## Facts

- Fremont, Nebraska voters adopted Ordinance No. 5165 regulating employment and rental housing based on “unauthorized” or “illegal” alien status as defined by federal law.
- The ordinance required all Fremont employers to use the federal E-Verify system and restricted hiring of unauthorized workers through local licensing-related consequences.
- The ordinance created an occupancy-license requirement for prospective renters and directed the city to verify immigration status through federal authorities.
- Based on federal responses, the city could deny or revoke occupancy licenses for persons determined to be unauthorized, and landlords faced penalties for renting to individuals without valid licenses.
- Landlords, tenants, workers, and advocacy organizations sued to enjoin enforcement, alleging federal preemption and statutory violations, including under the Fair Housing Act (FHA).
- The district court permanently enjoined and severed parts of the rental provisions as preempted and FHA-violative, but upheld the employment provisions and other parts of the ordinance.
- Plaintiffs appealed the provisions upheld; the City cross-appealed the invalidation of housing provisions.

## Issues

1. Whether the ordinance’s employment and rental-housing provisions are expressly or impliedly preempted by federal immigration law, including under conflict/obstacle preemption principles.
2. Whether the E-Verify mandate and related employment-licensing consequences are barred by federal employer-sanctions law.
3. Whether the occupancy-license and landlord “harboring”-related restrictions conflict with federal immigration regulation.
4. Whether the ordinance facially violates the FHA’s prohibitions on housing discrimination or interference with housing rights.

## Decision

- The Eighth Circuit affirmed in part, reversed in part, and remanded.
- The court held the employment provisions were not preempted, treating the ordinance as operating through permissible licensing mechanisms consistent with federal employer-sanctions law.
- The court upheld most of the occupancy-license scheme, emphasizing that the city relied on federal status verification rather than making independent immigration determinations.
- The court rejected plaintiffs’ facial challenge under the FHA to the core occupancy-license provisions, concluding the ordinance classified by immigration status rather than a protected FHA category.
- The court agreed that certain “harboring”-related aspects could not be enforced in a manner inconsistent with federal law and allowed narrowing/severance of those parts.

## Legal Principles

- Federal immigration authority can preempt state or local measures, but not every regulation referencing immigration status is automatically invalid; courts assess field and conflict (including obstacle) preemption.
- A local licensing-based approach tied to federal standards may avoid preemption where federal law preserves room for “licensing and similar laws” in the employer-sanctions context.
- A local regime that defers to federal immigration status determinations, rather than creating its own classifications or adjudications, is less likely to be deemed an impermissible intrusion on federal immigration power on a facial challenge.
- A facial FHA challenge requires showing the law, by its terms, violates FHA prohibitions; classifying by immigration status, without more, is not facially equivalent to discrimination based on FHA-protected traits.

## Conclusion

The Eighth Circuit largely sustained Fremont’s ordinance requiring E-Verify and conditioning residential occupancy on federally verified immigration status, finding no facial INA preemption or FHA violation for the core provisions, while limiting enforcement of certain “harboring”-related components to avoid conflict with federal law.


Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013)