20 January 2018

Poor enforcement of immigration law is unjust

Some say the United States is governed by the rule of law, and that is true to a degree. While many would say that we strive to provide equal protection for all people under a just set of laws, many would admit that is an unreached ideal. Indeed, for many that goal lies beyond their sight.

That laws must be respected and obeyed is a statement that begs qualification, for what is the moral justification for respecting and obeying unjust laws? Setting aside a the deeper discussion of "what is just", etc., let us for the moment take a "we know it when we see it" perspective for the sake of illustration.

For instance, let's say "thou shalt not kill" is a law, but it is qualified by "unless you are wearing a blue shirt and use a knife between 8 and 14 inches in length, then you can kill whoever you want". That doesn't require deep philosophical introspection to fail WKIWWSI.

Now, let's say it's illegal to be between 72 and 73 inches in height. That also doesn't seem to serve the cause of justice, and one might expect that would induce a market in shoes with concealed lifters.

How about, then the legality of a non-citizen infant or child brought illegally to the United States? Libertarian arguments about the legitimacy of citizenship aside, let us accept that there are arguments to be made for a sovereign people to exert over control over their citizen's public and private property through immigration policy. Now, if the law was enforced quickly and the child was returned from whence it came, it would be back, more-or-less in its prior state with whatever disruption the travel has imposed upon it. That may not be kind, but its life might have been little impacted in comparison to a clone that had never made the trip in the first place. The point of this argument is not about the cruelty of some perfectly implemented zero immigration policy: it's the justice of the slipshod enforcement of an immigration and guest worker policy that provides incentives for people to work outside that system.

By refusing to establish and enforce policies that encourage participation in the legal immigration system, the US Federal Government has invited a vast number of immigrants to be here illegally. Undocumented doesn't make a lick of sense, since many of them absolutely are documented with driver's licenses, registration with DACA, high-school and college diplomas and the like. And, by the willful refusal to establish and enforce reasonable policies over the years, the USG has created a moral condition that enforcement of the law via deportation renders the law unjust for a large swath of people who have really known no other life than the one here, or who have been here so long that they have become more-or-less cut off from their lives in a previous country.

Not only is the moral hazard pernicious, it renders the rule of law a contemptible artifact and undermines the foundations of our republic. Just as slavery and Jim Crow laws eroded and debased our founding principles, so too does a wink-wink, nudge-nudge enforcement of immigration laws. You cannot have equal protection for all people under just laws if the laws don't actually mean anything. Similarly, you can't have just laws if they're not just.

Now, a big part of the issue is that most the congress don't care about any of this. Their main objective is to raise funds so they can get on committees and pass laws that spend tax dollars and debt accrual on pet projects and constituents. If they were serious, they could write out a solution in a page or two of Simple English. Key components would include:
  • Clarification that recent and further illegal immigration will not be tolerated
  • People here illegally for more than some number of years will be given permission to stay (work permit), but put at the back of the queue for green card and citizenship
  • Provide a working E-verify system and punishment for people who hire illegal immigrants outside E-verify*
Where the cut-off for stay or go is negotiable but it's before yesterday and after twenty years ago. As for "chain-migration", the notion that just because one person manages to get in that a whole and ill-defined group of people should just magically be privileged to cut the line in front others is grossly unfair. Extended family can get in the line like everyone else and take advantage of the "resident privilege" that their States-side relatives extend to them just by being here. Or, if people want to do the chain-migration thing as part of policy, then admission should be based on the evaluation of the entire group to be let in and not on some random walk based upon who is related and happens to show up knocking on the door.

Border enforcement is important, but it should largely be aligned with drug interdiction activities. Wacky drug policy which makes drug interdiction policies necessary is a discussion for another time.

Leaving immigration policy poorly conceived, implemented, and enforced is not only immoral and unjust, it erodes the rule of law and the principles upon which the United States are founded. The hypocrisy on both sides of the aisle is rank, and the longer congress leaves this unresolved, it merely proves how unserious they are about creating a more perfect Union.

* Immigration is the purview of the USG, so if a legal status is required for work and benefits, then it needs to have some reliable means for establishing the validity of that status. E-verify used here is simply that means, and not necessarily some pre-conceived specification, design, or implementation.

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