ACSBlog: The Blog of the American Constitution Society

Politicians, pundits and activists have touted “the rule of law” as the solution to our nation’s broken immigration system, mistakenly conflating this term with “law and order.” In fact, the “rule of law” offers a positive framework for reform, but only in the full meaning of this concept. At its most basic, the “rule of law” speaks to the need for government to be accountable to the law. “Where the law is subject to some other authority and has none of its own,” Plato wrote, “the collapse of the state . . . is not far off; but if the law is master of the government and the government is its slave, then the situation is full of promise.”

The “rule of law” requires a certain level of “law and order,” but enforcement of the law does not guarantee a legal system that satisfies this concept. After all, despots excel at ruling by law. As Brian Tamanaha has written, a consensus has emerged in liberal democracies that the “rule of law” speaks to the form that laws take, their purpose (service to human rights and the common good), and the legitimacy of the underlying political system. How might this standard guide reform of the U.S. immigration system?

Measuring the U.S. Immigration System

The indices used by non-governmental organizations to measure compliance with the “rule of law” in other nations typically stipulate that laws must be written, prospective, coherent, procedurally fair, and applied even-handedly. Persons with even the most passing experience with the U.S. immigration system know that it does not satisfy these mostly “formal” standards. Repeated studies have demonstrated, for example, gross disparities in deportation outcomes based on legal representation, detention, and the assigned judge. The U.S. Commission on International Religious Freedom reported that one-sixth of the migrants at U.S. ports-of-entry who express a fear of returning home are nonetheless turned away in violation of U.S. and international law.

The American Bar Association’s Commission on Immigration has argued that the spiraling population of persons without legal status in the United States — whom it characterized as “second-class non-citizens . . . without rights, status, security or stability” — in itself raised rule of law concerns. The Commission reported that persons without status “live largely outside the law’s protections,” facing “crime, exploitation and abuse.” State and local legislation that attempts to force the undocumented to self-deport by denying them housing, work, and minimal government services puts them further outside the law’s protections.

The ABA Commission also concluded that U.S. immigration laws “contribute significantly” to “illegality” because they conflict with the right to family unity. The conflict occurs in three areas. First, unforgiving U.S. deportation laws have led to the permanent banishment of thousands of lawful permanent residents, many for relatively minor crimes that they committed years in the past. Second, U.S. law conditions family unity on income by requiring U.S. citizens or lawful permanent residents who wish to sponsor a qualifying relative for a visa to demonstrate the “means to maintain” that person at 125 percent of the poverty guidelines. Third, multi-year backlogs force immigrants who have been approved for family-based visas to decide whether to obey the law and live abroad while they await their visas, or to live with their families in the United States without status. Literally millions opt for the latter course. These and other measures have been exacerbated by growing restrictions on judicial review, a linchpin of the “rule of law.”

The “rule of law” also argues for coherence between the operation of different legal regimes. Yet there is dissonance between U.S. immigration policy and the nation’s relatively open job market that depends on more than 7 million workers without legal status. According to Federal Reserve Chairman Benjamin Bernanke, the U.S. economy will need 3.5 million additional laborers annually into the foreseeable future to replace the 78 million baby-boomers who begin to retire in 2008. Besides immigrants, the only other source of “replacement” workers will be elderly persons who chose to work beyond their projected retirement dates.

The Administration and Congress have stepped up pressure on states and localities to enforce federal immigration laws. Many police forces have resisted at risk to needed federal funding, fearing that this new responsibility will distract them from their core law-enforcement duties and will prevent immigrants from reporting crimes and cooperating in community policing. This result offends the rule of law even in the narrow, “law and order” sense of this term.

More than three million U.S. citizen children have at least one parent without legal status. Denying them citizenship will effectively make many of these children stateless. The 14th Amendment guarantees citizenship to those born or naturalized in the United States and subject to its jurisdiction. Yet 96 Members of Congress co-sponsored legislation last year that sought to deny birthright citizenship to the children of undocumented persons without amending the Constitution. The creation of a “permanently illegal” class of children through arguably illegal means represents an egregious challenge to the rule of law.

Honoring the “Rule of Law”

The “rule of law” has been evoked to oppose policies that would increase “legality” and to support policies that would increase “illegality.” Many restrictionists favor reducing legal admissions, denying citizenship to U.S.-born children, criminalizing being or assisting an undocumented person, and denying certain immigrants the means to subsist. Last year, they cited the “rule of law” to justify their opposition to the “DREAM Act,” which would have legalized undocumented persons raised in the United States, and to oppose “amnesty” for the spouses of fallen U.S. soldiers in Iraq.

Pro-immigrant groups do not favor illegal immigration or support open borders. My own agency has documented the chaos and security risks that characterize the current immigration system. At the same time, we do not think that enforcement can be effective without broader reform of the U.S. immigration system. While Border Patrol funding increased from $206 million in 1988 to $1.8 billion in 2006, the U.S. undocumented population grew roughly five-fold. Deportation-only or prosecution-then-deportation, or deportation-by-attrition strategies will be prohibitively expensive and a civil rights debacle.

A purely “law and order” approach also fails to address why people migrate, an essential consideration in crafting a successful immigration policy. Most come to work as part of a family survival strategy. Better to die trying to cross, migrants say, than to die slowly at home. Millions have been displaced by the process of globalization. In the 12 years following passage of the North American Free Trade agreement, two million persons lost their jobs in Mexico’s agricultural sector. During these same years, many small family farmers joined the U.S. “illegal” migrant labor force.

U.S. immigration laws remain generous in many ways. They deserve to be obeyed and enforced. Yet the law cannot ultimately prevail against human desperation and need. The “rule of law” holds the promise of creating a more humane immigration system that could be better enforced. Honoring this venerable concept would serve our nation’s interests and ideals.

[Editor's note: This blog post was adapted from a longer article published in Bender's Immigration Bulletin ($) on March 15, 2008.]