Ordered Liberty

On 'Self-Deportation' -- The WSJ v. Romney

I’ve elsewhere addressed other shortcomings in this morning’s Wall Street Journal editorial urging Republicans to reassess what is portrayed, in the wake of strong Hispanic electoral support for President Obama, as their hostility to immigration. Here, I’d like to focus on the editors’ swipe at Mitt Romney’s endorsement of “self-deportation”:

… Mr. Romney … often pandered to his party’s nativist wing (especially after Texas Governor Rick Perry entered the primaries), even endorsing what he called “self-deportation.” That may have endeared him to one or two radio talk show hosts, but it proved a disaster on Tuesday.

This is an unworthy rebuke, as is the Journal‘s tired demagoguery that portrays any law-and-order argument on illegal immigration as both “nativist” and a call for “mass deportation” (see, e.g., today: “But the right response isn’t mass deportation—as politically infeasible as it is morally repulsive”). Nobody on the right is calling for mass deportation, any more than we are calling for a mass round-up of, say, cocaine users. Illegal immigration is not terrorism. Yes, it is against the law. But when a problem is merely illegal, as opposed to a threat to national security, the task of law-enforcement is to manage it in a manner commensurate with its relative seriousness, not attempt to extinguish it. To extinguish it would amount to punishment that does not fit the crime and a prohibitive expenditure of resources better allocated elsewhere.

That is why a well-ordered, just society is based on prosecutorial and sentencing discretion. We don’t require every crime to be prosecuted and every sentence to be harsh and definite. We try to put people of sound judgment in prosecutors’ offices and on the bench. We then trust them to make good decisions about whom to prosecute (going after cocaine importers and distributors instead of addicts, for example) and how to punish them within a broad range (selling a small amount of marijuana may merit a probation sentence even though the statute makes it punishable by up to 20 years’ imprisonment).

“Self-deportation,” so derided by the Journal, is exactly this sort of prudent, humane law-enforcement. The idea is to resist harassing those illegal immigrants who are not serious criminals with arrest, prosecution, imprisonment and deportation. Since enforcement resources are finite, you deport only the serious criminals (i.e., the illegal immigrants who violate laws besides the immigration laws) and you target enforcement resources at the businesses that knowingly hire illegal immigrants, since employment is the magnet for illegal immigration. This is to be pro-law and order, not anti-business or anti-immigrant: If businesses need the ability to hire foreign workers, you enact immigration laws that satisfy those needs. The idea is to promote legal immigration to the extent it helps our society. If employment prospects for illegal aliens are slim because employers are severely discouraged from illegal hiring, many illegal immigrants will self-deport — i.e., they will decide on their own that it is in their interest to go back home.

I find illegal immigration to be a vexing problem. Like most problems, it has been exacerbated by federalization. As I’ve previously argued (see, e.g., here), the framers left law-enforcement (including the expulsion of trespassers) to the states; the central government’s role was to set the qualifications for citizenship and protect the states from foreign invasion. If we went back to that, states could make their own immigration enforcement policies. Some would be hostile to non-citizens, some would be embracing, most would be in-between, and it would be much easier to adjust policies based on local employment and social conditions. This would be infinitely better than what we have now — for the states, the immigrants, and our public discourse.

But since both the Left and the Right seem determined to continue under a one-size-fits-all federal regime, self-deportation is the best of the available array of unsavory choices. It is the only realistic policy that stands a chance of gradually and humanely reducing the population of illegal immigrants to a manageable amount, for which we could then reasonably discuss some form of legalization — under circumstances where you would not be opening the floodgates and undermining the rule of law, because the government would have established its seriousness about discouraging illegality and securing the borders.

I understand the Journal‘s contrary view. I think the editors are wrong to promote legalization — I’ll avoid the counterproductive word “amnesty” — prematurely. First, the illegal-immigrant population must be materially reduced and a climate promoting assimilation and lawfulness must be established, and that will take some time. Yet I fully sympathize with the editors’ goal of embracing and welcoming hard-working, self-reliant, and often gifted people into our society. I also have no doubt that this is precisely the goal Mitt Romney and other supporters of “self-deportation” are trying to achieve, in a way that, while being sensitive, is responsible. I get why the Journal editors disagree, but I don’t understand why they always have to be so disagreeable in doing so. They’re too smart not to know that we’re not all nativists and that we don’t want mass-deportation.

(Thumbnail on PJM homepage based on a modified Shutterstock.com image.)