Immigration and the “Rule of Law”

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.

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16 Responses to Immigration and the “Rule of Law”

  1. Evan says:

    I dunno. My personal standard laws going forward (and ideally, revisions to past laws) is that panopticon should be assumed. Laws that cannot be universally and fairly enforced shouldn’t be written.

    Overwritten laws (pot laws, or speeding laws) are a temptation to the state to up enforcement when there is some moral panic, or an election, or some other reason to buff government credibility. Rule of Law as a concept is weakened when it is arbitrary and unclear, and if we want people to respect the rule of law, the government should also respect the law by not changing its effective meaning depending on the time of the year or some other set of circumstances unpredictable at the time of the offence.

    This is also in my mind the strongest incentive for the government to increase surveillance, which as you’ve pointed out can then be misused.

    There’s an argument to be made that law enforcement officials should be allowed to use their judgement in situations like these, but from my experience, the judgement of law enforcement officials is all too often the vector for racial, class, and other discriminatory tactics (e.g. San Francisco’s odious sit/lie laws, driving while black, etc.).

  2. Don Marti says:

    If the state has a bunch of infrequently-enforced laws lying around, law enforcement officers who want to discriminate, or to punish legal behavior, can get anybody for something. The only reason that “driving while (member of ethnic group)” can be treated as a crime is that there are so many laws that everyone else gets away with violating.

  3. Dan Miller says:

    I think this is actually proving the point of the commenters in the last thread. To put some numbers into the discussion, the US allows in 1 million legal immigrants per year; but there’s also about illegal immigrants. What you’re implicitly saying is that any effort to keep the number of total immigrants below 1.5 million or so constitutes bigotry, and we should abjure any tactics that would decrease total immigration below this level. Am I wrong in this interpretation?

  4. Dan Miller says:

    500,000 illegal immigrants; sorry for the typo

  5. x.trapnel says:

    Very well put, Tim.

    And to Dan Miller, no, I don’t think that’s what he’s saying. I think he’s making three points:

    1. Many laws–traffic laws are a good example–are about establishing a rough pattern of behavior, and this pattern of behavior isn’t so fragile that it’s threatened by some rule-breaking, even when the rule-breaking (as with traffic laws) happens in huge absolute numbers. If you think the 65-mph speed limit is a gross failure because everyone drives 75 on the interstate, you’re confused about what it’s actually doing, which is having the vast majority of people drive 75 and not 85 or 90 or whatever. If there are 1 million legal immigrants, and 500k illegal immigrants, that’s still *much* less than a true open borders regime would be.

    2. Enforcing perfect compliance with all laws is not just impossible, it’s undesirable. This is both because the means required for such enforcement will often involve creating undesirable state capacities, or highly intrusive interventions in the targeted population; and because our laws are sometimes bad laws, wrong to enact and wronger still to punish for disregarding–and a larger number are laws whose rightness can be reasonably debated. Even if it were reasonable to forbid consumption of heroin and cocaine, the way that we now put people in cages for years for so doing is grossly immoral–and it would be still more immoral, not less, if we ratcheted up the security/surveillance state enough to successfully cage all such consumers, rather than just the unlucky ones.

    3. Finally, related to the last point, those who have no personal relationship to the enforcement of particular laws often have no perspective on just how brutally these are applied. Often these people clamor for a level of punitiveness in enforcement they would never tolerate if it were applied to those aspects of the legal system that do impinge upon their personal interests. If we’ve never experienced the hell that is being an undocumented immigrant in America, we should at least listen when those who have talk about the fear and suffering it involves, and try to put ourselves in others’ shoes before baying for blood.

  6. albert magnus says:

    Well, to take your analogy one step forward, you are asking us to change the speed limit from 55 to 70 because everyone is driving 70 anyway. However, some of us are pointing out that if you change the speed limit to 70 people will start driving 80 and make the roads even more dangerous. Giving amnesty to some sympathetic cases will encourage more illegal immigration (that’s what happened in the 80s). Until we find a reliable way to adjust to the optimal immigration level then we have to live with a certain level of dysfunction which unfortunately seems to be the case with this Vargas fellow.

  7. albert magnus says:

    “If we’ve never experienced the hell that is being an undocumented immigrant in America, we should at least listen when those who have talk about the fear and suffering it involves, and try to put ourselves in others’ shoes before baying for blood.”

    How would you reduce the number of illegal immigrants humanely? If its just the treatment then that can be adjusted, but in general this cannot be an argument for giving people amnesty.

  8. x.trapnel says:

    Even if a more humane system results in 3m rather than 1.5m total immigrants, that’s also considerably less than a true “open borders” regime. Part of Tim’s point is that it’s simply disingenous to pretend that there’s no middle ground between open borders and our current, incredibly punitive regime.

  9. albert magnus says:

    3m total immigrants/year would likely be a terrible, terrible outcome. I think there are rational reasons to think 1.5 million total immigrants/year is a bad outcome compared to 0.5 million immigrants/year. Yet, mention this and you are just a racist and a fascist and that’s the end of that. This is the source of the dysfunction not our lack of sympathy.

  10. Dan Miller says:

    I personally would be fine with 3m immigrants per year (although I’d prefer that they all be legal, rather than the current mix of inadequate levels of legal immigration, topped off with whoever else can cross the border illegally). But advocates for this position need to come to grips with the fact that their preference is deeply unpopular. Until you can find a way to change those numbers, it’s a losing battle.

  11. x.trapnel says:

    3m would be terrible? That’s <1% of our total population. We've had periods of 1% immigration before (1847-54, and 1900-14, apparently). If anything an extra 1% population growth would help ease the demographic/fiscal issues of the retiring Baby Boom generation.

  12. x.trapnel says:

    As for the popularity: well, yes. That’s precisely what articles like Vargas’ are trying to do, and the reason for the comparisons to the gay rights movement. Most of what’s driving the public opinion is the fact that many Americans–as can be seen as these two comment threads–see immigrants as fundamentally Other, rather than people, just like the rest of us.

  13. Todd says:

    I hugely disagree with this. If laws are not used effectivelly, they ought to be repaired, if possible. Over-legislation, and the arbitrary enforcement of the rule of law, are the surest way to hand huge powers to the police to arbitrarily exercise its authority. Most worryingly, it is the easiest path to profiling. This laxity you speak of, may not apply to a Muslim, or a gay man, or an anti-police activist, depending on how much ‘slack’ the policeman is willing to cut to the person in question. Likewise, as we have observed recently, much more laxity may be offered to Wall St. business than to everyday Americans for breaking much the same laws. This is a slippery slope.

    I happen to think US immigration law is a monumental mess in desperate need of reform. I agreed with you yesterday. I do not agree with you today. Ignoring a law is not the way to get it fixed. If Mr. Vargas is allowed to stay in the US despite his brazen disregard for the law as it stands, it will make a mockery of the American system of justice and the increasingly fragile concept of the rule of law.

  14. albert magnus says:

    “Most of what’s driving the public opinion is the fact that many Americans–as can be seen as these two comment threads–see immigrants as fundamentally Other, rather than people, just like the rest of us.”

    Are Japanese people like Italians? Are Armenians different from Brazilians? As populations they are different, right? We aren’t all the same.

    “3m would be terrible? That’s <1% of our total population. We've had periods of 1% immigration before (1847-54, and 1900-14, apparently). If anything an extra 1% population growth would help ease the demographic/fiscal issues of the retiring Baby Boom generation."

    The US used to have the economy of present day China with a focus on export manufacturing and export farming which both requires lots of manual labor. Nor did it have any social safety net, which Americans have grown to love and depend on.

    The US now has economy centered around digital and information technology which amplifies the talents of high-achieving people, but most of the current US population can't achieve the education level to participate in those businesses nor can most the immigrants that come here. Therefore, you get wage stagnation for everyone below the top 10%. To me this is a serious problem, that can be relieved by lowering immigration.

  15. Mercer says:

    “particularly invasive enforcement methods (like employer verification) should be off the table.”

    Compared to the enforcement methods currently used in the “War on Drugs” e-verify does not look invasive to me. People are against it not because it is invasive but because they are afraid it will be effective.

  16. AccipeHoc says:

    I’ve written a little piece on the Vargas debate here: that I am going to shamelessly plug, since I touch on this article. Tell your friends!

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