In a 2010 report, the Urban Institute documented in excruciating detail the psychological, emotional and financial impact on children of a parent's deportation. According to the Pew Hispanic Center, 4.5 million U.S. citizen children have an out-of-status parent. More enforcement, without broader reform, would damage countless children. Yet proposals to provide a path to legal status for even those groups with the strongest humanitarian claims and equitable ties in the United States have been derided as an affront to the "rule of law." What does this apparently unforgiving term mean?
In its thinnest sense, the rule of law requires government officials to be accountable to the law. Plato warned that the integrity of the state would be threatened if the law were "subject to some other authority" and had "none of its own." The law must be "master of the government," he argued, and the government the law's "slave." In Marbury v. Madison, Chief Justice John Marshall repeated the "emphatically"-held conviction that the United States was "a government of laws, and not of men." In the intervening years, the rule of law has evolved to take on a fuller meaning that encompasses due process protections, the substance of laws (in particular, whether they safeguard rights), and the legitimacy of the political systems that produce them. According to the American Bar Association's (ABA's) Rule of Law Index, this concept requires:
- laws that are "clear, publicized, stable, and fair, and protect fundamental rights";
- "accessible, fair and efficient" processes; and
- "competent, independent, and ethical adjudicators and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve."
The rule of law cannot be equated with rigorous enforcement of the law. To do so would be to mistake the rule of law with rule by law. Repressive regimes rule by law, but dishonor the rule of law in other ways. Nor does this concept support the status quo. Instead, it is a standard against which legal systems can be judged. How can the U.S. immigration system be improved in light of this standard?
In 2010, the U.S. Department of State estimated that 3.4 million family members of U.S. citizens and lawful permanent residents (LPRs) with approved visa petitions had not yet received their visas. Most persons in this situation choose to live in the United States as they wait for their visa priority dates to become current, a process that often takes years. After this time, most must leave the country to apply for a visa. However, once they depart, they are subject to multi-year bars to re-entry, with no assurance that they will be approved for a waiver and be allowed to return. It does not further the rule of law to require persons with approved visa petitions to endure long-term separation from their families. U.S. law also provides for the detention and removal of LPRs, many with U.S. families, based on convictions for relatively minor crimes. In these circumstances, deportation can represent a disproportionate punishment which is at odds with the rule of law.
Many states and localities have adopted legislation that seeks to force out-of-status persons to self-deport by making it illegal to rent housing, work, pay for public utilities, "be" without status, and even "harbor" themselves. Republican presidential front-runner Mitt Romney recently praised the intellectual architect of these laws for his willingness to "stand up for the rule of law." Yet the rule of law requires laws that safeguard rights, not laws that deny rights as a means to an end.
Members of Congress and state legislators have attempted to set the stage for a legal challenge to the 14th amendment's guarantee of birthright citizenship and to the Supreme Court's 1982 decision in Plyler v. Doe, which ensures public education through high school for out-of-status children. Combined, these initiatives would create an uneducated, sub-class of U.S.-born residents, with little security, few rights, and no prospects. The rule of law argues for safeguarding rights within the law, not placing persons permanently outside its protections.
The rule of law also requires protection of labor rights. In 2002, the U.S. Supreme Court in Hoffman Plastics Compound, Inc. v. NLRB held that out-of-status persons fired for union organizing are not entitled to back-pay. Nor do they qualify for reinstatement to their former positions. Yet back-pay and reinstatement are two of the primary remedies for violations of the National Labor Relations Act. In July 2010, President Obama argued that out-of-status workers are "vulnerable to unscrupulous businesses who pay them less than the minimum wage or violate worker safety rules -- thereby putting companies who follow those rules, and Americans who rightly demand the minimum wage or overtime, at an unfair [dis]advantage." In this way, the U.S. immigration system works at cross purposes to the rule of law.
The U.S. asylum system is premised on the ability of endangered persons to reach protection. Yet the United States blocks access to its territory by:
- interdicting thousands of foreign nationals on the high seas each year;
- summarily removing (through "expedited removal") in excess of 100,000 migrants per year who immigration officials encounter at ports-of-entry or near land and sea borders; and
- barring entry and denying status on terrorism-related grounds to pro-democracy activists who opposed repressive regimes and to those who were forced to support terrorists.
Some of these measures undoubtedly increase security and others include (imperfect) procedures to protect asylum-seekers. In combination, however, they have led to plummeting asylum filings and approvals. The rule of law argues for rigorous mechanisms to identify and protect persons running for their lives, consistent with international law.
By 2013, the Secure Communities program will screen nearly everybody arrested in the United States against federal criminal and immigration databases. The Department of Homeland Security (DHS) has characterized Secure Communities as a federal information exchange program, but this ignores the role of local police in deciding whom to arrest. DHS's Secure Communities Task Force concluded that when "communities perceive that police are enforcing federal immigration laws, especially if there is a perception that such enforcement is targeting minor offenders, ... trust is broken and some communities, and victims, witnesses and other residents may become fearful of reporting crime and approaching the police." In other words, such programs can place communities at greater risk, an outcome at odds with the rule of law.
The rule of law requires checks and balances between the different branches of government. Yet Congressman Lamar Smith has introduced legislation to remove discretion from the Obama administration in how it administers the law. Prosecutorial discretion is essential to effective law enforcement, and enforcement of the law is a core Executive branch function. Congress has also severely limited judicial review of removal orders. As the law stands, persons ordered removed must file a petition to a court of appeals within 30 days. Courts of appeals can review constitutional claims and questions of law, but not issues of fact or discretionary decisions like denials of relief from removal. In 2010, the ABA reported on the widespread view that restrictions on judicial review operate "to insulate dysfunctional administrative processes and questionable exercises of discretion."
Deportation can result in torture, persecution, separation from family, and loss of livelihood. Yet most persons in removal (deportation) proceedings cannot afford legal counsel, which significantly reduces the chances that they will prevail in their claims. The lack of government appointed counsel for mentally disabled persons and unaccompanied children facing removal, to cite two examples, makes a mockery of the rule of law. Record backlogs and delays in the poorly resourced immigration court system also raise rule of law concerns.
U.S. immigration law provides for accelerated removal, with significantly less process, in four types of cases: "expedited removal"; "administrative" removal (non-LPRs who have been convicted of "aggravated felonies"); "stipulated" removal (often unrepresented detainees who despair of further time in custody); and non-citizens who illegally re-enter the United States after being removed. Restricting due process in these categories of cases may create administrative efficiencies, but does not reflect deference to the rule of law.
Former INS Commissioner James Ziglar describes a "breathtaking" level of "hypocrisy" and "cynicism" in Congress on immigration issues. He reports that Members, including staunch enforcement advocates, beseeched him not to enforce the law against certain industries and constituents. Such interventions might be seen as attempts to circumvent the law in flagrant violation of the rule of law. Or they might be seen as a tacit acknowledgment that the rule of law requires the exercise of discretion or broader legislative reform. In any event, enforcement-alone will not suffice.