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Democracy, Justice, and Immigration

In this third essay I intend to discuss the Deferred Action Childhood Arrival (DACA) program and its relationship with the requirements of justice.

But first, allow me to express my appreciation for the content and tone of Matthew’s second essay. I appreciate his effort to highlight our many points of agreement. Our conversation thus far reveals our agreement that the common good depends on willingness to move beyond rhetoric. We agree that Christians ought to be willing (as citizens in our republic) to thoughtfully participate in democratic consideration of immigration law and policy.

We are also in agreement that immigration law is not inherently unjust. We agree that borders are important, and that nations have good reasons to regulate their borders. Matthew specifically rejects the suggestion in my first essay that he might be arguing for an open border policy – and he concedes that the universal demands of justice do not require legislators to recognize a right to immigrate. Thus, everyone who wants to live in the United States may not be able to do so. This concession separates Matthew from others arguing that justice requires opening borders to migration.   

So far, then, Matthew and I are both in agreement with Attorney General Sessions’s recent statement: “To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here. That is an open border policy and the American people have rightly rejected it. Therefore, the nation must set and enforce a limit on how many immigrants we admit each year and that means all can not be accepted. This does not mean they are bad people or that our nation disrespects or demeans them in any way. It means we are properly enforcing our laws as Congress has passed them.” Immigration laws by their very nature restrict migration and necessarily exclude individuals who desire to immigrate into a nation.

The fact that we agree that justice does not require elimination of immigration laws is somewhat surprising to me. I thought Matthew would be taking the position that U.S. immigration laws are unjust. Instead, he has repeatedly affirmed the legitimacy of U.S. immigration law as a matter of justice. And rather than identifying specific manifestations of injustice in U.S. law that must be remedied, Matthew has instead argued for relatively minor prudential adjustments to current law.

Specifically, Matthew has proposed marginally increasing the number of visas made available annually (without identifying any specific number to award), modifying how visas are distributed (by focusing on the “market” and “employer” interests), adjusting enforcement practices (favoring fines followed by pathways to citizenship rather than deportation), and heightening enforcement of immigration laws in regards to visa-overstays.

I am referring to Matthew’s proposals as a prudential arguments (as opposed to principled arguments) because Matthew disclaims the suggestion that justice requires the adjustments he recommends. He also concedes that even if his proposals are adopted U.S. immigration law will remain imperfect, and unintended consequences will follow from these legislative proposals. These concessions are important because Matthew seems to be deferring to democratic resolution of the question of the content of the law. If this is so, I fully agree with him.

This is not the place where I thought I’d find myself in this conversation. I assumed that Matthew would be making the argument that immigration law itself was a violation of individual rights to migrate rooted in justice. Instead, Matthew concedes that nations possess the sovereign obligation to regulate their borders. He just wants legislators to approve a few more visas a year, more vigorous immigration enforcement regarding visa overstays, and modification of the means of enforcement.

Each of these proposals are reasonable (meaning that they are neither arbitrary nor unjust), and ought to be considered by our elected representatives. But, of course, there are a number of other prudential concerns that Congress must necessarily consider before adopting Matthew’s proposals. And to the extent possible, Congress ought to anticipate and avoid as many negative unintended consequences as possible.

For example, before approving any “marginal” increase in the number of visas granted annually, Congress will be required to determine the “marginal” amount. How many? Answering this question requires consideration of many costs and benefits. Because Congress is obliged to consider the common good, lawmakers must consider not only the impact of immigration law on the immigrant. They must also consider the impact of this marginal increase on citizens and States.

As Matthew has repeatedly noted, Congress ought to consider safety, security, and economic concerns. Setting the number of annual visas will required careful consideration of economic impacts of the policy. There is evidence supporting the conclusion that increasing immigration visas will be a net economic benefit. However, even this evidence suggests that increasing immigration “impose(s) a heavier tax burden on natives at the state and local level.” As Congress then considers the common good, it must ultimately strike a legislative balance between the interests of prospective immigrants, citizens, State and local governments, and even foreign nations.  

I have not offered any specific proposal because I have not attended (nor read) legislative hearings regarding these difficult questions. Unless justice requires a specific volume of visas annually, I would defer to the judgment of our elected representatives (and to the democratic process) to determine the volume of visas to grant. I am not at all opposed to Matthew, or any other Christian, calling his or her elected representative regarding these policy questions.

My prior essays reflect the fact that U.S. immigration law has been modified numerous times over nearly two and a half centuries. If Congress deems it necessary to modify immigration law by allowing more visas I would not have a principled objection to that conclusion. But nor would Matthew, I take it, have a principled objection to a decision in the opposite direction. Congress strikes a balance and resolves these prudential questions because justice does not require the United States to permit immigration.

Practical vs. Theoretical

If I am understanding Matthew correctly it appears that at bottom his main disagreement (what he also calls dissatisfaction) with my thought is that he is dissatisfied by my deference to democratic resolution of the many practical questions regarding U.S. immigration law. He views my effort to identify the questions Congress must ask (and answer) to be too theoretical – perhaps too academic. And he is eager to do something more concrete to help individuals impacted by immigration law.

He wants, in other words, to legislate. And he wants me to join him. He seems to regard my deference to the legislative process (to legislative hearings, factual findings, and democratic compromise) to be too theoretical to warrant serious consideration.

A couple of responses. First, by describing the questions I posed in my first essay as theoretical, Matthew appears to misunderstand the nature of practical reasoning. As I noted in my first essay, asking the right questions about the content of U.S immigration law (and the relationship of law to justice) is inherently practical. We are asking questions about what ought to be done. Immigration law answers the question for those seeking to immigrate (and for those determining whether an immigrant is lawfully entitled to remain in the United States). Accordingly, I began this conversation by acknowledging that the questions we are asking are important because they shape the real world. Immigration law is practical. Accordingly, asking and answering the proper questions has a significant impact in the real world.

Matthew has personally observed the ways in which immigration laws impact individuals. He notes three anecdotal stories of DACA’s impact, and he argues from these that immigration law is “personal” and “urgent”. But all laws are “personal” and “urgent” in the manner Matthew describes. As a lawyer, and a law professor, I could also tell many, many stories about the ways in which I have personally witnessed law impacting people. Laws shape the world in which people live. It is because U.S. immigration law impacts millions of people (indeed, our entire nation and its relationship to the world) that I believe deference to democratic judgment regarding the content of the law is so important.

Matthew describes himself as feeling a “moral obligation” to “leverage the influence” he has so that those individuals potentially denied lawful status can flourish. And it is here, I suspect, that Matthew views himself to be acting practically (as opposed to theoretically). He wants to do something.  

But I also seeks to support immigration laws that would enable human flourishing – not just for individuals denied access to lawful immigration status – but for everyone. In order to achieve such a result I think it is vital that Congress consider Matthew’s proposals in an effort to secure the common good. I agree with Attorney General Sessions: “No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law. Societies where the rule of law is treasured are societies that tend to flourish and succeed. Societies where the rule of law is subject to the political whims and personal biases tend to become societies afflicted by corruption, poverty, and human suffering.”

Matthew’s proposals deserve legislative consideration. But I suspect that legislative hearings regarding the proposals would reveal (to Matthew) a number of significant practical considerations he is not considering.

Immigration Law & Justice

As I’ve noted in both of my prior essays, the disagreement between Matthew and I appears to regard the nature of justice and its relationship to human (immigration) law. Matthew concedes that justice allows nations to regulate their borders, and that immigration law itself is not per se unjust. Yet he argues that immigration is a “personal and urgent” issue that demands immediate, concrete action. And his argument rests on the fact that immigration laws affect people in the real world – impacting them personally.  

Matthew thus invokes a universal standard (justice) and argues that his policy-proposals are necessary now to make human laws “more just.” At the same time, he argues that immigration laws are necessarily imperfect, and any effort to understand universal standards (like justice) and apply them is the theoretical pursuit of utopia. He seems dissatisfied with inquiry and wants action.

In essence, Matthew has reduced all of his arguments about reforms to U.S. immigration to merely prudential grounds. He is not arguing that law must changes to comport with a universal standard. Instead, he is arguing that the law should be changed to achieve a better balance between competing ends (i.e., border security, economic flourishing, and individual outcomes for immigrants).

In my view (as noted above) such prudential questions are entrusted (in a democracy) to the elected representatives of the people. Prudence requires careful balancing of competing concerns. For example, Matthew proposes “marginal increases” to the number of visas made available every year. A legislative body should consider such a proposal by evaluating all the known (and knowable) costs and benefits of such a proposal. How many visas? What are the costs associated with increasing the available number of visas? What are the benefits?

What I think Matthew is trying to do is co-opt the universal standard (justice) and leverage it for his desired ends (increasing access to citizenship, and mitigating deportation). The problem with this is, in my view, a failure to comprehend the nature of justice and its relationship to law. And it is here, I believe, Matthew and I find our disagreement.

Justice lies at the very heart of the immigration debate. Those demanding reform to immigration laws most often do so in the name of justice. Those demanding enforcement of immigration laws do so in the name of justice. Matthew appears to be arguing for both viewpoints in the name of justice (i.e., to make law “more just”).

The problem, as I noted in my first essay, is that justice is a contested concept. In the Christian tradition, justice is most often associated with the thought of Augustine and Aquinas. Although there are significant differences, both considered justice to be related to giving to each person what they are due. Both recognized that justice regards right ordering. Thus, the just thing to do is the thing that comports with obligations towards God and others. Where law exists, there is an obligation rooted in justice to obey the law.  

Unless the law itself is unjust. But even here, where Christians determine that the legal requirements violate moral, ethical, or other divine requirements, there remains an obligation of fidelity to law. Dr. King addressed this obligation directly in his Letter from a Birmingham Jail. There he explained that one breaking an unjust law must do so "openly, lovingly ... and with a willingness to accept the penalty." John Finnis has further elaborated on the requirements of justice as they pertain to law in Natural Law & Natural Rights. Following the Christian tradition, Finnis explains with precision why Christian obligations pertaining to law. Ignoring (or violating) legal rules promulgated by the lawmaker for the common good in the name of  justice would be unjust.   

DACA and Justice

Those demanding immigration reform in the name of justice often do so by highlighting the Deferred Action Childhood Arrival (DACA) program. Matthew highlights three individuals impacted by DACA in his last essay. He highlights the uncertainty and fear these three young women face in light of DACA’s instability. And many others suggest that justice requires that the “dreamers” be granted permanent legal status in the United States.

What does justice require?

If we agree that justice allows immigration law then we cannot say that U.S. immigration law is unjust per se. This makes it difficult to then argue than individuals have a “right” to legal status. Whether any individual is entitled to lawful status is a question answered by the law. How the law answers that question is where the real debate regarding DACA resides. But when the law answers the question, the just thing to do is to submit to the rule of law.

President Obama announced DACA unilaterally (without the consent of Congress) in a series of executive memorandum and orders. Prior to announcing DACA, President Obama announced a similar executive revision of immigration law (the Deferred Action for Parents of Americans and Lawful Permanent Residents Program, also known as DAPA). President Obama intended for this program to address the difficult problem of status for individuals whose children were born in the United States (and were thus U.S. Citizens) but who themselves lacked citizenship. Rather than securing a legislative solution to this problem, the President announced his decision to grant legal status to these parents. DAPA was later deemed to be unconstitutional, and a federal injunction now prohibits further enforcement of the program.

Similarly, DACA was announced without the consent of Congress. President Obama was again trying to address a difficult problem (the legal status of children who were brought to the United States as minors, who grew up here, yet who are not entitled to citizenship under current U.S. law). Like Matthew, President Obama appears to have desired to leverage his position of power for the advantage of the undocumented. The problem is that the President’s constitutional obligation (to enforce the law) was ignored. As others have explained, the President’s DACA orders effectively nullified federal law.

Who, then, as a matter of justice, caused the instability and uncertainty faced by the dreamers? First, those who brought them to the United States unlawfully. Matthew’s prior essays make clear his agreement with the obligation to obey existing laws. Those who bring children to this country unlawfully are willingly exposing those children to the uncertainties associated with unlawful status.

Second, the DACA program itself, as a unilateral executive action, is constitutionally questionable. This creates additional uncertainty for the hundreds of thousands impacted by the program. Such unilateral action also gave Congress cover. Why face the political risk of wading into the immigration reform debate when the President has already done it?

Third, those who encourage unlawful entry into the country are responsible, in justice, for contributing to instability and uncertainty faced by those here unlawfully. This includes “public interest” groups, employers, universities, and others that may have contributed (for reasons of self-interest) to the problem by encouraging or facilitating unlawful entry into the country.

And ultimately, if there is no natural right or principle of justice entitling the dreamers to live in the United States, those seeking exemption from existing laws are responsible in justice for the uncertainty and instability they will face in their own lives.

I do not intend here to deny the right and responsibility of Christians to come to the aid of all people. We ought to help dreamers and citizens alike seek equal justice under law. But I am warning against the danger of justifying violation of existing law on the basis of our desire achieve other “good” outcomes. Call your representatives and Senators and demand legislative reform, but do not facilitate violations of the law in the name of justice.

Conclusion

In 2014 I attended the Christian Scholars Conference at a Christian University in Nashville. Immigration was one of the plenary topics at the conference. A federal judge provided his insights about the complexities of immigration law, and a varied group of panelists responded. Many on the panel were calling for sweeping changes, and were very supportive of the President’s unilateral actions. During the Q&A I asked a question regarding the value of the rule of law itself. I heard audible gasps in the room, as if I had uttered a bad word or had taken the name of the Lord in vain.

The point I have been trying to make in these essays is that immigration law, once adopted, ought to be enforced. Ultimately, the most effective means of enforcing rules excluding individuals is to exclude those individuals. That’s what immigration rules do. There may be good reasons to change the rules (and Congress has the constitutional power to make those changes). But unless the rules are changed in accord with the rule of law, the rule of law itself is threatened by our collective failure to abide by immigration rules we’ve adopted. And then, as history reveals, everyone loses.  

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