Virginia AG’s immigration hypocrisy

According to an advisory opinion issued in December by Virginia Attorney General Mark Herring, localities in the commonwealth cannot declare themselves exempt from laws passed by the state legislature. In support of his position, Herring cites both statutes and “established common law doctrines [that] specifically limit the authority of local governments.” He further states, “It also bears emphasis that neither local governments nor local constitutional officers have authority to declare state statutes unconstitutional or decline to follow them on that basis.”

Translated into plain English, Herring is telling jurisdictions that have identified themselves as “Second Amendment sanctuaries” — meaning they will refuse to enforce any new state laws that impose mandatory gun registration — to stay in their own wheelhouse and execute the laws passed by the legislature. Should counties and localities believe that a gun law passed by the Virginia Assembly is unconstitutional, they should follow proper procedure and either speak to their legislative representatives or file a lawsuit requesting that a court declare the measure unconstitutional.

That’s wise advice. Our governmental system is constructed as a pyramid. We have multiple levels of government that exercise limited authority. Local governments are not entitled to pick and choose which state laws they wish to enforce. Similarly, states are prohibited from engaging in selective enforcement of federal laws. When any level of government attempts to usurp responsibilities exercised by the tier above or below it, the whole pyramid collapses. Herring’s memorandum advises municipal and county governments to stick to the format that has made our republic successful for the past 244 years.

So one wonders why Herring wishes to apply his logic only to Second Amendment issues. Virginia is full of so-called “illegal immigration sanctuaries.” In those jurisdictions, local governments refuse to cooperate with U.S. Immigration and Customs Enforcement (ICE). What’s more, they actively shield immigration violators from federal authorities. Clearly, those cities and counties are attempting to nullify federal immigration law and declare themselves exempt from it. And they do so with the full support of the Virginia state government.

In fact, Herring himself has strongly supported Virginia officials who have thumbed their noses at both the Immigration and Nationality Act (INA) and ICE’s authority to enforce it. He has unabashedly declared that state law enforcement officials who hold immigration violators on the basis of detainer requests issued by ICE risk violating the Fourth Amendment prohibition against unreasonable seizure. And he has consistently interfered with efforts by Virginia law enforcement agencies to cooperate more closely with federal immigration authorities in order to remove dangerous, criminal aliens from Virginia’s communities.

But, according to Herring’s logic, neither Second Amendment sanctuaries, nor immigration sanctuaries are lawful. The U.S. Constitution grants the federal government exclusive authority to regulate immigration. As a matter of law, state and local government officials have no say in how, where or when the federal government chooses to enforce the INA. In fact, the Supreme Court explicitly stated this, in 2012, in its holding in United States v. Arizona.

So, why did Second Amendment sanctuaries provoke a sternly-worded memorandum telling local officials to play nice when the attorney general’s office has not uttered a single word about immigration sanctuaries? Clearly this is an instance of profound hypocrisy — a case of, “Do as I say, not as I do.” Because, while he professes to believe that Virginians should hew closely to the principles of constitutional federalism when addressing public concerns over gun control legislation, Herring is perfectly comfortable obliterating any distinctions between federal and state powers — or executive, legislative and judicial functions, for that matter — when it comes to immigration.

If we, indeed, live in a country that is ruled by distinct levels of government that are intended to exercise limited powers in defined spheres, then state and local governments should, as Herring suggests, either petition Congress to change laws they don’t like or file lawsuits seeking to overturn them. But that approach, which is dictated by our system of Republican democracy, should be the standard procedure regardless of the issue that is subject to debate — guns, immigration or anything else.

Meanwhile, Virginia residents who support the rule of law are still waiting for Herring to advise illegal immigration sanctuaries that their policies are both illegal and unacceptable.

Matt O’Brien is director of research at the Federation for American Immigration Reform (FAIR), a nonprofit group advocating for legal immigration. He previously served as assistant chief counsel with U.S. Immigration and Customs Enforcement and as a division chief with U.S. Citizenship and Immigration Services. He lives in Virginia.