In law, there’s a distinction between mala prohibita and mala in se – between acts that are crimes simply because they’re prohibited by law; and acts that are wrong without respect to what the law says. Rape, murder and arson are classic examples of mala in se. Restrictions on selling booze on Sunday are classic mala prohibita. Illegal immigration is too.
Many laws fall into the gray area in between. Small offenses like parking illegally become a major nuisance if everyone flaunts the rules. Leaving the park at dusk may be a public safety or municipal budget matter. Then there’s the case of the double-yellow line: it’s completely arbitrary which side of the road the law dictates that you drive on; but once the rule is established, its intentional violation is mala in se.
Immigration laws are fundamentally mala prohibita. While it’s constructive to regulate the movement of people across borders, if only to minimize disruptive effects, human migration is as old as our species, and the reason we dont all still have Kenyan and Tanzanian addresses. Leaving one place in the hope of finding someplace better is normal, natural and common. Illegal immigration is literally a regulatory offense. And unlike other such offenses, like environmental crimes, it doesnt sicken and kill people. While the loonies on the right refer deferentially to polluters as “Job Creators”, undocumented workers cleaning their hotel rooms and picking their raspberries are treated with contempt. Anyone who comes to America in search of a better life deserves to be treated with decency. Those who oppose amnesty and rail on about how “They broke our laws!” need to be reminded that the offense of migrating illegally is on a par with removing a mattress tag.
With Obama deporting more than 1000 illegal immigrants per day, John Boehner absurdly claimed that the president cannot be trusted to enforce immigration laws. Unfortunately, Obama is enforcing those laws, and much more aggressively and effectively than his predecessor, inflicting a lot of pointless misery, at considerable cost and of dubious benefit. Boehner, of course, was hoping to create a smokescreen for his own ineffectiveness. More recently, he took a swipe at Congress for their trepidation over engaging the issue, which was an even greater hypocrisy. A majority in Congress is ready to support immigration reform – however Boehner’s primary ambition is to hang on to his speakership, and he’s afraid that pushing immigration will destabilize the GOP-TP coalition that he needs to keep his job. This, ultimately, is why nothing’s likely to happen on immigration with this Congress.
And that leaves the president to make do with existing laws, which are entirely unsuited to deal with the reality that 4% of the US population is in the country illegally – one out of every 25 US residents, comparable to the entire population of Pennsylvania, Ohio or Illinois. Obama has rightly been brought to task by liberals over his whack-a-mole approach: his administration is finding, arresting, holding, processing and deporting some 400,000 people per year – double Bush Duh’s highest annual totals.
Apologizing to displeased hispanics, Obama disingenuously suggested that he’s bound to execute the laws as written. But on the contrary, an executive, under the established doctrine of prosecutorial discretion, has ample latitude to set enforcement priorities, and allocate the government’s limited resources as he sees fit. Given their great cost and questionable utility – not to mention their harsh, unpredictable and destabilizing impact on many US families and communities – the deportations can and should be stopped NOW. Obama should tell Congress to come up with a plan to deal with the situation, or suffer the President’s reasonable, defensible decision to defer action in the interim, and to direct resources toward more worthwhile ends.