Border War's Lessons . . . and Limits

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

The volleys of debate over immigration legislation have obscured a more important truth. No matter the law's stipulations, facts on the ground will remain largely undisturbed: millions of illegal aliens industriously working as firefighters, construction workers, agricultural laborers or otherwise coupled with a modest number of criminals or sponges.

Laws limp when they command no moral consensus. Witnesses will not volunteer evidence. Prosecutorial or judicial discretion will be exercised in favor of leniency. Thus, the nation's ambivalence over whether illegal aliens are more to be admired than to be decried will forever cripple enforcement of immigration restrictions.

About three decades ago, I served at the Justice Department on an interagency task force on immigration. The Immigration and Naturalization Service then estimated the number of illegal aliens at 11 million to 14 million. The economic attraction of the United States was the accepted explanation for the phenomenon. Illegal aliens were eager to work and citizens were eager to hire under terms and conditions set by free labor markets.

Moral condemnation of illegals was inaudible, except for worry that would-be legal immigrants prospered less than those who flouted the law. Illegal aliens characteristically sported traits Americans celebrate: pluckiness; discipline; ambition; and, self-improvement. As models for Horatio Alger heroes, they regularly shamed citizens who chose sloth over opportunity. There was official irresolution over restrictive measures: harshly penalizing the employment of illegals; recruiting an army of enforcement agents; building a "Berlin Wall" along the Mexican border; jumping the number of detention facilities; or, requiring citizens to report known illegal aliens to the Immigration and Naturalization Service.

The current debate over immigration re-enacts the interagency deliberations of 30 years ago, confirming the adage that the more things change, the more they stay the same. In the interim, Congress passed an immigration reform law in 1986. It regularized the status of long-term illegals and imposed sanctions on employers for knowingly hiring illegal aliens. But widespread document fraud and lackadaisical enforcement reduced the law to a shadow.

The nation's moral ambivalence remained undiminished. In 1982, the U.S. Supreme Court discerned a constitutional right to a free public education for illegal alien children. Illegal alien workers were held entitled to protections of the National Labor Relations Act. The euphemism "undocumented" became a regular substitute for "illegal" in official discourse. …