Undocumented Immigration Discretion In A Nation Of Laws

It is against the law to cross the border illegally. That is what Republicans say, as if to educate the rest of us. Oh, and thanks for the redundancy! They tell us we are a “nation of laws,” and those laws must be enforced. It’s as if they are saying, “I would be more compassionate, but the law has my hands tied.” They are not against immigration, they tell us, but people need to immigrate the right way, because it is deeply unfair that some people skip to the front of the line.

I have no doubt there are Republicans of good faith when it comes to what I just laid out, that they truly believe every word of it. But there is little doubt there are many Republicans who are playing a game, because they are actually against all immigration, legal or otherwise, but they use illegal immigration as cover.

Crossing the border without proper documentation is a federal crime. Yes, thank you very much. But where Republicans are wrong is when it comes to legal discretion, a notion possibly antithetical to an authoritarian mindset. The idea that laws are not black and white, that law enforcement and courts can exercise a degree of circumspection, really must fuck with their heads. It is up to every administration of government, from the federal level, state level, and local level, to decide how they will enforce the law, and in a democracy, normalcy rules the day. If and when a new precedent must be set, we hope it happens with logical and reasoned deliberation. Indeed it’s an imperfect system, but it’s the best thing we’ve come up with. So yes, we are a nation of laws, but at any given time there are laws we never enforce, laws we enforce mildly, and other laws we enforce by Thor’s hammer.

That illegal immigration is against the law is really extraneous to the bigger moral concerns. Because it is near certain we have all broken a law at some point in our lives. We don’t label people as “illegal” because they ran a stop sign, or because they exceeded the speed limit. Illegally crossing the border is probably a bigger violation than speeding, but it is hardly a major offense. A human being cannot be “illegal,” and the crime of crossing the border illegally is a crime with no victims. We might be a nation of laws, but I hope we are also a nation of morals. What does it say about our morals when we choose to enforce laws knowing it will rip families apart?

There are laws where discretion is limited, for crimes like murder and rape. But there are also laws where we must allow room as a society to consider circumstances along side our ethical and moral responsibilities. We must understand our punitive actions have human consequences. And we must accept our hands are not tied. Enforcing our immigration laws to the absolute does not make it easier for a person to legally immigrate, which makes the “unfairness” of illegal immigration a red herring. If Republicans really do care, they should concern themselves with fixing a broken system which makes it unduly difficult to immigrate legally. But you must excuse me, I do have my suspicions, because it might be the “otherness” they have a problem with.

When an immigrant crosses the border, they are seeking a better life. They would have no reason to stay here if they did not find their place in our society. In fact, the most egregious aspect of illegal immigration is not that people are crossing the border illegally, it is that we have an economy of cheap things enticing people to do so. Without millions of undocumented immigrants, food would be more expensive. Without millions of undocumented immigrants, we would face higher taxes, because undocumented immigrants often pay taxes for benefits (Medicare, Social Security) they never receive. It would seem illegal immigration is a net positive for the average documented American, which means our true concern should be our exploitation of people every bit American, save for documentation.


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