More than two decades of frustration over the failure of the federal government to curb illegal immigration led to Arizona’s draconian response, signed into law by that state’s governor a week and a half ago, in the form of Senate Bill 1070. This essay explores the problem, Arizona’s troubling response, and a possible national solution rooted in natural law.
Illegal immigration has been a national problem for several decades. With the enactment of the Immigration Control and Reform Act of 1986 (IRCA), Congress and the President promised increased border security in the form of sanctions against employers who hire unauthorized aliens coupled with amnesty for many of the more than three million aliens then residing in the United States illegally. The House report accompanying IRCA, explained: “This legislation seeks to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal means of closing the back door, or curtailing future illegal immigration, is through employer sanctions.”
Testifying before Congress in 1985, Chair of the Select Commission on Immigration and Refugee Policy, Notre Dame President Fr. Theodore Hesburgh, said that the Commission’s recommendation favoring amnesty for the undocumented is predicated “on one condition: that somehow the sieve that we call a border could be tightened up, that somehow we would bring our illegal immigration under control.”
The federal government has failed, and failed miserably, in its efforts to close the back door on immigration. The U.S. Department of Homeland Security estimates that nearly 10.8 million undocumented immigrants resided in the United States in 2009, a three-fold increase over 1986.
On April 30, 2010, Arizona’s governor signed SB 1070 into law, setting off waves of hyperbolic reactions and counter-reactions. Among other things, the law states that “for any lawful contact made by a law enforcement official or agency . . . where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made . . . to determine the immigration status of the person.” An alien unlawfully present can be taken into custody, charged with a state crime, and transferred to federal custody.
Several questions immediately arise. What is “lawful contact”? What constitutes “reasonable suspicion”? How will immigration status be determined?
Police officers engage in many types of “lawful contact.” They have “lawful” contact with members of the community in various settings, including in the course of investigating traffic accidents, searching for criminals, and at checkpoints checking for drunk drivers. In other words, police officers have lawful contact with many persons without any suspicion that those persons are engaged in wrongdoing.
Although the law forbids using race as the sole determining factor in forming “reasonable suspicion,” the law will undoubtedly have a disproportionate impact on Arizona’s Hispanic population, including those who are United States citizens or lawful permanent residents. How could it not? Race, ethnicity, and accent will almost surely be factors in deciding whether to verify a person’s immigration or citizenship status.
When Oklahoma considered a similar bill a few years ago, Representative Randall Terrill, the force behind the bill, engaged in a debate at the University of Oklahoma College of Law. Someone asked if he could, on the spot, prove that he was not an undocumented immigrant. Dumbfounded, he admitted that he could not. The Arizona law will require every citizen, at least every citizen who might be the target of “reasonable suspicion,” to carry proof of citizenship.
Deeper problems lurk beneath the surface of Arizona’s law. Local police departments rely on members of the community for all sorts of assistance, including as witnesses to crimes ranging from fender-benders to convenience-store shootings. If “lawful contact” leads to “reasonable suspicion,” undocumented immigrants and their family members are likely to shy away from cooperating with the local police for fear of deportation. And as a result Arizona communities will be less safe under this law.
In a time of budget crisis, Arizona is likely to see a growing prison population, populated with those whose only crime is their immigration status. Otherwise lawful members of society, here illegally out of a desire to make a better life for themselves and their families, will crowd the prisons. Arizona may attempt to transfer these prisoners to federal immigration authorities for deportation, but there is no guarantee that the federal authorities will accept them. Will Arizona keep these persons jailed at public expense indefinitely? The jailed immigrants won’t be able to provide for their families, some of whom will be American citizens entitled to welfare benefits, further draining the state’s treasury.
In short, Arizona has overreacted to Washington’s inability to control our nation’s borders. Will Arizona’s efforts force Congress’ hand? It is too early to tell.
Three-pronged National Solution
Given the current realities—nearly eleven million undocumented immigrants in the United States, the gross economic disparity between the United States and its southern neighbors, the need for some immigrant labor, and the fact that the U.S. has granted amnesty in the past—how should we proceed in reforming our immigration laws in a just manner? Answering that question requires some background.
In the late 19th century when the United States government was just beginning to impose immigration restrictions, the United States Supreme Court based its emerging immigration jurisprudence on a misreading of the law of nations. The Court’s plenary power doctrine meant that under our Constitution Congress possesses the absolute right to restrict immigration for any reason, including reasons at odds with our own national self-understanding. For example, the infamous Chinese Exclusion Case, which is still cited by lower courts as authoritative, established the principle that “if . . . the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed.”
In applying this principle of sovereign absolutism, the Court cited but misapplied preeminent international law thinkers including Hugo Grotius and Emmerich Vattel. Most of these authors drew upon the natural law tradition, and even Vattel, the most positivist of the bunch, understood the limits of sovereignty. In words that could have been written by Aquinas, Vattel wrote: “The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve, because all property is vested in others. . . . Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person the necessaries of life. . . . The same right belongs to individuals, when foreign nations refuse them a just assistance.”
Mining our western heritage, rooted in natural law, we discover that contrary to the Supreme Court’s jurisprudence, a sovereign state possesses only a qualified right to exclude foreigners from its territory. In formulating an immigration policy, Congress ought to take into account this tradition as it exercises its judgment within the broad powers allocated to it by the Court’s reading of the Constitution and international law.
Applying this tradition, five principles emerge. First, persons have a qualified right to emigrate to seek a better life for themselves and their families, especially where human flourishing is impossible in their home state. Second, states have a qualified right to restrict immigration if the common good of the members of the receiving community requires it. Third, wealthier nations have less need to restrict immigration because they can accept a greater number of immigrants without damaging the possibility of human flourishing by its existing population. Fourth, political communities have a right to expect that those within its territory will respect and obey the law. And, fifth, the law is not broken when someone—like Jean Valjean in Les Misérables—takes what he needs for survival.
Given these principles, I propose a three-pronged solution.
First, secure our borders. Illegal immigration is problematic for all involved. As Christopher Tollefsen wrote on this site last Friday: “A society can be morally injured . . . by illegal immigration.” It undermines the rule of law, even if some of the illegal immigrants are modern day Jean Valjeans. Our political system simply won’t stand for granting amnesty every twenty-five years. It harms those on the bottom rungs of the American economic ladder by providing increased competition for scarce jobs without any labor market test to see if there are workers already in the United States willing and able to do those jobs. It creates a shadow population in the United States, which often is afraid to seek basic services such as health care, education, and police protection. And, it exposes the immigrant to exploitation by employers and others who can threaten them with deportation.
Since most undocumented immigrants come to the United States for employment, the workplace remains a logical beachhead against future illegal immigration. Employer sanctions will need to be enhanced to provide a real deterrent against hiring those illegally in the United States. We will need a tamper-proof verification system to prevent an employer from winking its eye at false but plausible documentation. And, the federal government must have the will to enforce its immigration laws at the workplace.
Second, we must have some mechanism to legalize the vast majority of those who have come here illegally but who have put down roots, laboring diligently while raising and/or providing for their families. Tollefsen calls this “the virtue of generous forgiveness.”
Some readers might object on the grounds that those here illegally jumped in line, taking the places of those who have waited patiently in line in their home countries. In reality, there is no line. The United States allows 10,000 unskilled workers worldwide to immigrate to the United States every year on an employment-based immigrant visa. Assuming that all 10.8 million undocumented immigrants left the United States and got in line, it might be the year 3090 before all were accommodated.
Third, we need to adopt a temporary worker program that ebbs and flows with the economy and the demand for labor. This will allow us to protect our most vulnerable workers while providing opportunities for industrious people seeking to provide a better life for their families than can be gained in their countries of origin. In addition to testing the labor market to determine the need for such workers, two features are essential for this program’s success. First, the temporary worker must have job portability to prevent potential exploitation at the hands of one employer. Second, either temporary workers must be allowed to stay in the United States for only a relatively short period—three years, maybe—so that they do not become assimilated into American life, or they must be given a path to permanent residence and eventual citizenship. Although I do not have a strong preference between these two alternatives, the third alternative—allowing long-term “temporary workers” would be undesirable.
Arizona acted out of frustration at Congress’ inability to solve our present immigration crisis. Even if Congress passes this three-pronged proposal, which mirrors the Senate bill from 2007, the economic disparity between the United States and its southern neighbors will continue to create tension along our border. Under these circumstances our immigration policy and our foreign policy must be closely linked. Using a multi-layered strategy, we ought to vigorously encourage Mexico and other countries to take responsibility for their own economic development, reducing a powerful factor pushing people toward Arizona and our southern border. Nonetheless, the three-pronged approach described above is where we should begin.