May 22, 2010

Scolding President Calderón

I'm not entirely sure how I feel about the Arizona immigration law.  On the one hand, I see no intrinsic policy problem with a state police officer referring someone reasonably suspected of being in the country without legal documentation to Federal law enforcement authorities.  And I can entirely understand Arizonans' frustrations with people in the country illegally.  On the other hand, enforcement of immigration laws is, for better or for worse, given exclusively to the Federal government, and Arizona is effectively usurping that function from the Feds.  And I really have no idea what a "reasonable suspicion" of undocumented status might really be.

With that said, what this proponent of liberalizing immigration policy knows is that he don't like the President of Mexico coming to speak before the U.S. Congress and scolding Arizona for its new and controversial law:
Calderon also won sustained applause when he said, "I strongly disagree with the recently adopted law in Arizona. It is a law that not only ignores a reality that cannot be erased by decree, but also introduced a terrible idea using racial profiling for law enforcement."

To be sure, immigration will not go away by decree.  But this is a matter for us norteños to figure out, Señor Presidente, and we will do it on our own.  We don't tell you how to write your immigration laws, which are among the most restrictive and punitive of any on the planet -- allow me to quote from of the Constitution of Mexico:
Article 27, Paragraph 1: "Only those persons recognized as Mexicans by birth or by naturalization as well as Mexican corporations shall have a right to acquire legal domain over lands, waters and their accessories.* ... The State can grant the same right to foreigners as long as they agree with the Ministry of Foreign Affairs to be considered as Mexican nationals with respect to such resources and to decline, therefore, any right to be legally protected by their national governments in case of being involved in a controversy about the resources; such an agreement's breach shall be penalize[d] by transferring the contested resources back to the Nation. Within an extension of one hundred kilometres from the national borders inland and of fifty kilometres from the seashore inland, foreigners shall never be allowed to acquire direct domain over lands and waters."
Article 32: "During peacetime foreigners shall neither serve in the Army nor in a law enforcement corporation. During peacetime only Mexicans by birth shall serve in the Army, int he Navy or in the Air force as well shall perform any employment or commission within such corporations. The same quality shall be fulfilled by captains, pilots, skippers, machine operators, mechanists and, in general, every crew member in a ship or an airplane carrying the Mexican flag. It shall also be fulfilled by port captains, steersman and airport commanders. In the face of similar circumstances Mexicans shall be preferred to foreigners by granting to them all available privileges and providing them with every governmental employment, job or commission which does not require a citizen legal status.."
Article 33: "The Executive Branch of Federal Government shall have power to expel from national territory, without a trial and in an immediate way any foreigner whose presence is considered to be inconvenient. ... [F]oreigners shall not participate in the country's political affairs."

I'd also point out that in order to be President of Mexico, not only must one be a natural-born citizen of Mexico, but both of one's parents must also be natural-born citizens of Mexico. (See Article 59.) By contrast, we're talking in this country about eliminating the requirement that the President be personally a natural-born citizen.

I submit that as between Mexico and the United States, the U.S.A. has the substantially more liberal immigration law so it's quite odd to see a Mexican governmental official criticizing a portion of the U.S. for moving closer but not nearly adjacent to the existing foundational law of Mexico. To be sure, Mexico and the United States are situated differently, and have different kinds of problems to solve with their laws.

But the point is, no one from outside their country is telling Mexicans to liberalize their immigration laws, laws which they have written into their Constitution. That's partially because for someone who is not a Mexican citizen to make such an appeal would violate Mexican law.  Were I to go to Mexico and criticize the laws of a state of Mexico, I would be liable to immediate deportation back home to the United States without due process of law.  I presume that visiting heads of state on diplomatic missions are not likely to be treated in such a fashion.

What is more annoying, however, was the fact that those members of Congress who oppose the Arizona immigration law chose to applaud President Calderón's criticism of it.  Given that President Calderón chose to (tactlessly, in my opinion) weigh in on the issue, the right response of a member of Congress would have been to sit on her hands -- regardless of her opinion on what he said.  President Calderón was invited to speak to Congress for the purpose of making a political appeal for help in fighting drug lords and controlling narco-terrorism which is eroding the sovereignty of his nation -- a matter which concerns us as much as it concerns Mexico.  His remarks about immigration were beyond the scope of that invitation.

Nor would I even particularly gripe about Calderón expressing distaste for Arizona's law in some other forum.  At least while in our nation, he enjoys freedom of speech like anyone else.  But a speech from a foreign head of state to the U.S. Congress is kind of a particular and rarefied forum for diplomacy, and I think one ought to be, well, diplomatic when engaging in diplomacy.  Calderón's remarks cross that line. No citizen of this country voted in your election, Señor Presidente, -- an election which you barely won and which raised substantial questions about whether you hold office almost exclusively by virtue of the strength of political corruption, which I notice that every one in Congress was polite enough to not mention during your visit.  You should have returned that favor.

If you truly want to reduce the amount of migration for labor going from your country to ours, Señor Presidente, then you should enact policies encouraging economic development in Mexico, control crime, put a lid on political and law enforcement corruption.  If you can do those things, your own people will have reasonable economic opportunities at home, and won't feel the incentive to come here in the first place.  Your nation has made progress on these fronts and we are willing to help you do those things because we want to be good neighbors and we see advantage to ourselves in Mexico becoming more prosperous and therefore a better trading partner.  But your display of hypocrisy before our Congress makes me a little bit less willing to help out in this regard. 

And once again, shame on those members of Congress who cheered this -- breach of decorum, at minimum.  Even if you are convinced Arizona's law is an unambiguously bad thing, it is still our law and we are more than capable of using our own political and legal institutions to determine whether it should remain in place.  Your reliance on a foreign head of state's meddling in our internal politics to muster political support for your point of view is unseemly at best.  Kudos, further, to Congressman Tom McClintock who rightly called the whole charade for the hypocritical and disgraceful farce that it was

I say all this without altering my advocacy of further liberalizing our immigration laws in any way.  We should liberalize our laws, because it would be to our long-term advantage to do so.  But that's an argument to offer  another day and in another post.  This post is not about immigration policy, it's about international diplomacy.


* I notice that the Mexican Constitution embodies a very different vision of property and natural rights than the U.S. Constitution does. This post is not the place to compare those very different political philosophies.

11 comments:

韋于倫成 said...
This comment has been removed by a blog administrator.
A Teacher said...

There is significant outcry against the AZ law by the administration. The climate in DC feels like it's appropriate to bash on the law and I am not the least bit surprised that Calderon felt it appropriate to join the game. I'm also cynical enough to think that his comments were vetted before they were made and he was assured that he would get a great deal of support rather than silence. I have a feeling that the comments were seen as support for our president's case against the law and the goal of turning it from a conversation on immigration reform into one of racial profiling and a witchhunt for bigots.

Libertarian Advocate said...

Burt: This was a very nicely reasoned and articulated post.

What (to me anyway) has been the single most nauseating issue surrounding the visceral debate on Arizona's law is the fact that none of the ranking lawyers inside Obama's administration had even READ the law before opining on it.

You and I know what a lack of even basic preparation is called when a lawyer is summoned to appear before a grievance committee.

Mike said...
This comment has been removed by the author.
Transplanted Lawyer said...

Mike, as to the exclusivity of Federal jurisdiction over immigration:

"The federal government possesses the exclusive power to regulate immigration. De Canas [v. Bica (1976) 424 U.S. 351], at 354-355, 96 S.Ct. at 936 (“Power to regulate immigration is unquestionably exclusively a federal power.”) That power derives from the Constitution's grant to the federal government of the power to “establish a uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4., and to “regulate Commerce with foreign Nations.” Id., cl. 3. In addition, the Supreme Court has held that the federal government's power to control immigration is inherent in the nation's sovereignty. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892) (recognizing inherent power of sovereign nation to control its borders); Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 2399, 72 L.Ed.2d 786 (1982) (“Drawing upon [its Article I, section 8] power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders”); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (“Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments ...’ ” (citation omitted)).

Congress has exercised its power over immigration in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the “INA”). The INA is a comprehensive regulatory scheme which regulates the authorized entry, length of stay, residence status and deportation of aliens. See Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir.1983) (recognizing that the regulatory scheme created by the INA is so pervasive as to be consistent with the exclusive federal power over immigration). The INA delegates enforcement duties to the Immigration and Naturalization Service (“INS”).

Because the federal government bears the exclusive responsibility for immigration matters, the states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948). See also Plyler v. Doe, 457 U.S. 202 at 225, 102 S.Ct. 2382 at 2399, 72 L.Ed.2d 786 (1982) (“The States enjoy no power with respect to the classification of aliens.” ( citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941)))."

League of United Latin American Citizens v. Wilson (C.D.Cal.,1995) 908 F.Supp. 755, 768-769.

As to the policy arguments you raise about the advisability of tightening or liberalizing Federal immigration policy, you're entitled to your opinion.

Transplanted Lawyer said...

Oh, dear. Mike deleted his comment, so other Readers will be mystified as to why I posted a response quoting from the LULAC case. Here is what Mike originally posted:

On the other hand, enforcement of immigration laws is, for better or for worse, given exclusively to the Federal government,

I defy you to quote any passage in the constitution saying so. Go on, terrible-lawyer.

You can't and you won't, because it's not there. And further, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And I really have no idea what a "reasonable suspicion" of undocumented status might really be.

Funny. Every explanation by Arizona law enforcement has been pretty simple: if you stop someone who has committed some other stop-worthy offense (most often a traffic violation), and they cannot furnish proof of ID, then they need checking.

I say all this without altering my advocacy of further liberalizing our immigration laws in any way. We should liberalize our laws, because it would be to our long-term advantage to do so.

Insanity. If anything, we need to scale back at least until such time as we've properly absorbed those who have already come here.

Our immigration laws are already the most liberal on the planet. At the same time, the level of abuse of our systems by those who, DESPITE our incredibly liberal laws, still decide to simply break into the country, is staggering. The research is clear: the cost of supporting illegal immigrants in the US is horrendous - over $100bn (or over $10,000 per illegal alien) per year.

I have an idea. I'll ship a family of mexicans to your house with instructions to break the window and just make themselves at home, eat your food, steal your kid's schoolbooks, etc. You can be as 'liberal' as you like with letting them just mooch off you, ok?

Transplanted Lawyer said...

So, with that, I cited to LULAC v. Wilson, which in turn, cited to (inter alia)Article I, Section 8, clauses 3 and 4, and a battery of Supreme Court jurisprudence going back over 100 years dealing with Congress' exclusive power to legislate in the area of immigration and naturalization.

As to "reasonable suspicion," driving without valid identification is something that lots of people who are apparently natural-born citizens seem do already.

Transplanted Lawyer said...

Oh, and another thing. The U.S. has a moderately liberal immigration law, true. But it's not the most liberal in the world. A better contender for that title would be Canada.

bobvis said...

Hi TL,
I just want to offer a contrary take.

I agree with the premise of your post that the best response may have been for congresspeople to sit on their hands. On the other hand, we should remember the context in which these people operate before judging them too harshly for clapping. If someone says something agree with strongly, it is natural to clap--not to consider the speaker, their country's policies, and then judge whether clapping is appropriate. When one spends an especially long amount of time listening to speeches, one is also likely to become lazy in such instances and rely on the clapping (or not clapping) of your friends on your side of the aisle.

Second, keep in mind that we live in a country that is more accepting of government criticism than most. That you would be deported for criticizing Mexican law in Mexico and the Mexican president is cheered for criticizing American law in America might speak to our strength. I would rather see this contradiction resolved by Mexico becoming more tolerant of criticizing than the US becoming less.

Third, the Mexican president isn't a disinterested party in the matter. The law is aimed at its nationals living abroad. His comments might be undiplomatic, but we can't say it's none of his business.
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That said, I do agree with your post. I just wanted to throw a couple other ideas out there.

Transplanted Lawyer said...

That you would be deported for criticizing Mexican law in Mexico and the Mexican president is cheered for criticizing American law in America might speak to our strength.

That's a really great point. Our democracy thrives on dissent and criticism; conversely, Mexico's polity is not that far-removed from the days of nearly a century of one-party rule. As I pointed out, I wouldn't have had nearly as much of a problem with Calderon criticizing Arizona's law in a forum other than the U.S. Congress because his ostensible diplomatic purpose was something other than this and his remarks about the immigration law overshadowed the rather important message that he had been invited to deliver.

bobvis said...

Then again, we do't seem to have a problem being invited to China to talk about one thing and instead complain about being unable to devalue our currency.