Virginia House Democrats on Wednesday unveiled legislation that would restrict federal law enforcement officers from making immigration arrests at certain locations, even as they sidestepped questions about how the proposal would square with the Constitution’s Supremacy Clause, which establishes federal law as supreme.
House Democrats did not offer an answer on the Supremacy Clause, but an immigration attorney told Virginia Scope there is recent legal precedent for achieving the bill’s aim.
The legislation filed by House Democrats would ban federal officers from enforcing immigration laws in certain areas, such as hospitals, schools, or attorneys’ offices. The bill would charge federal officers with a Class 1 misdemeanor for conducting immigration-related activity in those areas.
“That will all come up during the committee hearings next week,” said Del. Marcus Simon, D-Fairfax, when asked to explain the rationale behind the legislation.
“Public safety is a core responsibility of the state and local government,” Simon said in response to a follow-up. “Ultimately, our responsibility as legislators is to ensure the public safety of Virginians, and we’re gonna do what we need to do, pass legislation we need to pass to ensure their public safety.”
Miriam Fisher, an immigration attorney in Virginia, said the Tenth Amendment to the U.S. Constitution gives states authority over their own institutions, like state courthouses.
Federal law enforcement officers conducted immigration arrests in Chesterfield County last summer.
Chesterfield Sheriff Karl Leonard said at the time that he did not have the authority to stop the federal officers from operating in the courthouse.
Fisher pointed to the anti-commandeering doctrine, which prohibits the federal government from forcing state legislatures or executive officials to implement, administer or enforce federal regulatory programs.
“Under the Supremacy Clause, where a state law and a federal law conflict, the federal law generally wins. However, there is no federal law that explicitly authorizes civil immigration arrests at places like state courthouses, so a state law limiting that doesn’t create a conflict,” Fisher said.
New York state passed a law that prohibits immigration arrests in state and local courthouses. That law was upheld against a challenge from the Trump administration in November, with a federal judge in the Northern District of New York ruling that a common-law privilege against civil courthouse arrests exists.
“That law was upheld by a federal district court judge in New York last year, so there is legal precedent for state-level restrictions,” Fisher said.
“This would likely only apply to civil immigration arrests without a judicial warrant,” she continued.
The House legislation does not specify that it only covers civil arrests, but the Senate version, sponsored by Sen. Saddam Salim, D-Fairfax, does.
Saddam’s bill applies only to courthouses, schools and places of faith-based worship.
The Courts of Justice Committee took it up on Wednesday afternoon and advanced it on party lines.
Lopez is also sponsoring legislation in the House that would ban federal law enforcement officers from making immigration arrests at polling locations.
In a joint press gaggle, House Republican Leader Terry Kilgore, R-Scott, and Senate Republican Leader Ryan McDougle, R-Hanover, talked about the Democratic proposals.
“We have no jurisdiction in this area,” Kilgore said.
The top Democrat in the Senate, Majority Leader Scott Surovell, D-Fairfax, acknowledged the difficulty of enacting state law against federal agents in a comment to the Richmond Times-Dispatch.
“There’s a lot of members of my caucus that want to take action based on ICE’s jackbooted tactics, but it’s a very complicated area of the law, because they’re federal law enforcement agents, and we typically can’t regulate federal agents,” Surovell said to the RTD. “But we’re looking at what other states have done, and we’re considering options.”