(A postscript to the BorderLines series: "Aliens, Crime, and Drugs: Making the Connection.")
The economic crisis has preempted any immigration reform that expands work visa programs or regularizes the status of unauthorized immigrants. Even if the Democratic majority expands in Congress, such liberal immigration reforms will likely remain dead politically until the economy stabilizes and revives. This gives immigration advocates a few years or more to sharpen their arguments and broaden the support for liberal immigration reform. Not constrained by the exigencies and demands of a lobbying campaign for comprehensive reform, as they have been for the past several years, immigrant advocates and others have the opportunity to address the way immigration has become governed by crime. Americans are rightfully proud that the country we have created respects the “rule of law.” But, while important, respect for law and for the order that it provides never has been and never should be the animating principle of the United States. Our founders believed, as we do, that when rules or laws do not serve the interests of justice, they need to be changed. With respect to immigration and immigrants, over the past two decades we have changed our rules and laws but not to serve justice. Rather the new “rule of law” in immigration matters has been instituted in fits of political opportunism and backlash. The criminal justice and penal systems, already weighed down and distorted by the wars on crime and drugs, have been tapped to provide order to immigration. Justice and reason are nowhere in sight. In this political interim, Congress, President Obama, Attorney General Eric Holder, and DHS Secretary Janet Napolitano should begin to bring justice and reason back into immigration enforcement. A combination of congressional and administrative action could go a long way toward making the rule of law in immigration matters that deserves our respect. Both at the state and federal levels, there are new signs that the logic, rationale, and methods of the war on crimes and drug are coming under hard review. This reconsideration of the “severity revolution” is largely a product of the economic crisis. Current patterns of law enforcement, sentencing, and imprisonment are at long last recognized as being unsustainable and counterproductive. As law makers move to rollback drug laws and downsize the crime/prison complex, they would do well also to consider the costs of criminalizing and imprisoning immigrants. On the federal level, Congress should question whether the nation can afford the billions of dollars allocated annually for arresting and imprisoning immigrants.
Homeland Security’s immigration agencies should not get a free pass in a budget review of pork-barrel and unnecessary funding. Specifically, Congress should tell the president, Napolitano, and Holder that ICE’s criminal alien programs are unfocused and as such do little to improve community security and public safety, as they claim. Secretary Napolitano has given signals that she will halt her predecessor’s support for worksite raids that send hardworking immigrants to prison. She has promised to focus more on charging employers that exploit immigrant labor. But neither she nor Attorney General Holder has thus far failed to challenge the array of DOH and DOJ programs that as part of a “deterrence” strategy have employed the heavy hand of the law to make life in the United States increasingly unbearable for immigrants – a strategy that immigration restrictionists accurately describe as “attrition through enforcement.” Law and justice operate at cross-purposes in such a criminalizing strategy, and it’s the responsibility of Holder and Napolitano to recognize this and correct it. Congress should also move to reinstall the separation of immigration and criminal law through legislative amendments that rollback the 1996 and other laws that have established the legal foundation for the current regime of governing immigration through crime.
But the executive branch is free to move itself to distance itself from this regime by dismantling its array of programs that unproductively categorize and treat an ever-growing number of immigrants as criminals and fugitives. Current funding for these programs can be used to target the immigrants who truly represent a threat to “national security and public safety.”