We constantly hear that undocumented immigrants are not obeying the “rule of law” or that because we are “country of laws” undocumented immigrants need to be arrested and deported regardless of their situation and the consequences to either them or the U.S. These phrases are thrown about randomly because they surely sound good. Who does not want to live in a “country of laws” where we are governed by the “rule of law?” But an understanding of the concept of the “rule of law” in the context of the U.S. immigration system might better serve our national debate on immigration and bring us closer to resolving a problem that is not intractable.
James Wilson said during the Philadelphia Convention in 1787 that, “Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” George Mason agreed that judges “could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course.”
We are left with a conundrum on the “rule of law.” Does it mean that we are to enforce all laws, regardless of their deleterious effect? Because that is exactly what we are faced with and what the Obama administration is doing with our current immigration system. The enforcement of our immigration laws (most recently revised in 1996) in regards to detention, prosecution and removal costs the United States billions of dollars a year, negatively and disastrously impacting innocent families and children, and stripping U.S. businesses of necessary labor to compete in the global marketplace.
There is an maxim in the law–“bad facts make for bad law.” That reverse is also true in the immigration context. Bad law makes for bad facts. If we really want to solve the immigration problem, we need to begin not by offering “amnesty,” but by looking at our laws and seeing which laws have caused the immigration problem to worsen since 1996.
The first of those laws is found in the Immigration & Nationality Act (INA), section 212(a)(9) (B)(i)(II). This law has caused more familial separation, hardship and heartache, them most of the rest of the bad immigration laws combined. This laws says that if you are in the U.S. illegally for more than 1 year and leave (even if you are leaving to “fix” your immigration situation by trying to reenter legally with a visa), you cannot come back to the U.S. for 10 years. So, if you came into the U.S. illegally, and ultimately married a U.S. citizen, you CANNOT become legal until you leave the U.S. for 10 years. Now ask this simple question, would you leave? The answer is clear, No, you would not, and neither have millions of people in these mixed citizenship homes.
Recent estimates suggest that there are at least 3 million undocumented people married to U.S. Citizens in this situation today in America. If you simply changed this law, and said there was no bar if you left to immigrate legally to the U.S., we could solve a significant percentage of the undocumented immigration problem overnight and without any costs to taxpayers. Why not make legality the norm, why not look at and change very specific laws like this one, or others like the “permanent bar” law (INA § 212(a)(9)(C)), or the law pertaining to bond eligibility (INA § 236), or who we define as an “aggravated felon” (INA § 101(a)(43)? By making very minor changes to our immigration laws, we can restore legality to the system and make the “rule of law” something that can be respected, instead of a platitude to the masses.
The rule of law has as its basis “good” laws. Our immigration system is full of bad laws. Laws that are unworkable in their enforcement and unfair in their impact. The Rule of Law needs to be something we can live by, not something that nothing more than a platitude.