A Moral Question for the GOP | Center for Equal Opportunity

Many conservatives reject President Obama’s recent policy to defer action against illegal immigrants who came to the United States as children. But as a conservative who supports the president’s decision, I think it’s important to seriously engage the arguments both for and against the policy.

First, let me explain what the Obama program does and does not do. It explicitly does not grant legal status to any group, even those who came illegally as infants or children. Those who are eligible for deferred action are given no path to permanent residency or to citizenship. They are not eligible for government assistance programs that bar other illegal immigrants.

What the federal program does do is to make a decision not to divert limited immigration enforcement resources by targeting for removal illegal immigrants who demonstrate they came here as children and have led exemplary lives ever since. Applicants must be 30 years old or under; have come here before the age of 16 and resided continuously for the previous five years; have completed high school or be in the process of earning a degree or served in the military; have no felony or serious misdemeanor convictions; and have paid taxes, if owed. Those who demonstrate their eligibility will be given temporary employment authorization. Recipients must renew their applications every two years.

So why do conservatives generally oppose the policy? First, they say, every nation has a sovereign right to control its borders and to decide who may become a citizen. Second, conservatives believe that the rule of law is one of the fundamental bases of democracy, and if people are allowed to flout the law without consequences, we encourage contempt for the rule of law. Third, conservatives object to the president having bypassed Congress by enacting a policy that they assert was twice rejected when it was proposed as legislation.

The first principle seems indisputable to me; of course, the U.S. should control its borders and has a right to decide whom to admit and to whom it will grant citizenship. Citizenship has always been restricted, although under increasingly inclusive eligibility — and remains so today.

But for most of our history as a nation, we have not barred entry to the U.S. or restricted residency to anyone except those who posed a health, security or criminal risk. The first meaningful restrictions were aimed at the Chinese and later other Asians and Southern and Eastern Europeans. These laws were intended to keep out certain people on the basis of race, ethnicity, and religion — a repugnant policy that would be inconceivable today.

The second principle — the rule of law — is sound as well. But sometimes in a democracy, the elected representatives enact bad laws, and the question is what to do about it. We could — and in my view, we should — enact changes to our current immigration laws that would make it easier for people to come here legally and, therefore, reduce illegal immigration by adults and children. Keeping laws on the books that we have no intention of enforcing also encourages disrespect for the rule of law. Yet no responsible conservative to date has argued that the solution is to round up and deport the 11 million people who reside here illegally. One might even argue that since we ignore violations of the law routinely, the principle of desuetude applies — which says that laws unenforced for long periods are rendered invalid.

Finally, conservatives are simply wrong when they claim the president lacks authority to defer action against one class of illegal immigrants — young people who came as children — because it violates the intent of Congress. The Dream Act, which was at one time a bi-partisan effort, would have granted these young people legal status, and in most versions, a path to citizenship, which the president’s deferred action does not. Moreover, the decision to initiate deportation proceedings has always been exercised by the executive branch, just as the decision of whom to prosecute falls to prosecutors, not those who write the laws.

But beyond these questions about conservatives’ objections, a final one seems to me the most compelling. Conservatives often invoke the principle that no one should be held accountable for wrongdoing that occurred in the past and in which the person in question played no role. We oppose reparations for slavery on this basis, as we do most forms of affirmative action. So, too, should we oppose a punitive policy that forces nearly two million young people to choose between continuing living in the shadows, unable to work, or leaving the country they’ve come to know and love.

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