Tuesday, May 30, 2006

The volleys of debate over immigration legislation have obscured a more important truth. No matter the law’s stipulations, facts on the ground will remain largely undisturbed: millions of illegal aliens industriously working as firefighters, construction workers, agricultural laborers or otherwise coupled with a modest number of criminals or sponges.

Laws limp when they command no moral consensus. Witnesses will not volunteer evidence. Prosecutorial or judicial discretion will be exercised in favor of leniency. Thus, the nation’s ambivalence over whether illegal aliens are more to be admired than to be decried will forever cripple enforcement of immigration restrictions.

About three decades ago, I served at the Justice Department on an interagency task force on immigration. The Immigration and Naturalization Service then estimated the number of illegal aliens at 11 million to 14 million. The economic attraction of the United States was the accepted explanation for the phenomenon. Illegal aliens were eager to work and citizens were eager to hire under terms and conditions set by free labor markets.

Moral condemnation of illegals was inaudible, except for worry that would-be legal immigrants prospered less than those who flouted the law. Illegal aliens characteristically sported traits Americans celebrate: pluckiness; discipline; ambition; and, self-improvement. As models for Horatio Alger heroes, they regularly shamed citizens who chose sloth over opportunity. There was official irresolution over restrictive measures: harshly penalizing the employment of illegals; recruiting an army of enforcement agents; building a “Berlin Wall” along the Mexican border; jumping the number of detention facilities; or, requiring citizens to report known illegal aliens to the Immigration and Naturalization Service.

The current debate over immigration re-enacts the interagency deliberations of 30 years ago, confirming the adage that the more things change, the more they stay the same. In the interim, Congress passed an immigration reform law in 1986. It regularized the status of long-term illegals and imposed sanctions on employers for knowingly hiring illegal aliens. But widespread document fraud and lackadaisical enforcement reduced the law to a shadow.

The nation’s moral ambivalence remained undiminished. In 1982, the U.S. Supreme Court discerned a constitutional right to a free public education for illegal alien children. Illegal alien workers were held entitled to protections of the National Labor Relations Act. The euphemism “undocumented” became a regular substitute for “illegal” in official discourse.

Twenty years after the 1986 law, the competing House and Senate immigration bills reflect the same ineluctable moral ambivalence. The illiberal House bill frowns on so-called “amnesty” for illegals, expands deportable offenses, and broadens prohibitions on aid to the undocumented. It subordinates the admirable work and ambitions of illegals to the rule of law and fears of their nonassimilation in traditional American culture. The liberal Senate bill legalizes millions of illegals. It authorizes funds to build a token wall along the Mexican border destined to prove as anemic as the French Maginot Line against the Germans. The Senate bill salutes illegals for characteristically embodying the best in American values.

The sharp House-Senate moral divide — a mirror of popular ambivalence — ensures very little will change even with legislation that amalgamates the rival approaches. Illegal aliens will not leave voluntarily. They will not be reported by ordinary citizens.

Tens of millions of Americans alert to the presence of illegals will remain silent. Employers will wink at hiring the undocumented. The economic allure of the United States will remain irresistible to the most talented and ambitious in backward, oppressive or strife-ridden countries. The border patrol will continue to be vastly understaffed. Illegal aliens will stream across American boundaries. Detention facilities will remain insufficient. Deportment orders will be honored more in the breach than in the observance.

The nation’s experiment with Prohibition underscores the limits of the law without moral consensus. The Prohibition Amendment was ratified as a type of homage that vice pays to virtue. Popular morality never celebrated abstinence. Bootlegging was rampant, enforcement haphazard, official corruption infectious. Simple possession of intoxicants escaped penalty. Wiretaps were necessary because witnesses to violations were reluctant. Prohibition laws died in adolescence for lack of moral sustenance.

Immigration restrictions are even more problematic than their Prohibition counterparts. While alcohol consumption was not generally condemned, it was likewise not popularly acclaimed as a virtue. In contrast, the conduct and character of illegal aliens elicit accolades by at least half the population. The applause is loudest from employers.

If President Bush signs a restrictive or semi-restrictive immigration bill before November, voters should remember that laws punishing what many praise as virtue are sound and fury signifying nothing.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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