Border Wars, 2011

The new year has scarcely begun, but already battle lines are drawn in what will be one of the most significant struggles of 2011: Welcome to the border wars. The New York Times reports that a handful of states have proposed legisation to address immigration issues the federal government cannot handle. "The federal government's failure to enforce our border has functionally turned every state into a border state," Oklahoma lawmaker Randy Terrill told the Times. "The states are stepping in and filling the void left by the federal government.

Arizona acted last year, giving state lawmen expanded power to stop and detain folks whom officers believe are not lawfully present in this country. Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania and South Carolina are now chomping at the bit. These states are considering legislation intended to replicate, and in some cases exceed, what Arizona has done. Oklahoma, for example, has proposed what it proudly calls "Arizona-plus" legislation: Its law would permit not just the detention of those suspected to be here unlawfully; it would also permit the state to seize property, including cars and real estate, used to transport or shelter illegal aliens.

Regulation of immigration has long been the province of the federal government. Under traditional notions of federalism, the states have what is known as a residual police power, giving them the right to legislate in areas concerning the health, education and welfare of its citizens; the federal government, by contrast, is said to be one of limited, or enumerated, powers. Immigration law has long been regarded as a power given to the federal government. When the federal government acts in an area in which it has an enumerated power, its laws control, or preempt, the field. Thus a federal judge has already declared Arizona's attempt to dabble at immigration law to be infirm on preemption grounds. The United States Court of Appeals for the Ninth Circuit has heard argument on Arizona's appeal and is expected soon to rule.

Creative lawyers on behalf of the states will argue something akin to a futlity exception to the preemption doctrine. They will contend that because the federal government cannot control the borders, the federal government lacks the ability to prevent the states from seeking to ensure the health, education and welfare of its people through what amounts to local immigration laws. These arguments represent the frontier of the latest struggle over the meaning and import of federalism.

But however futile federal laws may be to stem illegal immigration, there is no reason to believe states will do much better. That is because there is a much larger sense of futlity driving immigration: The engine of history consists in large measure of the movement of peoples. We will be as powerless to prevent people from entering this country as were the Romans in the fourth and fifth century who sought to keep the Goths at bay. People move, change occurs; only after these events take place do the ideolgues come to try to explain it all in terms detached from the gritty reality of people seeking nothing so much as survival.

Over the holiday break, I read a fine little book on the decline of the Roman empire: The Fall of Rome and the End of Civilization, by Bryan Ward-Perkins, an Oxford historian. He notes that explanations for grand historic events are cast in terms of the interests and perspectives of historians. Thus, during the first half of the twentieth century, accounts of the Goths' transformation of the empire were seen largely in term of Teutonic destruction, a natural enough reaction given the mayhem Germany wreaked on Europe in two world wars. However, at the beginning of the twenty-first century, historians influenced by a culture of multinational cooperation now tend to regard the Goths' invasion as more irenic, a gradual and largely peaceful transformation of society. Both views are interpretations of physical facts: Goths poured into Roman provinces during the fourth century and afterwards. Rome was unable to keep these folks from entering. What the newcomers sought was not so much destruction as a place within the general prosperity Rome represented in the ancient world. In time, these newcomers wrought change; that change was real. Sometimes the change was violent; sometimes it was gradual. We are living in a period of such change in North America.

An amusing footnote in Ward-Perkins' book refers to a German scholar who, in 1984, catalogued all of the various reasons historians have offered over the centuries for the decline of the Empire: he catalogued 210 reasons. Anarchism was one cause; bankruptcy was another; so, too, was bathing! (And let's not forget Gibbon's tirade about the enervating effect of Christianity.) These ideological responses look an awful lot like the states watching the flood of illegal immigrants tax their resources: If we can but dream the right dreams, perhaps these folks will just disappear. It has the look and feel of a child's construction of sand walls to protect his or her sandcastle from the changing tides.

I read an essay this weekend reporting that half of all federal criminal cases now have an immigration component. Indeed, the United States Supreme Court, one of the slowest institutions in our society to take note of change, just last year concluded that the immigration consequneces of a criminal plea aren't merely collateral conseuqnces: they can transform a life, depriving it of the very marrow that makes life worth living for some folks. Padilla v. Kentucky is a sign that times, not merely the law, have changed.

Twice in the past month, I called a friend in Washington, D.C., who is expert in immigration law for advice, Mirriam Seddiq. After our last call, I realized it was time for me to learn more. I spent a few days reading through the Weissbrodt and Danielson volume prepared for the Thompson-West Nutshell series, Immigration Law and Practice. As with all the Nutshell products, it was a quick -- even at 600-plus pages -- and easy introduction to a new body of law. Little did I know that even a nolo contendere plea to a suspended sentence could result in a one-way ticket out of the country. Tonight I will resume an old habit learned in law school: outlining an immigration law casebook. I now know why no one can every give me a straight answer of what constitutes a crime of moral turpitude: the law doesn't give one. I plan soon to visit some immigration proceedings to get a better feel for this troubling area of law.

Reading this immigration textbook left me feeling like a stranger in a strange land. There were no border patrol agents checking the visas of the seasick survivors of the Mayflower's voyage across the Atlantic. When England sent her convicts and destitute here by the tens of thousands, they were not sent back as undesirables. Our forebears came here and changed a continent by means of disease, transmigration and conquest. Do we really think that we today are immune from similar pressures? Like the Goths or Pilgrims of old, today's immigrants leave home simply in search of a better life. They may well overwhelm our resources and depress the standard of living we enjoy, just as the Roman empire collapsed and Native Americans were pushed aside. A decline in the standard of living here may be the only potent force that can stop the migration of people. It is of course, inevitable that we will rail agains chance, even as others fight for the right to consume our table scraps.

In the meantime, the states and federal government will argue over who gets the right to place an agent's fingers into the dikes along our borders. We will cede new and expansive power to government to surveil, arrest and detain those of us already here. We will sacrifice liberty to the illusion that we can stop the inevitable movement of people. The boder wars of 2011 present a challenge all right, but he challenge is not on how best to keep people from entering this country. They will find a way whether we want them or not. The challenge will be preventing government, whether state or federal, from acquiring so much power that it transforms the nation into a sterile plantation. That is what this year's border war is all about. 

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