The Border Crisis and Republican Self-Government

U.S Border Patrol officers stand near the U.S.-Mexico border fence across from Tijuana, Mexico, November 25, 2018. (Hannah McKay/Reuters)
Low immigration or high, the important thing is that laws passed by Congress must be enforced.

The crisis at America’s southern border is a crisis of republican government. We the American people, in our wisdom, or lack thereof, have decided, through our representatives, that we will accept x legal immigrants each year. We are also, as I understand it, committed by treaty to take in refugees. In 2017, according to the federal government, the U.S. admitted 1,127,167 legal immigrants into our country. Perhaps that number is too low. Perhaps it is too high. It is hardly an unreasonable number, and it is the law. That the U.S. government has failed to enforce the law for decades is a scandal. It is a standing insult to the people’s right to make the laws under which they live.

The United States has failed to police our border effectively for decades. In 1986, President Ronald Reagan thought he had solved the matter. He signed a bill that granted amnesty to people who were in the United States in violation of our laws, but the deal was supposed to bring enforcement. That part of the deal was not carried out. The failure of the pro quo to follow the quid, and subsequent failures of a similar nature, is one of the main things poisoning our immigration debate. It has sown tremendous distrust. It is why the “Gang of Eight” deal of amnesty for enforcement failed in the presidency of George W. Bush: Stung by the failure to have enforcement after 1986, many of our representatives, reflecting pressure from their voters, refused to risk being fooled again. Hence an enforcement-only bill passed — and still illegal immigration remains high, perhaps, many Americans fear, because the powers that be in Washington don’t really want to enforce the law.

It is important to note that we have had some success in policing the border. Enforcement measures have had an impact, as have the 2008 recession and improvement in the economy of Mexico. In the 1990s, the U.S. created a wall to separate San Diego from Mexico. As Politico notes, it was a success. Border Patrol apprehensions in San Diego fell from more than half a million in 1994 to 138,000 a decade later — and to just 26,000 last year.

But there are still hundreds of thousands of illegal immigrants each year. (Many of them don’t cross the southern border, and many of them overstay tourist, student, or other visas. That’s why a wall is only a partial solution.) Part of this failure of enforcement, of course, grows from the virtues of the American people. We are a generous people. In part, enforcement is weak because we blanch at the harshness of actually kicking people out of the country. Consider a contrast. In Mexico, “illegal immigration is a felony, punishable by up to two years in prison. Immigrants who are deported and attempt to re-enter can be imprisoned for 10 years. Visa violators can be sentenced to six-year terms. Mexicans who help illegal immigrants are considered criminals.” Americans are unlikely to stand for that kind of law.

Our generosity and our self-image as a nation of immigrants are why any plan to kick millions of illegal residents out of the U.S. will never fly. It might be the case that the people have wanted the laws enforced and the government has failed to do so. And Americans legitimately resent the failure of our government to follow and enforce the law. At the same time, most Americans understand that it is not the fault of illegal immigrants that they have been allowed in and have been allowed to stay. Justice would suggest that a right of residency is acquired, after a certain number of years, by a form of adverse possession. (Interestingly, there seems to have been an analogue of such a policy in many towns in colonial New England. After a certain period of time, if they were not “warned out,” visitors, invited or not, acquired the right of residency, and that imposed on the town the right to ensure they had food and shelter.)

In a recent column, Peggy Noonan notes that the donor class of the GOP has an economic interest in loose enforcement: “Their major donors didn’t mind illegal immigration, which was good for business.” Recall Senator Bernie Sanders’s comment that open borders is a Koch-brothers policy. Sanders has since retired that line — it doesn’t make him popular in Democratic circles. Democrats are increasingly the party of the rich. But they also have a political interest. Many Democrats subscribe to the “Emerging Democratic Majority” thesis, reasoning that it is in their political interest to see that the law is not faithfully executed. And that is where the crisis comes from.

The decades-long failure to enforce the law undermines the right of we the people to make our laws. That so few see it this way, and that we seldom hear our politicians talking about it this way, describes the crisis of our age. More and more American government seems to be on autopilot, only vaguely accountable to the American people. In his “Report of 1800,” James Madison noted that a significant increase in federal power would, inevitably, lead to an increase in government by executive discretion:

In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all, be increased. From these sources would necessarily ensue, a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.

In other words, Madison predicted that a significant expansion of federal power would, in time, undermine republican government. In the 20th century, the U.S. tried to avoid that result by creating what proponents hoped would be a politically neutral bureaucracy, given tenure to ensure that they were outside of politics. The trouble is that so many of the issues they decide are political by nature. Their work is and must be political. Moreover, when this bureaucracy is combined with the delegation of lawmaking from Congress to the bureaucrats (which Madison predicted would be the result of the increase in federal power), the result is the atrophy of the practice of self-government. Hence, as Andrew McCarthy notes, Congress may very well have delegated to the president the right to declare that we have a border emergency and, therefore, he has the right to address it as the thinks best.

The common citizen is, obviously, not competent to decide many technical questions. But when it comes to issues such as “How many additional people do we wish to join us in the United States each year?” we are emphatically in the realm of questions on which the judgment of the average citizen is entitled to equal respect with that of the economist, engineer, or college professor. Do most Americans, does our governing class, still understand that? I fear that the answer is no.

In sum, the crisis of the border is a crisis of democratic accountability. Can government of the people, by the people, and for the people long endure if government does not feel obliged to follow the laws our duly elected representatives have passed?


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