It is hard not to feel deeply pessimistic about the country’s chances of reining in illegal immigration, in the light of the increasingly successful battle against the Secure Communities program.
To be sure, there have been a few positive developments recently regarding immigration and rule of law: On May 26, the Supreme Court upheld a 2007 Arizona law requiring employers to verify the legal status of their workers. The Court rejected the charge that the Arizona law, the Legal Arizona Workers Act, was an improper state interference in federal immigration authority. The failed argument that states have no authority to add their enforcement power to existing federal immigration rules is central also to the assault on Arizona’s much-maligned SB-1070, which calls on local police officers and sheriff’s deputies to inquire into a person’s immigration status if there are reasonable grounds for believing that he is in the country illegally. The Supreme Court’s affirmation of Arizona’s worker-verification law gives some hope that the Court will also uphold SB-1070.
Also on the positive side of the ledger: In early June, Alabama passed what is viewed as the toughest immigration-enforcement bill in the nation. Alabama’s HB-56 incorporates the local-law-enforcement provisions of Arizona’s SB-1070 and the mandatory employment checks of the Legal Arizona Workers Act. It requires schools to publish the costs of educating illegal aliens, prohibits landlords from knowingly renting to illegal aliens, and bars illegal aliens from enrolling in public colleges. In May, Georgia also enacted a bill strengthening local immigration-enforcement powers.
But these state-level developments seem marginal compared to the growing attack on the very premises of national immigration law. Last Friday, the Obama administration finally caved in to mounting pressure from immigration activists, Democratic politicians, big-city police chiefs, and newspaper editorial boards to gut the Secure Communities program, which runs the fingerprints of arrestees booked into local jails against federal immigration data bases. Secure Communities does not mandate that immigration agents actually do anything with the resulting information; it merely provides them with information, which they may or may not act upon. Much of the time, they do nothing.
For years, open-borders advocates have howled that Secure Communities was flagging for possible deportation “mere” petty criminals — drunk drivers, unlicensed drivers, non-gun-using assailants, shoplifters, thieves, garden-variety drug dealers and drug users — instead of “serious” violent offenders. “Only” 30 percent of illegal aliens deported under the program were “serious” violent felons such as murderers and rapists, reports the Los Angeles Times, with typical offended righteousness.
To which one can only respond: So what? Even if Secure Communities flagged for possible deportation only illegal aliens with no criminal records at all, it is impossible to see any injustice or illegality in the operation of the law — unless the country’s real immigration policy is that illegal aliens should never be deported absent extreme and unusual circumstances. And that is exactly the premise of the campaign against Secure Communities, although its opponents have never had the guts to say so explicitly. So let us be as clear as possible: If the logic of the attack on Secure Communities continues to spread, it will mean that the country’s democratically enacted federal immigration statutes, which provide for deportation as the penalty for illegal presence, will have been nullified and replaced with a new policy: Once in the country, you’re here to stay — unless, maybe, you kill or rape someone.
One of the standard pretexts used in arguments against Secure Communities is that immigration enforcement will discourage illegal aliens from cooperating with the police as crime victims and witnesses. No one has ever provided empirical evidence for this proposition. But the more important point is this: The logic of this proposition is more radical than anyone has ever acknowledged. It means that illegal aliens should never face any threat of apprehension and deportation from immigration authorities, lest they form a bad feeling about law enforcement.
In recent months, the governors of Illinois, New York, and Massachusetts have refused to cooperate with Secure Communities; California legislators are pressuring Gov. Jerry Brown to repudiate the program. And now, after months of defending the program, the Obama administration is agreeing with its critics that it has been operating unjustly. Immigration and Customs Enforcement (ICE) has issued new guidelines urging its agents to consider how long an illegal immigrant has been in the country or whether he is studying in high school or college before deciding to proceed with deportation proceedings, reports the New York Times — in effect, enacting the controversial DREAM Act by administrative fiat. ICE director John Morton has expanded the authority of federal prosecutors to dismiss deportation cases against illegals who don’t have “serious” criminal records, according to the Times, and is calling for the release of illegal-alien criminals from federal immigration detainment centers unless they are convicted of an offense.
These recent changes mean that the Obama administration is officially buying in to the premise of the illegal-alien lobby: that the default position toward illegal immigration should be that no penalty attaches to it, unless an illegal alien commits a heinous crime (though even that limit on the no-deportation rule remains highly theoretical, as I have never seen an illegal-alien advocate affirm a single deportation). Supporters of the rule of law in immigration matters can oppose official amnesty (also known as comprehensive immigration reform) all they want, but it’s too late. Our de facto amnesty policy is rapidly becoming official, sending the message to would-be illegal immigrants the world over that the U.S. has no intention of enforcing its national sovereignty. Such a message makes state efforts like Arizona’s and Alabama’s look futile, even wistful.
— Heather Mac Donald is the John M. Olin fellow at the Manhattan Institute and co-author of The Immigration Solution.