May 10, 2010

The Sad Spectacle of US Immigration Policy

by Hal Gershowitz

Comments Below

The apparent absence of grownups in the Administration and in Congress (not just this Administration and not just this Congress) has produced a truly sad, and indeed, scandalous spectacle.  History will not treat our current ruling class kindly with respect to immigration policy, nor should it.  If our own federal government doesn’t show sufficient respect for our nation’s borders, why should we expect anyone else to?

Clearly, the federal government has the sole authority and responsibility under the constitution to protect the nation’s borders.  But if the government fails, utterly fails, to discharge that responsibility or, worse, fails to even show an inclination to secure its borders, it is entirely reasonable that border states will attempt to do what the federal government has refused to do.  Sneaking into the United States in violation of all of our immigration procedures is a serious violation of our laws. Ignoring the law, or doing little or nothing to enforce the law, does not make illegal immigration any less illegal.

Arizona, the state with the most porous border, and with the highest ratio of illegal immigrants to population has enacted legislation (SB 1070) in an attempt to discourage the flow of illegals into its jurisdiction and to have sent home those illegals whose actions have raised reasonable suspicion of other violations of the law.   It is suspected violations of the law other than illegal entry that authorizes law-enforcement officers to inquire into one’s resident status, not the color of one’s skin, not one’s accent or one’s social customs.

SB 1070, contrary to what so many media talking heads and opportunistic politicians have suggested, is not a reincarnation of Nazi Germany’s Nuremberg Laws, and Governor Jan Brewer, who signed the Arizona bill into law is not a reincarnation of Adolph Hitler.   Those who are whipping masses of well-intentioned Americans into a frenzy by equating Governor Brewer or SB 1070 with Nazism are far more reminiscent of Joseph Goebbels and his Nazi “big lie” propaganda campaign than are those Arizona lawmakers who are simply trying to do something about the unimpeded tide of illegal immigration into their state.

We would favor a sensible path to legal status including eventual citizenship for those undocumented aliens who want only to work, contribute to America’s growth and who respect our laws and our language, IF the federal government first secured the nation’s borders.  The reality is that a huge number of those who have come here without proper authorization, today, have children who are, in every respect, 100% American citizens. Another sad reality is that many, perhaps most, of those who so vehemently oppose what Arizona has legislated into law, really oppose any Act or policy, or the enforcement of any law, that deals with illegal immigration as a violation of the law.

SB 1070 goes to great length to avoid racial profiling, the specter of which has engendered nearly all of the well-orchestrated hysteria against the law, and to protect employers who have made a reasonable effort to comply with the law when hiring immigrant workers.  The Arizona law merely says that the federal law is also the law of Arizona, one of the states with international borders, the integrity of which the federal law is, presumably, there to protect.  Given that the bordering country is Mexico and that virtually all of the immigrants who illegally enter Arizona from Mexico are, of course, Mexicans, the law is subject to concern that it might result in some racial profiling. Well it might, but the Arizona law makes it quite clear that racial profiling will not be tolerated and those who drafted the law have, in fact, gone to great length to proscribe racial profiling.

At this point in our essay perhaps a short digression into the history of immigration law might be useful.  The United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization.  The Immigration and Naturalization Act enacted in 1952 sets forth the legal requirements to become a U.S. citizen.

Prior to that time numerous statutes governed immigration but they were not codified in any coherent way.  It is far beyond either the scope or purpose of this essay to trace the changes Congress has made in immigration policy.  What is clear is that changes to the law often reflect fears and prejudices rather than the hopes of our citizens.  Often statutory changes have stemmed from the fear of workers of loss of job security from cheap foreign labor.

Immigration to America has not been an easy ticket since early in the twentieth century.  Quotas, since the end of World War One, have been established originally based on nationality and later giving preference to certain skill sets or close relatives of U.S. citizens.  Under current law, only foreign nationals who are admitted as legal immigrants or who are recognized as candidates for political asylum are eligible to take steps toward citizenship.

In the 19th century, immigration law and policy clearly favored white Europeans.  After the Civil War, criteria excluding blacks were successfully challenged.  However, in the late 19th and early 20th centuries, laws were enacted to exclude Chinese immigrants and national policy clearly made immigration of other Asian nationalities quite restrictive and almost impossible.  The outright racial prejudice on which various federal law and interpretive court decisions were based is almost unbelievable to any person who has grown up during and after the Civil Rights movement.

Only in 1965 was the immigration law amended to remove “natural origins” as the basis to qualify for immigration, although country quotas remain.  Political and economic considerations still mattered; however, as the Congress tried to adjust the laws to take into account the needs of various industries and the protection of jobs of American workers.

So what is different now, that has brought immigration law and policy front and center on the nation’s political agenda and made it such an explosive issue?  Without defending past exclusionary policies and quotas, it is clear that immigration laws were much more easily enforced in earlier times largely because the vast majority of immigrants had to cross an ocean to get here.  From the moment they disembarked they were part of a legally sanctioned process and we could, theoretically, keep track of them as they progressed through that process.  But in the past 20 years or so the bulk of the population influx into America has been Latino, mostly Mexican, and entry is possible by walking across the border.  True enough, we make efforts at policing the border but those efforts have been largely ineffective given that we share a 2100-mile border with Mexico.

Let us stipulate that Latino immigrants like others of different ethnic origins before them have been, and should be, absorbed into the fabric of our society.  But unless we want to abandon any immigration control, close our eyes to the established law, and simply open our doors to all comers the law must be respected and enforced.

It is estimated that somewhere between 10.8 and 12 million illegal immigrants are currently living in the United States.  Any new immigration bill must deal with that issue.  It is totally unrealistic to believe that we could, or should, identify, roundup and deport even a substantial number of these people.  To do so would be draconian and contrary to our collective sense of American values and proper due process, even allowing for the illegal status.  On the other hand, to ignore the issue, or simply grant amnesty to those who violated the law would be to reward illegality and encourage more of it.  Given the strain on the public resources of our states and municipalities, any addition to any public assistance program caused by people who are here illegally, who may not pay taxes and who may be competing for jobs against American citizens when unemployment is close to ten percent, is a combustible issue.

However, our Congress has punted on the subject of immigration reform for years and the public is quite sick of it.  Leaders are supposed to lead.  As we said in a prior essay, the inability of Congress to solve problems is what frustrates and motivates millions of Americans including those who comprise most of the Tea Party movement.

The two political parties seem far more interested in seeking political gain in the next election cycle than they are in seeking sensible and practical solutions to real problems that antagonize the American public. The political left paints as “racist” or “fascist” anyone who expresses a desire to crack down on illegal immigration from Mexico.  Conservatives who want only to focus on border control and simply deport those who are already here are wearing blinders.

As Peggy Noonan stated in her op-ed piece in the May 1st edition of the Wall Street Journal “The American president has the power to control America’s borders if he wants to, but George W. Bush and Barack Obama did not (and do not) want to, and for the same reason, and we all know what it is.  The fastest growing demographic in America is the Hispanic vote, and if either party cracks down on illegal immigration, it risks losing that vote for generations.  But while the Democrats worry about the prospects of the Democrats and the Republicans about the well-being of the Republicans, who worries about America?”  “No one” she answered.

It is by no means clear whether the Arizona statute will pass constitutional muster.  However, sooner or later (probably sooner) the courts will weigh in on this issue.  What is clear, however, is that the people of Arizona acted because Congress abdicated its responsibility.  Approximately 500,000 illegal immigrants live in Arizona, a state with a population of slightly over 5 million people.  Whatever one’s position on illegal immigrants, that is a huge number of people for a single state to absorb.  The state’s ability to educate the children of illegal immigrants or to provide health or emergency services is already strained.  And the resentment felt by the citizens of Arizona who, rightly or wrongly, believe their jobs are jeopardized or that their tax money is supporting illegals, is palpable.

With political will and interparty cooperation the problem could be solved.  Start with this premise:  Every sovereign nation, in the interest of its own security, is entitled to live within secure and defined borders.  Thus, before the rest of the immigration problem is addressed, the border must be made secure.  We need to know that the problem will not grow before we implement any policy that addresses the undocumented millions who are already here.  Moreover, this is an imperative not just because of illegal immigrants, but because of the growing problem of the violent Mexican drug cartels who are now expanding their reach into the U.S., particularly Arizona and California.  These cartels are so powerful that they almost amount to an insurgency (think Pakistan and Afghanistan).  The only way to secure the border is with a fence or wall, monitored with sophisticated surveillance equipment that covers the entire 2100-mile border.  It certainly can be done and should be done in a bi-partisan manner.

If our legislators could agree on that, an immigration reform bill could be enacted. As an example, we could develop a policy, perhaps a policy that would allow some of the illegal immigrants who are already here and who are able, to work their way toward legal status through some sort of service program ‑‑ either in the military or through a domestic service corp. Other programs or monetary penalties could be established for those who could not perform military or other civilian service. While this would recognize that there is no way we can effectively deport 12 million people from the country, it would, nonetheless, require them to pay some price to move toward citizenship so that illegal behavior was not simply rewarded. With a secure border we would not have to fear that a program allowing undocumented immigrants to take well-defined steps toward citizenship would simply invite more illegals.

Bad economic times and an electorate very disgruntled with the ability of the people supposedly in control to actually take control is a dangerous mix.  Add to this circumstance a burgeoning illegal immigrant problem and it could become a source of very significant social unrest.  It isn’t too late for sensible politicians in Washington to craft a sensible solution, but given the wise words etched on the edifice of the National Archives, “Past is Prologue,” count us among the pessimists.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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3 responses to “The Sad Spectacle of US Immigration Policy”

  1. charles anderson says:

    well done. meets your stated criteria for balance, a standard which, overall, you have, in my opinion, yet to meet.

  2. Bill_H says:

    “The fastest growing demographic in America is the Hispanic vote”

    This is true as long as nothing is done about our open borders and they and the cultural Marxists who control our major media & our national government want to keep it that way. Why, so they can get the upper hand and extinguish our Republic both Demographically & culturally.

    I have a choice, you have a choice, to either accept the demise of our crippled Republic or work to restore it. Its time to get off the fence.

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