The Immigration Stalemate

The Immigration Stalemate: The Failure of Politicians to Recognize the Balancing Principle That is the Foundation of Our Nation and the Political Safety of the Status Quo.

 by John Smietana

Being retired after more than three decades in the immigration business and currently teaching, I enjoy being able to look at the immigration debate from a different perspective.  It is fascinating to look at the immigration debate, not from a position of what I believe is the best policy for the United States, but to look at the question as to why after three decades, we as a nation cannot come upon a compromise, an agreement as to what the current immigration policy should be.

In every class I teach, I begin with the principle of balancing and the importance and impact it has on the criminal justice system and the everyday life of the nation. This balancing, maybe it should be called a battle, is between two theories: crime control and due process.  Crime control is what the government does to protect the people, the nation as a whole. Indeed, the number one job of government is the protection of the nation. Due process on the other hand concerns the rights of the individual, our liberties, and the protection of the individual from abuse by the state.

This balancing principle is found in the Preamble to the Constitution. The Constitution did not place one theory above the other but established both as equal. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, AND secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

In the justice system the final arbiter on this balance is the Supreme Court. The Court has consistently demonstrated that there is no red-line or concrete rule on where the balance between crime control and due process is. Indeed the Court uses a concept of reviewing the “Totality of the Circumstances” in cases. Many in our nation like to say many government actions are not right, that an action is not fair, it’s unconstitutional.  That’s opinion on their part. The final say is the opinion of the Supreme Court. And many fail to remember a small segment of sentence in the 4th Amendment, “against unreasonable search and seizures.” The totality of the circumstances principle in fact is about a decision on the reasonableness of government action and if it was balanced.

For those that do not like studying the Constitution, political science or history, pop culture also looks at the debate on balancing. In Star Trek, “The Wrath of Kahn” the debate is raised when Spock says, “the needs of the many outweigh the needs of the few.”

In the immigration debate politicians take one side or the other and fail to understand that there must be balance. In Temporary Protective Status (TPS) some look at how it impacts the individuals who have been here for 15 years and how unfair it is that they must leave. Yet what was the purpose of the TPS policy? I do not believe it was to provide an end run around the laws determining permanent resident status. 

In the DACA debate we have one side saying it not fair to these people; through no fault of their own they broke the law and have been here all their lives. The other side states if you reward the breaking of the law you encourage others to try and enter illegally. You cannot control the border by rewarding bad behavior.   

Why can’t we reach a compromised position? It may be because politicians on both sides have become comfortable with the status quo. They are more interested in their own political fortune then they are in doing what’s good for the country or individuals in a limbo.   The current immigration law allows for much discretion and does not force the government to act. DACA is a discretionary decision not to act. TPS allows for discretion on granting and then continuing status.

Politicians have become comfortable taking positions of non-compromise, of non-balancing for their own benefit. And if you look at their statements over the last 20 or so years you can see those positions change to fit their political benefit.

Politicians of the day are a classic example of rational-choice theory. They make a cost/benefit analysis and decide what’s best for them. They disguise this analysis in a false wrapper of morality, empathy, safety and common good. They are cowards afraid to compromise because of consequence it may have on their career. The politicians like the status quo because current immigration policy does not provide for a final arbiter to force balance.