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The State Of The Current Law (A Bloody Mess)

by Anthony Guidice

Overview - Barak Obama Plays Basketball While Rome Burns

Immigration lawyers - private and government - pull their hair out because the laws they have to work with are glaringly inadequate. Barak Obama promised comprehensive immigration reform, but then got into office and instead hammered a questionable and expensive health care bill into law. This formidable error delivered enough Republican representatives and senators into office in the mid- terms election to anger enough Americans into an almost anti-immigrant fervor. Obama could've been a hero, but now he's seen as a fool and a liar, especially by pro-immigrant groups. The Obama Pandora's Box now unleashes a black cloud of renegade activity: states unconstitutionally taking immigration matters into their own hands, along with alarming Civil War era talk of revamping the 14th Amendment. So presently the Republicans can blame Obama, Democrats can blame the Republicans, the populace - legal and otherwise - can blame all of them; the systems buckles under the strain, and we are still without a set of workable immigration laws.

To Begin, it's Bad

I remember my first Immigration Class in law school. It seems like a long time ago. The initial words spoken by David Koelsch, my professor and future boss, were these: "The first thing to realize about the US immigration system is that it's terribly broken and in dire need of a complete overhaul." That was my introduction to immigration law. And the situation is much worse today than it was then.

Splintered and Outdated Laws

The system is terribly overburdened. As with the prohibition laws of the 1920's, many violators ignore the complicated and unworkable laws because it seems to be easier to break the laws than follow them. The current system, designed for an early 1990's US alien community, now buckles under a sprawling undocumented alien population. This compounds the difficulties for legal aliens because so many resources are spent on the undocumented population, that extensions and petition approval for legal aliens takes longer and longer.

Official government estimates put the US illegal immigrant population at eleven million. Even though one-third that many would overtax the system, many respected immigration professionals will swear the number is easily twice that. The current laws can do nothing beyond putting a band aid on a massive hemorrhage. They aren't working.

Barak Obama - A Bad Gamble Gone Very Bad

Barak Obama opportunistically used the immigration crisis to help get himself elected in 2008: he promised the Hispanic community, among others, that comprehensive immigration reform would be a top priority. There were people, immigration experts and politicians among them, who thought Obama could actually do it. They believed an Obama presidency might be able to unite two important groups who were (are) critically opposed to each other on the immigration question: the Congressional Black Caucus and the Democratic Party.

It never happened. Obama ignored the immigration issue to stridently press into law a controversial (many say unwanted) health care bill, a bill vigorously opposed by most Americans. The result was a sweeping Republican victory in the 2010 election. So Obama's very sizeable health care gamble yielded him 1) a vast Republican majority in the House and near-majority in the Senate; 2) an immigrant and indigenous US population angered over inattention to the immigration question; 3) comprehensive immigration reform pushed to the back burner while national attention turns to the deficit and government-spending problems; and 4) in the void created by ignoring immigration reform, states are assuming federal power by passing their own immigration laws (among other extremist events).

A Paradox

The ironic thing is, if Obama had initially championed the immigration question, he'd now be seen as a hero. Here's why:

  • Even immigrant-hostile conservatives would've seen him as at least attempting to address the problem;
  • Any difficulties in trying to bring together the CBC and the Democrats would likely have been smoothed over with "unity" and change" rhetoric (odds are, there would've been no difficulties because Obama's stature was considerable);
  • Business groups, many dependant on immigrant labor, would've seen Obama as pro-business and may have then even supported some of his less business-friendly ideas;
  • Any Republican objections to comprehensive reform would be seen as i) heartless by the left, ii) anti-business by the pro-immigrant right, and iii) obstructionist and "playing politics" by ordinary citizens and taxpayers who want some sort of rational policy in place.
Instead, Obama now has an immigrant-hostile Republican majority, a health care bill threatened with repeal or at the very least a lack of funding, a Hispanic population that trust neither him nor the Democrats, and a constitutional battle with the states on his hands. And while all this happens, the immigration problem grows worse and worse. Any hope of a reasonable reform measure now seems more distant than ever. And mainstream Americans, already upset because of the economic hard times, grow angrier. Obama's smug and imperious gamble was shockingly wrong; a colossal mistake.

Political Mexican Stand Off (among other nationalities)

The current political stalemate over immigration reform has now degenerated into Democrat and Republican partisan arm twisting rather than any sincere cooperation aimed at benefiting the country.

Republicans say they won't move an inch on comprehensive immigration reform until "the borders are secure." Well, the borders will never be secure. The latest attempt at this, the high-technology wall, was stopped because it wasn't working. It took spending a billion dollars to realize it. That is no surprise. Desperate, impoverished, and determined people have overcome worse than an ill-conceived electronic wall to get to the US. Oceans, desserts, and mountain ranges have always been overcome, and anything man-made will also be overcome.

Quite a few Americans will support this "until the borders are secure" stalling because they're being fed misinformation about immigrants taking American jobs. That's not really true because 1) illegal immigrants are doing jobs most Americans don't want, like day labor, landscaping, janitorial, and restaurant work; and 2) legal immigrants make up less than one per cent of the US workforce. And Americans more willingly buy into this misinformation when it's presented as a skillful jibe: taunting and provoking a discontented public suffering through a deep recession and a high unemployment rate.

Having grasped at enough rope, the Democrats may now hang themselves. The party is currently paralyzed because of the previous Congress's insistence on more government control and deficit spending. Now, Democrats are not only far from a majority to pass new immigration laws; they may be quite a long way from even getting anyone to listen to them - including immigration groups. So they'll keep blaming the Republicans for stalling. (Both parties have acted shamefully here; Obama health-care gamble just makes the Democrats presently appear a bit more culpable).

So we have the legislative equivalent of a high school cafeteria food fight: each side hurls half-truths and inaccuracies at the other, while nothing happens. And the country groans under a fractured and ineffective immigration policy.

The Extreme Fringe Gathers Legitimacy

As the Republicans bully the Democrats, and the Democrats lick their wounds, problems created by the broken immigration system have generated some extreme responses. (This is not new - it's happened during and after the US pre-civil war period, during the Weimar republic in 1920's Germany, and in Russia after the Soviet period ended, among other times. Though common, it's still alarming. Highly regrettable consequences resulted in the past, and may again).

State Action - Deo Vindice!

Disgusted with Washington's paralysis, states themselves have begun to take action on immigration. Led by Arizona's infamous senate bill 1070, defiant states illegally legislate and enforce their own immigration laws. This isn't good. Immigration law and policy has always been the purview of the federal government - and with good reason, because some laws must be national in scope. Just as we cannot allow individual states to make trade treaties with other countries, or raise individual armies to attack Mexico or Central America ("… the state of Arizona attacked Honduras this morning…"), we cannot have states enacting immigration laws and making policy.

Even though some states border Mexico, and some border Canada, and the fact that some states have higher immigrant populations than others, the question of immigration affects the country as a whole. Individual state immigration policy is unworkable. It would create a patchwork quilt of differing, non-uniform methods of treatment, enforcement and punishment. It's also dangerous because it calls into question our US system of laws, the hierarchy in the dual sovereignty system, and our allegiance to the US Constitution. The US Constitution which is the highest law in the land - the legal basis for the country's existence. Sometimes I honestly question if legislators understand i) what the laws are, or ii) what the US Constitution is (legislators besides John McCain that is… I know he doesn't understand either one)…

Dred Scott Revisited - Dreadful

Perhaps the most excessive reaction to the current immigration problem is a movement to deny citizenship to children born in the US of illegal alien parents. This would require a 14th Amendment modification, specifically to the citizenship clause, which reads "… persons born […] in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside." Two points bear mentioning here: 1) the drafters specifically intended "citizens" to mean citizens of the United States first and foremost, and secondarily of the state where they reside and; 2) the phrase "… subject to the jurisdiction…" differentiates children of foreign diplomats, who are excluded from United States jurisdiction - not children of slaves (or illegal aliens).

This notion is as silly as it is frightening:

  • The most obvious flaw is that stripping people of citizenship would create hundreds of thousands more, probably millions more, illegal aliens in the United States - still without a proper legal system to process or document them! What else can we do, remove them? That's impossible. We haven't the resources to remove even a fraction of the illegal aliens that are in the country now. (Am I missing something here? - a one pound paper bag that can't hold two pounds of baloney won't hold three pounds… will it?)
  • This "anchor baby" concept is misguided. Illegal alien parents of US citizen children don't have an easy path to legal residence or citizenship just because their child is a citizen. The child must be 21 years of age to petition his parents, plus the parents will be likely be barred for 10 years if they leave the country to be petitioned.
  • Other legal premises for the parents, such as waivers or cancellation of removal, have a hardship element which has a very high burden of proof. I'd call it restrictive.
  • This repellant theory of denying citizenship has never been US law except for a very dark period in our history. That time period was from the infamous Supreme Court Dred Scott decision to the ratification of the 14th Amendment. An ugly example of human nature's more sinister side, Dred Scott stood for the concept that black slaves were merely their master's property, and that they had no citizenship rights. Besides the fact that the Dred Scott decision eventually plunged the country into an abominable and grisly civil war, does any American really wish to revisit, remember, or even hint at, that shadowy piece of our history?
Wouldn't it be easier to simply draft comprehensive immigration reform than to have this sort of chaos, where states are making their own rules independent of the national government; and where people are honestly considering ratifying a constitutional amendment to restrict civil liberties? Isn't the national legislature aware that they shouldn't let the situation continue to deteriorate? This is why most Americans have contempt for the job Congress is doing. In the immigration context, they're not doing anything; they're ignoring the problem.

Conclusion - A Self-Righteous Quicksand

Trying to use the current laws to address the current immigration problem is like banging a tent peg into a pinhole. It isn't working. Obama's health care gamble went terribly wrong and now, where there could have been needed legislation, the country has a sour view of the immigrant problem and lawmakers who can blame each other and do nothing while extremists foul the constitution. One thing I didn't mention is that immigrant's future lives and careers, the welfare of their families, the country's viability for all Americans, and a good chunk of the economy teeter precariously on the edge of this vindictive inaction. We are all likely stuck here for some time.

About The Author

Anthony Guidice is an immigration attorney practicing in Morristown, NJ.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.