Don’t reverse the Bill of Rights

The State of New York, during President Donald Trump’s first week in office, is battling for its soul.

The state’s elected leaders are seeking to preserve the rights they believe the United States Constitution and the nation’s laws provide for citizens and refugees.

Our electronic mailbox has been filled with their pronouncements. After Trump’s executive order on Friday, Jan. 27, which put a 120-day hold on allowing refugees into the country; an indefinite ban on refugees from Syria; and a 90-day bar on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — including green-card holders, legal residents who had been through rigorous vetting —  Governor Andrew Cuomo stated the next day, “We are a nation of bridges, not walls, and a great many of us still believe in the words ‘give me your tired, your poor, your huddled masses….” he concluded, quoting the poem on the base of the Statue of Liberty that stands in New York’s harbor, welcoming generations of immigrants.

Congressman Paul Tonko, representing the Capitol Region, issued a statement on Sunday: “Many of the refugees affected by President Trump’s actions are families that face real dangers from America’s most brutal enemies if they are forced to return. The vetting process they went through to get here was already extreme. Throwing them back to the wolves is beyond wrong. It is inhuman and un-American.”

On Monday, Jan. 30, Tonko announced introduction of the Statue of Liberty Values Act, a bill that would rescind Trump’s order banning travel from seven Muslim countries and suspending the United States refugee program. “This program is not only safe, it makes us safer by showing the world that we stand by our principles and protect those who cherish them,” Tonko said. “In the process, we have welcomed world-class doctors, engineers, innovators, businesspeople, and so many other contributing members of our communities.”

On Saturday, New York’s attorney general, Eric Schneiderman, stated, “President Trump’s executive action against war refugees represents a new low in modern American foreign policy and it is incumbent on us to fight back.”

The next day, after several federal courts ordered a stay on Trump’s executive order, Schneiderman issued a release saying that he and attorneys general from 15 other states — California, Pennsylvania, Washington, Massachusetts, Hawaii, Virginia, the District of Columbia, Connecticut, Vermont, Illinois, New Mexico, Iowa, Maine, and Maryland — would work together “to ensure the federal government obeys the Constitution, respects our history as a nation of immigrants, and does not unlawfully target anyone because of their national origin or religion.”

He went on, “Religious liberty has been, and always will be, a bedrock principle of our country and no president can change that truth.”

What we see happening is individual states — and even individual cities — taking on the president while others support his initiatives. While we’re pleased to live in a state that values the laws of our land and the richness of our immigrant heritage, we see the splintering from these hasty and ill-thought-out executive orders as potentially devastating for all Americans. We should not be a country of blue states pitted against red states.

Will immigrants who feel threatened move to states that protect them? And what about global issues like climate change? If a state like New York is progressive in requiring half of its electricity to come from renewable sources by 2030, where does that leave us in competing with states that lift all regulations for carbon emissions? And, more importantly, where does that leave the world as natural disasters increase with climate change?

As a local paper, we look at national issues through a local lens. Two weeks ago, when Schneiderman issued guidelines for police departments across the state to follow as part of the sanctuary movement, he stated, “Public safety relies on trust between law enforcement and the communities they serve. No local law enforcement agency should have to undercut that trust just to carry out Donald Trump’s draconian immigration policies.”

The heart of his model is that police should be instructed not to question a person’s immigration status unless they have a reason, like a court order, to do so.

Schneiderman says that his model, in addition to protecting vulnerable communities and promoting public safety, would insulate local departments from legal liabilities for violating the Fourth Amendment.

An important part of the Bill of Rights, the Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Subsequent to Shneiderman’s issuing his model, in which he quoted from many leaders of so-called “sanctuary cities,” including Albany’s mayor, Kathy Sheehan, Trump issued an executive order, on Wednesday, Jan. 25, denying federal funding to sanctuary cities.

This directive got far less notice than Trump’s other directive issued that day, on building a wall between the United States of Mexico — which Trump has said would cost between $8 and $12 billion, but an analysis from MIT says would cost upwards of $38 billion (, never mind the cost from stifled trade — but is equally as troubling.

We believe the order is unconstitutional and sets a dangerous precedent as it requires cities and states to follow a presidential order without authorization from Congress.

Time and time again, the United States Supreme Court has ruled that the federal government cannot commandeer state and local officials by compelling them to  enforce federal law — a violation of the Tenth Amendment.

The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.”

It is as if our nation, since Trump’s inauguration, has returned to the bitter battle that led to the Bill of Rights in the first place — limiting federal power by guaranteeing personal freedoms and rights. Those compromises have stood us in good stead for nearly 230 years — why should we abandon them now?

We spoke with two level-headed local leaders — Guilderland’s police chief and schools superintendent — to see where Trump’s directive and the countervailing responses from our state leaders left them. Schneiderman answered Trump’s executive orders on sanctuary cities losing their funding by saying, “The President lacks the constitutional authority to cut off funding to states and cities simply because they have lawfully acted to protect immigrant families…Local governments seeking to protect their immigrant communities from federal overreach have every right to do so.”

Guilderland’s police chief, Carol Lawlor, said that, while her department in the past has worked with Immigration and Customs Enforcement, a federal agency known as ICE, for instance in recent arrests at a Guilderland massage parlor, she said, “We would not stop people for what they look like.” She also said, without proper authorization, such as a court warrant, “We don’t go out and collect information.”

Lawlor said the biggest case in her decades-long career with the Guilderland Police Department was the still-unsolved 2014 murder of a Chinese family — a mother, father, and their two young sons. Lawlor said the district attorney made the right move when he announced anyone with information about the crime should come forward and report it, that their status in the country wouldn’t be relevant.

“That instills trust,” she said. “What they had to say would be important; solving the crime was important — not their status.”

Lawlor concluded of Trump’s Jan. 25 directive, “It’s all so new…We’ll do whatever we’re legally supposed to be doing.”

Ah, there’s the rub.

What is a police department legally supposed to be doing? Following a presidential directive or following the guidelines set out by the state’s attorney general?

We would hope local and state police departments would follow Constitutional law before a presidential directive that lacks congressional backing, but it puts them in an untenable position.

Perhaps a state law will soon provide some guidance; a bill was just proposed last week by Assemblyman Francisco Moya from Queens who writes in a memo, “Currently in New York State, many immigrants avoid interaction with state and local agencies out of distrust or fear…Immigrants should not have to fear reporting crimes to the police or seeking emergency health care.”

In addition to ensuring immigrants aren’t denied access to state or local services, Moya’s bill would keep state and local agencies from helping the federal government create or maintain registries “on the basis of race, gender, sexual orientation, religion, national or ethnic origin.”

The same dilemma local police now face — choosing between federal and state directives — may soon vex school leaders as well. Currently, public school systems are working under a federal directive that requires them to accept all students who live in their district.

In 2011, the federal departments of Justice and Education issued guidelines so that schools across the country would understand their responsibilities under the Supreme Court's decision in Plyler v. Doe and federal civil rights laws to provide all children with equal access to an education regardless of their or their parents' immigration status.

“We’re not allowed to ask about documentation,” said Marie Wiles, superintendent of the Guilderland schools. “When a student comes to us, our job is to register the student.  We never ask for paperwork to verify citizenship…We follow all the rules.”

But what if the rules were to change? Following the trajectory of Trump’s directives thus far, we asked the State Education Department what its stance would be if the federal government were to require schools to turn over information on students with undocumented families.

We admire education department spokeswoman Jeanne Beattie for giving an on-the-record response to our question: “Every child,” she said, “regardless of immigration status, has the right to attend school where he or she lives. That’s the law in New York and it’s simply the right thing to do. We are closely monitoring actions taken at the federal level.”

We agree with that stance and fervently hope schoolhouse doors will remain open to all.

In the meantime, Wiles described for us a school system that could well serve as a model for the rest of America. “Overall, our students embrace diversity,” she said.

Wiles said there were some ripples of worry after Trump’s election when several students “voiced concern they couldn’t stay here.”

When we spoke with her, she had just come from a classroom at Guilderland Elementary School, which, like Westmere Elementary, has close to 20 percent of its students coming from families who are new to the United States.

“It looked like the United Nations,” she said of the Guilderland classroom. “The students were working together, happily helping each other.”

Wiles said the district’s outreach to foreign students goes beyond the classroom, involving their parents and others in school functions and multi-cultural events.

She concluded, “I don’t know what the future will bring. I’m confident at Guilderland we’ll continue to welcome children and give them a safe place to learn and give them a model for what America is all about.”

We hope her vision is sustained. Whether it’s marching in the streets or backing local measures — Albany County as a sanctuary county or Guilderland as a sanctuary town? — and state measures that protect our Constitutional rights, we urge our readers to get and stay involved.

— Melissa Hale-Spencer

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