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Constitutional Law

Exam 17

30 minutes

Fact Pattern

State A, a border state, is concerned about a recent influx of undocumented immigrants. To try to deter immigrants from staying in the state long-term, State A enacts a statute that will prohibit housing within the state for anyone who is not a U.S. citizen or legal immigrant. The law is targeted at landlords who might rent to undocumented immigrants. State A believes that without housing, undocumented immigrants will leave the country, move to a different state, or choose not to enter in the first place. The new law reads as follows:

It shall be unlawful for any person or business entity to rent to, or permit occupancy to, an illegal alien, knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law.

The statute defines an “illegal alien” as “any alien who is not lawfully present in the United States according to federal immigration law.” Individuals covered by the statute must verify each potential renter’s or occupant’s immigration status prior to renting to them. Verification is done by submitting paperwork to local police. The police, in turn, rely on a system established by the federal government to conduct the verification.

A local non-profit, B Org, assists farmworkers, many of whom who are undocumented, in finding housing in State A. B Org, worried about the dangers this law presents to those living and working in the state, brings a lawsuit against State A. B Org’s only argument is that federal immigration law preempts the housing law enacted by State A. 

In federal immigration laws, Congress has not explicitly stated an intent to supplant and supersede state laws that regulate the housing of immigrants, documented or otherwise. Congress has, however, passed extensive laws that regulate the entrance and exit, registration, and work authorization of undocumented immigrants. There is also a federal law that prohibits anyone from knowingly harboring an undocumented immigrant.

Assume that B Org has standing to sue.


  1. How should the court rule? Explain, focusing only on the preemption issue.

Question 1

How should the court rule? Explain, focusing only on the preemption issue.