UNJUST IMMIGRATION LAW IS NOT LAW
by May 1, 2015
As 2014 and the Democrats’ control of the Senate neared their conclusion, Barack Obama issued an executive order to defer deportation of five million people who lack government papers — mostly parents of children whom the government deems citizens or legal permanent residents. Under the order, most of those folks have received permission to work. Obama increased the number of “dreamers” — children brought here by their parents who lack papers and raised in the United States — who were also made safe from deportation.
What’s wrong with this picture?
I can think of a few things. Why only 5 million? The government estimates that more than 11 million persons live in the United States without its permission. Obama presumably is focusing on the 5 million because he does not want to see them forcibly separated from their children. Good for him. That’s a worthy motive and objective. So why didn’t he do this years ago? Many families were split up while he dithered and played politics, falsely claiming he had no executive authority to defer deportations.
Moreover, his order does not apply to the parents of the “dreamers,” so he reserves the power to break up those families. Shame, Mr. Obama. All persons without papers should be protected from deportation, for reasons I will soon make clear if they are not clear already.
Also, the deferral of deportations is only temporary. But I guess we can’t blame him for the fact that the next president could vacate his executive order and deport innocent people.
Another thing wrong is that Obama thinks permission to work is his to bestow. In terms of natural law and objective morality, no one needs permission to engage in production and free exchange. Governments maintain elaborate machinery to keep people from doing those things without permission (licenses and permits), and they have the guns to enforce it. But that power is illegitimate. It doesn’t matter that a majority of the people’s misrepresentatives say otherwise.
It’s admirable that Obama will remove this one barrier to industriousness. I guess he’s doing what he can under the circumstances, but of course he does not favor repeal of the entire rotten immigration apparatus that makes special permission necessary.
We know he would not favor wholesale repeal because he says his order will also increase “border security.” “Border security” is a term that camouflages the gross violation of individual rights entailed by immigration control. Like his political opponents, Obama is a control freak, even if occasionally he supports loosening control.
Most people have a different list of complaints against Obama’s executive order. Republicans and even some Democrats oppose Obama’s unilateral action. It’s not so much the content of the order, they say, but the process. The legislature is supposed to legislate, and the executive is supposed to execute, so they accuse Obama of unconstitutionally legislating and failing to execute. They remind us that Obama previously said he has no authority to do what he’s now done. Administration people say he is guilty of no contradiction because what he’s doing today is different from what he said he had no authority to do three years ago. His political opponents respond with the equivalent of “Flapdoodle.” Here’s what really happened: Obama previously lied about his lack of legal authority to get pro-immigration Latinos off his back. Yes, he’s that cynical. (By the way, why do Republicans and conservatives have no problem with unilateral executive authority to murder people, including Americans?)
It’s a good idea to discount everything both sides have said. In politics people say — usually with great conviction — whatever is expedient. Time horizons are short, and they have little incentive to strive for consistency, which they surely regard as the “hobgoblin of little minds.”
I also wouldn’t be too concerned with “process.” The language of every law, including the Constitution, is subject to human interpretation, and therefore the rule of law in any political system we observe today is really the law of men and women. As I’ve written before,
It’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right.
And as Ludwig Wittgenstein wrote, “Any interpretation still hangs in the air along with what it interprets, and cannot give it any support.”
The natural law
In “The Myth of the Rule of Law,” legal philosopher and libertarian John Hasnas argues that since no legal language is exempt from interpretation, law can’t be determinate. Another legal scholar and libertarian, Randy Barnett, agrees, at least to some extent. He calls law “underdeterminate.”
Predictably, then, as Hasnas writes, there is inevitably a host of
incompatible, contradictory rules and principles…. This means that a logically sound argument can be found for any legal conclusion…. Because the law is made up of contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively “feels” right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker.… [It] is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.
“The fact is that there is no such thing as a government of law and not people,” Hasnas concludes. “The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion.”
So even if we ignore cynicism, it’s no puzzle that one day Obama can find no authority to defer deportation and loads of authority the next. (In fact, he has the authority under immigration law, as libertarian columnist Shikha Dalmia and libertarian law professor Ilya Somin document.)
Rather than fall into that thicket, let’s get Lysander Spooner on them all. What counts is liberty, and lex iniusta non est lex — an unjust law is not a law. As Spooner wrote Grover Cleveland in 1886,
Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power.… It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law.
So if a president unilaterally acts to protect someone’s liberty, I say bravo, because he is acting according to the natural law. And if a president acts, whether unilaterally or in concert with Congress, to violate liberty, then that president is in violation of the natural law and the people should respond accordingly.
Government interference with the right to move is a violation of the natural law and of individual liberty. It does not matter that such interference was enacted by a majority of both congressional chambers and signed by a president. It is illegal, and even an isolated refusal on the part of a president to enforce an unjust “law” is to be applauded.
(I hope no one thinks the principle of trespass furnishes justification for government control of immigration. The claim that free immigration constitutes “forced association” is nonsense. In a freed society, newcomers would be welcome on the property of many people looking for fellowship, customers, tenants, and services, as well as on nonstate public property.)
I know better than to think that Obama’s executive order is the start of something big. The new Republican Congress might find a way to reverse the order. But that is no reason not to rejoice at Obama’s action. Because of it, some human beings haven’t been torn from their children by jackbooted immigration thugs. I can’t see how that’s not a good thing.
This article was originally published in the February 2015 edition of Future of Freedom.