Category Archives: immigration

“Impose Boundaries on Immigration Law”

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That’s the title of Deputy Attorney General Rod Rosenstein’s op-ed in last Thursday’s Wall Street Journal.  In it, he decried the lack of uniformity of our immigration laws and associated judicial rulings on those laws.

…US immigration law is far from uniform. Inconsistent rulings by the 12 federal appellate courts have created a hodgepodge of jurisprudence, in which the applicable legal precedents depend on the location of the immigration court that heard a case.

He proposed a solution.

Congress can and should restore uniformity and promote efficiency by consolidating all immigration appeals in a specialized court of immigration appeals.

Whatever the merits of Rosenstein’s proposal, though, before any immigration law—any law—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  Before any specialist court—any court—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  This is particularly critical given the judge-centric nature of his proposal.

Judges cannot be allowed to place their personal views of societal need or “fairness” above what the law they’re applying actually says.  Judges cannot be allowed to violate their oaths of office with their imposition of personal views in place of imposing the text of the law(s) before them in cases, including immigration cases.

Failure requires consequences, else judicial failure will continue, to the increasing detriment of our republic.  Those consequences must include, in the most egregious instances or when particular judges demonstrate an especial predilection for activism, removal from the bench.

Mexico Says It’s Not a Safe Country?

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President Donald Trump has said that the US and Mexico have reached an agreement—at least in principle (although Trump is his usual more definitive self)—that those seeking asylum in the US will remain in Mexico until their asylum cases have been heard and acted on by the US.  The Washington Post has claimed to quote incoming Interior Minister Olga Sanchez Cordero as saying so, too.

However, Sanchez Cordero says that she said no such thing to WaPo.  In fact, she says that no such deal, no Remain in Mexico program—”of any sort”—exists.  Given that newspaper’s record of honest reporting, I believe Sanchez Cordero.

What interests me about her statement, though, is this:

The future government does not consider […] that Mexico assumes the status of “safe third country” for Central American migrants, or from other countries, who are on Mexican territory or for those who will reach it in the future[.]

There are a few interpretations for this statement.  One is that Mexico doesn’t consider itself to be a “safe” country of any sort—a recognition that would be consistent with the corruption rampant in the Mexican police at all jurisdictional levels and with the broad power held by the several drug cartels that operate freely throughout Mexico.

Another is simply that Mexico doesn’t want the legal liability that would accrue from accepting that status.

A third is that rejecting the status is not the same as declining to make an exception for the current “caravan” of persons claiming to seek asylum in the US after having explicitly rejected Mexico’s offer of asylum.

It’ll be interesting to see how this plays out.

Asylum

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Folks from the “caravan” have begun arriving in the Mexican border town of Tijuana preparatory to their effort to enter the US and ask for asylum.

These folks, claiming to flee government persecution and/or criminal assaults (which isn’t an asylum criterion, anyway), in their home countries, succeeded in escaping those things when they succeeded in entering Mexico—especially with Mexico having offered them asylum (and job opportunities) after that entry.

Now they need to say what they fear about their Mexican hosts that drives their need to flee Mexico and get asylum in the US. Since they haven’t experienced any of that in Mexico, and they have rejected Mexican asylum from their home countries, they should be denied entry into the US and those that do make it in need to be denied asylum here—their requests can only be shams.

A False Dichotomy

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In an address near the Arc de Triomphe in Paris to mark the end of WWI, French President Emmanuel Macron made a pitch for globalism.  In the course of that, Macron let slip his true feelings.

Patriotism is the exact opposite of nationalism. Nationalism is a betrayal of it.  By saying our interests first—who cares about the others—we erase what a nation holds dearest, what gives it life, what makes it great and what is essential: its moral values.

This is a typically false dichotomy offered by a man of the Left. The situation also could be, as a man of the US has said repeatedly, “Our interests first, but not at all alone.”

Moreover, patriotism is the love of nation and the desire to preserve that which unifies the people of a geographic area into a nation—including especially that people’s moral values.  The best way to preserve those values is to protect a nation’s borders, to get immigrants—freely allowed in, so long as their entry is legal—to assimilate, to embrace the values of the nation they’re joining, rather than hold themselves apart.

There’s nothing in there that says “who cares about the others.”  There’s nothing in there that says one nation of patriotic people who believe in their own nation won’t work with or help the peoples of other nations.

Macron knows all this.

The Debate Over Birthright Citizenship

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President Donald Trump is thinking about signing an Executive Order that would end the birthright citizenship that many say is encoded in the 14th Amendment of our Constitution.  Whether Trump has the authority for such an EO is an open debate, but the more important debate is another one such a move has triggered: whether we should have birthright citizenship, in particular for the children of illegal aliens.

Nor is this question as cut and dried as many would like it to be.  Josh Blackman, South Texas College of Law Houston, has argued

More than 150 years after the amendment’s ratification, this “gloss” on the Constitution cannot be trumped by disputed definitions of “jurisdiction…,”

This, though, is a very Brandeis-ian view of justice—that it’s better that the law be settled than that it be settled right. Of course, this is…suboptimal…since all it does is perpetuate the injustice and spread it far and wide.  Blackman further argued that

…with outlier statements (sometimes misconstrued) during the ratification debates.

There are a couple of things about this bit. One is the arrogance of one man deciding what (inconvenient) arguments are irrelevant because they’re “outliers.” The other, larger thing is the general irrelevance of the ratification debates themselves, including putative outliers. The text of what was ratified already includes the thrust of those debates—for, against, and outlier—and so all that matters here is the text of the Constitution, and not those now OBE pre-ratification debates.

Even the Supreme Court’s primary ruling on one birthright citizenship question isn’t dispositive here.  As Matthew Spalding, Hillsdale College Associate Vice President and Educational Programs Dean, pointed out, the Supreme Court in its 1898, but now-often cited, US v Wong Kim Ark ruling conferred automatic citizenship to babies born to legally resident aliens, not to those born to illegal aliens.

[The Court] held only that the children of legal permanent residents were automatically citizens. The high court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of aliens in the country illegally.

In the end, the nature of birthright citizenship, the legitimacy of citizenship based on the location of a birth, hinges on the nature of jurisdiction in the 14th Amendment’s phrase subject to the jurisdiction thereof.

Americans’ ability to speak in public hinges on the 1st Amendment’s Congress shall make no law…abridging the freedom of speech phrasing and on the nature of abridging.  Americans’ ability to go armed in public hinges on the 2nd Amendment’s right of the people to keep and bear Arms[] shall not be infringed phrasing, the nature of bearing, and the relationship of this clause with a capable militia.

Yet, we carefully regulate both speech and keeping and bearing arms.  So it is that we can—and must—regulate the application of jurisdiction to the geographic and political surroundings of being born.

One additional thought on the nature of jurisdiction, beyond its regulability. Jurisdiction is a two-way street. Our polity can impose its jurisdiction on those physically within our borders. But those who enter our nation illegally are withholding themselves from our jurisdiction–by breaking our entry laws, illegal aliens actively refuse to submit to our polity’s jurisdiction. They do not, therefore, satisfy the 14th Amendment’s subject to the jurisdiction thereof requirement. And so the children of illegal aliens, born here, cannot satisfy the requirement on two grounds: from their illegal presence and by the fact that they cannot submit themselves; they are bound by their parents’ decision.

In the end, whatever the phrasing of Trump’s Executive Order turns out to be, whether it survives the inevitable legal challenges, whatever occurs in Congress, the proposal of an EO intended to address directly and explicitly birthright citizenship has triggered the necessary debate about that and about its applicability to children born of illegal aliens.