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.