Undocumented No Longer

I welcomed Obama’s “DREAM decree,” which just took effect on August 15th, with an article at The American entitled “A Face for the Faceless.” In it, I celebrated the career of Jose Antonio Vargas (life story, blog posts about him on Open Borders), characterizing his stance and that of the movement he is leading as civil disobedience:

By coming out publicly, Jose Antonio Vargas and many others have transformed the lawbreaking of illegal immigration into something heroic—civil disobedience. They have become, to adapt an exquisite phrase from writer David Bentley Hart, “a face for the faceless.”

Hart, describing the impact of Christianity on the culture of the late Roman Empire, writes that “to the literate classes of late antiquity … a rustic could not possibly have been a worthy object of a well-bred man’s sympathy,” and that the story, in the Gospels, of Peter weeping after he denied Christ on the eve of the Crucifixion, would “likely have seemed like an aesthetic mistake.” By contrast, in the Gospels and other Christian texts, “we see something beginning to emerge from darkness into full visibility, arguably for the first time in history: the human person as such, invested with an intrinsic and inviolable dignity, and possessed of an infinite value.” (Hart, p. 167)

To feel human sympathy for someone makes it much harder to abuse, exploit, or brutalize them, or in general, to do unto them as one would not have others do unto oneself. Over time, though sometimes with terrible tardiness, this new appreciation of human dignity has altered man and society, making charity more urgent and beautiful, making slavery first anomalous and then untenable.

I also explore the charge that Obama’s DREAM decree is a violation of the principle of “rule of law”:

There is a logic within this argument, however, that is important to understand. Immigration restrictionism, carried to its logical extreme, must strip away from the concept of national identity everything that makes it human—the jokes, the food and fun and faith, the affection for places and festivals, peculiarities of speech and manners, the distinctive virtues and loyalties, the community and the economy, the custom and tradition—leaving nothing but a legal construct, the paper.

The case of Jose Antonio Vargas drives home the strangeness of the “rule of law”-based claims that critics of Obama’s semi-amnesty are making. For 15 years, Vargas was living in the United States in vague fear of having his life totally disrupted by deportation, for something he did before the age of accountability, without knowing it was illegal. That situation, apparently, was consistent with the rule of law.

Then, for a year, Vargas had made his status public, was writing about it in major national publications, traveling the country, meeting with people, organizing a political movement—but was not deported. Was that situation, too, consistent with the rule of law? If not, what exactly is the government supposed to do about it? Search the media regularly for confessions of illegal immigrant status?

Vargas calls the offices of ICE and tells them he is an illegal immigrant and asks them whether he will be deported. Answer: “We do not comment on specific cases.” Is it consistent with the rule of law if they answer evasively, but not if they give a straightforward “no?”

What we see here is the concept of rule of law, turned on its head. As Friedrich Hayek understood, law should be embedded in tradition and the customs of the people, and thereby able to create security and certainty, enabling people to plan for the future. Everything about Vargas’s life story shows that the American people, when confronted with the facts, accept him, accept his presence. Many take it for granted that there is a path to legal permanent residence for him. They ask him why he hasn’t become legal. The absence of a way for him to become legal seems to lack the consent of the governed.

Law in Vargas’s life story has been the opposite of law: Arbitrary, random, a source of insecurity, faceless and unaccountable, making long-term planning impossible. Obama’s semi-amnesty makes the law a little bit more lawlike: More predictable, more transparent, more consistent with the customs and traditions of the people. Critics of the move are demanding, in the name of the rule of law, not that the law be enforced to the letter in all cases, but that it remain arbitrary and unpredictable, that it keep people guessing.

When law becomes unmoored from justice, it begins to cease to be law. When the law prohibits what is not in any way morally wrong, what on the contrary may be morally good or even obligatory—Jose Antonio Vargas’s mother trying to get a better life for her son, a father trying to support his family in the only way he can, a person fleeing political or religious persecution for a place where he or she can live in truth—situations will arise in which conscience allows or requires people to disobey it, and the alliance between the coercive power of the state and the moral community of the people, in which the legitimacy of the law consists, is first strained, and then severed.

The DREAM decree has been called the largest change in immigration policy in 25 years. Well, we’ll see. It gives young de facto Americans a shaky legal foothold in the country. It also involves them “coming out,” so there was room for doubt as to whether they would embrace it. Some are doing so. From Chicago:

When you hear of people in Chicago sleeping on the sidewalk to be first in line in the morning, you may figure they are hoping to snag tickets for Lady Gaga or a Cubs World Series. But those were not the explanations Wednesday when thousands lined up at Navy Pier. They didn’t want to get something. They wanted to avoid getting something: a deportation order.

It was a scene that immediately put every American into one of two groups: those heartened by the throngs of illegal immigrants thirsting to stay in this country, and those appalled. It also framed a choice for voters, because the crowd was responding to a decision by President Barack Obama to stop deporting some foreigners who arrived without benefit of the law.

From a town called Oceanside (North Carolina?):

Several hundred people gathered Friday evening at MiraCosta College to hear details about a new federal program that allows some illegal immigrants avoid deportation.

The workshop was sponsored by the Dreamer Assistance Network, made up of various groups including the American Immigration Lawyers Association, to offer free information and legal advice on the new program.

President Barack Obama announced the program in June, called Deferred Action for Childhood Arrivals.

The program allows illegal immigrants who were brought into the country as children to avoid deportation.

Friday’s workshop attracted more people than organizers had anticipated, quickly filling a room at the student center to its capacity of nearly 300.

From Atlanta:

Alexandra Alor follows a simple system to elude immigration authorities.

An illegal immigrant from Peru, Alor doesn’t venture out of her home in DeKalb County when she sees police setting up traffic stops nearby or hears about them on Hispanic radio stations. That system has worked for the 17-year-old Lakeside High School student ever since her grandmother illegally brought her to the United States about 10 years ago.

Now she sees an opportunity to remain here without the nerve-racking fear of deportation. She plans to apply for special consideration this week under a controversial new policy the Obama administration announced in June. The policy applies to illegal immigrants who were brought here as young children, who have not committed serious crimes, and who are now in school or have graduated.

Everyone admits this is only a stopgap measure. It kind of seems like blatant election-year pandering by the Obama administration, but never mind that. Deferred action prompts illegal immigrants to make their status known. It is likely to make them more willing to be open about who they are. It should “raise awareness,” as the saying goes. Of course, it doesn’t come close to resolving the legal anomaly of millions of people residing here without permission. And it will create incentives for more people to come, as I argued in my American article:

Obama has now given foreign-born de facto Americans a shaky legal foothold in the country. I have no evidence, but it stands to reason that foreigners seeking a better life for their young children will have noticed that. The U.S. economy may finally achieve a strong turnaround any day now, making America a magnet for illegal immigrants again, and leading eventually to a new generation of kids growing up in limbo. Jose Antonio Vargas and his movement have a lot of work to do.

From the point of view of an open borders advocate, all this is welcome. The more we heighten the contradictions, the better.

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

See also:

Page about Nathan Smith on Open Borders
All blog posts by Nathan Smith

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