Bush Right, Cruz Wrong: Immigration “Rule of Law” Nowhere to Be Found


EspañolThe latest spat on immigration in the Republican Party comes courtesy of former Florida Governor Jeb Bush and Senators Ted Cruz and Rand Paul. Last week, Bush commented that people who immigrate illegally to the United States are often looking for new economic opportunities to provide for their families in a manner not available in their home countries.

Bush — who led a state with almost 20 percent foreign-born residents — reasons that “Yes, they broke the law, but it’s not a felony. It’s an act of love, it’s act of commitment to their families.”

Senator Paul agreed this week that those who seek the American dream are not bad people. But he stressed the importance of controlling the border because “we can’t invite the whole world.”

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Senator Cruz similarly argued that the United States should welcome and celebrate legal immigration but not illegal immigration, to maintain the “rule of law.” This call to legality is a common retort from the GOP on immigration. But what exactly is the “rule of law,” and is it really relevant in the case of immigration reform?

The rule of law implies legal processes and procedures. It supports the commonly used aphorism that no one is above the law. This means there are predictable outcomes for legal infractions and an equal application of punishment consistent with the legal tradition of a given state. Unfortunately, US immigration law today poorly resembles this image of equal jurisprudence.

The US immigration bureaucracy is extremely complex. The regulatory web includes detention centers with arbitrary sentences and immigration officers without clear instructions on dealing with situations. Over 33,000 noncitizens are in jail each day and are held for an indefinite amount of time. When they finally do go to court, each immigrant’s case is decided in an average of seven minutes, due to an overcrowded legal system.

This mass web of bureaucracy distorts the notion that immigrants are treated equally and have clear expectations for legal outcomes. Cruz’s notion of the “rule of law” cannot be found in today’s immigration system.

There are three options when bad laws, like overtly restrictive immigration policies, are on the books.

First, the laws can be enforced despite high costs. For example, the federal government spends US$50 billion per year fighting the War on Drugs, without any tangible success in limiting use or addiction.

Second, laws can be changed. For example, critics on both sides of the aisle are calling for reform of the federal government’s broken tax code.

Third, bad laws can be ignored. During the civil rights era, many African-Americans rightfully disobeyed racist Jim Crow laws that horribly perpetuated a notion of “separate but equal” between whites and blacks. Immigrants should similarly not be condemned when they disobey backwards laws. After all, it is more important to have good laws than to strictly enforce bad ones.

If Cruz believes that the “rule of law” means enforcing all laws regardless of their benefit or cost to society, then he is being inconsistent when he argues the Affordable Care Act should be amended but immigration laws must be upheld. Either Congress has the duty to uphold laws as passed, or Congress can alter such legislation while maintaining the “rule of law.” Cruz cannot continue to peddle the notion that some laws require changes or full repeals with no effect on the “rule of law” while others would send the rich US history of law into a tailspin.

Some Republicans argue that US national security is at stake if we do not uphold the mythical “rule of law” with immigration. Their claims simply do not stand up to empirical research. Since 9/11, 37 cases of deportation have been pursued on grounds of terrorism. That is 0.001 percent of total deportations, a terrorist needle in the haystack. If the federal government wishes to get serious about post-9/11 security, it should devote precious resources to legitimate security threats instead of trying to locate millions of illegal immigrants for the sake of labor-market manipulation.

Republicans’ “rule of law” argument against immigration does not stand up to the facts. It is purely a political excuse the GOP has used time and time again to delay immigration reform indefinitely. As Alex Nowrasteh of the Cato Institute has written, “Congress didn’t wait until it caught every bootlegger before ending Prohibition or prosecuted every tax cheat before it instituted the Reagan tax cuts.”

Bush is correct that the American dream and economic opportunity inspire families to immigrate. The United States is a nation of immigrants, but unfortunately we have closed the door to opportunity for millions who hope to undergo the same journey many of our ancestors went through generations ago. It is critical for the United States to begin dismantling immigration restrictions and return to an actual rule of law based on safe and legal immigration.

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