents out the other unit, which is subdivided into two separate apartments, to help him pay the mortgage. See J.A. 1107-08. To our knowledge, the parties have not raised whether the “double home” exception applies to Lozano, and the district court did not address the issue. If that exception does apply, Lozano could not establish a sufficient injury to challenge the RO. See Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005) (explaining that because standing is a jurisdictional issue, it cannot be waived, and the court must, when necessary, consider it sua sponte). However, even assuming that Lozano is exempt from the RO, other Plaintiffs would still have standing to challenge that ordinance, and we therefore would still have jurisdiction to review it. 51 b. Tenant Plaintiffs Because “[t]he loss (or imminent loss) of one’s apartment and the inability to rent a new one is certainly an actual and concrete injury,” caused by the ordinances and redressable by the court, the district court concluded that the Doe Plaintiffs, who lack lawful immigration status, also have standing to challenge the housing provisions of the IIRAO and the RO. Lozano, 496 F. Supp. 2d at 497-98. Hazleton first argues that the district court erred in finding that John Does 3 and 7 and Jane Doe 5 face imminent injury. According to Hazleton, their fears of eviction are merely conjectural because “none of them have been evicted or have received any threat or warning that they might be evicted in the future.” 17 Hazleton’s Br. 20. We are entirely unconvinced. 17 Hazleton does not extend this argument to John Doe 1, which is wise since John Doe 1 was evicted by his landlord because of these ordinances. See J.A. 831-32. Hazleton does challenge John Doe 1's standing, however, based on its contention that John Doe 1 is lawfully present in this country. We recognize that the record contains conflicting testimony as to John Doe 1's immigration status. On the one hand, John Doe 1 testified that his father, a United States citizen, submitted a “petition” to make John Doe 1 a “legal resident,” and that the United States government approved that petition. J.A. 808-09. On the other hand, John Doe 1 testified that he is unsure of his immigration status and his work authorization, that he believes he is removable, and that he is “not here legally.” See J.A. 809-10, 832. We therefore cannot conclude (continued...) 52 These Plaintiffs all testified that they feared losing their apartments and having to move elsewhere. See J.A. 888, 929, 951. Hazleton cites John Doe 3's testimony that he did not expect to be evicted because his landlord “doesn’t care much about” the ordinances, J.A. 888, as evidence that he faces no imminent injury. However, Hazleton misconstrues this testimony. John Doe 3 later explained that he had been told by his landlord’s agent that his landlord did not expect the ordinances to ever go into effect, and for that reason, John Doe 3 had been unconcerned. See J.A. 889-90. He also testified that he has no reason to believe that his landlord would not comply with the ordinances if they are enforced. J.A. 889-90. Given the harsh sanctions the IIRAO and the RO would impose on any landlord who rented to him or the other Doe Plaintiffs, such fears are plainly well-founded. The possibility of eviction is therefore much more than “conjecture.” A plaintiff need only show “a realistic danger of sustaining a direct injury as a result 17 (...continued) that the district court’s findings as to the legitimacy of his fears were clearly erroneous. Regardless of John Doe 1's precise legal status, we think that he has established standing. He has been evicted because of the ordinances, and his own understanding of – and his ability to prove – his status is sufficiently uncertain that he is quite likely to suffer further injury if the ordinances are enforced. 53 of the statute’s operation or enforcement,” and the Doe Plaintiffs clearly do so. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). Hazleton also raises here the converse of its argument above: it contends that the Doe Plaintiffs lack standing because their claimed injuries would be caused by third-party landlords, and not the ordinances. This verges on the ridiculous. Just as Hazleton’s ordinances compel tenants not to rent from Plaintiff landlords, they compel landlords not to rent to Plaintiff tenants. The Doe Plaintiffs’ fears that their landlords will not rent to them – because the IIRAO and the RO require those landlords not rent to them – are certainly “fairly traceable” to the ordinances. Additionally, as Hazleton well knows, these ordinances directly regulate tenants as well, and therefore would injure the Doe Plaintiffs regardless of their landlords’ reactions to them. The IIRAO and the RO would invalidate their leases, and would require them to pay a fee and provide documentation (which they lack) in order to continue renting apartments in Hazleton. These injuries easily satisfy Article III. Finally, Hazleton argues that the Doe Plaintiffs fail to establish redressability because, even if this Court struck down 54 the ordinances, the Doe Plaintiffs would still be subject to removal. According to Hazleton, this Court cannot grant “a remedy that takes the Doe [P]laintiffs out of legal jeopardy. They will still be in violation of federal law and subject to removal.” Hazleton’s Br. 21. Hazleton greatly overstates the demands of this element of constitutional standing. As the Supreme Court explained in Larson v. Valente, 456 U.S. 228, 243 n.15 (1982), “a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Redressability therefore does not require that a court be able to solve all of a plaintiff’s woes. Rather, we need only be able to redress, to some extent, the specific injury underlying the suit. See Mass. v. EPA, 549 U.S. 497, 526 (2007) (holding that redressability prong was satisfied because risk of global climate change would be reduced “to some extent” by relief requested). By permanently enjoining enforcement of the housing provisions of the IIRAO and the RO, this court can provide meaningful redress for the injury the Doe Plaintiffs assert. Such relief would substantially decrease the likelihood that they will 55 be evicted and/or unable to procure rental housing while they remain in the United States. That is more than sufficient to establish standing. Because Lozano, HHBA member Espinal, and the Doe Plaintiffs will suffer injury caused by the ordinances and redressable by the court, we conclude that they have Article III standing to challenge the housing provisions of the IIRAO and the RO. C. Prudential Standing Even when a plaintiff satisfies Article III standing requirements, federal courts may nonetheless decline to consider that plaintiff’s claims for prudential reasons. Hazleton contends that there are two prudential considerations which counsel restraint here. Hazleton first argues that Plaintiffs lack prudential standing because they do not fall within the “zone of interests” protected by federal immigration law. Hazleton misstates the applicable zone of interests inquiry in the pre-emption context. The Supreme Court has explained that a plaintiff may bring suit only when the interests s/he asserts are “arguably within the zone of interests to be protected or regulated by the 56 statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). This limitation on standing arose in suits challenging agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, but has since been employed more broadly. See Bennett v. Spear, 520 U.S. 154, 163 (1997) (The “zone-of- interests test [was first applied] to suits under the APA, but later cases have applied it also in suits not involving review of federal administrative action and have specifically listed it among other prudential standing requirements of general application.”) (internal citations omitted). However, outside of the administrative law context, the test may have different permutations, see Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 226 (3d Cir. 1998), and “the breadth of the zone of interests [will vary] according to the provisions of law at issue,” Bennett, 520 U.S. at 163. Thus, in the pre-emption context, we have explained that the relevant prudential inquiry is not whether a plaintiff’s interests fall within the zone protected by the allegedly pre- empting federal provision, in this case, federal immigration law. In St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands, 57 218 F.3d 232 (3d Cir. 2000), several employer organizations brought suit to enjoin a Virgin Islands law establishing that employees could only be terminated for cause. The plaintiffs alleged that this law was pre-empted by the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169. On appeal, defendants argued that plaintiffs lacked prudential standing to invoke the pre-emptive effect of the NLRA, because the NLRA’s zone of interests did not encompass employers’ interests in terminating their employees. We agreed with the defendants’ characterization of the NLRA’s zone of interests, but found this no bar to employers’ prudential standing. We explained: We know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption. Id. at 241. Pre-emption suits arise under the Supremacy Clause and vindicate the interests of that Clause, not the interests of the pre- 58 empting federal provision. Therefore, the appropriate prudential inquiry in pre-emption cases (if any such inquiry is necessary at all) must be whether the plaintiff’s interests fall within the zone protected by the Supremacy Clause itself. See, e.g., Wilderness Soc’y v. Kane Cnty., 581 F.3d 1198, 1217 n.11 (10th Cir. 2009) (declining to decide if zone of interests test applies in pre- emption cases, but emphasizing that if it does, “the relevant zone of interest is that of the Supremacy Clause and not of the allegedly preempting federal statute”); Pharm. Research & Mfrs. v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001) (In a pre-emption case, “it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”). These interests, which are no less than our society’s interest in a working federalism, are societal, not individual. Accordingly, all Plaintiffs fall within their breadth, and have prudential standing here. Hazleton also argues that we should, as a matter of prudential standing, refuse to adjudicate the Doe Plaintiffs’ claims because they concede that they lack lawful immigration status. Hazleton relies on National Coalition of Latino Clergy, Inc. v. Henry, No. 07-CV-613, 2007 WL 4390650 (N.D. Okla. 59 Dec. 12, 2007), the unpublished decision of a lone federal district court as support for its contention.18 In Henry, the District Court for the Northern District of Oklahoma considered challenges to the Oklahoma Taxpayer and Citizen Protection Act of 2007, a law which mirrors the IIRAO in several respects (and which, in subsequently-filed litigation, Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010), was preliminarily enjoined in part). The court concluded that those plaintiffs lacking lawful immigration status had Article III standing, but nonetheless held that it would not consider their claims for prudential reasons. Explaining that courts have traditionally refused to entertain cases brought by plaintiffs with “unclean hands,” it reasoned that the “illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country.” Id., at *9. To allow them to do so, the court concluded, would make it an “abetter of iniquity,” a result it found “unpalatable.” Id. The court thus adopted “a new, and narrow, prudential 18 As a general rule, we do not consider arguments arising out of unpublished decisions, and do so here solely for the purposes of putting to bed Hazleton’s argument, which we find particularly troubling. 60 limitation” on standing: [a]n illegal alien, in willful violation of federal immigration law, is without standing to challenge the constitutionality of a state law, when compliance with federal law would absolve the illegal alien’s constitutional dilemma – particularly when the challenged state law was enacted to discourage violation of the federal immigration law. Id. Hazleton argues that, for the reasons articulated in Henry, we “too must prudentially decline to take jurisdiction with respect to the Doe Appellees.” Hazleton’s Br. 19. Henry’s invented bar to judicial access is entirely improper, and we will not accept Hazleton’s invitation to duplicate that error here. The Henry decision, both in substance and tone, fails to appreciate that whatever a person’s immigration status, “an alien is surely a ‘person’” entitled to Due Process Clause protections. Plyler, 457 U.S. at 210; see also Wolff v. McDonnell, 418 U.S. 539, 579 (1974) (“The right of access to the courts . . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.”). The Supreme Court therefore has certainly considered 61 judicial challenges brought by persons lacking lawful immigration status, see, e.g., Plyler, even when “compliance with federal law” would have absolved “the illegal alien’s constitutional dilemma,” Henry, 2007 WL 4390650, at *9. Henry defends its rule by claiming that it would not deny persons without lawful status all access to the courts, as they would retain prudential standing to sue for harms unrelated to their status. But this caveat assures little. As this case demonstrates, all it takes for a harm to become “related to” a person’s immigration status is for some legislative body to decree it so. The scope of these aliens’ rights would therefore, under Henry’s reasoning, be entirely dependent on the will of state and local legislatures, which could tie any consequence of their choosing to unlawful status and never face judicial review. The Doe Plaintiffs satisfy Article III standing requirements, and the prudential standing requirements of general applicability set forth by the Supreme Court. Accordingly, we will address their claims. However, two more preliminary issues must be resolved before we do so. V. ANONYMITY AND CONFIDENTIALITY Hazleton argues that the district court erred in permitting 62 those Plaintiffs lacking lawful immigration status to proceed using a “John Doe” or “Jane Doe” pseudonym. We disagree. In C.A.R.S. Protection Plus, we explained that although “the use of pseudonyms to conceal a plaintiff’s identity has no explicit sanction in the federal rules,” the Supreme Court has “given the practice implicit recognition.” 527 F.3d at 371 n.2. We thus concluded that “the decision whether to allow a plaintiff to proceed anonymously rests within the sound discretion of the court.” Id. In deciding whether to permit those Plaintiffs with concerns about the legality of their immigration status to proceed anonymously, the district court surveyed case law within this Circuit and identified nine separate factors courts have used to decide whether anonymity is appropriate. See Lozano, 496 F. Supp. 2d at 506. The court then engaged in a thorough analysis of each of these factors, and concluded that the factors favoring anonymity outweighed those favoring disclosure. Specifically, the court found that ethnic tensions had escalated in Hazleton since enactment of the ordinances, and that the named Plaintiffs had been harassed and intimidated for 63 their involvement in this litigation.19 See id. at 508-10. The court concluded that the Doe Plaintiffs, because of their unlawful status, would face an “exponentially greater” risk of harassment, and even physical danger, if their identities were revealed. Id. at 510. The court also noted that the litigation was in the public interest, and reasoned that the Doe Plaintiffs, as well as prospective litigants lacking lawful status, would be deterred from bringing cases clarifying constitutional rights, if doing so required alerting federal immigration authorities to their presence. See id. at 511-12. Finally, the court explained 19 Lozano, for example, testified that hate mail was sent to his home three separate times. One letter “contained a clipping from a newspaper describing the [alleged] effects of illegal immigration as well as a picture of a ‘warrior’ wearing ‘a huge Mexican hat.’ Scrawled near this picture were the phrases, ‘[s]ubhuman spic scum’ and ‘[i]f it is brown, flush it down.’” Lozano, 496 F. Supp. 2d at 510 (alterations in original) (internal quotation marks and citation omitted). This letter also contained a link to a website proclaiming itself “the Official Home Page of the National Socialist Movement, an organization dedicated to the preservation of our Proud Aryan Heritage, and the creation of a National Socialist Society in America and around the world.” Id. at 510 n.34 (internal quotation marks omitted). The district court noted that this sort of harassment extended even to people who were merely perceived as being connected to the lawsuit, even if this perception was not rooted in fact. Amilcar Arroyo, a United States citizen who publishes a Hazleton-based Spanish-language newspaper, was publically harassed when he tried to cover a rally in support of the ordinances. Based on a rumor that he was a plaintiff in this suit, rally participants gathered around him shouting, “get out of the country” and “traitor.” Id. at 510 (internal quotation marks omitted). Police escorted Arroyo from the rally for his own protection. Id. 64 that because the Doe Plaintiffs’ identity information was not central to their claims, restricting Hazleton’s access to that information would not be prejudicial. See id. at 513. We agree with each of these conclusions, and think it clear that given the environment in Hazleton following enactment of these ordinances, the court did not abuse its discretion in permitting the Doe Plaintiffs to proceed using pseudonyms. Relatedly, Hazleton also argues that the district court violated 8 U.S.C. § 1373(a) by entering an order prohibiting the parties from disclosing “information obtained during discovery regarding the John and Jane Doe plaintiffs.” J.A. 211. Section 1373(a) provides: Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. 8 U.S.C. § 1373(a). Hazleton argues that because the district court is an entity of the federal government, it was prohibited by this section from preventing Hazleton from communicating with federal immigration authorities about “the citizenship or 65 immigration status” of the Doe Plaintiffs. Although we are not convinced that § 1373(a) does, or could, limit the inherent powers of federal courts in the way Hazleton suggests, we need not reach this question because Hazleton’s argument fails for a more fundamental reason. Under the confidentiality agreement the parties eventually entered into, the Doe Plaintiffs agreed to reveal their identities only to Hazleton’s attorneys, and not to Hazleton officials. See J.A. 692-707. Consequently, Hazleton never learned these Plaintiffs’ identities or their immigration status. The district court simply could not have prohibited Hazleton from communicating with the federal government about information that Hazleton never knew. VI. DISCUSSION Having resolved these preliminary issues, we can turn to the merits of the claims before us. Although our reasoning differs from that of the district court, we agree that the provisions of the ordinances which we have jurisdiction to review are pre-empted by federal immigration law and unconstitutional under the Supremacy Clause. Because that conclusion turns on the relationship between the ordinances and 66 federal immigration law, we begin our inquiry into the merits of this appeal by briefly laying out the parameters of that law. A. Federal Immigration Law 1. The Immigration and Nationality Act The primary body of federal immigration law is contained in the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-537, enacted in 1952, and amended many times thereafter. The INA sets forth the criteria by which “aliens,” defined as “any person not a citizen or a national of the United States,” 8 U.S.C. § 1101(a)(3), may enter, visit, and reside in this country. Under the INA, there are three primary categories of aliens who may lawfully enter and/or spend time within the United States: (1) “nonimmigrants,” who are persons admitted for a limited purpose and for a limited amount of time, such as visitors for pleasure, students, diplomats, and temporary workers, see 8 U.S.C. § 1101(a)(15); (2) “immigrants,” who are persons admitted as (or after admission, become) lawful permanent residents of the United States based on, inter alia, family, employment, or diversity characteristics, see 8 U.S.C. § 1151; and (3) “refugees” and “asylees,” who are persons 67 admitted to and permitted to stay for some time in the United States because of humanitarian concerns, see 8 U.S.C. §§ 1157- 58.20 Aliens wishing to be legally admitted into the United States must satisfy specific eligibility criteria in one of these categories, and also not be barred by other provisions of federal law that determine inadmissibility. Congress has determined that non-citizens who, inter alia, have certain health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States, are inadmissible, see 8 U.S.C. § 1182, and if detained when attempting to enter or reenter the country, may be subject to expedited removal, see 8 U.S.C. § 1225. Despite the carefully designed system for lawful entry described above, persons lacking lawful immigration status are obviously still present in the United States. As the Supreme Court explained almost thirty years ago: “[s]heer incapability or lax enforcement of the laws barring entry into this country . . . 20 Congress has also ratified treaties pursuant to which persons may be admitted on humanitarian grounds even if they do not satisfy the statutory definition of “refugee” set forth in the INA. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Apr. 18, 1988, 1465 U.N.T.S. 85. 68 has resulted in the creation of a substantial ‘shadow population’ . . . within our borders.” Plyler, 457 U.S. at 218. Such persons may lack lawful status because they entered the United States illegally, either by failing to register with immigration authorities or by failing to disclose information that would have rendered them inadmissible when they entered. See 8 U.S.C. § 1227. In addition, aliens who entered legally may thereafter lose lawful status, either by failing to adhere to a condition of admission, or by committing prohibited acts (such as certain criminal offenses) after being admitted. See id. Persons here unlawfully are subject to removal from the country. Removal proceedings are initiated at the discretion of the Department of Homeland Security (“DHS”).21 See Juarez v. 21 Prior to 2003, the Immigration and Naturalization Service (“INS”), which operated under the Department of Justice, administrated both immigration services and immigration enforcement. On March 1, 2003, Congress abolished the INS. Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107- 296, 116 Stat. 2135, that agency’s functions were transferred to three separate agencies within the newly created Department of Homeland Security: U.S. Citizenship and Immigration Services (“USCIS”), which performs immigration and naturalization services, U.S. Immigration and Customs Enforcement (“ICE”), which enforces federal immigration and customs laws, and U.S. Customs and Border Protection (“CBP”), which monitors and secures the country’s borders. Older documents may continue to refer to the pre-2003 administrative structure, and citations to them should be understood in that context. 69 Holder, 599 F.3d 560, 566 (7th Cir. 2010) (“[T]he decision when to initiate removal proceedings is committed to the discretion of immigration authorities.” (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999))). Although certain aliens are subject to more expedited removal proceedings,22 for all others, section 240 of the INA sets forth the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3). Under section 240, an alien facing removal is entitled to a hearing before an immigration judge and is provided numerous procedural protections during that hearing, including notice, the opportunity to present and examine evidence, and the opportunity to be represented by counsel (at the alien’s expense). See 8 U.S.C. § 1229a. At the conclusion of a removal hearing, the presiding immigration judge must decide, based on 22 As noted above, inadmissible aliens detained at the borders of the United States, or others deemed not to have been “admitted” to the country, may be subject to expedited removal. See 8 U.S.C. § 1225. In addition, expedited removal procedures apply to certain aliens already within the country who have been convicted of congressionally-defined crimes. See 8 U.S.C. § 1228. 70 the evidence produced during the hearing, whether the alien is removable, see 8 U.S.C. § 1229a(c)(1)(A), and if so, whether s/he should be ordered removed, or should be afforded relief from removal. Such relief can include postponement of removal, cancellation of removal, or even adjustment of status to that of lawful permanent resident. See 8 U.S.C. §§ 1229a(c)(4), 1229b. In sum, while any alien who is in the United States unlawfully faces the prospect of removal proceedings being initiated against her/him, whether s/he will actually be ordered removed is never a certainty until all legal proceedings have concluded. Moreover, even after an order of removal issues, the possibility remains that no country will accept the alien. Under such circumstances, the Constitution limits the government’s authority to detain someone in anticipation of removal if there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001).23 23 In Zadvydas, the Court addressed the cases of two aliens who had been ordered removed from the United States, but who, for various reasons, no other country would accept. The government sought to continue detaining them nonetheless. The (continued...) 71 The INA, as amended, also prohibits the “harboring” of aliens lacking lawful immigration status. It provides that any person who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection . . . such alien in any place, including any building or any means or transportation” shall be subject to criminal penalties. 8 U.S.C. § 1324(a)(1)(A)(iii). For decades, the INA contained no specific prohibition against the employment of aliens lacking legal status. Rather, regulation of the employment of aliens not lawfully present was at most a “peripheral concern.” DeCanas v. Bica, 424 U.S. 351, 360 (1976). This changed in 1986, when Congress amended the INA through enactment of the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). IRCA “forcefully made combating the employment of illegal aliens central to the policy of 23 (...continued) Court held that the Due Process Clause imposed reasonableness limits on post-removal-period detention, and thus that the government could not continue the aliens’ detention indefinitely if there was “no significant likelihood of removal in the reasonably foreseeable future.” 533 U.S. at 701. 72 immigration law.” Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147 (2002) (internal quotation marks and alterations omitted). 2. The Immigration Reform and Control Act IRCA regulates the employment of “unauthorized aliens,” a term of art defined by the statute as those aliens neither “lawfully admitted for permanent residence” nor “authorized to be . . . employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3). IRCA makes it unlawful to knowingly hire or continue to employ an unauthorized alien, or to hire anyone for employment without complying with the work authorization verification system created by the statute. 8 U.S.C. § 1324a(a)(1)-(2). This verification system, often referred to as the “I-9 process,” requires that an employer examine certain documents that establish both identity and employment authorization for new employees. See 8 U.S.C. § 1324a(b). The employer must then fill out an I-9 form attesting that s/he reviewed these documents, that they reasonably appear to be genuine, and that to the best of the employer’s knowledge, the employee is authorized to work in the United States. See id. Although employers are required 73 to verify the work authorization of all employees, Congress did not extend this requirement to independent contractors. See 8 U.S.C. § 1324a(a)(1) (making unlawful the knowing “employment” of an unauthorized alien, and the hiring of an employee for “employment” without verifying the employee’s work authorization); 8 C.F.R. § 274a.1(f) (specifically excluding “independent contractors” from the definition of “employee”); 8 C.F.R. § 274a.1(g) (specifically excluding a “person or entity using . . . contract labor” from the definition of “employer”). The I-9 “verification system is critical to the IRCA regime.” Hoffman Plastic Compounds, 535 U.S. at 147-48. Not only is failure to use the system illegal, but use of the system provides an affirmative defense to a charge of knowingly employing an unauthorized alien. See 8 U.S.C. § 1324a(a)(3). Thus, employers who use the I-9 process in good faith to verify the work authorization of employees are presumed not to have knowingly employed someone unauthorized to work in this country. In enacting IRCA, Congress required the President to monitor the security and efficacy of this verification system. See 8 U.S.C. § 1324a(d). Congress also imposed limits on the President’s ability to change it. Id. 74 In addition to relying on the I-9 verification system, IRCA uses public monitoring, prosecution, and sanctions to deter employment of unauthorized aliens. IRCA provides for the creation of procedures through which members of the public may file complaints about potential violations; it authorizes immigration officers to investigate these complaints; and it creates a comprehensive hearing and appeals process through which complaints are evaluated and adjudicated by administrative law judges. See 8 U.S.C. § 1324a(e)(1)-(3). Under IRCA, an employer who knowingly hires an unauthorized alien shall be ordered to cease and desist the violation, and to pay between $250 and $2000 per unauthorized alien for a first offense, between $2000 and $5000 per unauthorized alien for a second offense, and between $3000 and $10,000 per unauthorized alien for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization of its employees can be ordered to pay between $100 and $1000 for each person whose authorization it failed to authenticate. 8 U.S.C. § 1324a(e)(5). Employers who engage in a “pattern or practice” of hiring unauthorized aliens shall be fined up to $3000 per unauthorized alien, imprisoned for not 75 more than six months, or both. 8 U.S.C. § 1324a(f)(1). IRCA expressly pre-empts states and localities from imposing additional “civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Because of its concern that prohibiting the employment of unauthorized aliens might result in employment discrimination against authorized workers who appear to be foreign, Congress included significant anti-discrimination protections in IRCA. See 8 U.S.C. § 1324b.24 The statute provides that, with certain limited exceptions, it is an “unfair immigration-related employment practice” to discriminate in hiring on the basis of national origin or citizenship status. 8 24 8 U.S.C. § 1324b provides in relevant part that: [with certain limited exceptions, it] is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment – (A) because of such individual's national origin, or (B) in the case of a protected individual . . . because of such individual's citizenship status. 8 U.S.C. § 1324b(a). Any person adversely-affected by an unfair immigration-related employment practice “may file a charge respecting such practice or violation.” 8 U.S.C. § 1324b(b)(1). 76 U.S.C. § 1324b(a)(1). Congress put teeth into this provision by creating the office of a “Special Counsel” to investigate and prosecute such offenses, and it required that the President fill that position “with the advice and consent of the Senate.” 8 U.S.C. § 1324b(c).25 Congress also authorized immigration judges to punish those who violate IRCA’s anti-discrimination mandate by imposing civil fines equivalent in amount to those imposed for knowingly hiring unauthorized aliens. Compare 8 U.S.C. § 1324a(e)(4)(A)(i)-(iii) with 8 U.S.C. § 1324b(g)(2)(B)(iv)(I)-(III).26 25 8 U.S.C. § 1324b(c) provides in relevant part that “[t]he President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices.” 8 U.S.C. § 1324b(c)(1). The Special Counsel “shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges.” 8 U.S.C. § 1324b(c)(2). 26 There are some differences between the two sections. The imposition of monetary sanctions under § 1324a is mandatory, but discretionary under § 1324b. Compare 8 U.S.C. § 1324a(e)(4)(A) with 8 U.S.C. § 1324b(g)(2)(B)(iv). Also, criminal penalties are available for certain pattern-or-practice violations under § 1324a, but not available under § 1324b. See 8 U.S.C. § 1324a(f)(1). In contrast, § 1324b provides for compensatory relief, such as backpay and other remedies, which is not available under § 1324a. See 8 U.S.C. § 1324b(g)(2)(B)(iii) and (vii)-(viii). 77 3. The Illegal Immigration Reform and Immigrant Responsibility Act In 1996, Congress again amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in various sections of 8 U.S.C.). In IIRIRA, Congress directed the Attorney General, and later the Secretary of Homeland Security, to conduct three “pilot programs of employment eligibility confirmation” in an attempt to improve upon the I-9 process. IIRIRA § 401(a), 110 Stat. 3009-655. Congress mandated that these programs be conducted on a trial basis, for a limited time period, and in a limited number of states. See IIRIRA § 401(b)-(c), 110 Stat. 3009-655-66. Two of these trial systems were discontinued in 2003. However, the third – originally known as the “Basic Pilot Program” but since renamed “E-Verify” – was reauthorized and expanded to all fifty states in 2003. See Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, §§ 2, 3, 117 Stat. 1944. It has been reauthorized several times since, and its current authorization will expire, absent congressional action, on September 30, 2012. See Department of Homeland Security 78 Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580. E-Verify allows an employer to actually authenticate applicable documents rather than merely visually scan them for genuineness. When using E-Verify, an employer enters information from an employee’s documents into an internet- based computer program, and that information is then transmitted to the Social Security Administration and/or DHS for authentication. See IIRIRA, as amended, § 403(a)(3). These agencies confirm or tentatively nonconfirm whether the employee’s documents are authentic, and whether the employee is authorized to work in the United States. See IIRIRA, as amended, § 403(a)(4). If a tentative nonconfirmation is issued, the employer must notify the employee, who may contest the result. See id. If an employee does not contest the tentative result within the statutorily prescribed period, the tentative nonconfirmation becomes a final nonconfirmation. See id. If the employee does contest it, the appropriate agencies undertake additional review and ultimately issue a final decision. See id. 79 An employer may not take any adverse action against an employee until it receives a final nonconfirmation. See id. However, once a final nonconfirmation is received, an employer is expected to terminate the employee, or face sanctions. With only a few exceptions, federal law makes the decision of whether to use E-Verify rather than the default I-9 process entirely voluntary. See IIRIRA, as amended, § 402(a). Federal government employers and certain employers previously found guilty of violating IRCA are currently required to use E- Verify; all other employers remain free to use the system of their choice.23 See IIRIRA, as amended, § 402(e). Significantly, in enacting IIRIRA, Congress specifically prohibited the Secretary of Homeland Security from requiring “any person or other entity to participate in [E-Verify].” See IIRIRA, as amended, § 402(a). Congress also directed the Secretary to publicize the “voluntary nature” of the program and to ensure that government representatives are available to “inform persons and other entities that seek information about [E-Verify] of [its] voluntary 23 Pursuant to an executive order by President George W. Bush, certain federal government contractors are now also required to use E-Verify. See Exec. Order No. 13,465, 73 Fed. Reg. 33,286 (Jun. 6, 2008). 80 nature.” IIRIRA, as amended, § 402(d). Those employers who elect to use E-Verify and actually do use the system to confirm an employee’s authorization to work are entitled to a rebuttable presumption that they did not hire that employee knowing that s/he lacks authorization to work in this country. See IIRIRA, as amended, § 402(b)(1). Employers who elect to use E-Verify, but in practice continue to use the I-9 process, are not entitled to the E-Verify rebuttable presumption, but can still claim the I-9 affirmative defense. See IIRIRA, as amended, § 402(b)(2). B. State and Local Immigration Laws As we noted at the outset, state and local attempts to regulate issues related to immigration have skyrocketed in recent years. According to the National Conference of State Legislatures (“NCSL”), 300 bills pertaining to immigration were introduced in state legislatures in 2005, and thirty-eight of them were enacted into law. National Conference on State Legislatures, 2009 State Laws Related to Immigrants and Immigration January 1-December 31, 2009, http://www.ncsl.org/default.aspx?tabid=19232 (last visited Aug. 20, 2010). Less than five years later, these numbers had 81 increased more than five-fold: in 2009, over 1,500 bills pertaining to immigration were introduced. From these, 222 laws were enacted, and 131 resolutions adopted. Id. A number of these laws contain provisions that are either identical, or similar, to provisions in Hazleton’s ordinances.24 In their brief filed on behalf of Plaintiffs, Amici Curiae Chambers of Commerce note that Arizona, Mississippi, Oklahoma, Utah, Tennessee, Louisiana, West Virginia, Colorado, Minnesota, Georgia, and Rhode Island, as well as the municipalities of Valley Park, Missouri; Mission Viejo, California; Beaufort County, South Carolina; and Apple Valley, California, have all enacted laws that in some way regulate either the procedures employers must undertake in order to avoid hiring unauthorized aliens, or the penalties that can be imposed for doing so. In addition, Plaintiffs call our attention to several localities, including Escondido, California and the City of Farmers Branch, Texas, which have passed ordinances regulating the provision of rental housing to aliens not lawfully present in the United States. 24 In fact, Hazleton’s mayor got the idea of enacting the IIRAO and the RO from similar ordinances, considered but never passed, in San Bernardino, California. See J.A. 1385-87. 82 Various challenges have been leveled at these enactments – most commonly, attacks rooted in the Supremacy Clause – and the resulting body of case law informs our analysis. The Court of Appeals for the Ninth Circuit, affirming a decision by the District Court for the District of Arizona, upheld an Arizona statute requiring all employers within the state to use E-Verify, and subjecting businesses that employ unauthorized aliens to a graduated series of sanctions up to and including the permanent revocation of their business licenses. That court rejected the plaintiffs’ pre-emption and due process claims. See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted, 78 U.S.L.W. 3065 (Jun. 28, 2010) (No. 09-115). The District Court for the Eastern District of Missouri also upheld an employment ordinance virtually identical to the IIRAO against pre-emption, due process, and equal protection challenges, as well as challenges based on state law. See Gray v. City of Valley Park, No. 4:07CV00881, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008), aff’d on other grounds, 567 F.3d 976 (8th Cir. 2009). In contrast, the Court of Appeals for the Tenth Circuit partially affirmed a preliminary injunction issued by the District 83 Court for the Western District of Oklahoma, barring enforcement of certain provisions of an Oklahoma law on pre- emption grounds. Much like the IIRAO, that law required employers in Oklahoma to verify the work authorization of independent contractors, and also created a private cause of action against business entities that employ unauthorized aliens. See Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010). The District Courts for the Southern District of California and the Northern District of Texas have held that ordinances similar to the housing provisions of the IIRAO and the RO are pre-empted. See Villas at Parkside Partners v. City of Farmers Branch (“Farmers Branch III”), ___ F. Supp. 2d ___, Nos. 3:08-cv-1551-B, 3:03-cv-1615, 2010 WL 1141398 (N.D. Tex. Mar. 24, 2010); Villas at Parkside Partners v. City of Farmers Branch (“Farmers Branch II”), 577 F. Supp. 2d 858 (N.D. Tex. 2008); Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006). C. Pre-emption As we have explained, the district court entered the challenged injunction because it concluded that the IIRAO and 84 the RO, among other failings, are pre-empted by federal law. Although our reasoning departs from that of the district court, we agree with its conclusion.25 See Johnson v Orr, 776 F.2d 75, 83 n.7 (3d Cir. 1985) (“An appellate court may affirm a result reached by the district court on reasons that differ so long as the record supports the judgment.”). The Supremacy Clause of the United States Constitution provides that the laws of the United States “shall be the supreme 25 Plaintiffs present a facial challenge to these ordinances. In Washington State Grange v. Washington State Republican Party, the Supreme Court explained: Under United States v. Salerno, 481 U.S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e. that the law is unconstitutional in all of its applications. Id. at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “plainly legitimate sweep.” Washington v. Glucksberg, 521 U.S. 702, 739-40 and n.7 (1997). 552 U.S. 442, 449 (2008) (alteration in original). Based on this language, Hazleton insists that we must apply the Salerno standard to Plaintiffs’ claims under the Supremacy Clause. However, since both Washington State Grange and Salerno involved quite different constitutional challenges than the ones we consider here, it is not at all clear that Salerno applies. Nonetheless, it is clear that solely “hypothetical conflicts” between state and local enactments and federal law are usually insufficient to support a finding of pre-emption. See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988). 85 Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The pre-emption doctrine is a necessary outgrowth of the Supremacy Clause. It ensures that when Congress either expresses or implies an intent to preclude certain state or local legislation, offending enactments cannot stand. As this Court has recently noted, “the Supreme Court has recognized three types of preemption: express preemption, implied conflict preemption, and field preemption.” Bruesewitz v. Wyeth Inc., 561 F.3d 233, 238-239 (3d Cir. 2009) (citing Hillsborough County, Fla., v. Automated Med. Labs., Inc., 471 U.S. 707, 713(1985). Both conflict pre-emption and field pre- emption are types of implied pre-emption. See, e.g., Hillsborough Cnty. v. Automated Med. Labs, Inc., 471 U.S. 707, 713 (1985). However, irrespective of the “type” of pre-emption involved, “the purpose of Congress” is the “touchstone” of any pre-emption inquiry. Wyeth v. Levine, 129 S.Ct. 1187, 1194 (2009) (internal quotation marks omitted). However, it is important to note that Congress does not “cavalierly” pre-empt states or municipalities from acting within the parameters of their historic police powers. Medtronic, Inc. 86 v. Lohr, 518 U.S. 470, 485 (1996). Accordingly, in pre-emption inquiries, we assume “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. (internal quotation marks omitted). When states act beyond the scope of their historic police powers, however, and wander into “an area where there has been a history of significant federal presence,” we do not begin with this assumption of nonpre-emption. United States v. Locke, 529 U.S. 89, 108 (2000). Express pre-emption occurs when Congress expressly declares a law’s pre-emptive effect. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). In such cases, “our task is to identify the domain expressly pre-empted.” Id. In doing so, we focus in the first instance “on the plain wording of the [federal statute’s pre-emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002) (internal quotation marks omitted). We also consider the “structure and purpose of the statute as a whole . . . as revealed not only in the text, but through [our] reasoned understanding of the way in which Congress intended the statute and its 87 surrounding regulatory scheme to [operate].” Medtronic, 518 U.S. at 486 (internal quotation marks and citation omitted). Implied field pre-emption occurs when state or local governments attempt regulation in a field which Congress has implied an intent to exclusively occupy. See English v. Gen. Electric Co., 496 U.S. 72, 79 (1990). Congress’s intent to occupy a field can be inferred where a federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal quotation marks omitted), or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Implied conflict pre-emption occurs where it is “impossible . . . to comply with both state and federal law,” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (internal quotation marks omitted), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 88 U.S. 52, 67 (1941). “Impossibility” conflict pre-emption exists only where it is truly impossible to comply with both federal and state law. “Obstacle” conflict pre-emption, on the other hand, requires a broader inquiry into the purposes underlying a federal statute, and whether a state law stands as an obstacle to effectuation of those purposes. “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000). The Supreme Court has long made clear that federal interests are paramount in the field of immigration. The Court explained seventy years ago: “[t]hat the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by this Court.” Hines, 312 U.S. at 62; see also Toll v. Moreno, 458 U.S. 1, 10 (1982). However, the Supreme Court has also explained that not every state or local enactment that affects the rights of aliens 89 necessarily interferes with the federal interest in immigration. In DeCanas v. Bica, 424 U.S. 351 (1976), the Supreme Court articulated a framework for analyzing pre-emption challenges to state and local laws that impact the rights of aliens but do not “regulate immigration.” Although DeCanas was decided a decade before Congress enacted IRCA and two decades before it enacted IIRIRA, many aspects of the Court’s analysis are still relevant to our inquiry. In DeCanas, the Supreme Court considered whether a state law prohibiting the employment of persons unlawfully present was pre-empted by the INA. California had enacted legislation prohibiting employers within the state from “knowingly employ[ing] an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352 (internal quotation marks omitted). A group of migrant farmworkers sued, arguing that the law was pre-empted both by the Constitution’s exclusive delegation of the power to regulate immigration to the federal government, and by the INA. The Court disagreed. In upholding the statute, the Court explained that the 90 “[p]ower to regulate immigration is unquestionably exclusively a federal power” under the United States Constitution, precluding all state involvement even if Congress has neither expressed nor implied its intent to preclude that state regulation. Id. at 354. “[T]he Constitution of its own force requires pre- emption” of any state efforts to actually regulate immigration. Id. at 355. However, the Court also explained that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power.” Id. Rather, a state law only regulates immigration if it is “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. As California’s law did not intrude into these proscribed areas, the Court held that it was not pre-empted, absent congressional action. The Court also held that California’s law was not field pre-empted by the INA’s regulatory scheme. First, the Court explained that “the regulation of employment of illegal aliens” was not a subject matter of such clear and manifest federal importance as to require the conclusion that it was occupied by federal regulation. Id. at 356. The Court reasoned that states 91 have “broad authority under their police powers to regulate the employment relationship to protect workers within the State,” and that California’s law fell “within the mainstream of such police power regulation.” Id. Because the law “focuse[d] directly upon the[] essentially local problems [of employing illegal aliens] and [was] tailored to combat effectively the perceived evils,” it did not touch upon a field that by its very nature would support no conclusion but that Congress had occupied it.26 Id. at 357. Secondly, the Court concluded that the INA as it then existed did not reflect clear and manifest congressional intent to preclude state regulation in the field of employment of aliens here unlawfully. Then, the INA was primarily concerned with “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Id. at 359. Only one provision of one section of the INA even 26 In reaching this conclusion, the Court distinguished cases in which pre-emption was found based on the “predominance of federal interest in the fields of immigration and foreign affairs.” DeCanas, 424 U.S. at 363. It explained that “there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country.” Id. 92 mentioned the employment of persons not lawfully in the country.27 This evidenced “at best . . . a peripheral concern with employment of illegal entrants,” which was insufficient to establish a congressional intent to occupy the field. Id. at 360. To the contrary, the Court believed that Congress had indicated its intent, through laws addressing farm labor contractors, for the States to “consistent with federal law, regulate the employment of illegal aliens.” Id. at 361. The Court did not, however, actually rule on the issue of conflict pre-emption. Rather, it remanded the matter so that the lower courts could determine if California’s law was “consistent with federal law.” Id. In all other respects, though, the Court found the challenged law an appropriate use of state power, given both its limited impact upon “immigration” and Congress’s then limited foray into regulating the employment of persons lacking lawful immigration status. In sum, DeCanas holds that the federal authority to “regulate immigration” is exclusive, but states are not 27 That provision was contained in 8 U.S.C. § 1324, the section which makes it a felony to “harbor” illegal entrants, and it stated that employing aliens here unlawfully “shall not be deemed to constitute harboring.” DeCanas, 424 U.S. at 360 (internal quotation marks omitted) (emphasis added). 93 necessarily precluded from regulating (consistent with federal law) certain local issues affecting the rights of aliens, unless Congress has indicated an intent to preclude such regulation. 1. Employment Provisions a. Presumption Against Pre-emption The district court concluded that the employment provisions of the IIRAO were expressly pre-empted, field pre- empted, and conflict pre-empted. Hazleton challenges each of the district court’s conclusions on multiple grounds. Hazleton first claims that the district court erred in failing to apply the presumption against pre-emption. We agree. As we have noted, Congress does not casually sweep away the historic police powers of states. This reality underlies the rebutt [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/175018. Public record. Not legal advice.