First, I am not unsympathetic to the cause of illegal immigrant and asylum seeking parents with children and how they are treated at the border – but I do see a path in law that results in the the conditions we have today.
People looking for open borders or are just anti-Trump say he can change it with his pen and his phone. No doubt he can but it comes down to a difficult choice – enforce the law or do not enforce the law. The former causes emotional pain for the illegal and some asylum seeking families, the latter has resulted in an estimated 11-20 million illegal aliens living in America.
Stripping away the real and feigned emotions from the current situation, those are the only two choices given the current laws and the consequences stemming from each choice.
Many people of a libertarian bent are claiming that immigration laws are unconstitutional because 1) the Constitution doesn’t enumerate a specific responsibility for the federal government and/or 2) there is a “natural” right to travel or a right freedom of movement.
Here’s my perspective.
First, the Constitution was never designed to be an all-encompassing document – quite the contrary. It was designed to create the smallest central government, doing only the most basic of necessary things required to protect liberty within a nation. All powers not specifically delegated to the federal government are reserved for the states and the people. Either actively or passively, the three entities – the federal, the several states and the people negotiate with each other to establish legislation they deem necessary and through agreement or simple acquiescence, certain duties are defined. Immigration is such a situation and for now, the federal government has been delegated the role of national border security.
Secondly, our Constitution (14th Amendment) and international treaties recognize freedom of movement in four basic tenets (this from the International Bill of Human Rights):
- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
- Everyone shall be free to leave any country, including his own.
- The above-mentioned rights shall not be subject to any restrictions except those provided by law, are necessary to protect national security, public order (ordre publique), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
- No one shall be arbitrarily deprived of the right to enter his own country.
Recognizing these fundamentals, there are three aspects present in every true right. These are:
- Rights are relational – true rights are the moral responsibilities that people have to one another. In particular, they refer to a zone of sovereignty within which individuals are entitled to make choices without interference by others.
- Rights imply obligations – they sanction morally allowable actions and imply that other people are obliged not to interfere with your execution of those actions. Rights actually create obligations for other people to refrain from preventing those actions.
- True rights imply negative obligations – your right to do a certain thing obligates others to stay out of the way, to do nothing. It does not obligate others to help you or even agree with you. All fundamental rights imply negative obligations in this way.
The Constitution and international laws all recognize the concept of borders and by doing so recognize the rights of a nation to its own sovereignty. While those documents recognize a right to freedom of movement, they recognize that is the right of the CITIZENS of a particular country to move about WITHIN that country and to leave and return to that country under the no restrictions “except those provided by law(s)” of that sovereign country.
It is through this logic that it is made clear that the rights of the citizens of a country, particularly the right an American citizen has for free association – not being compelled by force of law to associate with any particular person or group – cannot be overridden by a non-citizen who simply desires to come to this country for any reason whatsoever. Non-citizens do not have a right to claim the productivity of a citizen by virtue of just being able to cross a border and nations, through their governments and their people, have the right to choose who, when and how many non-citizens should be admitted across a border.
These are not new concepts, these go all the way back to the days of Socrates and Plato, as does the reasoning regarding sovereignty of a state.
America does believe in freedom of movement, it just exercises the necessary right to manage that flow in order to protect the rights of citizens already inside her borders.
Anyway, that’s how I see it. Might be wrong or right – but that is my perspective.