Legal Case Summary

Of at Alvres is city, er, he's involved much Jar is going to say there's There's so many issues to try to keep this as organized as possible. Maybe we should go through them in some kind of larger order. Obviously, standing should be off because there's no standing. You don't have much business. We can't conduct any business today. And then it seemed to me it is to make sense to hit preemption for the same reason and then do process and the variations of that. The anonymity issue and then we can get to the 1934 and the police fire was never decided by the district court. But we can touch on that if you want to. What's the introduce yourself? Yes, mate. Please the court. My name is Chris Cobach, representing the Pellant City of Hazleton. With the courts leave, what I'd like to do is spend 20 minutes first arguing these issues and then reserve 10 minutes for a bottle. That's fine. And we also just mentioned it because my guess is I don't normally pay straight attention to all I mean, particularly case of this magnitude and the case in our which is normally we only do that in cases of cap on habeas and fields. But if anyone needs a break during the course of this and it may well be that will be to the one need of breaking me. That's if anyone needs a break just the council just raise your hand and nod and I see it. Hopefully I see it. A book called we've been so don't feel at all like you know, some proceedings or feel all intimidated by doing that just let us know you need a break and got a break. Well, your honor. I'm the appeal principally concerns Hazleton ordinance and so you did give your name right? Yes, Chris Cobach. I was just saying it has the appeal principally concerns two part the ordinance principally contains two parts and that is a book that will come back up the ordinance is ordinance 2006 dash 18 as amended by 2006 dash 40 and when I say the ordinance or the IRA that's what I'll be referring to and because that the the names are some we've got Irka we've got era and erro and maybe helpful to refer to the federal if you were talking about Irka let's go like the federal statute. And Errira is the other federal statute of use but we're then saying not just that we're saying Errira when we say the Hazleton ordinance and or it would be the federal legislation and Errira could then I hear Errira I know you're not talking about Errira but you're talking about the federal legislation. All right, your honor. I would agree with the ordinance. The ordinance essentially has two halves as you know an employment half which bars an employer from knowingly employing an unauthorized alien and imposes the consequence of a suspension of business license and then the harboring half which bars a landlord from knowingly or with reckless disregard harboring an illegal alien and an apartment. Now before I proceed down the list of issues that you mentioned Judge McKee what I'd like to do is notify the court of two recent opinions that came down after briefing and then go straight down the issues as you described them. The first was the US Supreme Court case of Washington State Greens versus Washington State Republican Party which was handed down in March after the first brief was filed and the second is the ninth circuit case of CPLC versus Napolitano which just came down last month in September. First Washington State Grange in that case the Supreme Court held in a seven to decision. I had a opposing council I had noticed of this. Yes both are covered in our reply brief and in a 28

. There in that case in Washington State Grange is a Supreme Court handed down decision reaffirming the Solerno standard from United States versus Solerno which is the standard that controls all facial challenges. The court said quote the plaintiff in a facial challenge must establish that no set of circumstances exists under which the act would be valid. Now the district court below aired by not even mentioning the Solerno standard much less applying it. Now it depends on the Solerno to some issue about the viability of Solerno. Right and appellys note this they say in their response brief that the Solerno standard is in doubt and that's why the Washington State Grange case is so critical because the they evidently didn't know that it came down right about the time they were writing their brief but the court came back in Washington State Grange and said in all in all facial challenges the Solerno standard applies and the court said this in determining whether a law is facially invalid we must be careful not to go beyond the statute's facial requirements and speculate about hypothetical or imaginary cases end quote that's 128 Supreme Court for 1190. Now the reason this is so important for this particular case is the district court's analysis of the due process question and most of its analysis of the preemption question everything except the express preemption part is based on hypothetical cases hypothetically if an alien were applying for asylum hypothetically if an alien were under temporary protected status none of these are based on actual plaintiffs before the court that is a critical. If it's assumed that understanding is trying to standard challenging everyone's I think you're challenging both all the association standing in the individual plan is standing let's assume that we find that there is at least one plaintiff be an associational plaintiff or an individual plaintiff with standing and the question asked that we don't the answer to him didn't. It's time to throw a look at it if someone has standing such as we have our ordinances that you with 10 different provisions and there's currently standing to challenge two provisions in statute. So there's no article through issue. It's just standing to challenge a provision of the statute. Can the person with standing there by along as that exercise article be power challenge the statute the entire statute for other provisions in the statute which may not go to the precise issue in which the standard the answers know your honor and we did cite this in our first brief that their Supreme Court precedent establishes that you have may have standing to bring specific challenges for example. The case of landlord. Let me get that for you in the in my rebel arguments a landlord for example wouldn't have standing to say that hypothetical over claim discrimination that was one of the claims rejected by the court below but let's say that the equal protection clause were still here. A landlord would not be able to say I am being denied a tendency because of my race and my ethnicity so you have to give this more and we're kind of sliding issues but here there's more in terms of a landlord standing if the landlord is standing and just being denied and I agree your honor each plaintiff if they have standing has a set of issues that they could have standing for a reason but none of them has standing to raise all of the issues the second case I wanted to mention is CPLC versus Napolitano and that stands for Chicano's Polo Caza that was handed down on September 19th and not in the ninth circuit and that is the only other circuit that has addressed a case precisely like this one that was an Arizona law which contains provisions identical to this law that were some of the same drafters involving in drafting goes well there's a recall that is here there's an issue about the I-9 form and the extent to which there may be a preemption here because the his or her ordinance does not require an exemption or safe herb if you will for the employer relying upon I-9 form it's a recall the Arizona statute and the Chicano case did have that kind of version also the circuit didn't discuss it but basically the same template of challenges were brought by the plaintiffs in both cases and the 9th circuit you're right that there is a slight difference as to whether or not an I-9 form offers a safe harbor and whether the state what we argue that Hazleton has no obligation under preemption theory to mirror a safe harbor as long as the ordinance is within the concurrent enforcement and I'll get into that doctrine is it does not penalize any conduct that is that is not penalized under federal law but the Arizona law issue actually went farther than the Hazleton law in the Hazleton ordinance the Arizona law issue not only imposed the same penalties of a loss of business permit for an employer who knowingly hires on authorized aliens it also required every business in the state this is very much in the news recently every business in the state to use the e-verified system and that's something that a police complain about saying that it might be conflict prompted the Arizona statute went further said every business has to use it was the Hazleton ordinance only says you get a safe harbor if you use it and it's encouraged the CPLC case the 9th circuit held unanimously that federal law not only allows you to mandate either or encourage either or but that is consistent with the intent of Congress to maximize the use of e-verify and that is found at page 130777 through 7-8 in the CPLC opinion what does Arizona provide that every the Arizona state has to use what the e-verify system which is not mandated by Hazleton it merely gives a business in Hazleton safe harbor and so they're encouraged use it in Hazleton but not mandated there's also a circumstance of a business as a repeat offender in Hazleton then they could be mandated which by the way is exactly what the federal government does one of the ways this is on the employment part this is on the employment half yes this is on the employment half of the Hazleton ordinance so the another aspect of the CPLC opinion which again goes through all of the preemption arguments and all the due process arguments on the employment side of this case another aspect of it's very important has to do with the guiding Supreme Court precedent of DeConis versus becah that was the last time the Supreme Court spoke about immigration preemption in 1976 now at the district judge in our case did in this case did district judge set aside the holding of DeConis that there is no field preemption field being one of the two categories of implied preemption and the district judge said we don't think we don't think DeConis is good law anymore it's 32 years old and Urkha the immigration reform control act of Congress has passed in 1986 we think that now occupies the field and so therefore we are not going to hold ourselves to the Supreme Court precedent of DeConis versus becah the ninth circuit performed the same analysis and rejected that holding and the ninth circuit furthermore said we believe that they're the continuing vitality of the conis is clear and that's found at 1307-4 of CPLC and that's very important because one could argue that a district court or any inferior article three court should wait for the U.S. Supreme Court to decide when a holding of the U.S. Supreme Court is no longer good law but again this CPLC- The Supreme Court has said that in fact is the case the Supreme Court has told us that until they decide that it's been overruled it's still a law correct your honor and while we're on the topic of DeConis I do want to mention one thing about that DeConis sets the standard for all cases involving implied preemption claims concerning immigration under DeConis there are only three ways that implied preemption can occur. If the state or local ordinance is a regulation of immigration which is defined very narrowly to mean a regulation of who can come into the country and who can't and no one alleges that this is what Hazel and Strangler. In the conditions under which they can they can remain. And the conditions under which a legal entrance can remain. And Hazel and Strangler does not define conditions under which legal entrance can remain only illegal. Secondly, if Congress expressed the manifest purpose of fully occupying the field and outsting the states from the field and thirdly if there is a conflict with the full purposes objectives the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. And that's page 363 of DeConis. Now the DeConis Court left us a clue about field preemption though. It said field preemption will not occur unless there is a complete outstrip. The exact words from DeConis at page 357 is only a demonstration that a complete outstrip state power was the clear manifest purpose of Congress would justify that conclusion and code. End quote. The district court ignored the words complete outstrip

. What about the February? I know you want to finish your field preemption and also. And so far as I can apply DeConis to this case and I agree with you. I think it does. And we haven't conference this office. So whatever I say, it's me. It's not. It doesn't indicate anything about the holding of this panel yet. Or the court acting to the panel. But the kind of did seem to indicate the extent to which something which facially impacts immigration is a regulation of immigration. And that would be very helpful for the purposes of the analysis. Well, with respect to your honor, DeConis actually said that a law affecting immigration is not a regulation. That's exactly what I'm sorry. Oh, I'm sorry. I didn't hear the nonsense. Yeah, but here we have an express preemption provision. Right. And it's going to get into an issue about whether or not this is a licensing or similar law or something beyond that. And I think maybe you're going to be a bit of it is something beyond the licensing provision wouldn't the specific preemption provision in. Or the federal statute then state that this is a exemption. Be a express. Actually, your honor. It's a little bit broader than that. The way that the orca provision is phrased. It says sanctions, civil or criminal sanctions other than licensing or similar laws. So local laws that do not impose sanctions would not be preempted. Only sanctions that are not within the predical. Right. So for example, a local law that says you can't withhold this kind of salaries paid to an illegal worker from your local income tax. That would not be a sanction

. That would just be another kind of law. Or a law mandating you verify, for example. Well, no, no. I'm not sure about the first example. We're not sure whether or not that would be a sanctioned law. Sure. But we could speculate about various hypotheticals. So the point is only if it's a sanction is it preempted, but it's not preempted if it's a licensing law. Now the CPLC court, the ninth circuit, went through this analysis with exacting precision. It said clearly this is a licensing law. It's denying when a person can have a license. And the argument that was made by the plaintiff since CPLC is identical to the arguments by the plaintiffs here. And they said, well, there's a House Committee report. One of four committee reports. Only one mentions this provision. And in that House Committee report, there is a suggestion. If you squint your eyes and you read it just the right way, you could read it as saying that that means you only can impose this licensing sanction after a federal judgment has occurred. Well, that wouldn't make sense because the only actor named in either the committee report or in the statute is a state and local entity. There's no discussion of any federal actor doing anything before a state may be triggered before the action of the state or the opportunity of a state can be triggered. The CPLC court rejected the exact same argument that they are advancing here. So I think it's clear that DeConno supply is unless there's a complete ouster. And the ninth circuit came to that same conclusion. But before I go to standing, I guess we're kind of doing this in reverse order. Let me, while we're on the subject of preemption, let me talk a little bit about conflict preemption and then close this first part with standing. Now, with respect to conflict preemption, I will let the CPLC decision speak for itself. And I think it adequately addresses the employment half of the ordinance. But what about the harbouring half of the ordinance? Now, since there is no express preemption claim and there is no field preemption claiming it's harboring, they have to say that there's a conflict with federal law. Now, what the district court failed to do is apply the correct standard for conflict preemption. The DeConno score said you must show that Congress unmistakably ordained that statues of this type cannot occur unmistakably so ordained

. And then in 12 versus Marano 48, 458 US one, the Supreme Court came back and said, you have to show strong evidence that Congress intended to preempt. You can't hypothetically dream up situations. You have to show Congress intended to preempt this kind of thing. And that they have not done. The plaintiff has not presented the evidence and the district court has not shown it. Instead, what the district court did is the district court invented its own congressional objective, not based on any congressional statute. And that was a congressional objective of avoiding excessive enforcement. And this is founded page 527. I think you'd agree that under the congressional scheme, you can have someone who was here illegally, but yet is not necessarily in a situation where they have no right to remain. No legal right to remain. The district court hypothesized that they're might and these again violate the Salarino standard, but you're right. The district court hypothesized, well, let's imagine cases where someone is here legally, but still are here illegally, but still has the right to remain. And thought about a person seeking asylum who has a pending application, a person who's granted withholding of removal. There are several problems. One is that they violate the Salarino standard. No such person has been presented. It's a facial challenge. You can't even discuss those. But suppose that we did have planness of that nature in the case. The other problem is all of those categories are actually categories of aliens whose presence is now lawful. Federal law stipulates in each of those cases where your status changes from unlawful to lawful. And so the city of Hazelton does not make its own judgment. Well, if the even though and maybe the Salarino for cause is inquiry, I think it would close with that. Even if you just say someone comes in from Afghanistan on a visa visit and they're fleeing the Taliban there, they get a visa visit to come, a visa, a visitor's visa to come. And they're allowed to be here for six months. They stay for seven or eight months, but they would have a clear asylum claim for where to be raised. Under the year scenario, and I understand this is really flunting. So, so I know, but in terms of the principle of health, under the year scenario, they would have no right to remain. It seems that under the federal immigration law, they're not necessarily for close of the opportunity to present the argument that they have a right to remain in an asylum or withholding of removal or a cat application

. And if they're, if they have the opportunity to present that, I guess my inquiry, my problem is, would they live while they're waiting to make that presenter? Or after they follow the asylum petition? Where do they obtain shelter? What do they live? Two responses, Your Honor. First of all, a person in that scenario, actually the status is legal while they're here on their B visa for temporary visit, let's say. Their status becomes illegal if then they let the visa expire of the union. Seven months and seventh months. And then at some point, their status comes back to legal if they are granted asylum. Now, other circuits have been removed. If they're not in the room, once they're granted asylum, there's no issue. Well, other, other courts have addressed exactly this issue. Most specifically, the 10th circuit in the Aton D case. And the 10th circuit says that the person is unlawfully present until the federal government grants the asylum claim. Also, US versus Lucio in the 5th circuit, same conclusion. And so the, there is no such thing as the, as what the appellees suggest of people who status is both lawful and unlawful at the same time. Every other circuit has recognized that you pass, you hit a point and then your status may change. Would there be any, any plan that was either buying preemption or buy the concept of liberty embodied in the due process clause, whatever hand that you put on it? Would there ever be a point beyond which a township could not inflict burden upon the person's presence? Rental is one we have in this case. What about applying food, could hazel, and buying food, could hazel, and act in ordinance and says that in order to purchase food, you have to show food anybody in the township. Before you can purchase food from a grocery and before the grocery can sell food, there has to be demonstration or proof of eligibility to be present. Well, you're on that raises an interesting question because that would be a contract sale of something to someone who's unlawfully present. Now, that would raise a big question because you'd be, you've been in that situation. You'd probably, this would be more of a 14th amendment claim because then the, the plaintiffs would say, well, we are all citizens need to eat, all aliens need to eat. And you're imposing a hurdle before we're allowed to purchase the food and that hurdle probably doesn't meet the compelling public interest standard. And you would go to strict scrutiny, I think, in a case like that. What about right to shelter? Well, here, they're not actually denied the right to shelter. They're denied the rental accommodations, but they can certainly purchase accommodations. They can stay at a hotel. They can stay with friends. There's, there are all kinds of ways that they can obtain shelter or they can stay outside the city limits of hazel, of course. But there are all kinds of ways they can obtain shelter. And the district court never even suggested that they would have a fund, that this would be a 14th amendment fundamental rights claim, burning the right to shelter. Thank you for wondering how far you could take this kind of an ordinance

. We can't do it on the household thing. We'd easily say that no person can purchase property unless they can show the same kinds of things that someone has. It raises an interesting question, your honor. Or will you summon a tellroom? My answer would be that at some point with some of these hypothetical denials of things, you'd be talking about fundamental rights and that would trigger a 14th amendment claim. The other thing we have to remember, though, is that federal law on Title 8, section 1621, denies, requires every state to deny public benefits, every state in every city, to deny public benefits to aliens, and then it gives this long list of what constitutes a public benefit. So right now, a lot of things, including housing assistance and food assistance. The housing assistance has been that housing. Correct. Our deni are required to be denied to illegal aliens. Now you want me to get the standing. I know there's only a minute left of my first 20, so let me just quickly address the standing issues. We don't even need to get to any of these complicated questions because the plaintiffs have not shown that they have a specific individual who has standing. Now the main problem is a constitutional standing. They haven't met prong 2 of the Luhan test, which is that you must show that there is direct traceability from the government action to the injury suffered. With all of the plaintiffs, the reason they fail prong 2 is because they fail at the Supreme Court has said in Luhan and its predecessor cases, you cannot have the intervening actions of a third party not before the court. In other words, if a landlord says, I'm not going to be able to rent as many accommodations in the future. The landlord is speculating that someday, illegal aliens will come and rent to him. Not a landlord say they're currently renting illegal aliens. Someday someone will come and rent from him, and then he's speculating that another third party will show up. And that's a resident of Hazelton who will complain and trigger the enforcement process. But the burden on not just aliens, the every citizen of Hazelton, of getting an ice cream that was on the shoulder, the Truga, John Doe 1357, are all residents of Hazelton. I think the record supports that. The record supports that the named plaintiffs are residents of Hazelton. There are a lot that we don't know about the John Doe's and indeed questioning was severely restricted during the positions. For example, John Doe number one plaintiffs will allege that his status is uncertain. During the positions he did volunteer that he thinks he already has a lawful permanent resident card from the federal government. And so it appears he's a green card holder and you would not be injured in any way by the statute. But if we say not an injured, if we will be everybody under this has to obtain a permit, ten to occupier a permit. Unless we're a residency permit

. And so anybody who's over the age of 18, even if they're looking at home, has to go down to the government office. Who will they are? They have a right to be there before they can rent on the park. Actually, I would agree with the characterization except for the word proof. The Tennessee registration ordinance on its terms and as explained by the code enforcement officer, no permit will be denied to anyone. They merely have to provide information that they believe establishes who they are and then the city will make a copy of that and keep a record of it if there's ever any future enforcement. So there are no denials. They simply have to pay their few dollars of fee and then they will be used for it. I believe it's five dollars, but I'll double check that. One of that permit last. For as long as the tenancy, as long as the tenancy lasts, if they get a new tenancy, then they need a new permit. The other last thing I'd point about standing is that there were two potential standing arguments. One is one brought up by Justice of Conor and she says that no illegal alien is within the zone of interest under the Immigration and Nationality Act. And that means that they would, in order to say, is an employer or a landlord for an illegal alien within the zone of interest? But it's an issue when part of the challenge goes to preemption, there is an issue about whether or not the zone of interest test applies, isn't there? Well, Justice of Conor thought that it did. And I would agree with you that normally you think, well, this isn't the kind of statute that creates a protected class. But her reasoning was that we are all US citizens and lawful residents who are aliens are all protected by the INA. And so therefore illegal aliens and those who harbor or employ them are not within the zone of interest. It was an interesting case and that was INA versus legalization assistance project of LA County Federation of Labor, that's five, ten US. But the argument was to just that illegal aliens don't have any new process protection. I know you're not saying that. No, not at all, not at all. And so I think that's the reason why I think that the INA is not the only one who has the right to be the one who has the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to okay okay Omar Jabot for the plaintiff, Appleese. I'm going to be addressing the preemption issues. My colleague, Mr. Balcac, will address the remaining issues. And I think that's the same order that the other side went in. So the fundamental question on preemption in this case is whether every city in this country can enact and enforce its own immigration laws that conflict with the federal law and that bypass the federal government's agencies and procedures for administering that federal law. If that's a statement of this issue, it puts the rabbi in the hat because under the canis, this is not an immigration law. It's an an act of an ordinance that has some tangential impact upon immigration but it's not, it's how you decandes it entirely. This is not an immigration law

. Well, I'd like to address both the housing and employment. I'm sorry. Yes, and I want to zero in on your use of the word conflict and it would help me greatly if you would point out specifically where you find those conflicts between Hazelton and federal. Sure. On the employment side first, and this, I have to emphasize, was not an issue that was addressed in the Ninth Circuit case that my opponent cited to you. There is no discussion of conflict preemption in that case that rests entirely on its press preemption. In addition, as Judge McKinod did, that law is different in its particulars from the Hazelton law that we're now addressing. So the specific conflicts that we have identified are that the Hazelton law bypasses Erkaz very elaborate procedures for establishing whether a violation is taking place and bypasses the agencies that Congress set up to administer Erkaz, the Immigration Reform and Control Act. It takes away employers' repose if they follow the I-9 rules from liability. How does it do that? Because under the federal laws, if you follow the I-9 rules and determine that somebody's documents are facially valid, reasonably appear to be valid, then you have an affirmative defense to liability under the federal law. Well, they say that whether they're doing these or better than affirmative defense because they kind of nip it in the broad, you can't do anything under the ordinance in Hazelton. It's not just an affirmative, I'm not sure I'd buy that, but they're saying that it's more protection than an affirmative defense would be. I don't think their argument is that if you've facially complied with the I-9 procedures, you're not liable under the Hazelton law. Regardless of what you've done under... No, for complainers, I know with the Court of Enforcement Officer, this is the employment provisions. If a complaint is for a file saying an employer is hiring somebody for referring someone to you or whatever, who is not legally here, that complaint is I understand it is made known to the employer and then the employer then can check, can verify that person's eligibility to hire and then the complaint... Well, I don't know what happens to the criminal. I asked Mr. Kovak about that. But it's... What is I understand it? He is saying that it's more than an affirmative defense. Again, the fact that you have complied with the I-9, procedure in Hazelton means nothing in terms of your liability under the Hazelton law. What they've said is that maybe the employer can avoid ultimately having their license suspended if they fire the person on their own before the Code Enforcement Office comes after them

. But that's not anything like the procedure that exists in federal law and in fact both the employer and the employee in that case will have suffered as a result of the application of the Hazelton law. So it... It just has to show a proof of the identification that means to the city. I'm sorry, but... He just has to show that he had some identification from the worker and that would be if he did an I-9, it'd be something like a passport, right? The employer... What the city requires the employer to do when it gets a request or a complaint about the employer is to produce some sort of identity information. But that doesn't... Producing that information doesn't get the employer off. That doesn't end the inquiry. That's only the beginning of the enforcement process. And my colleague can talk a little bit more about the details of how that procedure operates. But... Well, if you had the valid requirements under the I-9, it would be a good identification, right? Unless it was forged. Yes, but the city then takes that identification... That..

. And starts the enforcement procedure. Checks to see whether the person's... You know, checks with the federal government, if they get a negative response from the federal government, then they tell you the employer that you have to fire that person. That, again, is not the procedure that Congress set up in Irka and doesn't give employers the repose that they're entitled to rely on under Irka. And I would point this court to this court's decision, Rogers U. Larson, which was a year after Dekanis Vibica, which involved Virgin Island immigrant employment statute. And what this court did in Rogers U. Larson was it noted that the Virgin Island statute took away the reliance that the employer could have on the way that federal law operated. So under federal law, you could hire a temporary worker and be sure that you could keep that worker as long as the temporary status continued. The Virgin Islands law put a different twist on things and struck that balance between protecting workers and allowing for temporary workers differently. And this court found it conflict-priampted the year after Dekanis. And the reason that this court could do that and the reason that this court can reach conflict-priampton without interfering with Dekanis in any way is that Dekanis didn't address conflict-priampton. Dekanis was the case about constitutional preemption, the issue of regulation of immigration and field-priampton. And what does Irka do to that argument? This is the relevance of Rogers Vibica, Dekanis. What does Irka, which came after Dekanis and after Rogers, what does that do to the argument that they're making? Does it impact the role? Sure, but the conflict that we're identifying here is a conflict based on Irka, based on the difference between Irka and the Hazleton law. And so that's the sense in which Irka is relevant. But Rogers tells us basically where the limits of Dekanis are and shows us that as Dekanis itself does, that it doesn't speak to conflict-priampton. As again, the Ninth Circuit case didn't speak to conflict-priampton. Well, then what do we do with 1324A of the AUIC? The one that carves out and specifically seems to go to this issue of preemption that we've talked with earlier. This provision of this section, the provision of this section, preempt any state or local law, including civil or criminal sanctions, are there other than through licensing and civil laws upon those who employ or recruit or refer for a fee for employment? And again, this is an express preemption issue. This is about the reach of the express preemption. The fact that we have an express, and I think it would be the case to say that the fact that there is an expressed provision of preemption within a statute is not necessarily negate the other areas of implied preemption. Exactly. So the fact that there's an express preemption provision with the savings clause has to be analyzed to see whether there's express preemptive effect in Congress's law. But this court has to separately look at the issue applying ordinary conflict preemption principles about whether there's a conflict between federal law and Hazel's law. So to your mind, does 1324A apply equally in this case to all of the issues before it? We've got business license and we've got limited tenant issues, and we've got this third party employee cause of action that people want. I think the express preemption provision clearly preamps the private cause of action created under the Hazel's institute. It also preamps expressly preamps the employer sanctioned scheme that Hazel tries to set up. But I think the other issue of housing is separately conflict preemptive is not addressed, is not encompassed within 1324A H2. I'd like to just say you're saying that the employer employee sanctioned that said forth in Hazel's and that it's not a licensing provision. Is the employer, I'm sorry, can you just say a few minutes ago? I assume that you're arguing that the restrictions on employing somebody and what happens with the business license, the discussion we've just had, that we can't authorize or authenticate the person's legal ability to be here, legal status to be here. You're saying that it's not a licensing provision? That's right. And why isn't it? Well, I'd like to start by noting that in law, and in this Court's decision in Barbara, the courts have recognized that savings clauses in express preemption provisions can't be read so broadly as to destroy the preemptive effect that Congress was trying to achieve. I want to point out that that helps you a lot with regard to landlord tenet issue. It seems to be private employees, paid party calls, and calls of actually gets implored. But how does it help you here where the business license seems to fit screly within 1324A H? Well, I think for one thing, we need to look at what Hazleton's saying here. Hazleton has said that their interpretation is that any law that makes it more difficult to do business in Hazleton is a licensing or similar to what it looks like. That really would open and does open the door to cities all over the country making their own rules and setting up their own procedures for deciding who can work based on their immigration status. But I would point out the lighter law. The lighter law. Because the same thing that make it more difficult for SIPP for businesses to do business in Hazleton if they employ early clients also makes it more difficult for everybody to do business in Hazleton. It's not part of our analysis, but it is kind of our running. These provisions make it more difficult for anybody to rent an apartment in a business there, which is how you somebody to break your leaves. But I would point out that the purpose and the structure of this Hazleton law is to be a law about early employment that happens to include among other sanctions, a licensing sanction. That doesn't make it a licensing law. If we look at the common sense understanding of what a licensing law is and this is addressed at somewhat greater length than the change to when the labor and make it brief. Those are laws that set out a series of qualifications that one needs to have in order to engage in a business. And that's not what this law does. In addition, I think it's clear if we look at what Congress had in mind. We know what Congress had in mind when it wrote this parenthetical, the seven-word parenthetical in a broad-preemptive provision. We know what they had in mind not only because of the legislative history, but because of the structure of IRCAA itself. And that's one of the things that the courts have looked at when trying to interpret these provisions. The structure of IRCAA is in the very section after establishing the employer sanction scheme. IRCAA amended the Agricultural Worker Protection Act to modify the way that farm waiver contractors were treated under federal law. And what Congress did was to basically require an IRCAA finding before allowing any action to be taken against the farm waiver contractors license. And that's precisely what they were trying to do on the state level with that parenthetical to allow for a genuine licensing scheme to

. It also preamps expressly preamps the employer sanctioned scheme that Hazel tries to set up. But I think the other issue of housing is separately conflict preemptive is not addressed, is not encompassed within 1324A H2. I'd like to just say you're saying that the employer employee sanctioned that said forth in Hazel's and that it's not a licensing provision. Is the employer, I'm sorry, can you just say a few minutes ago? I assume that you're arguing that the restrictions on employing somebody and what happens with the business license, the discussion we've just had, that we can't authorize or authenticate the person's legal ability to be here, legal status to be here. You're saying that it's not a licensing provision? That's right. And why isn't it? Well, I'd like to start by noting that in law, and in this Court's decision in Barbara, the courts have recognized that savings clauses in express preemption provisions can't be read so broadly as to destroy the preemptive effect that Congress was trying to achieve. I want to point out that that helps you a lot with regard to landlord tenet issue. It seems to be private employees, paid party calls, and calls of actually gets implored. But how does it help you here where the business license seems to fit screly within 1324A H? Well, I think for one thing, we need to look at what Hazleton's saying here. Hazleton has said that their interpretation is that any law that makes it more difficult to do business in Hazleton is a licensing or similar to what it looks like. That really would open and does open the door to cities all over the country making their own rules and setting up their own procedures for deciding who can work based on their immigration status. But I would point out the lighter law. The lighter law. Because the same thing that make it more difficult for SIPP for businesses to do business in Hazleton if they employ early clients also makes it more difficult for everybody to do business in Hazleton. It's not part of our analysis, but it is kind of our running. These provisions make it more difficult for anybody to rent an apartment in a business there, which is how you somebody to break your leaves. But I would point out that the purpose and the structure of this Hazleton law is to be a law about early employment that happens to include among other sanctions, a licensing sanction. That doesn't make it a licensing law. If we look at the common sense understanding of what a licensing law is and this is addressed at somewhat greater length than the change to when the labor and make it brief. Those are laws that set out a series of qualifications that one needs to have in order to engage in a business. And that's not what this law does. In addition, I think it's clear if we look at what Congress had in mind. We know what Congress had in mind when it wrote this parenthetical, the seven-word parenthetical in a broad-preemptive provision. We know what they had in mind not only because of the legislative history, but because of the structure of IRCAA itself. And that's one of the things that the courts have looked at when trying to interpret these provisions. The structure of IRCAA is in the very section after establishing the employer sanction scheme. IRCAA amended the Agricultural Worker Protection Act to modify the way that farm waiver contractors were treated under federal law. And what Congress did was to basically require an IRCAA finding before allowing any action to be taken against the farm waiver contractors license. And that's precisely what they were trying to do on the state level with that parenthetical to allow for a genuine licensing scheme to... How did you find a genuine licensing scheme? What's it look like? Well, I think if you look at, for example, a liquor license or, let's say, a temporary worker provision license, right? So let's say it's a scheme that says in Hazleton, if you want to provide temp workers, you've got to advise them of their legal rights. You've got to post your rates at the door. You've got to respond to... You've got to make sure they're qualified as X or Y workers. And you can't violate IRCAA. And if you're a founder violate IRCAA, then we will revoke your license. That is the kind of law. I think that's consistent with what Congress had in mind and that is consistent with the language of that part of the... And how is... and this morning, it may be to help me out with... how is the ordinance we have here insofar as it pertains only to employers? Not the landlord is there's not the employee. This is only insofar as it pertains to employers, except for the I-9 provision, which is absent. And that may be a big exception, but I know it. It's a card for us, I can't. Except for that, how does this do anything that is not already accomplished by IRCAA? I mean, it conflicts... we talked about several of the conflicts that are additional conflicts that are having.

... How did you find a genuine licensing scheme? What's it look like? Well, I think if you look at, for example, a liquor license or, let's say, a temporary worker provision license, right? So let's say it's a scheme that says in Hazleton, if you want to provide temp workers, you've got to advise them of their legal rights. You've got to post your rates at the door. You've got to respond to... You've got to make sure they're qualified as X or Y workers. And you can't violate IRCAA. And if you're a founder violate IRCAA, then we will revoke your license. That is the kind of law. I think that's consistent with what Congress had in mind and that is consistent with the language of that part of the... And how is... and this morning, it may be to help me out with... how is the ordinance we have here insofar as it pertains only to employers? Not the landlord is there's not the employee. This is only insofar as it pertains to employers, except for the I-9 provision, which is absent. And that may be a big exception, but I know it. It's a card for us, I can't. Except for that, how does this do anything that is not already accomplished by IRCAA? I mean, it conflicts... we talked about several of the conflicts that are additional conflicts that are having... The legal inclusion that will work me through. How does it do something that is not already provided for by IRCAA? So, well, for example, it sets up this private right of action that provides for strict liability against the employer. I said take that out of the table. I'll take that out of the table. Okay, forget that. It requires employers to verify, it requires in practice, employers to verify independent contractors and domestic workers who are excluded from the verification requirements under IRCAA. It requires the use of the I-VARIFI system where Congress gave employers a choice about whether to use I-VARIFI. It penalizes employers without providing for the chore period and procedures that the I-VARIFI laws and regulations provide. And it adds new sanctions without countervailing anti-discrimination provisions along the lines that the federal government did. Are those part of the law anyhow and they're implicitly included in this law because it's contained in federal law? So, the absence of it in local law doesn't mean anything. The absence does mean something because IRCAA represents a careful balance between multiple congressional objectives. For someone engaged in the conduct that is prohibited under federal law because they discriminate on the basis of IRCAA and the prohibited conduct there. Whether or not that's a violation of the case of an ordinance, it's still illegal. It's an illegal employee IRF action under federal law. You were saying this has to be as extensive and as limited as the federal legislation in the area in order for it to survive conflict prevention? No. No, I'm not necessarily saying that. What I'm saying, because I think I've described an example of a licensing law which I think could be added without causing conflict or express prevention problems. But what I am saying is that Congress, when it created IRCAA, was trying to reduce unauthorized employment, but it was also trying to minimize the burden on businesses and on innocent workers. And it's clear, anyone who looks at the I-9 system will tell you they could have devised a more draconian way to make sure that people didn't work without authorization. But they didn't. And not only didn't they do that, they specifically set up an anti-discrimination provision scheme to balance those effects because they were very concerned that innocent workers would suffer and that businesses would suffer if they struck the balance in a different manner. And strike it and as the Supreme Court has said, it's not up to the states to choose an iron fist where Congress is chosen the velvet glove. It's not that balance was important to Congress and it's the reason that we have the meekestries from many different aspects of society here because not because those groups all agree on what immigration policy should be, but because they all have a stake in the balance that Congress is struck. And if we allow states and cities one by one to strike their own balance around the country, we're going to have a vulcanized and frankly, meaningless immigration policy. In Congress in section 115 of IRCAA, Congress said that the law should be administered uniformly and that's what that's going to be impossible if Hazelton and other cities are allowed to enact their own schemes. I want to talk for a moment. If Congress wants to stop the bulk of legislation, as you call it, they can come out very expressly and not have any licensing exception or anything like that. I mean, it'd be easier to pass another year

.. The legal inclusion that will work me through. How does it do something that is not already provided for by IRCAA? So, well, for example, it sets up this private right of action that provides for strict liability against the employer. I said take that out of the table. I'll take that out of the table. Okay, forget that. It requires employers to verify, it requires in practice, employers to verify independent contractors and domestic workers who are excluded from the verification requirements under IRCAA. It requires the use of the I-VARIFI system where Congress gave employers a choice about whether to use I-VARIFI. It penalizes employers without providing for the chore period and procedures that the I-VARIFI laws and regulations provide. And it adds new sanctions without countervailing anti-discrimination provisions along the lines that the federal government did. Are those part of the law anyhow and they're implicitly included in this law because it's contained in federal law? So, the absence of it in local law doesn't mean anything. The absence does mean something because IRCAA represents a careful balance between multiple congressional objectives. For someone engaged in the conduct that is prohibited under federal law because they discriminate on the basis of IRCAA and the prohibited conduct there. Whether or not that's a violation of the case of an ordinance, it's still illegal. It's an illegal employee IRF action under federal law. You were saying this has to be as extensive and as limited as the federal legislation in the area in order for it to survive conflict prevention? No. No, I'm not necessarily saying that. What I'm saying, because I think I've described an example of a licensing law which I think could be added without causing conflict or express prevention problems. But what I am saying is that Congress, when it created IRCAA, was trying to reduce unauthorized employment, but it was also trying to minimize the burden on businesses and on innocent workers. And it's clear, anyone who looks at the I-9 system will tell you they could have devised a more draconian way to make sure that people didn't work without authorization. But they didn't. And not only didn't they do that, they specifically set up an anti-discrimination provision scheme to balance those effects because they were very concerned that innocent workers would suffer and that businesses would suffer if they struck the balance in a different manner. And strike it and as the Supreme Court has said, it's not up to the states to choose an iron fist where Congress is chosen the velvet glove. It's not that balance was important to Congress and it's the reason that we have the meekestries from many different aspects of society here because not because those groups all agree on what immigration policy should be, but because they all have a stake in the balance that Congress is struck. And if we allow states and cities one by one to strike their own balance around the country, we're going to have a vulcanized and frankly, meaningless immigration policy. In Congress in section 115 of IRCAA, Congress said that the law should be administered uniformly and that's what that's going to be impossible if Hazelton and other cities are allowed to enact their own schemes. I want to talk for a moment. If Congress wants to stop the bulk of legislation, as you call it, they can come out very expressly and not have any licensing exception or anything like that. I mean, it'd be easier to pass another year. Well, nothing's easy to pass in Congress especially when it comes to immigration, you're on it. I think that actually the statute is clear. The way it is, it doesn't provide this kind of room for states and cities to come in and metal. And we shouldn't require an additional express statement to where there's a conflict. And that's exactly what we're talking about here. I want to go back to the express preemption in H2, which preempts any state or local on posing civil or criminal sanctions upon those who employ or recruit or refer for the employment. How does that speak to this housing and tenant law? It doesn't, Your Honor. Are you not claiming that that's not one? What the Hazelton Law does, which is a conflict, a separate conflict, a different kind of conflict with federal law, is that it would require people who the federal government allows to live anywhere in the United States to leave Hazelton. And there was some discussion about, you know, well, it's just a rental law. It doesn't bar every kind of housing. But what this court and the Supreme Court do when we look at these preemption provisions is to consider the actual practical effect of the law. So in Roe v. New Hampshire Motor Transport, which came down last year from the Supreme Court earlier this year, perhaps. The federal law there, it issued regulated motor carriers, but the state law that was claimed preempted regulated people who were shipping items in commerce. And the Supreme Court said, well, that carrier law still preempts the shipping law, because the effect of the shipping law is to make carriers lives different, to change the rules that apply to carriers. And what Hazelton is trying to do here is to say that you can live anywhere in the United States except Hazelton, that we are going to go, and based on a snapshot of your current status, determine that you can't live here. And that's not the system that Congress set up. It bypasses all of the discretion that Congress left to the executive branch and to the agencies and how to administer the statute and how to provide for relief and prosecutorial discretion. It's simply inconsistent with the structure of our federal immigration law. Is there a problem in terms of who makes the determination here of legal, I won't call it legal, legal presence, legal presence. As I understand it under one of the provisions, and I guess this is the rental provision that an appeal has to go to the, the tank and taking the field of the Magistrial District Court of Hazelton. And I guess then to the Court of Commonwealth, please under Section 7F of the ordinance here. How and maybe I should ask and I will ask Mr. Courbacker about this, but I'm trying to figure out to what extent this ordinance allows local officials to make determinations of alienage. I think it not only allows it, but it requires it. And you know, the federal laws say that the federal procedures where you have an immigration judge, you have, I know you guys are very familiar with this, an immigration judge proceeding, you know, judicial review in the courts of appeals or for other means. All of those provisions are specifically stated to be the sole and exclusive procedure for determining removable in this country. But again, what Hazelton is trying to do is set up a separate city level immigration enforcement agency that is not responsive to any of the rules, basically to most of the rules that Congress has set up. And that doesn't have the authority that Congress provided to the immigration apparatus to make those decisions

. Well, nothing's easy to pass in Congress especially when it comes to immigration, you're on it. I think that actually the statute is clear. The way it is, it doesn't provide this kind of room for states and cities to come in and metal. And we shouldn't require an additional express statement to where there's a conflict. And that's exactly what we're talking about here. I want to go back to the express preemption in H2, which preempts any state or local on posing civil or criminal sanctions upon those who employ or recruit or refer for the employment. How does that speak to this housing and tenant law? It doesn't, Your Honor. Are you not claiming that that's not one? What the Hazelton Law does, which is a conflict, a separate conflict, a different kind of conflict with federal law, is that it would require people who the federal government allows to live anywhere in the United States to leave Hazelton. And there was some discussion about, you know, well, it's just a rental law. It doesn't bar every kind of housing. But what this court and the Supreme Court do when we look at these preemption provisions is to consider the actual practical effect of the law. So in Roe v. New Hampshire Motor Transport, which came down last year from the Supreme Court earlier this year, perhaps. The federal law there, it issued regulated motor carriers, but the state law that was claimed preempted regulated people who were shipping items in commerce. And the Supreme Court said, well, that carrier law still preempts the shipping law, because the effect of the shipping law is to make carriers lives different, to change the rules that apply to carriers. And what Hazelton is trying to do here is to say that you can live anywhere in the United States except Hazelton, that we are going to go, and based on a snapshot of your current status, determine that you can't live here. And that's not the system that Congress set up. It bypasses all of the discretion that Congress left to the executive branch and to the agencies and how to administer the statute and how to provide for relief and prosecutorial discretion. It's simply inconsistent with the structure of our federal immigration law. Is there a problem in terms of who makes the determination here of legal, I won't call it legal, legal presence, legal presence. As I understand it under one of the provisions, and I guess this is the rental provision that an appeal has to go to the, the tank and taking the field of the Magistrial District Court of Hazelton. And I guess then to the Court of Commonwealth, please under Section 7F of the ordinance here. How and maybe I should ask and I will ask Mr. Courbacker about this, but I'm trying to figure out to what extent this ordinance allows local officials to make determinations of alienage. I think it not only allows it, but it requires it. And you know, the federal laws say that the federal procedures where you have an immigration judge, you have, I know you guys are very familiar with this, an immigration judge proceeding, you know, judicial review in the courts of appeals or for other means. All of those provisions are specifically stated to be the sole and exclusive procedure for determining removable in this country. But again, what Hazelton is trying to do is set up a separate city level immigration enforcement agency that is not responsive to any of the rules, basically to most of the rules that Congress has set up. And that doesn't have the authority that Congress provided to the immigration apparatus to make those decisions. I just wanted to, we've talked to, I pointed out the one of the two of the key differences between the Arizona law and this law, which is that there's no housing provision in that issue in Arizona. Yeah, he tried to, yeah, I want to try to focus you on the extent that I can on the business aspects of this case and that takes much of your time on the housing aspects or this cause of action and the right of an employee to get triple damages. Okay. I just wanted to point out that on to the extent the Arizona law relies on to canis, it relies on to canis to support presumption against preemption, the application of a presumption against preemption in its analysis. Now, first of all, the district court found that we prevail regardless of whether the presumption is applied and the third circuit has not hesitated and this is in Kolochiko. It's noted in Kolochiko and it's noted in some other cases as well that it, this circuit has not hesitated even when it applies the presumption against preemption to find laws preempted where there's conflict. And so the ultimate kind of point of the canis reference in Arizona is ultimately, I think not determinative of this case, but I think it's also clear that we're not asking the court and this court certainly need not overrule the canis in any sense. Right. Right. And that's why we wouldn't ask you to, right? But, but, but, but, but what, but what this court does need to do is also give due credence to what Congress has done because it's Congress that makes immigration policy in this country. And we can't ignore the fact that in 1986, Congress passed a law that the Supreme Court has since called a central feature of our immigration law, a law that, erka, that creates a federal employer's action system that has an express preemption provision in it that has a detailed structure that, that Hazelton's law would interfere with. Now, I guess that I listened to what you're arguing in your reliance upon a canis in the extent to which it hasn't been evaluated by, erka is that, and I think you'd agree that in the canis, the court said that local regulations of an activity or enterprise that has an impact, even a collateral or consequential impact on immigration is not by virtual that impact, a regulation of immigration. But, and then, as I know you're arguing, you're saying when you have not something that has a collateral impact on immigration, but something that seems focused on regulation, a regulatory scheme that deals with living, that deals with working, how you can get an apartment, somebody's fired, they can bring a cause of action against an employer, even though they are fired for every legitimate reason that may be, bring a cause of action for triple damages, no relation to the cause of action. Basically, because the employer, I mean, I'll be the employer, has one undocumented worker there that is beyond the canis scenario and that is an attempted, perilal or collateral immigration scheme. That's really what you're arguing in terms of preemption. We have argued that, that is part of our argument that the sum total amounts, if you look at what Hazelton has done here, it's trying to regulate immigration. We do make that argument, but ultimately, I think this court did not reach that issue, the conflicts on both the employment and the housing provisions. That may be an easy way to back into it, then the way one is to head into it. If you start taking every single one, and then you match that up against the language that I gave you earlier in 1324A, and you get down to look at something as a business license or not, it does seem to me that what they've done in terms of the employer part of it, it does look a lot like a licensing provision. And again, even if you disagree with us on express preemption, the courts still need to address the conflicts, and I think the conflicts are clear. And I think that to allow this law, again, is to allow the tens of thousands of municipalities in this country to create their own versions of the immigration law in every single municipality. And that can't be what the supremacy clause and what the Immigration Nationality Act allow. Thank you. Good afternoon. I'm going to direct the Court's attention to page 53 of the appellees, brief, or we actually list the seven conflicts in there. And one of the things that really struck me about a way to think about this was in, there's many wonderful amicus briefs filed in this case, but in change to win, which is the labor unions brief. The way they describe this is that this is not a licensing law. This is an immigration law that uses licensing as a sanction. And there's ways to regulate business

. I just wanted to, we've talked to, I pointed out the one of the two of the key differences between the Arizona law and this law, which is that there's no housing provision in that issue in Arizona. Yeah, he tried to, yeah, I want to try to focus you on the extent that I can on the business aspects of this case and that takes much of your time on the housing aspects or this cause of action and the right of an employee to get triple damages. Okay. I just wanted to point out that on to the extent the Arizona law relies on to canis, it relies on to canis to support presumption against preemption, the application of a presumption against preemption in its analysis. Now, first of all, the district court found that we prevail regardless of whether the presumption is applied and the third circuit has not hesitated and this is in Kolochiko. It's noted in Kolochiko and it's noted in some other cases as well that it, this circuit has not hesitated even when it applies the presumption against preemption to find laws preempted where there's conflict. And so the ultimate kind of point of the canis reference in Arizona is ultimately, I think not determinative of this case, but I think it's also clear that we're not asking the court and this court certainly need not overrule the canis in any sense. Right. Right. And that's why we wouldn't ask you to, right? But, but, but, but, but what, but what this court does need to do is also give due credence to what Congress has done because it's Congress that makes immigration policy in this country. And we can't ignore the fact that in 1986, Congress passed a law that the Supreme Court has since called a central feature of our immigration law, a law that, erka, that creates a federal employer's action system that has an express preemption provision in it that has a detailed structure that, that Hazelton's law would interfere with. Now, I guess that I listened to what you're arguing in your reliance upon a canis in the extent to which it hasn't been evaluated by, erka is that, and I think you'd agree that in the canis, the court said that local regulations of an activity or enterprise that has an impact, even a collateral or consequential impact on immigration is not by virtual that impact, a regulation of immigration. But, and then, as I know you're arguing, you're saying when you have not something that has a collateral impact on immigration, but something that seems focused on regulation, a regulatory scheme that deals with living, that deals with working, how you can get an apartment, somebody's fired, they can bring a cause of action against an employer, even though they are fired for every legitimate reason that may be, bring a cause of action for triple damages, no relation to the cause of action. Basically, because the employer, I mean, I'll be the employer, has one undocumented worker there that is beyond the canis scenario and that is an attempted, perilal or collateral immigration scheme. That's really what you're arguing in terms of preemption. We have argued that, that is part of our argument that the sum total amounts, if you look at what Hazelton has done here, it's trying to regulate immigration. We do make that argument, but ultimately, I think this court did not reach that issue, the conflicts on both the employment and the housing provisions. That may be an easy way to back into it, then the way one is to head into it. If you start taking every single one, and then you match that up against the language that I gave you earlier in 1324A, and you get down to look at something as a business license or not, it does seem to me that what they've done in terms of the employer part of it, it does look a lot like a licensing provision. And again, even if you disagree with us on express preemption, the courts still need to address the conflicts, and I think the conflicts are clear. And I think that to allow this law, again, is to allow the tens of thousands of municipalities in this country to create their own versions of the immigration law in every single municipality. And that can't be what the supremacy clause and what the Immigration Nationality Act allow. Thank you. Good afternoon. I'm going to direct the Court's attention to page 53 of the appellees, brief, or we actually list the seven conflicts in there. And one of the things that really struck me about a way to think about this was in, there's many wonderful amicus briefs filed in this case, but in change to win, which is the labor unions brief. The way they describe this is that this is not a licensing law. This is an immigration law that uses licensing as a sanction. And there's ways to regulate business. That's why I have to answer what I did. It seems to me you are arguing. I may get immediately to be sure if this is true or not. But you are arguing that we have to look at the totality of what's happening here in these of either the Canada's argument anyhow to determine whether or not this is a licensing law, which under the canister under the specific provision here would not be a problem would not be a legal immigration. But the scheme may suggest that this is something more than even though individual parts that may impact licensing. The scheme may suggest something much greater than that. Well, I mean, I guess there's a question as if it is a if it really is a licensing law, is it covered by that exemption in IRCA? Another way to look at it is this really isn't a licensing law. And your honor asked what would be a real licensing law, you know, regulating it. What would it look like? What would it look like? And if you look at what's really going on here, whether the totality of circumstances or the specifics of the employer sanctions provisions, they are trying to affect you with the mayor set up front and as said all along. We want to make Hazelton the toughest city in the country on documented immigrants. They want to get rid of all undocumented immigrants. That's the goal of this ordinance and they simply have latched on to a license as a sanction so they can try to fit it in under this exemption. But this isn't your traditional licensing law. I'd like to, I wasn't going to talk about this, but there seems to be some confusion about how this ordinance works. And I think this plays into why there is such a conflict in terms of the process between what Hazelton is doing and what you have at the federal system. In Hazelton, right, you get a complaint and the complaint can come from anywhere and it can be either on the employment or the housing section. Then Hazelton then goes to the employer or the landlord and says, I need identity papers again, not defined. They then supposedly take those identity papers and they send them to the federal government now. Let me digress here for a minute. There is no process set up right now as we sit here for that to happen, either legally or technologically. It was a patient's challenge. It is a facial challenge and I'll come back to that now. Hazelton has amended this ordinance multiple times we had a nine day trial where they tried to walk away from someplace. This is Hazelton's best shot. I joke with Mr. Cobock when I came in whether they were going to announce today that they've amended the ordinance yet again the way they did at trial on the first and last day. There was some discussion about about a month, particularly the judges in their clerk's room. But there is, you know, at this point Hazelton has had his best shot. We've had a nine day trial and when you're talking about Solerno issues, if you look at the cases that fall on Solerno, Solerno and Washington Grayings say that don't say that facial challenges are disallowed, they simply say they are disfavored

. That's why I have to answer what I did. It seems to me you are arguing. I may get immediately to be sure if this is true or not. But you are arguing that we have to look at the totality of what's happening here in these of either the Canada's argument anyhow to determine whether or not this is a licensing law, which under the canister under the specific provision here would not be a problem would not be a legal immigration. But the scheme may suggest that this is something more than even though individual parts that may impact licensing. The scheme may suggest something much greater than that. Well, I mean, I guess there's a question as if it is a if it really is a licensing law, is it covered by that exemption in IRCA? Another way to look at it is this really isn't a licensing law. And your honor asked what would be a real licensing law, you know, regulating it. What would it look like? What would it look like? And if you look at what's really going on here, whether the totality of circumstances or the specifics of the employer sanctions provisions, they are trying to affect you with the mayor set up front and as said all along. We want to make Hazelton the toughest city in the country on documented immigrants. They want to get rid of all undocumented immigrants. That's the goal of this ordinance and they simply have latched on to a license as a sanction so they can try to fit it in under this exemption. But this isn't your traditional licensing law. I'd like to, I wasn't going to talk about this, but there seems to be some confusion about how this ordinance works. And I think this plays into why there is such a conflict in terms of the process between what Hazelton is doing and what you have at the federal system. In Hazelton, right, you get a complaint and the complaint can come from anywhere and it can be either on the employment or the housing section. Then Hazelton then goes to the employer or the landlord and says, I need identity papers again, not defined. They then supposedly take those identity papers and they send them to the federal government now. Let me digress here for a minute. There is no process set up right now as we sit here for that to happen, either legally or technologically. It was a patient's challenge. It is a facial challenge and I'll come back to that now. Hazelton has amended this ordinance multiple times we had a nine day trial where they tried to walk away from someplace. This is Hazelton's best shot. I joke with Mr. Cobock when I came in whether they were going to announce today that they've amended the ordinance yet again the way they did at trial on the first and last day. There was some discussion about about a month, particularly the judges in their clerk's room. But there is, you know, at this point Hazelton has had his best shot. We've had a nine day trial and when you're talking about Solerno issues, if you look at the cases that fall on Solerno, Solerno and Washington Grayings say that don't say that facial challenges are disallowed, they simply say they are disfavored. And the reason, for instance, in Washington Grayings or in the voter ID case, which is some Crawford versus Marion Illinois, the reason those cases went down and those challenges were rejected is because in fact there were facts at issue that had not been explored. I mean, you couldn't decide what, what burden, what standard you apply in the voter ID case because you didn't know what the burden was in Washington State Grange. There was a question about how confused were voters going to get unless you knew what the ballot was going to be and what the election sport was going to do. You couldn't figure that out. In this case, you do not have any uncertainty about what the facts are going to be. I mean, we think the ordinance is clear or the eighth or ninth re iteration of the ordinance as we're looking at it now is clear. To the extent there's even any doubt we went through discovery and we had a nine day trial where all of that evidence was presented. So we have a very good idea of how this ordinance could work. But coming back to the procedures, assuming that there was a verification process that Hazelton could use, which I think under Solar now is an appropriate assumption to make, although as a factual and legal matter, that system doesn't exist. But assuming that Hazelton could get identity documents electronically or some other way send them to Washington and then Washington comes back and says, yes, this person has work authorization or doesn't or this person can is authorized for benefits under saved system or not. What then happens is Hazelton goes to the employer, goes to the landlord and says, you got a problem. You're violating the ordinance and you can cure this now by either getting rid of the employees or you're going to be sanctioned. And then if you don't like it, you can basically sue us in some after the fact, tort process, which clearly is not enough. Under the federal system, if you go to for enforcement of IRCA, for enforcement of an IRCA violation, there are a whole system of regulations. If you go to seat 28 CFR, part 68, you get full trial type proceedings where you have a right to counsel, you have a right to cross examine witnesses, you have a right to present evidence. None of that takes place in Hazelton. The Hazelton decision is simply made based on some database report. And that is a conflict and as a matter of procedural due process is completely insufficient. They have a right to file suit, right? I'm sorry, you don't have a right to bring it to court. They have presumably they have a right to file a 1983 action and come into federal court if there's a federal claim. But the two have a state remedy too. A couple of points on that, you know, question whether it's truly a remedy if it's brought to a Pennsylvania district magistrate. And the issue in there may be whether or not the tenant or the employee is authorized to be here in this country. And you're going to ask say that that district magistrate can make that determination. And Pennsylvania, your honor district magistrates don't even have to be lawyers here. So query whether you could do that. But the more fundamental problem for a procedural due process perspective is that you have to have pre deprivation. Process. I mean that is the default you can get around that for some kind of extraordinary situations or if you have a perat versus tailor type of situation where it's not clear

. And the reason, for instance, in Washington Grayings or in the voter ID case, which is some Crawford versus Marion Illinois, the reason those cases went down and those challenges were rejected is because in fact there were facts at issue that had not been explored. I mean, you couldn't decide what, what burden, what standard you apply in the voter ID case because you didn't know what the burden was in Washington State Grange. There was a question about how confused were voters going to get unless you knew what the ballot was going to be and what the election sport was going to do. You couldn't figure that out. In this case, you do not have any uncertainty about what the facts are going to be. I mean, we think the ordinance is clear or the eighth or ninth re iteration of the ordinance as we're looking at it now is clear. To the extent there's even any doubt we went through discovery and we had a nine day trial where all of that evidence was presented. So we have a very good idea of how this ordinance could work. But coming back to the procedures, assuming that there was a verification process that Hazelton could use, which I think under Solar now is an appropriate assumption to make, although as a factual and legal matter, that system doesn't exist. But assuming that Hazelton could get identity documents electronically or some other way send them to Washington and then Washington comes back and says, yes, this person has work authorization or doesn't or this person can is authorized for benefits under saved system or not. What then happens is Hazelton goes to the employer, goes to the landlord and says, you got a problem. You're violating the ordinance and you can cure this now by either getting rid of the employees or you're going to be sanctioned. And then if you don't like it, you can basically sue us in some after the fact, tort process, which clearly is not enough. Under the federal system, if you go to for enforcement of IRCA, for enforcement of an IRCA violation, there are a whole system of regulations. If you go to seat 28 CFR, part 68, you get full trial type proceedings where you have a right to counsel, you have a right to cross examine witnesses, you have a right to present evidence. None of that takes place in Hazelton. The Hazelton decision is simply made based on some database report. And that is a conflict and as a matter of procedural due process is completely insufficient. They have a right to file suit, right? I'm sorry, you don't have a right to bring it to court. They have presumably they have a right to file a 1983 action and come into federal court if there's a federal claim. But the two have a state remedy too. A couple of points on that, you know, question whether it's truly a remedy if it's brought to a Pennsylvania district magistrate. And the issue in there may be whether or not the tenant or the employee is authorized to be here in this country. And you're going to ask say that that district magistrate can make that determination. And Pennsylvania, your honor district magistrates don't even have to be lawyers here. So query whether you could do that. But the more fundamental problem for a procedural due process perspective is that you have to have pre deprivation. Process. I mean that is the default you can get around that for some kind of extraordinary situations or if you have a perat versus tailor type of situation where it's not clear. I mean it's an unauthorized toward you really couldn't have any kind of process. That's not the situation here. And as this court said in Alvin versus Suzuki in 2000, no matter how good the post deprivation process may be, that doesn't cure your failure to provide pre deprivation process. And frankly as there is no pre deprivation process under this ordinance, even as it may have been explained and tweaked during the 9-day trial, I would point the court to page A1478. And this is Mayor Barletta's testimony. And I'm going to quote question. So the city of Hazelton does not provide a hearing to either the landlord or the tenant answer correct end quote. And the two preceding pages is discussion about how this enforcement scheme for housing is identical to the enforcement scheme for employees. So the bottom line is there is no hearing as to whether or not the person in order to cure that the landlord has to bring some action against the tenant at which time there has not yet been a deprivation because the tenant is in there until the eviction process is actually infatuated. But let's pull back here and look at the dynamics of how we even get to that point. So there is a complaint made about the tenant and the tenant doesn't know any of this is going on because there's no requirement of notice. So the reason is the best that Hazelton could do a trial is to say that we would attempt to give notice. And that clearly is insufficient when you're talking about deprivation of housing in there. I'm sorry Ryan the question was again. No the question of due process is always what this is due and if the tenant is going to get noticed before the eviction because of the action to quit the premises of the eviction action. So why wouldn't that be the kind of notice that would be in these circumstances and I'm sorry. So so then you get this complaint and then this this supposed verification system comes back and tells the landlord that this person is undocumented or we don't have any evidence that this person has lawful status. So as Hazelton then goes to the landlord and says you got to get rid of this guy because if you don't get rid of this guy then there's draconian penalties which is basically you can't be a landlord anymore. You can't rent to anybody even if there's people here who are who are authorized. So then the landlord's the the process here supposedly is for the landlord to file eviction proceedings in I guess it's magistrates quarter and common police court. Well if magistrates court and then it goes to appeal to the right but but that is between the landlord and the tenant right so and you know you have basically an out well kind of situation here with tenants he has you do with employment. If the landlord says you know I want to get rid of you for whatever reason they can do that the culprit in all this is Hazelton which is not part of those proceedings. So you know what really needs to happen is there needs to be a system set up whereby the landlord and the employer can contest in a hearing what Hazelton has now said you have to do get rid of the employee or the employer. And that doesn't exist and coming back to judge silers question you know can't you file a lawsuit whether it's in district justice court or bring a section 1983 action or there may be other remedies after the fact the two Supreme court cases that I would direct the court to our Logan versus Zimmerman brush company and zinnerman versus Birch and in both of those cases the Supreme Court said you've got to distinguish the process that's provided by the agency from sort of post depravation toward and other judicial remedies that may be available and those are simply inadequate. I want to come back now to maybe where we where your honor suggested we should start which is with with standing and and salar now let me start and I guess we've talked a little bit about salar now I'm happy. I'm going to answer other questions and I will note on salar know that as I read their briefs and the arguments that they made below they did not raise a salar no question on either preemption or section 1981 or any of the other claims they're pre their salar no argument seems to be limited to procedural due process so I would argue the fact that they haven't raised that below that it's waived at this point. I think the problem with Hazelton's argument is that they confuse the ultimate violation of the ordinance with whether or not there's injury in fact and injury in fact is really just impact you don't I mean you know I think there's sufficient evidence in the record to support judge one lays conclusion that in fact these people were economically harmed the landlords had trouble renting. I think the what his concern was there is a concern from their perspective that the record reflects that the trouble for renting was before and since there's an injunction be straining enforcement of the ordinance now they can't be any loss in income can't be I'm not sure except that but any loss can't be because of this ordinance right but I but again I think that the problem there's two problems with that one is they're confusing injury in fact with a violation of the law of violation of the constant. The court is a very important institution improving that as the Supreme Court said in Luhan you know you should not elevate the standing threshold to something greater than showing that there's a violation of the of the ordinance I mean what we're looking for here is there some impact and aside from the economic harm which I would suggest is supported but that is a little bit speculated by what admit but under panel it says you only have to show that there's a probability that the person is going to be harmed but you don't have to need to get to the economic harm because there is certain harm inflicted on all of the plaintiffs in terms of the any landlord in the city could just say well I've had people come by and they won't rent from me and it's worse than used to be well I don't you're on you're on that's not the record that we have in this case in this case it's almost the record well it's it's I mean I would I would suggest that it's a case that he had some people came by and told him about the law and they didn't come by anymore they didn't rent from me and it's sort of but I think that I think it's a little well he said it happened multiple times and in fact both of the landlords said that that happens but three times make it more standing than twice again I think you know that's a question of fact and and you're looking the review is clear error and I would suggest that judge monthly and please supported that fine but the court doesn't need to go there the court doesn't need to find that there's economic harm because if you are an employer this ordinance requires you to check employees documents and look at the facts of this case the first of the court would not require either Mr

. I mean it's an unauthorized toward you really couldn't have any kind of process. That's not the situation here. And as this court said in Alvin versus Suzuki in 2000, no matter how good the post deprivation process may be, that doesn't cure your failure to provide pre deprivation process. And frankly as there is no pre deprivation process under this ordinance, even as it may have been explained and tweaked during the 9-day trial, I would point the court to page A1478. And this is Mayor Barletta's testimony. And I'm going to quote question. So the city of Hazelton does not provide a hearing to either the landlord or the tenant answer correct end quote. And the two preceding pages is discussion about how this enforcement scheme for housing is identical to the enforcement scheme for employees. So the bottom line is there is no hearing as to whether or not the person in order to cure that the landlord has to bring some action against the tenant at which time there has not yet been a deprivation because the tenant is in there until the eviction process is actually infatuated. But let's pull back here and look at the dynamics of how we even get to that point. So there is a complaint made about the tenant and the tenant doesn't know any of this is going on because there's no requirement of notice. So the reason is the best that Hazelton could do a trial is to say that we would attempt to give notice. And that clearly is insufficient when you're talking about deprivation of housing in there. I'm sorry Ryan the question was again. No the question of due process is always what this is due and if the tenant is going to get noticed before the eviction because of the action to quit the premises of the eviction action. So why wouldn't that be the kind of notice that would be in these circumstances and I'm sorry. So so then you get this complaint and then this this supposed verification system comes back and tells the landlord that this person is undocumented or we don't have any evidence that this person has lawful status. So as Hazelton then goes to the landlord and says you got to get rid of this guy because if you don't get rid of this guy then there's draconian penalties which is basically you can't be a landlord anymore. You can't rent to anybody even if there's people here who are who are authorized. So then the landlord's the the process here supposedly is for the landlord to file eviction proceedings in I guess it's magistrates quarter and common police court. Well if magistrates court and then it goes to appeal to the right but but that is between the landlord and the tenant right so and you know you have basically an out well kind of situation here with tenants he has you do with employment. If the landlord says you know I want to get rid of you for whatever reason they can do that the culprit in all this is Hazelton which is not part of those proceedings. So you know what really needs to happen is there needs to be a system set up whereby the landlord and the employer can contest in a hearing what Hazelton has now said you have to do get rid of the employee or the employer. And that doesn't exist and coming back to judge silers question you know can't you file a lawsuit whether it's in district justice court or bring a section 1983 action or there may be other remedies after the fact the two Supreme court cases that I would direct the court to our Logan versus Zimmerman brush company and zinnerman versus Birch and in both of those cases the Supreme Court said you've got to distinguish the process that's provided by the agency from sort of post depravation toward and other judicial remedies that may be available and those are simply inadequate. I want to come back now to maybe where we where your honor suggested we should start which is with with standing and and salar now let me start and I guess we've talked a little bit about salar now I'm happy. I'm going to answer other questions and I will note on salar know that as I read their briefs and the arguments that they made below they did not raise a salar no question on either preemption or section 1981 or any of the other claims they're pre their salar no argument seems to be limited to procedural due process so I would argue the fact that they haven't raised that below that it's waived at this point. I think the problem with Hazelton's argument is that they confuse the ultimate violation of the ordinance with whether or not there's injury in fact and injury in fact is really just impact you don't I mean you know I think there's sufficient evidence in the record to support judge one lays conclusion that in fact these people were economically harmed the landlords had trouble renting. I think the what his concern was there is a concern from their perspective that the record reflects that the trouble for renting was before and since there's an injunction be straining enforcement of the ordinance now they can't be any loss in income can't be I'm not sure except that but any loss can't be because of this ordinance right but I but again I think that the problem there's two problems with that one is they're confusing injury in fact with a violation of the law of violation of the constant. The court is a very important institution improving that as the Supreme Court said in Luhan you know you should not elevate the standing threshold to something greater than showing that there's a violation of the of the ordinance I mean what we're looking for here is there some impact and aside from the economic harm which I would suggest is supported but that is a little bit speculated by what admit but under panel it says you only have to show that there's a probability that the person is going to be harmed but you don't have to need to get to the economic harm because there is certain harm inflicted on all of the plaintiffs in terms of the any landlord in the city could just say well I've had people come by and they won't rent from me and it's worse than used to be well I don't you're on you're on that's not the record that we have in this case in this case it's almost the record well it's it's I mean I would I would suggest that it's a case that he had some people came by and told him about the law and they didn't come by anymore they didn't rent from me and it's sort of but I think that I think it's a little well he said it happened multiple times and in fact both of the landlords said that that happens but three times make it more standing than twice again I think you know that's a question of fact and and you're looking the review is clear error and I would suggest that judge monthly and please supported that fine but the court doesn't need to go there the court doesn't need to find that there's economic harm because if you are an employer this ordinance requires you to check employees documents and look at the facts of this case the first of the court would not require either Mr. Luzano or Mr. Espinal to check documents of the rougher that Mr. Luzano needs to hire to fix his roof or the nutrition or Joe the plumber of that Mr. Espinal but as as a I mean it is certain that this is going to happen that and and anybody who owns any kind of housing can say the one thing that's certain beyond death and taxes is that things are going to break in your house and you got to get them fixed when they hire that individual they have to check their pay paperwork to make sure they're not undocumented there is nothing uncertain or speculative about that same with you've got both Mr. Luzano Mr. Espinal testifying that in fact they have vacancies they are trying to fill their apartments any tenant that comes in they have to check for papers there is no uncertainty or speculation about that under the registration ordinance tenants need to register and it's a ten dollar fee that is certain in landlord's have to register and I believe there's a five dollar fee so you know as I think Judge Nygard knows from the first pit news case I mean the the determination about whether they're standing as separate from whether or not there's a violation of due process or a violation of preemption all you have to show is that there is some impact some injury in fact on these individuals not that in fact their rights have been violated and we've amply done that in this case and beyond that there's a clear error standard of review. What do we do with the severability clause that and there's a severability provision in the ordinance there's a statement in the brief and last but your callback about this that argues that the one section the private cause of action session section is a quote necessary component of the ordinance would suggest that the way the our township is in court is interpreting it it's not really several bullets an entire it's not right you asked earlier about an entire scheme that seems to be and a statutory scheme we have to look at whether there are other provisions what do we do from your perspective it's what is the severability clause mean given the statement in the brief. Well I think given the fact that Hazelton has in fact admitted that that separate private cause of action is so important to the to the scheme and I just I cannot imagine how the court could find a maybe I shouldn't say that I court could find that constitutional but that goes down that I think the entire at least employment section and maybe to be fair to Hazelton since that provision is not related to the harboring or housing section of it if you find that is unconstitutional it only knocks out the employment side of the ordinance but we think there's other good grounds for for knocking out the housing section but if I could just take a couple of minutes because this is a very very important cases as the court has recognized and while the courts focuses properly on Hazelton and the ordinance this is truly a national case and I think it is important to look at this case both from that national and a historical context which is what the Supreme Court has instructed needs to happen when you have these preemption cases and there are two significant consequences that will result of this court reverses and the first I'm going to call the patchwork problem Hazelton was the first city in the country to pass one of these ordinances but it was by no means the last and even though it may be a model all of these laws are a little bit different they may have a similar goal but they operate in different ways so Hazelton is different from West Hazel Township which is right next store which is different from Scranton that has nothing it's different from Arizona it's different from Escondito California which is the record about how many at least at the time of trial how many Townships have ordinances like this I don't know if it's in the record but I would direct the courts attention to the brief submitted by the US Chamber of Commerce where they do go through the ordinances in there and they talking in some specifics about how at least the ordinances and statutes in the cases that are in court which I think the court can take judicial notice of how they different there's different verification systems there's different enforcement scheme so all of these are different in some way and there's a reason I would think that you get both the US Chamber of Commerce and major labor unions changed to win filing a court and make this case on the same side and the reason is that if this court reverses it's going to send a green light to municipalities all across the country and you are going to have a hopelessly fractured system of laws dealing with both employment and with housing. The second consequence of this court reversing is a word that Mr. Jaguar used initially and I'm going to call that Balkanization there are two excellent whether all Exxon Amika's briefs but two of them that take it all over the room on your side. Well, I think our side are a little bit stronger your honor back to a lot of the law. Thank you for that opening but I would direct the court's attention to the brief submitted by the interfaith groups and by the civil rights organizations and basically they say those who forget history are doomed to repeat it. We have had many eras in this country where we've had large numbers of immigrants coming in and exactly how would that write. We have these things called opinions and the scores that somehow be tested to legal precedent and I've been known to quote Shakespeare and things not in the opinions majority opinions but how would that write where we take as a basic tenant of the opinion that those who forget history of boundary repeat it. Well, you know, I think it's looking at the reality of what's going on here and throughout history when you've had large migrations coming in there has been a backlash, there has been nativism and what's going on in this case. I mean, look at these ordinances. They were passed and this is all in the record. They were passed with no study, with no supporting data. The mayor said we don't need data. We know what's going on here. Is that on the record? That is absolutely in the record.

Of at Alvres is city, er, he's involved much Jar is going to say there's There's so many issues to try to keep this as organized as possible. Maybe we should go through them in some kind of larger order. Obviously, standing should be off because there's no standing. You don't have much business. We can't conduct any business today. And then it seemed to me it is to make sense to hit preemption for the same reason and then do process and the variations of that. The anonymity issue and then we can get to the 1934 and the police fire was never decided by the district court. But we can touch on that if you want to. What's the introduce yourself? Yes, mate. Please the court. My name is Chris Cobach, representing the Pellant City of Hazleton. With the courts leave, what I'd like to do is spend 20 minutes first arguing these issues and then reserve 10 minutes for a bottle. That's fine. And we also just mentioned it because my guess is I don't normally pay straight attention to all I mean, particularly case of this magnitude and the case in our which is normally we only do that in cases of cap on habeas and fields. But if anyone needs a break during the course of this and it may well be that will be to the one need of breaking me. That's if anyone needs a break just the council just raise your hand and nod and I see it. Hopefully I see it. A book called we've been so don't feel at all like you know, some proceedings or feel all intimidated by doing that just let us know you need a break and got a break. Well, your honor. I'm the appeal principally concerns Hazleton ordinance and so you did give your name right? Yes, Chris Cobach. I was just saying it has the appeal principally concerns two part the ordinance principally contains two parts and that is a book that will come back up the ordinance is ordinance 2006 dash 18 as amended by 2006 dash 40 and when I say the ordinance or the IRA that's what I'll be referring to and because that the the names are some we've got Irka we've got era and erro and maybe helpful to refer to the federal if you were talking about Irka let's go like the federal statute. And Errira is the other federal statute of use but we're then saying not just that we're saying Errira when we say the Hazleton ordinance and or it would be the federal legislation and Errira could then I hear Errira I know you're not talking about Errira but you're talking about the federal legislation. All right, your honor. I would agree with the ordinance. The ordinance essentially has two halves as you know an employment half which bars an employer from knowingly employing an unauthorized alien and imposes the consequence of a suspension of business license and then the harboring half which bars a landlord from knowingly or with reckless disregard harboring an illegal alien and an apartment. Now before I proceed down the list of issues that you mentioned Judge McKee what I'd like to do is notify the court of two recent opinions that came down after briefing and then go straight down the issues as you described them. The first was the US Supreme Court case of Washington State Greens versus Washington State Republican Party which was handed down in March after the first brief was filed and the second is the ninth circuit case of CPLC versus Napolitano which just came down last month in September. First Washington State Grange in that case the Supreme Court held in a seven to decision. I had a opposing council I had noticed of this. Yes both are covered in our reply brief and in a 28. There in that case in Washington State Grange is a Supreme Court handed down decision reaffirming the Solerno standard from United States versus Solerno which is the standard that controls all facial challenges. The court said quote the plaintiff in a facial challenge must establish that no set of circumstances exists under which the act would be valid. Now the district court below aired by not even mentioning the Solerno standard much less applying it. Now it depends on the Solerno to some issue about the viability of Solerno. Right and appellys note this they say in their response brief that the Solerno standard is in doubt and that's why the Washington State Grange case is so critical because the they evidently didn't know that it came down right about the time they were writing their brief but the court came back in Washington State Grange and said in all in all facial challenges the Solerno standard applies and the court said this in determining whether a law is facially invalid we must be careful not to go beyond the statute's facial requirements and speculate about hypothetical or imaginary cases end quote that's 128 Supreme Court for 1190. Now the reason this is so important for this particular case is the district court's analysis of the due process question and most of its analysis of the preemption question everything except the express preemption part is based on hypothetical cases hypothetically if an alien were applying for asylum hypothetically if an alien were under temporary protected status none of these are based on actual plaintiffs before the court that is a critical. If it's assumed that understanding is trying to standard challenging everyone's I think you're challenging both all the association standing in the individual plan is standing let's assume that we find that there is at least one plaintiff be an associational plaintiff or an individual plaintiff with standing and the question asked that we don't the answer to him didn't. It's time to throw a look at it if someone has standing such as we have our ordinances that you with 10 different provisions and there's currently standing to challenge two provisions in statute. So there's no article through issue. It's just standing to challenge a provision of the statute. Can the person with standing there by along as that exercise article be power challenge the statute the entire statute for other provisions in the statute which may not go to the precise issue in which the standard the answers know your honor and we did cite this in our first brief that their Supreme Court precedent establishes that you have may have standing to bring specific challenges for example. The case of landlord. Let me get that for you in the in my rebel arguments a landlord for example wouldn't have standing to say that hypothetical over claim discrimination that was one of the claims rejected by the court below but let's say that the equal protection clause were still here. A landlord would not be able to say I am being denied a tendency because of my race and my ethnicity so you have to give this more and we're kind of sliding issues but here there's more in terms of a landlord standing if the landlord is standing and just being denied and I agree your honor each plaintiff if they have standing has a set of issues that they could have standing for a reason but none of them has standing to raise all of the issues the second case I wanted to mention is CPLC versus Napolitano and that stands for Chicano's Polo Caza that was handed down on September 19th and not in the ninth circuit and that is the only other circuit that has addressed a case precisely like this one that was an Arizona law which contains provisions identical to this law that were some of the same drafters involving in drafting goes well there's a recall that is here there's an issue about the I-9 form and the extent to which there may be a preemption here because the his or her ordinance does not require an exemption or safe herb if you will for the employer relying upon I-9 form it's a recall the Arizona statute and the Chicano case did have that kind of version also the circuit didn't discuss it but basically the same template of challenges were brought by the plaintiffs in both cases and the 9th circuit you're right that there is a slight difference as to whether or not an I-9 form offers a safe harbor and whether the state what we argue that Hazleton has no obligation under preemption theory to mirror a safe harbor as long as the ordinance is within the concurrent enforcement and I'll get into that doctrine is it does not penalize any conduct that is that is not penalized under federal law but the Arizona law issue actually went farther than the Hazleton law in the Hazleton ordinance the Arizona law issue not only imposed the same penalties of a loss of business permit for an employer who knowingly hires on authorized aliens it also required every business in the state this is very much in the news recently every business in the state to use the e-verified system and that's something that a police complain about saying that it might be conflict prompted the Arizona statute went further said every business has to use it was the Hazleton ordinance only says you get a safe harbor if you use it and it's encouraged the CPLC case the 9th circuit held unanimously that federal law not only allows you to mandate either or encourage either or but that is consistent with the intent of Congress to maximize the use of e-verify and that is found at page 130777 through 7-8 in the CPLC opinion what does Arizona provide that every the Arizona state has to use what the e-verify system which is not mandated by Hazleton it merely gives a business in Hazleton safe harbor and so they're encouraged use it in Hazleton but not mandated there's also a circumstance of a business as a repeat offender in Hazleton then they could be mandated which by the way is exactly what the federal government does one of the ways this is on the employment part this is on the employment half yes this is on the employment half of the Hazleton ordinance so the another aspect of the CPLC opinion which again goes through all of the preemption arguments and all the due process arguments on the employment side of this case another aspect of it's very important has to do with the guiding Supreme Court precedent of DeConis versus becah that was the last time the Supreme Court spoke about immigration preemption in 1976 now at the district judge in our case did in this case did district judge set aside the holding of DeConis that there is no field preemption field being one of the two categories of implied preemption and the district judge said we don't think we don't think DeConis is good law anymore it's 32 years old and Urkha the immigration reform control act of Congress has passed in 1986 we think that now occupies the field and so therefore we are not going to hold ourselves to the Supreme Court precedent of DeConis versus becah the ninth circuit performed the same analysis and rejected that holding and the ninth circuit furthermore said we believe that they're the continuing vitality of the conis is clear and that's found at 1307-4 of CPLC and that's very important because one could argue that a district court or any inferior article three court should wait for the U.S. Supreme Court to decide when a holding of the U.S. Supreme Court is no longer good law but again this CPLC- The Supreme Court has said that in fact is the case the Supreme Court has told us that until they decide that it's been overruled it's still a law correct your honor and while we're on the topic of DeConis I do want to mention one thing about that DeConis sets the standard for all cases involving implied preemption claims concerning immigration under DeConis there are only three ways that implied preemption can occur. If the state or local ordinance is a regulation of immigration which is defined very narrowly to mean a regulation of who can come into the country and who can't and no one alleges that this is what Hazel and Strangler. In the conditions under which they can they can remain. And the conditions under which a legal entrance can remain. And Hazel and Strangler does not define conditions under which legal entrance can remain only illegal. Secondly, if Congress expressed the manifest purpose of fully occupying the field and outsting the states from the field and thirdly if there is a conflict with the full purposes objectives the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. And that's page 363 of DeConis. Now the DeConis Court left us a clue about field preemption though. It said field preemption will not occur unless there is a complete outstrip. The exact words from DeConis at page 357 is only a demonstration that a complete outstrip state power was the clear manifest purpose of Congress would justify that conclusion and code. End quote. The district court ignored the words complete outstrip. What about the February? I know you want to finish your field preemption and also. And so far as I can apply DeConis to this case and I agree with you. I think it does. And we haven't conference this office. So whatever I say, it's me. It's not. It doesn't indicate anything about the holding of this panel yet. Or the court acting to the panel. But the kind of did seem to indicate the extent to which something which facially impacts immigration is a regulation of immigration. And that would be very helpful for the purposes of the analysis. Well, with respect to your honor, DeConis actually said that a law affecting immigration is not a regulation. That's exactly what I'm sorry. Oh, I'm sorry. I didn't hear the nonsense. Yeah, but here we have an express preemption provision. Right. And it's going to get into an issue about whether or not this is a licensing or similar law or something beyond that. And I think maybe you're going to be a bit of it is something beyond the licensing provision wouldn't the specific preemption provision in. Or the federal statute then state that this is a exemption. Be a express. Actually, your honor. It's a little bit broader than that. The way that the orca provision is phrased. It says sanctions, civil or criminal sanctions other than licensing or similar laws. So local laws that do not impose sanctions would not be preempted. Only sanctions that are not within the predical. Right. So for example, a local law that says you can't withhold this kind of salaries paid to an illegal worker from your local income tax. That would not be a sanction. That would just be another kind of law. Or a law mandating you verify, for example. Well, no, no. I'm not sure about the first example. We're not sure whether or not that would be a sanctioned law. Sure. But we could speculate about various hypotheticals. So the point is only if it's a sanction is it preempted, but it's not preempted if it's a licensing law. Now the CPLC court, the ninth circuit, went through this analysis with exacting precision. It said clearly this is a licensing law. It's denying when a person can have a license. And the argument that was made by the plaintiff since CPLC is identical to the arguments by the plaintiffs here. And they said, well, there's a House Committee report. One of four committee reports. Only one mentions this provision. And in that House Committee report, there is a suggestion. If you squint your eyes and you read it just the right way, you could read it as saying that that means you only can impose this licensing sanction after a federal judgment has occurred. Well, that wouldn't make sense because the only actor named in either the committee report or in the statute is a state and local entity. There's no discussion of any federal actor doing anything before a state may be triggered before the action of the state or the opportunity of a state can be triggered. The CPLC court rejected the exact same argument that they are advancing here. So I think it's clear that DeConno supply is unless there's a complete ouster. And the ninth circuit came to that same conclusion. But before I go to standing, I guess we're kind of doing this in reverse order. Let me, while we're on the subject of preemption, let me talk a little bit about conflict preemption and then close this first part with standing. Now, with respect to conflict preemption, I will let the CPLC decision speak for itself. And I think it adequately addresses the employment half of the ordinance. But what about the harbouring half of the ordinance? Now, since there is no express preemption claim and there is no field preemption claiming it's harboring, they have to say that there's a conflict with federal law. Now, what the district court failed to do is apply the correct standard for conflict preemption. The DeConno score said you must show that Congress unmistakably ordained that statues of this type cannot occur unmistakably so ordained. And then in 12 versus Marano 48, 458 US one, the Supreme Court came back and said, you have to show strong evidence that Congress intended to preempt. You can't hypothetically dream up situations. You have to show Congress intended to preempt this kind of thing. And that they have not done. The plaintiff has not presented the evidence and the district court has not shown it. Instead, what the district court did is the district court invented its own congressional objective, not based on any congressional statute. And that was a congressional objective of avoiding excessive enforcement. And this is founded page 527. I think you'd agree that under the congressional scheme, you can have someone who was here illegally, but yet is not necessarily in a situation where they have no right to remain. No legal right to remain. The district court hypothesized that they're might and these again violate the Salarino standard, but you're right. The district court hypothesized, well, let's imagine cases where someone is here legally, but still are here illegally, but still has the right to remain. And thought about a person seeking asylum who has a pending application, a person who's granted withholding of removal. There are several problems. One is that they violate the Salarino standard. No such person has been presented. It's a facial challenge. You can't even discuss those. But suppose that we did have planness of that nature in the case. The other problem is all of those categories are actually categories of aliens whose presence is now lawful. Federal law stipulates in each of those cases where your status changes from unlawful to lawful. And so the city of Hazelton does not make its own judgment. Well, if the even though and maybe the Salarino for cause is inquiry, I think it would close with that. Even if you just say someone comes in from Afghanistan on a visa visit and they're fleeing the Taliban there, they get a visa visit to come, a visa, a visitor's visa to come. And they're allowed to be here for six months. They stay for seven or eight months, but they would have a clear asylum claim for where to be raised. Under the year scenario, and I understand this is really flunting. So, so I know, but in terms of the principle of health, under the year scenario, they would have no right to remain. It seems that under the federal immigration law, they're not necessarily for close of the opportunity to present the argument that they have a right to remain in an asylum or withholding of removal or a cat application. And if they're, if they have the opportunity to present that, I guess my inquiry, my problem is, would they live while they're waiting to make that presenter? Or after they follow the asylum petition? Where do they obtain shelter? What do they live? Two responses, Your Honor. First of all, a person in that scenario, actually the status is legal while they're here on their B visa for temporary visit, let's say. Their status becomes illegal if then they let the visa expire of the union. Seven months and seventh months. And then at some point, their status comes back to legal if they are granted asylum. Now, other circuits have been removed. If they're not in the room, once they're granted asylum, there's no issue. Well, other, other courts have addressed exactly this issue. Most specifically, the 10th circuit in the Aton D case. And the 10th circuit says that the person is unlawfully present until the federal government grants the asylum claim. Also, US versus Lucio in the 5th circuit, same conclusion. And so the, there is no such thing as the, as what the appellees suggest of people who status is both lawful and unlawful at the same time. Every other circuit has recognized that you pass, you hit a point and then your status may change. Would there be any, any plan that was either buying preemption or buy the concept of liberty embodied in the due process clause, whatever hand that you put on it? Would there ever be a point beyond which a township could not inflict burden upon the person's presence? Rental is one we have in this case. What about applying food, could hazel, and buying food, could hazel, and act in ordinance and says that in order to purchase food, you have to show food anybody in the township. Before you can purchase food from a grocery and before the grocery can sell food, there has to be demonstration or proof of eligibility to be present. Well, you're on that raises an interesting question because that would be a contract sale of something to someone who's unlawfully present. Now, that would raise a big question because you'd be, you've been in that situation. You'd probably, this would be more of a 14th amendment claim because then the, the plaintiffs would say, well, we are all citizens need to eat, all aliens need to eat. And you're imposing a hurdle before we're allowed to purchase the food and that hurdle probably doesn't meet the compelling public interest standard. And you would go to strict scrutiny, I think, in a case like that. What about right to shelter? Well, here, they're not actually denied the right to shelter. They're denied the rental accommodations, but they can certainly purchase accommodations. They can stay at a hotel. They can stay with friends. There's, there are all kinds of ways that they can obtain shelter or they can stay outside the city limits of hazel, of course. But there are all kinds of ways they can obtain shelter. And the district court never even suggested that they would have a fund, that this would be a 14th amendment fundamental rights claim, burning the right to shelter. Thank you for wondering how far you could take this kind of an ordinance. We can't do it on the household thing. We'd easily say that no person can purchase property unless they can show the same kinds of things that someone has. It raises an interesting question, your honor. Or will you summon a tellroom? My answer would be that at some point with some of these hypothetical denials of things, you'd be talking about fundamental rights and that would trigger a 14th amendment claim. The other thing we have to remember, though, is that federal law on Title 8, section 1621, denies, requires every state to deny public benefits, every state in every city, to deny public benefits to aliens, and then it gives this long list of what constitutes a public benefit. So right now, a lot of things, including housing assistance and food assistance. The housing assistance has been that housing. Correct. Our deni are required to be denied to illegal aliens. Now you want me to get the standing. I know there's only a minute left of my first 20, so let me just quickly address the standing issues. We don't even need to get to any of these complicated questions because the plaintiffs have not shown that they have a specific individual who has standing. Now the main problem is a constitutional standing. They haven't met prong 2 of the Luhan test, which is that you must show that there is direct traceability from the government action to the injury suffered. With all of the plaintiffs, the reason they fail prong 2 is because they fail at the Supreme Court has said in Luhan and its predecessor cases, you cannot have the intervening actions of a third party not before the court. In other words, if a landlord says, I'm not going to be able to rent as many accommodations in the future. The landlord is speculating that someday, illegal aliens will come and rent to him. Not a landlord say they're currently renting illegal aliens. Someday someone will come and rent from him, and then he's speculating that another third party will show up. And that's a resident of Hazelton who will complain and trigger the enforcement process. But the burden on not just aliens, the every citizen of Hazelton, of getting an ice cream that was on the shoulder, the Truga, John Doe 1357, are all residents of Hazelton. I think the record supports that. The record supports that the named plaintiffs are residents of Hazelton. There are a lot that we don't know about the John Doe's and indeed questioning was severely restricted during the positions. For example, John Doe number one plaintiffs will allege that his status is uncertain. During the positions he did volunteer that he thinks he already has a lawful permanent resident card from the federal government. And so it appears he's a green card holder and you would not be injured in any way by the statute. But if we say not an injured, if we will be everybody under this has to obtain a permit, ten to occupier a permit. Unless we're a residency permit. And so anybody who's over the age of 18, even if they're looking at home, has to go down to the government office. Who will they are? They have a right to be there before they can rent on the park. Actually, I would agree with the characterization except for the word proof. The Tennessee registration ordinance on its terms and as explained by the code enforcement officer, no permit will be denied to anyone. They merely have to provide information that they believe establishes who they are and then the city will make a copy of that and keep a record of it if there's ever any future enforcement. So there are no denials. They simply have to pay their few dollars of fee and then they will be used for it. I believe it's five dollars, but I'll double check that. One of that permit last. For as long as the tenancy, as long as the tenancy lasts, if they get a new tenancy, then they need a new permit. The other last thing I'd point about standing is that there were two potential standing arguments. One is one brought up by Justice of Conor and she says that no illegal alien is within the zone of interest under the Immigration and Nationality Act. And that means that they would, in order to say, is an employer or a landlord for an illegal alien within the zone of interest? But it's an issue when part of the challenge goes to preemption, there is an issue about whether or not the zone of interest test applies, isn't there? Well, Justice of Conor thought that it did. And I would agree with you that normally you think, well, this isn't the kind of statute that creates a protected class. But her reasoning was that we are all US citizens and lawful residents who are aliens are all protected by the INA. And so therefore illegal aliens and those who harbor or employ them are not within the zone of interest. It was an interesting case and that was INA versus legalization assistance project of LA County Federation of Labor, that's five, ten US. But the argument was to just that illegal aliens don't have any new process protection. I know you're not saying that. No, not at all, not at all. And so I think that's the reason why I think that the INA is not the only one who has the right to be the one who has the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to be the right to okay okay Omar Jabot for the plaintiff, Appleese. I'm going to be addressing the preemption issues. My colleague, Mr. Balcac, will address the remaining issues. And I think that's the same order that the other side went in. So the fundamental question on preemption in this case is whether every city in this country can enact and enforce its own immigration laws that conflict with the federal law and that bypass the federal government's agencies and procedures for administering that federal law. If that's a statement of this issue, it puts the rabbi in the hat because under the canis, this is not an immigration law. It's an an act of an ordinance that has some tangential impact upon immigration but it's not, it's how you decandes it entirely. This is not an immigration law. Well, I'd like to address both the housing and employment. I'm sorry. Yes, and I want to zero in on your use of the word conflict and it would help me greatly if you would point out specifically where you find those conflicts between Hazelton and federal. Sure. On the employment side first, and this, I have to emphasize, was not an issue that was addressed in the Ninth Circuit case that my opponent cited to you. There is no discussion of conflict preemption in that case that rests entirely on its press preemption. In addition, as Judge McKinod did, that law is different in its particulars from the Hazelton law that we're now addressing. So the specific conflicts that we have identified are that the Hazelton law bypasses Erkaz very elaborate procedures for establishing whether a violation is taking place and bypasses the agencies that Congress set up to administer Erkaz, the Immigration Reform and Control Act. It takes away employers' repose if they follow the I-9 rules from liability. How does it do that? Because under the federal laws, if you follow the I-9 rules and determine that somebody's documents are facially valid, reasonably appear to be valid, then you have an affirmative defense to liability under the federal law. Well, they say that whether they're doing these or better than affirmative defense because they kind of nip it in the broad, you can't do anything under the ordinance in Hazelton. It's not just an affirmative, I'm not sure I'd buy that, but they're saying that it's more protection than an affirmative defense would be. I don't think their argument is that if you've facially complied with the I-9 procedures, you're not liable under the Hazelton law. Regardless of what you've done under... No, for complainers, I know with the Court of Enforcement Officer, this is the employment provisions. If a complaint is for a file saying an employer is hiring somebody for referring someone to you or whatever, who is not legally here, that complaint is I understand it is made known to the employer and then the employer then can check, can verify that person's eligibility to hire and then the complaint... Well, I don't know what happens to the criminal. I asked Mr. Kovak about that. But it's... What is I understand it? He is saying that it's more than an affirmative defense. Again, the fact that you have complied with the I-9, procedure in Hazelton means nothing in terms of your liability under the Hazelton law. What they've said is that maybe the employer can avoid ultimately having their license suspended if they fire the person on their own before the Code Enforcement Office comes after them. But that's not anything like the procedure that exists in federal law and in fact both the employer and the employee in that case will have suffered as a result of the application of the Hazelton law. So it... It just has to show a proof of the identification that means to the city. I'm sorry, but... He just has to show that he had some identification from the worker and that would be if he did an I-9, it'd be something like a passport, right? The employer... What the city requires the employer to do when it gets a request or a complaint about the employer is to produce some sort of identity information. But that doesn't... Producing that information doesn't get the employer off. That doesn't end the inquiry. That's only the beginning of the enforcement process. And my colleague can talk a little bit more about the details of how that procedure operates. But... Well, if you had the valid requirements under the I-9, it would be a good identification, right? Unless it was forged. Yes, but the city then takes that identification... That... And starts the enforcement procedure. Checks to see whether the person's... You know, checks with the federal government, if they get a negative response from the federal government, then they tell you the employer that you have to fire that person. That, again, is not the procedure that Congress set up in Irka and doesn't give employers the repose that they're entitled to rely on under Irka. And I would point this court to this court's decision, Rogers U. Larson, which was a year after Dekanis Vibica, which involved Virgin Island immigrant employment statute. And what this court did in Rogers U. Larson was it noted that the Virgin Island statute took away the reliance that the employer could have on the way that federal law operated. So under federal law, you could hire a temporary worker and be sure that you could keep that worker as long as the temporary status continued. The Virgin Islands law put a different twist on things and struck that balance between protecting workers and allowing for temporary workers differently. And this court found it conflict-priampted the year after Dekanis. And the reason that this court could do that and the reason that this court can reach conflict-priampton without interfering with Dekanis in any way is that Dekanis didn't address conflict-priampton. Dekanis was the case about constitutional preemption, the issue of regulation of immigration and field-priampton. And what does Irka do to that argument? This is the relevance of Rogers Vibica, Dekanis. What does Irka, which came after Dekanis and after Rogers, what does that do to the argument that they're making? Does it impact the role? Sure, but the conflict that we're identifying here is a conflict based on Irka, based on the difference between Irka and the Hazleton law. And so that's the sense in which Irka is relevant. But Rogers tells us basically where the limits of Dekanis are and shows us that as Dekanis itself does, that it doesn't speak to conflict-priampton. As again, the Ninth Circuit case didn't speak to conflict-priampton. Well, then what do we do with 1324A of the AUIC? The one that carves out and specifically seems to go to this issue of preemption that we've talked with earlier. This provision of this section, the provision of this section, preempt any state or local law, including civil or criminal sanctions, are there other than through licensing and civil laws upon those who employ or recruit or refer for a fee for employment? And again, this is an express preemption issue. This is about the reach of the express preemption. The fact that we have an express, and I think it would be the case to say that the fact that there is an expressed provision of preemption within a statute is not necessarily negate the other areas of implied preemption. Exactly. So the fact that there's an express preemption provision with the savings clause has to be analyzed to see whether there's express preemptive effect in Congress's law. But this court has to separately look at the issue applying ordinary conflict preemption principles about whether there's a conflict between federal law and Hazel's law. So to your mind, does 1324A apply equally in this case to all of the issues before it? We've got business license and we've got limited tenant issues, and we've got this third party employee cause of action that people want. I think the express preemption provision clearly preamps the private cause of action created under the Hazel's institute. It also preamps expressly preamps the employer sanctioned scheme that Hazel tries to set up. But I think the other issue of housing is separately conflict preemptive is not addressed, is not encompassed within 1324A H2. I'd like to just say you're saying that the employer employee sanctioned that said forth in Hazel's and that it's not a licensing provision. Is the employer, I'm sorry, can you just say a few minutes ago? I assume that you're arguing that the restrictions on employing somebody and what happens with the business license, the discussion we've just had, that we can't authorize or authenticate the person's legal ability to be here, legal status to be here. You're saying that it's not a licensing provision? That's right. And why isn't it? Well, I'd like to start by noting that in law, and in this Court's decision in Barbara, the courts have recognized that savings clauses in express preemption provisions can't be read so broadly as to destroy the preemptive effect that Congress was trying to achieve. I want to point out that that helps you a lot with regard to landlord tenet issue. It seems to be private employees, paid party calls, and calls of actually gets implored. But how does it help you here where the business license seems to fit screly within 1324A H? Well, I think for one thing, we need to look at what Hazleton's saying here. Hazleton has said that their interpretation is that any law that makes it more difficult to do business in Hazleton is a licensing or similar to what it looks like. That really would open and does open the door to cities all over the country making their own rules and setting up their own procedures for deciding who can work based on their immigration status. But I would point out the lighter law. The lighter law. Because the same thing that make it more difficult for SIPP for businesses to do business in Hazleton if they employ early clients also makes it more difficult for everybody to do business in Hazleton. It's not part of our analysis, but it is kind of our running. These provisions make it more difficult for anybody to rent an apartment in a business there, which is how you somebody to break your leaves. But I would point out that the purpose and the structure of this Hazleton law is to be a law about early employment that happens to include among other sanctions, a licensing sanction. That doesn't make it a licensing law. If we look at the common sense understanding of what a licensing law is and this is addressed at somewhat greater length than the change to when the labor and make it brief. Those are laws that set out a series of qualifications that one needs to have in order to engage in a business. And that's not what this law does. In addition, I think it's clear if we look at what Congress had in mind. We know what Congress had in mind when it wrote this parenthetical, the seven-word parenthetical in a broad-preemptive provision. We know what they had in mind not only because of the legislative history, but because of the structure of IRCAA itself. And that's one of the things that the courts have looked at when trying to interpret these provisions. The structure of IRCAA is in the very section after establishing the employer sanction scheme. IRCAA amended the Agricultural Worker Protection Act to modify the way that farm waiver contractors were treated under federal law. And what Congress did was to basically require an IRCAA finding before allowing any action to be taken against the farm waiver contractors license. And that's precisely what they were trying to do on the state level with that parenthetical to allow for a genuine licensing scheme to... How did you find a genuine licensing scheme? What's it look like? Well, I think if you look at, for example, a liquor license or, let's say, a temporary worker provision license, right? So let's say it's a scheme that says in Hazleton, if you want to provide temp workers, you've got to advise them of their legal rights. You've got to post your rates at the door. You've got to respond to... You've got to make sure they're qualified as X or Y workers. And you can't violate IRCAA. And if you're a founder violate IRCAA, then we will revoke your license. That is the kind of law. I think that's consistent with what Congress had in mind and that is consistent with the language of that part of the... And how is... and this morning, it may be to help me out with... how is the ordinance we have here insofar as it pertains only to employers? Not the landlord is there's not the employee. This is only insofar as it pertains to employers, except for the I-9 provision, which is absent. And that may be a big exception, but I know it. It's a card for us, I can't. Except for that, how does this do anything that is not already accomplished by IRCAA? I mean, it conflicts... we talked about several of the conflicts that are additional conflicts that are having... The legal inclusion that will work me through. How does it do something that is not already provided for by IRCAA? So, well, for example, it sets up this private right of action that provides for strict liability against the employer. I said take that out of the table. I'll take that out of the table. Okay, forget that. It requires employers to verify, it requires in practice, employers to verify independent contractors and domestic workers who are excluded from the verification requirements under IRCAA. It requires the use of the I-VARIFI system where Congress gave employers a choice about whether to use I-VARIFI. It penalizes employers without providing for the chore period and procedures that the I-VARIFI laws and regulations provide. And it adds new sanctions without countervailing anti-discrimination provisions along the lines that the federal government did. Are those part of the law anyhow and they're implicitly included in this law because it's contained in federal law? So, the absence of it in local law doesn't mean anything. The absence does mean something because IRCAA represents a careful balance between multiple congressional objectives. For someone engaged in the conduct that is prohibited under federal law because they discriminate on the basis of IRCAA and the prohibited conduct there. Whether or not that's a violation of the case of an ordinance, it's still illegal. It's an illegal employee IRF action under federal law. You were saying this has to be as extensive and as limited as the federal legislation in the area in order for it to survive conflict prevention? No. No, I'm not necessarily saying that. What I'm saying, because I think I've described an example of a licensing law which I think could be added without causing conflict or express prevention problems. But what I am saying is that Congress, when it created IRCAA, was trying to reduce unauthorized employment, but it was also trying to minimize the burden on businesses and on innocent workers. And it's clear, anyone who looks at the I-9 system will tell you they could have devised a more draconian way to make sure that people didn't work without authorization. But they didn't. And not only didn't they do that, they specifically set up an anti-discrimination provision scheme to balance those effects because they were very concerned that innocent workers would suffer and that businesses would suffer if they struck the balance in a different manner. And strike it and as the Supreme Court has said, it's not up to the states to choose an iron fist where Congress is chosen the velvet glove. It's not that balance was important to Congress and it's the reason that we have the meekestries from many different aspects of society here because not because those groups all agree on what immigration policy should be, but because they all have a stake in the balance that Congress is struck. And if we allow states and cities one by one to strike their own balance around the country, we're going to have a vulcanized and frankly, meaningless immigration policy. In Congress in section 115 of IRCAA, Congress said that the law should be administered uniformly and that's what that's going to be impossible if Hazelton and other cities are allowed to enact their own schemes. I want to talk for a moment. If Congress wants to stop the bulk of legislation, as you call it, they can come out very expressly and not have any licensing exception or anything like that. I mean, it'd be easier to pass another year. Well, nothing's easy to pass in Congress especially when it comes to immigration, you're on it. I think that actually the statute is clear. The way it is, it doesn't provide this kind of room for states and cities to come in and metal. And we shouldn't require an additional express statement to where there's a conflict. And that's exactly what we're talking about here. I want to go back to the express preemption in H2, which preempts any state or local on posing civil or criminal sanctions upon those who employ or recruit or refer for the employment. How does that speak to this housing and tenant law? It doesn't, Your Honor. Are you not claiming that that's not one? What the Hazelton Law does, which is a conflict, a separate conflict, a different kind of conflict with federal law, is that it would require people who the federal government allows to live anywhere in the United States to leave Hazelton. And there was some discussion about, you know, well, it's just a rental law. It doesn't bar every kind of housing. But what this court and the Supreme Court do when we look at these preemption provisions is to consider the actual practical effect of the law. So in Roe v. New Hampshire Motor Transport, which came down last year from the Supreme Court earlier this year, perhaps. The federal law there, it issued regulated motor carriers, but the state law that was claimed preempted regulated people who were shipping items in commerce. And the Supreme Court said, well, that carrier law still preempts the shipping law, because the effect of the shipping law is to make carriers lives different, to change the rules that apply to carriers. And what Hazelton is trying to do here is to say that you can live anywhere in the United States except Hazelton, that we are going to go, and based on a snapshot of your current status, determine that you can't live here. And that's not the system that Congress set up. It bypasses all of the discretion that Congress left to the executive branch and to the agencies and how to administer the statute and how to provide for relief and prosecutorial discretion. It's simply inconsistent with the structure of our federal immigration law. Is there a problem in terms of who makes the determination here of legal, I won't call it legal, legal presence, legal presence. As I understand it under one of the provisions, and I guess this is the rental provision that an appeal has to go to the, the tank and taking the field of the Magistrial District Court of Hazelton. And I guess then to the Court of Commonwealth, please under Section 7F of the ordinance here. How and maybe I should ask and I will ask Mr. Courbacker about this, but I'm trying to figure out to what extent this ordinance allows local officials to make determinations of alienage. I think it not only allows it, but it requires it. And you know, the federal laws say that the federal procedures where you have an immigration judge, you have, I know you guys are very familiar with this, an immigration judge proceeding, you know, judicial review in the courts of appeals or for other means. All of those provisions are specifically stated to be the sole and exclusive procedure for determining removable in this country. But again, what Hazelton is trying to do is set up a separate city level immigration enforcement agency that is not responsive to any of the rules, basically to most of the rules that Congress has set up. And that doesn't have the authority that Congress provided to the immigration apparatus to make those decisions. I just wanted to, we've talked to, I pointed out the one of the two of the key differences between the Arizona law and this law, which is that there's no housing provision in that issue in Arizona. Yeah, he tried to, yeah, I want to try to focus you on the extent that I can on the business aspects of this case and that takes much of your time on the housing aspects or this cause of action and the right of an employee to get triple damages. Okay. I just wanted to point out that on to the extent the Arizona law relies on to canis, it relies on to canis to support presumption against preemption, the application of a presumption against preemption in its analysis. Now, first of all, the district court found that we prevail regardless of whether the presumption is applied and the third circuit has not hesitated and this is in Kolochiko. It's noted in Kolochiko and it's noted in some other cases as well that it, this circuit has not hesitated even when it applies the presumption against preemption to find laws preempted where there's conflict. And so the ultimate kind of point of the canis reference in Arizona is ultimately, I think not determinative of this case, but I think it's also clear that we're not asking the court and this court certainly need not overrule the canis in any sense. Right. Right. And that's why we wouldn't ask you to, right? But, but, but, but, but what, but what this court does need to do is also give due credence to what Congress has done because it's Congress that makes immigration policy in this country. And we can't ignore the fact that in 1986, Congress passed a law that the Supreme Court has since called a central feature of our immigration law, a law that, erka, that creates a federal employer's action system that has an express preemption provision in it that has a detailed structure that, that Hazelton's law would interfere with. Now, I guess that I listened to what you're arguing in your reliance upon a canis in the extent to which it hasn't been evaluated by, erka is that, and I think you'd agree that in the canis, the court said that local regulations of an activity or enterprise that has an impact, even a collateral or consequential impact on immigration is not by virtual that impact, a regulation of immigration. But, and then, as I know you're arguing, you're saying when you have not something that has a collateral impact on immigration, but something that seems focused on regulation, a regulatory scheme that deals with living, that deals with working, how you can get an apartment, somebody's fired, they can bring a cause of action against an employer, even though they are fired for every legitimate reason that may be, bring a cause of action for triple damages, no relation to the cause of action. Basically, because the employer, I mean, I'll be the employer, has one undocumented worker there that is beyond the canis scenario and that is an attempted, perilal or collateral immigration scheme. That's really what you're arguing in terms of preemption. We have argued that, that is part of our argument that the sum total amounts, if you look at what Hazelton has done here, it's trying to regulate immigration. We do make that argument, but ultimately, I think this court did not reach that issue, the conflicts on both the employment and the housing provisions. That may be an easy way to back into it, then the way one is to head into it. If you start taking every single one, and then you match that up against the language that I gave you earlier in 1324A, and you get down to look at something as a business license or not, it does seem to me that what they've done in terms of the employer part of it, it does look a lot like a licensing provision. And again, even if you disagree with us on express preemption, the courts still need to address the conflicts, and I think the conflicts are clear. And I think that to allow this law, again, is to allow the tens of thousands of municipalities in this country to create their own versions of the immigration law in every single municipality. And that can't be what the supremacy clause and what the Immigration Nationality Act allow. Thank you. Good afternoon. I'm going to direct the Court's attention to page 53 of the appellees, brief, or we actually list the seven conflicts in there. And one of the things that really struck me about a way to think about this was in, there's many wonderful amicus briefs filed in this case, but in change to win, which is the labor unions brief. The way they describe this is that this is not a licensing law. This is an immigration law that uses licensing as a sanction. And there's ways to regulate business. That's why I have to answer what I did. It seems to me you are arguing. I may get immediately to be sure if this is true or not. But you are arguing that we have to look at the totality of what's happening here in these of either the Canada's argument anyhow to determine whether or not this is a licensing law, which under the canister under the specific provision here would not be a problem would not be a legal immigration. But the scheme may suggest that this is something more than even though individual parts that may impact licensing. The scheme may suggest something much greater than that. Well, I mean, I guess there's a question as if it is a if it really is a licensing law, is it covered by that exemption in IRCA? Another way to look at it is this really isn't a licensing law. And your honor asked what would be a real licensing law, you know, regulating it. What would it look like? What would it look like? And if you look at what's really going on here, whether the totality of circumstances or the specifics of the employer sanctions provisions, they are trying to affect you with the mayor set up front and as said all along. We want to make Hazelton the toughest city in the country on documented immigrants. They want to get rid of all undocumented immigrants. That's the goal of this ordinance and they simply have latched on to a license as a sanction so they can try to fit it in under this exemption. But this isn't your traditional licensing law. I'd like to, I wasn't going to talk about this, but there seems to be some confusion about how this ordinance works. And I think this plays into why there is such a conflict in terms of the process between what Hazelton is doing and what you have at the federal system. In Hazelton, right, you get a complaint and the complaint can come from anywhere and it can be either on the employment or the housing section. Then Hazelton then goes to the employer or the landlord and says, I need identity papers again, not defined. They then supposedly take those identity papers and they send them to the federal government now. Let me digress here for a minute. There is no process set up right now as we sit here for that to happen, either legally or technologically. It was a patient's challenge. It is a facial challenge and I'll come back to that now. Hazelton has amended this ordinance multiple times we had a nine day trial where they tried to walk away from someplace. This is Hazelton's best shot. I joke with Mr. Cobock when I came in whether they were going to announce today that they've amended the ordinance yet again the way they did at trial on the first and last day. There was some discussion about about a month, particularly the judges in their clerk's room. But there is, you know, at this point Hazelton has had his best shot. We've had a nine day trial and when you're talking about Solerno issues, if you look at the cases that fall on Solerno, Solerno and Washington Grayings say that don't say that facial challenges are disallowed, they simply say they are disfavored. And the reason, for instance, in Washington Grayings or in the voter ID case, which is some Crawford versus Marion Illinois, the reason those cases went down and those challenges were rejected is because in fact there were facts at issue that had not been explored. I mean, you couldn't decide what, what burden, what standard you apply in the voter ID case because you didn't know what the burden was in Washington State Grange. There was a question about how confused were voters going to get unless you knew what the ballot was going to be and what the election sport was going to do. You couldn't figure that out. In this case, you do not have any uncertainty about what the facts are going to be. I mean, we think the ordinance is clear or the eighth or ninth re iteration of the ordinance as we're looking at it now is clear. To the extent there's even any doubt we went through discovery and we had a nine day trial where all of that evidence was presented. So we have a very good idea of how this ordinance could work. But coming back to the procedures, assuming that there was a verification process that Hazelton could use, which I think under Solar now is an appropriate assumption to make, although as a factual and legal matter, that system doesn't exist. But assuming that Hazelton could get identity documents electronically or some other way send them to Washington and then Washington comes back and says, yes, this person has work authorization or doesn't or this person can is authorized for benefits under saved system or not. What then happens is Hazelton goes to the employer, goes to the landlord and says, you got a problem. You're violating the ordinance and you can cure this now by either getting rid of the employees or you're going to be sanctioned. And then if you don't like it, you can basically sue us in some after the fact, tort process, which clearly is not enough. Under the federal system, if you go to for enforcement of IRCA, for enforcement of an IRCA violation, there are a whole system of regulations. If you go to seat 28 CFR, part 68, you get full trial type proceedings where you have a right to counsel, you have a right to cross examine witnesses, you have a right to present evidence. None of that takes place in Hazelton. The Hazelton decision is simply made based on some database report. And that is a conflict and as a matter of procedural due process is completely insufficient. They have a right to file suit, right? I'm sorry, you don't have a right to bring it to court. They have presumably they have a right to file a 1983 action and come into federal court if there's a federal claim. But the two have a state remedy too. A couple of points on that, you know, question whether it's truly a remedy if it's brought to a Pennsylvania district magistrate. And the issue in there may be whether or not the tenant or the employee is authorized to be here in this country. And you're going to ask say that that district magistrate can make that determination. And Pennsylvania, your honor district magistrates don't even have to be lawyers here. So query whether you could do that. But the more fundamental problem for a procedural due process perspective is that you have to have pre deprivation. Process. I mean that is the default you can get around that for some kind of extraordinary situations or if you have a perat versus tailor type of situation where it's not clear. I mean it's an unauthorized toward you really couldn't have any kind of process. That's not the situation here. And as this court said in Alvin versus Suzuki in 2000, no matter how good the post deprivation process may be, that doesn't cure your failure to provide pre deprivation process. And frankly as there is no pre deprivation process under this ordinance, even as it may have been explained and tweaked during the 9-day trial, I would point the court to page A1478. And this is Mayor Barletta's testimony. And I'm going to quote question. So the city of Hazelton does not provide a hearing to either the landlord or the tenant answer correct end quote. And the two preceding pages is discussion about how this enforcement scheme for housing is identical to the enforcement scheme for employees. So the bottom line is there is no hearing as to whether or not the person in order to cure that the landlord has to bring some action against the tenant at which time there has not yet been a deprivation because the tenant is in there until the eviction process is actually infatuated. But let's pull back here and look at the dynamics of how we even get to that point. So there is a complaint made about the tenant and the tenant doesn't know any of this is going on because there's no requirement of notice. So the reason is the best that Hazelton could do a trial is to say that we would attempt to give notice. And that clearly is insufficient when you're talking about deprivation of housing in there. I'm sorry Ryan the question was again. No the question of due process is always what this is due and if the tenant is going to get noticed before the eviction because of the action to quit the premises of the eviction action. So why wouldn't that be the kind of notice that would be in these circumstances and I'm sorry. So so then you get this complaint and then this this supposed verification system comes back and tells the landlord that this person is undocumented or we don't have any evidence that this person has lawful status. So as Hazelton then goes to the landlord and says you got to get rid of this guy because if you don't get rid of this guy then there's draconian penalties which is basically you can't be a landlord anymore. You can't rent to anybody even if there's people here who are who are authorized. So then the landlord's the the process here supposedly is for the landlord to file eviction proceedings in I guess it's magistrates quarter and common police court. Well if magistrates court and then it goes to appeal to the right but but that is between the landlord and the tenant right so and you know you have basically an out well kind of situation here with tenants he has you do with employment. If the landlord says you know I want to get rid of you for whatever reason they can do that the culprit in all this is Hazelton which is not part of those proceedings. So you know what really needs to happen is there needs to be a system set up whereby the landlord and the employer can contest in a hearing what Hazelton has now said you have to do get rid of the employee or the employer. And that doesn't exist and coming back to judge silers question you know can't you file a lawsuit whether it's in district justice court or bring a section 1983 action or there may be other remedies after the fact the two Supreme court cases that I would direct the court to our Logan versus Zimmerman brush company and zinnerman versus Birch and in both of those cases the Supreme Court said you've got to distinguish the process that's provided by the agency from sort of post depravation toward and other judicial remedies that may be available and those are simply inadequate. I want to come back now to maybe where we where your honor suggested we should start which is with with standing and and salar now let me start and I guess we've talked a little bit about salar now I'm happy. I'm going to answer other questions and I will note on salar know that as I read their briefs and the arguments that they made below they did not raise a salar no question on either preemption or section 1981 or any of the other claims they're pre their salar no argument seems to be limited to procedural due process so I would argue the fact that they haven't raised that below that it's waived at this point. I think the problem with Hazelton's argument is that they confuse the ultimate violation of the ordinance with whether or not there's injury in fact and injury in fact is really just impact you don't I mean you know I think there's sufficient evidence in the record to support judge one lays conclusion that in fact these people were economically harmed the landlords had trouble renting. I think the what his concern was there is a concern from their perspective that the record reflects that the trouble for renting was before and since there's an injunction be straining enforcement of the ordinance now they can't be any loss in income can't be I'm not sure except that but any loss can't be because of this ordinance right but I but again I think that the problem there's two problems with that one is they're confusing injury in fact with a violation of the law of violation of the constant. The court is a very important institution improving that as the Supreme Court said in Luhan you know you should not elevate the standing threshold to something greater than showing that there's a violation of the of the ordinance I mean what we're looking for here is there some impact and aside from the economic harm which I would suggest is supported but that is a little bit speculated by what admit but under panel it says you only have to show that there's a probability that the person is going to be harmed but you don't have to need to get to the economic harm because there is certain harm inflicted on all of the plaintiffs in terms of the any landlord in the city could just say well I've had people come by and they won't rent from me and it's worse than used to be well I don't you're on you're on that's not the record that we have in this case in this case it's almost the record well it's it's I mean I would I would suggest that it's a case that he had some people came by and told him about the law and they didn't come by anymore they didn't rent from me and it's sort of but I think that I think it's a little well he said it happened multiple times and in fact both of the landlords said that that happens but three times make it more standing than twice again I think you know that's a question of fact and and you're looking the review is clear error and I would suggest that judge monthly and please supported that fine but the court doesn't need to go there the court doesn't need to find that there's economic harm because if you are an employer this ordinance requires you to check employees documents and look at the facts of this case the first of the court would not require either Mr. Luzano or Mr. Espinal to check documents of the rougher that Mr. Luzano needs to hire to fix his roof or the nutrition or Joe the plumber of that Mr. Espinal but as as a I mean it is certain that this is going to happen that and and anybody who owns any kind of housing can say the one thing that's certain beyond death and taxes is that things are going to break in your house and you got to get them fixed when they hire that individual they have to check their pay paperwork to make sure they're not undocumented there is nothing uncertain or speculative about that same with you've got both Mr. Luzano Mr. Espinal testifying that in fact they have vacancies they are trying to fill their apartments any tenant that comes in they have to check for papers there is no uncertainty or speculation about that under the registration ordinance tenants need to register and it's a ten dollar fee that is certain in landlord's have to register and I believe there's a five dollar fee so you know as I think Judge Nygard knows from the first pit news case I mean the the determination about whether they're standing as separate from whether or not there's a violation of due process or a violation of preemption all you have to show is that there is some impact some injury in fact on these individuals not that in fact their rights have been violated and we've amply done that in this case and beyond that there's a clear error standard of review. What do we do with the severability clause that and there's a severability provision in the ordinance there's a statement in the brief and last but your callback about this that argues that the one section the private cause of action session section is a quote necessary component of the ordinance would suggest that the way the our township is in court is interpreting it it's not really several bullets an entire it's not right you asked earlier about an entire scheme that seems to be and a statutory scheme we have to look at whether there are other provisions what do we do from your perspective it's what is the severability clause mean given the statement in the brief. Well I think given the fact that Hazelton has in fact admitted that that separate private cause of action is so important to the to the scheme and I just I cannot imagine how the court could find a maybe I shouldn't say that I court could find that constitutional but that goes down that I think the entire at least employment section and maybe to be fair to Hazelton since that provision is not related to the harboring or housing section of it if you find that is unconstitutional it only knocks out the employment side of the ordinance but we think there's other good grounds for for knocking out the housing section but if I could just take a couple of minutes because this is a very very important cases as the court has recognized and while the courts focuses properly on Hazelton and the ordinance this is truly a national case and I think it is important to look at this case both from that national and a historical context which is what the Supreme Court has instructed needs to happen when you have these preemption cases and there are two significant consequences that will result of this court reverses and the first I'm going to call the patchwork problem Hazelton was the first city in the country to pass one of these ordinances but it was by no means the last and even though it may be a model all of these laws are a little bit different they may have a similar goal but they operate in different ways so Hazelton is different from West Hazel Township which is right next store which is different from Scranton that has nothing it's different from Arizona it's different from Escondito California which is the record about how many at least at the time of trial how many Townships have ordinances like this I don't know if it's in the record but I would direct the courts attention to the brief submitted by the US Chamber of Commerce where they do go through the ordinances in there and they talking in some specifics about how at least the ordinances and statutes in the cases that are in court which I think the court can take judicial notice of how they different there's different verification systems there's different enforcement scheme so all of these are different in some way and there's a reason I would think that you get both the US Chamber of Commerce and major labor unions changed to win filing a court and make this case on the same side and the reason is that if this court reverses it's going to send a green light to municipalities all across the country and you are going to have a hopelessly fractured system of laws dealing with both employment and with housing. The second consequence of this court reversing is a word that Mr. Jaguar used initially and I'm going to call that Balkanization there are two excellent whether all Exxon Amika's briefs but two of them that take it all over the room on your side. Well, I think our side are a little bit stronger your honor back to a lot of the law. Thank you for that opening but I would direct the court's attention to the brief submitted by the interfaith groups and by the civil rights organizations and basically they say those who forget history are doomed to repeat it. We have had many eras in this country where we've had large numbers of immigrants coming in and exactly how would that write. We have these things called opinions and the scores that somehow be tested to legal precedent and I've been known to quote Shakespeare and things not in the opinions majority opinions but how would that write where we take as a basic tenant of the opinion that those who forget history of boundary repeat it. Well, you know, I think it's looking at the reality of what's going on here and throughout history when you've had large migrations coming in there has been a backlash, there has been nativism and what's going on in this case. I mean, look at these ordinances. They were passed and this is all in the record. They were passed with no study, with no supporting data. The mayor said we don't need data. We know what's going on here. Is that on the record? That is absolutely in the record