Lawlessness Won’t Fix America’s Failed Immigration Policy

by Prof. Patrick Garry:

America is a country of immigrants, but that immigration historically occurred within an enforced national policy on immigration.  The arrival of immigrants to America and the legal enforcement of a national immigration policy traditionally went hand in hand.

Immigration FenceCurrently, there is a great divide on the immigration issue.  On one side, there are those who want to see the government enforce the immigration laws.  On the other, there are those who object to the deportation of individuals who came to America in violation of those immigration laws and have since built lives here.  And the debate has been greatly polarized by a Democratic Party using this issue to try to build a lasting political coalition with the fastest growing demographic group.

The Democratic Party obviously believes that a refusal to stop illegal immigration will bring it the support of Hispanic voters, despite the fact that illegal immigration vastly increases the odds that immigrants will live in poverty once they arrive in America.  But this approach rests on an unsustainable foundation – namely, that the government not enforce democratically enacted immigration laws.  A democracy based on the rule of law cannot exist when administrations are allowed to pick and choose what laws to enforce.

Any honest examination of immigration must consider the realities of the issue.  First, a large population of illegal immigrants presently lives in the U.S.  Even though the Left always characterizes this issue as one of deportation, the reality is that the U.S. could probably never conduct a wholesale deportation of millions of people.  Not only would that inspire an intolerable adverse public opinion, but it would require an administrative structure that does not exist.

Unfortunately, the Left has attached such emotional overtones to the issue that deportation is now seen as something only a heartless and despotic society would do.  However, in reality, deportation is a vital immigration tool used by every society throughout history.  Deportation is the only effective legal remedy for violations of immigration laws.  But the whole area of immigration is in such a lawless state that deportation is now seen as itself an act of lawlessness.  This is because the baseline of liberal political sensibilities has changed from the law of immigration to the lawlessness of illegal immigration.

Deportation has already basically disappeared from the interior of the country, thus demonstrating that the lawlessness of illegal immigration has become normalized in our social conscience.  But if aliens cannot be removed for illegal entry, then in reality there is no immigration law.  Deportation is the only remedy for illegal entry that corrects the initial lawbreaking.  To delegitimize deportation is to delegitimize the entire immigration law.  Nonetheless, at this point, after several decades of the federal government’s failure to enforce the nation’s immigration laws, a large-scale deportation program would be impossible to conduct, given the vast numbers involved and the social sensibilities aroused by the sight of millions of people taken from their homes and escorted across the border.

The second reality that must be considered is that the immigration policies of the Obama administration have swelled the ranks of people with low literacy and job skills, counteracting national efforts to fight poverty and exasperating concentrations of ethnic poverty.  Although many illegal immigrants have an admirable work ethic, they nonetheless lack education and other forms of social capital.  And because of these absences, they easily get pulled into an underclass culture.

The third reality is that this ongoing immigration of the unskilled has depressed the wages of the legal immigrants already living here and who make up over 15 percent of the work force.

Unfortunately, much of our immigration debate does not look at all these realities.  Instead, it often focuses just on the first factor, as if the only thing America should think about is reuniting the extended families of anyone who is able to sneak into the country.  It is an emotional appeal that pulls at the heartstrings of the country, as well as stoking the guilt of anyone who believes in enforcement of our immigration laws.

In the past, America’s immigration policies were generally well adapted to its economic needs and circumstances.  The nation historically has also been far more committed to assimilation than it is today.  But the Left’s opposition to assimilation, as well as its advocacy of massive immigration of low-skilled individuals, has only created an underclass of poor people.

By encouraging unskilled immigrants, President Obama’s approach ends up isolating the new and often illegal immigrants, making them dependent on government.  This approach has created an unfunded mandate requiring cities and towns all across America to pick up the tab of illegal immigrant children, which then leaves these towns with fewer resources to help the existing poor within their borders.

Immigration policy should reflect America’s economic interests.  Immigration is not a social service the U.S. provides to the rest of the world.  America is a nation of immigrants, but it is also a nation of laws.  Rewarding illegal immigration does not serve the former, and betrays the latter.

Any resolution on immigration will inevitably reflect America’s inherent conflict over the issue – its desire not to be a nation that deports immigrants, existing alongside its goal to be a nation of laws.  Conservatives should concede that the nation cannot, either politically or administratively, embark on a large-scale deportation of illegal immigrants.  But automatic citizenship is not the right path either, especially since it would be unfair to all those immigrants who came here legally and pursued citizenship through the proper channels.  So perhaps illegal immigrants should instead be offered permanent legal residence, but not citizenship.  This concession, of course, hinges on the government resuming control over the border and enforcing immigration laws.  Enforcement of border laws should not be a matter of negotiation; it is a nonnegotiable duty of the executive branch.  Moreover, any immigration compromise should also shift the focus of immigration policies away from extended-family unification, as well as favoring higher-skilled over lower-skilled immigrants.

This proposed solution on immigration would provide a one-time only solution to all the illegal immigration of the past.  But going forward, in connection with enforcing the nation’s immigration laws, deportation should remain, as it always has, a remedy to use toward those who disobey those laws.

Patrick Garry is a professor of law at the University of South Dakota, and Director of the Hagemann Center for Legal & Public Policy Research.

One Comment

  1. My Trespassing on This Landmass is Righteous says:

    Ignoring the supreme irony of a European in South Dakota complaining about illegal immigration, I question your zeal to protecting America’s best interests with this:

    “So perhaps illegal immigrants should instead be offered permanent legal residence, but not citizenship.”

    So, allow immigrants to work in this country, but don’t give them welfare benefits. In other words, basically the status quo.

    Your desire to introduce de jure serfdom is admirable but you haven’t fixed the issue of conservatives in general just plain not liking immigrants whether they’re legal or not if they’re of the duskier hue, which is the onle real reason left now that the economic case against illegal immigrants has flamed out. Try again, I suppose.

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