On Immigration, Cast The First Stone

Current means of enforcing federal immigration law has come under scrutiny. Some families have been divided at the border between Mexico and the United States for those suspected of entering illegally, many of whom are seeking asylum. Reportedly children have been separated from their families at a higher rate than previously, part of an administration decision to increase the amount of criminal charges for presumed illegal crossings, though this practice is not new. There are even complaints, originating from the highest office, regarding the extension of due process to illegal entrants.

As more threads are pulled perhaps the story will unravel to reveal the full scope of this potential tragedy. Alas, there are some who believe that the justifications made for these policies are on solid ground. Though this remains an evolving story, both on the factual and policy front, many have come forth to defend the use of such tactics, often under the broad respect for our laws or adhering to the “rule of law” justification. But these concerns don’t seem to justify current, or even past, practices.

The Rule of Law Doesn’t Justify Strict Enforcement at Any Cost

The rule of law is important, but that ideal serves justice, which requires proportionality when assigning punishment and enforcing the law. More to the heart of the matter, the earliest seeds of the rule of law concept were not justifications for strict enforcement but against arbitrary rule. Aristotle wrote, “It is more proper that law should govern than any one of the citizens.” John Adams paraphrased the rule of law as “a government of law not of men.” John Locke, who deeply influenced both English and American law, wrote that the rule of law required that one not be “subject to the inconstant, uncertain, unknown, and arbitrary wills of others.”

Lord Coke stated that law is “a rational ordinance or directive judgment, commanding obedience to itself primarily because what it directs the citizens to do is reasonable and in that sense just.” Concerned also with the opposite, arbitrariness, Coke wrote that the rule of law is violated when “an act of will that derives its binding force from the threat of sanction” is imposed.

The rule of law requires law contain certain characteristics. At the very least, as hinted at above, it requires that the laws not be arbitrary, but instead designed and enforced to the prevent the targeted harms. If law fails to meet these characteristics it is not Law, but would instead be only legislation. A distinction F.A. Hayek made and has since been defended by Donald Boudreaux.

Attorney and author Timothy Sanderfut wrote, paraphrasing Francis Bacon, that a “lawfulness requirement bars the government from using any ‘kind of force which pre‐ tends law,’ whether it be an act of ‘mere force,’ or ‘a mali‐ cious ensnarement under colour of law,” or if the arbitrariness resides in the ‘harshness of the law itself.’” (emphasis added). Thus the very law may be too harsh in some regard, and would violate the rule of law ideal.

I think it is helpful to think of the rule of law as a mediating ideal between rules and individuals. Norms of justice guide the relationship between the two. We impose certain characteristics on these rules which make it Law, versus legislation or a mandate. In contrast, mandates may demand obedience — usually by the imposition of force — but the direction of the relationship goes only one way, from the law to the person. Law, has a reciprocal relationship, which we often describe with terms such as justice and due process of Law, that impose a burden on the law in addition to the individual.

There is no single definition of the rule of law, some may even disagree with the definitions outlined here. However, despite the lack of clarity, there is little to suggest that the rule of law requires mindless adherence to any legislative mandate, neither does it require heavy handed enforcement. Instead the opposite is implied, the rule of law aims to prevent arbitrary action even in law enforcement.

Is this Evil Itself or to Prevent Evil?

Another legal concept worth considering is the distinction between malum in se (wrong or evil in itself) versus malum prohibitum (wrong as prohibited). The former is more easily justified as illegal. The latter may not be directed at activity that results in direct or immediate injury to persons or property but target situations that may create “the danger of probability of [the harm] which the law seeks to minimize.”

In this regard, the more tenuous the relationship between the potentially dangerous scenario and the legal restrictions the less justifiable the law will be. For immigration, there doesn’t appear to be either a direct harm or a potential scenario for harm with the influx of immigrants. The evidence weighs substantially in favor of immigration, the welfare burdens are less than even the average American, the crime rate is lower, and jobs are largely not threatened, in fact we likely stand to gain economically from more immigration. The scenario for potential harm being prevented from immigration restriction is difficult to imagine. Also, not every justification is equally valid; prevention of increased crime versus job protection are not equally compelling.

This makes the restrictive process for entering the nation appear unduly burdensome and justifications for tough and punitive enforcement inhumane. More importantly for this discussion, concerns about respect for the law do not appear to be served by strict enforcement.

The Cost and Consequences of Enforcement

When the Pharisees brought a women “taken in adultery” before Jesus of Nazareth, and placed her at his feet, they declared, “Now Moses in the law commanded us, that such should be stoned: but what sayest thou?” Jesus perceived that they sought to lay a trap — choose between the demands of the law and the practice of the law. Either side with Moses the most venerable prophet and stone the woman or side with the practice of the time. Such a penalty for adultery was largely unenforced, in part, because the death penalty could only be issued by Roman edict.

Discerning their ploy, Jesus placed the enforcement of the law in the hands of the accusers, stating “He that is without sin among you, let him first cast a stone at her.” This shifted the cost of enforcement and judgment in their hands, and perhaps more importantly stated: if this is the punishment for her sin, let it be for yours as well.

Jesus made a plea for mercy by appealing to the inherent guilt of the accusers. The assigned consequences from our legislated law often carry disproportionate consequences when compared to the alleged harm of the law breaker. Indeed, some have detrimental and barbarous effects.

As most of us do not bear the cost of enforcement, both economic and human, we are more likely to encourage the enforcement of minor infractions at a higher cost then is gained by the prevention, and as previously discussed, it is hard to find the harm prevented in this circumstance. But assuming some harm, there remains little justification for overly punitive methods of enforcement, be it before or after a legal determination is made.

This is a common finding in political economy, law enforcement tends to ratchet in the direction of severity even when the perceived benefit is relatively small. As David Friedman put it “People who want to control other people’s lives are rarely eager to pay for the privilege…And those on the receiving end” — in this case immigrants, both legal and illegal — “get a lot more pain out of the oppression than their oppressors get pleasure.” But since it is largely costless for most of the public, they are willing to demand such enforcement. If we, instead, turned punishment against ourselves for every infraction, we would perhaps hesitate to punish as even the Pharisees.

For many, the idea that punishment may be turned against them seems implausible, but in reality it isn’t. Harvey Silvergate has estimated that the laws are so numerous and broad that we could easily break up to three federal laws a day. What does the rule of law demand in these circumstances? Should we knock down every door, enter every home, and jail every offender? Silvergate is not alone, the Manhattan Institute has begun a project tracking the increase of criminal codes on a state by state basis, finding — in addition to a general trend of increased criminalization — the ability of regulatory agencies to sometimes impose criminal sanctions for violation and the existence of a few vague statutes that lack a mens rea (the intention or knowledge of wrongdoing) requirement, an important element of a crime. This leaves people potentially open to criminal prosecution and sanction for what often wouldn’t typically qualify as criminal conduct.

Immigration law, whether you agree with it as policy or not, does not need to be enforced in this manner. Families do not need to be divided and children lost in a bureaucratic and legal quagmire. Perhaps you will deter some from entering the country, but at too high a cost.

Most importantly, laws are not self justifying. The mere existence of legislation or endorsement of enforcement practices does not mean they meet the requirements of the Constitution or of Law. Like many of our other laws, when it comes to the enforcement of immigration law and the rule of law, we should first look at ourselves and be willing to cast the first stone.

James Devereaux is an attorney and writer. Much of his writing can be found here at medium and at fee.org/people/james_devereaux. As a matter of disclosure, he interned at The Manhattan Institute and worked on the referenced project. All views his own.