Immigration activist and self-described “undocumented American,” Jose Antonio Vargas, has been arrested on the border. Per CNN:
Early Tuesday, Vargas tweeted that he was about to go through security at McAllen-Miller International Airport. Since outing himself as an undocumented immigrant three years ago, he says he has traveled extensively, visiting 40 states.
“I don’t know what’s going to happen,” he tweeted, directing his followers to the Twitter handles for Define American and the University of Texas-Pan American’s Minority Affairs Council.
Within minutes, the latter retweeted a photo of Vargas in handcuffs with the caption: “Here’s a photo of (Vargas) in handcuffs, because the Border Patrol has nothing more pressing to do apparently.”
This should not come as a great surprise. Whatever principle of prosecutorial discretion could be charitably said to have applied to Vargas up until now, it does not apply to this situation. There is a material difference between 1) ICE and its affiliates refraining from actively going after people who are in America illegally, and 2) a border patrol agent permitting those without the requisite papers to pass through a checkpoint. Whatever the media might like to believe, this was not a case of the Border Patrol “having nothing more pressing to do,” but of a man who presented himself to Border Patrol and asked for them to examine him. What else, pray, could they do?
To conflate these two circumstances is to seriously misunderstand the issue at hand. For years, Vargas’s celebrity has afforded him a latitude of which most in his position could only dream. He has written repeatedly in the press that he was an illegal immigrant and that he had broken a series of major laws. In response, the authorities have done nothing. He has made a movie about his predicament. Authorities have done nothing. He has informed the government in no uncertain terms that he is here without documents and that he has committed serious fraud on federal forms. It has done precisely nothing, and nor, for that matter, have any of the federal agents who recognized him boarding airplanes. (They could have chosen to make an issue of it, but because he needed only an ID and not a visa to pass through they did not have to.) In other words, he has been cut a break at every possible juncture.
This week, he pushed it too far, trying to pass through a checkpoint without the necessary papers. Then, and only then, did authorities take action.
And what choice did they have? Vargas himself knew that he could get away with a lot, but that this would be his downfall. When he explains that he can’t leave the country, this is why: Because no border agent is able to actively wave through someone who is prohibited. Surely, Vargas can’t honestly believe that the authorities should have said, “well, we know you aren’t allowed in, but because we’ve seen you on CNN, we don’t care?”
As a more general matter, this is a horribly sticky situation. Without question – and through no initial fault of his own – Vargas has found himself in a veritable nightmare. As he tells the story, he was brought here at a young age and told that he had legitimate papers, only later to discover that those papers had been forged. From that point on, his options were severely limited. Conservatives who ask, “but why didn’t he just apply for legal status?” are rather missing the point. Under current law, he is unable to do so without leaving the country in which he has built his life. (Or marrying a U.S. citizen.) Because he did not have a petition filed before 2001, he didn’t qualify for relief under Section 245(i); because he is too old, he doesn’t qualify for the deferred action policy that President Obama illegally put into place in 2012. He’s genuinely stuck. Moreover, there really is no “home” for him to “go” to. This is it. If I had my way, he would be among those to whom some form of amnesty was extended. Those who have known nothing else should not be sent abroad.
Still, this is really not the point. The law that I would like doesn’t yet exist. And, knowing this better than anyone, Vargas willingly placed himself in this position. What were those charged with enforcing the rules supposed to do, exactly? Slip him under the desk?
All told, Vargas has a habit of pushing his luck, his advocacy having focused less on the tricky situation in which he’s found himself and more on the idea that the whole idea of the rule of law in this area is unreasonable. Explaining his predicament in Politico last week, he concluded with a series of lines that seem to have been contrived explicitly to turn off anybody who might feel sorry for him:
As Tania and I sat together in a circle holding unlit candles, a crowd of about 30 people—mostly undocumented youth, a few citizen allies—started chanting something in Spanish, a language I don’t speak. Her head on my shoulder, with tears in our eyes, she translated the chant for me:
“No me digas illegal”/Don’t call me illegal
“Porque eso no lo soy”/Because I am not
“llegal son sus leyes”/Illegal are your laws
“Y por eso no me voy”/And that’s why I’m not leaving
These people, note, are not all in his situation. Some of them are citizens; some of them have been here a while; some, including everyone he went to visit in the first instance, have just arrived. Thus did Vargas play his usual game of turning a genuine and targeted problem into a general and holistic case against borders and national sovereignty. Not smart, Jose. Not smart.
I understand, of course, that this is not entirely black and white. There is room for some retail discretion, yes. At the margins, too, there are instances in which the law is so morally bankrupt that one has little choice but to break it. But not every infraction comes up to the standard of the Fugitive Slave Act, and nor are all those irritated by the rules automatically transmuted into Rosa Parks. Moreover, for all its faults, the rule of law is an extremely valuable tool — one that serves both as a prophylactic against caprice and as the best protector of both equality and of liberty that the world has ever seen. There will always be someone who believes that they are entitled to an exception. Should we indulge them? Not most of the time, no. There are two sides to this ledger.
This is not a partisan observation. The most recent scofflaw to rise to national prominence was not a progressive hero such as Vargas, but a rancher named Cliven Bundy, whose fight against the Bureau of Land Management became a brief cause célèbre on the Right. Bundy’s story was sympathetic and his philosophical case was strong, but I pushed back against him nevertheless. Why? Well, because legally he didn’t have a leg to stand on, and because there is nothing in the social compact that permits individuals to secede from the established order if it is not to their liking:
Setting out to make “the case for a little sedition,” my colleague Kevin Williamson ended up making a whole lot more, relying for his rhetorical firepower on wholesale revolutionaries Mohandas Gandhi and George Washington — men, lest you forget, who succeeded in bringing down the existing order in its entirety. “Mr. Bundy’s stand should not be construed as a general template for civic action,” Williamson writes, thereby demonstrating the problem rather neatly: When you change the government, you do not need to worry about setting a precedent; when you merely disobey it, you are setting yourself above a system that remains in force. Respectfully, I would venture that Williamson is here suggesting that he is to be the arbiter of legitimate rebellion — a peculiar position for a libertarian concerned with the integrity of the political process to adopt.
When can one refuse to obey the law without expecting to bring the whole thing down? Certainly such instances exist: I daresay that I would not stand idly by quoting John Adams if a state reintroduced slavery or herded a religious group into ovens or even indulged in wholesale gun confiscation. But Bundy’s case is not remotely approaching these thresholds. Are we to presume that if the government is destroying one’s livelihood or breaking one’s ties with the past, one can revolt? If so, one suspects that half the country would march on Washington, with scimitars drawn, and that West Virginia would invade the Environmental Protection Agency.
I finished my argument with these words:
But this is a republic, dammit — and those who hope to keep it cannot pick and choose the provisions with which they are willing to deign to comply.
Unsurprisingly, this sentiment was well-received on the Left – especially, it must be said, among those who disliked both Bundy’s politics and the nature of those who had taken to defending him. Watching the reactions to Vargas’s arrest, however, I am beginning to wonder if the progressive support for the rule of law was purely expedient. Alarmingly, many of those who endorsed my approach to the Bundy case seem to have rushed to Vargas’s side. Are we to take from this that America’s laws should be applied only to those we dislike? And if we are not, what precisely is the operating standard? Everyone, after all, can find a reason why their case is different. That’s why we write down the rules.
Once again, let us remember what happened here: This was not a matter of “priorities” or of “discretion.” ICE did not perform a midnight no-knock raid on Vargas’s apartment and actively remove him from America. Instead, a famous man elected to put himself in a position in which he was asked for papers that he does not possess. At one level, I really do feel sorry for him. But I do not feel sorry enough that I am willing to bless the wanton disregard of the rules. Celebrity or no celebrity, sympathy or no sympathy, this is a nation of laws and not of men. That goes for people the cool kids cherish, too.