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Wednesday, May 17, 2006
How Illegal Are They, Anyway?

I see legal immigration as a national blessing, perhaps even a moral obligation. I'm not isolationist or xenophobic at all, as far as I can tell. And now that we've established that, let's talk about illegal immigration, because I'm not entirely sure there still is such a thing.

I see legal immigration as a national blessing, perhaps even a moral obligation. I'm not isolationist or xenophobic at all, as far as I can tell. And now that we've established that, let's talk about illegal immigration, because I'm not entirely sure there still is such a thing.

Much of the current rhetoric approaches illegal immigration as principally a national security problem. Admittedly, terrrorists have used and may still be using our porous southern border to enter the country. But sufficiently determined, well-funded terrorists would get in even if said border were an impenetrable wall, and the overwhelming majority of people a wall would stop are not terrorists.

We also often hear that illegal immigration is mainly an economic problem, despite the fact that most illegals are hard-working and pay taxes -- at least sales tax, and often income and FICA taxes, too.

To my mind, illegal immigration is neither of these, in its essence. Instead, it is mostly a rule of law issue. The rule of law is the air freedom breathes; if you lose the rule of law -- or if the vast majority of the population stops respecting the law even when nobody's looking -- freedom fails. That's a much bigger crisis than a terrorist blowing up a building or even part of a city, as awful as such things are.

When I publicly insist on a local level that we should either repeal or repair any laws we are unwilling or unable to enforce, I do so because having unenforced laws discredits the rule of law. (I'm not saying there is no room for mercy in specific cases, when we enforce the law.) Often, too, failure to enforce laws limits law-abiding citizens while giving scofflaws free rein, which doesn't seem fair or wise. And passing laws which are unenforceable on their face, merely for symbolic or other purposes, damages the credibility of a society's laws and institutions generally.

Rule-of-law types in the US these days tend to be conservatives, as I am, and tend to come down firmly on the side of securing the border and sending all the illegals home. This is understandable, given that it is illegal to come here, ahem, illegally. Some of the more thoughtful conservatives suggest additional measures, such reducing the appeal of being here illegally by making it impossible to send money out of the country if you're illegal or denying all government benefits and services (including schools and driver licenses) to illegals.

These ideas and others have merit, assuming the border is secure and we have a reliable way to identify everyone and verify citizenship or immigration status. Sadly, pathetically, we're a long way from either of those. But for me the situation is still worse: I just can't see the legal/illegal distinction as clearly in this matter as most of my fellow conservatives apparently do.

Yes, on one hand, there's a law on the books against immigrating to the United States without jumping through the insanely inefficient, inexplicably time-consuming, expensive hoops the federal bureaucracy holds up.

On the other hand, there's an established legal principle that a law which goes unenforced for an extended period is invalid and unenforceable. Even if it formally remains on the books, no thinking court or prosecutor will enforce it. This leads directly to my problem: I'm very uncertain that we still have a legal leg to stand on in opposing what we call illegal immigration. I think government has pretended we don't have immigration laws in most cases for so long that those laws' present validity is seriously in doubt.

Yes, we make a token effort to enforce the border. But that effort is famously inadequate and has been so for many election cycles. Am I wrong to conclude, therefore, that it clearly has been the unstated policy of the United States -- its elected leaders and its voters -- to act as if the border doesn't really exist?

Yes, we deport some of the illegals who get caught. But most are not caught (or even pursued), and we release most of the ones we catch -- and this, too, has been the case for a very long time.

Yes, there are things that can be done legally to employers who employ illegals. But we rarely do them.

Yes, we have various forms of identification to help us prove that some are here legally and some not. But these are so easy to forge and so ineptly used, and have been so for so long, that one could make the case that this situation is precisely what the government wants and has chosen.

But it's not just the things government fails to do which suggest that it acknowledges and sanctions the presence of  millions of "illegals" -- and if the government permits or approves their presence, it's no longer illegal, is it? We give "illegals" government benefits, including schools. We license them to drive. We let them pay sales taxes and in many cases our various payroll taxes -- and they pay them. We let them demonstrate publicly against our government without fear of deportation. How is this not granting them an official status in the United States, despite our immigration laws?

I'm still a conservative. This wondering if we even have valid immigration laws any more doesn't lead me to say we should have none. Nor does it lead me all the way to blanket amnesty for illegals. But it does lead me to believe that, in addition to securing the border and creating a reasonable guest worker program -- fixing and enforcing the laws -- we should allow the "illegals" already in the country -- the hard-working, tax-paying ones without significant criminal records, that is -- to seek legal status without first leaving. They ought to have paid taxes for a while, and they ought to have some reasonable fees and/or fines to pay. But then they ought to be eligible to stay and live legally the lives they've built, and even become citizens, if they're willing to learn English and a few basic things about our government.

And there ought to be a set time, perhaps three years hence, after which anyone who is still illegal in the country will be deported and will forfeit any opportunity to enter the United States legally for at least ten years. Period. We might prevent this policy from causing a massive, sudden influx by saying that illegals will have to have paid taxes for at least that same number of years before the deadline, in order to get legal. In other words, it would be impossible for new illegal immigrants to meet the requirement -- so far fewer of them would come. (Maybe . . . If . . . Unless . . . Good grief . . .)

In any case, the problem is so complex and chaotic now that we ought not expect a fully effective, philosophically coherent, comprehensive solution at first. While we're figuring out what that might be, we ought to start with what we can do and agree upon, even if it's messy and internally inconsistent in some respects.

Jake Jacobsen comments (5/20/06):

Excellent article! Overall I completely agree, however I do have one question. I'm not terribly bothered by those folks here illegally being allowed to stay, I think, but what about the eventual chain migration from which it is believed we will inherit another 40-50 million "New Americans?"

David Rodeback replies (5/20/06):

Thanks. It's a great question, and I don't know the answer. Annex Mexico? Colonize North Dakota? (Oh, wait, did we already do that?) All I'm sure of is that we'll need a lot of English as a Second Language teachers if we're going to mass-produce Americans at that fast pace.

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