Is Repression Coming to Virginia?

When a stranger resides with you in your land, you shall not wrong him. The stranger that resides with you shall be to you as one of your citizens; you shall love him as yourself . . . I am the Lord your God.
Leviticus 19:33-34

I was distressed to see that the anti-Hispanic legislative package being pushed by the “help-save” groups* in the General Assembly is moving forward. House Bill 14, sponsored by Republican Christopher Peace, which provides that:

“an alien who is unlawfully present in the United States shall not be eligible for admission to any public institution of higher education in Virginia,”

easily passed the House of Delegates today.

HB 14 is just one of myriad bills introduced in the General Assembly (mainly in the House of Delegates) designed to make Virginia very inhospitable both to undocumented aliens and to non-English speakers. Aside from barring undocumented aliens from Virginia colleges and universities, the “help-save” sponsored legislation would 1- require a photo ID in order to vote; 2-create a state fine for occupying a residence with more people than allowed by local ordinance; 3- provide that someone caught driving without a license would be arrested and fingerprinted and would have his/her vehicle confiscated; 4- deny bail to undocumented aliens in certain cases; 5- make it an “unfair labor practice” to hire undocumented aliens; 6- ban state contractors from hiring these aliens; 7- grant immunity to Commonwealth law enforcement officers attempting to enforce federal immigration laws; 8- require the governor to enter into an agreement with the Federal Government allowing Virginia to enforce immigration laws; 9- require that non-English-speaking defendants pay for the cost of a translator if they are convicted; 10- require Virginia correctional institutions to obtain, maintain and share data on the immigration status of all inmates; 11- prohibit localities in the Commonwealth from providing any public benefits to persons who are not citizens or otherwise legally in the United States; 12- prohibit state or local agencies from providing information in any language other than English (with some exceptions); 13- require that both written and driving tests for drivers be conducted exclusively in English; 14- provide that employees may be fired with restricted eligibility for unemployment compensation if they speak a language other than English in violation of employer policy.

If you ask me friends, this rather unfriendly treatment of some of our residents is kind of strange for a state that may adopt as its new state song a ditty with the following words:

We hold this truth self-evident: All men are equal!
This gift you gave, Mother of Presidents, it lights our way!
It's our heritage, our charge to keep, for we are proud to be:
In Virginia! Our Virginia! The cradle of our liberty!

Now, before I go any further, let me respond to the comments that will inevitably be posted when I publish this peace—What part of “illegal” don’t you understand? Well, dear reader, after three years in law school and more than thirty years practicing law I do understand the word “illegal.” However, the sloganeers don’t understand that the mere fact that a person’s behavior is illegal does not mean we can subject them to whatever indignities we choose. Hey, every day I see scores of “illegals”—persons who are driving their motor vehicles at excessive speed on our highways. I also see many people pedaling their bikes across the nearby Boulevard Bridge despite a sign saying “bicycle riding on this bridge is prohibited by law.” Does anybody suggest that these illegals be denied education, jobs, public benefits, places to live, and many other basic human amenities? Why is it that your obsession with making law violators unwelcome in Virginia applies only to those who violate section 1325 of title 8 of the United States Code? Let’s face it, the restrictions and deprivations that the proposed legislation would place on undocumented aliens are far in excess of what we do for convicted felons when they are released from jail. This proposed legislation constitutes the equivalent of the Nuremburg laws for undocumented aliens and residents who speak languages other than English.

Although the Constitution is silent on the question of immigration it does grant to the United States Congress exclusive jurisdiction over naturalization of citizens. Article I, section 8, clause 4 of the Constitution states that the Congress shall have the power to “establish a uniform rule of naturalization . . .” In 1817, the Supreme Court in Chirac v. Lessee of Chirac ruled that “the power of naturalization is exclusively in congress,” regardless of any state laws to the contrary. Since it makes as little sense to have a country with fifty state laws on immigration as it does to have fifty state laws on naturalization, the Congress has exercised the power to legislate in this area. Congressional laws on immigration are contained in Chapter 12 of Title 8 of the United States Code.

To enforce the immigration laws the Congress has provided that

Any alien who
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. 1325(a). This section also provides for civil penalties for these aliens in addition to the criminal fines. The Congress has also provided statutory penalties for those who help undocumented aliens enter the country and those who employ undocumented aliens. The law further provides for systems for determining whether aliens are lawfully in the country. Finally, in addition to the criminal and civil penalty provisions, the law provides:

Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.

8 U.S.C. 1227(a)(1)(b).

The Congress cannot enforce the immigration laws. Only the president under his constitutional duty to “take Care that the Laws be faithfully executed,” can enforce these laws. If there is a serious immigration problem in this country there are two possible reasons; either the laws are inadequate or the president (through the agencies of his administration) has not adequately enforced them. The solutions to the problem are either to amend the immigration laws to make them tougher or to insist that the president do his job. Both of these solutions are within the purview of the Federal Government, not the government of the Commonwealth.

As an attorney, I am committed to the rule of law. I strongly believe that, if the legislature, whether federal, state or municipal, enacts a law. it is the duty of the executive in that jurisdiction to enforce that law. When even minor laws go unenforced the citizens develop contempt for the law. This just leads to more lawlessness.

Assuming for a second that their motivation is genuine, not political or racist, the “help-save” groups have despaired of the federal government solving the immigration problem. They have decided that the General Assembly can solve the immigration problem in Virginia by making living in Virginia so tough for undocumented aliens that they will leave and go elsewhere. The “help-save” people don’t care whether the aliens leave the country or move to North Carolina or West Virginia. What is crucial is that they not live “in my neighborhood.”

Regardless of their motivation, we must reject the “help-save” approach. First they are advocating that the General Assembly usurp the power of the Federal Government by adding penalties to the violation of federal law beyond those specified by the Congress. Second the range of the “help-save” proposals is so wide as to trample on the rights of United States citizens and lawful aliens. Third, the “help-save” proposals would remove from undocumented aliens such basic human rights as a place to live, the right to work, and education. Using the “help-save” approach to solving the undocumented alien problem is sort of like using a howitzer to eliminate the pesky squirrel in your backyard. Sure the varmint is gonna be dead but there’s also gonna be a whole lot of collateral damage.

You need to know that several of my friends have told me that my position on this immigration issue is too liberal. I have been told that having so many undocumented aliens in the Commonwealth creates serious problems. I have been told that “they” take services from our state and local government without paying taxes. STOP! Do not undocumented aliens buy bread at the local store and pay sales tax? Do not undocumented aliens abide in homes, either purchased or rented, and thus pay real estate taxes either directly or as a part of their rent. Do not the employers of undocumented aliens withhold federal and state income taxes from their pay? (If the answer to this one is no, it’s a lot more than the immigration laws that these employers are violating.)

Loyal reader, you must know that this maven does not consider “liberal” to be a curse word. To me, liberalism is the way set out for us by the Bible. The Bible I read commands, “Justice, justice you shall pursue . . .” Deuteronomy 16:20. The God I worship tells me to be on the side of the widow and the orphan (Exodus 22:21) because they were the ones in biblical society who had no rights or protectors. Likewise, I must be on the side of those in our society today who are oppressed and have no protectors. When I see injustice in our society, I am compelled to speak about it. If that is being too liberal, than I stand convicted.

Let me make this clear one more time. I am not in favor of people entering our country in violation of our laws. People who attempt to enter our country unlawfully need to be stopped and punished under the current provisions of federal law. The Federal Government must take action to deal with those already in our country illegally. But, I simply cannot accept the vindictive, repressive measures proposed by the “help-save” people to rid our Commonwealth of those who they consider unwelcome in their communities.


* See my entry “Something is Rotten in The Old Dominion” on December 23, 2007