Immigration Reform And Executive Orders: Imperfect Together – Guest Essayist: Will Morrisey

Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a law and the president signs it, the president undertakes a Constitutional obligation to execute the law.  In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it. Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

Many current problems with immigration have arisen because recent presidents have preferred to complain about U. S. immigration laws themselves, instead of enforcing them. They do indeed have a lot to complain about. But that is no excuse to refuse to enforce the laws that now exist, either passively—by simply failing to follow them—or actively—by issuing executive orders that contradict them. Last I looked “illegal immigration” meant immigration that’s against the law, and I for one wouldn’t mind seeing a bit more respect for duly-enacted laws of the land.  As Abraham Lincoln said, repeatedly—from his Lyceum Address in 1838 through his first Inaugural Address of 1861—even unjust laws are laws, and he who breaks them encourages a spirit of lawlessness that may bite the hand that feeds it.

Part of the problem we face stems from our (now) rather hazy way of conceiving immigration law. Let’s back up for a moment and consider the strengths and the dangers of the American understanding of immigration—legal immigration. For most countries, immigration is a fairly straightforward matter. If I am Russian and you are not, I will let you into my country, or not, depending upon whether I regard your existence there to be in the best interests of the Russian nation, as defined by the government of Russia (including its state-controlled church). Thank you.  To be sure, this doesn’t make immigration go away, as a practical problem. Many countries find themselves overwhelmed by refugees from war or famine; some (Russia included) find themselves vexed by ‘foreigners’ who were incorporated during an earlier period of imperial conquest. But at least in principle, the doctrine of modern nationalism settles the issue by defining immigration as a matter of national self-interest, often defined not merely in economic but in linguistic, religious, and ethnic terms.

From the founding on, the Americans understood the matter quite differently. If all men are created equal, endowed by their Creator with certain unalienable rights to life, liberty, and property, then nationalism cannot sit at the core of American law. With respect to immigration, we cannot say to those who want to join us in citizenship: “We don’t want you because you are French, Irish, Chinese, Iranian and not American.” Mere ethnicity can be no bar to residence or citizenship in the United States, a country founded on resolutely non-ethnic principles.

On the other hand, America is entirely unexceptional in claiming the right to control its own borders, one the following grounds: By organizing ourselves into a political society dedicated to the proposition that all men are created equal, we have drawn geographical boundaries around a moral idea. That is, in our first century after independence we bought and conquered our way from sea to shining sea on the foundation of a moral idea—human equality of unalienable natural rights. By staking out this territorial claim under a republican regime that distinguished ourselves from other countries, which occupied different parcels of the earth and often at the service of very different principles and ruling themselves under different regimes. Our right to secure boundaries issues not from ethnic identity—by eighteenth-century standards, we were already a somewhat mongrel lot, and things have only gotten wilder since then—but from the very right to security itself, that is, from the obligation of governments (as the Declaration of Independence puts it) to secure the rights with which every human being has been endowed. We have paid to defend those universal rights in this particular place: our two civil wars (1775-1781 and 1861-1865), two world wars (three, counting the wars of the Cold War, and four, counting the wars against jihadists and their sponsors).

This willingness to enunciate and to defend natural, human rights in a practical way—within a physical territory, against enemies foreign and domestic—has contributed not only to political freedom in the world but to our own prosperity.  The nation of immigrants has been the nation of willing workers and patriotic citizens; since our founding, immigrants have taken the hardest, dirtiest, and lowest-paying jobs precisely because they knew they would sooner or later be recognized in American law what they already were by nature but were not in their native countries: rights-bearers.

With these great advantages came a serious problem.  Being geographically limited, being finite, the United States can no more permit all human beings to come here than any other country can—if any other country wanted to. This obvious fact has forced American legislators from the founding generation to now to seek limits to immigration consonant with our universal moral principles. By necessity, we must put reasonable limits on a principle unlimited by any category other than that of “humanity.”

A good example of this was the American approach to Chinese immigration following the Civil War. In 1868, the United States and China signed a treaty stipulating, among other things, that “the United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from one country to the other, for purpose of curiosity”—we’d call it “tourism,” now—“of trade, or as permanent residents.” On the other hand, both countries understood that America and China were different countries, with different languages, customs, habits; neither would be permitted to overwhelm the other by sheer population transfer. Then as now, there were a lot of Chinese. As for the Americans, had they not overwhelmed the North American Indian tribes and nations with exactly such a demographic strategy?

By the early 1880s, over 100,000 Chinese had emigrated to the United States—a then-substantial number of persons who had no experience in ‘working’ a political regime of republicanism. As my Hillsdale College colleague Adam Carrington has written in a recent article in the Journal of Supreme Court History,[1] Justice Steven J. Field argued that border control rested in the national police power—a power inherent in any government that seeks to protect the lives and property of its citizens. Ignoring then-common claims based on ethnicity or race, Field observed that the Chinese “retained the habits and customs of their own country.” Some Chinese were welcome, but “vast hordes of people crowding in upon us” threatened “the right of self-preservation” and therefore justified invoking the police power of the United States to control the influx and thus to affirm the sovereignty of the American people over their own country.

Current confusions bedeviling American immigration policy stem from obscuring the foundations of the American regime itself.  If the American people are sovereign on American territory, and if that sovereignty itself defers to the laws of nature and of nature’s God, then Americans will not ban any would-be immigrant on the basis of such morally relevant categories as race, national origin, or religion—at least insofar as the latter does not command acts in violation of those natural laws. If, however, the American people enact laws with which to govern admission to the territory over which they enjoy sovereignty, on such morally and politically legitimate terms, then it is the obligation of other countries to respect those laws and for elected officials to obey them until such time as they may be changed by ordinary legislative processes. To attempt to change or abolish such laws de facto by executive fiat strikes at American constitutionalism—the very legal foundation that protects the rights of person and  property rights that make America attractive to would-be immigrants in the first place, and livable to those of us who are already here.

One thing else ought to be clear. Enacting laws for immigration must be an act of the national legislature and the president, given the supreme importance of such law.  Immigration law determines not only the number but also to some extent the character of the people who will join us in fellow-citizenship.  It is no matter for one branch of government alone, any more than are the laws governing the civic education of new immigrants and their children.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

[1] Adam Carrington: “Police the Border: Justice Field on Immigration as a Police Power.” Journal of Supreme Court History, Volume 40, Number 1, March 2015, pp. 20-37.

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