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Ordered Liberty

by Andrew C. McCarthy

Senator Rubio’s Immigration Enforcement Fantasy

January 29th, 2013 - 1:26 pm

The silly season is upon us again, which is to say: Washington finds itself in yet another debate over “comprehensive immigration reform.”

The core silliness could be heard in the arguments of Marco Rubio, one of four Republicans in the Senate “Gang of Eight” urging a deal that purports to ensure real immigration enforcement in exchange for legalization of status and an ultimate “path to citizenship” for millions of illegal immigrants. Earlier this afternoon, Sen. Rubio was interviewed by Rush Limbaugh.

Sen. Rubio admirably insisted, “We need border security. We need workplace enforcement. We need a visa tracking system.” But, as Rush pointed out, President Obama is outlining his own vision of immigration reform in Las Vegas today, and it promises to diverge in a fundamental way from the Gang of Eight proposal: The president has no interest in immigration enforcement. He wants only the legalization goodies for current illegals and the incentives they’ll inevitably create for more illegal immigration. He is not interested in the protections for the American people that Sen. Rubio touts.

Sen. Rubio confidently responded that if the president makes such a pitch, he will have a huge problem with his own party — in particular, with Sen. Chuck Schumer and the other Gang of Eight Democrats who’ve supposedly committed their party to meaningful enforcement measures. This contention is absurd. It suggests that Sen. Rubio either does not understand how the federal government works (highly unlikely for a man of Rubio’s obvious intelligence), or is making a monumental miscalculation — elevating over the certain-to-be-damaging consequences of his proposal the futile hope that Republicans will win lasting accolades from the pro-illegal immigration Obamedia.

The executive branch is in charge of law enforcement, period. Congress cannot enforce the law and cannot compel the president to do so. And we already know there will be no meaningful immigration enforcement as long as President Obama is running the executive branch. As usual in Washington’s progressive crusades, we are expected to forget all relevant history — in this instance, not only the sorry history of the 1986 amnesty (in which Washington predictably provided all the legalization goodies but reneged on the enforcement promises) but also the Obama administration’s more recent, more virulent anti-enforcement record.

Can Sen. Rubio have missed the Obama Justice Department’s lawsuit against the citizens of Arizona? The state enacted a law that simply reaffirmed the Congress’s own immigration statutes and enabled state police to enforce those federal standards. The Obama administration not only sued the state for enforcing federal law, it did so by positing a radical new understanding of the “pre-emption” doctrine. Formerly, that doctrine stood for the proposition that the states could not enact laws that contradicted properly enacted federal statutes. Under Obama’s interpretation, the states were precluded from enacting laws that contradicted U.S. executive branch enforcement policy even if they were completely consistent U.S. congressional law.

Thus, according to Obama, if the president’s policy is to refrain from enforcing Congress’s statutes, sovereign states may not enforce them either, even if such non-feasance renders the states defenseless against the tide of illegal immigration overrunning their borders and budgets. It matters not, in this radical view, that self-defense is a basic aspect of sovereignty or that, if the Obama preemption theory had been evident in the Constitution, there would be no United States because the states would never have ratified it.

That is how committed Pres. Obama is to non-enforcement. Consequently, it is the height of foolishness for Sen. Rubio to talk about fissures between the administration and Congressional Democrats on enforcement measures. Chuck Schumer has nothing to do with enforcing the immigration laws. Even if he and his colleagues were serious about enforcement — and, as Mark Krikorian and Mickey Kaus explain, the enforcement promises in the Gang of Eight proposal are patently fraudulent — their earnestness would be irrelevant. Obama has not only posited but argued in the Supreme Court that federal statutes are trivial; the only thing that matters is raw executive power: his unfettered discretion in choosing to enforce or not enforce the law.

That being the case, what is the point of the Gang of Eight exercise? The Republicans pushing the deal tout its illusory enforcement measures, but even if these were real lawmakers are not in a position to compel the president to execute them. And think about it: it is precisely because the law is not being enforced in the first place that the senators perceive the need to promise law enforcement as a premise for the windfall illegal aliens would get from the Gang of Eight proposal. If the laws already on the books are not being enforced, why on earth would anyone think a new law would make a bit of difference — particularly when it would be equally impotent in the matter of forcing Obama’s hand?

In the end, that really is the point. It makes no sense to write a legislative proposal that confers unwarranted benefits on the condition of stepped up law enforcement. If the Republican senators are serious, they should just call for enforcement of already enacted laws. They should tell Democrats, “Show us over the next few years that enforcement is effective and that the government’s commitment to it is permanent; then we can talk about legislation to legalize the presence of the remaining illegal immigrant population.” The way you prioritize enforcement is … to prioritize enforcement, not to talk about enforcement you can’t deliver in a wayward deal that concretely rewards lawlessness. And in the meantime, if it would help our economy to allow more immigration of workers to fill needs that aren’t being met, by all means increase the availability of visas for those categories of workers — as dramatically as necessary. This will illustrate that Republicans are not anti-immigrant — the “false argument” that animates Sen. Rubio, as he told Rush. It is a slander that sticks because of the GOP’s inadequate response to the Left’s demagoguery, not because of bad policies.

I take Sen. Rubio at his word that he wants immigration laws enforced and thinks enforcement is the foundation of a humane immigration policy (even though I vigorously disagree with his contention that the Gang of Eight proposal makes real enforcement a condition of valuable benefits). But it is impossible to take seriously any proposal that entrusts enforcement to President Obama. If you’re serious about enforcement, you can take no other position than that any consideration of making legal-status concessions to illegal immigrants must await a new president who can be trusted to honor his oath to take care that the laws be faithfully executed.

Finally, I note that nothing I’ve argued here alters my previously stated position that immigration enforcement should primarily be a state responsibility. I do not understand how Republicans can purport to be “Constitutional conservatives” and skip past the inconvenient fact that the Constitution empowers Congress only to set the qualifications of citizenship, not to police immigration. The framers intended immigration enforcement to be among the plethora of internal matters be handled by the states — with the federal government obliged to assist states in the event they were threatened with being overrun by trespassers.

I believe that returning  immigration enforcement to the states would result in the most sensible and humane immigration policy. States that wished to be sanctuaries for non-citizens would be able to do that, provided they were willing to pay for the attendant largesse themselves. States that preferred vigorous enforcement could follow that policy. States would set their enforcement and social-welfare policies in accordance with their economic conditions. Aliens would gravitate to hospitable areas and avoid places where they were not welcome. There would be no centralized, one-size-fits-all policy but different standards based on local conditions fashioned by the citizens who were most effected — and easily changed if conditions changed.

Unfortunately, Washington and the federal courts decided, a century-plus into our constitutional history, that we had somehow evolved beyond that framework. The states and most conservatives have gone along for the ride. Thus we continue the folly of favoring a single, universal policy that is based on the hope for law-enforcement by a president who is both committed to non-enforcement and apathetic when it comes to the very different hardships that beset different states.

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