In a 2010 report, the Urban Institute documented in excruciating detail the psychological, emotional and financial impact on children of a parent's deportation. According to the Pew Hispanic Center, 4.5 million U.S. citizen children have an out-of-status parent. More enforcement, without broader reform, would damage countless children. Yet proposals to provide a path to legal status for even those groups with the strongest humanitarian claims and equitable ties in the United States have been derided as an affront to the "rule of law." What does this apparently unforgiving term mean?
In its thinnest sense, the rule of law requires government officials to be accountable to the law. Plato warned that the integrity of the state would be threatened if the law were "subject to some other authority" and had "none of its own." The law must be "master of the government," he argued, and the government the law's "slave." In Marbury v. Madison, Chief Justice John Marshall repeated the "emphatically"-held conviction that the United States was "a government of laws, and not of men." In the intervening years, the rule of law has evolved to take on a fuller meaning that encompasses due process protections, the substance of laws (in particular, whether they safeguard rights), and the legitimacy of the political systems that produce them. According to the American Bar Association's (ABA's) Rule of Law Index, this concept requires:
The rule of law cannot be equated with rigorous enforcement of the law. To do so would be to mistake the rule of law with rule by law. Repressive regimes rule by law, but dishonor the rule of law in other ways. Nor does this concept support the status quo. Instead, it is a standard against which legal systems can be judged. How can the U.S. immigration system be improved in light of this standard?
In 2010, the U.S. Department of State estimated that 3.4 million family members of U.S. citizens and lawful permanent residents (LPRs) with approved visa petitions had not yet received their visas. Most persons in this situation choose to live in the United States as they wait for their visa priority dates to become current, a process that often takes years. After this time, most must leave the country to apply for a visa. However, once they depart, they are subject to multi-year bars to re-entry, with no assurance that they will be approved for a waiver and be allowed to return. It does not further the rule of law to require persons with approved visa petitions to endure long-term separation from their families. U.S. law also provides for the detention and removal of LPRs, many with U.S. families, based on convictions for relatively minor crimes. In these circumstances, deportation can represent a disproportionate punishment which is at odds with the rule of law.
Many states and localities have adopted legislation that seeks to force out-of-status persons to self-deport by making it illegal to rent housing, work, pay for public utilities, "be" without status, and even "harbor" themselves. Republican presidential front-runner Mitt Romney recently praised the intellectual architect of these laws for his willingness to "stand up for the rule of law." Yet the rule of law requires laws that safeguard rights, not laws that deny rights as a means to an end.
Members of Congress and state legislators have attempted to set the stage for a legal challenge to the 14th amendment's guarantee of birthright citizenship and to the Supreme Court's 1982 decision in Plyler v. Doe, which ensures public education through high school for out-of-status children. Combined, these initiatives would create an uneducated, sub-class of U.S.-born residents, with little security, few rights, and no prospects. The rule of law argues for safeguarding rights within the law, not placing persons permanently outside its protections.
The rule of law also requires protection of labor rights. In 2002, the U.S. Supreme Court in Hoffman Plastics Compound, Inc. v. NLRB held that out-of-status persons fired for union organizing are not entitled to back-pay. Nor do they qualify for reinstatement to their former positions. Yet back-pay and reinstatement are two of the primary remedies for violations of the National Labor Relations Act. In July 2010, President Obama argued that out-of-status workers are "vulnerable to unscrupulous businesses who pay them less than the minimum wage or violate worker safety rules -- thereby putting companies who follow those rules, and Americans who rightly demand the minimum wage or overtime, at an unfair [dis]advantage." In this way, the U.S. immigration system works at cross purposes to the rule of law.
The U.S. asylum system is premised on the ability of endangered persons to reach protection. Yet the United States blocks access to its territory by:
Some of these measures undoubtedly increase security and others include (imperfect) procedures to protect asylum-seekers. In combination, however, they have led to plummeting asylum filings and approvals. The rule of law argues for rigorous mechanisms to identify and protect persons running for their lives, consistent with international law.
By 2013, the Secure Communities program will screen nearly everybody arrested in the United States against federal criminal and immigration databases. The Department of Homeland Security (DHS) has characterized Secure Communities as a federal information exchange program, but this ignores the role of local police in deciding whom to arrest. DHS's Secure Communities Task Force concluded that when "communities perceive that police are enforcing federal immigration laws, especially if there is a perception that such enforcement is targeting minor offenders, ... trust is broken and some communities, and victims, witnesses and other residents may become fearful of reporting crime and approaching the police." In other words, such programs can place communities at greater risk, an outcome at odds with the rule of law.
The rule of law requires checks and balances between the different branches of government. Yet Congressman Lamar Smith has introduced legislation to remove discretion from the Obama administration in how it administers the law. Prosecutorial discretion is essential to effective law enforcement, and enforcement of the law is a core Executive branch function. Congress has also severely limited judicial review of removal orders. As the law stands, persons ordered removed must file a petition to a court of appeals within 30 days. Courts of appeals can review constitutional claims and questions of law, but not issues of fact or discretionary decisions like denials of relief from removal. In 2010, the ABA reported on the widespread view that restrictions on judicial review operate "to insulate dysfunctional administrative processes and questionable exercises of discretion."
Deportation can result in torture, persecution, separation from family, and loss of livelihood. Yet most persons in removal (deportation) proceedings cannot afford legal counsel, which significantly reduces the chances that they will prevail in their claims. The lack of government appointed counsel for mentally disabled persons and unaccompanied children facing removal, to cite two examples, makes a mockery of the rule of law. Record backlogs and delays in the poorly resourced immigration court system also raise rule of law concerns.
U.S. immigration law provides for accelerated removal, with significantly less process, in four types of cases: "expedited removal"; "administrative" removal (non-LPRs who have been convicted of "aggravated felonies"); "stipulated" removal (often unrepresented detainees who despair of further time in custody); and non-citizens who illegally re-enter the United States after being removed. Restricting due process in these categories of cases may create administrative efficiencies, but does not reflect deference to the rule of law.
Former INS Commissioner James Ziglar describes a "breathtaking" level of "hypocrisy" and "cynicism" in Congress on immigration issues. He reports that Members, including staunch enforcement advocates, beseeched him not to enforce the law against certain industries and constituents. Such interventions might be seen as attempts to circumvent the law in flagrant violation of the rule of law. Or they might be seen as a tacit acknowledgment that the rule of law requires the exercise of discretion or broader legislative reform. In any event, enforcement-alone will not suffice.
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By this reasoning, everyone in the world should be entitled to citizenship and a free public education. Immigration law is obviously about drawing lines and excluding most other people in the world, which inevitably places most person permanently outside the protection of our laws. While the author has factual points on where to draw the line, it is wrong to attempt to buttress practical concerns by claiming lines should not be drawn at all.
If you break it, you pay for it. The lack of enforcement of immigration law which has created the mess we are in, is the product of corporate greed, just as the 2008 market collapse, and whether you like it or not, we are all responsible for dealing with the results.
This is incorrect. Consider the draft and mandated registration for 18 year old men. At the moment, we don't enforce the penalties if 18 year olds fail to register. That does not mean in time of war we cannot, or should not, do so. At the moment, we do not have a draft. That does not mean in the future we must rely on an all volunteer military, or that we have any duty to do so. Nor does the cause of a war have any relevance to the rights of individuals.
The problem with the author's "rule of law" interpretation is that he only looks at the rights and interests of individuals, when those rights and interests must be balanced with national interests and goals. In a fluid and changing world, laws and their enforcement will change, and some previous individual rights, express or implied, will no longer exist. Immigration law and enforcement, like registration and the draft, have varied wildly over our history depending on the needs of the nation. This also is the "rule of law" even if for individuals it is unfair.
Retroactive fines & imprisonment are OK. After all, most of the immigration laws have been in place for 25 years. Employers have been “pretending†to check I-9 information for decades.
This legislation was introduced due to a lack of effective law enforcement, which is not a proper function of Prosecutorial discretion, or the Executive branch.
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No prior administration sued a State in federal court, specifically claiming that the administration wanted to pick and choose when to enforce immigration law, based on political concerns. Note the controversy among Presidential candidates about the DREAM Act, which has not passed for over 10 years, and Obama's directive to ICE to not enforce the law against illegal students, at the same time he courts the Hispanic vote. The current DREAM Act is highly unlikely to pass, no matter who is President. Obama gains a political advantage by intentionally thwarting the laws approved by voters, and duly enacted. If you can't pass the law you like, then a President who will not enforce the law you don't like, is the best option.
This perversion of immigration law enforcement, to appease a minority of voters, may be nothing new in politics, but proving it has never been so easy. As a political point, a President directing the Justice Department not to follow the law, and suing a State to do the same, resonates with voters. We'll be hearing lots more about it, and the proposed bill will provide lots of testimony and speeches for sound bites.
It is already illegal by federal law for illegal immigrants to rent housing, work, or even be present in the U.S. The rule of law does not require that people be given rights they do not have.
Illegal immigrants are not legally allowed to work in the U.S. Obviously, the rule of law does not protect labor rights of people who are not supposed to be doing labor.
Finally, not your comment, but out-of-status persons do not typically use their children "as pawns." They are overwhelmingly trying to make better lives for their children. When such a parent is deported, the child often remains in the US with an in-status parent. Increasingly, the deportation and detention process is also leading to termination of parental rights altogether, a disaster for all concerned.
Consider that one goal is to have diversity in immigrants, by taking a fair number of people from many countries. Sixty percent of illegal immigrants are Hispanic, from only a small geographical area of the world. Consider another significant goal, which is to have only immigrants with a sufficient means of support, so they will not be a burden on citizens. The cost of unpaid medical care for illegal immigrants is so astounding that many hospitals and emergency rooms have closed. The vast majority of illegal immigrants are not paying sufficient taxes to educate their children. Consider that a goal for every country is to have respect for it's borders, especially in this time of terrorism. The "rule of law" supports legitimate goals of the country.
On the contrary, immigration law seeks to control the flow of immigrants into the country, and to ensure fairness in the numbers of immigrants from all countries. These goals are not achieved if people illegally choose to live in the U.S. when they do not yet have a visa. The penalty of multi-year bars is only assessed against people who illegally do so.
The "termination of parental rights" is a tragedy, and not just in an immigration context. The widespread termination of parental rights of poor parents, to give their children to "better" adoptive parents, is one of the greatest human rights violations in the U.S. In this area, it is actually a handicap to be white. Pity the poor, unwed, uneducated, young mother who flunks a single drug test. (There are false positive results.) Odds are child services will take her child, and she will have her rights terminated, and child adopted by the foster parents, in less than a year. Especially if she has a healthy white infant, and even more especially if she has a cute toddler or two the State can also take. It is a dirty little secret that our foster care programs are now adoption mills for middle class parents.
This falls on the parent when they stood on the border before crossing illegally into the US they chose the illegal life. Either way bringing their children or having children here, the choice was theirs and they chose a lifestyle for their children too.
Why should anything be taken away from my children because they choose to break the law. I do not feel sorry for them, we all have to live with the choices we make.
BTW, they can always go home and take their children with them and stop using them as pawns.
You are quite right that illegals will take any job at any price, which is why they drive down the wages for ALL Americans. They are called SCABS since I am a long time union member and official. They drove down meatpacking wages from $19/hr ten years ago, to about $9/hr and the same is true in many other industries such as construction. Those are jobs Americans used to do and will do now if the illegals are forced out.
Educating illegals is costing school districts tons of money that are sorely needed for American English speaking kids. Why should American kids have to pay the price for those who break the law and want free education at the expense of the rest of us? If we had tons of money to spend, you might have a point that we should allocate more money to spend on bilingual ed.