Tuesday, June 03, 2008

The Empathetic Position on Immigration

My colleague, Martin Gutierrez, had an op-ed column published in today's Times-Picayune. Here's the piece in full:

Tuesday, June 03, 2008

Martin Gutierrez

When I was a teenager, close to 30 years ago, my parents were forced to leave the country where we were born for political reasons. Our leaving Nicaragua was a matter of survival and freedom for our family.

During these 30 years, I have lived a fruitful life. I graduated from Chalmette High School, worked my way through college to earn a degree from UNO, purchased a home in Metairie and had a successful banking career. I will always be grateful to my parents for allowing me the opportunity for a better life, and to the United States for allowing me to contribute back to our society.

As executive director of the Hispanic Apostolate Pastoral Services of the Archdiocese, I now find myself asking my fellow American citizens (yes, I am very proud to be a naturalized United States citizen and registered voter) to consider granting others, who are already in our country, a similar opportunity to the one I had.

It makes good sense to reform immigration laws. The system is clearly broken. But the state Legislature is not the place to make the much needed repairs. These complex reforms belong in Washington, D.C.

The Catholic Bishops of Louisiana and Catholic Charities Archdiocese of New Orleans strongly believe in enforcement of the law. We do not condone illegal immigration. We are not in favor of open borders and are not suggesting blanket amnesty, but rather an earned path to citizenship for the deserving among the millions of hard-working, community-minded undocumented individuals and families in this country.

We support requirements to earn legal status including learning the language, undergoing a criminal background check, paying back taxes and paying a penalty. We support putting this group behind others waiting for their applications to be processed.

Imagine for a moment what would happen if these 12 million undocumented residents were suddenly deported, as some have demanded. Many of these people have been living in the United States for decades. They hold jobs, belong to churches, and have children and grandchildren who are native-born U.S. citizens.

These undocumented workers contribute to the U.S. economy and are employed in many sectors that would be severely impacted if they were suddenly no longer here. The Social Security Administration estimates that three-quarters of undocumented immigrants pay payroll taxes which annually contributes $7 billion in Social Security funds that they will never be able to claim and another $1.5 billion to Medicare.

An unintended consequence of deporting millions of undocumented workers would certainly be the potential harm to their children. According to the Pew center, about 3 million American-born children have at least one parent who is an unauthorized immigrant. A 2007 study analyzed the effect of workplace raids, which almost always result in deportation, on children. For every two illegal immigrants apprehended, one child was left behind.

Children should not be punished for the sins of their parents, and families are the cornerstone of society. If 12 million undocumented were suddenly deported, which most believe is economically unsound and logistically impossible, millions of children could be left behind.

What about amnesty? Should all 12 million simply be documented and made legal? The answer is no. As is the case with any large group, there is an element among the undocumented that should be deported. Instead of blanket amnesty, we must advocate for changes at the federal level that would allow for an earned path to citizenship.

Allow the good, productive people who came here fleeing poverty, starvation, violence or political repression to come out of the shadows and become integral members of our communities.

The issues of immigration reform are complex and continue to be debated, but action to reform the laws and fix the system belongs in Washington, not Baton Rouge.
I probably fall out much more on the more liberal side of the issue than Martin does, in the sense that I favor an even easier path to citizenship for undocumented migrants. Martin indicates that no special privileges be given to undocumented migrants in any comprehensive immigration reform program: that they have to pay a penalty for being here without proper documents, that they have to wait at the end of the line, etc. I don't disagree with the spirit behind this position because it is imbued with a sense of fairness and justice; but I'd also prefer that the economic and social contributions a migrant makes to the fabric and wealth of our society, including their contributions to the federal, state, and local treasuries for the taxes that they pay, count for something in terms of a comprehensive reform package. I'd rather that legislators weigh the "negatives" of being undocumented against the "positives" of the contributions undocumented migrants make to our economy and society and craft comprehensive immigration reform more along the "rewards" side of the "path to citizenship" equation rather then the punitive side of it. But I agree 100% with Martin that any immigration reform must be undertaken at the federal level, and not at the local or state level. There are just too many problems and complications with state legislative efforts. It invites more government and competing jurisdictions (not to mention additional costs to the taxpayer) to cloud and muddle even more an already complex and messy immigration system. Why would "good government" advocates desire this? Putting aside any humanitarian arguments in defense of a more liberal immigration policy, and regardless of the competing and opposing positions on the merits of local legislative initiatives, I think it's best to leave immigration reform and border security in the hands of the federal government, where our national constitution locates this responsibility.

Martin raises some very good points that provide an empathetic and dignity-based rationale for comprehensive immigration reform. And while we may disagree on some of the specifics, I think we share a solidarity regarding the way we should be responding: with empathy and respect for the dignity of the human being and the family.

8 comments:

Eric said...

"But I agree 100% with Martin that any immigration reform must be undertaken at the federal level, and not at the local or state level."

I disagree. The Constitution clearly grants the federal government the power to "establish a uniform rule of naturalization", but that in no way legally precludes the individual states from enforcing their own laws pertaining to those who are here illegally, assuming those laws don't contradict federal laws (and I can think of a few legal precedents that could be used to argue for these laws even if they did contradict federal law, but see no need to cross that bridge here and now).

During the Dust Bowl, in response to efforts by California to keep out migratory workers who were U.S. citizens, the Supreme Court ruled that US citizenship carries with it an implied (not explicit) constitutional right to freely traverse interstate borders (Edwards v. People of State of California, 314 U.S. 160 ). I think a valid argument can be made that this ruling implies an inverse corolary that states without citizenship or guest status, illegal immigrants have no such right and are thus subject to local legal jurisdiction, especially at the state level.

Lower federal courts seem to be coming down on both sides of this question, so it will probably take a Supreme Court ruling to provide a uniform legal context for future legislation (you can bet activists are currently looking for an "ideal" case to push through to the Supreme Court). I think you will have a hard time convincing the Supreme Court that states don't have a right to pass and enforce many, if not all, of these controversial laws (although I think the anti-birthright citizenship law I cited in another thread probably wouldn't pass muster).

Aside from the constitutional aspect, I think there is an utilitarian benefit in having the states try implementing different solutions. I am very much a federalist and believe there is value in having the states act as legal laboratories. This helps at the federal level when the government wants to look at which solutions work and which don't, and what types of moral and ethical questions arise in the face of different types of legislation.

Finally, I'd argue that since it is ultimatley the citizens of these states who reap the benefits and/or pay the consequences of these laws, the decision should be left up to them, especially when the federal government steadfastly refuses to do anything. There is mounting evidence that the exodus of illegal immigrants from Oklahoma after we passed our anti-illegal immigrant laws is having a negative effect on the state's otherwise fairly robust economy, and is also pressuring food and livestock prices. If the citizens of the state are willing to live with that, what's the issue? Like many Oklahomans, I'd love to see immigrant labor flood back into the state, but only if it is done legally. Unfortunately, Oklahoma has no Constitutional authority to naturalize citizens, so we can only work on one side of the equation.

Huck said...

Eric - You make some excellent points. Let me just address a couple. First, with regard to your interpretation of the naturalization duties ascribed to the federal government in the Constitution, you indicate that this authority doesn't preclude states from passing legislation to deal with those who aren't naturalized citizens. You then go on to cite a case regarding California's dust bowl anti-migrant legislation as evidence that just because the courts ruled that state level legislation could not deny citizens the right to travel anywhere in the country that one could argue the inverse applies as well: i.e. that non-citizens can have their rights to migrate throughout the country curtailed at the state level by state-level legislation. Your use of the inverse of a positive interpretation of the law in the California dust bowl example calls into question your interpretation of the constitutional question regarding naturalization. I could use the logic of your California dust bowl example to read the constitution's allocation of naturalization (i.e. immigration status) to the federal government as an implicit recognition of the invidivual states' absence of authority in all matters pertaining to immigration status. For it stands to reason that if the federal government has authority over the recognition and awarding of naturalization and immigration status (and all the benefits accrued thereof), it also exercises authority over the prosecution of and restriction of benefits to those who do not obtain federal permission to be in the country.

This leads me to another point. You mentioned that states do not have the possibility to legalize undocumented immigrants because they federal constitution doesn't give them naturalization authority, but yet they do have authority to react to what is essentially a federal responsibility. I have an issue with this on two levels. First, states do not need to be able to "naturalize" an undocumented migrant in order to legalize an immigrant's status. We have in Louisiana some crazy bit of legislation currently working its way through the legislature that allows undocumented migrants essentially the legal right to work in the state if they voluntarily sign up for a biometric identity card issued by the state. Although I think this piece of legislation is ludicrous and unconstitutional for the same reasons that I think other anti-illegal immigrant legislation are ludicrous and unconstitutional, it does indicate some recognition and belies the notion that states, while they may not be able to provide federal legal immigration status, can make alternative accommodations in state law that will tolerate and sanction undocumented workers at the state level. In essence, what this means is nothing short of states deciding to become "sanctuary states." And if you can find legal arguments to defend states' rights to prosecute illegal immigrants, I can find similarly grounded legal arguments in the "states' rights" framework to justify the creation of "sanctuary states."

After all, if Oklahoma wants to bear the costs of running undocumented migrants out of the state economy, why shouldn't Louisiana want to absorb the benefits of welcoming undocumented migrants here?

So, if you are going to make the federalist argument that individual states are so disconnected from one another and from the federal authority that they should have the rights to behave as they see fit regarding undocumented migrants, why would you argue against a notion of sanctuary states or sanctuary cities? Maybe you don't think this way; but I would venture to say that many who use the states' rights arguments to defend their ability to go it alone in one direction would use the "but they're violating federal law" as a justification to deny states the ability to go it alone in another direction.

Finally, I would say that, if we are to believe in the United States of America as a place where there are national interests that sometimes must trump local interests for the benefit of the larger nation, then we must recognize that when what Oklahoma does has a residual effect on its neighbors and the country as a whole, maybe Oklahoma's states' rights are limited and rightfully subject to subordination to the federal authority. This is an argument that anti-gay marriage folks make often: if one state legalizes gay marriage then that will have residual effects on other states who don't (much less the U.S. cultura as a whole), and this justifies the need for a federal marraige amendment to the Constitution.

I've said this to you before and I'll say it again, Eric. It seems to me that your fight should not be running undocumented migrants out of Oklahoma, but rather advocating for a change in the federal law that simply legalizes their status. If it is true, as you say, that many Oklahomans (and you included) would love to see labor flood back into the state, but only if it is legal, then the way to do that is to find avenues to make this labor legal, not what your state is currently doing. It strikes me that your argument is that adhering laws simply as a matter of respect for the law, regardless if the law is bad and unenforceable, is bass-ackwards. When the reality is such that the law is clearly flawed, the attitude should be not just to enforce the flawed law, but to try to change the law to reflect the reality and make it good and productive for us. And I rarely hear anyone from the anti-illegal immigrant side of the debate advocating this position. That's what I don't get about your position, Eric.

Eric said...

"Your use of the inverse of a positive interpretation of the law in the California dust bowl example calls into question your interpretation of the constitutional question regarding naturalization."

I see your point, but would suggest (at risk of wading into legal waters above my head) that in a legal context the disparity could be addressed by appealing to the 10th Amendment. Where the Constitution is concerned, powers not delegtated to the federal government are reserved for the states, so you cannot ever assume or even prove an inverse positive power exists. However, with civil or common law, one might be able to use the inverse of a positive statement to prove or uncover the intent of a law, and infer powers based on that. If the Supreme Court's decision on the cited California case was exclusive to U.S. Citizens (and it was), one has to ask why, and a possible answer could be that the Court believed the Constitution didn't give them the authority to rule outside of that context. Ultimately, it is an issue that requires the Court to clarify the law. All I'm saying is that it isn't a legal "gimme" either way, and in my (admittedly biased) opinion the correct answer leans more towards state's rights than the other way around.

"After all, if Oklahoma wants to bear the costs of running undocumented migrants out of the state economy, why shouldn't Louisiana want to absorb the benefits of welcoming undocumented migrants here?"

I'm sure I am in a minority among anti-illegal immigration people, but I consider this to be an valid argument. In the absence of federal initiative, the people of Louisiana might decide that the financial and social costs of trying to stem the tide of illegal immigration is just too great for not enough return, and that the best course of action is to just let them in. Now the federal government would have two laboratories to look at in terms of deciding what the best federal policy might be. I also find the idea you mentioned of state's documenting their own foreign immigrants to be an interesting concept, but I don't know what purpose it would serve (why would immigrants sign up with the state when they won't do it for the federal government?).

In some areas, such as border security and airport customs, I think federal power trumps state's rights in the name of national security... but overall I think you make a great point here. Unfortunately I think it may have been a rhetorical question.

"Finally, I would say that, if we are to believe in the United States of America as a place where there are national interests that sometimes must trump local interests for the benefit of the larger nation, then we must recognize that when what Oklahoma does has a residual effect on its neighbors and the country as a whole, maybe Oklahoma's states' rights are limited and rightfully subject to subordination to the federal authority."

I absolutely agree with this statement, but I think state's can individualy fight their own illegal immigrant problems without contradicting national interest, especially when we have very little federal guidance on the issue in the first place.

"It seems to me that your fight should not be running undocumented migrants out of Oklahoma, but rather advocating for a change in the federal law that simply legalizes their status."

You wrongly assume that, since I advocate allowing many more foreign immigrants to come here, it means I am OK with giving the people who are already here illegaly a free license to stay. I think that would be extremely unfair to the millions who want to come here but don't out of deference to our laws. I'd love to see those people rewarded for their patient dilligence, while simulaneously driving away those who ignored the law and came anyway, (or at the very least making them go to the "back of the line" while giving the others preferential treatment).

Don_cos said...

I can’t say that I agree 100% with Mr. Gutierrez, but I do find his position acceptable. His view is workable but not complete. The major point that he and most others miss is that it does not address the root cause of illegal immigration. Efforts must be focused on solving the problems that lead people to enter our country illegally. Solving this issue (I know this is a simplistic way of saying it) would solve all the other issues.

What drives me nuts (possibly a short trip), is that I am hearing no one talk about the root cause. Both sides of this issue spend more time fighting with each other rather than doing any real problem solving. Both sides have it wrong to some degree. But if both sides would work together to excise the cancer at its source, then they will have accomplished something worthwhile.

Huck said...

Ultimately, it is an issue that requires the Court to clarify the law. All I'm saying is that it isn't a legal "gimme" either way

That's a fair point, Eric. One, I can readily agree with.

I'm sure I am in a minority among anti-illegal immigration people, but I consider this to be an valid argument.

I give you credit for consistency here, Eric. However, the fact that even you recognize that you are in the minority here underlies an implicit recognition that what is driving the debate on the anti-illegal immigrant side, especially behind state legislative initiatives like the ones we're discussing, is not the question of "states rights" but really one of simply deep-seated and personal antipathy towards illegal immigrants. I don't know if you would agree with me on this point; but that's at least how I see it.

You wrongly assume that, since I advocate allowing many more foreign immigrants to come here, it means I am OK with giving the people who are already here illegaly a free license to stay.

No, Eric, I didn't specify what particular legislative changes would suffice to address the problem, only that your fight should be as much on the proactive side of crafting legislation at the federal level to deal with the country's need for migrant labor. I wouldn't assume that you would argue for a "free license to stay" but one which "legalizes their status." This may include comprehensive immigration reform of the kind that Martin supports, or it may include more restrictive measures. But it just makes sense that the common-sense solution you should be fighting for is not to cut off your nose in spite of your face, but to do some reconstructive surgery on the face that allows you to keep the nose and solve to problem leading you to want to cut it off in the first place.

Huck said...

don_cos: You are aboslutely right. I agree. We do spend too much time talking about and tinkering with the outcomes, but so little time and energy addressing the root causes of it. I think we should do more on this front. That means helping foreign economies to grow and thrive so that people can get jobs and make livings in their own countries. But the problem with this (and maybe why we spend so little time on this) is that there's not much we can do about problems in other countries. Our ability to solve other countries' maladies only goes so far, and so the tendency is to focus on what we can accomplish at home rather than what seems impossible to accomplish abroad. Even still, though, you are right that we should pay more attention to the root causes and at least try to make the effort there.

Don_cos said...

”Our ability to solve other countries' maladies only goes so far” ~ Huck

Our ability to solve our own countries' maladies only goes so far also. To be blunt, Mexico is the biggest problem here. This is not to say that we don’t get illegal immigrant from other places also, but Mexico definitely leads the crowd. So here we sit, a huge superpower nation, right next door. In reality we probably have more ability to affect Mexico (in a positive manner) then we have with any other country in the world. Yet we are not even giving it a serious try.

Frankly I have no issues with Mexicans in the US. Mexican culture has had a major impact on the US culture. They are a part of us that I would not try to purge. But I do not want those parts of Mexico that drive its people to flee. The problem needs fixing for more reasons than I could list in a short conversation, but it will never get fixed with bubble gum and duct tape tactics that we have been trying.

We need to look at this as if we were the big brother and Mexico was the little brother. We can and should help him succeed.

Eric said...

"...your fight should be as much on the proactive side of crafting legislation at the federal level to deal with the country's need for migrant labor."

I typed up a response to this the other day, but just realized it never posted.

Just so you'll know... I generally don't fight for this issue one way or another. I have my opinions about immigration law and what solutions I'd like to see implemented, but this is way down towards the bottom of the list on issues that can sway my vote, my financial contributions, and my personal endorsements.

A politician like Tom Tancredo who has a great record on fiscal policy and limited government (my top two issues), but who I strongly disagree with on immigration, could still get my vote (Tanc is not from my state... just using him as an example). Likewise, a politicain like Obama who is more agreeable with me on immigration (offer a citizenship pathway to immigrants already here, but only after they "pay a fine, learn English, and go to the back of the line") could easily lose my vote over issues I deem more important.

It just isn't an issue that tends to guide my voting habits.