When Congress reconvenes after Labor Day, House Republicans will find themselves once again staring down the barrel of immigration reform - a predicament that promises to pit party leaders against members of the chamber’s Tea Party fringe, who say the notion of providing a pathway to citizenship for the millions of undocumented immigrants living and working in the United States is a line they are unwilling to cross.
Stoked by right-wing groups like Judicial Watch - which calls undocumented aliens “criminals” that “must be held accountable” - reform opponents have taken to couching their anti-immigration rhetoric in the language of law and order. In a July op-ed for the Daily Caller, Rep. Steve King of Iowa - the reigning poster child for legalistic opposition to immigration reform - warned that if compromise includes a pathway to citizenship, “justice will be turned on its head and the rule of law will be forever tarnished.”
He’s not just blowing smoke. Throughout the August recess, King has been traveling the country on a “Stop Amnesty Tour” designed to drum up support for his position; and while his GOP colleagues have been working to distance themselves from his extremist hyperbole, it’s a sure bet that his narrow understanding of American jurisprudence will continue to frame the debate.
As it is written, the pathway to citizenship in the “Gang of Eight” immigration bill that passed the Senate in June is not “amnesty” at all, since it penalizes those who would benefit from it. But even if it were, it would hardly be without precedent. The practice of granting amnesty is part of an enduring legal tradition in the United States, and an unavoidable consequence of government “by the people, for the people,” where laws reflect an evolving national conscience.
In the U.S., the federal government has brought criminals far more nefarious than Mexican fruit pickers into the light of legality when practical or moral considerations called for it. Almost from the start of hostilities against the British, revolutionary colonists began offering amnesty to loyalists “wishing to be received and reunited to their country.” Thousands of ex-collaborators were reintegrated into society after the Treaty of Paris over vocal protest from the states.
As early as 1863, at the height of the Civil War, President Abraham Lincoln began laying the groundwork for pardoning rebel fighters and their supporters, a process continued by his successor Andrew Johnson. Congress completed the task with the Amnesty Act of 1872, which granted full political rights to more than 150,000 former secessionists - including commissioned officers and government officials whose citizenship had been revoked. (An exception, Robert E. Lee, would have to wait more than a century until President Gerald Ford signed Senate Joint Resolution 23 in 1975, posthumously restoring his American citizenship.)
More recently, for 30 days in 1968, thousands of undocumented machine guns were licensed with the federal government under a “no questions asked” amnesty as part of the Gun Control Act. In February, Rep. Jeff Miller - a Florida Republican who calls a pathway to citizenship a “misguided approach” that rewards criminals - introduced a bill that would legalize thousands more illegal machine guns that fell through the cracks the first time. Miller is not opposed to rewarding criminals as long as we pick the right ones.
Perhaps the most notable application of amnesty in the U.S. came in 1977 when, on his first day in office, President Jimmy Carter made good on a campaign promise and gave unconditional pardons to hundreds of thousands of Vietnam-era draft dodgers.
And over the past decade the IRS has recouped more than $5 billion through four tax amnesties - which have allowed thousands of tax cheats to repatriate funds without risk of penalty or jail time.
Here’s the thing: If, as Rep. King and his allies proclaim, granting blanket amnesty for past crimes tarnishes the rule of law, we may as well be living in a state of anarchy. But let’s assume for a moment that we lack this rich tradition and must make the case for amnesty within the narrow confines of reform opponents’ legalistic frame. Simply by applying judicial precedent, the law as it has been interpreted may do more to favor undocumented immigrants in their quest for U.S. citizenship than stifle them.
Two principles rooted in common law are important here. “Adverse possession,” which includes the doctrine of “squatters rights,” holds that after a certain period of time - typically 10-12 years - a person can become the rightful owner of land where he’s living without permission if the original owner should have been aware of his presence and did nothing to eject him. A caveat in some jurisdictions includes the payment of property taxes, a requirement that would work in favor of undocumented aliens, many of whom have been paying state and federal income tax for years.
The concept of “waiver” works similarly: If a plaintiff (or government) knowingly gives up his right to seek recompense for a perceived offense, he has waived his claim to that right. As recently as 2010 an industrial polluter in New Jersey successfully invoked this principle to avoid a costly settlement due to the state’s previous policy of overlooking the violation in question.
Applying these concepts to the issue of illegal immigration, it could certainly be possible to argue that by knowingly allowing millions of undocumented aliens to live, work, pay taxes, attend school, buy property, engage is commerce and otherwise contribute to, and benefit from, the U.S. economy for so long, the U.S. government has forfeited it’s legal right to uproot them en masse from the place they have come to identify as home.
To make these arguments in a court of law would be a stretch, to say the least. But they help expose the senselessness of confronting an issue as complex as immigration reform through a narrow statutory lens; and, they reveal the central flaw in the rhetorical approach of amnesty opponents like Steve King and Jeff Miller. Justice is about equity and fairness. Law is a government’s attempt to achieve justice. By blindly equating the two, law-and-order opponents of a pathway to citizenship suggest that they care little about either.
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