While the public debate between the Attorney General’s office, members of the House of Delegates and Prince William Chairman Corey Stewart regarding proposed legislation to help reduce the number of illegal aliens unlawfully residing in Virginia has been occasionally contentious, this nearly unprecedented public policy debate should give plenty encouragement to residents who have waited so long for effective action by the General Assembly. We never see this kind of open discussion about proposed legislation before the session starts and we certainly don’t see so much effort put into making sure what results is effective, constitutionally sound, and narrowly tailored to address specific issues. I’ll take this situation any day.
Just think back a few years when a transportation solution was making it’s way through the sausage mill. It seemed that every few days there was another proposal coming out of the blue with little if any analysis and review, and subjected to a vote so quickly few had any time to ponder what the results would be. Ultimately that poorly constructed HB3202 got thrown out by the State Supreme Court as a result by a challenge by Delegate Bob Marshall, and we pretty much ended up with nothing but adding the term “abusive driver fees” to our political lexicon for a while. That kind of approach - ready, fire, aim - unfortunately characterizes a lot of the legislation that gets considered by the General Assembly. When proposals are drafted among a very few people without any transparency in the process, and refined little beyond what only the attorneys with Legislative Services recommend, oftentimes the results aren’t quite, well, optimal, to put it kindly.
Instead, on this issue we have Corey Stewart trying to promote the “Rule of Law Act” which was crafted with the help of the Immigration Reform Law Institute (IRLI), and a number of separate bills being drafted by veteran legislators such as Delegate Scott Lingamfelter who spent some time down in Arizona talking to those on the front lines and learning from their experience. Both of these approaches have a lot of merit, but likely neither of the initiatives alone suffice to adequately address the issue while keeping carefully within constitutional bounds. With Attorney General Cuccinelli being drawn into the debate, the debate has dramatically shifted into a very detailed legal discussion that will ultimately inoculate whatever results from the most serious charges of constitutional prohibitions. It’s starting to get difficult for laypeople to follow, but the more tough homework done up front, the more likely we are to pass the test that will almost certainly arrive.
Stewart’s proposals draw heavily from the work of IRLI which can be rather creative in their approaches to drafting public policy alternatives. IRLI has a pretty mixed record in terms of having their proposals survive court challenges, but in their defense most of the cases in which they are involved haven’t even made it through the appellate process, so their record might turn out to be a lot better than it looks right now. Some of the creative approaches to the issue they’ve invented have gotten mired down in litigation in Farmers Branch, TX and Hazleton, PA. When their solutions have gotten plenty of review and perhaps some modifications before getting proposed as law, such as here in Prince William, the results can be excellent, however. Even though the folks at IRLI are formidable experts in federal constitutional law, they’re not experts in state law, so from thei start their proposals are a first cut, at best.
The members of the House of Delegates have a much firmer grasp on what Virginia law in this regard, and to plus up their understanding they took the approach of visiting border states to get a firmer understanding of the problem as manifested there, learn how those states drafted legislation, and measure what effect that legislation had. While talking to the legislators who worked on SB 1070 is undoubtedly helpful, those states don’t always have a perfect track record in litigation either, although those cases haven’t even started the appellate process. Lacking from their perspective often is extensive heavy lifting in terms of federal constitutional law, although they rarely try to bite off really big chunks of legal precedent, which lowers the risk.
Now we’ve got Attorney General Ken Cuccinelli weighing in, and his legal track record is probably the best of the bunch, although he is absolutely not someone to try to push legal limits despite what his detractors say about him. “Cooch” has always been very legally cautious about the legislation he’s proposed as a Senator, and almost maddeningly so (to many conservatives who would like a little more legal problem solving out there) in his legal opinions. As a strict constructionist, there are often times conservatives get answers they don’t want to hear from “Cooch”, but not only are the opinions fair, they’re also rebuttable without any resulting personal vindictiveness. If only our Commonwealth’s Attorneys tended to be so professional.
So within conservative ranks we’ve got plenty of folks out there who want to get the job done, and they’re fighting pretty hard and pretty publicly to get their solutions through the General Assembly. Competition like this is good. It not only gets the best proposals through, but having conservatives fighting amongst each other to some degree to address this serious issue is a real novelty. During the past three sessions, we had to do a fair amount of arm-twisting to get proposals like these moving. This time the elected officials are fighting to get public support for their initiatives. I’ll take that kind of progress any day.
The end result is going to closely resemble the same sausage grind that all other legislation turns out to be, only with much better ingredients, and hopefully this eventual success with have as many fathers as there are interested elected officials, to mix a metaphor or two. I don’t care too much about how any of this gets done, but as long as it does and we get fewer instances of the effects of illegal immigration such as drunken illegal aliens killing innocent people on our roadways, I’ll just be satisfied that this time, it does get done.
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