Monday, July 19, 2010

Immigration Laws and Moral Judgments

In all the debate about S.B. 1070 and illegal immigration, I have heard a lot of bitter and emotionally-charged arguments made. The saddest, in my opinion, have been certain arguments raised on moral grounds. Specifically, I have heard supporters of S.B. 1070 assert that people who come to our country in violation of our immigration laws are acting immorally. It has even been asserted that parents who come here in violation of U.S. immigration laws are setting a poor example for their children. Some have even argued that parents who are here illegally ought to take their families back to their countries of origin in order to teach their children proper ethics. I have heard the people who make such arguments point out rather proudly that their own forbearers came to this country in compliance with its immigration laws. They believe others ought to do the same.

To be clear, I certainly believe in the rule of law. I am a lawyer and a law professor after all. It would be a betrayal of my profession and my entire professional life to believe otherwise. And having lived in border states the vast majority of my life, I am acutely aware of the violence and crime that can be associated with human trafficking.

However, I also do not believe in turning a blind eye to reality. In my opinion, we should take our patriotism seriously enough that we question both the underpinnings and the repercussions of our laws. And we ought to be critical of unjust or ill-advised laws; we ought to advocate appropriate changes when they are warranted. Ours is a country built on democratic values after all, not one built on blind allegiance to those in power who enact our laws. For several reasons, it saddens me deeply to hear such comments that express moral superiority over those who violate our immigration laws.

We should note that many of our own citizens frequently violate our laws. Drivers routinely operate their vehicles in excess of the posted speed. Such actions are violations of our traffic laws, which are intended to keep us safe on the roads. But most speeders are never even pulled over or issued a ticket.

It is also widely acknowledged that there is a huge “tax gap” (i.e., the difference in the amount of taxes legally due and the amount that is actually paid). Such underpayment of what is owed is a violation of our tax laws, which are intended to keep the government operating. Among other things, such tax revenues enable the government to provide supplies and salaries to our men and women in uniform, and to build roads that support the many transactions upon which our economy depends. Interestingly, experts tell us that most violators of our tax laws are individual taxpayers, not corporations.

Possession and use of narcotics have also been illegal for a number of years in the United States, yet the use of such narcotics is widespread in this country. Our prisons are populated largely by people who violated such laws, though many others violate them and are never arrested or prosecuted. (Notably, the last three men elected president have fallen into that latter category.)

In my experience listening to the debate, the folks who argue that it is morally unacceptable to violate our immigration laws do not seem to ever argue it is also unethical to violate speed limits and/or tax laws. I do not even hear them making moral condemnations of our citizens who use narcotics illegally. Personally, that latter example of hypocrisy is particularly offensive to me. Surely we can all agree that much of the current narcotraffic-related violence terrorizing people in Mexico is at least partially the fault of the United States. We have collectively insisted on criminalizing drugs in our country, yet our own people ignore those laws and (tragically) have created a huge demand for illegal narcotics. To be consistent, if we are wagging fingers at violators of our immigration laws, shouldn’t we also look down our noses at our citizens who violate our drug laws (and foolishly risk their health)? To be clear, as a Christian, I am not advocating that we make moral judgments against anyone. But I flag the hypocrisy of making moral judgments against those who break certain laws, but not making moral judgments against those who break others.

In my own experience, people who make morality-based arguments against illegal immigration tend to be of European ancestry. I have yet to hear Asian Americans or African Americans make such comments for example. But European Americans, who boast that their forbearers came here legally, overlook (or are perhaps simply ignorant of) certain structural advantages their forbearers enjoyed. (As an American of European ancestry, my own forbearers certainly enjoyed those same structural advantages.) When I was a law student and took a course on Immigration Law I became aware that through out our history as a nation American immigration laws have been heavily skewed in favor of immigrants from Europe. Until certain reforms were instituted in the 1960s, it was very difficult—or at times outright impossible--for people from Asian, African or Latin American countries to immigrate legally to this country. Yet at the same time, the doors were typically open to immigrants from Europe as long as they were not mentally ill, did not have a communicable disease or otherwise were not personally deemed to be undesirable. To be sure, those European immigrants were not always warmly welcomed when they first came or even after they arrived. But the bottom line is that legal immigration was typically much easier for those European immigrants than if they had come from other parts of the world. It is no wonder that the forbearers of European Americans largely obeyed the immigration laws in effect when they came to this country. Those laws were pretty favorable to them. It generally benefited such individuals to obey such laws. Indeed, there was no real incentive to do otherwise.

Daniel 9:11 (New King James Version)

Yes, all Israel has transgressed Your law, and has departed so as not to obey Your voice; therefore the curse and the oath written in the Law of Moses the servant of God have been poured out on us, because we have sinned against Him.

Galatians 5:1, 7-8, 14 (New King James Version)

Stand fast therefore in the liberty by which Christ has made us free, and do not be entangled again with a yoke of bondage.

You ran well. Who hindered you from obeying the truth? This persuasion does not come from Him who calls you.

For all the law is fulfilled in one word, even in this: “You shall love your neighbor as yourself.”[


  1. I wonder if, in the debate about immigration laws, you (or the debaters you are listening to) have posed the question to those with whom you (or they) are debating inquiring as whether they agree it is also unethical to violate traffic laws and tax laws and drug laws. I suspect they would be consistent and agree that violating such laws (and indeed all duly-enacted laws which do not violate 'God's laws') is unethical (leaving out the possibility that certain exceptions may excuse the violation, such as rushing a dying person or pregnant woman to the hospital). In other words, it appears to me you are setting up a straw man argument.

    Your point about how the immigration law has tended to favor certain ethnic backgrounds, however, is well taken. But, after all, that is one function of the immigration law, is it not? So as the population changes and the needs of the country change, we should encourage lawmakers to modify the immigration laws (i.e. adjust the number, or quota, and criteria) to reflect the changes and/or anticipate the future needs and interests of the country. All with a keen sense that it takes time to educate immigrants about our political and economic systems and uniqueness in the world, to instill and nurture a desire to be a part of those systems, and ultimately to persuade the immigrant to cast their full allegiance to our political and economic systems.

  2. Individuals are, of course, the majority of tax violators. 1) Corporations can shift their income off-shore and avoid taxes. “Tax Avoidance” is legal. “Tax Evasion” is illegal. 2) The IRS code is impossibly complex. It is easy for individuals to accidentally violate it. Unlike corporations they cannot afford to have a full-time CPA to navigate it.

    It is completely false to say that the European forbears had an easier time with legal immigration than those from elsewhere in the world. The immigration changes in the 60’s made immigration “family-based”. From the 1880’s to the mid 1920’s immigration was 600,000 annually. From the 20’s to 60’s it was 200,000 annually. Between 1965 and 1990 immigration averaged 1,000,000 annually. Since 1990 immigration has averaged 1,500,000 annually (one million legal and half a million illegal).

    The pure numbers, regardless of the laws or violations of them, show that non-European people have not and are not having a hard time immigrating compared to earlier European immigrants. It is the PURE numbers though that are what cause concern: how does the environment support these people (Americans use a hugely disproportionate share of the world's resources--these immigrants are not coming here to live a third-world "lifestyle"), how does this affect legal citizens and immigrants ability to obtain work, how does allowing so many people into the country (legal or illegal) fit in with U.S. financial elites destroying the U.S. manufacturing base and sending not only those jobs overseas but professional jobs such as engineering, accounting, architecture, paper-processing overseas too. Just what are the real issues involved? What purpose does immigration serve in an economy that is being deliberately down-sized and out-sourced by the elites?