The previous lesson dealt with how anti-migrant advocates divorce the law from justice. Migrant suffering cannot be justified simply because they “broke the law”. The law is supposed to serve justice.
Even more ridiculous, is that anti-migrant advocates are ignorant of “the law”. But before I explain the deeply flawed immigration laws anti-migrant advocates uphold, I think it’s important to have a discussion about the history of immigration law.
Up until very recently, the word “illegal alien” didn’t really mean anything in the U.S. Anti-migrant advocates like to argue that their ancestors migrated to the U.S. legally but when my Russian grandfather migrated to the U.S. there wasn’t really a legal system for dealing with migrants. Michael Powell of the Washington Post explains in his article the “U.S. Immigration Debate Is a Road Well Traveled”.
Advocates of stricter enforcement argue that those who came a century ago were different because they arrived legally. Movies and novels depict customs agents at New York’s Ellis Island — that keyhole through which 16 million immigrants passed from 1882 to 1922 — examining immigrants and their papers with a capricious eye toward shipping back laggards.
Peggy Noonan, a former speechwriter for President Ronald Reagan, wrote about her Irish forebears in a Wall Street Journal column: “They waited in line. They passed the tests. They had to get permission to come. . . . They had to get through Ellis Island . . . get questioned and eyeballed by a bureaucrat with a badge.”
But these accounts are flawed, historians say. Until 1918, the United States did not require passports; the term “illegal immigrant” had no meaning. New arrivals were required only to prove their identity and find a relative or friend who could vouch for them.
I would go so far as to argue that before the 1980s people crossed back and forth between Mexico and the U.S. without any qualm. To argue that this new wave of migrants should be excluded because they didn’t arrive legally like previous waves, doesn’t make any sense.
Now, on to the present laws.
First, I’ll discuss the laws that defiant migrants are breaking. But before I do so, it is important to define civil and criminal law. Criminal law, what most people are familiar with, is when the state acts against individuals. Civil law, on the contrary, deals with disputes between individuals and organizations, in which compensation may be awarded to the victim. If you murder someone you are in violation of criminal law. If you go 66 mph on the freeway you are in violation of civil law. In general, migrants are guilty of violating civil law.
To be sure, “Improper entry by an alien” is a violation of both civil and criminal law. However, according to the Pew Hispanic Center, as much as 45% of migrants residing in the U.S. illegally overstay their visas, which is only a violation of civil law. Furthermore, since it’s difficult to prove that migrants in the U.S. interior are guilty of improper entry, they are usually charged with “unlawful presence”, which again is a civil offense. The point of this whole discussion is to say that “illegals” are generally guilty of what is essentially the equivalent of speeding on the freeway.
Second, we’ll discuss the flawed laws that anti-migrant advocates are so interested in upholding. I’ve always admired the U.S. ideal, “give me your tired, your poor, your huddled masses yearning to breathe free.” Unfortunately it is virtually impossible for the tired, poor, huddled masses to migrate to the U.S. legally anymore. When people tell a Latin American to “get back in line and immigrate legally” they’re essentially saying don’t migrate at all. There is currently no system for unskilled labor to migrate into the U.S.
I was going to get into all the loopholes–the green card lotteries, the A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, visas, temporary protected status, the special exceptions for Western countries–but I’ve already written one of my longest and most boring posts yet. I hope it suffices to say that immigration law is a mess, on every level, and to uphold U.S. immigration law on some pedestal is lunacy. Forget the fact that it is unjust.
Finally, we’ll talk about the feasibility of “enforcing the law”. The reason federal authorities don’t enforce criminal law at the border, when migrants attempt improper entry, is that it is impossible to put them all through the system. Close to 200,000 people a year are being deported a year now. Trying them all for improper entry would quickly overwhelm the courts. Instead they are deported and sometimes repeat offenders are tried. If it’s impossible to try the people attempting to get into the U.S., think about what it would be like to deport 12 million migrants, or force them to leave.
It has already been stated that it would take busses, lined up from San Diego to Alaska, to deport that many people. But let’s talk about the other options, what the New York Times calls “The Misery Strategy”. Enforcing employment law, excluding migrants from public services, from housing, deputizing police to check for immigration status, all of these are supposedly for the purpose of forcing migrants to leave on their own. Essentially what people are advocating for, is making life more miserable for migrants in the U.S. than it is for them in Mexico or rural Guatemala. What a great idea. Make migrants miserable.
Fortunately, migrants do have some rights in the U.S. In some ways migrants are fortunate the only white men were citizens when the country was founded because it means they are protected by most provisions of the U.S. constitution. But that hasn’t kept people in this country from forcing migrants to live in fear.
In short, anti-migrant advocates are misrepresenting immigration history; they are railing against what is the equivalent of a traffic violation; they are supporting a system of flawed immigration laws; and their concepts of enforcing the law aren’t feasible, and they certainly are unjust.
I will end this law with a quote from the Reverend Doctor Martin Luther King, Jr.
How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts the human personality is just. Any law that degrades human personality is unjust.