Monday, February 6, 2012

A line of would-be immigrants? There isn’t one

The following is an interesting and reasonable setting-out of the existing legal position but I think that both sides of politics envisage new Federal legislation

IN THE VENOMOUS debate over illegal immigration, there is a point of agreement between President Obama and some of his would-be Republican rivals, including former Massachusetts governor Mitt Romney. They’d like to see undocumented immigrants “get to the back of the line” for citizenship. Unfortunately, that convergence of views distorts rather than illuminates the debate.

Granted, Mr. Obama and Mr. Romney have different ideas of how the “line” would work. The president doesn’t seem inclined to force unauthorized immigrants to leave the country before applying for legal status. Mr. Romney thinks it would be nice if they somehow “self deported,” then lined up back home for legal re-entry to America. In the end, the distinction is meaningless — because there is no line, not even a relevant visa category, for millions of immigrants.

Here’s why. A large majority of the 11 million illegal immigrants are unskilled or low-skilled Mexicans. Many of them have no relatives over age 18 who are either U.S. citizens or permanent residents in possession of green cards.

That makes them ineligible for any realistic visa category. They are barred in most cases from employment-based visas, which favor skilled and well-educated applicants, and from family-based visas, which require applicants to have spouses, parents or siblings who are U.S. citizens or hold green cards. (Even the “line” for those visas often takes 15 to 20 years or more.) There is simply no immigrant visa category for which most unskilled Mexicans qualify and no realistic prospect they could be legally admitted to the United States. About half of the unauthorized adults in the country are Mexicans who probably have no category for admission, according to Pew Hispanic Center senior demographer Jeffrey S. Passel.

However, there will continue to be a demand for their labor. At least 7 million illegal immigrants are in the American work force, in many cases doing jobs most Americans consider too dirty or unsuited to their educational attainment. (A half-century ago, about half of American men dropped out of high school to seek unskilled work; today just 10 percent do.)

There is a tiny number of “other worker” immigrant visas for which Mexicans may apply. But those applications take several years and require employer sponsorship. And no employer would go through the time and expense of sponsorship for an unskilled worker.

It is possible to argue that the United States should shift away from family-based visa preferences toward employment-based ones or that it should create a new category of visas for skilled or unskilled “fortune seekers,” who, like millions before them, want to come to America because of its record of rewarding hard work and hustle.

Likewise, we would like to see an improved guest worker program, one that offered American employers some reasonable prospect of filling jobs with adequate numbers of immigrant employees in a timely way. But as things stand now, those things don’t exist.

On the campaign trail, it may sound tough or fair or common-sensical to demand that illegal immigrants “get to the back of the line.” In fact, it is a convenient fiction, a trope designed more to obfuscate than resolve a policy mess that politicians find too hard to tackle.


SC goes to court of appeal over immigration law

On December 22, 2011, a judge for the U.S. District Court for the District of South Carolina issued a preliminary injunction blocking the enforcement of key provisions of the South Carolina immigration statute. Last month, South Carolina Attorney General Alan Wilson (left) filed papers in the Fourth Circuit Court of Appeals requesting that court reverse the lower court’s ruling.

Wilson represents the Palmetto State in its defense of the immigration law passed last year. The challenge to the law’s constitutionality was filed by a group of civil rights organizations and the U.S. Department of Justice.

Of the 20 sections of the South Carolina law, four of them were challenged and, since the ruling handed down in December by District Court Richard Gergel, are now temporarily enjoined from being carried out. These four include provisions which that state criminal sanctions for: “harboring and transporting of unlawfully present persons”; “failure to carry alien registration materials”; “the creation of fraudulent identification documents”; and the directive to state and local law enforcement officials to “determine the immigration status of certain persons encountered in routine traffic stops and other contacts in which there is a ‘reasonable suspicion’ that the person may be in the United States unlawfully.”

The civil rights groups challenging the law argue that enforcement of the law requires de facto racial profiling. The Justice Department argues that the Constitution places all power over the establishment of immigration policy in the hands of the federal government and that the legislature of South Carolina is thus preempted from passing legislation in that area of the law.

The argument is that once the feds have “occupied the field” of this or that area of the law or policy, no other government (state or local) may trespass therein. In short, the Obama administration insists that the federal government has such a compelling interest in establishing laws and policies in a certain area, any legislation in that area passed by another entity (the legislature of South Carolina in this case) would interfere with the enforcement of the federal statutes.

According to the complaint filed by the Justice Department, the South Carolina law, if enforced, would unlawfully conflict with federal immigration statutes and would contribute to a patchwork of state and local laws many of which would contradict currently operative federal immigration policies and principles.

Specifically, the filing claims: "In our constitutional system, the federal government has preeminent authority to regulate immigration matters and to conduct foreign relations. This authority derives from the Constitution and numerous acts of Congress."

Nowhere, however, has the government been able to point to the exact location in the Constitution where there is found exclusive congressional authority to regulate immigration.

The enumeration in the Constitution of specific powers delegated to the federal government is the cornerstone of American political theory and of the constitutional Republic established in 1787. The basic definition of enumerated powers is that the best limitation on power is to not give it in the first place. Powers, as understood by Madison, Jefferson, et al., were only legitimate if they had been granted to the government by the people and written specifically in the document through which the governed gave life to the government — the Constitution.


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