Was my last post, despite its claims to the contrary, a brief for open-borders zealotry? That seems to have been the reaction of a number of commenters and folks on Twitter. Josh Barro, for example, tweeted “I’m not sure there’s a right to live in America.”
A lot of people seem to believe that raising moral objections to an immigration enforcement program like e-verify is tantamount to advocating the repeal of all immigration restrictions. The more I think about this proposition, the less sense it makes. To return to one of my favorite examples: speeding is illegal, but laws against speeding are routinely ignored. The government enforces those laws haphazardly; perhaps one in a thousand speeders on any given freeway are caught.
Now, if we really wanted to, we could get people to stop speeding. For example, we could install license-plate-reading cameras along the freeway at regular intervals, and automatically send tickets to anyone who moves from one camera to the next too quickly to have been following the speed limit.
Personally, I think this is a horrible idea. One reason is that this kind of massive surveillance infrastructure could be misused for other, more sinister purposes. Objecting to this particular enforcement mechanism on civil libertarian grounds isn’t the same as saying people have a “right to speed,” or that we should repeal all speeding laws. We have any number of laws, jaywalking, peer-to-peer file sharing, paying taxes on goods we buy online, and so forth, that for a variety of practical reasons are hard to enforce, and we just live with the fact that they’re routinely broken.
The same point applies to immigration. Entering the country without government permission is illegal, and probably should be so. The federal government has any number of powers to enforce the law, including refusing to let you cross the border (leave the airport, etc), investigating over-stayed visas, limiting access to driver’s licenses, auditing employers, deporting people, and so forth. Objecting to any particular immigration enforcement mechanism isn’t the same thing as objecting to immigration regulations altogether. It’s perfectly coherent to say that the government should make a reasonable effort to prevent people from moving here illegally, but that certain types of particularly invasive enforcement methods (like employer verification) should be off the table. This is just how our legal system works.
But I also think speeding cameras are a bad idea because I sometimes think the posted speed limit is too low and I like the fact that I can ignore it and (mostly) not get caught. Similarly, our copyright laws are too strict; it’s a good thing that people can sometimes share content in circumstances that a strict reading of the law wouldn’t allow. In other words, the fact that people can mostly get away with breaking certain laws is a feature, not a bug, of our legal system. It provides a “safety valve” that ensures that stupid legislation doesn’t do too much damage.
The same point applies to immigration law. Obviously, we ought to enact sane immigration laws that make it easy for people like Jose Vargas to get a green card. But given that we haven’t done that, it’s a good thing—both for him and for the rest of us—that our enforcement system wasn’t effective enough to prevent him from taking a job here.
Again, there’s a huge double standard here. We American citizens take a strictly moralistic tone toward laws that we don’t personally have to follow. But “the rule of law” goes out the window when it comes to that pot you smoked in college, or the use taxes you haven’t paid on your Amazon purchases, or those pirated MP3s on your hard drive. When we’re talking about laws that actually affect us, we’re glad there’s some breathing room between the law on the books and what people actually get punished for.
We should display the same kind of magnanimity toward people who have to deal with our immigration system, which is much, much more screwed up than our copyright and traffic laws. Jose Vargas didn’t hurt anyone when he illegally entered the country as a teenager, just as Barack Obama didn’t hurt anyone when he illegally smoked pot in college. Law enforcement has, correctly, turned a blind eye to Obama’s youthful lawbreaking. It should do the same for Vargas and thousands of others like him.