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Threading an Un-threadable Needle

Oh, what to do, what to do?

In the decade after 9/11 – and with spiked fervor since the Tea Party came to town on a wave of malcontented-ness cresting in a bad economy archconservatives have been hell-bent on keeping that way –, xenophobia promised great rewards to its sponsors. In the time-honored tradition of right-wing populism, it was easier and politically more profitable to point the finger at an external culprit like the immigrant than to look inward for answers to the social and economic ailments troubling the Homeland. All the more so that a blue state majority had installed the archetypical "other" as president, a bonus target for the same conservative rhetoric. Nothing like killing two birds with one script.

Then somebody from the dark side did the numbers, specifically those generated by analysis of the results of the 2012 general election. This calculation did not require higher math, but simply eyelids set ever so slightly in the up position and the most cursory understanding of word "demography." Obama's margins among people with immigrant affinities – notably Latinos and Asian Americans – were stratospheric, despite the large aggregate number of deportations during Obama's first term. Add to the conservative fright the realization that this group will be expanding its share of the electorate for many cycles to come, and one can quite imagine the looming bankruptcy of the neo-nativist, we-got-here-first political calculus. To top it off, business interests, on and off the farm, were never thrilled with their favorite party's dry-rotted immigration plank smack in the middle of an otherwise sycophantic platform.

My apologies for trafficking in clichés, but the party that wooed its base with the fantasy of ridding the other from its midst (except during harvests, and cleanup from hurricanes and tornados) has found itself wedged between the proverbial rock and a hard place. The GOP has built its base with bricks of hard-baked restrictionism and it risks fracture of its electoral edifice with an about-face on its antagonistic stance toward immigration. On the other hand, if it does not blow some fat kisses in the direction of new Americans, it can kiss their ballots goodbye for a long time to come.

Oh, what to do.

The Senate did not have all that much trouble. Democratic control ensured that the issue would be brought to the floor, and there were enough Republicans around the chamber who felt sufficiently shielded from an immediate Tea Party primary challenge to engage in longer-range thinking about the shift in electoral demographics. Who knows? They may even have been thinking beyond their own parochial prerogatives. For whatever reason, the Senate produced a bipartisan bill that is imperfect in the eyes of many immigration reformists and in some ways fiscally wasteful, yet managed to be a better legislative proposal than many prominent observers expected. In particular, the bill reinstates some measure of judicial discretion in immigration court, a topic I discuss in length in Passaic and the likely subject of a future blog entry.

For the better part of an entire legislative session, the House did what it does best: stall. The majority was, by and large, too cautious to denounce the Senate bill too stridently, except to declare it overly comprehensive (as if that were a flaw), forswear “amnesty” and deliver unsubstantiated bromides about the virtues of addressing immigration issues in bumper-sticker-size chunks. A year later, the House majority has self-righteously foreclosed reference to the Senate bill as a basis for constructing a consensus on immigration reform, circulated a statement of principles that could not have taken more than a few minutes to draft (If it did, we have a real problem), and floated conditions that read like so many prescriptions for poison. To be complete, on January 30, Speaker John Boehner circulated a follow-up "Standards for Immigration Reform" memorandum that does not explicitly articulate all these additional conditions, although it insists vociferously that undocumented immigrants acknowledge guilt before benefiting from the reforms Congress ultimately stipulates. in particular legalized residency.

The single condition that has received the most attention is the refusal to provide a path to citizenship for the undocumented, except for those who arrived as children, the Dreamers. In lieu of citizenship, the House proposes legal residency contingent on the beneficiaries confessing their "culpability." The “no amnesty for lawbreakers” mantra refuses to be drowned out. No matter that drawing this line in the sand is stupidity wrapped in a straightjacketed interpretation of fairness, which posits that the benefits of immigration flow in one direction only. (Nice strawberries you got there, Mister, hope nothing happens to them.) As Columbia University history Professor Mae M. Ngai eloquently pointed out in the New York Times (January 31, 2014, p. A21): "...since the nation's founding, we have always recognized that access to citizenship is the best way to promote social and economic integration, democratic participation and political equality."

The drumbeaten ‘lawbreaker’ label, in particular, is highly deceptive, and advanced to conflate undocumented presence with criminality. According to actual law, this is inaccurate. Undocumented presence in and of itself is a civil infraction akin to defaulting on a contract, not a crime.

Nevertheless, the current chatter around reform suggests that Democrats, representing the pro-reform constituency, will waive the path for citizenship (except, thankfully, for Dreamers), taking comfort in a Pew Research finding that lifting the threat of deportation is more important to those concerned than citizenship. That’s understandable: I’ll take bread and water over starvation, but that does not mean I never want a square meal. And some eminently reasonable people sincerely believe that elimination of the path to citizenship in the immediate incarnation of reform can be easily reversed once the political climate, inspired by the growing influence of Latino voters, allows it. It has also been pointed out by some immigrant advocates, quite rationally, that legalized immigrants can explore avenues to citizenship other than through new legislation, and can do so without the constant threat of removal hanging over them like a sword of Damocles.

So, let’s assume we can swallow that pill in exchange for more pressing articles of reform, and that the idiocy of creating a tier of sub-Americans in our midst will be cured by future legislation or alternative naturalization formulas before it undermines the nation's social fabric, already under assault from economic polarization to name just it. What about the other “principles” emanating from the House leadership? The first giant loophole it proposes is a trigger that requires that 90% of immigrants attempting to cross the border with Mexico illegally be apprehended, leaving open two questions. One, how do you compute 90% of an unknown total? And two, does this mean that the balance of reform is withheld until somebody decides a possibly arbitrary (and unrealistically high) threshold has been crossed? In other words, the trigger mechanism appears designed to allow the House to pass a reform (theoretically pleasing to Latino voters) with no consequences (hence comforting the anti-immigrant base among conservatives). Transparent enough for you?.

But wait! There’s more! Next up in the litany of provisos is the re-classification of civil immigration violations as crimes. Once again, we observe the irrepressible urge of base-wary Republican lawmakers to amp up ostracism toward immigrants in order to soothe the sensitivities of voters whose latent nativism (or we-got-here-first-ism) the Republican Party has nurtured through so many general, state and local election cycles. The habits of reaction that gave us such doozies as Arizona’s “papers please” SB 1070 are apparently hard to reverse. Interestingly, the cruelty of this proposal contains an odd paradox, which I am surprised has not sparked some second thoughts on the part of whoever is advancing this criminalization clause. Although given the intellectual compass of Congress these days perhaps I shouldn't be.

So here is the paradox of criminalization: Under the law, respondents in civil proceedings do not have a Constitutional right to counsel, whereas criminal defendants do. One of the glaring injustices of removal proceedings – among many – is that the people dragged before the immigration courts are, in their majority, either incompetently represented by attorneys they must pay for themselves, or without representation at all. Those who are fortunate enough to be represented by able (and often pro bono) lawyers tend to fare markedly better before immigration judges. Criminalizing civil immigration offenses (as opposed to those that are already deemed criminal, such as presenting false documents or crashing the border) could trigger a couple of interesting effects: the right to counsel enjoyed by those indicted for a crime and appearance before an actual Article III judge. By that I mean a judge who is part of an independent judiciary under Article III of the Constitution, as opposed to one who reports to a boss in the executive branch who can fire him or her. There are scads of other potential repercussions: application of the Eighth Amendment precluding disproportionate punishment, of the Fifth Amendment barring double jeopardy, reasonable bond requirements, long docket delays, etc. Do the authors of this inane “principle” really want to go there?

But wait! There’s STILL more! And I have to believe this one is a crude bargaining ploy and that no one believes it would ever be enacted. The Republican blueprint prescribes that the Federal government empower state and local governments to pass their own immigration enforcement legislation, “consistent” with Federal statutes. Problem: What the hell does “consistent” mean in this context? If prior experience is any guide – for instance Arizona’s SB 1070 and Alabama’s HB 56, neither of which pass Constitutional muster – the purpose of these bills is to mete out stiffer penalties than already prescribed by Federal law while positing, unconvincingly, that the respective state legislatures are merely doing the Federal government’s work for it. The applicable Federal code, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is hardly lenient to start with; in fact, it is remarkably harsh and has imposed immense suffering on immigrant families with seeming whimsy. The idea behind the immigration statutes to have been legislated in several states has been to magnify retribution against undocumented aliens, extend penalties to an assortment of third parties who assist them, deny even the most basic public services, rope state and local agencies, such as schools and hospitals, into the enforcement apparatus, and generally unleash the police on immigrant communities at the whim of local politicians. In short, consistency is in the eye of the beholder.

And here is the other paradox. Federal immigration law, going back over a century, has skirted Constitutional scrutiny thanks to a judicial doctrine called “plenary powers.” The doctrine is unfamiliar to most, quite possibly because it does not originate in the Constitution or any duly legislated statute, but in the expository verbiage of – you guessed it – the Chinese Exclusion Case of 1889! I will have more to say about plenary powers in future posts, but their overarching axiom is that immigration is so tightly entwined with foreign affairs that it must remain the exclusive purview of the Congress and the President without judicial interference. In other words Article III courts should by and large keep their sticky fingers off immigration matters. So, what would happen to that notion if the Congress decided to delegate immigration enforcement to the states? If states, not to mention local governments, were sanctioned to pass their own immigration laws, this would per force override the precept, embedded in plenary powers, that immigration matters reside exclusively with the political branches of the Federal government. And if that is the case, we could welcome our immigration practices to the Constitutional oversight to which they are not currently subjected.

One can always dream.

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