The recent controversy over immigration issues discloses that many people lack a grip on two important principles: 1) no society is rich enough to support persons who migrate to obtain government benefits and; 2) the criminal law should be a last resort.
Prior to 1924, the law excluded only those likely to drain public coffers. It required “affidavits of support,” but those vigorous enough to arrive were not likely to become government dependents.
Then the 5-4 Supreme Court decision in Plyler v. Doe. (1982) held that children of illegal immigrants could not be excluded from public schools. Professor David Currie of the University of Chicago Law School explained the decision accurately. “I may have a right to keep a burglar out of my house, the court seemed to be saying, but once he gets inside, I must invite him to dinner.”
Some courts in Western states extended the decision to include other benefits. Congress has the power to alter these decisions but has not chosen to. It should.
When it did act recently to change immigration laws, thousands protested proposed legislation that would make felons of about 11 million people, despite practical and moral limitations of thecriminal law. Drug laws serve as a good indicator of how rounding up and deporting 11 million people would work.
Marijuana possession laws have generated 15 million arrests over 20 years without measurable effect on behavior. Likewise, the threat of prosecution will do little to deter illegal immigrants so long as the promise of better-paying jobs exists in the United States. And this new effort tramples on civil liberties. No proposal could do more to transform the United States into a police state.
President Ford?s Attorney General, Edward Levi, once said that immigration “has to do with our identity and our traditions as a nation. It may not be possible to get the same levels of compliance as in the other areas of law enforcement or to use the same tactics.”
The Bush administration?s “guest-worker” program leading to citizenship reflects that sentiment. But the Bush program relies on an inept bureaucracy and complicated rules. Public unrest might be reduced if attention were also given to basics:
» First, naturalization should be based on a meaningful English literacy test, not the present charade. Literacy tests rankle because of their discriminatory use in the South, but New York State, once the primary place of entry, required one for voting, and it was upheld in the courts.
» Second, immigrants victimized by violations of wage and hour laws should not have their complaints used against them in deportation proceedings. American workers who lose jobs to industrious illegal immigrants not receiving social benefits do not deserve sympathy. But our minority populations should not be asked to compete against near slaves.
» Third, overly-liberal laws should be discarded. The “lottery” invites immigration from nations whose immigrants enjoy no ties with the United States and who are difficult to assimilate. “Family unification” provisions, as applied to the elderly, create fiscal burdens.
» Fourth, the United States should foster “nation-building” to its south. People do not emigrate who have prospects and liberty. Mexico?s collectivized land ownership and bureaucratic hurdles for businessmen discourage entrepreneurship and economic growth. It is renowned for police corruption, to which our “supply-side” approach to the “drug war” contributes. The NAFTA agreement provides leverage to ask for economic liberty; and a “testing and treatment” drug policy would reduce the narcotic dependency of the Mexican economy.
George Liebmann, a Baltimore lawyer, is the volunteer executive director of the Calvert Institute for Policy Research and is the author of “The Common Law Tradition: A Collective Portrait of Five Legal Scholars,” recently reissued in a paper edition by Transaction Publishers. He can be reached at [email protected].
