Officials Face Constitutional Complexities

Officials Face Constitutional Complexities

By Bill Turque
Washington Post Staff Writer
Friday, September 7, 2007; Page B05

For elected officials who promised Northern Virginia voters that they would make their communities less hospitable to illegal immigrants, Herndon Town Council member Dennis D. Husch has some advice: Read up on the Constitution.

Husch and the council decided Tuesday to close the town's day-laborer center, in large part because of a Fairfax County Circuit Court judge's ruling that the site must be open to all residents, including illegal immigrants. He said Mayor Stephen J. DeBenedittis and other council members were unprepared for the legal complexities they faced in seeking to operate a labor site that didn't serve undocumented immigrants.

“At the end of the day, I'm supposed to be worrying about streetlights and potholes,” said Husch, not “that pesky 14th Amendment.”

That amendment, which promises equal protection under the law, must be universally applied, said Judge Leslie Alden, citing Supreme Court rulings.

As officials in Loudoun and Prince William counties consider how to fulfill promises to crack down on illegal immigration, equal protection is only one of the deeply rooted constitutional principles they will have to address, experts on immigration law said yesterday. County officials will be wading into legal waters where freedom of speech, due process and right to free assembly are as critical as the zoning ordinance. Some say they will find that the gap between campaign rhetoric and legal reality is broader and deeper than first imagined.

“The presumption in general seems to be that if someone is here illegally, they have no rights other than to be put on an airplane and sent home,” said Reston immigration lawyer Charles A. Tievsky. “You're looking at a fairly deep body of law that says if someone is in this country, they are entitled to a pretty fundamental array of constitutional rights.”

Local officials say they are only stepping into a vacuum created by federal inaction. States, counties and municipalities across the country have drafted bills aimed at curbing illegal immigrants' access to government services or empowering police to take a greater role in enforcing federal immigration law.

Prince William Board Chairman Corey A. Stewart (R-At Large) told a U.S. House subcommittee yesterday that the federal government needs to clarify the extent to which localities can enforce immigration law. “Local governments and law enforcement agencies need the greatest level of immunity afforded by both the federal and state governments,” Stewart said, according to a prepared statement.

But some courts are taking a dim view of local involvement in enforcing immigration law. In July, a federal judge struck down a Hazleton, Pa., ordinance denying business permits to employers who hire illegal immigrants and fining landlords who lease to them. Judge James Munley said such laws encroach on federal powers and violate rights to due process. This year, a federal judge barred the Dallas suburb of Farmers Branch from enforcing a similar rental law.

Prince William and Loudoun, which passed resolutions directing staff members to examine which services the counties can lawfully withhold from illegal residents, have discovered that their options are not as broad as originally thought. Most key programs, such as food stamps and Medicaid, require the county to verify immigration status. Some immigrant advocates said yesterday that they doubted that any serious policy changes would emerge from the local debate.

“I really don't believe that any of the local ordinances will be finalized,” said Vienna lawyer Parastoo G. Zahedi.

Former Herndon mayor Michael L. O'Reilly said the resolutions were more political theater than an attempt to change policy. “Most of these resolutions were done for purely political reasons, to make a statement saying, 'I'm against illegal aliens.' They have little or no effect.”

Herndon officials said one reason that they elected not to appeal Alden's ruling was to avoid protracted and expensive litigation. Instead of using the labor site and the town's anti-solicitation ordinance to regulate the hiring of day laborers, the town will fall back on established zoning and traffic safety statutes to keep such activity off the streets.

But communities using that approach also have been successfully challenged in court. A federal judge in California ruled last year that day laborers in Redondo Beach had the right to look for jobs on public sidewalks. In November, a federal judge ruled that officials in the New York City suburb of Mamaroneck had harassed day laborers in a racially motivated attempt to discourage them from seeking work on the streets.

Kent Willis, executive director of the ACLU of Virginia, said his organization and immigrant rights groups will monitor whether day laborers are allowed to find work on the streets of Herndon.

“The First Amendment guarantees a fundamental right for individuals to communicate with each other,” he said. “This would mean the weather, politics or employment.”