August 26th, 2010

The Conservative Immigration Schism

Doug Gibson, opinion editor for the the Standard-Examiner, recently interviewed me for a column on the topic of immigration. His article, "Conservatives disagree sharply over immigration reform", highlights what he refers to as “one of the most underreported stories”.

The four questions I was asked, including my replies (far more lengthy, of course, than can be included in a column) follow below:

Why is the Arizona law in violation of conservative principles?

What are conservative principles? They’re often referred to but not too often defined, especially when their application to a controversial issue might cause the serious thinker to question his/her position. As I see it, conservative principles that relate to immigration include: limited, constitutional government; free enterprise, free association, and freedom to contract; a firm regard for the individual rights of all God’s children; and a proper respect for private property.

Supporters of Arizona’s law (and the imitation laws springing up in several other states, including Utah, courtesy of Representative Sandstrom) are quick to say that it merely enforces federal law. Thus, the question is not so much why Arizona’s law violates the above-mentioned principles, but why federal immigration laws run afoul of them.

Our current immigration laws are a violation of the Constitution. Nowhere did the states delegate to the federal government the authority to regulate and restrict the migration of individuals who pose no threat to others’ rights. The federal government has been given authority over naturalization (which is citizenship), and rightly so. But since the late 1800s, the federal government, supported in at every turn by a compliant Supreme Court, has arrogated to itself the authority; when challenged, its supporters have pointed to no less than five areas in the Constitution for support — each one problematic and rebuttable. If the states meant to delegate this authority, they would have explicitly done so. Barring a constitutional amendment doing just that, the states retain the authority to manage immigration, just as they once did for the first century of America’s existence. Federal immigration laws being thus unconstitutional, any state that relies upon them violates constitutional principles as well.

With immigration laws targeting employers as a means to somehow discourage “illegal immigration” (and ignoring the unintended consequence of an increase in identity fraud to circumvent the onerous laws), free enterprise, association, and contract go out the window. If I want to hire an individual for a lower wage, be he uneducated, a teenager, or a Mexican, why should the law intervene? I have harmed nobody, and only seek to use my money and property as I please to engage in moral, lawful, and mutually-voluntary commerce. Protectionists often argue that this “steals” jobs from Americans and depresses wages, but principled conservatives must reject such arguments since technology and teenagers do the very same thing. Nobody complains when groceries are made more affordable and computer costs go down. An increase in efficiency and reduction in price are laudable goals, especially when we secure free enterprise and the right to contract in the process.

As it relates to individual rights, our immigration laws pay little to no concern. Somehow limited-government conservatives have come to embrace a huge bureaucratic apparatus which has the power to separate families, deport peaceful, productive individuals, and drown would-be immigrants in a sea of red tape, long lines, and processing fees. If we conservatives truly believe that our Creator has endowed every person with unalienable rights, we would do well to ponder just how that applies to immigration. While it’s certainly reasonable that we exclude individuals who have communicable diseases or a criminal record, it makes no sense why peaceful people should not be welcomed with open arms to the supposed land of the free. We claim to enjoy the right to life, liberty, and the pursuit of happiness, but in the past century have appended a disclaimer to those individual rights, that they are now “subject to the dictates of burdensome processes and bureaucratic control.”

Finally, our immigration laws violate property rights. Some seem to see the United States of America as property owner over all land within its boundaries, and thus the government should be empowered, they say, to regulate the residence and travel of those within its borders. This argument is completely fallacious; with the exception of the eminent domain power, the government only has jurisdictional, rather than sovereign control over land owned by private individuals. If I choose to rent my basement out to a friend from Honduras, and if he obtains employment with a business owner who voluntarily consents to the arrangement, my friend’s residence in and travel through land under the jurisdiction of our government not only does not violate anybody’s rights, but rather is a corollary to the private property rights the business owner and I have. It is simply amazing to watch conservatives, who champion private property in regards to many other issues, consent to the government having sovereign control over every piece of property within its borders simply to manage the travel, residence, and existence of individuals deemed by the government to be non-compliant.

The intent of Arizona’s law, as it declares in its opening paragraph, is the “enforcement of federal immigration laws”—laws which are unconstitutional, illegitimate, and destructive to individual liberty. On many fronts, these laws violate the very principles conservatives cling to (just so long as their jobs and social welfare programs remain untouched).

Explain why the federal government cannot act on immigration unless it is given power to do so by the states?

The 10th amendment to the U.S. Constitution has recently reached celebrity status, its name being referenced repeatedly by conservative political activists opposing the federal government’s continual encroachment on state powers. That amendment reads: “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.”

The authority to manage immigration was never delegated to the federal government, and was thus properly exercised by the states for the first century of America’s existence. Since that time, supporters of federal involvement in immigration have pointed to the naturalization clause, commerce clause, the power to repel invasions, and America’s supposed power as a sovereign country for support of that authority. One would think, though, that if the Founders intended to delegate this authority, they would have done so in plain and direct language. Instead, we find repeated examples in the Federalist Papers, State Nominating Conventions, and other colonial-era political literature rebutting each of these loose interpretations, and affirming that immigration was an authority not delegated to the federal government, and therefore left to each state.

Many might argue that immigration is inherently a federal issue, and in some cases this makes perfect sense. A conservative response to this argument, however, would require a constitutional amendment be passed in order that the authority might be properly delegated to the federal government.

Why, in your opinion, do you think other conservatives are misreading the Constitution on this issue?

Whether others are “misreading” or simply “not reading” the Constitution in regards to the federal government’s authority to control immigration, I can’t say. I myself just months ago was of the belief that it was a federal power, until I spent hours poring over research and arguments explaining what I now have come to realize. Having so recently been of a similar mindset, I think I can speak with a fair amount of certainty when I say that other conservatives who support these immigration laws do so because they produce a desired outcome. That desired outcome is the same one that encouraged the labor unions to lobby for the very first federal immigration laws in the late 1800s: protectionism. In that day, a large influx of Chinese workers to California was seen as a direct threat to the higher earnings of “natives” working on the Transcontinental Railroad project and mining for gold. The natives protested when they were fired, or their income was reduced, as a result of this competition. The first California state and federal laws passed in regards to immigration targeted specific ethnic groups who were an economic threat, such as the (federal) Chinese Exclusion Act of 1882.

In our day, you can’t go to a single illegal immigration protest without hearing complaints of depressed wages, lost jobs, and other economic hardship resulting from immigrants “stealing” American jobs. Conservatives who today support federal immigration law are largely protectionists who see the influx of immigrants as an economic threat. Other arguments exist, such as violence, social welfare usage, and a failure to assimilate, but while these are also insufficient reasons to support such draconian immigration restrictions, the core argument that American jobs are somehow “stolen” as a result of laborers who are willing to work for less money is fallacious and incompatible with the conservative principles previously mentioned.

In short, I believe that many conservatives have become constitutionalists of convenience, raising the document to the air with a fist when opposing a program or policy they detest, but failing to apply that same rigor to other policies that produce an outcome they find favorable. This is disingenuousness at best, and hypocrisy at worst.

You advocate amnesty as the proper position to take for those who follow the Constitution. What is the response you usually get from the average Republicans?

The amnesty I advocate is only for the non-compliance with unconstitutional immigration laws. Any individual who has committed an actual crime where another person’s rights have been infringed, such as vandalism, rape, identity fraud, etc., should be prosecuted just as any American should. Put in that context, my call for amnesty is simply advocacy for refusing to comply with unconstitutional laws—a message that is both familiar and popular in conservative circles, whether it relates to health care, cap and trade, REAL ID, or other blatantly unconstitutional federal laws.

Once I clarify what I mean by amnesty, the usual reaction I get calms from a knee-jerk protest to “amnesty” (a buzzword many conservatives despise) to a more reasonable discussion about the underlying issue: are federal immigration laws constitutional? Some agree, others do not, but the message of resistance to unconstitutional laws—whether through court challenges, changes at the ballot box, or nullification—gets a very good reception by Utah Republicans in our current political climate.

6 Responses to “The Conservative Immigration Schism”

  1. Kelly W.
    August 26, 2010 at 9:25 pm #

    Doug Gibson is NOT a journalist in any sense of the word. He is only a “journalist” because he has a job at the Standard Examiner.

    After some personal email exchanges with him (which emails I have saved on my computer), he admitted to me that his own personal views do not match the “views” he publishes in the newspaper. He told me that “journalism” is not looking for facts or the truth anymore, that it instead is more about “gatekeeping and writing articles that conform themselves to their perceived audience, in order to keep advertising dollars flowing.” (Yes, he actually used the word gatekeeping!)

    Doug told me that he in fact agreed with me, but was writing the opposing view anyway.

    By the way, the reason I was even emailing Doug in the first place was his insulting remarks on Ron Paul.

  2. Clumpy
    August 27, 2010 at 7:51 am #

    I don’t trust anybody who thinks illegal immigration is one of the greatest issues our country is facing. I honestly just can’t get people like Bradley, who feel we have a brown wave of terror and desolation coming over our lower border.

    I do agree that it’s protectionism at best, though feel that in drawing a distinction between intellectual, informed conservatives (like the sadly-departed Bill Buckley who felt his party slide out from under him) and the mainstream Right xenophobia, groupthink and sheer self-righteousness become major factors here. If we were to call speeders “illegal drivers” and impound their cars under the justification “they broke the law,” right-thinking people would balk despite the clear danger they represent by their behavior. Yet people “breaking the law” for the best of reasons draw our ire.

    Despite the fact that by and large their standard of living remains far below ours, we’re expected to believe that “these people” are parasites on our system, entitled to nothing America provides while performing some of the lowest-paying work our country has at still-bargain wages. In the end I think it’s a consequence of tribalism, our determination to separate the category of “us” from outsiders who are different from us. Think about all the tribalistic propaganda we’re supposed to swallow from our media every time an opportunity to squash the little guy comes up (immigration, the Islamic community center, etc.) and the picture becomes more clear.

  3. Mark D.
    August 29, 2010 at 9:23 pm #

    Connor B, I think you have just made the libertarian case for unrestricted immigration. It has little to do with the predominant conservative position on the subject, which is based on the principles of national sovereignty, the incompatibility of open borders with any kind of welfare state (public schools and hospital care included), and the right of current citizens to regulate the flow of immigration up or down to keep the country from culturally, politically, and linguistically fracturing into a group of warring factions.

    The states rights argument for immigration control is interesting, but the practicalities of regulating immigration on a state by state basis are such that the authority to establish a common immigration policy would probably be ceded to the federal government anyway, by constitutional amendment if necessary.

    It is like the Civil Rights Act of 1964 could be argued to be unconstitutional. But does anyone doubt that if it was, that a constitutional amendment to accomplish the same thing would not soon follow?

  4. Mark D.
    August 29, 2010 at 9:31 pm #

    In addition, your argument against the Arizona legislation seems specious for the reason that Arizona would pass its own, essentially identical restrictions which would have the same substantive effect, with the same objective and motivation, to say nothing of the fact that your legal position would give them considerably greater freedom to do so than they have now.

  5. SpecKK
    August 31, 2010 at 3:55 pm #

    I’m curious how we could implement a state by state immigration policy that adequately establishes identity and origin to catch international criminals and terrorists. I think this requires some form of registry and positive identification for non-naturalized residents. I also think such people need to be integrated and naturalized over time to protect their rights and their communities.

    The Times Square bomber was a naturalized citizen, and even if we could fix our foreign/economic/drug/immigration policy, there would still be groups that seek to destabilize our institutions.

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  1. Looking at “Signing Unconstitutional Laws” by William Baude (part 2) « What they didn't teach in law school - September 8, 2010

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