Proposed legislation that was submitted to the Virginia General Assembly from the Town of Herndon at the end of last year has been qualified as having "significant constitutional problems," following an informal preliminary review by the state's attorney general's office, according to state and local officials.
Former Herndon mayor and state Del. Tom Rust (R-86), who had originally been asked to champion the bill by the Town of Herndon, has since come to a mutual agreement with the council to withdraw the proposal, he said. The bill would have allowed for state and local police to have more authority to enforce immigration law, declare organized day labor hiring sites in the state that do not check work authorization status illegal and increase the penalties for overcrowding.
The early rejection of the town's legislative program, an annual opportunity for the town to introduce state legislation through a local representative, is "relatively extraordinary," said Herndon town attorney Richard Kaufman, who drafted the proposal.
"That issue [rejecting a legislative program on constitutional grounds] does not come up very often," Kaufman said. "I cannot remember in my history an attorney general stepping in this early to rule out a bill."
THE CONSTITUTIONAL problems in the legislation lie in its request to grant authority for state and local authorities to prosecute those who knowingly hire illegal immigrants. As per federal law and the United States Constitution, the regulation and enforcement of immigration rules is the responsibility of the federal government, a fact that preempts, or overrules, the authority requested in the proposal.
Any attempt to officially receive the authority would probably need to come in the form of legislation to redefine the sovereignty limits of levels of government to allow for local enforcement and regulation of immigration, said William Thro, state solicitor general of Virginia.
"Certainly it may be possible to craft legislation that achieves some of the objectives of the Town of Herndon," Thro said. "One of those possibilities is to lobby Congress to change the law and grant localities the authority to regulate immigration."
Finding constitutional problems in the more than 3,000 bills up for a vote that his office reviews each year is not rare, he added.
THE NEWS of the potential unconstitutional nature of the town's legislative program was a disappointment, said Herndon Mayor Steve DeBenedittis.
"We knew it was ambitious getting into it, but we really wanted to get the issue to the forefront of the minds of our state delegates," he said. "But this is just the first step, they're going to give us some feedback and we'll try and put something together [for next year] that will have a better shot at coming out positively."
The informal ruling from the state didn't surprise Herndon Vice Mayor Dennis Husch, who said that he had a feeling that it would be turned down.
"It's making a statement that Herndon will never again be seen as a harbor for illegal aliens," Husch said. "For too long, everyone knew, come to Herndon, they'll get you a job, they'll give you food, they'll give you coats, they'll let you have all of these social services."
"It's not fair to those of us who are here legally that all these services are being cut off by people who come here illegally."
While Husch said that any perception of an increasingly hostile environment towards immigrants in Herndon is unfounded, council member Harlon Reece, who was the sole dissenting voice to send the legislative program to the General Assembly, said that the attention to Herndon on the issue of immigration has distracted the town from tackling the issues that directly affect the majority of residents.
"It seems to me that we've become unduly focused on issues of illegal immigration, and I'd like to see us get back to the real local issues that we were elected to handle," Reece said. "Obviously some of my colleagues don't agree with me."