Editor’s note:This commentary is by Gary Shattuck, of Shrewsbury, who is a graduate of Vermont Law School and former Vermont federal prosecutor who served as a legal adviser in Kosovo and Iraq. He researches and writes on the state’s early history from a legal perspective and his next book describing Vermont’s first opium epidemic occurring in the 19th century is scheduled for release on June 5.
[T]he unprecedented speed at which certain legislation is advancing through the Senate at the moment is something that every Vermonter should take notice of and be very concerned about. Innocuously called “An act relating to freedom from compulsory collection of personal information,” Senate bill 79 (H.228 in the House) sounds a whole new chapter in the centuries-long relationship existing between states and the national government. Obscured within its language, it is becoming increasingly clear that two things are being attempted: the creation of a new class of individuals receiving protection from state law regardless of their “immigration status” and the advancement of a contrarian position challenging cherished federalism principles.
Why should Vermonters be concerned? For no less reason than that it has a long history of assisting the federal government with national concerns, demonstrated early on by the savage murder of two Rutland militia men in 1808 in Burlington while enforcing an unpopular federal dictate of Thomas Jefferson (his Embargo of 1807). Secondly, the effort pursued by the administration, and others, to justify disparaging national policies utilizes inflammatory, misleading and blatantly incorrect language. It is the equivalent of what Abraham Lincoln called “ingenious sophistry” when he derided the South for starting the Civil War as it sought to convince the public that it was acting in a lawful manner.
These are matters that convinced me last week to communicate my concerns to several legislators, resulting in Sen. Richard Sears’ request that I submit written testimony to the Senate Judiciary Committee for its consideration. Because of the speed at which the Senate was moving, that was accomplished and provided to him in rapid order, which was then sent to the attorney general’s office and the governor’s legal counsel for review. Under consideration were several issues surrounding the bill: an over-inclusive list of protected individuals included alongside those possessing immutable characteristics (sex, race, color, age, etc.) of a singular reference to others regardless of “immigration status”; the state’s violation of federalism through its intrusive efforts into federal mandates; conflicting and confusing language making it unreasonable for law enforcement officials to comply, thereby constituting a threat to public safety; a failure to provide immunity to officers acting in good faith; and, an early attempt to turn Vermont into a safe haven, or so-called “sanctuary state.” Now, after receiving the administration’s lengthy response, I continue to have serious concerns over what is being attempted.
S.79 is the ripe example of a solution looking for a problem (“a preemptive and proactive attempt” the administration calls it to address a feared, non-existent national registry of some sort) and space limitations here only permit limited opportunity to address a couple of its deficiencies.
There is nothing remotely overreaching, compelling or coercive about the executive order in seeking to engage in conversations with state and local officials preparatory to entering into agreements, let alone touching on conscripting anybody to do anything they do not want to do.
First, it carves out a class of individuals destined to receive the protections of Vermont law, specifically those in the state regardless of their “immigration status.” This is not an immutable characteristic, but, rather a legal classification relying upon an outside authority to make that assessment. It is, as I wrote initially, “an amorphous and changing concept based upon an individual’s position within the wide scope of the federal government’s responsibility in executing our nation’s laws relating to the admission and control of aliens.”
However, from the administration’s point of view that is not the case: “everyone has an immigration status,” it responded with pointed emphasis, “just like everyone has an age, sex, race, and so on,” arguing further that the concept of “citizen” is somehow subsumed within that definition. Indisputably, an individual who succeeds in negotiating the various levels of scrutiny leading to citizenship can call themselves that, but until then they are in an indeterminate state with an “immigration status.” To infer that a native born American who is clearly a citizen upon entering the world is somehow also possessing some kind of an “immigration status” is curious reasoning and can only lead to the conclusion that S.79 seeks to carve out a uniquely new class of individuals for protection. Perhaps the administration could provide a specific definition of what it means in order to overcome this deficiency, but until it does it continues to identify a definitively separate set of individuals.
Second, the administration argues that it does not intend to violate the dictates of federalism, but employs unconvincing and, unfortunately, inflammatory language to support its position. From its perspective, S.79 was drafted to address “federal overreach by the federal government to commandeer State resources for a federal purpose” and inexplicably cites an alarmist, unfounded fear that Vermonters will be “conscripted” into doing so. In support, it refers to the 10th Amendment and attending proposition that the national government cannot “commandeer” a state to do anything it does not want to do in justification of its opposition to the recently issued executive order (Jan. 25, 2017) by the president.
However, an examination of the executive order’s language eviscerates the administration’s erroneous premise because the federal government is NOT forcing Vermont to do anything it does not want to do. In fact, it is a wholly benign process that seeks the states’ voluntary involvement in participating in the enforcement of immigration law, and in a lawful fashion. “To the maximum extent permitted by law,” section 10 provides, “the Secretary [of Homeland Security] shall … take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements,” followed by provisions relating, “to the extent permitted by law, and with the consent of State or local officials.” In short, this is clearly intended as a lawful, cooperative, consensual relationship and is hardly demanding a state to participate. There is nothing remotely overreaching, compelling or coercive about the executive order in seeking to engage in conversations with state and local officials preparatory to entering into agreements, let alone touching on conscripting anybody to do anything they do not want to do.
Finally, why does this legislation even exist if not to try and throw sand into the federal machinery of a policy the administration does not agree with? It’s unwillingness to assist the federal government is something that a simple letter could accomplish. So, why such an effort unless it constitutes an early attempt to turn Vermont into an extra-legal “sanctuary state”? While the former proposition is clearly its intention, why are there not words being expressed to allay the concerns of skeptics that the latter will not take place?
In the end, S.79 and H.228 are of wobbly construction (Lincoln’s “ingenious sophistry”), not worthy of our state’s past as a strong supporter of our national government. There is little in the current flow of events that warrants the radical consequences that these bills offer and is a precipice that we need to step back from now.
