Immigration and Respect for the “Rule of Law”

To right-wingers who say that the Arizona immigration law is necessary to protect “respect for the rule of law,” there is a simple two word answer: John Yoo.

So just a few minutes ago I was having a conversation with a very conservative Republican colleague about immigration and the Arizona law.  I agree on virtually nothing with this colleague, but always like to hear his views.  but then he said something that would have made me go ballistic if I hadn’t been able to control myself.

“The problem if we don’t enforce immigration statutes,” he told me, “is that it breeds disrespect for the rule of law.”

To which there is a simple two-word answer: John Yoo.

Seriously, the same people now talking about the rule of law, ran roughshod over decades of settled opinions concerning torture, concerning the separation of powers, concerning search and seizure, concerning, well, just about anything if it stood in their way, and they are now lecturing us on the rule of law?

I realize that hypocrisy is the tribute that vice pays to virtue, but this tribute is a little too high — which makes it rancid.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

24 thoughts on “Immigration and Respect for the “Rule of Law””

  1. I would have replied, "Then you must oppose Obama's decision not to prosecute Bush's war crimes, right?"

    You might also point out that enforcement of the law can breed disrespect for the law. This is the case with victimless crimes and with irrational laws. They come into play together in the case of enforcing laws prohibiting driving under the influence of marijuana against people who are not under the influence of marijuana. See:

    http://reason.com/blog/2010/05/13/smoke-a-joint-g

  2. Technically, the people who were running roughshod over this and that during the Bush administration were complicit in the bipartisan conspiracy to leave our immigration laws unenforced. IOW, they were on YOUR side of this fight. They were merely required by political realities to lie about it.

    I know it's convenient to treat the entire Republican party as an undifferentiated mass; It lets you accuse people of hypocrisy for things other people did. But it's not exactly honest.

  3. Anyway, the problem isn't that failure to enforce immigration laws breeds disrespect for the law. The problem is that it demonstrates disrespect for the law. On the part of the very people whose job it is to craft and enforce the law.

    It demonstrates that the very people who write laws, and demand that others comply, feel no obligation at all to comply with any law THEY don't like. It doesn't make the citizenry lawless, it proves the government lawless.

  4. Doesn't this mean Graham is the only Republican who even tries to be consistent?

    I have to say, he must not get much sleep, he has so much work to do to try to keep the (elected) GOP honest. And look what he gets for it!

  5. There's a difference between nonenforcement & imperfect enforcement. Millions of people have been deported from the US in the last decade, more each year than the last. We maintain the largest immigration detention archipelago in the world, & spend tens of billions of dollars a year to enforce immigration law. We are inexorably militarizing our southern border. People die in the desert, in jail cells, & in other ways because we do enforce our immigration laws.

    It's an empirical question whether or how far nonenforcement of a particular law breeds contempt for or violation of any other law. If a law that's widely seen as unjust is enforced perfectly, or if a just law is enforced in ways that are seen to be unjust, it's possible that that, too, may foster contempt for the law.

    There are a lot of dead-letter laws. They aren't all equally seen to foster contempt for law. If someone says the fact that people flagrantly, in plain view, play dominoes on Sundays in Alabama, or carry ice cream cones in their back pockets in Kentucky, or a thousand other things, fosters contempt for the law or breeds mayhem, we think they're punctilious or odd. Some laws are unenforced because they're bad laws. It would be best to change them, but better to leave them as dead letters than to try to enforce them perfectly. People who prevent their repeal contribute to the contempt with which they're viewed, whether they're enforced or not.

  6. "There’s a difference between nonenforcement & imperfect enforcement."

    Quite true. As the purpose of, ahem, 'imperfect' enforcement of immigration laws is to provide business with a ready supply of cheap, and easily intimidated labor, complete non-enforcement would be counter-productive; With no enforcement at all, the illegal aliens wouldn't be easily intimidated. There has to be little enough enforcement to assure a ready supply, yet enough enforcement to maintain a degree of fear.

    It's a delicate balance, but they've been practicing for a long while.

    Some laws are left unenforced because they're bad laws? But not repealed out of sheer laziness? But some laws are left on the books, but not enforced, because the PUBLIC likes them, but the GOVERNMENT doesn't. That's the case with immigration laws. It's not that there's agreement they're bad laws. It's that the public and the government are in disagreement, and the government is determined that the public shall never get what the public wants.

    It's things like this that make democracy a joke.

  7. We DO enforce the immigration laws. "The 387,790 illegal immigrants removed by ICE in fiscal 2009 was . . . a record . . ." Anyone who claims we aren't enforcing these laws is lying. Period.

    And if we use whatever metric these liars are using to justify their claim in their own heads, then there are almost certainly many, many, many, many other laws that we also DO NOT enforce, by that same metric, including OSHA, mine safety, CWA, and even simply speed limits, all of which are laws of this nation, all of which deserve the same respect for the rule of law, and all of which impose tremendous burdens on innocent victims. But you rarely, if ever, here these folks rant about "low" enforcement rates in these areas. Indeed, you are far more likely to hear them rant about what they claim are excruciatingly "high" enforcement rates.

    Hypocrites.

  8. Well, he loses points right off the bat for use of the term "breed". I'm serious. This shit is 90% unconscious. Of course there is no evidence for my slander of the individual (although there is enormous evidence for the phenomenon in general).

    So my comment will be taken as a cheap shot. Which it is as much as it isn't. And to me, that makes it worth typing.

  9. It's bad for the law to be held in contempt, either by being viewed w/ impunity or by being regarded as illegitimate or bad law. What we do if a statute does cause law to be held in contempt always depends & should depend on extralegal judgments. Nobody, including Zasloff’s colleague, proceeds directly from the fact that some law has been duly enacted to the conclusion that it’s a good law & should be enforced to the maximum degree possible by any (legal) means necessary, or that any further statute that may conduce to its enforcement is good & right. Nobody really stands entirely on legalism. The hypocrisy is that they pretend they do.

  10. Here in the Central District of California, which is not even a border district, illegal reentry cases constitute upwards of half of our practice at the Federal Public Defender's Office. If that's "non-enforcement," I'd hate to see what enforcement looks like.

  11. I suppose this fellow always drives at or below the speed limit, and insists on rigid enforcement of the law here?

  12. I think that some commenters responded to the argument of Prof. Zasloff's colleague (let me call him "Professor Wingnut") much better than Prof. Zasloff did.

    "John Yoo" is a tu quoque response. It doesn't address Professor Wingnut's point, which was a sound one, insofar as it went. Nonenforcement of a law on the books does have a social cost. Henry and K have much better responses: enforcement of laws widely perceived as unjust may be worse than nonenforcement, and there is a big difference between inadequate enforcement intensity and nonenforcement.

    Of course, immigration law contains a much more subtle enforcement issue. If you were serious about enforcing immigration laws, you would need a specialized immigration police, which has virtually no communication and absolutely no public identification with local cops. That way, local cops would be free to preserve local law and order, which requires the trust of illegal immigrants.

  13. "To which there is a simple two-word answer: John Yoo.

    Seriously, the same people now talking about the rule of law, ran roughshod over decades of settled opinions concerning torture, concerning the separation of powers, concerning search and seizure, concerning, well, just about anything if it stood in their way, and they are now lecturing us on the rule of law?"

    So your thesis is that its the Democrats turn to ignore laws they find inconvenient so as not to piss off their base?

  14. Joe S. says:

    "“John Yoo” is a tu quoque response. It doesn’t address Professor Wingnut’s point,

    which was a sound one, insofar as it went"

    It's pointing out that Professor Wingnut is a liar, and not worth arguing about.

    It's pointing out that the people who sponsored the AZ law are (almost certainly)

    people who spent 8 years cheering on every violation of the law that the Bush administration

    gleefully committed.

  15. Barry,

    People can have cognitive biases without being liars. Since Prof. Zasloff seems like a reasonable guy, I doubt that he enjoys talking to liars. So I doubt that he (who knows and enjoys Prof. Wingnut) views Prof. Wingnut as a liar.

    Unless we view "liar" as a appellation of last resort, we'll never be able to work out our disagreements and conflicts. You've really got to work hard to earn the title "liar," which signifies that discourse is at an end.

    That being said, I'll cheerfully apply the l-word to any Republican apparatchik. They worked hard for the title, and deserve the credit after all these years. I will not apply it to the standard-issue wingnut, who has always struck me as being a depressingly sincere type of person.

  16. I don't think those of us on the left will ever agree to the police state and mass deportations it would take to "enforce" immigration law in a way the right might like.

    If there were societal agreement sufficient to create a real employer sanction, on the other hand, that might get us somewhere. But I don't see the support for that either, since it would mean either huge fines or jail for a lot of employers, probably especially the Mom and Pop ones. But that's the only tactic that I would find ethically acceptable, since it puts the burden on the more fortunate and powerful people (relatively speaking).

    I wonder, why didn't AZ try that? Could it be that we don't really want to pay more for a salad?

  17. AZ did pass a real employer sanctions law (The Fair & Legal Employment Act) in 2007: it sponsored by Russell Pearce, the same thug who gave us SB1070. Although he (& the anti-immigration movement generally) have made it clear they'd prefer something like Operation Wetback on a grander scale, they'll settle for starving people out one by one. The point is large-scale population transfer; it doesn't matter much how it's accomplished.

    There was an article by Sara Rubin at The Atlantic a few days ago on the parlous condition of the AZ lettuce industry. It has little influence in the AZ Republican Party.

  18. "“John Yoo” is a tu quoque response. It doesn’t address Professor Wingnut’s point, which was a sound one, insofar as it went. Nonenforcement of a law on the books does have a social cost. Henry and K have much better responses: enforcement of laws widely perceived as unjust may be worse than nonenforcement, and there is a big difference between inadequate enforcement intensity and nonenforcement."

    That's true as far as it goes, but nobody who wants to claim to be part of a "reality based community" should pretend that the immigration laws being grossly under-enforced are "widely perceived as unjust". Polling shows them to be very popular, even a majority of Democrats favor the Arizona law.

    They just happen to be unpopular among the rather unrepresentative class of people who hold public office.

  19. No Brett.

    "Widely" might mean 51% to you, but it didn't to me, and doesn't in the context of my comment. I'd say about 98% of Americans believe that incarceration for murders, robberies, rapes and the like is quite just. That's "widely." There is not much social cohesion cost in incarcerating murderers, robbers, and rapists.

    If about 10-30% of Americans believe that a criminal law is unjust, the legitimacy of the law is politically contestable. (I don't want to quibble about numbers.) That's not a good thing, unless the argument for criminalizing the behavior is overwhelming. You don't want the notion of crime to be debatable, except around the edges, if you can possibly help it. It doesn't help the legitimacy of society all that much. This is basic prudent conservatism, of the Burke-Bismarck variety.

    I think you might be reaching for the comments box right now, about to fire off something about guns. But guess what? Us libruls have anticipated this. Most of us have given up on most of gun decontrol, although we still think it stupid policy and by no means required by the language of the Second Amendment. Too much of the population–maybe 10% or so–has become Second Amendment fundamentalists. Libruls don't like to criminalize our minority religions. Unless, of course, threats of violence is part of the cult. We still have social consensus on that.

  20. Joe, if you wanted to set a really high super-majority standard, you could argue that the Arizona law is NOT "widely" perceived as just. You can't, on the basis of existing numbers, say that it's "widely" perceived as unjust, without admitting that it's at the same time widely perceived AS just. Surely one side of that dichotomy gets to use the same definition of "widely" as the other, right?

  21. Joe S. says:

    May 14, 2010 at 11:42 am

    "Barry,

    People can have cognitive biases without being liars. "

    Agreed.

    "Since Prof. Zasloff seems like a reasonable guy, I doubt that he enjoys talking to liars."

    The way that the world runs is people refusing to call out the liars in their professional networks. See: academia, politics, government, law, business, etc.

    " So I doubt that he (who knows and enjoys Prof. Wingnut) views Prof. Wingnut as a liar."

    (a) That doesn't follow, and (b) he could very well view prof. Wingnut as a liar, but be reluctant to say so publicly.

  22. "Seriously, the same people now talking about the rule of law, ran roughshod over decades of settled opinions concerning torture, concerning the separation of powers, concerning search and seizure, concerning, well, just about anything if it stood in their way, and they are now lecturing us on the rule of law?"

    Is 3 words, "Roper v. Simmons" an appropriate response?

    Concerning search and seizure? You might want to look up recent Supreme Court decisions on search and seizure before you cast blame on certain sides. Quick which side was Stevens on? Which side Scalia? Which side will Kagan be on?

    I actually would say that there is a declining sense of the rule of law, and both sides seize upon it to their political advantage a disturbing number of opportunities.

    "concerning the separation of powers" have you read Kagan on the unitary executive from when she was working with Clinton on avoiding Congressional oversight? Or are you dismissing that because she has the right view on abortion?

    This respect for the rule of law thing isn't exactly held by either of the political parties in the United States.

  23. In real life employer sanctions as an enforcement tool have real problems as well- either you have to have what we have now, a fairly loose "good faith" exception, or else you need something we don't have, are not likely to really attempt (partly for good reasons, partly for stupid ones), a "secure" national ID that everyone has and that is very hard to fake/buy/borrow, etc. Beyond the political reasons for worrying about such IDs, it's not clear how possible they are, at least not without lots of side-effects we probably don't want. But, if you don't have either the very loose good-faith exemptions we have now, or the sort of very good ID that's not likely to be put in place and maybe not practical, you'll end up with lots and lots of discrimination against people who look or sound "foreign". If employer sanctions are serious, the amount of discrimination will be serious, too. It, too, would be illegal, but it's hard to prove. Because of this (among other things) I'm less optimistic that employer sanctions are a reasonable step than are many other people.

  24. One thing: Perfect enforcement of existing law would entail a forcible population transfer on a scale not seen in the industrialized world since the aftermath of the World War II. (It's a secondary matter whether this would have to be done directly, e.g. by loading 12 million people onto trains, or could be accomplished more discreetly, one-by-one, by harassing, humiliating & starving out people until they break & flee.) It simply isn't going to happen. No serious person really thinks it is. Few people would want to live with the consequences if it did happen, not least the consequences for respect for the law.

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