Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:

A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 

It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.

 * * *

We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:

The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.

In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 

* * * 

The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.

* * * 

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.

I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.


Next: The Chinese Exclusion Acts (link will be provided upon publication)


Sources:

Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Immigration History: A National Policy

Previous: Immigration and the Nomination of Abraham Lincoln

Up to this point, we have been able to move quite rapidly through American history, in large part because there was no national policy. All that changed in 1875, when Congress made it illegal for criminals or prostitutes to enter the country. This marks the first true restriction on immigration adopted by the Federal Government, but it was shortly followed by more. In 1882 a fifty cent tax was imposed in all immigrants and Congress prohibited entry by any "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Also in 1882, Congress pass the first of a series of Chinese Exclusion Acts, which eventually resulted in a virtual total bar on Chinese immigration. A Bureau of Immigration was established within the Department of Treasury in 1894 (previously the Commission of Immigration had operated under the Department of State per the 1864 Act to encourage Immigration). Anarchists were prohibited in 1903 (32 Stat. 1213) and the Bureau of Immigration was moved to the Department of Labor that same year. Illiterates were barred in 1917 (over President Wilson's veto).

In 1921 quotas were adopted, which was the first time an across the board numerical limit was adopted. This act attempted to preserve the then-current racial balance in the nation by limiting immigration from any country to 3% of that country's population in the United States as recorded in the 1910 Census.

Since these were an emergency measure, they were quickly replaced by the 1924 Immigration Act, which marks the first comprehensive application-based immigration system. Since it is so foundational we'll return to it in detail at a later date. In the meantime, there is still that nagging unresolved constitutional question.


Next: The Constitutional Question (link will be provided upon publication)


Sources:

Austin T. Fragomen & Steven C. Bell, Immigration Primer (1985).

Michael C. LeMay & Elliott Robert Barkan (ed.), U.S. Immigration and Naturalization Laws and Issues: A Documentary History (1999).

University of Washington-Bothell, U.S. Immigration Legislation Online.

Immigration History: Immigration and the Nomination of Abraham Lincoln

Previous: State Based Policies

Just because there were no federal immigration laws before the Civil War does not mean that immigration issues did not influence politics.

One such instance is the nomination of Abraham Lincoln for President at the Republican convention in 1860. This convention saw stiff competition for the nomination among William Seward, Salmon Chase, Edward Bates, and Abraham Lincoln. When the convention started, Lincoln was thought to be in last place. However, Lincoln managed to obtain the nomination by angling for second preference of the delegates and letting the other three knock each other out.

Edward Bates, had previously been affiliated with the Know Nothing Party, a political movement formed in the 1850s in response to the high levels of immigration. Anti-immigrant and anti-Catholic, this party had seen some success but ultimately split over the question of slavery.

Bates' affiliation with the Know Nothings hurt him at the convention. A German-American delegation refused to support him, which threatened to actively oppose him among all German-Americans were he given the nomination.

This problem with Bates (among others), combined with failure of each of the other candidates to achieve majority support left everyone looking for an alternative. That was exactly who Lincoln had positioned himself to be--the ideal second choice for delegates who could not nominate their man yet would not support any of the other two.

So while the immigration issue was far from critical, and likely not even determination, it was a factor that played into the stalled candidacy of Edward Bates and the nomination of Abraham Lincoln.

Which just goes to show that here in the United States we don't even need an immigration policy to have political consequences for immigration politics.


Next: A National Policy


Source:

Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (2005).

Immigration History: State Based Policies

Previous: Naturalization and Deportation

As we saw, the new Congress exercised its authority to establish naturalization rules promptly after adoption of the Constitution. However, no such rules or restrictions were implemented on immigration. There were some reporting requirements implemented in the Alien and Sedition Acts, and self-reporting requirements for aliens in the Naturalization Act of 1802. These were strengthened when, in 1819, Congress passed an act that further required all ships to turn over lists of foreign passengers, which would then be passed on to the Secretary of State. Yet the federal government would not adopt restrictions or limitations on immigration until 1875.

Instead of federal rules, immigration during this era was left to the states:

[F]or the first century of the United States’ existence, many states enacted laws regulating and controlling immigration into their own borders. Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.

Texas, for example, had a Bureau of Immigration outlined in its 1869 Constitution "which shall have supervision and control of all matters connected with immigration".

One such state law, adopted by New York in 1824, required all ship captains entering the City of New York to record a list of all passengers and furthermore made the ships captains give a security to the city for any expenses the city might have as a result of the passengers for their first two years in the city. If the mayor thought any non-citizen passenger would become a public charge, that passenger could be refused entry and ordered returned to his prior place of settlement. The statute was "intended to prevent the state's being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such."

In 1829 the ship Emily arrived in New York with a hundred passengers but the captain never made the required report. When the city sought to collect the statutory penalty for this violation from a consignee of the ship, the defendant raised a constitutional argument. The statute, the defendant claimed, was a regulation of interstate commerce, which the Constitution gave exclusively to the federal government. Consequently, the state law was unconstitutional.

The Supreme Court disagreed and affirmed the constitutionality of the statute. In New York v. Miln, 36 U.S. 102 (1837), the Court decided that the statute was not an exercise of commerce power, but instead was an exercise of police power. Unlike commerce power, police power was not delegated to the Federal Government under the Constitution, but instead remained with the states. The Court concluded that while the federal commerce power extended to goods, persons "are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition to the states from imposing a duty on imported goods."

The Court also found no problem with New York's motivation for the statute:

Now in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so.

The concurrence by Justice Thompson sheds even more light on the question of the proper placement of the power to regulate immigration:

Can anything fall more directly within the police power and internal regulation of a state than that which concerns the care and management of paupers or convicts or any other class or description of persons that may be thrown into the country and likely to endanger its safety, or become chargeably for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered. 

A resolution of the old Congress, passed on 16f September 1788, has an important bearing on this subject; 13 vol. Journals of Congress 142. It is as follows: 

"Resolved that it be and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States." 

Although this resolution is confined to a certain description of persons, the principle involved in it must embrace every description which may be thought to endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court relates to the source of the power which is to interpose this protection. It was passed, after the adoption of the Constitution by the convention, which was on 17 September 1787. It was moved by Mr. Baldwin and seconded by Mr. Williamson, both distinguished members of the convention which formed the Constitution, and is a strong contemporaneous expression, not only of their opinion but that of Congress, that this was a power resting with the states, and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states.

* * *

Whether therefore the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the City of New York, and in this view belonging exclusively to the legislation of the state, or whether the subject matter of the law be considered as belonging concurrently to the state and to Congress, but never having been exercised by the latter, no constitutional objection can be made to it. Although the law, as set out in the record appears to have been recently passed, 11 February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev.Laws 1801, 556, and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional would be productive of the most serious and alarming consequences, and ought not to be done unless demanded by the most clear and unquestioned construction of the Constitution.

Justice Baldwin also concurred, finding that since there was no delegated power for the Federal Government to regulate immigration, the state power could not infringe on a federal power. Only Justice Joseph Story dissented on the grounds that the New York law was a regulation of interstate and international commerce, which was an exclusive power of the Federal Government.

Only twelve years later the Miln case would be curtailed. In Passenger Cases, 48 U.S. 283 (1849), and in language reminiscent of Justice Roberts' opinion on the Affordable Care Act,  the Court examined whether New York and Massachusetts statutes requiring payment by ship's captains for passengers was an impermissible "tax" or a permitted health regulation. Ultimately the Court classified it as a tax, distinguished it from the law in Miln, and declared it an unconstitutional state interference with commerce. However, Miln and state prohibitions on the immigration of paupers would live on in relative obscurity until formally declared dead in Edwards v. California, 314 U.S. 160 (1941).

In the meantime, the Federal Government did begin to adopt its own immigration regulations.

Next: Immigration and the Nomination of Abraham Lincoln

Immigration History: Naturalization and Deportation

Previous: The Constitution

Exercising its authority to enact a uniform law of naturalization, Congress passed a naturalization law in 1790 which allowed any white alien over twenty-one to petition for citizenship after two years of residence provided that they had "good moral character." The residency requirement was lengthened to five years in 1795.

Then, in 1798, Congress passed and President John Adams signed the Alien and Sedition Acts. Most known for their attempt to suppress criticism of the government, these acts also had naturalization and immigration implications. Motivated in part by the fear of a war with France, and the increased levels of immigration from France after the French Revolution, these acts increased the residency requirement for citizenship from five to fourteen years. They also permitted the President to order the removal of any alien that the President determined was "dangerous to the peace and safety of the United States" and required all ship commanders, upon arrival at any United States port, to report any aliens on their ships. Finally, in the event of a war, the President was authorized to proclaim that all non-citizen male aliens who were subjects of the hostile government could be "apprehended, restrained, secured and removed, as alien enemies." This last provision remains in effect today at 50 U.S. Code § 21 and was used during World War II against Japanese, German, and Italian nationals.

These laws were immediately unpopular and only loosely enforced and I was unable to find whether any deportations actually took place during this era. Ultimately, many of the more objectionable portions expired.

In 1802, Congress again revised the naturalization requirements, this time moving the residency requirement back down to five years. It also required all aliens who sought citizenship to report  to the clerk of their respective District Court at the time of their migration, who in turn kept a record of all aliens migrating to the jurisdiction. Although many of the details and other requirements have been tinkered with, this five year residency requirement remains in place today at 8 U.S. Code § 1427.

However, during this entire era, there were no federal restrictions on who could enter the country. Instead, such restrictions were left to the states.

Next: State Based Policies

Immigration History: The Constitution

Previous: Before the Constitution

As explained previously, the lack of a national naturalization policy in the Articles of Confederation was one of the motivations for adopting the Constitution. The Constitution fixed this deficiency in Article 1 Section 8 by granting Congress the power "[t]o establish an uniform Rule of Naturalization."

However, there was no corresponding grant of power to Congress to establish or otherwise restrict immigration. The closest the Constitution comes is in Article 1 Section 9, where it provides:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This clause is widely interpreted to be a reference to prohibiting the slave trade, nothing more. And in fact, relying on this clause, Congress passed and President Jefferson signed legislation prohibiting the slave trade in 1808.

During the ratification debates opponents of the Constitution attempted to argue that this clause could be used to "prevent voluntary and beneficial emigrations from Europe to America." James Madison in Federalist No. 42, after affirming that it was directed at the slave trade, dismissed, among others, the immigration argument: "I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."

Now, the Constitution only granted the new national government limited legislative powers. It specifically states in Article 1 Section 1 that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (emphasis added). This is in contrast to the opening of Articles 2 and 3, which grant "[t]he executive Power" and  "[t]he judicial Power" to the President and the courts, respectively. Unlike the other two, the legislative grant of power is limited, not plenary. And were there any confusion about this, the Tenth Amendment was added: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So here's the problem. Under the Constitution, Congress has limited legislative powers, and those powers do not explicitly include the power to regulate immigration (remember, immigration is distinct from naturalization). So to the extent that immigration restrictions are classified as legislative, there is a significant problem.

There are a few ways around this. If immigration restrictions are somehow "necessary and proper for carrying into Execution" the naturalization power, it could be included there. Or if immigration is considered part of commerce, it could be regulated through the commerce clause. And there always is the slave trade clause. However, none of that is clear from the founding era or founding debates. Consequently, under a strict textualist approach, an argument remains that Congress has no Constitutional authority to legislate an immigration policy.

Hold that thought, for we shall return to it. It will take the judicial branch nearly a hundred years to sort it out.

Next: Naturalization and Deportation

Immigration History: Before the Constitution

Previous: Preface

As any good political historian, I must begin where our country began: the Declaration of Independence. Reviewing that document, we find that one of the charges lodged against the King was that he interfered with immigration to the colonies. Specifically, Jefferson wrote:

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

Before going into the background of this complaint I must emphasize very strongly that naturalization and immigration are not the same thing. I have lost count of how many times I hear the two confused. The rest of this post, not to mention the rest of this series, will make no sense unless we establish here at the onset that naturalization and immigration are distinct.

So what is the difference? Think of it as a two-step process. Immigration is the act of moving to a new country with the intent of remaining there permanently. It is a question of presence. Naturalization is the process of becoming a citizen of that new country, and sometimes citizenship was necessary to own property. It is a question of political participation. Normally, naturalization has a residency requirement, such as five years. Which means that to become a naturalized citizen, a person must have immigrated five years prior to submitting the application. However, not every immigrant because a naturalized citizen, and there is no requirement to do so. If they so choose, they could remain an un-naturalized alien indefinitely.

Alright, with that out of the way we can return to the Declaration. We see both principles at play in Jefferson's complaint: interference with naturalization and failure to encourage immigration (migration). While I could find no evidence of British restrictions on immigration from the colonial era, there was ongoing tension between Parliament and the colonies over the question of naturalization of foreigners. Remember, as British colonies, "foreigners" were immigrants from places other than Britain.

Initially naturalization rules were set by each colony. For example, here are overviews of the naturalization (traditionally a grant of citizenship by Parliament or legislature) and denization (a quazi-citizenship traditionally granted by the King or governor) laws for colonial Virginia and New York. These laws, however, only granted citizenship for the granting colony, not for Britain. In 1740 the British Parliament, tired of the irregularity in the colonies passed its own rules for naturalization which overrode any colonial rules to the contrary.  This act had a seven-year residency requirement, and applied uniformly across the colonies. Other tinkering with naturalization laws followed thereafter.

The colonies, however, could and did encourage or limit immigration. Massachusetts, for example, in 1700 adopted a rule that each new ship had to report all passengers, and shortly thereafter implemented prohibitions on the migration of "poor, infirm, or vicious people." (Carpenter, 296). In contrast, many of the southern colonies sought to attract immigrants by offering land-grants, and South Carolina went so far as to refuse to enforce any pre-migration debts of immigrants. (Id.) Virginia, South Carolina, North Carolina, and Georgia also instituted prohibitions on debt collection for a period after migration to give new immigrants a chance to establish themselves. (Risch, 2-3).

Overall it appears that the colonies believed that immigration was good and sought to encourage it--particularly the immigration of the right types of people. Sometimes they would even offer naturalization as an inducement to immigration (Risch, 9), which could explain the hostility toward Parliament's setting of a uniform naturalization policy. Yet as British subjects, the colonies were still under the British naturalization laws.

All this changed with independence. With independence, the new nation could no longer rely on the foundation of British naturalization law. However, the Articles of Confederation never mentions immigration, and citizenship appears only in Article IV:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

Instead of a uniform rule, each state continued to the colonial way of setting its own naturalization requirements. In Federalist No. 42, James Madison stated that this state-based approach "has long been remarked as a fault in our system" due to the differences between states as to who is a citizen and confusion as to how citizenship can transfer between states. The lack of a uniform rule for naturalization became one of the motivations for drafting a new Constitution. However, there was no similar discussion regarding lack of a uniform rule of immigration, nor does it appear that the state-based immigration structure significantly changed after the Revolution.


Next: The Constitution


Sources:

A. H. Carpenter, "Naturalization in England and the American Colonies," The American Historical Review, Vol. 9, No. 2 (Jan., 1904), pp. 288-303.

Erna Risch, "Encouragement of Immigration: As Revealed in Colonial Legislation," The Virginia Magazine of History and Biography, Vol. 45, No. 1 (Jan., 1937), pp. 1-10.

Immigration History: Preface

President Obama's immigration announcement last week has divided constitutional scholars and political commentators. I've already written about my own indecision over the matter.

However, as much as it may look like an executive power grab, and as self serving as the Department of Justice's supporting memo may be, I have yet to see a persuasive response that seriously addresses the President's historical and legal arguments. Instead, what I have seen are very general statements about the apparently obvious "unconstitutionality" of the President's actions with no discussion about the dubious "constitutionality," strictly speaking, of the immigration structure as a whole. I've also seen statements attempting to distinguish this President's laxness in enforcing the deportation laws from prior Presidents, such as Reagan and Bush, doing the same things. Yet saying that this time it's different doesn't necessarily make it so, especially if the only difference is one of scale and not principle.

In short, instead of hearing sound criticisms of the President, I am hearing inadvertent declarations of ignorance about immigration law from the conservatives. This will never do if we want to be taken seriously.

So in light of this deficiency, I'm planning to take the next few weeks (or months) to introduce our readers to the history of American immigration law, its suspect origin, its inconsistent application, and its overall mess. Highlights will likely include:

• Whether there is any authority in Article I of the Constitution for the legislature to create an immigration policy;
• How for a time states had the ability to set their own immigration policies;
• How an anti-immigrant stance by one of his rivals led to President Lincoln's nomination;
• When strict enforcement of immigration laws resulted in returning a boat full of Jewish refugees to Adolf Hitler;
• The times that presidents allowed large numbers of immigrants to enter without legal status in response to Communist takeovers of their home countries;
• The time a chain of churches offered sanctuary to refugees who had no legal status, and through passive action successfully turned away immigration authorities; and
• The hurdles and waiting lists that immigrants currently face.

I still do not know whether the President's action is constitutionally permitted, but what I can say after the last several days is that each article attempting to persuade me that it is, or is not, has pushed me toward the opposite conclusion. So part of this series is my own attempt to learn more about the history of our immigration system. I do not fully know where this series will go, nor how long it will take to complete. But I hope that you will join me for the journey. In the meantime, check out our prior immigration posts, especially the one laying out some groundwork for the immigration debate.

Next: Before the Constitution

Conflicted

Last night President Obama announced new changes to the United States' deportation policy:

So we’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law.

The political-minded portion of the world now seems divided over whether this is the best or worst news of the week. But I have to admit that I'm quite conflicted about the whole thing.

We've written about immigration a number of time, and have generally supported actions such as the President's from a policy perspective. This sort of change is long overdue, and the principles being implemented are far from foreign to our legal system. In both civil and criminal litigation, doctrines such as latches or statute of limitations require that cases are not allowed outside of a certain timeframe. Even more significant, the doctrine of adverse possession permits squatters to acquire title to property after a certain time. The bases of all these principles is that unused rights, after a certain time, can no longer be asserted. It is a principle of both justice (particularly the mercy side of justice) and efficiency: after a certain time people should feel safe from prosecution and ceaseless dredging up of all past wrongs would bogs down the legal system. That these principles do not appear in our immigration policy makes the policy a bit of an anomaly in light of the rest of our legal system. Applying these principles to our immigration system, ideally while also taking steps to streamline the legal status process (which the President's order does not do), would curtail the current process of first making lawbreakers and then punishing them.

Yet then there is the other hand. Under our constitutional model, legislative power is given to the Legislature while administrative power is given to the Executive. Here, the Legislature has acted to create the mess, and has repeatedly declined to act to fix it. The principles of rule of law and separation of powers means that there is a correct agent to make this sort of change, and it's not the President. The principle of representative democracy means that the laws reflect the will of the people, and the lack of a political will to fix the immigration system somehow means that it's what we want. In fact, for the past six years President Obama himself has repeatedly said that he does not have the legal authority to make the changes that he announced last night.

But then, Obama's announcement is less one of executive action than it is one of executive inaction. It's a statement that certain provisions of the law will not be enforced because they are deemed too harsh. It's an overreach of power that results in a less intrusive government. Examined from a rights/freedom perspective, I am hard pressed to find a credible argument that my rights are somehow harmed by my neighbor's mere existence or presence. That starting point is a slippery slope which quickly leads to all sorts of unpleasantness, not to mention that "refusing to pass" laws to "encourage" the migration of foreigners were among the complaints issued against the King in the Declaration of Independence.

And then back to the balance of power , the reason President Obama can get away with such action is because the legislature is deemed--and rightly so on this issue--inadequate. This, as with our entire administrative law mess, is less a case of power seizure by the President and more one of power abdication by the Legislature. Legislators will now exercise their vocal cords in praising or condemning the action, just as they praised or condemned the thought of the action prior to its announcement, and praised or condemned the prior legislative fixes proposed. However, far be it from them to actually hold a vote; which would interfere with their complaints that their colleagues won't hold a vote. Politically, this poses a challenge to the new Republican majority: will they step up to the challenge with prudence and competence or simply disintegrate into the same political infighting that gave the President this opportunity to act as savior?

So there it is. Approving of the President's action feels like the humane thing to do yet involves the danger of letting ends justify means. Opposing the action protects rule of law yet implicitly involves supporting legislative dysfunction. Oh for real leadership.

Saved by a Beatle

Twice before I’ve written about the Romeike family, who left Germany and applied for asylum in the United States on the basis that Germany wouldn’t permit them to homeschool their children. This last week, the case took another turn.

But first, let’s review the family’s immigration history. The Romeike family arrived in the United States on a temporary 90 day visa and then applied for asylum with the United States Citizenship and Immigration Service (USCIS), a division of the Department of Homeland Security (DHS). USCIS declined to grant the petition, and instead sent it over to the Department of Justice’s Executive Office for Immigration Review (EOIR) for an administrative hearing before an immigration judge. (As a point of clarification, this judge was an administrative officer and employee of the DOJ, not a “judge” in the typically understood sense of being part of the judicial branch.) The immigration judge granted the petition, and DHS promptly appealed it to the next level of administrative review with DOJ: the Board of Immigration Appeals.

After waiting about two years due to the backlog of cases, the BIA reversed the immigration judge, denying asylum and ordering the family removed since they did not have any legal status. The family appealed this decision to the United States Court of Appeals for the Sixth Circuit, which affirmed the BIA and held that although homeschooling is protected under US law, denial of homeschooling by another nation does not constitute “persecution” as defined in asylum law. The family next asked the Supreme Court to review, but the high Court declined to intervene. The very next day, DHS informed the family that it would not be proceeding with enforcing the deportation order and that the family had been granted “indefinite deferred status”.

Although it’s been spun as an irony, the government’s position is actually been consistent through the entire case. It determined that the family did not qualify for asylum. It never said the family didn’t qualify for another status, and given the option, declined to push the issue of deportation. This was a classification issue, not a change of heart.

Yet there are plenty of ironies. Those who have been contrasting this family with all the other “illegals” that the Obama administration has decided to not deport are now stuck, since now the family is another instance of immigrants without documentation whom the law is not being enforced against. (Side note: the Obama administration is actually deporting record numbers of immigrants.) Likewise, those who have been condemning the administration for not enforcing the law are now praising the administration for … not enforcing the law against someone they find sympathetic.

Anyway, there’s another interesting element to all this. Contrary to the sentiment you may have heard, President Obama is not the first President to selectively enforce immigration laws. During the 1950s through 1970s, before we had a clear asylum category, Presidents used “parole” power to admit tens of thousands of Hungarian, Cuban, Chinese, Czech, and Indochinese refugees who otherwise didn’t otherwise qualify for status.

But deferred action is connected to a different incident: John Lennon, the Beatle. (No, I’m not referring to Vladimir, the Soviet revolutionary. Nor am I referring to Gregor Samsa, Kafka’s beetle. I’m referring to a member of the British rock band that first toured the United States fifty years ago.)

You see, like the Romeike’s, Lennon had overstayed his tourist visa. And his prior marijuana conviction back in England prevented him from obtaining permanent resident status. So the government initiated removal proceedings against him.

Lennon and his attorney fought the deportation, arguing (among other things) that in light of the government practice of quietly granting “deferred status” and not pursuing every immigration violation, his deportation case constituted being singled out for political purposes. Ultimately, the United Court of Appeals for the Second Circuit determined that the marijuana conviction did not prevent Lennon from being granted status. However, it also noted that it considered the claim of selective prosecution serious. Lennon was eventually granted a permanent resident status.

Thus, deferred status was popularized, and has been an executive tool ever since. Last week's grant of deferred status to the Romeike family is just the most recent publicized instance of the President softening otherwise harsh immigration laws. The Romeikes have simply benefited from the path forged by John Lennon.

Artificial leadership

One of my favorite scenes in the film Gladiator is when Maximus is in the arena and has an opponent at his mercy. He looks to the crowd for direction, and they demand he should kill the defeated gladiator. The Emperor, Commodus, indicates likewise. However, Maximus defies the will of both and spares his vanquished foe. And the crowd loves him even more.

The look on Commodus' face as the camera cuts away is priceless--he cannot comprehend why he is despised for giving the people what they want while Maximus is loved for defying them. But Maximus knows, he defied them while appealing to their better instincts. They are better people for being defied. And somehow, they realize that.

But this post isn't about gladiators. It's about something even more vicious: politics. Specifically, political leadership.

A recent article by Gabriel Schoenfeld made what I believe to be a very good point about one of the reasons Romney lost. He was trying to be someone he wasn't, trying too hard to reflect the will of the Republican establishment rather than just being himself.

Both as a candidate and as a president, George W. Bush had his share of defects. But one of the reasons he twice won presidential elections is that he was exactly who he said he was. Voters could tell, and they liked that in a leader. Both as a man and as a governor, Mitt Romney had his share of virtues, and no doubt they would have been on display had he become president. But one of the reasons he lost twice is that he was often not who he said he was. Voters could tell that, too—the artificiality of his focus-group-chosen language was often striking—and they did not like it at all. A good marketing team would have understood that packaging Mitt Romney as something he was not was a mistake. Indeed, a really good marketing team would not have packaged him at all. They would have let this impressive man be himself. 

More pertinently, this impressive man could himself have chosen to remain himself. David Frum maintains that Romney, one of the Republican Party’s “most articulate and intelligent standard-bearers in decades,” was “forced” by ideological conservatives “to jettison his own best self and best judgment.” There is of course something to this argument. Conservatives in key states, the argument continues, have a lock on the primary process. If Romney had not concealed his true moderate self and tacked to the right, he would have had little chance of capturing the Republican nomination. We cannot rerun history backward to see if such an analysis is correct. But a case can be made that voters of every stripe, including conservatives, would have had far more respect for Romney if he had resisted the conservative Siren calls to sail in their direction and, instead of posing as a “severe conservative,” had stood fast for what he believed. 

Our country’s greatest presidents, from George Washington to Abraham Lincoln to Franklin Delano Roosevelt to Ronald Reagan, did not need to bend to the whims of the electorate. By dint of their principled statesmanship, they bent the electorate to their will. They educated it. They persuaded it. They brought it along. They certainly did not need application programming interfaces to get elected and to accomplish what they accomplished. Nor did Abraham Lincoln need to hire a “messaging professional” to write the Gettysburg Address.

Which brings me to Senator Rubio. On immigration he is not making Romney's mistake. Instead, he is defying the very Tea Party support that got him elected. And he is even trying to persuade that base to follow him.

We have yet to see whether he will be successful. But Senator Rubio is demonstrating true political leadership; the sort of leadership that challenges the electorate to rise above their initial inclinations.

If Rubio succeeds, he will be a force to be reckoned with. But even if he fails, it is something other than a leadership failure. Returning again to the gladiator context, Theodore Roosevelt once said:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

With the Senate passing an immigration reform bill, and the House about to take it up, now we will see whether the House Republicans are critics or doers. Regardless of the outcome, Senator Rubio has already answered that question for us.

Marco Rubio and the Great American Experiment

Today, I’ve been mocked, I’ve had my credibility attacked, and I’ve been told that I “need to move to Mexico if you want to live with foreigners...”

Why, you ask?

Because Senator Marco Rubio has really impressed me by his willingness to do what he thinks is right even when it’s unpopular, and because I agree with him. Senator Rubio sees that the immigration system is broken and that it needs to be fixed. He is willing to stand toe-to-toe in debate with anyone Republican or Democrat who is willing to talk seriously on the issue.

So, people attack me because I agree with Rubio. I don’t know if they are really racist or if they are just speaking without thinking. But the fact is, I have personally seen the positive results of immigration: my adopted sister was an immigrant from Guatemala and is now an engaged citizen who loves this country.

The crazy thing about immigration is that “foreigners” come here to the USA and become citizens—just like us!

That’s why I love immigration. I am not just a fan of it in the abstract, because someone before I was born came here to make a better life. I love our country because it allowed my beautiful sister to become a citizen and a part of my family.

There are problems with our immigration system, however. It is broken. It was designed during the Cold War, and, as it stands, it neither protects our borders from those who want to harm us, nor does it assist those who long to enjoy freedom they’ve never before experienced.

The current system has long waiting times (sometimes up to 30 years!) and the bureaucrats have a field day deciding who they think is worthy of coming here to the USA.

The problem is not going away and Rubio seems to be the only person who is willing to try to do something about it.

So what should be done?

We have to have solid border security. That is not negotiable. But we cannot turn a blind eye to the results of bureaucrats in Washington handling the borders for so long. The bureaucratic control has led to many would-be immigrants outstaying their visas because the system cannot process them quickly enough. Both problems must be addressed:  the unsecure border and the generations of bad Washington policies that have made it next to impossible for people to come here. In short we cannot just deal with the border. The problem has lasted too long and, as a result, there are many who are here in the USA without proper paperwork. We have to come up with some process to get them the right paperwork so they can properly join our society, pay taxes, and follow the laws of the land.

In the end the whole thing is broken and we need to fix it. Rubio is trying to do that. Hopefully, his bill is the first step in the process of fixing the problem by encouraging other Republicans to step up and work on real solutions that go beyond talking points. And I pray that this process will bring us back to the land that took in the poor and vulnerable and helped them to join what the founding fathers called the Great American Experiment.

If you disagree with me about Senator Rubio’s bill, that’s fine, but do it with an eye for solutions. Don’t just attack Rubio (or me)—present what you think we should do. How can we make the system better? And as you consider that question, don’t forget to incorporate Matthew 7:12 ("So in everything, do to others what you would have them do to you") into your policies.

I am a solution-based person; I want to find answers. And right now, the only person who even seems to be trying to get to an answer to the immigration question is Senator Rubio. So until I can find something else, I think I’ll continue to stand with Rubio.

By Jeremiah Lorrig

Editor's Note: This post was originally published on Generation Joshua's online publication: Liberty's Call and republished with permission. 

Considering the "Biblical" opposition to immigration reform

Recently I came across an article on immigration reform entitled "Evangelicals for Biblical Immigration — But Not for the Gang of 8 Bill (S. 744)" by Kelly Monroe Kullberg writing for "Evangelicals for Biblical Immigration." Since I am more or less evangelical (or at least that's what my blog name says), take the Bible as authoritative, and have more than a passing interest in immigration issues, I was intrigued. I even hoped to learn something.

I was greatly mistaken.

You see, the problem with these arguments is that I happen to know something about immigration. I studied immigration law in law school (think of it like tax law, only more poorly written) and was a member of my school's Immigration Law Clinic, where I represented immigrant clients. I also wrote a honors paper on some of the shortcomings with asylum law. So I'm not speaking in a vacuum here when I say that Kullberg's argument reflects more poorly on herself then it does on the immigration reforms she attempts to oppose.

Kullberg starts off strong, affirming that "God loves us all, the sojourner and the citizen" and "God invites us into his Church as a new kind of family. At the same time, He has purposefully placed us in this century, and into families, tribes and nations. Many people are displaced by war, famine and in need of kindness.  We can help. The Church, and America, almost always has helped. We are a generous nation." Amen. There are lots of great examples of the Church helping immigrants, the 1980 Sanctuary movement, where a network of churches defied the Federal Government by sheltering Central American refugees, being one of my favorites.

However, Kullberg quickly demonstrates that the Sanctuary movement--or any help to illegal immigrants--isn't what she has in mind. Instead, along with terrorists, she labels them as the "other." She writes, "There are other foreigners, however, such as the Boston-based Tsarnaev brothers, and others who do not mean to come as blessing, who do not belong in America."

I keep seeing the Tsarnaev brothers used as examples of how our asylum structure is too lax (try telling that to the Romeike family). In reality, the Tsarnaev brothers were granted asylum as derivatives of their father when they were still minors. Absent some form of PreCrime unit, I’ve seen no evidence that these were any warning signs at the time of immigration. And concerns were delaying the citizenship application of the elder brother, just (unfortunately) not quickly enough. Insofar as this was a failure on the part of the government, it wasn't an immigration failure. Should we really start interrogating 9-year-olds if, in 10 years, they plan to preform terrorist acts? Do we really think we'll get reliable answers?

Kullberg then transitions into an argument for making what she calls "Biblical" distinctions:

While the Bible teaches us to be kind to the sojourner or “resident alien,” it also teaches that kindness to the sojourner ought not to be injustice to local citizens and their unique culture. To steward and cultivate, whether a garden or a nation, involves wisdom and discernment. We, like our Founders, want to conserve what is true, good and beautiful. We want to nurture a nation that would welcome our children as well as the well-intended sojourner.

I've noted before the legitimate concern over tensions caused by immigration, but lately that has begun to feel like a pretext to oppose immigration reform in general. And while her appeal to the founders is nice, I wonder if Kullberg has heard the nasty things the founders said about, say, German immigrants, who seem to have assimilated just fine (with the possible exception of certain parts of Michigan). As a side note, it was people standing up to just this sort of derogatory treatment directed at the Germans that laid the foundation for the homeschooling rights that we have today. Actually, fear of a lack of assimilation seems to be popular with each generation. First it was the Germans and Irish and Jews, then the Chinese, now the Hispanics and Muslims. But each time the fear has proven overstated. The children and grandchildren of immigrants do assimilate. After all, I am writing in English, not German or Danish.

Anyway, back to Kullberg and her "Biblical" distinctions.

Old Testament scholar James Hoffmeier states that the Hebrew word “ger”, translated “alien” or “sojourner” refers to “a person who entered Israel and followed legal procedures to obtain recognized standing as a resident alien.” This lawful sojourner (“ger”) was not necessarily given all the rights and privileges as the Hebrew citizen, but was treated kindly, indeed much more kindly than was customary among tribes and nations of the ancient world. God commanded Israel to be kind to the sojourner.  In other words, Hoffmeier continues, biblical “… verses about sojourners refer to legal immigrants into the country. But other people who did not have this recognized standing were simply termed ‘foreigners’ … and did not have the same benefits or privileges that sojourners did.”

I’m not going to get into an ancient Hebrew discussion here, so for the sake of argument I’ll assume that Hoffmeier is correct in his interpretation of the words. However, a cursory review of Hoffmeier's book shows that his argument fails to prove its own conclusion. He writes:

The distinction between the two is not only that the aliens (gerim) have resided with a host nation for a period of time, but that ‘they have abandoned their homeland for political or economic reasons and sought refuge in another community.’ In other words, the ger regards the land of his sojourning as the new home for a protected time period, while the foreigner does not …. the alien was a permanent resident. The foreigner, on the other hand, was not... foreigners were those who were passing through the land with no intention of taking residence, or perhaps they would be temporarily or seasonally employed.

The distinction Hoffmeier makes is between temporary visitors and permanent residents, not permanent legal residents and permanent non-legal residents. I’ve seen no evidence that the Bible even makes a distinction between “legal” and “illegal” immigrants--and it certainly doesn’t look anything like this.

If anything, Hoffmeier’s analysis proves the opposite point he’s trying to make--there is a Biblical mandate to show kindness to those foreigners living among us on a permanent basis. Those would be the undocumented immigrants that S. 744 is extending status to, since surveys indicate that 98% of undocumented immigrants would prefer to be here legally if they could. The issue is that many cannot comply with the law regardless of how much they want to. Once you understand that, your entire perspective changes.

Kullberg then argues that the proposed immigration reform bill (S. 744, summarized here) is bad because it is too expensive in economic and social costs: "The bill would dramatically affect the future of 300 million current citizens by reshaping America’s sovereignty, economy, spiritual and moral compass, political dependencies, public safety and national security."

The national security and "spiritual and moral compass" arguments are completely undeveloped, so I won't even attempt to determine what she means. The cost question, however, is a little more defined. The primary study on the cost of amnesty is by the Heritage Foundation, which as the Cato Institute points out, is based on many questionable assumptions. Even a former Heritage scholar now at the Hudson Institute has criticized the report, writing "The report’s authors may sincerely believe that unlawful immigrants are costly, but their study clearly makes assumptions to prove that point, while ignoring research to the contrary." Such research to the contrary estimates significant economic benefits from legalization. And the Congressional Budget Office just released an analysis concluding that passage of the bill would actually reduce the federal deficit by close to $900 billion over the next 20 years.

Then comes this gem. Kullberg  writes: "We’re primarily concerned that S. 744 is ideologically and politically driven, and not motivated by compassion for, and justice to, actual human beings." Apparently, however, "ideologically and politically driven" opposition to S. 744 is just fine, as the rest of the letter demonstrates.

I've heard this argument repeated numerous times: the Democrats only support the bill because they want to ensure a permanent democratic voting majority. Yet here is what I fail to grasp. If the Democratic support for a bill that may help their political majority is anathema, isn't opposition to a bill that undermines Republican political power equally condemnable? How come supporting "our" majority for the sake of power is noble, while the other party doing the same thing is somehow evil? At its base, the argument is circular. The Democrats are evil because they want to vote themselves a permanent majority, and a Democratic majority is bad because Democrats are evil. Or, to use Kullberg's own words, "at least a few people in high places are there to manage the decline of the America we love." Given arguments like this, the Republicans deserve to lose the immigrant vote, which, of course, merely turns the argument into a self-fulfilling prophecy.

Alright, next issue: "Few immigrants are being deported. America leads all nations in allowing hundreds of thousands of foreigner’s unlawful entrance each year (the exact number is uncertain)."

I think we also lead all nations in the number of people trying to get in, so that's a bit of a false comparison. But let's look to the evidence. Illegal border crossings are at a 40 year low and deportations are currently at a record highs and getting higher. (Oh wait, I just used part of the “Media Propaganda State.” But Fox News agrees, so it’s all good.) Net Mexican border crossings are falling to near zero, while immigration enforcement spending is greater than all other federal law enforcement spending combined. And in some parts of the country, border enforcement is so aggressive that legal residents and citizens are being detained. But of course, all those are just "ideologically and politically driven" facts, while Kullberg's thin-air assertions are gospel truth. Is anyone else beginning to see why the Republicans don't have much credibility on immigration?

Kullberg ends with a plea:

I am asking my Senators, and all of Congress, to pause and read all 1,000 pages (and growing) of the S. 744 bill itself, and to kindly consider the citizens of the United States whom they are elected to represent. Our poor. Our widows. Our unemployed, many of whom are African- and Hispanic-American young people. Our veterans and college graduates having trouble finding meaningful career paths.  Passing another comprehensive bill full of good intentions and empty promises is unjust, immoral and unwise.  This bill is not “better than nothing.”  It is flawed to the point of being unworkable.  Please, scrap it and start over.  Give us something short enough to read.  Something clear enough to understand.  State what the bill will do, when it will be done, and how much it will cost. Use our common dictionary as well as our vocabulary (enough with the Alinsky/Screwtape rhetoric). No more obfuscation — let your words mean something real.

She is long on critique, but short on solutions. Please, Ms. Kullberg, offer a constructive alternative. I'm all ears, but so far haven't heard of anything that actually makes sense. Do the opponents even have a viable counter-plan? Or is this just another pretext for opposition?

Kullberg likes to compare immigration reform to health care reform. Let me do the same for a moment. The Republicans lost the health care debate, in large part, because they had no plan. They had no alternative. The only argument was "it's unconstitutional," and when that lost there wasn't anything else. It doesn't help that the individual mandate was the brain-child of the Heritage Foundation offered as a counter to the single-payer system, so in a way, they did have a plan before the Democrats stole it, and as soon as the Democrats proposed it the Republicans denounced it. The consequence is that even if Obamacare fails, Obama still gets credit for trying. The Republicans don't even have that. As a recent article on the youth vote noted,"Republicans lost so badly among young votes because Republicans were rarely heard and had nothing to say." The lesson has not been learned.

In her conclusion, Kullberg attempts again to incorporate Biblical examples into the debate.

Let’s leave behind the sloganeering and confront the hard task of discernment. Just as Paul taught the Church (1 Timothy 5) to delineate among widows for whom the Church should provide, we are called to discern among  “sojourners” (like Ruth and Rahab who intend to assimilate and bless) and “foreigners” (who do not intend to assimilate and bless) and to welcome the former with hospitality. Observance to the whole counsel of Scripture yields growth and goodness to those in need.  America is a nation rooted in the truth of God’s love for the individual and for the whole world.

Oh the irony. Ruth had no blood relatives in Israel and no job--she would be ineligible for admission under our law today. Additionally, she had no income and ended up gleaning from the fields, which makes her a "welfare user" of the time, a deportable offense today. And as for Rahab, prostitutes are inadmissible (not to mention the national security, cultural, and spiritual threat she posed).

Yes, discernment is a hard task. So is identifying, asking, and addressing the hard policy questions. Unfortunately, none of that is happening here. Instead, we get "sloganeering," shoddy theology, poor reasoning, and a de facto defense of a system with faults that the defenders can't even comprehend.

But after all that, I must admit that Kullberg convinced me. After reading the article I have much greater support for S.744. It's one of the consequences bad arguments have on me.

Asylum for Homeschoolers?

Last Tuesday the Sixth Circuit Court of Appeals affirmed the Board of Immigration Appeals denial of asylum for the Romeike family. You can read the opinion here. HSLDA, who is handling the case, is promising to appeal.

I’ve blogged about this case previously, but this new opinion is worth a few additional observations.

First, for anyone tempted to blame this decision on a liberal bench or an Obama agenda, none of the judges were Obama appointees. Judge Sutton, who wrote the opinion, and Judge Rogers, who wrote the concurrence, were both appointed by George W. Bush. Judge Sutton, in particular, was initially too conservative for the Democratic controlled Senate and his appointment was blocked for two years. The third judge, Judge Gilman, is a Clinton appointee who was confirmed by the Senate on a 98-1 vote. In this case, all three judges agreed that the family did not qualify for asylum status. And in a somewhat odd twist, based on my reading of dozens of asylum cases, the family would likely have had a greater chance of success with a more liberal bench. The conservative strict constructionist model does not have as much flexibility for this sort of case. So this outcome cannot be attributed to any liberal animus or agenda. It was simply a matter of applying facts to law, and these three judges were not persuaded.

Second, the court is abundantly clear that it is not addressing the issue of homeschooling rights under United States law or the United States Constitution:

Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923). 

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not.

* * *  

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim—a well-founded fear of persecution on account of a protected ground.

Here, the court is undeniably legally correct. The case is not about whether the family is entitled to homeschool here but rather whether their treatment by Germany is such that they can obtain status as refugees here. That is a high standard, as not every inconvenience, or even illegal action, creates refugees. It is also a completely different question than what types of government action our Constitution protects us from. This case cannot be used as a precedent to undermine domestic homeschooling rights. If anything, it is further proof that the courts recognize those rights. The Romeike family does not face deportation because they are homeschooling, they face deportation because the court has determined that they are not eligible for the status they sought.

Third, as hinted at above, the court got the law right. The issue was whether the Romeike family feared persecution on account of their religious beliefs or social group membership by the German government if they returned. The court did not reach the question of whether homeschooling is a "particular social group," but instead denied asylum because it determined that the family had not shown sufficient bad motives on the part of the German government. Again, refugee status is a high standard that all applicants must prove. For asylum to be granted, the treatment must be really bad--something nonsensical, silly, or even inconvenient or illegal is not sufficient. That's the law as Congress wrote it, and no matter how much we may want it otherwise, the court can not and should not change it.

Because of this, the whole complaint that the Obama administration doesn't recognize individual rights or refuses to recognize persecution that applies to an entire country misses the mark. While this complaint is valid, the problem stems not from the Obama administration, or with the reviewing judges and is certainly not unique to this case. Instead, it is a problem inherent in our asylum law as adopted by Congress in 1980. And homeschoolers are just the most recent group to discover this difficulty. Over the last few decades, Iranian women, Chinese parents fleeing the one-child policy, and even Chinese pastors have run into the exact same problem. The fact that a government does not single people out for persecution can be a disqualifying fact for those fleeing persecution. Unless we want judges to rewrite the laws, this is the standard. And it's true that the Pilgrims would probably not get asylum under today's immigration laws. But that is a problem with the laws, not the judges, the Attorney General, or the President.

Fourth and finally, this case reveals the restrictive nature of our immigration system. For many around the world, and apparently for this family, a desire to come to the United States legally is not enough to obtain legal status. Unless the applicant has a family member here or an employer willing to sponsor them, there is virtually no line to enter for admission. The Romeike family has to resort to asylum because they apparently cannot just apply for entry (they entered on an 90 day temporary visa in 2008 and have been permitted to stay pending the outcome of their case). So, to all the conservative commentators out there, yes, this family did do everything right. But the reality of our immigration system is that even doing everything right still often leads to deportation. And that is a problem with the law, not with the administration.

Homeschooling, Asylum, and the Attorney General

Dear homeschooling community:

Despite what you may have heard, the arguments presented by the Department Justice in the case involving German homeschoolers do not pose a direct threat to your homeschooling freedoms.

Over the last few weeks I’ve watch as, in a game of online telephone, this story has evolved from HSLDA’s Mike Farris’ musings, to the question of whether domestic homeschooling rises or falls with this case to, finally, “Holder vs. home schooling.”

Unfortunately, in the hysteria, the actual issue at stake seems to have been lost.

As a brief background on the case, in January of 2010, an Immigration Judge granted asylum to the family. The Department of Homeland Security appealed that decision to the Board of Immigration Appeals, which reversed the Immigration Judge in May of 2012. The family has now appealed to the Sixth Circuit Court of Appeals and is awaiting a decision. Once that decision is made, the losing side can request the Supreme Court for review.

Three primary issues need to be remembered as we think about this case.

First, the dispute is not really about constitutional rights. Yes, parental rights are considered a fundamental constitutional right here in the United States, but that is largely beside the point. Since the German state is not bound by our Constitution, whether it has “violated” it or whether its actions would be permitted if conducted by a US political entity is immaterial. Germany, as a sovereign political entity, has the authority to make the laws governing German citizens.

Asylum, in a general sense, is inherently a check on sovereignty. And it must be couched in such terms. More than a mere preference, it is a statement that the oppressing state acted in an illegitimate manner toward its citizens. This transfers the debate about homeschooling from one of US Constitutional rights (which are largely irrelevant to asylum claims) to one of international human rights.

As I’ve written before, there is support for parental choice in education being a peremptory human right. That, and not domestic constitutional rights language, is where the debate lies. This case does have the potential to make a large impact on the status of parental rights in the international sphere, and for that reason I’m hopeful that the family wins. But even if the family loses, Eric Holder won’t be sending out SWAT teams to round up US homeschooling families.

Second, the litigation is not concentrated on whether the homeschooling family is wanted, is desirable, or would otherwise make a positive contribution to the nation. It is not about whether the family should or can homeschool here. The government is not attempting to deport them because they homeschool. Instead, the question is whether Germany’s denial of the family’s right to homeschool makes them a “refugee.” If it does not, they do not have legal immigration status and, like all others without status, they would be required to leave or find some other way to obtain status.

To qualify as a refugee the family must show that they are someone “who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA 101(a)(42)(B); 8 USC § 1101(a)(42)(B).

This definition is easily broken into two parts, the treatment part (persecution) and the prosecutor's motivation (“on account of...”). Even if “persecution”--which Congress never bothered to define--is shown, only certain types of persecution make one eligible for asylum. The persecuting government must be doing the persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The litigation before the Sixth Circuit includes parts of both elements. First, the government is making the case that Germany’s treatment of the family does not amount to persecution. Under the legal standard, not every form of mistreatment constitutes persecution. It must reach a certain level of seriousness--often including physical beatings or threats of death. However, it can also include economic coercion. For the German family, even the initial Immigration Judge who granted asylum did not find that they had suffered past persecution. However, he did find that they had a well-founded fear of future persecution based on Germany’s treatment of homeschoolers in general.

But persecution aside, the family also has to show that they were targeted on “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Race, nationality, and political opinion are not even being argued, so the only two arguments the family is using are religion and membership in a particular social group. Religion is tricky, since while the law does interfere with their religions beliefs, it is a general law that does not single them out or in any other way target them. Social group is the other argument, but that term is so loosely defined and unclear that there is little hope to avoid litigation when asserting it. That German homeschoolers are a particular social group is certainly a strong argument, but it is not one that asylum law has previously recognized, so it should not be surprising that DOJ would resist.

And asylum claims against general laws are often unsuccessful, the most notorious example being the BIA’s 1989 holding that those fleeing China’s one-child policy were not eligible for asylum (in 1996 the asylum definition was specifically amended to fix this). Conscientious objectors to a general draft law have also been denied. The rationale here is that states have authority to pass laws that apply to everyone, and absent something extreme, enforcing that law is not persecution on account of one of the protected grounds.

So, although one can characterize the government’s motivations in continuing the litigation as opposition to homeschooling, it is just as easy to interpret it as a strict adherence to our immigration laws. And isn’t that something conservatives want?

Third, it is dangerous to impose personal motivations on the attorneys or departments based on their positions. If this approach were viable, then the following conclusions must also be drawn:

• That the Reagan/Bush administration welcomed China’s one-child policy (asylum denied, 1989).

• That the Clinton administration endorsed husbands brutally beating their wives (asylum denied).

• That the Clinton administration (and now-Justice Alito) support Iran’s discriminatory treatment of women (asylum denied, 1999-2001).

• That the Clinton administration backed rape by guerrilla forces (asylum denied, 1999).

• That the Bush administration, and specifically Attorney General Ashcroft, supported child soldiers in Uganda (asylum granted by Third Circuit, but DOJ litigated against, 2003).

• That Attorney General Ashcroft endorsed female genital mutilation (asylum granted by Sixth Circuit, but DOJ litigated against, 2004).

• That the Bush Administration somehow wanted the death of Edgar Chocoy, the Guatemalan teen who escaped a gang with a price on his head, made it to the United States, and claimed asylum. His claim was denied and he was returned to Guatemala. He was shot to death one week later.

And that is only a small sample of the asylum cases either denied or objected to by the US government over the past thirty years. DHS/DOJ routinely denies or opposes asylum claims from those who believe they are going back to situations much worse than the German family. That is their job.

Please don’t get me wrong. Germany is violating peremptory human rights in its denial of homeschooling freedoms, and the family should be granted asylum. But the mere fact that the attorneys at DOJ oppose what they see as an expansion of asylum law--as they routinely oppose situations much worse than this--is no grounds to vilify them.

If anything, the litigation calls into question whether our asylum law is too strict.