Faisal Gill, the official Republican nominee for the 51st in the District House of Delegates, had a press conference today in which he called for elevating the penalty for hiring an illegal alien to a felony. It’s an interesting idea, although there may likely be a federal preemption in this regard and the Commonwealth may not have the legal authority to directly enforce immigration law in this way. Federal laws regarding penalties for employers who hire illegal aliens are defined in 8 U.S.C. Section 1324(a)(h)(2) which prohibits criminal or civil sanctions against employers, and Gill’s proposal may run afoul of this provision of federal law. While the intent here is laudable, this looks more like a miss than a hit.
The federal restrictions on states and localities in regards to immigration issues create a terribly difficult legal terrain that has to be navigated very carefully. Supervisor Stirrup consulted with constitutional lawyers pretty extensively when drafting his proposals in Prince William County in recognition of how deliberate legislators must be when they enter this policy area. While Faisal Gill clearly has the right idea here, it’s going to take a more deliberate approach that depends on the constitutional authority of states and localities to control licensing and permitting to overcome federal preemptions and equal protection issues, and this proposal doesn’t seem to conform with those requirements. He might want to talk with the Immigration Reform Law Institute and get up to speed on this area of practice.
Fortunately his opponent, Democrat Paul Nichols, also misses the boat here. Instead of addressing the legal issues here he focuses on his potentially faulty read of the the effects of this proposal, he falls back onto tired arguments that this is a federal issue and that the state and localities don’t have the power to do anything, which they actually do. Nichols blew an opportunity here, since he could have argued that this was simply the wrong approach to correct a real problem. Instead he ends up looking like an apologist for the illegal aliens.
Neither of these candidates, who are attorneys, has demonstrated a clear understanding of the issue. It’s going to be a race between them as to who can get educated about the legal landscape here and develop constitutionally defensible positions which will connect with the voters. In this opening salvo, Gill wins simply because he grasps that there’s a serious problem here that needs addressing, even if his solutions would never stand up to legal review. That advantage may not last for long, though.
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