Tuesday, April 8, 2008

Border Fence Bound by No Law?

It seems like the border fence, which will have dubious benefit in reducing undocumented immigration, is in the news every day.  Adam Liptak of the N.Y. Times writes that "[s]curing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom. The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final. "

Is it worth bending the rule of law for a fence of no value to effectively addressing immigrtaion control concerns AND results in deaths?

For an op/ed on how the border fence is indicative of American insecurity by Gregory Rodriguez, click here.

KJ

https://lawprofessors.typepad.com/immigration/2008/04/border-fence-bo.html

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Comments

I'm curious. If a fence is not the solution, then what would be the best solution?

Posted by: Jamie | Apr 8, 2008 8:08:32 AM

I’m a huge and vocal advocate for comprehensive immigration reform, and yet, I do support the border fence, or some sort of impenetrable barrier, and a complete coast to coast one at that. My view stems from pragmatism. I feel that in a perfect world, Mexico and Central America could support their own citizens, and the free market forces of supply and demand could dictate the free flow of immigration. Unfortunately, that world doesn’t yet exist, and if we are to reach a bargain between right and left on the issue of comprehensive immigration reform, then we will have to be able to effectively control the southern border.

It is politically unfortunate that due to the dwindling remaining tenure of our current administration, they feel compelled to finish at least the small amount of border fence that they committed to, but they are doing so at the breakneck speed of political expediency, and the rule of law be damned. All legal challenges should have their day in court, but that is a concept that has eluded this administration consistently, and from the get go. They have fumbled the entire issue of comprehensive immigration reform, along with a host of important issues, but that doesn’t mean that they were wrong to support the fence, just inept in it’s execution.

The fence or wall will eventually be built, but to do so without significantly increasing the limits on legal immigration and family reunification, not to mention temporary work visas, as well as legalizing our current undocumented population, would be a travesty and a tragedy. The wall is but a part of the puzzle that will be comprehensive immigration reform. I look forward to the day, hopefully within my lifetime, when Americans can look to the world economy and security, and see widespread peace and prosperity. It is then, but not now, when Americans will be able to say to their future President, “Mr. President, tear down that wall!”

Posted by: Robert Gittelson | Apr 8, 2008 8:30:20 AM

The U.S. government has no more culpability in the death of illegal aliens in the desert than it has in the deaths of citizens who fail to use crosswalks. Cross either by using the prescribed route or risk death or injury by violating the law. You insult these people by treating them like children. Amnesty and guest worker programs are not solutions to illegal immigration, as neither guarantee it will cease. Barring reforms in Central and South America, there will never be enough work to satisfy all those who would be guest workers, so any limitations put on guest workers would simply result in continued illegal immigration and death in the desert for those foolish enough to attempt a crossing. Central and South America would continue to generate millions of unskilled, illiterate and underemployed poor. Open borders, as advocated by professor Johnson would only assure the accumulation of millions of these people entering this country and establishing large overcrowded ghettos, filled with inhabitants competing for little work at low wages. In short, the open borders folks are advocating national suicide by importing poverty and ignorance.

Posted by: Horace | Apr 8, 2008 5:58:44 PM

As much as it pains me to admit it, Horace does raise some valid arguments, albeit in a way that lacks compassion and is coldly clinical in it’s analysis. Having made that acknowledgement, I would pose the following hypothetical to Horace, and any other ImmigrationProf Blog reader, in the hope that they would offer us an honest assessment of it’s validity, as follows: If the United States were to enact the following laws aimed at a comprehensive approach toward immigration reform:

1) Build a coast-to-coast wall along our southern border in it’s entirety, tall, deep, and wide. Also beef up border enforcement by hiring additional border guards, and implement new technologies after thorough testing of same.
2) Seriously, annually, and comprehensively verify the biometric identification of every employee in the United States for legal presence.
3) Enforce extremely tough, thorough and punitive employer sanctions and penalties to any violator of the above rule.
4) Deport any undocumented immigrant found in violation of lawful presence.
5) Legalize our current population of undocumented immigrants if they can prove that they have arrived before a certain cutoff date to be determined, paid their taxes, or at least filed their taxes and are paying them pursuant to an IRS authorized payment plan, learned English within a certain timeframe to be determined, and have passed a thorough FBI background check to insure a clean criminal record.
6) Deport any undocumented immigrants found in violation of any of the above mentioned provisions for legalization, particularly the provision regarding being able to prove beyond a reasonable doubt their presence on or before the hard cut-off date to be determined.
7) Strictly adhered to the cut off date provision, and deport or turn away all new arrivals without legal and verifiable immigration authorization.

Would the strict and thorough implementation of the above provisions act as a sufficient deterrent toward the continuing flow of illegal immigrants into the United States, and if not, could you come up with a better plan that would not cause the United States to suffer negative economic consequences?

Posted by: Robert Gittelson | Apr 9, 2008 8:22:12 AM

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