Youngkin Blocks Deletion of the Term “Alien” From Virginia Law

FAIR Take | April 2022

The Virginia General Assembly recently followed California’s and Colorado’s examples by passing a bill that would delete the term “alien” throughout state law and replace it with a variety of other vague and legally imprecise words.  Unlike the governors of those states, however, Virginia Governor Glenn Youngkin (R) has not signed the bill.  Nor did he veto it.  Rather, he used an amendment procedure that could block this change for a year – possibly for good.

Federal law defines an “alien” as “any person not a citizen or national of the United States.”  This term has been used in federal law since the 1790’s and since the 15th century has been “the primary English term for those who are not a citizen of the country where they were residing.”  Despite this, the Biden Administration last year ordered federal immigration agencies not to use the actual language of the law. Both California and Colorado shortly followed suit.  Additionally, several other states are considering banning the term as well.

The term “alien” currently appears in more than 38 different sections of the Virginia Code.  House Bill (HB) 891, sponsored by Delegate Alfonso Lopez (D-Arlington), would delete 38 of those references and replace them with various other terms such as “noncitizen,” “immigrant” or “persons unlawfully in the United States.”  Unlike in California and Colorado, “alien” would not be removed everywhere it appears in the code.  For example, the term would remain where it is “tied to specific federal programs” and “where there might be a problematic policy issue,” according to Lopez.

The bill was introduced on January 10 and passed the House of Delegates by a vote of 78-19 on February 15.  Three delegates that initially opposed the bill later caved to pressure and expressed their “intent” to have voted for it.  However, House Speaker Todd Gilbert (R-Shenandoah) has remained firm in his opposition.

The Democrat-controlled Virginia Senate narrowly passed HB 891 by a vote of 22-18 on February 28 predominantly along party lines.  Only one Republican, Senator Emmett Hanger (R-Mount Solon), joined all the Democrats to support it.

Under the Virginia Constitution, a Virginia governor has 30 days from the bill’s receipt to sign or veto the bill or it becomes law without his signature.  He can also return the bill to the legislature with one or more recommended amendments.  An amendment by the governor, like a veto, can be overridden if two-thirds of members in each chamber oppose it.  However, only a simple majority is needed to accept the amendment and enact the bill.

On April 11, the last day for Governor Youngkin to act, he sent HB 891 back to the House of Delegates (the chamber of origin) with a proposed amendment.  This amendment would require the Virginia Code Commission to convene a working group with representatives from the attorney general’s office and “other relevant stakeholders” to review the code for terminology and to report back by November 1 of this year.  The amendment would also make the entire bill inoperative unless and until it was reenacted by the legislature during its next regular legislative session.

Since Speaker Gilbert opposes the bill, it is likely that he would not schedule a vote on the amendment and the bill would likely die.  Alternatively, the House might pass the amendment and punt the decision to the Senate.  An attempt to override Republican Governor Youngkin’s amendment by the Republican-controlled House seems unlikely.

Since the Senate passed the bill by a narrow margin, it would be unlikely to have the two-thirds supermajority needed to override the amendment.

The Virginia legislature is currently scheduled to reconvene for veto session on April 27.