Trump and Enforcement of the Immigration Laws
Given how central concerns over illegal immigration were to Donald Trump’s campaign, it was inevitable that his triumph would spark a strident debate. The rival sides, however, are like ships passing in the night.
Trump emissaries assert that the president-elect will step up border enforcement and prioritize the deportation of criminal aliens – i.e., those who’ve committed serious and/or repetitious state and federal crimes, not just immigration-law violations. Trump detractors, including Democratic mayors of major cities, respond with indignant vows to protect “undocumented” members of their communities who are living peaceful, essentially law-abiding lives.
If you’re thinking the Democratic response is not, well, responsive, you’re onto the game. The immigrants they make a grand show of protecting are exactly the people not being targeted by the Trump camp’s deportation plans. If Democrats oppose Trump on his own terms, they risk being revealed as champions of criminals preying on Americans. So the Left is going demagogue – turning a “right versus wrong” issue into “us versus them.”
To be fair, they have not been alone in this. Throughout the campaign, especially during the GOP primaries, Trump beat his chest about mass deportations and the sea-to-sea wall for which Mexico would supposedly pay. As we’ve observed, much of this was absurd, as was Trump’s suggestion of a touchback amnesty approach: The government would expend untold billions to send millions of illegal aliens back home … only to invite most of them back in with legal status.
As the campaign unfolded and victory seemed increasingly plausible, Trump’s rhetoric grew tamer. As president-elect, it appears he has ended up in a more realistic place.
There is a reason the competing rhetoric – mass deportations versus sanctuary cities – has been so extreme. It’s been so long since our government has enforced the immigration laws, we have forgotten what rational enforcement looks like. In the interim, after two decades of prosecuting terrorism in the federal courts, we’ve lost the distinction between law-enforcement issues and national-security challenges.
Immigration is a law-enforcement issue. Yes, it has some national-security implications, just as other crimes that contribute to terrorist plots do. In the main, though, it is an ordinary crime problem. Our goal is never to extirpate crime problems – not in the way that government agents must prevent and exhibit zero tolerance for terrorism, a national security challenge. Crime problems are managed, not eradicated.
It is not possible to prosecute every immigration offense, just as we have no expectation that the police will arrest every drug dealer or petty thief. No one would want to live in the kind of authoritarian state we would become if we took such an approach to crime. Plus, we do not have the resources it would take even if we were open to it.
Like any other crime problem, illegal immigration should be addressed in a manner commensurate with its seriousness. The objective should be to prosecute and/or deport as many of the worst offenders as possible, given the available resources – meaning the amount of investigators, prosecutor-time, court-time, detention space, and deportation administration it is reasonable to devote to immigration enforcement in light of other crime problems that also demand attention. The goal is a degree of enforcement sufficient to remove significant offenders and discourage potential offenders.
Notice what I didn’t say: amnesty. There is a crucial distinction between prosecutorial discretion (a necessary resource-allocation doctrine that should be non-controversial) and the de facto pardon of illegal immigrants whose prosecution and/or removal are not prioritized. The Obama administration perverted prosecutorial discretion, not just by refusing to execute the laws faithfully but by treating his non-prosecution as affirmative forgiveness of the aliens’ law violations. It is critical that, under the attorney general-to-be, Senator Jeff Sessions, we get back to traditional prosecutorial discretion, meaning: The Justice Department reserves the right to prosecute all offenses of federal law and to deport any alien who is deportable.
If an illegal alien evades enforcement action because his law-breaking is comparatively minor, he should see it as his lucky day, not as immunity. Most Americans have had it up-to-here with the rote “living in the shadows” twaddle they hear from apologists for illegal aliens. If you don’t want to live in the shadows, don’t enter or remain in a foreign country in violation of its laws – go home. If you choose to remain, your outlaw plight is of your own making. We are under no obligation to rethink your status. We are not looking for a mass round-up of illegal aliens, but don’t mistake compassion and common sense for an entitlement.
Illegal immigration is a crime driven by the potential for employment and social welfare benefits. Consequently, some percentage of the finite resources available for immigration enforcement must be directed at the investigation and prosecution of businesses that unlawfully employ illegal aliens. There must also be heightened scrutiny of immigrant qualifications for benefits, to signal to present and would-be illegal aliens that their prospects are apt to be better in their home countries.
The term “self-deportation” provoked no small amount of derision during Mitt Romney’s 2012 presidential campaign. It is the right idea, nonetheless. Immigration enforcement should do what all good law-enforcement does: encourage current offenders to halt the lawless behavior on their own, and potential offenders not to start it in the first place – with the minimal expenditure of public resources necessary to make that incentive system real.
It is important to remove alien criminals from our country, not just those who are here illegally to begin with, but also those whose crimes violate the terms of their entry and make them deportable. It is not, however, a law-enforcement priority to pursue illegal aliens who might well decide to leave on their own once an enforcement regimen creating that incentive is in place.
The left deflects every question about criminal immigrants with its other rote claim: “The system is broken.” Of course, what is broken about the system is precisely the failure to enforce the laws currently on the books. Illegal aliens who violate our penal laws do so because they are criminals, not because the “broken system” has somehow led them to criminality. We have enough citizen-criminals; we don’t need foreigners whose felonies are their most notable contribution to our society. Trump has said these criminal aliens have to go, and he’s right about that.
A final word about “sanctuary cities.” I am not as opposed to them as many conservatives – at least not in principle. As I have argued many times (see, e.g. here and here), the states are sovereign and immigration enforcement was meant to be a state responsibility. The federal enforcement role has been manufactured by the courts – and, as night follows day, once a federal role was contrived, it soon metastasized into federal supremacy.
If I had my druthers, we’d go back to a system in which the federal government was responsible for setting the terms of citizenship and securing the borders, while the states decided how welcoming to be to non-citizens. But with this caveat: the states pay their own way.
If the people of Chicago and San Francisco want their cities to harbor illegal aliens, that would be fine with me as long as the attendant welfare and security costs were born solely by those cities and their state governments. (By contrast, I applaud Governor Greg Abbott of Texas, who has announced a plan to ban sanctuary cities by cutting off funding for cities that refuse to enforce the law.) But states that permit sanctuary cities cannot not expect the rest of us pay for their largesse and defiance. If they refuse to enforce the laws, they must be cut off from federal funding. Otherwise, they make all of us accomplices in both lawlessness that we reject and policies that exacerbate the problem of illegal immigration.
That is a problem the nation wants reduced, even if no reasonable person expects it to be eradicated.