Discretionary Illegal Immigration is Bad Policy

During the 2012 Republican presidential primaries, Newt Gingrich stated his position on dealing with illegal immigrants as follows:

If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out.

Although other Republican candidates also espoused discretion-based means of dealing with illegal immigrants, Gingrich was perhaps the most outspoken advocate of such subjective policies.

However, how does a rule of law-based nation deal with such discretionary policies?  In short, Gingrich's position is both nonsensical and discriminatory.  Who defines the boundaries between those illegal immigrants that get deported and those allowed to remain in the country?  Why did Gingrich choose 25 years as a boundary?  What about someone who has been a resident for 24.6 years?  Do we round up to 25 years and let him stay?  What about a 24.4-year resident?  Round down and deport?  And a 23-year resident?  A clear deportee?  On and on it goes down the incoherent residency duration ladder.  Sounds like residence time-based discrimination without justification.

And what is special about three kids and two grandkids?  What about one kid and no grandkids?  Or no kids at all?  Shouldn't the criteria for allowing someone to stay -- despite his illegal immigrant status -- be based on their capacity to become an excellent citizen (or whatever legal residency status you accord the candidate)?  So what is Gingrich saying -- that those without kids and/or grandkids are less desirable residents?  That sounds like offspring number-based discrimination without justification.

Criteria that include belonging to a local church (or perhaps another community group) are equally problematic.  Since when is this a valid criterion for assessing the quality of a citizen/resident?  Many undesirables are members of churches and/or community groups, and many desirables are not members of either.  This criterion sounds like discrimination based on association without justification.

Unfortunately, the reason the United States has been unable to successfully deal with the illegal immigration problem is that the correct answers are potentially black and white -- but many want them to be the more politically correct color of gray.  The problem is most acute in the USA, where 4% or higher of the total population may be illegal immigrants (the National Association of Former Border Patrol Officers recently alleged that the true number is probably twice as large), but it is also relevant in other countries -- including Canada, where there may be upwards of 120,000 or more illegal immigrants.

To have a discretion-based approach for dealing with illegal immigrants would immediately clog up the court systems in perpetuity, and therefore cease to be an effective policy.  The litigation regarding where these discretionary boundaries could and should lie would be endless -- and rightfully so.  There is no solid evidence I am aware of that would support any of Gingrich's proposed criteria.  As a result, the rules appear arbitrary.

Furthermore, Gingrich's criteria served to alienate a broader audience than he perhaps intended.  His criteria made normative statements regarding the quality of a United States resident based broadly on age, whether or not they have formal religious or community association-based affiliations, how many children they have, etc.  Were young, atheist, childless United States citizens more likely to vote for Gingrich following these types of statements?  Not likely.  This is a classic political example of the law of unintended consequences.  Even though Gingrich was intending for his criteria to apply only to illegal immigrants, they also appear to indirectly apply to his view of potential voters.

Universal and complete deportation of illegal immigrants regardless of their particulars is the only policy consistent with rule of law in a Western democracy.  Every illegal immigrant allowed to remain a resident is punishing a potential legal immigrant who (apparently unwisely) played by the rules and stood in line for his/her legal application to be processed.  Thus, discretion-based approaches to dealing with illegal immigrants also set up the moral hazard/slippery slope problem, whereby -- in light of the precedents being set for current illegal immigrants -- further illegal immigration is encouraged, and the problem gets larger over time, rather than being resolved.

In addition, it is difficult to encourage rule of law obedience in the general population on other legal issues when the rule of law requirement apparently doesn't apply to immigration.  This is a recipe for civilizational collapse.

Given the recurring nature of this issue in each electoral cycle, conservatives need to consistently stick to the hard line on illegal immigration and avoid muddying the policy waters with feel-good subjective criteria that fail to withstand even minimal serious scrutiny.

Dr. Sierra Rayne writes regularly on environment, energy, and national security topics.  He can be found on Twitter at @rayne_sierra.