The Immigration Crisis and the Rule of Law

Dr. C. Norman Farley examines the issue of immigration, the rule of law, and the search for solutions.

Illustration: Compiled from DepositPhotos.com

By Dr. Norman Farley

In his recent book, The Case Against the Supreme Court (Penguin, 2014), Erwin Chemerinsky, Dean of the University of Irvine School of Law described how the Constitution of the United States was intended by the founders to be “very difficult to alter” as a means of “preventing tyranny of the majority” and “of protecting the rights of the minority from oppression by social majorities.” When it comes down to it, the primary purpose of the Supreme Court, he writes, “is to enforce the Constitution against the will of the majority.”

Although some scholars dispute his logic regarding the primary purpose of the Court, one thing that is clear is that the Constitution is, in fact, “very difficult to alter” despite the best efforts of the Executive Branch through its myriad executive orders and signing memoranda, Congress through laws that explore the contours of power, and even decisions of the Judicial Branch that some claim verge on legislating from the bench.

As highlighted by candidates vying for the Presidency in advance of the 2016 election, the issue of immigrants illegally crossing the border is a key area of contention. In February 2015, Texas Governor Greg Abbot told CBS’s “Face the Nation” that “since January 1 [2015], we have had more than 20,000 people come across the border, apprehended, unauthorized.” Governor Abbot blamed it on Congress’ failure to act on the issue of the “open border.” This is an issue that has also affected other states along the United States – Mexico border and Texas and Arizona have passed state-level legislation designed to address the issue even though the Federal government claims such attempts violate Federal law.

The issue of immigration, including illegal immigration, has always been a national issue which included efforts such as the development of Ellis Island.  As President Bill Clinton noted in his State of the Union Address in 1996, “We should honor every legal immigrant here working hard to become a new citizen, but we are also a nation of laws.”

Despite his reference to the “nation of laws,” President Clinton, like other presidents from both parties, failed to take tangible steps to address the issue and when he left office there were 7 million immigrants residing illegally in the United States. It is now estimated, according to a January 2005 report by the Wall Street financial firm Bear Stearns, that there are more than 20 million living in the U.S., and this is the outcome of the fact that for the past few decades, elected politicians have been afraid to address the issue and have kicked the can down the road.

Of the undocumented immigrants currently in the United States, the majority would qualify for President Barack Obama’s “deferred deportation action” which is an increase from the estimated five million who were initially expected to qualify under an executive action, according to Paul Babeu, Sheriff of Pinal County, Arizona. Babeu based this on President Obama’s statement that, “if you’ve been here five years or more, there will be deferred action, that you’ll be given a work permit, a driver’s license, all access to our social programs”, Babeu explained. “But [current U.S. Secretary of Homeland Security] Jeh Johnson, the very same day, put out a memo directed to all 23 agencies under the Department of Homeland Security saying that any illegals that have been here this year as of January of 2014, are entitled to this deferred action.”

So, testing Professor Chermerinsky’s statement about the limitation of the “tyranny of the majority” by the imposition of the Court, what percentage of the population supports the Executive Branch’s thinking on the issue?

According to an April 21, 2015 Rasmussen poll report, 56% of likely U.S.  voters opposed the president’s plan to allow illegal immigrants to remain in the country legally and to apply for jobs. Thirty-five percent (35%) favored the plan.

As to presidential authority, only 25% believed the President had legal authority to do so without the approval of Congress, with 59% believing he did not have the power and 15% were not sure.

The President went ahead and submitted a plan via executive order on November 20, 2014, entitled, “Deferred Action for Parents of Americans and Lawful Permanent Residents” which would have offered work permits, drivers’ licenses, Medicare and Social Security to 5 million illegals who have children with citizenship or green cards, while claiming that the plan would deport felons and require some to pass criminal background checks and pay taxes in order to remain in the United States.

By putting it in the form of an executive order, President Obama thought he could claim that he was not violating the Constitution or the “rule of law” despite the fact that it would have allowed millions to gain citizenship without the approval of Congress.

On February 16, 2015, U.S. District Judge Andrew S. Hanen, a federal judge in Texas, in response to a lawsuit filed by 26 states, issued an order temporarily blocking Obama’s immigration orders. The judge did not rule on whether Obama’s order was legal, but said there was sufficient merit to a challenge to warrant a suspension while the case moves forward.

Compassion v. Jobs

There is a great push in Christian churches to welcome the poor and support amnesty. This is particularly true of the Catholic Church and an increasing number of Protestant churches. If we give heed to the teachings of Jesus we can embrace the conclusion that as Christians we have an obligation to help the “widow, orphan, the stranger, and the poor” (Zechariah 7:10).

Many honest citizens believe that their job isn’t to judge why or how people got here, but that they must show compassion. I think both  Democrats and Republicans, Moderates,  and Independents, and Christians in general, can get behind the idea that separating families and deporting parents while their children are placed in the foster care system is not necessarily the best or only approach.

This view is based on Christian values, not rhetoric. But when it comes to their own jobs, the vast majority of those polled, 73%, say that employers should focus on recruiting and training Americans from high unemployment groups rather than recruiting immigrant workers. (Pulse Opinion, August 2013)

So the question arises – are Evangelicals who oppose amnesty considered non-believing, greedy and out of touch with the message of Jesus or do they look at compassion thru a different lens?

A Kaiser Family Foundation study, entitled, “Long term unemployment: A study by Kaiser Family Foundation, NPR” gives some insights into the plight of American citizens lacking education,  out of work, those who  have lost a job and have given up looking, or older citizens who live on social security and cannot find a job or pay their bills. This segment of the population represents an astounding percent of the American population. There is also another significant portion of the population that “live in poverty” (CNSNews.com).  One in five young adults – ages 18 to 34 years old – live in poverty, according to data from the U.S. Census Bureau. “More millennials are living in poverty today and have lower rates of employment, compared with their counterparts in 1980,” the Census states. “One in five young adults lives in poverty (13.5 million people), up from one in seven (8.4 million people) in 1980.”

This dilemma invites citizens to carefully consider our accountability to the 20 million undocumented immigrants who live in our nation. Many believe that those who live in the United States illegally carry more than their financial burden and in fact benefit society financially. While some do enrich the United States financially, many cannot do so despite their desire. Many send most of their earnings out of the country to support family members, and the financial contribution of children may only come to fruition in 18 or more years.

A study of the financial balance sheet of our nation becomes necessary to ascertain how many immigrants can be added to our social system, while we still have compassion on ourselves and our families. This is an issue of compassion, but also a question of resource availability and the maintenance of the quality of life that makes living in the United States a goal for so many around the world.

The current situation where people can easily cross the border has created a desperate situation where some employers knowingly hire illegal immigrants knowing that they can pay extremely low wages and threaten them with deportation if they insist on receiving their rightful benefits. It also places a tremendous burden on the nation when these people are denied health benefits or require welfare because they are not paid living wages. What we have now is a two-tier system of citizenship – and many are content to leave it this way because, quite frankly, it creates a shadow economy and facilitates a modern form of slavery. This speaks to extremely unethical business practices and bad business.

Approaches to the Issue

I have proposed the following approaches which consisted of entry points to begin to solve the outstanding Immigrant issues according to the “Rule of Law.”

1. Any fix needs to resolve the issue of controlling the borders.
2. Any fix needs to be in harmony with the law. Congress makes law – the president/executive branch administrates and puts into action the programs defined by laws. Because of the growing executive power, Congress now only partially defines immigration policy it does however control the funding. Congress needs to re-establish its constitutional authority in this area.
3. Any fix needs a budget/funding plan by the Federal Government. The burden should not be shifted to the states.
4. Any fix needs to assure that we are not creating a segregated society by default.
5. Because a common language is the key to success in society, immigrants should be taught English, complete classes in core concepts of capitalism versus socialism, and pass a Constitutional exam.
6. Any fix needs to screen out those who have criminal records.
7. These are beginning basic elements and more structure will need to be invented to thoughtfully resolve a 25 year issue.

Issue Isn’t Aligned With Political Ideology

However, in my recent research, there are challenges which could make it difficult for a legally sustainable solution to the problem.

There is no question that going into the 2016 election, the Republican party is in disarray over this issue.  But there is as much division between progressives. Bernie Sanders appears to be gaining new excitement on the left wing of the Democrat party while traditional conservatives, like John Boehner, are being edged out by the Tea Party.

The passage and implementation of the Affordable Care Act is an example of the inability of Congress to act independent of the Executive Branch. Despite several years of rhetorical animus, it appears that both parties have either strongly committed to support, or have decided not to contest the Affordable Care Act, which was largely a secret bill even when it was voted on by Congress. Many Conservatives have come to the conclusion that they can at best amend, but never nullify, the Affordable Care Act. It may be too big to defeat at this stage with a 1.1 trillion dollar budget, currently funded by both houses, and signed by the President and its continued long standing may give it permanency. This equation must also factor in that numerous states have sued because they believe the ACA affects state rights by requiring the states to spend tremendous sums of money to advance it, and should be interesting to see how the Supreme Court will deal with these issues. The ACA has already been declared a “tax” by the Supreme Court.

Despite the rhetoric, and the fact that Donald Trump has made the border a centerpiece of his presidential campaign, even though there is overwhelming national support to secure the borders, it may never happen.

Why? Calls to secure the border are largely redundant. There is existing law that already secures the borders that is largely ignored. A new law that is not funded and actively supported will similarly remain ineffective. With the exception of Trump and the Tea Party, both parties seem to silently agree to a continued non-secure and sometimes open border.

At the Aspen Institute’s “Washington Ideas  Forum,” on October 29, 2014, Defense Secretary Chuck Hagel essentially admitted the reason why the border issue will not be resolved. He  stated, “This is a time of great global transformation. We are seeing essentially a new world order evolving and being built. I don’t think we’ve seen such a time since right after World War II.”

Sure enough, on September 25, 2015, the member nations of the UN, with the encouragement of Pope Francis who addressed the nations that morning, approved the 2030 Agenda for Sustainable Development which is supposed to “free the human race from the tyranny of poverty and want and to heal and secure our planet.”

The document discusses immigration, or migration as it is referred to in the rest of the world. “We recognize the positive contribution of migrants for inclusive growth and sustainable development. We also recognize that international migration is a multi-dimensional reality of major relevance for the development of countries of origin, transit and destination, which requires coherent and comprehensive responses. We will cooperate internationally to ensure safe, orderly and regular migration involving full respect for human rights and the humane treatment of migrants regardless of migration status, of refugees and of displaced persons. Such cooperation should also strengthen the resilience of communities hosting refugees, particularly in developing countries. We underline the right of migrants to return to their country of citizenship, and recall that States must ensure that their returning nationals are duly received.”

The 2030 Agenda will one day be seen as one of the founding documents of the New World Order, and through it, the nations of the world recognize and support open borders and movement of populations around the world. Many who support movements from places of poverty to wealthier nations believe that this demonstrates Christian compassion.

Historically, no nation has survived that has not defined and defended its borders. Rome lost its empire because it failed to defend its border against the Visigoths and Vandals. There is an equally sociological reason why borders are mandatory.  Conflict between nations is not always the reason wars are fought. I would propose that many wars are fought because of incompatible ideologies. A possible example of why open borders never solve disputes is the American Civil War which was fought over ideology. Another such instance, in a more recent event, would be the Northern and Southern Kenyan conflict, and the most recent conflict supporting this hypothesis is the Sunni and Shiite war in Iraq, which culminated into the rise of the ISIS state after Iraq was dismantled.

A paper published in connection with the work of the Global Commission on International Migration, entitled “Migration without borders: an investigation into the free movement of people”, by Antoine Pécoud and Paul de Guchteneire, discusses a global scenario under which, as a fundamental human right, people would be entitled to move freely throughout the world without encountering national border controls. “In a globalized world, movement of people is not an anomaly to be exceptionally tolerated; it is a normal process embedded in socio-economic structures as well as in migrants’ transnational lives and identities,” the authors concluded.

While the paper represents its authors’ own views and not those of the Commission, it should be noted that it stemmed from UNESCO’s section on International Migration which had launched a research project investigating free global migratory flows without border constraints. What has developed with the migration of millions of Muslims to European nations without borders is the fulfillment of the U.N. policy.

A paper written by Joseph Klein, titled. “The Global Commissions on International Migration”  and “The United Nations and Immigration Policy” addresses an issue.

“We are witnessing the familiar pattern at the UN of creating more layers of bureaucracy, requiring more funding – all to issue more recommendations about an issue that belongs within the province of each country to decide for itself. It is up to our own elected representatives to listen to their constituents and then come up with constructive answers to their concerns. The American people – not some global commission or UN forum – must ultimately decide whether the melting pot that defined the assimilation of earlier generations of immigrants into American society is in danger of becoming a multicultural patchwork of linguistically isolated mini-societies. The treatment of foreign nationals who want to live here and partake of the American dream of economic opportunity is also an issue for the American people to decide for themselves. The fact that other countries are effectively dumping their economic problems on us by not addressing the conditions that drive their people to leave does not turn the consequences for our nation into a matter for global forums to resolve.” (Emphasis added.)

The immigration issue has become even more desperate as hundreds of thousands are seeking to flee Syria and Iraq as ISIS terrorists are engaged in the unmitigated eradication of Christianity and dissident forms of Islam throughout the Middle East by killing and torturing men, women, and children in the worst ways imaginable.

The movement of Russian troops into the region in support of al-Assad against other rebel groups and the uncertainty surrounding Iran’s development of nuclear weapons makes the region extremely unstable and it is completely understandable that there are people seeking to flee for their lives. A noble effort must be made to rescue as many of those who are being persecuted for their religious beliefs, including Christians which have been largely ignored by the West, as quickly as possible.  If Congress needs to act on Immigration, it should be to extend asylum for those facing imminent death if they remain.

Conclusion

The Bill of Rights and the Constitution are uniquely American documents that have withstood severe challenges for the past 240 years. But the New World Order as expressed in the 2030 Agenda for Sustainable Development has no room for individual rights. Instead, it prefers a modified Democracy with social support for all citizens worldwide as far as possible. It looks to the socialized nations of Europe as outstanding models and encourages people and nations to set aside their own goals in favor of the “Common Good,” a favorite phrase of Pope Francis when he addressed Congress in September 2015. It dispenses with the capitalist system.

“Politics is, instead, an expression of our compelling need to live as one, in order to build as one the greatest common good: that of a community which sacrifices particular interests in order to share, in justice and peace, its goods, its interests, its social life. I do not underestimate the difficulty that this involves, but I encourage you in this effort,” Pope Francis said.

Now, I’m not advocating that Christians should be selfish and I’m not arguing that capitalism is a perfect system, or the world’s sole system of value. But capitalism is the system that was built on the Protestant work ethic, Freedom of Conscience, Individual Rights and the “Rule of Law.”

Despite those who decry the American economic system, it is the system that has done more to support and fund freedom more than any other nation in the world, and it is this system that makes America so attractive to so many of the world’s citizens who clamor to enter its borders, legally or not.

This is a nation, free and governed by law not by the capricious whims of leaders. It’s why we have been called the “land of the free,” and what will keep us free in the future. We especially endorse the U.S. Constitution because the Bill of Rights guarantees Individual Rights, Freedom of Conscience, Speech, and Religion.

We need to resolve the immigration issue, and to simultaneously protect those values which have led to our national success.

C. Norman Farley, PhD – President Emeritus, North American Religious Liberty Association – West