CONSTITUTIONAL CONVERSATIONS
The Two-Bucket Theory of Immigration
by
- E. Boyd, Esq., “Miss Constitution”
There is such confusion and misunderstanding regarding immigration issues in the United States that Miss Constitution thinks some clarification might be useful. She is proposing looking at it all as two buckets. Let’s start with Bucket #1.
Bucket #1 is the premise that all immigration, as public policy, is about the welfare of the nation and not about the welfare of the individual immigrant. This is where all conversation should start. The welfare of the nation regarding immigration has changed since the founding of our country and will change in the future as a natural outgrowth of where we are and who we need relative to the best interests of the nation.
For the first one-hundred years we needed people to populate and cultivate wide expanse of land. We were a developing nation. Anyone could gain entrance who could get here. The frontier was closed in 1890 and we emerged as a developed not a developing society and we are now, for all intents and purposes, an advanced society, notwithstanding some of the rhetoric and behavior we are now seeing. We began, consequently, to examine immigrants to this country and denied entry for any number of reasons and encouraged, as public policy, immigrants who could assimilate into our culture. Arriving in America at the turn of the 20th century did not guarantee entrance and many immigrants had to return to Europe or wherever they came from.
To illustrate Bucket #1 clearly, think about the decision of Franklin Delano Roosevelt regarding a ship of Jewish immigrants that left Hamburg in 1939 trying to escape Nazi Germany and asked for permission to dock in Cuba and then America. Roosevelt denied this docking and the ship returned to Europe. About one-quarter of those passengers were later murdered in the holocaust. Roosevelt felt that the risk could not be taken, in the interests of the nation, that Nazi spies had been secretly placed on board. Since America survived WWII as victor this decision has been criticized, but the point is that Roosevelt saw the immigration of those Jewish people as primarily about the welfare of the nation and not the welfare of the individuals on that ship, however tragic the outcome turned out to be.
Public policy regarding the national interest and immigration is specifically a duty of Congress to decide under Article I, section 8, of the United States Constitution. The executive branch carries out or executes immigration law except where the President of the United States, such as FDR, sees a threat to the security of the country or a national emergency arises that would allow him or her to take action. This is the concept of shared power as part of our system of governance. What Congress has declared as public policy regarding immigration has changed dramatically since the Hart-Celler Act of 1965 and we shall go into that policy in detail in another column. The point Miss Constitution is making is that when discussing or thinking about this issue always start with Bucket #1 – is this immigrant or immigrant family’s entrance into the United States in the best interests of the nation?
That leads us to Bucket #2 which is, instead of the best interests of the nation, the best interests of the individual immigrant him or herself. This is not so much a public issue as a humanitarian issue and is dealt with altogether differently. Regardless of whether public policy has incentivized large numbers of persons to attempt to enter our country, whether legally or illegally, we, as a nation of moral people are required to address the issue of the welfare of the person who is within the jurisdiction of any state. This is often accomplished through public/private partnerships with charities, churches, and other organizations working with public social work agencies. Helping a person, however, does not imply that an individual meets the criteria for entrance into the United States. So, when we see pictures of crying children at the southern border, we are talking about Bucket #2 not Bucket #1and the two should not be conflated. It is this conflating two distinct issues that is causing despair and confusion in our society. Some of this confusion is no doubt deliberately fostered and some is simply the result of a lack of knowledge about premises and priorities in immigration law.
Besides the decisions of Congress over the last fifty years about the make-up of American society, provisions of the 14th Amendment are inadvertently causing tremendous chaos for those public servants trying to faithfully execute the law. The 14th Amendment, ratified after the Civil War and meant to protect former slaves, requires that anyone within the jurisdiction of a state be granted due process rights of a citizen. In practical terms if a non-citizen so much as touches the soil of a state the whole range of due process rights is accorded that person. Hence the surrenders to border agents so that American soil is touched. The system can be completely overloaded by sheer numbers and persons who would otherwise be deemed inadmissible can enter our country and cause great harm to our social order. Title 8 of the United States Code, section 1182, lists the type of persons who may never enter the United States as they are averse to the welfare of the nation.
Miss Constitution asks you to remember that a stable social order is necessary for all who are here to thrive and prosper. The People, as Sovereign, need to weigh carefully public policy relative to immigration, ie Bucket #1, while at the same time they need to provide humanitarian help to human beings within our borders, ie Bucket #2. These are two different things requiring different resources and duties and this difference is what is partly responsible for the complexity of the issue. Hopefully thinking about it as two buckets makes it simpler to understand.
copyright©2019 M.E. Boyd, Esq., “Miss Constitution”
