This weekend, Washington mourned the iconic Charles Krauthammer’s passing. It seemed a pause in the bedlam on the border, about which he would surely have had something wise to say. As someone who knew Dr. K mainly through his scintillating columns and television commentary, I suspect his thoughts on the refugee tide would be shorn of hubris about what Washington’s laws can accomplish.
The futility of dictating to the tide, rather than shoring up against it, was an occasional Krauthammer theme. He was wont to invoke an apocryphal tale about Canute the Great (see, e.g., here), who ruled a North Sea empire a millennium ago. In this, as in innumerable other ways, Charles was singular among commentators because he got the story right. His throne moved to the coastline, Canute audaciously orders the incoming tide to halt. But this is not a cautionary tale about the delusional arrogance of power. It is about humility: The king was showing his sycophantic courtiers that the law — in this instance, the writ of a purportedly omnipotent monarch — is limited, sometimes impotent, against such phenomena as the forces of nature.
The “rule of law” is not a magic wand. It is possible only in a community that has agreed to live under its provisions. Even within such a community, it must enforced by the power of the state. Law enforcement is manageable as long its resources are commensurate with the reasonably expected degree of law-breaking.
The situation is different when we are dealing with outsiders who seek entry into the community. By nature, that is more of a security challenge than a legal one. If the outsiders are not legally entitled to enter, or if their claim to such entitlement is dubious, the situation can masquerade as a legal problem only as long as it can be addressed by the resources the society has dedicated to enforcement. But what generally happens when a security challenge is handled as if it were a mere law-enforcement issue is that the bureaucracy gets overwhelmed and we find that enacting laws is no solution.
Congress cannot enact a law that prevents Central American migrants from flooding the border. Or, one supposes, it can enact a thousand such laws and look on in Canute-like futility as the incursion continues. Passing laws is not a serious response to a security challenge, and an unserious response always emboldens the challenger. Outsiders can overwhelm a national border by armed force or, if the nation is not willing to defend its border, by sheer numbers. Either way, the challenge can be answered only by the deployment of physical barriers and armed force sufficient to deny the onslaught and discourage others from coming.
Only after the crisis is over, after the security threat is contained, can we establish a legal process backed by resources scaled to handle the number of outsiders realistically expected to petition for entry.
We are a litigious society, so our first impulse in any crisis is to hurl our laws at it. It rarely works. For one thing, our law is always a step behind new crises – which is part of what makes them crises.
In 1993, I was assigned to prosecute a jihadist cell that had bombed the World Trade Center and plotted to carry out similar attacks on other New York City landmarks. Our country had had little experience to that point with international terrorism as a sustained threat. That was fortunate, but it also meant our law was not prepared for it.
Congress eventually overhauled anti-terrorism law in 1996. The new laws (e.g., terrorism conspiracy, material support, offenses involving the construction and use of mass-destruction weapons) specifically targeted jihadist organizations as they operate in modern times. But in the interim, we had to prosecute with the laws we had (using a rarely invoked Civil War–era sedition statute that made it a crime to conspire to levy war against the U.S.). The strategy worked for purposes of our case, and the new laws were a significant legal advance.
Yet the ability to convict the occasional handful of enemy operatives did not change the nature of the threat. It was still a national-security challenge, not a law-enforcement problem. It would not be addressed effectively until a catastrophic event, 9/11, snapped us from our security slumbers. Only then were military and intelligence assets deployed to attack the threat at its source. Only then did we accept the limited support role that domestic law enforcement can play in meeting a foreign threat to national security — or at least most of us did.
In the matter of refugees’ flooding the border, our law is again behind the curve. As a society based on individual liberty, we subscribe to the precept that guilt is personal — we don’t convict a person for being a member of a suspect group. That is fine in the realm of domestic law enforcement. It does not transfer well to security against outsiders.
And sure enough, if you look at federal asylum law, it addresses the individual migrant, not a systemic incursion. It dwells on what a migrant must establish to qualify for relief, and on what conduct the government may rely to deny or withdraw asylum status in any specific case. It does not address what could happen if thousands of migrants simultaneously seek asylum, abetted by the Lawyer Left’s insistence that our asylum law entitles them to due process — even if this means that, as a practical matter, a high percentage of them will be released into the United States, they will never show up for their legal proceedings, and they will settle here illegally while Washington agitates to bring them “out of the shadows” and formally make them Democrats, er, I mean citizens.
We can have humanitarian sympathy for the plight of migrants fleeing dystopian societies while still recognizing that the United States government exists to protect the American people.
It has become a favorite progressive talking point that the number of migrants seeking entry has plummeted in the last 20 years — the 300,000 captured attempting illegal entry last year is a fraction of the over 1.6 million captured trying in 2000. This misses — or, rather, distorts — the point.
The demographics of the migrant population have drastically changed — no longer mainly Mexican men but large numbers of women and children from Central America (especially Honduras, Guatemala, and El Salvador). The latter are more difficult to turn away because of a law enacted in 2008 — called the William Wilberforce Trafficking Victims Protection Reauthorization Act, though a better title would have been “The Law of Unintended Consequences.” The point, in any event, is that the number of migrants need not approach historic highs to prompt a crisis. It need only overwhelm the resources we have allocated to deal with asylum claims and the attendant complication of detaining family members while the claims are processed. This creates a security problem our law has not anticipated and is not fit to answer.
The current crisis is the fallout of a category error. We have a security problem that has been exacerbated by laws that, depending on your perspective, are either foolish or cynically designed to enable illegal immigration. The fact that bad laws make the security challenge worse does not mean that good laws would solve it. Better laws cannot transform a security challenge into a legal problem.
We can have humanitarian sympathy for the plight of migrants fleeing dystopian societies while still recognizing that the United States government exists to protect the American people. Our government should do as little harm as is practical under the circumstances. Its first duty, however, is to secure the border.