Not Everyone Concerned about Illegal Immigration is a Racist

     I have regular breakfast with a group of politicos that represent a cross-section of the political spectrum.  Recently we had a discussion about immigration.  I referenced a recent Texas Lyceum poll which found that 72% of Texans were either extremely or somewhat concerned about illegal immigration.  The same poll asked an open-ended question of the most serious issue Texas is facing.  Illegal immigration and border security came in first and third with a combined total of 27%, more than double education, which came in second at 13%.
     I asked my group why they thought illegal immigration was weighing so heavily on the minds of Texans.  Two of the more liberal members of my breakfast group attributed the concern purely to racism.  But there were some other findings in the poll that contradict this simplistic explanation.  Sixty plus percent:  (i) were opposed to deporting all those living here illegally; (ii) supported some pathway to citizenship; (iii) opposed building a wall; and (iv) thought immigration helped the country more than it hurt it.  When asked why illegal immigration was a problem, only 2% said because it diluted American culture.  These are not the responses of racists.
     And to completely lay the racist explanation to rest, 68% of self-identified Hispanics were either extremely or somewhat concerned about illegal immigration.  I’m pretty sure they were not motivated by racism.
     After kicking around these seemingly anomalous results, one member of our group with small children spoke up.  She said she was concerned about illegal immigration because of the effect it was having on her children’s school.  It had become significantly overcrowded because of an influx of immigrant children, most of whom spoke little or no English.  Trying to serve dozens of ESL children, including interfacing with parents who frequently spoke no English, was taxing the school’s resources and staff.  She noted cultural differences, especially as it related to the disparity in maturity regarding sexual matters.  She was also concerned about health issues.  Had these children been immunized as virtually all American children are?
     These were imminently reasonable concerns and not at all based on racial animus.  And her concerns are not isolated.  How many times have you heard someone complain about being involved in an accident with an illegal immigrant who had no insurance?  There is no doubt that dangerous criminal gang members have slipped into the country along with those coming here for a better life.  Nor is there any doubt that they are making our drug problem worse.  And while we may not be able to calculate the amount by which illegal immigrant workers are driving down wages in low-skilled jobs, the basic laws of supply and demand tell us it must be having some effect.
     Is some of the current anti-immigrant fervor based on racial bigotry?  Undoubtedly.  But, there are plenty of valid reasons to be concerned about illegal immigration other than racial hatred.  And this is where I think immigration advocates hurt their case.
     The American people are generous and caring.  We make more charitable gifts than all the other countries in the world combined.  No country has a history of accepting more immigrants and refugees than the U.S.  When immigration advocates go on a screed charging racism, they are telling those with legitimate concerns that their concerns don’t matter and thereby make badly needed immigration reform less likely.
     Like most public policy issues, immigration is complex.  But there is a broad outline of a rational policy that is obvious.  First, we must have a secure border, i.e., we must know who is coming and going in and out of country.  You cannot reform immigration without this predicate.  Second, we are not going to deport the roughly 10 million folks that are here without a valid visa.  So, let’s come up with a realistic plan about what to do with them.  Third, we must determine what is the appropriate level of immigration on an annual basis and how we should go about choosing the people we let in.
     Sure, there are those on the extremes who either want to have completely open borders or shut down immigration entirely.  But they do not represent the majority of the American people, notwithstanding that their slogans dominate the public debate on immigration.  As John McCain recently said, “To hell with them.”  It is time for reasonable people to come together to solve this problem.

The DACA Dilemma

     In Charles Dickens’ classic, Oliver Twist, when Mr. Bumble is told that the law presumes he controls his wife’s actions, declares that “the law is an ass.”  Similarly, the current law which provides that children who are brought to this country illegally by their parents should be deported back to the country where they were born is an ass.  So are the 15% of Americans who think these young people should be deported.  And there is no question that it is shameful that Congress has not already acted to fix this law.  But fixing the law through executive action, as President Obama did, pits two of our fundamental principles against each other.

     The first, of course, is fundamental fairness.  We do not hold children guilty for the sins of their parents.  Our law, in fact, does not even hold children guilty for crimes they commit.  Make no mistake: deporting a person to a country they have never seen and where they do not speak the language; ripping them from friends, family, their school or job, their community; is an unthinkably harsh punishment for a crime they did not commit.  That is why 85% of Americans oppose their deportation.

     The second principle is incorporated into Article III, Section 3 of the Constitution which provides that the president “take care of that the laws be faithfully executed.”  Most public officials are required to take an oath solemnizing the commonsense notion that executive officers are supposed to enforce the laws passed by the legislative bodies and not make up their own or decide which laws should be enforced.  To do otherwise violates our principle of the separation of powers.

     Of course, the concept of prosecutorial discretion is firmly established in our law.  In fact, the principle is mandated by the ethical rules for prosecutors to “seek justice, not merely to convict.”  The simplest example of prosecutorial discretion is when a police officer decides to issue a warning instead of a speeding citation.  I doubt many of us would accuse the officer of violating his oath of office or the separation of powers for issuing the warning; especially if we are the speeder!  But, I suspect most would feel differently if our local police chief announced he had decided that speeding laws were unnecessary and that the police force would no longer enforce them.

     I do not fault President Obama for issuing DACA in the face of Congress’ failure to act.  No, any fault for this situation must be laid directly at the feet of our worthless, cowardly Congress who will not stand up to partisan extremists to solve this problem.

     I have no doubt that President Trump’s decision to rescind DACA was a callous appeal to his base.  If he really “loved” the young people involved he would have offered and pressed for legislation to address the issue and not just pass the hot potato to Congress.  But irrespective of his motives, he is right that Congress should act.

     Even President Obama conceded DACA was a stopgap measure.  While DACA was a welcome life ring for these young people, it was never true security.  Congress needs to fix this and fix it now; and provide permanent security for those stuck in this legal limbo through no fault of their own.

     In a strange irony, President Trump is putting some of his most ardent Congressional supporters between a rock and a hard spot.  Trust me, while Republicans in Congress loved to rail against President Obama’s “usurpation” of their power by enacting DACA, they were also enormously relieved they did not have to vote on an issue strongly favored by the districts but largely opposed by their primary voters.  And they know all too well that the first of these DACA young people that is actually deported with every news outlet in the world covering it live every step of the way, will be the end of the Republican majorities in both houses of Congress.

     Here’s the bottom line.  85% of Americans agree that those brought here as children illegally should not be deported.  If Congress cannot act and continues to allow 15% of the country to impose its will on the other 85% of us, we need to fire the whole bunch and start over.

What is a Sanctuary City?

     Today’s world of 24-hour, partisan-slaved cable networks and an ideologically re-enforcing blogosphere is dominated by catch phrases that frequently create more obfuscation than illumination.  The term “sanctuary city” is exactly such a catch phrase.
     What does it really mean to be a “sanctuary city?”  There are really only two public policy issues that are relevant to this issue.
     The first issue relates to the procedures followed when a person is taken into custody.   When that happens, most law enforcement agencies attempt to make some determination about the immigration status of the person.
     Making that determination is not as straight forward as one may think.  About 40% of the individuals in the country illegally came here under a valid visa that has expired.  Those visas are frequently extended.  Attempting to determine if a visa has been extended or not is not a simple matter.  Similarly, under the Citizenship Act of 2000, if a child has one parent that is U.S. citizen, they are automatically eligible for citizenship under certain circumstances even if they were not born in the U.S.  And, of course, under President Obama’s executive order, persons here illegally, but brought here as children are not subject to deportation under certain circumstances.  President Trump recently extended that executive order.  The result is that, in many cases, you need an immigration lawyer to figure out if a person is in the country legally or not.
     If it is determined that a person in custody is in the country illegally, that information is passed along to ICE.  Federal law prohibits cities from banning this type of communication between their police departments and ICE.
     In most cases ICE does nothing with this information because it does not have the resources to deport every person here illegally.  Normally ICE focuses only on those with a criminal record.  In that case, ICE may request that the city hold the person until ICE can pick them up.  Interestingly, there is no requirement in federal law for the city to hold a person for ICE, but most do so voluntarily.
     However, some cities, like Austin and San Francisco have refused to cooperate with ICE and detain prisoners in their custody.  Some have attempted to parse the issue by holding only prisoners who have been arrested for a serious offense.
    SB4, the immigration law recently enacted by the Texas Legislature, requires cities to honor ICE detainer requests.  It is hard for me to see the argument against this requirement.  I am surprised federal law does not already require it.  It is absurd for a city to release a person in custody that ICE has identified for deportation, requiring ICE to then track them back down.
     Some have argued that ICE is targeting individuals that pose no real threat.  I have not seen any data on the type of crimes committed by those ICE is deporting, but it seems unlikely given their limited resources ICE is wasting its time with minor offenses.  But regardless cities should not be in the business of second guessing ICE’s determinations about who should be deported.
     The second issue is more complicated and deals with the procedures for when a police officer can and should inquire about a person’s immigration status.  Many police departments, including Houston, have a policy that prohibits police officers from asking a person about their immigration status until that person is taken into custody.  Interestingly, until a few years ago, the Texas Department of Public Safety had the same policy.  SB4 prohibits cities from keeping its police officers from inquiring about a person’s immigration status if that person is lawfully “detained.”
     “Detention” is different from being arrested.  When a police officer pulls you over for a traffic violation, you have been detained.  So, this controversy is really about whether police officers are going to inquire about immigration status when a person is stopped for an otherwise legitimate reason, like a taillight being out.
     The problem arises in trying to determine which individuals who have been detained, i.e., stopped, will be asked about their immigration status.  The Supreme Court has consistently ruled that police cannot discriminate during traffic stops based on race or nationality.  And, in fact, SB4 prohibits a police officer from using “race, color, religion, language or national origin” as a basis for asking about a person’s immigration status.
     So exactly how is a police officer going to decide who to ask about their immigration status without considering the person’s nationality or language?  Anytime an officer asks about immigration status, he or she is opening themselves up to a civil rights lawsuit.
     And there is another problem.  Let’s assume that an officer stops a person for speeding and during the stop that person admits that they are not in the country legally.  What then?
     If the officer arrests the person for being in the country illegally, there is literally nothing to do with the person.  The County jail will not take them.  ICE will not take them.  In fact, there is a complicated legal issue as to whether local police officers even have the lawful Constitutional authority to make arrests under federal immigration law in the first place.  So, what is the point of asking?
     The bottom line is that local police are not going to be asking detainees about their immigration status except in very extraordinary circumstances, SB4 notwithstanding.
   Immigrate advocates argue police officers asking about immigration status will chill immigrants from reporting crimes and being willing to be witnesses in criminal cases.  SB4 attempts to deal with that issue by prohibiting officers from asking crime victims or witnesses about their immigration status.
     There have been several reports that the number of crimes being reported by the immigrant community has declined recently.  Opponents of SB4 have attributed this decline to the bill’s passage which seems pretty far-fetched, considering it has not even gone into effect.  I have no doubt there is a decline, but that is more likely caused by the overall tone of the of national immigration debate, not one specific bill.
     The bottom line is that SB4 is going to have little effect either way on the immigration challenges we are facing.  Texas, like other jurisdictions, has entered the immigration fray out of frustration with Congress’ inability to act.  There is no question that allowing millions to enter the country illegally over the last three decades has caused many problems: accidents with uninsured motorists, criminal gangs slipping into the country with immigrants coming here to work, overcrowded schools and public hospitals . . . the list goes on and on.  Congress’ failure to enact comprehensive reform is an inexcusable dereliction of their duty.
     The principal elements for such reform are clear and supported by an overwhelming majority of Americans.  Secure the border.  Provide a procedure for those here illegally, but are contributing and not criminals, to get legal or get out.  Create an enforceable temporary worker program.  Set reasonable annual immigration quotas.  It is not rocket science.
     But until Congress acts expect more SB4s, more litigation, more hardship for US citizens forced to  deal with the problems caused by illegal immigration, more uncertainty for immigrants, and more acrimony over a problem that is 100% self-inflicted by our worthless, do-nothing Congress.
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