Why should liberals expend energy bashing conservatives – when conservatives do the job so much better? This week, the Field Guide takes aim at “originalism,” to again demonstrate that conservatism, at its roots, has no principles. It is not a political philosophy – it’s just a bunch of crap packed together by historical accident, and held together through a firm commitment to not thinking it to death.
Originalism, nominally, holds that the US Constitution should be interpreted the way the people who wrote it and-or ratified it would have interpreted it. Take the 14th amendment’s birthright citizenship clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Hard to imagine how anyone who ever complained about judicial activism could suggest that the 14th amendment means anything but what it says: if you are born in the US, you are a US citizen. But it hasnt prevented conservatives from claiming that the US-born children of illegal aliens are exempt from the 14th amendment’s plain meaning.
Their argument seizes on the “subject to the jurisdiction thereof” requirement, somehow asserting that illegal aliens are not subject to US jurisdiction. Anyone who knows a little bit about law should know what the consequence of that would be. It would mean that illegal aliens could not be tried for any crime, nor compelled to appear for civil disputes either. They would have the same immunity as do diplomats (the actual, intended targets of the jurisdiction requirement), who can be expelled from the country, but cannot be brought to court to answer for their misdeeds. If that sounds crazy, wait – there’s more.
At the time of the 14th amendment’s ratification, the US had never had an illegal alien. The borders were open, and had been since colonial times. Anyone could emigrate to the US – and, under the common law, their children automatically became citizens. How could the writers and ratifiers of the 14th amendment possibly have intended an exception for a class of people that didnt exist!?
Moving on to the next stupid originalist trick: If you saw the GOP debate, you may have caught Marco Rubio advancing the loopiest anti-abortion argument to date. Per Rubio, the 5th amendment’s due process clause,
No person shall… be deprived of life, liberty, or property, without due process of law….
applies to fetuses and embryos. And so we dont need state or federal anti-abortion statutes – abortion is already illegal under the US Constitution – we just need five justices to say so.
We happen to know that Rubio is an originalist, because after the Supreme Court’s decision in Obergefell, (legalizing gay marriage nationwide), Rubio said,
It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.
So did the 5th amendment, “as written and originally understood”, really include fetuses and embryos as “persons” – and outlaw abortion from way back in 1791?
To answer that question, it helps to know that abortion was legal in all 13 states at the time the Bill of Rights was adopted – as it had been in all 13 colonies previously – as it had been for several hundred years under the common law. And so Rubio will have to find some other pretext for his political beliefs. Or he can simply abandon originalism, and interpret the Constitution according to some other style. We at the Field Guide are betting that he does neither – self-contradiction, after-all, is the conservative way.
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Where does the GOP really stand on immigration? Indeed, they arent entirely monolithic – some conservatives say they’d grudgingly allow a pathway to citizenship for some unauthorized immigrants; others say they’d like to see the US (somehow) expel all of its unauthorized immigrants – some 3.5% of the US resident population and 5% of the workforce – if only by elven magic and pixie dust.
Conservatives are all but unanimous in their opposition to President Obama’s common-sense, pro-family reforms, which exempt millions of unauthorized immigrants from deportation. Many, including House Speaker John Boehner, have maligned Obama, claiming that he “cannot be trusted to enforce the laws as written” – implying that a GOP president would do things differently – that if the GOP had its druthers, US immigration policy would see a dramatic change.
Economists employ a useful concept: “the revealed preference.” Recognizing that some people (particularly politicians) will lie about their true mindset, we are wise to ignore their words when we have their actions to reveal their actual preferences. Revealed Preference Theory is in fact a whole lot more involved – but this facet of it closely tracks the popular notion that talk is cheap – and that walking the walk – as distinct from talking the talk – is the true indicator of someone’s heartfelt policies and beliefs.
So where do Republicans really come down on immigration? We might start by taking a look at how the number of unauthorized immigrants living in the US changed during the tenure of the last GOP president. When Bush Duh took office in January 2001, the unauthorized immigrant population was about 9.4 million. In 2003, it passed 10 million. During 2005, it surpassed 11 million. And in 2007, Bush Duh’s seventh year in office, the number of unauthorized US residents reached what remains an all time high of between 12 and 13 million – more than double the number in 1996.
Bush Duh’s presence in the White House had no impact on the steadily increasing number of unauthorized US residents. The only reason why their numbers finally plateaued and began to decline after 2007 is because a weak US economy made the US less attractive: fewer people tried to enter the US illegally, and a fair number of those already in the US departed.
Since Obama took office, and the Great Recession receded, the number of unauthorized immigrants in the US has leveled off at about 11.5 million. It may surprise some to discover that while Clinton and Bush Duh each oversaw periods during which the number of unauthorized immigrants increased by the millions, Obama is the first president in recent history under whom their numbers have roughly held steady.
But we arent here to discuss Obama’s immigration priorities – our aim is to discern the GOP’s real stance. And quite conveniently, it just so happens that yesterday the GOP passed its very first budget resolution in more than a decade. Given all the GOP tough-talk on illegal immigrants, you’d expect there to be a whole lot of new spending for DHS border security and immigration enforcement, right?
Nope. As it turns out, in its brand new budget resolution, the GOP didnt even maintain spending on immigration enforcement and border security at current levels. By cutting the benefits of most federal employees, the GOP, for all their hand-wringing, and their recent government shutdown threat, would effectively reduce the resources available for immigration enforcement and border security!
Le plus ca change. The GOP did nothing while millions illegally entered the US under Bush Duh’s watch. And just yesterday, in its budget resolution, the GOP revealed its preference for reducing the resources available to the Department of Homeland Security. So what does this say about conservatives’ real immigration priorities? – It reveals that immigration, for conservatives, isnt a priority at all.
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Few issues put the conservative disconnect with reality into as high relief as the immigration crisis. Conservative “plans” range, by analogy, from building a ladder to the moon, to rowing a boat to the moon instead. There are more than 11 million people currently residing in the US illegally. The resources to find, hold, process and deport that number of people do not exist. Nor should anyone of sound mind want to live in a country with a police force so powerful that it could round up roughly 4% of its population, with a commensurately enormous prison apparatus. Consider that all local and federal police have thus far been able to push the US prison population to 2 million, giving the US the highest incarceration rate in the world. Immigration enforcement, with perhaps one-tenth the manpower, cannot begin to round up more than five times that number of people.
The immigration crisis cannot be resolved by the police. This is the point of departure for all reality-based approaches toward easing or resolving US immigration issues – President Obama said as much in his speech Thursday night. The few conservatives who seem to grasp this reality sometimes advocate for a self-deportation fantasy instead, in which the US makes existence so difficult for its undocumented aliens, that they give up on life in America, pick up and leave. The problem with that plan is that self-deportation on such a scale has never occurred in a western country during peacetime in history.
The not-so-wise and way-too-cynical yet insist that “the laws be enforced as written.” However given the disparity between the large number of undocumented aliens and the paucity of resources available to immigration enforcement, the laws can only be enforced selectively – a fact Obama also noted in his speech. Once one recognizes that resource constraints compel law enforcement to narrow its focus, the rest of the president’s plan is common sense. Immigration enforcement should, of course, be directed at “felons, not families; criminals, not children.”
And once the decision has been made to not pursue immigration enforcement against US residents who satisfy certain criteria, it is prudent to take the next step and normalize their legal status. America’s undocumented resident population is woven into the fabric of businesses and communities nationwide. The threat of immigration enforcement is a disruptive force, thwarting market efficiency, frustrating the work of ordinary law enforcement, and undermining families, among other ills. By creating a track by which undocumented aliens can obtain work permits, the president’s new policy ushers them out of the shadows, freeing them to work, go to school, find better jobs, and organize their lives to take best advantage of their individual talents and energies. This will only increase their contribution to American society, and enrich us all.
The president’s plan is, in some respects, quite modest. More than 60% of the America’s illegal immigrants have been in the country for more than 10 years. And yet Obama’s executive orders do not grant work permits or relief from the threat of deportation based on tenure within the US alone. To be covered under the revised policy, unless brought to the US as a child, an undocumented immigrant must be a parent of either a US citizen or a permanent resident. And so even after these executive orders, the status quo will hold for some 5 million people, who will remain in the US illegally, living in the shadows, without a track toward normalization.
Tailoring limited immigration enforcement resources to achieve the greatest good is about practicality. Amnesty for people brought into the US as children, for whom the US is their true home, is about justice. Work permits and freedom from the threat of deportation for the parents of US citizens and green-card holders, who have been living and working in our midst for years, is about decency. Elaborating, at long last, a plan that begins to resolve America’s ongoing immigration crisis – it’s about time.
Editor’s note: Chestnuts, yams and flightless fowl beware: the Liberal Field Guide is off for the rest of the week. We’ll be back with new material next week – better fed if not better rested.
The problem with US immigration law is that it was not written to deal with the reality of 12 million undocumented people living within the US. You might conceptualize it as 4% of the entire US population, or as one out of every twenty-five US residents, or as the equivalent of the population of Illinois.
In any case, it’s a whole lotta people, and American laws can neither normalize them, nor facilitate their removal. For the latter, one should be thankful. The SS was only able to round up 6 million people across Continental Europe. Whatever police power the US would require to remove double that number from within its own borders – it’s not a creature that Americans would want to create, much less live beside.
Not to worry though – present immigration enforcement personnel are no where near the size they’d need to be to even make a dent. Consider that New York City has 40,000 police officers serving 8 million people in a 300 square mile area. By comparison, the United States has 5,000 Immigration and Customs Enforcement agents to deal with 12 million undocumented aliens living among 300 million other people in a 3,800,000 square mile area. The US Border Patrol has another 21,000 officers, patrolling a 5,500 mile border with Canada and a 2,000 mile border with Mexico. Given that the Border Patrol operates up to 100 miles inland from borders, you have 21,000 officers for an area the size of Nebraska containing 200 million people.
The problem isnt simply in the math. In practice, no country subject to a bill of rights, with hard and fast limits on the power and intrusiveness of the police, could find, hold, try and deport 12 million people. This is why amnesty will be central to any future law that meaningfully deals with America’s immigration reality – not because amnesty is just or fair, but because nothing else is practical.
Which leads us to a matter worth mentioning, if only in passing: the drubbing of Eric Cantor. Many say he was simply outflanked on the right by the tea party in traditional fashion – that his pro-immigration-reform stance was interpreted as too pro-business. Paul Krugman theorized that the GOP bait ‘n switch has broken down: that candidates running on social issues – abortion, guns, the death penalty – will now be taken to task for pro-business policies elsewhere. A more parsimonious explanation is that Cantor is simply a lousy politician. He is, after all, absurdly conservative – a major player in the manufactured debt ceiling crisis, which was extremely popular among arch-conservatives – Cantor failed to communicate his role in it. Even his position on immigration is extreme – allowing a path to citizenship only for people who were brought to the US as minors.
The central teaching of Cantor’s defeat is really a very old lesson, but one worth retreading: GOP voters and politicians are utterly divorced from reality. The US Congress can no more change the color of the sky via legislation than they can resolve our immigration difficulties without relying heavily on amnesty.
Some have taken to calling Obama the “deporter-in-chief.” At the same time, John Boehner says that Obama cant be trusted to enforce immigration laws. While being attacked from both left and right is just a day in the life for a centrist politician, the numbers behind both accusations merit a look.
To start, we might reconsider our use of the term “deportation.” Homeland Security employs two more precise terms in its place: “return” and “removal.” A “return” is the confirmed departure of a “deportable” alien from the US. A “removal” is a return subject to a court order, often with sanctions attached, which are triggered if the individual attempts to reenter. Returns are the more benign of the two, allowing an alien to reenter without any special consequences. Removals however can subject an alien to prison and other penalties if they try to come back.
And so it might surprise liberals to learn that Obama can be fairly dubbed the “remover-in-chief,” since his administration has eschewed “returns” for harsher “removals.” This trend began under Clinton. Looking at statistics going back to 1892, removals never exceeded 40,000 per year, and were often less than 10,000. But under Clinton, they more than quadrupled, reaching 188,000 in his last full year in office (2000).
Returns have been much more variable since measurement began in 1927. Under 10,000 per year for most of WWII, they surged past 1 million in 1954, only to fall beneath 100,000 for the decade after. Starting in 1970, returns began a steady climb, again reaching 1 million in 1985, 1.5 million in 1996, and hitting an all-time high of 1.675 million in 2000. Clinton might fairly be called the “returner-in-chief.”
Bush Duh paradoxically oversaw a halving of returns, but a doubling of removals. By his last full year (2008), removals had risen to an all time high of 360,000 – while returns had fallen to a 30 year low of 811,000. Under Obama, this trend continues, with removals reaching nearly 420,000 in 2012; and returns falling to 230,000, their lowest level since 1968.
Looking at the big picture, removals have increased almost every year since 1984, and returns have declined almost every year since 2000. It’s worth noting that definitions of “return” and “removal” have changed over time, and have recently been a source of controversy – though no matter the interpretation, the overall trends remain.
To get an idea about how very different is Obama’s approach to immigration enforcement, consider that in 2011 and 2012 removals exceeded returns for the first time since 1941. And not all returns are equal. While the Obama administration has had far fewer than any recent administration, qualitatively, those returns tend to be much harsher. Obama has ramped up an especially nasty return program (ATEP), which transports Mexicans caught at the border to places thousands of miles from their entry point, to both impose an effective penalty, and to make reentry that much more difficult. This measure is controversial because people subject to it are vulnerable to crime and official corruption, both of which are rampant in poor border towns. Another program, MIRP, is similar in practice and effect. Alone and without resources, even if they manage to avoid drug traffickers, common criminals and corrupt cops, deportees face significant hardship in returning home. (N.b. Obama has started classifying ATEP returns as removals – also amid some controversy.)
The Obama administration’s record on immigration enforcement is mixed – liberal in some respects, harsh in others. More people are caught along the southern border than ever before, and those caught are now more severely treated. But if they succeed in getting inside the country, undocumented aliens are now much less likely to be returned or removed, and can live and work in relative security. Some of these policies are consistent with the US interest in tighter border security – though at 2000 miles in length, the southern border is not going to be secure any time soon. All tolled, a greater share of federal police resources are now expended toward immigration than any other objective, including drug enforcement.
One must appreciate Obama’s decisions in light of the fact that existing laws were not written to deal with the reality of 12 million undocumented aliens – roughly 4% of the US population. Obama is rightly questioned over his emphasis on removals, and his use of ATEP and MIRP; however his decision to back off on returns is reasonable, given that the administrative tools available to the executive are simply inadequate for the present situation. The country desperately needs a legislative solution – which doesnt seem likely to come in the near future.
the data since 1892: http://www.dhs.gov/sites/default/files/publications/ois_yb_2012.pdf
most comprehensive report: http://cis.org/ICE-Illegal-Immigrant-Deportations
other fun stuff:
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.
A limited form of sanity is spreading across Congress, in the sense that many have grasped that 12 million people is, like, a whole crazy lot of people – but it seems they’re some ways away from understanding just how long 2000 miles is.
The “no amnesty” freaks can only pretend there’s another solution. As if any liberal democracy – subject to a modicum of civil rights, the rule of law and due process – has the ability to find, arrest, hold and deport 3 or 4% of its population. As if anyone in their right mind would want to live in a society alongside a police power that could -. To convey the wacky giant-sizedness of 12 million, some hold up states of similar size – Illinois or Pa., eg. I’d go one further – imagine if, by some rt-wing nutfarm fantasy, every illegal was already rounded up in a Pa.-size ghetto – that all we had to do was ship ’em out. I’d suggest that even that (gross) undertaking is beyond the means of any modern state.
Consider also that Obama’s doubled Bush’s deportation efforts (to the non-dissuasion of latin voters) – 400k/yr over 200k – mind boggling as that is to me (1000+ deportations/day – wow) the job wd take a cool quarter-century or so – assuming no more get in.
Which brings us to the next item to be grasped by the slow-to-grasp: the length of the southern border. While I have great respect for drones and satellites, you still need a police force that can deploy in an instant across (cough) 2000 miles. The Israaelis have had great fun (and less success) trying to close a border 1/20th that size, and they get to do awesome IDF stuff, like using deadly force.
So amnesty it must be, according to any serious, rational analysis. So who the f knows what Congress will do….