Immigration or Invasion?

The present U.S. civic unrest concerning immigration is an emotionally charged issue fueled by widely varied opinions that are largely based on “gut feelings” and popularly accepted ideas that often disregard facts. Though it may be cathartic to bolster these opinions with “sound bites”, statements of dubious factual value that have been “spun” to support some popular notion or other, such catharsis is of little real value in resolving the issues at hand. Rather, the offerer of this kind of simplistic argument simply seeks to obtain personal vindication much as a child does who prevails in a playground “Am not!”, “Are too!” set-to.

THE REAL ISSUE

To begin with, if we parse the present immigration issue, we find that it is not about immigration at all: There is neither a great throng of people demanding the right to immigrate, nor is there a great throng of people demanding curtailment of immigration.

The issue indeed is a debate concerning the rights and privileges of resident illegal aliens in U.S. society. Should they be allowed to work and receive pay in the U.S.? Should they be allowed to bring children into the world on U.S. soil, and therefore create legal U.S. citizens, while in illegal residence? Should they enjoy social benefits (hospitalization, welfare, etc.) intended for legal citizens? Should they be given special status and/or automatic “green card” status if they work in and contribute to the U.S economy? Should they be allowed to remain on U.S. soil at all? These questions are all complicated further (though irrelevantly) by the introduction of notions regarding human rights.

Popularly proposed solutions to these problems are a shotgun blast of non-interrelated actions. Most are marginally practical and many are sophomoric: Close the borders completely – Arrest and deport all illegal alien residents – Issue a one-time amnesty (and presumably legal immigrant status) to all employed resident aliens and their families – Raise the minimum wage in order to replace illegal alien workers with domestic workers – Create a “guest worker” status to track and supervise resident alien workers – and so on.

But all these stated issues and proposed solutions beg the fundamental question of why these illegal aliens are in the U.S. at all. A non-U.S. citizen who is on U.S. soil without proper authorization from U.S. Federal Authorities is committing a federal crime:

From: American Patrol

Under Title 8 Section 1325 of the U.S. Code, "Improper Entry by Alien," any citizen of any country other than the United States who:
• Enters or attempts to enter the United States at any time or place other than as designated by immigration officers; or
• Eludes examination or inspection by immigration officers; or
• Attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact; has committed a federal crime.

Violations are punishable by criminal fines and imprisonment for up to six months. Repeat offenses can bring up to two years in prison. Additional civil fines may be imposed at the discretion of immigration judges, but civil fines do not negate the criminal sanctions or nature of the offense.

If indeed ten percent or more of our workforce is made up of resident illegal aliens, then, de facto, existing federal laws are being egregiously ignored. While the Legislative branch of our government has created laws to maintain order with respect to our borders and immigration, the Executive branch, charged with the defense of our nation, and the Judicial branch, charged with interpretation and enforcement of our laws are not getting the job done. What are the circumstances that contribute to this situation?

Which leads us to our second discovery: That there is substantial inertia in our government that prevents effective control of our borders. There seems to be little will to deny admission to statutorily illegal aliens who seek to work in (and contribute to) our economy. This, in turn, creates a “leak” at our borders which is easily exploited by international criminals and similar undesirables.

WHY AT ALL?

The news media report that the second largest contributor of income to the Mexican Federal economy (second only to PEMEX) is the money imported from the U.S. by the families of Mexican resident illegal alien workers in the U.S. who send their U.S. earnings home.

This apparent fact has implications:

(1) The growing Mexican middle class has become more attractive to those in the lower Mexican socio-economic strata. Poor Mexican citizens seek ways to join the middle class, and find their labor rewarded more handsomely in the U.S. than at home; So much so as to warrant the risks of arduous travel, coyotes and the wrath of U.S. law enforcement.

It is probable that dramatically shutting off this flow of money into the Mexican economy would result in a (Mexican) economic depression, which in turn, could trigger an exodus across our southern border that could make the western migration from the dust bowl in the thirties seem insignificant by comparison. The possibility of a Mexican economic depression is an issue that we average voters should carefully review in light of the opinions of the world’s leading economists. It is a critically important issue and too complex to be solved with conventional wisdom and knee-jerk remedies.

(2) Upward migration of the Mexican poor to the Mexican middle class is evidence that Mexico is moving solidly into the first world. A first world Mexico has much more incentive to participate in international law enforcement (read drugs and money laundering) and to control internal corruption than the present Mexico does. It seems to be to the advantage of the U.S. to encourage this migration.

Our world continues to shrink. The formation of the European Economic Community is evidence that even the most fiercely nationalistic people recognize that their lives are inextricably intertwined with and dependent upon their neighbors. There is no longer a national economy that can prevail in isolation.

The world today is quite different than it was only a few years ago; It is rapidly evolving away from nationalism and toward a more Federalistic community. As it does, international dependencies become less intimidating and more and more internal needs are “outsourced” to other nations. The outsourcing of U.S. jobs that are not attractive to U.S. workers has become a natural occurrence. What is new is that some U.S. jobs outsourced to foreign workers are now physically being carried out in the U.S. rather than the worker’s home country.

While the major thrust of this “outsourced labor” is to Mexican nationals, the opportunity for gainful work coupled with the lack of consequences for or resistance to illegal entry into the U.S. has become well known worldwide. Industrious individuals from every corner of the earth are streaming into the U.S. to take advantage of the opportunity. Unfortunately, the mob at the border also masks the entrance of undesirables for whom there is no legitimate work.

Our immigration laws do not accommodate these changes in international business dealings. Indeed, those who devised the laws we now have could not have anticipated the present world business climate or how it might affect immigration policy.

So what does our law prescribe now, and where is it lacking?

PRIVILEGES

Addressing the question of resident illegal alien privileges requires that we understand the laws we live under and why they have come to be.

The noted philosopher George Wilhelm Hegel is credited with the statement “What experience and history teach us is this- that people and governments never have learned anything from history, or acted on principles.” A rather pessimistic view of mankind, but nevertheless probably deserved.

Even so, let’s try.

From Wikipedia, the free encyclopedia:

The Fourteenth Amendment to the United States Constitution is one of the post-Civil War amendments and includes the Due Process and Equal Protection Clauses. It was proposed on June 13, 1866, and ratified on July 28, 1868.

The amendment provides a broad definition of national citizenship, overturning a central holding of the Dred Scott case. It requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions.

Current Supreme Court Justice David Souter has called this amendment "the most significant structural provision adopted since the original Framing". (McCreary County v. ACLU of Kentucky (2005)), although the true significance of the Amendment was not realized until the 1950s and 1960s, when it was interpreted to prohibit racial segregation in public schools and other facilities in Brown v. Board of Education.

Additional information of interest can be found here, including this:

The first sentence of the 14th Amendment to the Constitution -- often called the "citizenship clause" -- reads as follows:

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.

The original intent of this provision was to guarantee citizenship to the former slaves and their descendants following the Civil War. However, the Supreme Court held in U.S. v. Wong Kim Ark (1898) that the "citizenship clause" applied to anyone born in the US, of any ethnicity or national origin -- and, in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980), that the clause prevented Congress from revoking a person's US citizenship without evidence of his or her intent to give up said citizenship.

The portion of the citizenship clause dealing with US jurisdiction excludes the US-born children of foreign diplomats stationed in the US and holding "diplomatic immunity". If US territory were to come under foreign occupation during wartime, this language would presumably also exclude children born on occupied soil to nationals of the occupying country. Otherwise, any child born in the US is a US citizen by birth, regardless of the citizenship or immigration status of the child's parents.

In an effort to curb illegal immigration to the US, several proposals to amend the 14th Amendment's citizenship clause have been introduced in recent Congresses. Most of these proposals would specify that a US-born child would have automatic citizenship only if at least one parent were a US citizen or permanent resident ("green card holder"). So far, all such proposals have died in committee; none has ever been brought to the floor for a vote by either house of Congress.

So on reflection we find that around the time of the civil war, our nation was faced with the problem of having a large group of resident illegal aliens in the workforce, not only those who had been kidnapped, enslaved and brought into our country against their will but also their descendents. The issuance of the Emancipation Proclamation of 1863 (a military strategy Lincoln and his cabinet used to strip the agrarian South of its ability to simultaneously wage war and operate its farms) freed these people from slavery, but even though freed, they remained resident aliens technically. The fourteenth amendment corrected that predicament by statutorily pronouncing the children of the ex-slaves citizens by birthright without concern for their parent’s original nationality or citizenship; A noble albeit belated action that in no way addressed the fundamental reason for their illegal residency.

Today’s major rub centers around the Wong Kim Ark decision (of 1898) that expanded the definition of ius soli (right of the soil; citizenship by virtue of birth on American soil) to include the offspring of all illegal aliens. Following that decision, by law all persons born in the U.S. (with the exception of children of aliens with diplomatic immunity) are automatically U.S. citizens and are eligible to receive all the benefits and perquisites that go with that citizenship. That their parents were/are illegal aliens (and therefore federal criminals) on U.S. soil is utterly irrelevant from a legal perspective.

Resident illegal aliens are entitled only to equal protection under the law.

The full text of Section 1 of the Fourteenth amendment is as follows:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is no provision in the Constitution for extending rights of citizenship to illegal aliens (resident or not). This would seem to exclude Federal health and retirement benefits, but because of the ongoing liberalization of the meaning of the Constitution as interpreted by the Supreme Court, might not exclude emergency medical care and/or social benefits such as ADC.

But even so, problems arise when illegal alien parents seek public benefits for their U.S. citizen children. For example, is Aid to Dependent Children to be paid to the alien parents or the citizen child? If illegal alien parents are deported, what happens to the U.S. citizen child and who protects his/her rights as a U.S. citizen? Since the American culture values the nuclear family, how can our existing laws be fairly and humanely enforced? (The human rights issue.)

It becomes clear that the fourteenth amendment as amplified by the Wong Kim Ark decision neither anticipates the present situation nor is usefully applicable to it. U.S. law should either (1) grant citizenship to parents of children who are citizens by virtue of their birth on U.S. soil or (2) deny citizenship to children born on U.S. soil of illegal alien parents. Either choice requires a change to the U.S. constitution. An act specifically anticipated and allowed by the founders, but sufficiently involved as to be neither easily nor quickly accomplished. It requires action by congress.

WHY HAS THERE BEEN NO CHANGE?

But that brings to mind our second discovery: That inertia prevents our government from effectively dealing with these issues. Some proposed reasons for this inertia have troubling implications with regard to our government.

One such proposal suggests there is a substantial amount of money collected by the Federal Government in Income Taxes and Social Security Taxes that is accounted for in a fashion less than transparent to the average American citizen. Because the source of this money is a workforce that, on paper, doesn’t exist, questions come to mind as to how the tax collectors account for (and disburse) these funds. It is an unfortunate known fact that the Pork Barrel in Washington is huge. There is immense incentive in our National Congress to encourage and preserve sources of funds not directly tied to sacrifices made directly by voters or political power blocs.

So the question is raised: Does congress have any real incentive to make changes that eliminate the dichotomy of an expressly illegal segment of our workforce that contributes substantially to the support of Congress’ mandated spending? And can the Executive and Judicial branches of our government perform their mandated duty to defend and enforce the laws of the land without the financial support of congress?

It is clearly an appropriate time for all legal, voting U.S. citizens to unambiguously inform their elected representatives in the Federal Government of their wishes with respect to these issues and demand that their wishes be implemented immediately.