The Republican Party has justified its recent rightward lurch on an array of issues, including immigration, in the name of restoring the Constitution's original meaning and preserving the rule of law. Their most extreme policy prescriptions are frequently couched in spurious constitutional or rule-of-law frames or by vague references to the will of the people. But their grossly contorted re-imaginings transform the face of the Constitution from "Mona Lisa" sublime to "Devouring Saturn" grotesque.
Take the most prominent example, health care reform: Conservatives didn't simply trash it on policy grounds -- they fallaciously assaulted the law as an illegitimate and unconstitutional power grab. And obscuring extremist positions under the "rule of law" cloak has become a standard tactic by Republicans in the immigration arena. In the last few years, we've seen immigration restrictionists in Congress call for a radical reinterpretation of the 14th Amendment's constitutional guarantee of citizenship to those born here. We've also watched Republican legislators and governors -- mostly in the South -- argue that states have the right to regulate and enforce their own immigration policy. The Supreme Court is now considering those claims as well.
But the rejection of well-settled legal constructs in favor of extremist positions has also been replicated in the policy arena. Where common sense once produced middle-of-the-road, bipartisan policy prescriptions, disdain for pragmatism now produces extreme proposals that are defended on rule of law grounds.
Nowhere has this been more obvious than in current Republican prescriptions for addressing the 11 million undocumented immigrants living in the United States. As recently as 2006, 23 Senate Republicans -- in a Republican-controlled Senate -- voted with 38 Democrats and one Independent to restore legality by requiring undocumented workers to register, pay fines, learn English, and go to the back of the line in order to earn the privilege of citizenship. Why? Because no one believed then, as no one really believes now, that, as a practical matter, we would, could, or should pursue policies of mass expulsion that would drive millions of undocumented immigrants and their millions of U.S. citizen spouses and children out of the country.
That is, no one seriously believed it until the presumptive Republican presidential nominee Mitt Romney announced his extreme immigration policy platform of "self-deportation." His idea, also known in restrictionist circles as attrition through enforcement, embraces the very concept of mass expulsion that the Republican Senate categorically rejected six short years ago. It envisions a suite of policies that will make life so miserable for undocumented immigrants and their families that they will pack up and leave the country.
Romney and his surrogates defend this proposal as necessary to restore the rule of law. But states and municipalities that have tried to adopt similarly harsh enforcement measures show that the exact opposite is true. The policies don't drive undocumented immigrants -- nearly two-thirds of whom have lived in the United States for more than a decade -- out of the country. Instead those policies drive people further underground or to more friendly locales. Experience shows that by pushing people farther outside the system, Romney's approach would actually deepen systemic dysfunction and perpetuate the illegality Republicans claim to abhor.
The other frequently proffered justification for this Republican shift to immigration extremism is that the public demands it. But anyone who has even casually perused the polling data knows that nothing could be further from the truth. For years now, Americans of all political stripes have consistently supported a rational solution that balances border security with a tough but practical earned path to legal status for the undocumented.
Republican politicians nonetheless assert that this balanced approach, which garners overwhelming public support including majority support among self-identified Republican voters, will not fly. Why not? Because it can't get the votes needed to pass, they tell us. But why can't it get the votes to pass? Because Republican politicians won't vote for it. Circularity much?
In fact, this is exactly the circular logic Sen. Marco Rubio (R-FL) wants us to accept as his rationale for lowering the bar on citizenship for DREAM Act kids. Sen. Rubio announced plans to introduce a bill similar in many respects to the DREAM Act: It would provide legal status to undocumented immigrants who were brought here at a young age, graduated from high school, demonstrated good moral character, and attended college or entered the military. But here's the kicker: It would not provide, as the current iteration of the DREAM Act does, an earned path to permanent residence or citizenship.
The Florida senator defends this limitation as necessary to prevent amnesty, the ultimate anti-rule of law label Republicans loosely affix to any policy they dislike. (Curiously, actual tax amnesties for the uber-wealthy over the last several years generated no comparable heartburn among Republican elected officials.) But this amnesty argument that gets trotted out whenever convenient simply obscures the reality that the party is badly hamstrung by this far-right tilt. The truth is that even this stripped-down version of the DREAM Act will not garner the Republican support needed from House Republicans in order to move it forward.
To be sure, Sen. Rubio deserves applause for publicly expressing a desire to find a way forward on immigration at least vis-à-vis the "blameless" kids. He clearly understands and has eloquently articulated how destructive his party's position on immigration has been in its efforts to win over Hispanic voters. Even Romney has recently acknowledged to his donors the depth of this problem and his hope that a Republican DREAM Act alternative (presumably Sen. Rubio's) will help rehabilitate the party's image.
But by justifying this DREAM-less proposal as necessary to prevent "amnesty", Sen. Rubio simply follows the current Republican playbook. He empowers rather than marginalizes the extremists in his party by regurgitating this rule of law frame and lending a thin patina of legitimacy to their position. Maybe that's the best he can do given the Republican Party's rapid move to the fringe.
Brandishing the rule of law argument as a political weapon instead of actually trying to restore legality diminishes our democracy. That's a hefty price to pay in the defense of extremism.
Marshall Fitz is the Director of Immigration Policy at American Progress.