January 17, 2018

Rule of Law Can't Ignore Human Costs

Tyler Cowen

Holbert L. Harris Chair of Economics at George Mason University
Summary

DACA friends and foes should remember that immigration enforcement is always going to be selective.

What exactly do we mean by the rule of law? Some recent dilemmas have forced us to re-examine that question, particularly on the topic of immigration. Advocates of a looser policy have had to face the question of whether they are in sync with American laws.

One of the more emotionally wrenching stories this week concerns a 39-year-old Mexican, Jorge Garcia, who lived in the U.S. for 30 years. He was just deported and forced to leave his citizen wife and two children behind, with no prospect of a legal return, at least not without changes in the law. He came to this country when he was 10, brought in by illegal immigrant parents, but he is too old to be protected by DACA provisions.

His deportation happened on Martin Luther King Day. Garcia, who appears to have no criminal record, had been facing an order of removal from immigration courts since 2009. His stays from the Obama administration were not renewed by the Trump administration. Of course, this is not the only case of its kind.

I wish the stays had been continued, but Garcia was in this country illegally. However much we might disagree with the underlying legislation, do we not have some duty to see it through, at least until policy is changed?

The import of this question has gone up significantly in Donald Trump's presidency. It is frequently charged that his administration plays fast and loose with the rule of law. But here is an issue where it seems that Trump policy is supporting the rule of law and opponents are favoring arbitrary discretion, including the exercise of executive power without the sanction of Congress.

I think of the rule of law as meaning, among other things, that all people are equal before the law. So if the law is judging the immigration case of a Mexican or a Costa Rican, the decision should be the same regardless of country of origin, unless some specific provision dictates otherwise, such as the temporary protected status program for refugees from El Salvador. That is not all the rule of law implies, but it is one basic part of the concept.

The rule of law does not mean that more and more resources must go into enforcing the laws. It does not require a speed camera on every corner, or that everyone with expired prescription drugs in his or her bathroom need be prosecuted. It does not mandate any particular level of federal immigration raids, or inspection of worker credentials, to ensure that illegal migrants do not get jobs. Those are separate questions, governed by a mix of practical considerations and justice.

In California, more than a dozen people were arrested this week for feeding the homeless, in violation of a local ordinance. But those arrests, whether or not you think they were a good idea, were not mandated by adherence to the rule of law.

Immigration enforcement, like all laws, is invariably selective. The authorities will catch some of the most flagrant violators, but not identify or prosecute the subtler or harder to spot infractions. That may ensnare more men than women, or more young people than old, or perhaps more Mexicans (in proportional terms) than Costa Ricans. Those differences in treatment result from the costs of applying law universally and need not stem from intent. The law may wish to consider the disparate impact of a policy, as it sometimes does with race, but virtually all actions have disparate impact to some extent, which is not necessarily a violation of the rule of law.

What is striking about immigration, and immigration policy, is the very simple but oft neglected fact that it concerns human bodies. Any exercise of immigration law thus requires some violence, either explicit or implicit, against those bodies. It will mean the rounding up and forcible restraint of bodies, the widespread use of prisons and other coercive holding chambers, and tearful scenes of airport separation. Those methods will be applied to individuals who do not enjoy the full protections of the U.S. Constitution, who are vulnerable to mistreatment during the process, and who do not always have full fluency in the English language or a full understanding of their legal rights. The resulting problems are especially high costs, not only because of the associated dollars, but also because our precious self-image as a humane country implies keeping such episodes to a minimum. Too many violent stories and images, even when they technically can be justified by laws, damage our conception of our country. Eventually that will shape our future behavior and not for the better.  

A somewhat lax enforcement of immigration restrictions is in fact the friend of the future of the rule of law, not the enemy.