Friday, November 21, 2008

Expect "Rule of Law" to Rule Immigation Policy Under Napolitano

The likely nomination of Gov. Janet Napolitano and the creation of an immigration task force within the transition team signal what?

The hopeful interpretation by immigrant advocacy organizations is that Napolitano along with the immigration task force are signs that immigration reform will be a priority for the Obama administration. Anti-immigration groups have a more sober, realistic assessment of Napolitano as a pro-enforcement advocate who has also called for comprehensive immigration reform.

Certainly, there is reason for relief that Michael Chertoff, a right-wing ideologue and Republican loyalist, will soon be gone. But he will leave a legacy in the two Department of Homeland Security agencies that implement immigration enforcement and border control – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

 Over the past three years, under his assertive leadership the two agencies have found purpose and direction, and its members have been given a sense of purpose that was previously lacking when its predecessor agencies were under the Justice Department and under the fumbling direction of the first DHS Secretary Tom Ridge.

 Following the lead of the anti-immigration institutes (FAIR, NumbersUSA, Center for Immigration Studies) and right-wing think tanks (Heritage Foundation), Chertoff came to Homeland Security with a new framing of the department’s immigration law enforcement and border control operations: Commitment to a strict enforcement regime to protect the country against foreign terrorists, and to reassert the “rule of law.”

 In the aftermath of Sept. 11, the restrictionist camp found that their message about the “illegality” and “criminality” of illegal immigrants had new resonance. And they proceeded to upscale the “what don’t you understand about illegal” message that echoed through the anti-immigration grassroots forces to a more conceptual framing of illegal immigration as a threat to the “rule of law” inside a nation that had just come under foreign attack by foreign outlaws.

 An October 2005 Heritage Foundation essay, "Rule of Law at Stake in the Immigration Debate," helped propel the rule-of-law framework into the mainstream media. Written by former attorney general Edwin Meese, a Heritage Foundation fellow, the essay was broadcast by Fox News.

Meese and foundation colleague James Jay Carafano wrote: "We need to encourage federal, state, and local governments to enforce our laws and work together to improve the security infrastructure at points of entry. Enforcement should include prosecuting benefits fraud, identity theft, and tax evasion, in addition to immigration violations."

 The “rule of law” framing for immigration works well for anti-immigration groups since it allows them to chart a course that is ostensibly separate from the nativists, economic populists, and white supremacists who spirit the grassroots ranks. It’s a message that is based historically and fundamentally on liberal principles of a government by laws not by royalty, aristocrats, and other elites.

 Another part of Chertoff’s legacy is his straight-out acknowledgement that immigration policy is flawed, but until there is a new more comprehensive law in place, DHS has a mandate to enforce existing law. Napolitano is by no means an anti-immigration hardliner.

However, as a lawyer, former federal prosecutor, and a governor who has insisted on more border control and stood behind a tough employer-sanctions law, she will fit easily into the “rule of law” framework for directing ICE and CBP operations.

 It’s a framework that has already been adopted by the Democratic Party and to a certain extent by Obama.

When asked by CBS’ Katie Couric about his illegal immigrant aunt, Obama appealed to this framework as one that should prevail in immigration policy. Couric: “You have an aunt who’s been living in this country apparently illegally, and your campaign says any and all appropriate laws should be followed. So would you support her being deported to Kenya?” Sen. Obama: “If she is violating laws those laws have to be obeyed. We're a nation of laws. Obviously that doesn't lessen my concern for her. I haven't been able to be in touch with her. But I'm a strong believer you have to obey the law.”

 During the campaign, Obama repeatedly said, as did Hillary Clinton, that, with regard to the immigration issue, America can be "both a nation of immigrants and a nation of laws." Acknowledging that the immigration restrictionists were dominating the immigration debate, the Democratic Party and its allies have over the past year desperately sought to reframe the immigration crisis while at the same time attracting the allegiance of Latinos and “New Americans.”

Their new language about immigration policy—"nation of laws," "rule of law," and "required legal status"— started popping up everywhere, from the pronouncements of immigrant-rights groups to the Democratic Party platform. Instead of promising an "earned path to citizenship," as it has in the past, the party stated that illegal immigrants will be required to “get right with the law.”

"For the millions living here illegally but otherwise playing by the rules, we must require them to come out of the shadows and get right with the law," states the party's platform. "We support a system that requires undocumented immigrants who are in good standing to pay a fine, pay taxes, learn English, and go to the back of the line for the opportunity to become citizens."

 As governor, Napolitano has attempted to navigate between the vocal and highly-organized anti-immigrant forces and those Arizonans who resist succumbing to those forces of hate and reaction (from the business community to Latino and humanitarian groups).

While realistic about the impossibility of completely sealing the border, she has called for more border patrol agents, deployed the state’s National Guard, and supported for increased federal-state cooperation in immigration law enforcement, albeit at the same time opposing the immigrant crackdown launched by the infamous Maricopa County Sheriff Joe Arpaio.

 All the while, Napolitano has complained that the responsibility for addressing immigration-related issues lies with the federal government. She says she supported a tough legalization law, and, like Chertoff, has expressed strong support for temporary and guest-worker programs.

As Homeland Security secretary, Napolitano can be expected to follow the lead of Chertoff and the Democratic Party in insisting that current immigration laws be strictly enforced in order, as ICE and CBP routinely, “reassert the rule of law” in immigration and border control. In the absence of a reform law that provides a path to citizenship for the country’s 11 million illegal immigrants that route forward will be a victory for those calling for calling for restrictive policies on legal and illegal immigration.

Like Chertoff, she will have no power to shepherd through Congress a new immigration policy. What she can do, however, is reject the practice of her predecessor of using the law as part of a deterrence strategy.

Through highly publicized raids on worksites and through the shackling and imprisonment of immigrants, the DHS has sought to use the law to terrorize existing immigrant communities as part of a strategy to deter future illegal immigration. Napolitano can also use her position as a bully pulpit to explain that the rule of law is not an end goal.

It’s a path to justice. America is both a nation of laws and one where justice prevails, or it should be.

1 comment:

GnipGnop said...

'What she can do, however, is reject the practice of her predecessor of using the law as part of a deterrence strategy.'

Heaven forbid we deterred anyone from illegally hiring aliens who are unlawfully present. The implicit alternative to rejection of a deterrence strategy is the embrace of an encouragement strategy--a green ligh to break the law with impunity.

'America is both a nation of laws and one where justice prevails, or it should be.'

Such statements imply that immigration law (as part of a limited immigration system) is inherently unjust. That it's unfair to keep anyone out or kick anyone out. 'Justice' can only be achieved if the alien gets to stay. What else can one conclude about people who are against every existing or conceivable form of immigration law enforcement?