The “Rule of Law” As It Pertains the Enforcement of Immigration Laws
The following article is in response to this article by Shirley Spellerberg.
The “Rule of Law” has been the rallying cry of those who are most critical of the Immigration policy as reflected in the 2012 Platform of the Republican Party of Texas. One critic stated, “Our immigration laws must be respected and enforced.”
I agree with that statement. However, as an attorney with over twenty-two years of experience (with nine years as a state prosecutor and over two years as a federal immigration and drug prosecutor), I believe that the federal government has lost the ability and its credibility to effectively deal with the immigration issues. As one of the co-authors and proponents of the Texas Solution, I believe it is incumbent upon me to respond to those who may not understand what they are asking for when they demand for the “Rule of Law.”
Current Status of Immigration Enforcement:
Noteworthy is the fact that not all immigrants who are present within the United States without permission are committing a “crime.” Those immigrants who have lawfully applied for and have obtained visas and thereafter stay beyond the time permitted have committed a civil violation of the immigration laws. It is estimated that up to 40% of the so-called “illegals” fall under this category. The remaining persons who entered the United States without application are guilty (at the minimum) of Entry Without Inspection. This is a Class B Misdemeanor whose maximum penalty is 6 months in jail, a $500 fine and $10 penalty assessment. In reality, most that are charged and convicted of this crime are sentenced to time served. If the person who is found to be present illegally within the United States has been previously deported, then the crime is a felony. It should be noted that all illegal entry crimes are continuing crimes. What this means is that the crimes of illegal entry are not over once they illegally enter the United States. The crime continues no matter where they live within the United States. The person could have illegally entered five minutes ago or five years ago; their on-going presence is just as illegal.
Current laws and regulations regarding deportation are more complicated. All persons who have remained in the United States beyond their departure time on their visa or who are found to have entered the United States without permission are subject to deportation. If the government wants to deport a person, the government has to institute a formal hearing unless the person being deported waives the right to a formal hearing. Whether or not the person waives the hearing, while the deportation hearing is pending, the person that is being deported is held at taxpayer expense until the conclusion of the hearing. Currently, this could take anywhere from a few days to a few weeks to accomplish. The vast majority of deportation hearings result in a deportation order being issued. Once deported, if that person reenters the United States, they will have committed a felony.
History of the “Rule of Law:”
The “Rule of Law” concept cannot be expressed as one concept, but in at least three conceptual implementations. The first concept is a formalist implementation whereby the “law is the law and there is no analysis of the result of the law.” The attraction to a formalist implementation is that the law is stated and is well known, is equally enforced and is enforced with certainty. The second concept is a substantive implementation whereby the “law is the law, but the person accused of breaking the law has certain intrinsic rights that cannot be violated in the attempt to enforce that law.” Noteworthy is that under either formalist or substantive implementations, a wide subjective implementation of either can result in extreme results.i The third concept is a functional implementation whereby the implementation of the particular law by the government’s appointed officers is discretionary. The end result is that the more discretion the enforcing officer has, the less rule of law is present. Conversely, the less discretion the enforcing officer has, the more rule of law is present.
By way of example, if a DPS trooper sees a blue Corvette going 90 mph on I-10 in a well posted 65 mph zone, the DPS trooper is expected to pull the driver over and give him a ticket. Right? Under a strict formalist implementation of the rule of law, the analysis ends there. However, we all know by personal experience, mine included, that the DPS trooper is going to: 1) tell the driver why he was pulled over, and 2) ask the driver about the reason for the excessive speed. Using a functional implementation approach, we would consider this fact: the driver tells the DPS trooper that his son just got hit on the head by a foul ball and he the driver is heading to the hospital 20 miles away (as the driver points to his son who is semi-comatose). Based upon a formalistic implementation, the driver would be ticketed. However, under a functional implementation, the officer has the discretion not to write the ticket. Under a substantive implementation, an analysis of whether the driver’s constitutional rights were violated would be made.
While functional implementation of laws works well with traffic laws, functional implementation of any law dealing with sovereignty seems highly inappropriate since the goal of immigration laws should be the enforcement of national sovereignty. A strong substantive implementation of the current immigration laws and regulations would be appropriate if there were civil rights abuses taking place as the result of the enforcement of those laws and regulations. However, the current protections in place seem to have taken care of most of the abuses by the governmental authority. That leaves the formalist implementation approach. But can we use a formalist implementation approach with the current laws and regulations?
I believe the current answer is no. As noted above, in order for a formalist implementation of the law to succeed, it must be a well-known law, equally enforced against everyone, and enforced with certainty.
Current Immigration Laws and Regulations Cannot Be Known:
The first concept within the formalist implementation is a universal knowledge of the laws. Within this concept is the present ability to obey the law. In the case of immigration laws and regulations, there is an inability for prospective employers to obey all of the laws and regulations without conflict with another law or regulation. By way of example, when an employer hires an individual, the employer obtains from the employee a “valid” social security number. Under penalty of law (EEOC), that employer is not permitted to challenge the authenticity of the card as belonging to that employee even if the employer suspects that the card is bogus. Once the employee is hired and the Department of Homeland Security investigates the employer, they will fine the employer for having an illegal immigrant using a fake or stolen social security number.
Current Immigration Laws Are Not Being Equally Enforced Nor Are They Being Enforced with Certainty:
Any law, even if well known, will become unenforceable if it is not universally enforced. The population will become confused and upset if the law is enforced sometimes and not at other times. For example, if there is a red light in your hometown that almost everybody runs and the police do not quickly and equally enforce the law, the population quickly becomes distrustful of the police and may even start refusing to obey other laws.
Immigration laws can be compared somewhat to the red light example because the executive branch has done a poor job for at least the last 30 years of enforcing the immigration law - whether by not enforcing the laws on the books or by enforcing the laws in a conflicting manner. Indeed, on June 25, 2012, the Supreme Court of the United States issued its ruling in Arizona v. United States, 567 U.S. ___ (2012),ii regarding the Arizona immigration legislation.
Writing in his minority opinion, Justice Scalia specifically mentioned that Arizona’s actions in enacting its own immigration laws were born out of frustration of the lack of proper federal enforcement of federal law. The federal government countered that only the federal government can decide how to use federal resources and that Arizona’s desires of enforcement would overwhelm federal resources. By many estimates, 11 million people are present within the United States who are not supposed to be here. That number alone sends a mixed message to those who could be removed from the United States – i.e., if you stay hidden long enough, you may get a reprieve. That many people remaining within the United States also hurts the moral of those who chose to follow the law at the great expense of getting the right paper work together.
Even if the federal government wanted to enforce just the civil aspects of the immigration law and deport all 11 million people, it could not do so. Even if just ten percent of the 11 million people asked for a formal hearing, we would have to have more than 1 million hearings for deporting people. If you think prisons are crowded now, what would we do with the 1 million people who would be waiting for a hearing? While they waited for their hearings: New prisons would have to be built. New law enforcement would have to be hired and equipped to detain those 1 million people. And, new judges and new staffs would have to be appointed and hired. All of this takes time and money. Anyone who thinks that this could be done in less than two years is dreaming. I cannot even begin to estimate the fiscal cost of such a project. As a final point, I think that all Republicans can agree that the most important thing we can do as a nation is to reassert our national sovereignty. I also think that we can agree that our sovereignty has been greatly compromised when there are undocumented people present within our country and we do not know who they are. What Republicans seem to disagree on is when and how to deal with all of these people within our borders. The Texas Solution immediately seals the border and immediately begins the process of identifying the people who are not supposed to be here.
Those taking a hard line stance in insisting that we must enforce the laws on the books need to rethink their stance in light of all of the facts. Because the federal government has waited so long to enforce the laws on the books, a formalist implementation approach to enforcing the current immigration law is no longer legal for the individual states, nor is it possible for the federal government. As Republicans, we are better than Democrats at identifying problems with society and the government. As Republicans, we are better than Democrats at offering solutions to these problems. As Republicans, we offer solutions that do not rely on the backs of the taxpayers to solve these problems – the few Democrat solutions that are offered almost always result in a big cost to the taxpayer. As Republicans, the subcommittee offered a solution to the immigration problems – the Texas Solution. The solution begins with closing the borders – i.e., really defending and enforcing the sovereignty of the United States. The next step of the solution then focuses on those people who are either unlawfully present or who have stayed past their visa time permit.
The Texas Solution was overwhelmingly adopted by the entire 2012 convention of delegates. If the naysayers to the Texas Solution have a better plan to deal with the 11 million people, let them present it and not simply tear the idea down like the Democrats do.
i A formalist implementation extreme example is the censorship of any and all criticism of the monarchy in Thailand. In one recent case, an American blogger was being prosecuted for translating an article critical of the monarchy and posting it on his blog. A substantive implementation extreme example is the dismissal of all charges against a defendant charged with capital murder when the Supreme Court of that state found that the defendant’s legal counsel did such a lousy job that only an acquittal of the defendant would serve justice. Interesting to note was that within the Court’s opinion there was no specific finding that either the investigative agencies or the prosecution violated the defendant’s rights.
ii Find the entire text of the Supreme Court opinion here: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf
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