Immigration is of concern to people across various political persuasions. Some on the political Left will argue that they want border security to reduce illegal immigration and they want a path citizenship for those already here. Some on the political Right are similar. I want to see if we can sort through what the issues are, but my position here will be closer to some on the Left.
For the political Right, national boundaries are important because nations have differing sets of public virtue and values, differing histories cultures and histories, that deserve respect from other nations. The potential for a drain upon the welfare system, educational system, and prisons is real. DHS confirms that Venezuela empties prisons and sends violent criminals to our southern border.
The problem at the southern border is one that the political Left will use to charge the political Right with racialism. Such an accusation creates a shiny object that diverts attention from the actual racialism of the political Left. With a Democrat president in 2020-2023, about 7.2 million illegal border crossings have occurred, a number larger than 36 different states. The openness of the border contributes to the drug issue resulting in an increase of deadly fentanyl poisonings and the crime issue that results in well publicized murders like that of Laken Riley, who was murdered by an illegal immigrant intentionally released into America. On his first day in office on Jan. 20, 2021, Biden stopped construction of the Trump administration’s wall at the southern border, signed an executive order “revoking a Trump Executive Order that directed harsh and extreme immigration enforcement,” and strategically undid many of the Trump administration’s other border security policies. He invited the present border crisis in the first 100 days with his 94 executive actions that stopped several of the initiatives to curb illegal immigration, including halting building a wall at the southern border and allowing illegal immigrants to enter the United States while applying for asylum rather than waiting in other countries for the several years it takes to get a court determination on whether asylum will be granted.
First, we need to consider the constitutional and legal issue.[1]
The Civil Rights Act of 1866 begins with language from which the 14th Amendment's Citizenship Clause is derived: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning -- divided allegiance -- applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship.
To end the practice of "birthright citizenship," all that is required is to correct the misinterpretation of that amendment's first sentence: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." From these words has flowed the practice of conferring citizenship on children born here to illegal immigrants. This interpretation makes illegal entry into this country a criminal offense and simultaneously provides the greatest possible inducement to illegal entry. This irrationality is rooted in a misunderstanding of the phrase "subject to the jurisdiction thereof." Sen. Lyman Trumbull of Illinois was one of two principal authors of the citizenship clauses in 1866 act and the 14th Amendment. He said that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, meaning "not owing allegiance to anybody else." Hence children whose Indian parents had tribal allegiances were excluded from birthright citizenship.
In 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent." This decision "seemed to establish" that U.S. citizenship is "a consensual relation, requiring the consent of the United States." So: "This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal."
Second, the United States is a sovereign nation. The very idea of sovereignty implies that each nation has the responsibility—and obligation—to determine its own conditions for immigration, naturalization, and citizenship.
Individuals who are not citizens do not have a right to American citizenship without the consent of the American people, as expressed through the laws of the United States. Through those laws, the people of the United States invite individuals from other countries, under certain conditions, to join them as residents and as fellow citizens.
Third, immigration has made immense contributions to the strength and prosperity of Western nations. However, uncontrolled and unassimilated immigration has become a source of weakness and instability, not strength and dynamism, threatening internal dissension and dissolution of the political community.
The United States has always welcomed immigrants who come to this country honestly, with their work ethic and appreciation of freedom, seeking the promises and opportunities of the American Dream. This is because the founding principles of this nation imply that an individual of any ethnic heritage or racial background could become an American.
However, if anyone can become American through a successful immigration policy, this requires a deliberate and self-confident policy to assimilate immigrants and educate them about this country’s political principles, history, institutions, and civic culture. This may be a nation of immigrants, but it is more accurate to say that this is a nation where immigrants are Americanized, sharing the benefits, responsibilities, and attachments of American citizenship.
Every nation has the right, recognized by both international and domestic law, to secure its borders and ports of entry and thereby control the goods and persons coming into its territory. Americans have always been and remain a generous people, but that does not mitigate the duty imposed on the United States government to know who is entering, to set the terms and conditions of entry and exit, and to control that entry and exit through fair and just means.
Fourth, and here is where the political divide is clear, most of the political Right believes that immigration is no exception to the principle that the rule of law requires the fair, firm, and equitable enforcement of the law. Failure to enforce immigration laws is unfair to those who obey the law and go through the regulatory and administrative requirements to enter the country legally.
The wish to neuter immigration law seems evident. Altering the demography of certain parts of the United States along the border would permanently alter elections for President and who has power in Congress. The costs are worth it for those who want political power, even if it does mean 100,000 fentanyl deaths through the work of the Mexican cartels, prisons filled with illegal immigrants, and murders by people who are illegally. That is one reason transporting illegal immigrants to Democrat areas was such a wise move by some GOP governors. The virtue signaling by Democrat leaders in areas north of the border became less.
Those who enter and remain in the country illegally are violating the law, and condoning or encouraging such violations causes a general disrespect for the law and encourages further illegal conduct. Forgiving the intentional violation of the law in one context because it serves policy objectives in another undermines the rule of law.
Here is an exception that at least some on the political Right are willing to grant. Amnesty is appropriate only when the law unintentionally causes great injustice or when cases serve the larger purposes of the law. Those who break immigration laws should not be rewarded with legal status or other benefits, and they should be penalized in any road to citizenship. Persons who are in America illegally for an extended period and have shown their worthy intentions by their devotion to family and work need to receive a path to citizenship or work visas, would receive unjust treatment if forced to return to their place of origin. There needs to be a path to their legal presence.
However, such generosity toward immigration is possible only with first securing the border, whether a wall in some places, troops and border control agents in others, and so on.
People of good will on the political Left and Right could come to a reasonable conclusion, but they would have to be willing to move against those who have an ideological commitment that does not allow for compromise of what they would regard as their principles.
[1] George Will, March 28, 2010, referring to the argument of Professor Lino Graglia of the University of Texas law school.
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