Saturday, April 7, 2018

Immigration: a question of law, not "justice".

Immigration is a contentious issue, not just in the United States but throughout the Western world. Immigration is a central theme of Hungarian President Viktor Orban's re-election campaign. Immigration is a major divide within the American polity, with states such as Texas and Arizona enthusiastically supporting President Trump's call for National Guard troops to protect the US border with Mexico, while states such as California applaud the efforts of state and local officials to thwart enforcement and deportation actions by ICE.

Amazingly, despite all the rhetoric coming from all sides of the immigration debate, very little attention is given to what should be the core of the debate--the state of immigration law.  More than any other public policy question, immigration is almost exclusively a matter of law, of what the law is, and what the law should be.

What the law is:

  • Article I, Section 8, Paragraph 4 of the United States Constitution explicitly charges the Congress with drafting immigration laws.

  • The body of US Immigration Law is codefied under Title 8, Chapter 12 of the US Code.

  • Every President, upon inauguration, swears an oath to "preserve, protect, and defend the Constitution of the United States", as mandated in Article 2 Section 1 of the Constitution. Every President is explicitly named as Commander-In-Chief of the Armed Forces in Article 2 Section 2.

  • The Constitution is the supreme law of the United States. Article 6 of the Constitution makes this explicit, and explicitly binds all public officials to respect that supremacy.

Americans can--and should--debate what the substance of immigration law should be. That is our right and our duty as citizens.  Yet it is absurd and even asinine to ignore or deny what the substance of immigration law is. 8 USC §1151 establishes explicit numerical limits on immigration. 8 USC §1182(f) specifically empowers the President to bar certain classes of aliens "by proclamation" (meaning no Congressional involvement is required or even allowed). Whether these laws are good or bad, wise or unwise, just or unjust is immaterial. These are the laws we have. These are the laws government officials take an oath to enforce. On this point there can be no debate, there is no argument.

Nor can there be any debate that every US President has the right and responsibility to secure the borders of the United States. Every President is duty bound from his oath to defend the Constitution, and that necessarily includes defending the territory of the United States. Every President is explicitly named as Commander-In-Chief of the Armed Forces in order to secure that defense.

No immigrant has any right or expectation of admission into the United States. 8 USC §1361 explicitly assigns to the immigrant the burden of proving he or she is eligible for admission. Lacking such proof, the mandate of the law is that said immigrant be denied entry into the United States. Congress has the power to alter that mandate, but thus far it has declined to do so.

No immigrant can simply cross the border into the United States, but must enter through established checkpoints. 8 USC §1325 makes it a crime to enter the United States but through established checkpoints. 8 USC §1326 enhances the sanctions for repeat violations of this statute. Congress can alter these statutes but thus far has declined to do so.

Laws can be changed. Where laws are seen as unjust one hopes they will be changed. Yet until they are changed, the laws on the books are the laws of this land, and, as such, they must be enforced. If we are to remain a nation of laws, these laws must be enforced until they are changed.

On this, there can be no debate.

Friday, February 23, 2018

The Parkland Shooting: Failure By Design

The mass shooting at Marjory Stoneman Douglas High School was a barbarity. The wanton slaughter of 17 people was--and is--an outrage.  If you are not angry reading about it, you are either mentally ill or not really paying attention.

As our minds grapple with the sheer inhumanity of such an act, we seek to bring order and structure to the madness.  We want to know who did what, who did nothing, who had a hand in the commission of this crime. We point fingers, because as human beings that is what we do.

There is but one person to blame for this shooting, and that is the shooter himself. He alone opened fire on defenseless high school teens.  He alone decided to take human life.

But while the shooter is to blame for the shooting, let us not fail to note that, regardless of the choices the shooter made or did not make, this tragedy was absolutely preventable. This tragedy should have been prevented. That it was not is every bit as horrific as the shooting itself.

The most galling aspect of the failure to prevent this shooting is that the steps needed to prevent the shooting are uncontroversial and not terribly expensive. No curtailment of civil liberties are needed to stop school shootings, no problematic gun laws that inevitably run afoul of the Second Amendment need be enacted. We need not rely on law enforcement to diligently follow protocols, and investigate every tip and warning given. Had the school been properly secured, this shooting would never have happened.

Consider the timeline that has developed of the shooting itself:
  • 2:19 -- The shooter exits an Uber car and walks into the school
  • 2:21 -- The shooter opens fire in several classrooms.
  • 2:28 -- The shooter drops his weapon and exits the building.
How does someone--someone not even a student at the school--simply walk into the school unimpeded? How is any person able to carry a firearm through the front door of the school without being stopped?

That is the real horror in this: that the shooter had easy access not to firearms, but to the school. With or without a weapon, he should never have gotten through the front door, or even on school grounds. There is no reason that should be allowed in any school anywhere.

Yet Marjory Stoneman Douglas is a typical high school in the United States. And--unsurprisingly--this was a typical high school shooting. By some measures, Parkland was the 208th school shooting since the 1999 Columbine tragedy. In every single one of these incidents, the same galling questions must be asked: how does someone merely walk into a school unimpeded, and how are they able to carry a firearm onto school grounds? In every single one of these incidents, there are no good answers to be had.

Add to those questions this further damning interrogation: how is it that, after more than 200 such events, almost nothing has been done to make schools more secure? 

It is true that some schools, such as Southwestern High School in Shelbyville, Indiana, have implemented strong security systems, but they are by far the exception and not the rule. By and large, America's schools are as unprotected and vulnerable as they were two decades (and 200 shootings) ago.

Nor is it necessary to have a state of the art security system to stop the would-be shooter.  A few basic security elements, such as a "man trap" at the main entrance to the school, make unauthorized access far more difficult. Nearly every courthouse in the nation has metal detectors at their main entrances, as do all airports as well as most concert venues--yet security "experts" argue that their use in schools is a bad idea!

In his classic treatise on strategy and tactics, Sun Tzu wrote "You can ensure the safety of your defense if you only hold positions that cannot be attacked." This is the goal of all security: invulnerability to attack. It should be the goal of school security--and it has not been.

Yet hardening schools, and making them invulnerable to these attacks, has not been at the forefront of the media coverage of this event.  We have heard of the evils of guns, and the need to shred the Second Amendment to confiscate guns. We have heard of the multiple failings of law enforcement, from the FBI on down to the Broward County Sheriff's Office. We have heard of the wisdom or unwisdom of arming teachers. We have not heard much of man traps, nor of metal detectors, nor other basic security mechanisms that would impede the miscreant and make doing mischief within a school that much more difficult.

The horror of Parkland that every parent in America must now face is this: our schools are not safe--by design. Our schools are not built to keep our children free from harm during the school day. Our schools are not built to thwart attacks by evildoers. Our schools are the antithesis of secure--they are vulnerable when they should be invulnerable.

Tragically, even after Parkland, there is no indication that will ever change.