Saturday, June 18, 2011

Gary Palmer and Cameron Smith: Immigration: Feds fail and Alabama acts

  Recently Alabama enacted an immigration law characterized as "Arizona-style," "tough," and even "troubling" by political pundits and interested stakeholders. Unfortunately the most radical aspect of many of the recently passed state immigration laws, including Alabama's, is not their content but rather that they seek to enforce immigration laws in the first place.

  Enforcement of our federal immigration law has been so weak for so long that most people do not realize that many of the "novel" provisions of Alabama's law have been on the federal books for years. Lost in the many inflammatory critiques of the state's new immigration law is that it mostly mirrors existing provisions in Title 8 of the United States Code.

  Consider just a few components of the federal law echoed in Alabama's immigration legislation. Title 8 clearly provides civil and, in some cases, criminal penalties for employers who knowingly hire or retain unauthorized aliens. Federal law also outlines provisions for a written complaints process against suspected employers of illegal aliens, contains penalties for false document production and use, and contains civil and criminal penalties for entering the US illegally. The Alabama legislature mapped similar provisions into Alabama's own immigration law.

  The American democracy functions because our elected representatives generally pass laws that hopefully provide a net benefit for all. When those laws fail to benefit the nation or state as happens from time to time, citizens collectively vote in new representation to change them. All along the way, the agreement to abide by the rule of law, whatever the laws may be, backed by the government's fair and equal enforcement of those laws is the tenuous fabric that holds our society together.

  When any law is not enforced, or is enforced sporadically, the arrangement breaks down. Those breaking the law become accustomed to a permissive environment where abiding by the rule of law is a matter of volition rather than necessity. Consider the example of a stretch of highway where no one is ever pulled over for exceeding the speed limit. The law is clear but not enforced. Over time, drivers become accustomed to driving faster and faster. If state troopers start enforcing the law after years of absence, people become irate, even openly hostile simply because they had become used to ignoring the law.

  If national and state lawmakers bother to make laws, they must be enforced. If there is no intent to enforce them, then the law should not exist in the first place. Reasonable minds may differ about the correct temporary worker program, the best immigration procedures, and who may enter our nation and when. However, failure to enforce existing law while America resolves those issues undermines the very rule of law that makes our nation possible.

  As much as some would like to discount Alabama's new immigration law as a xenophobic reaction by a conservative state, Alabama is making a good faith attempt to defend the credibility of the federal government and the rule of law in the state where the federal government has failed to honor its enforcement obligations. Make no mistake, immigration reform is predominately the province of the federal government, but Alabama and other states find that enacting legislation consistent with current federal law is better than having little or no enforcement from the federal government.

  The Obama Administration has clearly taken the position that it will not defend laws that it does not support such as the Defense of Marriage Act (DOMA). Apparently it has also taken a similar stance on immigration, forcing states to enforce their own immigration laws or stand idly by as the rule of law is trampled. To be fair, the Bush and Clinton Administrations also failed on immigration enforcement.

  This troubling trend is precisely why the rule of law matters. If those responsible for enforcing the law elevate their political interests or personal views above the law itself, then we have moved from a democracy to an authoritarian regime where the ruling elite possess arbitrary power.

  This is not a conservative or liberal plight, but an American one. Supreme Court Justice Sonia Sotomayor, noted when nominated to the Supreme Court that "the rule of law [is] the foundation for all our basic rights." To protect those basic rights, America ... and Alabama must defend the rule of law without personal or political prejudice. As difficult and controversial as that may be, the operation of our democracy depends upon it.

  The lesson learned from Alabama and other states passing their own immigration laws is that states are being forced to step in where the federal government has failed to meet its obligations. Unfortunately for many Alabama businesses, the state's effort to enforce the law will impose significant hardships on them and further weaken Alabama's economy. In that regard, all of us will pay a price for the federal government's failure to enforce the law to begin with.

  About the authors: Gary Palmer and Cameron Smith are with the Alabama Policy Institute,  a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.   

  This article was published by the Alabama Policy Institute.

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