Commentary

Saying the Law Is the Law Isn’t Enough

In the aftermath of Mitt Romney’s defeat, several conservatives are rethinking their opposition to immigration reform. Sean Hannity said he had “evolved” on the issue, and House Speaker John Boehner (R., Ohio) wants to resolve it legislatively in 2013. But they will still have to overcome a plethora of bad arguments against immigration reform.

One particularly bad argument common in conservative circles, from Mississippi Gov. Phil Bryant to columnist and intellectual Thomas Sowell, focuses on how immigration reform violates the rule of law.

Their argument usually goes something like this: “The rule of law is one of the most important principles upon which the United States was founded. When immigrants and Americans break our immigration laws, that breaks down the rule of law and disturbs the foundations of our society. Therefore those laws should be enforced.”

The argument fails on many levels.

The rule of law has little to do with government enforcement of immigration laws. The rule of law means that lawmakers, judges, and individuals are all subject to the same laws. Intertwined with this, and highlighted by political philosophers like F.A. Hayek, is that laws and enforcement should be predictable so people can plan their lives within a stable legal regime. The laws must be nonarbitrary, consistent with our traditions as a free society, and as free as possible from government ad hoc actions.

The rule of law has little to do with government enforcement of immigration laws.”

Immigration laws abjectly fall far short of these standards. Our immigration laws are complex and give the government bureaucrats administering them arbitrary power. The laws themselves undermine the rule of law.

Most businesses applying for a worker visa have to deal with arbitrary and changing application standards. For instance, government regulatory changes to streamline work visas were adopted in the closing days of the Bush administration. The Obama administration, after taking office, changed portions of those regulations to satisfy union demands. Who knows what regulations will change next year or the year after?

If the rule of law requires predictability so people can plan their lives accordingly, the immigration system fails. Adhering to this complex and ever-changing system does not enhance the rule of law.

Other parts of the immigration law suffer from the same problem. Recent deferred action for some unauthorized immigrants is just the most recent example. The deferral, supported by President Obama’s Department of Homeland Security (DHS), was certainly a positive move for Americans and unauthorized immigrants who have grown up in the United States. Contrary to its opponents, the deferral was also legal, but that does not mean it adheres to the rule of law.

The deferral is temporary, lasting only two years, and renewable, but not guaranteed. The deferral is a welcome respite to our unjust immigration policies, but it makes the immigration law even more arbitrary, capricious, and unworkable.

Matthew Kolken, a practicing immigration lawyer, recently urged extreme caution when approaching the deferral. “Most people simply do not understand the complexities of immigration law,” he said. “The one thing I can say with absolute certainty is that you are going to need an immigration lawyer the moment this administration determines you are an enforcement priority.”

The DHS’s deferred action has exposed just how restrictive, unjust, and unpredictable our immigration law is, but criticism of the government’s actions here is unwarranted. The ire of opponents should be directed at the existing laws that made this action the best possible use of administrative and prosecutorial discretion.

Saying a law should be enforced just because it is the law is one of the least compelling arguments in favor of doubling down on our current immigration laws. Unfortunately, such an argument is ubiquitous in immigration debates. When laws are bad, we should change them instead of blindly following them regardless of the consequences.

Creating a rule-of-law environment in the context of immigration law requires repealing the vast majority of laws regulating immigration. Although more restrictive immigration laws would satisfy some of the conditions for the rule of law, they would be anathema to our traditions as a free society. The government’s priority should be to establish a sound and just law consistent with our pro-immigration traditions, rather than trying to further enforce the confusing regulations on the books.

Alex Nowrasteh is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity in Washington, D.C.