Editor’s note: This commentary is by Sen. Dick Sears, of North Bennington, a Democrat who represents Bennington County and Wilmington in the Vermont Senate. He is chair of the Senate Judiciary Committee and a member of the Senate Appropriations Committee.
[E]arlier this month I sponsored a bill, “an act relating to freedom from compulsory collection of personal information” (S.79), which has rare tripartisan support, as does its companion bill in the House of Representatives.
The legislation was proposed by our Republican Gov. Phil Scott and Democrat Attorney General TJ Donovan. Further, it was drafted through a consensus process that involved input from the Office of the Governor and Attorney General’s Office, the Vermont Department of Public Safety, Sheriffs’ Association, Association of Chiefs of Police, State’s Attorneys and Sheriff’s Offices, Office of the Defender General, legislative leaders and the agencies of Transportation, Agriculture and Human Services.
This diverse group came together to protect the civil rights of Vermonters and Vermont’s rights as a sovereign state following three executive orders issued by President Donald Trump in late January. Broadly, the orders sought to act on President Trump’s campaign promises to crack down on immigration and refugee resettlement.
All can agree with the need to protect our state and our country from terrorists who seek to infiltrate our borders. However, the president’s orders did little to solve this challenge and had many adverse consequences.
The act we introduced aims to address some of those consequences at the state level. (Editor’s note: The bill passed unanimously in the Senate last week.) Despite its consensus development, tripartisan support and the very narrow scope of the act, there have been many misperceptions, some that are simple mischaracterizations in the press and some are being manufactured and propagated by the president’s staunchest supporters. So, I’d like to set the record straight.
First, it is important to note the rich cultural heritage, ethnic diversity and economic prosperity immigrants have historically brought to our state. Second, we are committed to upholding the state Constitution, particularly as it relates to religious freedom and the guarantee of common benefits and protections for all Vermonters. Vermonters have a right to privacy with respect to religious affiliation. Vermonters also must be afforded the benefits and protections of law enforcement and public safety without regard to their sex, sexual orientation, gender identity, marital status, race, color, religion, national origin, immigration status or disability. These findings are an important expression of our Vermont values.
For those concerned that declining to enter these agreements would mean Vermont is violating federal law or establishing a “sanctuary jurisdiction,” please keep in mind there is a difference between prohibiting or restricting federal enforcement and the state’s 10th Amendment right not to be commandeered into performing federal duties.
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The state also has a compelling interest in fostering communities where all persons are willing to engage with law enforcement and other officials by reporting emergencies and crimes, and acting as witnesses. Vermonters must feel confident they can send their children to school, participate in economic activity and seek health care without being singled out on the basis of personally identifying characteristics.
This bill also makes clear that Vermont is going to stand up for its 10th Amendment rights under the U.S. Constitution. The president’s executive orders and the recently released memoranda from the secretary of homeland security clearly set out the federal government’s intent to expand the use of so-called 287(g) agreements and engage with the states to perform federal immigration enforcement functions. The 287(g) agreements with U.S. Immigration and Customs Enforcement, and 1401(i) agreements, with Customs and Border Control, both under the jurisdiction of the Department of Homeland Security, would have state and local officials performing federal immigration enforcement functions at the cost of the state and localities. Local officers would report not to local supervisors, chiefs or sheriffs, but directly to the federal government. This sort of federal overreach to commandeer state resources for a federal purpose would violate the 10th Amendment of the U.S. Constitution, which prohibits the federal government from “compel[ling] the States to enact or administer a federal regulatory program” or “commandeering” state government employees to participate in the administration of a federally enacted regulatory scheme.
The legislation we put forth does two things. First, it provides the governor with the sole authority to enter into 287(g) and 1401(i) agreements, which is critical – and appropriate – to assuage fears that local law enforcement could potentially enter such agreements with the federal government and perform law enforcement functions as federal officers. In this case, the governor has made clear that to protect the sovereignty of Vermont, he would decline to enter agreements to extend federal functions to state and local law enforcement except as required on a limited, case-by-case basis for very specific law enforcement at the border in areas such as narcotics and human trafficking.
What this provision does not do – nor does any provision in the legislation – is disturb or affect, in any way, the existing cooperation between state and federal officials for purposes of law enforcement. It does not affect what many refer to as the “Stonegarden Program,” a very successful federal grant program which enables cooperative working relationships between state and federal officers at the border. It does not impede local law enforcement from doing their jobs, nor does it limit the federal government from enforcing immigration laws.
For those concerned that declining to enter these agreements would mean Vermont is violating federal law or establishing a “sanctuary jurisdiction,” please keep in mind there is a difference between prohibiting or restricting federal enforcement and the state’s 10th Amendment right not to be commandeered into performing federal duties. The federal government has the right to hire more immigration officers. It does not have the right to require Vermont’s state or local employees to perform those federal duties.
The second provision of the legislation pre-emptively and proactively prevents the collection of information regarding religious beliefs, practices or affiliation of any individual for purposes of a federal registry. It also prevents the disclosure of certain personal information with the federal government for purposes of a federal registry based on personal characteristics. Those characteristics include gender, sexual orientation, gender identity, marital status, race, color, religion, national origin, immigration status, age or disability.
The bill is clear that this provision is limited to the collection or sharing of information when it would be used to maintain a registry based on an individual’s personally identifying information. These prohibitions are not intended to interfere with Vermonters’ free and equal access to benefits and protections or the collection or sharing of data necessary to provide benefits and protections. The state and law enforcement share, and will continue to share, information to enforce Vermont law and to work with federal partners on drug task forces, human trafficking networks, and to prioritize immigration enforcement concerning individuals who pose a threat to Vermont’s public safety.
The symbolism of this legislation is as important as its protections. The president’s executive orders and the recent implementation memoranda have instilled fear across the state and the nation, including among those here legally. It is critical we don’t push those individuals into the shadows. Law enforcement officers and state officials cannot do their jobs if individuals avoid interacting with them. If they don’t seek needed care, report crimes or cooperate in investigations for fear of being added to a registry or being detained based on their appearance or religion, that jeopardizes the safety of all Vermonters.
Opinions will continue to vary on this issue – and that’s a part of being American – but I hope we can all agree on the facts, and on the need to uphold our values and our constitutionally protected freedoms.