Illegals: Law, Language & Policy

The name “Sanctuary Cities,” which has been absurdly borrowed by Sanctuary Campuses because college administrators adore meaningless words and realize their frightened students are so utterly clueless as to substance that they could tell them anything and the dumbass kids would believe it because they so desperately want to, is where it starts.  We’re so wrapped up in empty words that it’s unclear what words are “permitted” to describe the nice folks who benefit from sanctuary cities.

Are they undocumented aliens? Illegal immigrants? Would they give a damn what they were called if they could be left alone and not deported? Those who obsess over the words tend not to be the nice folks trying to stay below the radar, but their privileged champions who believe that if you don’t call them “illegals,”* people will like them better and not notice that they’re here illegally. Will it work? Beats me. A lot of people seem far more concerned these days with words than substance.

But here’s the part that teary-eyed advocates prefer not to discuss: These are people who have entered or remained in the United States illegally. They’re not bad people because of their nationality. They’re not bad people because they commit crimes once here, though some do while others don’t. But they have violated immigration law. They are here illegally. Get over it.

That has nothing to do with the policy implications of what to do about people here illegally, but that they are here illegally is beyond dispute. Conflating the policy question, whether deporting people, forcing them to hide, denying them benefits such as education and health care, or turning a blind eye to their immigration status when providing “privileges” such as a driver’s license, is an entirely different matter. It doesn’t change the fact that they are in the United States in violation of federal immigration law.

Harvard lawprof Noah Feldman, who has undertaken the role of chief progressive legal confabulator, says, “Ha, feds!!! Your beloved conservative justices make it impossible for you to do anything about ‘Sanctuary Cities’!!!”

Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.

Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?

Note the absence of anything remotely resembling a rational argument? That’s not an accident. Feldman’s claim is utter, unadulterated gibberish, of the sort that would be fortunate to muster a D- if he wrote that in a law school paper. It’s total nonsense, but the sort of nonsense that people who want to believe will latch onto because, well, he is a Harvard law professor so he couldn’t possibly be that much of a blithering idiot.

And, of course, he’s hardly an idiot. He’s an advocate, and he’s trying his best to make people stupider to sell his cause. But he’s shooting blanks. He’s got nothing. He gets a C for effort, but an F for substance.

For all the heartfelt descriptions of what illegal aliens do for America, and they do a lot, not the least of which is pay taxes, their supporters studiously avoid mentioning the only thing that distinguishes them from every other nice person walking down the street: they are here illegally.

At the New York Times Room for Debate, the question was posed whether cities have “a right” to “defy Trump.” The bias is given away in the question. The issue isn’t Trump at all, but federal immigration law. The same immigration law relied upon by President Obama to deport more illegal aliens than the totality deported by all presidents before him.

But having made deportation a cornerstone of his campaign, because you didn’t care too much when the Obama administration deported 2.5 million illegals, the Times ignores history to create the appearance that this never happened before and will suddenly be a problem when Trump takes office.

Under the headline, “Sanctuary Cities Have a Legal Right to Defy the Federal Government,” Cesar Vargas, New York’s first openly undocumented alien lawyer, argues:

It is not only legally defensible but crucial to our national security for cities and states to be allowed to pass and uphold sanctuary laws to assure taxpaying residents — regardless of immigration status — that their local government will protect them from federal overreach.

Whether or not it’s “crucial” is a policy argument. Whether it’s “legally defensible,” having forfeited from the first sentence any claim to cities having a “right” (people have rights; governments have authority) is the open question. Vargas tries to leap over the primary question, because maybe nobody will notice if he goes straight for the policy argument.

It is fundamental principle for any local, state or federal sovereign to have discretion over how it will enforce its laws. As the Supreme Court noted in Heckler v. Chaney, an enforcement agency’s decisions should reflect “factors which are peculiarly within its expertise.” Localities, not Washington bureaucrats, are best suited to determine local law enforcement according to a multitude of factors, in any given situation.

This is why Feldman got a D- rather than an F. Room was needed for someone to make a worse argument, and Vargas filled the gap. Immigration is left exclusively to the federal government, and the Supremacy Clause demands that states and local governments adhere to its laws. This isn’t hard stuff.

But the question of what constitutes a putative sanctuary city remains open, as cool phrases are rarely a substitute for actual definitions. Nobody has ever demanded that local cops roam the streets in search of illegals. What is expected is that when someone is arrested for a local crime, their immigration status is forwarded to Immigration and Customs Enforcement for disposition. If they’re incarcerated, and ICE filed a detainer (a request to hold the individual rather than release him back onto the streets), they expect that local jails and prisons will comply.**

What if they don’t? Then the feds say they will refuse to give them money. There is a lot of “cooperation” between various levels of law enforcement, such as asset forfeiture sharing and criminal record sharing, that both rely upon. While the feds could theoretically send in troops, pulling funding is a lot easier.

Can it be done? Remember Attorney General Loretta Lynch’s transgender bathroom letter to North Carolina? I know you do. And that didn’t even have law behind it. Does this make the policy good or bad? That’s a fair question, and one that would be worthy of serious discussion if people weren’t rendered incapable by language tricks and absurd references to irrelevant Supreme Court opinions and were capable of distinguishing law from policy.

But on the question of law, there is no such thing as a Sanctuary City (and don’t even mention the ludicrous sanctuary campus crap), and there is no “right” for local governments to defy federal immigration law. There is no policy discussion that can be premised on lies and nonsense, and none that ignores the one critical fact: the people under discussion may be absolutely lovely, but they are here illegally. So what are we gonna do about it?

*Calling undocumented immigrants “illegals” is deemed offensive and reductivist, as most are human beings who have come here to pursue a better life for themselves and their family, just as our predecessors did. But the inability to get beyond the “offense”  and “outrage” of the word makes any serious discussion impossible. Remember, you can always hit the pink button on the sidebar if this is more than you can take.

**You should note that the focus here is on people either arrested for, or convicted of, separate criminal offenses. Some may be trivial. Some may be significant. Some may not be guilty of anything, but have taken pleas of convenience or been wrongfully convicted. Do not leap to the conclusion they are all guilty or evil, but also don’t pretend they are all sweet and law-abiding victims of the system. Some are victims. Some are killers. It’s not always simple to tell who’s who.

24 thoughts on “Illegals: Law, Language & Policy

  1. Charles

    “assure taxpaying residents”

    Sanctuary City Cop (in a few years): “Glad you paid your local taxes this year. It’d be a shame if you hadn’t and you just happened to get reported to the feds.”

  2. Matthew S. Wideman

    In 2009, while I was in Law School, a California Illegal Immigrant attempted to be admitted to the CA Bar. In a Con Law class discussion this very topic was brought up. I was generally confused at member’s of my classes unwillingness to call undocumented people her illegally…. illegal. As everyone seems to forget (except for SHG), they are here in violation of Federal Law. If we just dealt honestly with the problem, then maybe something would get done (that could be said about most of the U.S. problems).

    NY’s illegal immigrant attorney sounds like an oxymoron. I feelz bad about this persons status, but I truly believe that in order for one to be an effective advocate a person would need to be a citizen. Part of why I do my job is because I have a stake in this great and dysfunctional nation of ours. I can’t go back to Germany, where my ancestors are from. I have to live with and try to change the laws that affect my clients, neighbors, family members, etc…. From an economic stand point, why would any State Bar allow more lawyers into the Bar, who don’t meet basic qualifications. It was very very difficult to find a job after law school. It still can be very tough for 2nd and 3rd year attorneys.

    1. SHG Post author

      I’m fairly progressive in my views toward addressing the issue, but nothing has ever been accomplished by pretending illegal aliens are just like unicorns on rainbows. Nice people? Sure. Illegal? You bet? Need to figure out what to do about them since they are very much a part of the fabric of our society? Absolutely.

      But if we can’t be real about it, then we’re pissing in the wind.

    2. AP

      “I feelz bad about this persons status, but I truly believe that in order for one to be an effective advocate a person would need to be a citizen.”

      The converse of illegal alien is not [US] citizen. Why can only a citizen be an effective advocate?

      1. SHG Post author

        I don’t think that was remotely what he was saying. Rather, that there is an inherent conflict about being simultaneously here illegally and being vested in our Constitution, nation and its laws. You can’t stand for law and against law at the same time.

        1. AP

          I too think your interpretation of his words is what he meant to say. However Matthew, who is a fairly young lawyer if the internet is to be believed, did not phrase his statement as clearly and concisely as you did. There should be no doubt as to your point. His is ambiguous.

          1. SHG Post author

            Have you read my comments? Most are incomprehensible, and half the time I haven’t got a clue what they’re trying to say. I get a lot of headaches.

            1. Patrick Maupin

              Yes, I have read your comments. Occasionally there are pronoun and speling issues, but honestly, you’re too hard on yourself.

          2. Matthew S Wideman

            Yes. The internet is to be believed. I just hit the 5 year mark on September 15, 2016 (slow clap from everyone in the room). Thank you SHG for making my point more eloquently. I apologize for my slightly incoherent post. My posts always seem to sound like Supreme Court Appellate briefs when I have had a few cups of coffee in the morning. Caffeine and feelz are not always the best combo.

        2. Jim Tyre

          Scott, I suspect you’re right. Being a U.S. citizen is not a requirement of being a lawyer licensed to practice somewhere in the U.S. One of my former partners, an excellent lawyer, was a Brit, here on a green card. The difference is that he was here legally.

          Of course, you could just chalk it up to my being a wacky Californian. ‘-)

          1. SHG Post author

            When Cesar Vargas was admitted to practice in NY, it was a big thing. Guess who wrote about it!

            As I said, I’m pretty progressive on the issue of undocumented aliens. even more so on deportable aliens for aggravated felonies. But my personal policy position doesn’t change what the law is, and there’s a huge difference between a green card and an illegal. One did what he had to do to comply with the law while the other did not (and probably could not without leaving). It’s just what it is.

  3. BJC

    Prof. Feldman’s sin isn’t that he’s irrational. It’s that he doesn’t want to explain that his definition of “sanctuary city” is much narrower than Mr. Vargas’s, or even yours.

    There is a way to craft a local immigration non-enforcement policy that falls entirely within the ambit of Printz. And, given other Supreme Court decisions, Congress probably can’t condition currently unconditional or nondiscretionary federal funding on local aggressiveness towards illegal immigration.

    But that doesn’t include local ID for people without documents, or other things that make life easier in the U.S. if you’re here illegally. Those would, at minimum, create records that ICE could retrieve and use under a Printz-compliant policy. The “sanctuary city” would only be sanctuary from local-level enforcement.

    Also, there’s the hypothetical where Trump actually gets his trillion-dollar infrastructure bill, but it conditions the new funds on local immigration enforcement. That’s probably constitutional and bypasses Prof. Feldman’s arguments.

    I agree, though, that “confabulator” is a good term for eliding these distinctions.

      1. Ross

        I delete 90+% of the comments I start to write here, because they are low quality crap and I do not want to embarrass myself. I am available to teach others how to do that, but most of the bad comment writers aren’t aware how bad they are, and wouldn’t want to pay me in the first place.

        Have you considered becoming Don SHG, and hiring a couple of finger breakers to take care of the miscreants?

  4. Fyodor

    This is a very frustrating problem with a lot of reporting on legal issues. They find law professors to talk about what they would like the law to be and give almost no information about what the law actually is.

    1. SHG Post author

      The perpetual problem with theorists, who see it as an opportunity to “normalize” their normative views.

Comments are closed.