No introduction is necessary on the subject of illegal immigration. If you do not yet have an opinion on it, you are very much alone. National polls show a very small portion of the US citizenry in the undecided category. In recent years, the debate has been propelled to critical mass through lack of definition and enforcement by the government.
Last week, a Kansas Court of Appeals decided that an illegal immigrant was, in fact, not. The court did not reach this decision because the individual's documents were vague -- he was clearly illegal -- but because of a lower court's assertion that the man had to go straight to jail for an offense usually punishable by probation. The lower court would not sentence the man to probation because, among other things, probation expects strict conformity to US state and federal law. Illegal immigrants, inherently, cannot conform to US state and federal law because their mere presence inside the US is unlawful. Or at least that's what the lower court (and most of the US citizenry) thought.
The Kansas Court of Appeals claimed "while Congress has criminalized illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally". This led to their announcement that the perpetrator could no longer be considered illegal because the "entry portion" happened long ago. Basically, the feds missed the boat. This precedent defines a veritable statute of limitations for first-time, illegal aliens.
Where liberals see this decision as a belated victory, conservatives are shocked and outraged. Both sides are incorrect.
The job of the Kansas court was to review the case and bounce it if it did not adhere to law. Judges are to interpret the law only, not create precedent for laws they would like to interpret. In this case, the final decision was simple, concise and completely accurate. Nor is it the first time a high court has decided this. In 1958, the Supreme Court claimed the very same thing when saying:
...those offenses are not continuing ones, as 'entry' is limited to a particular locality and hardly suggests continuity. Hence a specific venue provision in 279 of the Act was required before illegal entry cases could be prosecuted at the place of apprehension.
Immediately, the opposition is quick to offer analogies. If a thief steals a car, foils the police and escapes with his loot, is he free to sell the car after three quiet months? What about a year? But this analogy is ill-conceived. There are laws that make it specifically illegal to traffic stolen goods - even to purchase stolen property unaware. And indeed, in some states, prosecution for theft is limited to a certain time span.
While performed properly, the Kansas court ruling should be not be viewed as some great act of justice. The intentions of the court are suspicious at best, and the implications are messy. At what point does illegal entry end and legal presence begin? Assuming that one's mere existence inside the border counts as post-entry presence, our border guards would have to arrest immigrants in Mexico before they crossed the border. And what then is the punishment for illegal immigrants that commit crimes? Do they stay and take their medicine, or do they escape prosecution?
The Kansas perpetrator used his adolescent son to traffic cocaine which, apart from the child specifically, could be viewed as a victimless crime. But illegal immigrants have certainly done more heinous things. They have stolen and vandalized. They have raped and murdered. Perhaps a statute will be developed that lists exactly what federal crimes an illegal immigrant will be held and punished for, versus the ones that will be ignored for sake of deportation. Of course, assuming such a list is created, it will never be followed. The bureaucracy has no more incentive to do this than they have to build an effective fence.
Conservatives such as Sean Hannity are fearful of this ruling and fume over it, but that need not be so.
The best way of removing bad laws is to enforce them absolutely. When it comes to insisting on political change, the citizenry is lazy. If bad laws are not adequately enforced, people rely on bureaucratic passiveness and continue doing what they want, only irritated by an occasional fine or ticket. When bad laws are absolutely enforced, the people can no longer resort to loopholes and tolerance so they turn to anger which produces political change. Last month, we discussed speed limits in this very light.
It is much healthier for conservatives to embrace and exploit the Kansas ruling. Let us consider if the ruling was to become widespread policy across the US. Would the labeling of "legal" by unelected, elitist judges impose a general tolerance on the citizenry? The majority of the country is already against illegal immigration. That will not diminish because the courts impose de facto amnesty. It will only enrage the people to the point of political change - exactly what conservatives want.
The second thing it is likely to do is streamline deportation. Unelected judges have been imposing liberal agendas on the citizenry for decades. If these judges hold "illegal entry" as the point for action, state and federal officers -- enraged by the courts -- are likely to swarm to that point and focus on it like never before which is exactly what conservatives want.
Bill O'Reilly routinely insists that the borders must be shut down before we can toss out everyone who needs to be tossed out. Logistically, he's right. It is not rational to clean out the mess if the floodgates are still open. If the courts begin imposing this precedent nation-wide, the executive branch will only be able to focus on border security alone. Meanwhile, the people -- also enraged by the courts -- will empty the legislature and write laws to evict the 12 million on the inside. It would take a good deal of time, but the border would stop hemorrhaging illegals immediately. That is a valuable trade.
Consider the Amnesty Bill of this past June and July. One would be hard-pressed to find legislation more desired by the government and more opposed by the people. The bill was amended and revised dozens of times, proposed on three occasions and backed by the President. In the end, the people tore it apart. There is much to be gained politically from such anger.