Open Forum

Not everyone is flocking to our shores and borders, despite what Lou Dobbs and Tom Tancredo say. The fact is that 98 percent of the world’s people are “stayers,” content (more or less) to live and die where they were born.

But immigration law is about fear, not facts. Prior to the 1870s, we had no immigration law at all—de facto “open borders.” Then we began to bar criminals, prostitutes and the Chinese (the Chinese Exclusion Act lasted until 1943), and in the 1920s we enacted, for the first time, numerical quotas.

Those numerical quotas were asmuch out of whack then as they are today with respect to the way real people live, love, work, study, and travel. And that out-of-whackness creates, by legislative fiat, the “illegal alien” phenomenon. We could, with the stroke of a pen, adjust the quotas and the categories to make them objectively rational, or close to it, thus “solving” the immigration “problem.” But we seem to prefer to have an enemy, and aliens are as good as we’re going to get these days, what with slavery being over, women having the vote, Native Americans having been nearly wiped out, and the Russians having been defeated in the Cold War.

While we seem to have learned something from our failed experiment with Prohibition (we now tax and regulate nicotine and alcohol rather than ban them, even though they kill millions of Americans yearly), our immigration policy nevertheless follows the Prohibition model, as well as the unfathomably senseless “War on Drugs” model. Current immigration law is so restrictive that it is almost—but not quite—useless. It does provide full employment for more than 10,000 immigration attorneys nationwide, hundreds (if not thousands) of notarios who rip off the hapless, citizen and alien alike, and tens of thousands of federal bureaucrats—many of them packing guns—in the three agencies “guarding” the border: USCIS, CBP and ICE (for the uninitiated, Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement, respectively).

Going beneath the surface reveals three startling propositions: Our current immigration law is illegal, immoral, and impractical.

Illegal: There is nothing in the Constitution about visas, immigration, or border control. (Citizenship and naturalization are mentioned, but those are legally and logically separate matters.) Our immigration laws were made up out of whole cloth, based on a fuzzy “sovereignty” or “inherent powers” model (and we’ve seen how successful the “inherent powers” gambit has been for President Bush in the foreign affairs arena). Indeed, one U.S. Supreme Court justice wrote in 1893:

It is said that the power here asserted [deportation] is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers—ours is fixed and bounded by a written Constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this Constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely as it seems to me, they gave to this government no general power to banish.

Immoral: Over time and through the trauma of a bloody Civil War, we determined it is wrong to discriminate on the basis of something one cannot change, such as race. We’ve expanded that notion to gender and religion. But our immigration laws discriminate by design on account of an immutable characteristic – place of birth. In time, I hope, we’ll come to consider “birthplace discrimination” as noxious as racial discrimination.

Impractical: As Arizona Gov. Janet Napolitano said, “Show me a 50-foot wall, and I’ll show you a 51-foot ladder.” ‘Nuff said.

In July 2004 I wrote that successful comprehensive immigration reform will require a “perfect legislative storm,” including the following elements: presidential leadership willing to stand up to the restrictionist Right; congressional compromise demonstrating a preference for action and results over posturing; and an educated public willing to accept a more rational immigration system as the price for abolishing what is, in effect, a national “plantation” system, with 12 million to 20 million human beings acting as our less-than-equal servants.

Despite the recent marches and the flurry of activity in the House and Senate, I see nothing to indicate we are anywhere close to the goal: President Bush tepidly promotes his “guest worker” program and nothing more; the House bill makes felons of millions of hardworking immigrants, their families, lawyers, and religious leaders; the Senate is bogged down in procedural quicksand; and the public is torn between instinctive support for “good” aliens (the neighbor, the relative, the nanny, the gardener, the construction worker down the block) and Dobbsian frenzy against the “bad” aliens who are “stealing our jobs.”

Force equals mass times acceleration. That much we remember from high school Newtonian physics. But we are in quantum physics land when dealing with immigration: What is the moral force of hundreds of thousands marching in the streets for the right to work to feed their families? What is the moral mass of religious leaders willing to go to jail rather than snitch on their undocumented parishioners? What is the moral acceleration of a country seemingly determined to bankrupt itself to build walls on both borders, and station National Identity cops in every hiring hall, school, and hospital to keep out the undocumented?

You can sum up American immigration law this way: There’s us, and there’s them. They’re different, and we’re better. It’s an old, old story, older than Serbs vs. Croats, older than Hatfields vs. McCoys, older than Capulets vs. Montagues. It goes back to the biblical scapegoat, to the sacrificial vestal virgins, and the like: Let’s take our fears and put them on someone or something else, and then kill it or run it out of town. Then we’ll be safe.

Feel safer now?

Dan Kowalski, an Austin immigration attorney, edits the online daily news Web site, Bender’s Immigration Bulletin Daily Edition: www.bibdaily.com.