One of the central issues in America today is the debate over immigration – both legal and illegal. Arizona’s SB 1070 and similar laws in other states have brought this issue to the forefront once again. It is the never ending story, the perpetual question that seems to vex the most intelligent among us – but it really isn’t that complex. While the emotions behind it and the willingness to deal with it are complicated, the legal aspect is anything but.
At the basis of this debate is one central question: does America have the right to establish a border and once established, control the ability to pass over that border into this country?
Borders come in two varieties, geographical and political. Geographical borders are those established by some physical limitation, i.e. an ocean, a impassable mountain range, etc. Political borders are established by governments to define areas that are subject to legal control – the application of laws and the rights accorded to the citizens of that area.
The idea that a nation-state has the right to establish borders is an idea based on the concept of sovereignty. From the dawn of time, as men sought to organize into groups and then into governing structures, a basic aspect of any communal or governmental aggregation of people has been accorded the right to create and maintain a state of sovereignty – or as defined philosophically: supreme authority within a territory.
Within a sovereign area, there are two types of sovereignty, “de jure”, or legal, sovereignty concerns the expressed and institutionally recognized right to exercise control over a territory. This can be defined as the laws, regulations and rights accorded the citizens by the controlling legal authority – this is the framework.
Then there is “de facto” sovereignty. De facto, or sovereignty in fact, is in distinctly different from de jure sovereignty. This concept is concerned with whether control in fact exists. There are many corresponding pieces to “de facto” sovereignty – cooperation and respect of the populace; control of resources in, or moved into, an area; means of enforcement and security; and ability to carry out various functions of state all represent measures of de facto sovereignty.
As it relates to the current debate and issues with illegal immigration in America, the distinction between these two is significant. It is generally held that real national, territorial or state sovereignty requires not only the legal right to exercise power; it requires the actual exercise of that power. Thus, de jure sovereignty without de facto sovereignty has limited recognition and in turn, limited effect. These two concepts are the basis for a statement of fact that has been communicated by many people in different verbiage – but all variants have the same connotation:
A nation without borders, and one absent the will to enforce and protect them, is no nation at all.
Having established that America does have the right to establish its borders and that there are legal requirements for entry and penalties when those requirements are not met (8 U.S.C. § 1325 : US Code – Section 1325: Improper entry by alien), therefore in direct contradiction to what many “progressive” spokespeople think, illegal immigration is a crime. We can also deduce from the Constitution of the United States that there is an enumerated power and duty to create and enforce such laws:
Article I, Section 8 states that one of the enumerated powers of the federal government is to:
..to establish an uniform Rule of Naturalization…
And in the Necessary and Proper Clause:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Article IV, Section 4 states:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Faced with these facts, how can there be conflict over illegal immigration?
Facts be damned, many still try to make an apple out of an orange.
There are several illegitimate arguments in play:
- The “name game” – there are efforts by politically correct people and organizations to attempt to deny the illegality of the act by renaming the offenders. Migrants, undocumented immigrants, clandestine workers, undocumented aliens – these are all linguistic attempts to ignore the crime that was committed.
- The “better life” excuse – they only come to America searching for a better life – while in most cases this is true, this is a nonsensical argument when discussing legality. If I rob a bank because I want a “better life”, this does not change the fact that I did commit a crime punishable under the law.
- The “open borders” argument – there should be no borders and humans should be free to migrate as they see fit. This is a common “one-world” concept pushed by communists and anarchists and is negated by the national right to sovereignty and the Constitution. “Should be” does not trump “is”.
- The “immigration is not a crime” excuse – immigration is not a crime but we have well and solidly established that illegal immigration is, in fact, a crime.
- The “broken families” excuse – this one is trotted out when the child of illegal aliens is a US citizen as a result of the doctrine of birthright citizenship or is born abroad, brought here illegally and reared in American culture. While agreeably heartbreaking and harmful to families, this still is immaterial from a legal perspective. This is a very emotional situation and while I do agree that it is wrong to separate families, the responsibility for the situation does not lie with the American government or legitimate American citizens. We were not the ones who knowingly broke the law. This is equivalent to the analogy of the kid killing his parents and then throwing himself on the mercy of the court because he is an orphan.
- The “ex post facto” excuse – “they are already here, deal with it” is not an argument, it is an excuse. There is no statute of limitations on the illegality of the act and seniority in illegality does not expunge the offense.
However appealing on an emotional basis these are, none of these are material to the determination that any individual who does not enter the United States under the provisions set forth in law – or one who comes here under legal circumstances and then violates the terms of their visa – is a criminal in the eyes of the law.
I am not against immigration. I am against illegal immigration – the two are not the same. We should encourage people to come to the USA. We should be inviting to people who desire to become something unique in the world – American; however, we should be judicious in our selection process as is our right to protect our sovereignty.
Simply ignoring the law, as the current administration is doing and many prior administrations have done, is no answer and doing so is not benign. As we noted, de jure sovereignty without de facto sovereignty is a recipe for no sovereignty at all and perpetuates the destruction of the rule of law. Secure the borders, enforce the law (correct it if deemed necessary) and end this travesty.