The Wrong Approach to Immigrants

In Attorney General Ken Cuccinelli’s view of immigration in Virginia, it appears, traffic stops by police to check on the immigration status of the driver and others in the vehicle are acceptable.

That would not only add an additional burden on local and state police, it also flies in the face of a federal judge’s order blocking enforcement of a recent Arizona law. That order blocked the Arizona law’s key provisions, including the requirement that officers inquire about immigration status when they have reason to believe a person they’ve stopped may be in the country illegally.

And consider this: Virginia isn’t Arizona.

But Del. Robert Marshall, R-Prince William, would have you believe that the problem of illegal immigrants in his Northern Virginia county is just as bad — or worse — than it is in the far southwestern United States, which borders on Mexico.

In response to a request from Marshall, Cuccinelli, also a Republican, issued an opinion last week saying law enforcement officers in Virginia who have stopped somebody can ask about their immigration status and whether they are in the United States illegally.

The opinion also said that Virginia police officers can now ask that anyone suspected of being an illegal immigrant prove that he isn’t. That “show-me-your-papers” approach to law enforcement should be repugnant to most Virginians.

Under current state law, authorities are required to check the immigration status of individuals who are taken into custody on specific charges. That law, however, does not provide for the fishing expedition that Cuccinelli would like for police to conduct.

So what do Virginia police think about the opinion. Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said that depending on the priorities of the locality, police approach immigrants in a variety of ways. In some localities, she said, police don’t ask about immigration status because doing so could have “a chilling effect” on the immigrant community’s cooperation with law enforcement.

Schrad emphasized that the attorney general’s opinion was not requested by law enforcement. She added that she received no questions from the association’s members about the issue before or after the opinion’s release.

Marshall, the legislator who did ask for the opinion, represents a county whose crackdowns on its large immigrant population drew national attention in 2007 and 2008. In getting the opinion he thought he would get, the conservative lawmaker then sought to make an end run around the legislative process. He told The Washington Post he chose to seek the legal opinion because he feared that the State Senate, under Democratic control, would not approve legislation permitting law enforcement officers to ask about legal status during routine stops.

Marshall asked Gov. Bob McDonnell, also a Republican, last week to codify Cucinnelli’s opinion through executive order. A spokesman for the governor said he is reviewing Cuccinelli’s opinion. That’s not the Virginia way, either.

Most Virginia constitution scholars, including A.E. Dick Howard, a law professor at the University of Virginia and the author of the modern Virginia constitution, agree that McDonnell does not have the authority to tell local police to act against immigrants. Only the localities themselves and the General Assembly can do that.

And that’s where the authority to broaden such a law checking on the status of anyone suspected of being an illegal immigrant should remain. Legislative debate, at least, would show how offensive the law would be.

Virginia lawmakers should not rely on some legislative edict from an attorney general seeking to advance own his ideological agenda.