Columnist Razvan Sibii: Immigration amnesty is not a radical idea

By RAZVAN SIBII

Published: 06-19-2023 4:06 PM

Who said, “I believe in the idea of amnesty for those who have put down roots and lived here, even though sometime back they may have entered illegally”? Was it one of those bleeding-heart liberals who want open borders and have no respect for how things used to be in this country? Biden? Obama? AOC? George Soros?

No, it was Ronald Reagan, speaking in a presidential debate in 1984, two years before he actually signed a bill that granted amnesty to nearly 3 million previously undocumented immigrants.

“Law and order!” and “No one is above the law!” and “We are a nation of laws!” are useful slogans when you’re running for office or trying to win an argument on social media. But, as with all slogans, they often obscure more than they express.

In real life, police officers, prosecutors, judges and juries enjoy a healthy measure of discretion in exactly how much they enforce the law. They take into consideration such factors as the circumstances in which someone broke the law, whether this is the first time they did it, whether they’ve admitted culpability, and so on. They also observe statutes of limitations applicable to all but the most serious of crimes.

In real life, states give amnesties to rebels (think pardons for ex-Confederate soldiers), to draft evaders after the war is over (think Vietnam), to tax delinquents (think IRS’ “penalty relief” programs), and even to library late fee dodgers (think Forbes and Jones libraries’ “Food for Fines” programs). In such cases, the authorities calculate that temporarily pausing the enforcement of a regulation will be more beneficial to the community (by bringing a measure of relief to people who really need it and giving them a fresh start in society) than detrimental (by weakening people’s confidence in the fairness and predictability of the legal system).

Drafting a good law is an art: The language of the law cannot be too specific (for example, “Former town counselors in Amherst cannot join the Law Offices of Santiago & Smith for 52 days after leaving office”), but neither can it be too general (for example, “People cannot say things that will hurt others”). We live our lives in the Goldilocks zone of debatable, but usable laws.

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The written law is indeed a salutary attempt to put some order in human affairs, given that its alternative is “Whatever the king wants,” but it is meant to be subordinate to real life, not the other way around. In other words, the fact that the legal system requires interpretations, corrections — and yes, also exceptions and forgiveness — is a feature, not a bug.

Ronald Reagan seemed to know that, at least with regard to immigration law. Many of us have forgotten it.

When Congress put in the country’s first immigration regulations in the late 19th century, it also provided mechanisms for people to acquire legal status even if they had previously eluded the law. In keeping with the racial prejudices of the era, the system mainly helped European immigrants, but at least the principle of “forgiveness” was accepted as a normal part of immigration jurisprudence.

Immigration enforcement and amnesty went hand in hand, through both Democratic and Republican administrations, until 1996, when Bill Clinton’s Illegal Immigration Reform and Immigrant Responsibility Act made it nearly impossible for the authorities to exercise discretion when considering whether to deport an undocumented immigrant.

“Amnesty” has been a dirty word in American politics ever since. These days, even the most progressive Democrats prefer to use terms such as “regularization” or “legalization,” which speak of administrative adjustments, rather than “amnesty,” which speaks of clemency.

To be sure, you don’t have to be a diehard nativist to wonder whether amnesty for some undocumented immigrants (say, those who haven’t committed any serious crimes, who have lived in the U.S. for more than 10 years, and who have considerable economic or familial ties in the country) might end up incentivizing other people to cross the border illegally or overstay their visas in the hopes of being the recipients of a future amnesty.

Indeed, that is exactly the argument many conservatives make with regard to Reagan’s 1986 Immigration Reform and Control Act, which coupled amnesty with a series of measures meant to make undocumented immigration much more difficult. Instead of decreasing, the number of undocumented immigrants in America increased in the years following the law’s passage, which is taken by many as proof that amnesty will always backfire.

Supporters of immigration amnesty, however, point out that Reagan’s law did not meaningfully address the economy’s insatiable hunger for workers, and undocumented immigrants have continued to come to America simply because they’re nearly guaranteed to get a job here, rather than in the hope that their trespasses will be forgiven.

No one is arguing for amnesties for all undocumented immigrants, all the time, with no strings attached. But neither should we be wedded to a purist take on law enforcement that does not allow for conditional forgiveness.

RazvanSibii is a senior lecturer of journalism at UMass Amherst. He writes a monthly column on immigration and incarceration. He can be contacted at razvan@umass.edu.

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