Commentary Magazine


Immigration and the End of the Rule of Law

This past week, liberals cried foul when a federal district court in Brownsville, Texas sided with the 26 states that have sued to try and prevent the administration from implementing President Obama’s executive orders that created a de facto amnesty for up to five million illegal immigrants. The administration vowed to seek to overturn the ruling on appeal and many legal experts say their chances are good. But while conservatives like Judge Andrew Hanen are fighting a rear-guard action trying to stop the president’s immigration end run around Congress, liberal judges are seeking to expand upon Obama’s efforts. On Friday, James Boasberg of the Federal District Court in the District of Columbia ruled that even those efforts undertaken by the administration to stem the flood of illegals could not continue. If upheld, that ruling will ensure that in addition to amnesty for illegals already here, efforts to deter future surges across the border may be doomed.

Judge Boasberg ruled that the government could no longer detain illegals that have crossed the border whether or not they apply for asylum. Though the massive wave of illegal immigrants, including tens of thousands of unaccompanied minors from Central America, was set off in no small measure by the perception that the administration would give them amnesty, to its credit, the Department of Homeland Security belatedly tried to send the opposite message. By imprisoning those who crossed the border illegally even if they claimed they were subjected to persecution at home, the government was seeking to make it clear that those who were caught must expect to be detained and then sent back home.

But Judge Boasberg heeded the pleas of the American Civil Liberties Union. The ACLU argued that the claim of persecution should be enough to allow these illegals the right to stay in the country until their asylum case was resolved. In practice that will mean that large numbers of illegals will be able to flout the law and stay here indefinitely, regardless of whether their claims of persecution are real or not. The judge ruled the DHS had no right to clamp down on those flooding the border because these persons’ “right to liberty” trumped considerations of national security or even the necessity to deter other illegals from following their example.

It may well be that many of those who came across the Rio Grande last summer fled difficult lives in their home countries where crime and violence have run rampant. But the notion that the low quality of life in Central America means that the U.S. may not control its borders or enforce the laws governing the right to immigrate to this country is both dubious law and catastrophic public policy.

Boasberg’s decision lays bear the problem at the heart of the debate about immigration.

There are strong arguments to be in favor of reforming a broken system. All of the approximately 11 million illegal immigrants already here are not going to be deported since the government has neither the resources nor the will to do so. Finding a solution to bring them in out of the shadows makes sense. The comprehensive bipartisan immigration law passed by the Senate in 2013 tried to do that at the same time as implementing measures to control the border.

But what those of us who had supported this approach learned last summer was that unless and until the border really was secured, there was no point in implementing policies that would resolve the status of those who were already here illegally. So long as the flood continued, amnesty for illegals would merely ensure a never-ending flow of more people coming across from Mexico. Most of these illegals are not criminals, but however much we might sympathize with their plight at home or their desire to realize the American dream, granting them a free pass would, in effect, simply erase the border. Though immigration strengthens the country, at a time of unprecedented worries about security and terrorism such a policy is an invitation to mayhem.

More to the point, so long as courts are willing to let anyone stay on any excuse, Congress is fully justified in thwarting any effort to liberalize the system.

The stakes in this argument don’t merely revolve around the status of illegals. If liberal federal judges and the president are determined to trash the rule of law in this manner, we are on the verge of a full-blown constitutional crisis. As much as there is reason to grant many illegals a path to legality if not citizenship, without first securing the border, such proposals ought to be off the table. Rather than contribute to a consensus that might create real immigration reform, both the president and liberal judges like Boasberg are creating a set of circumstances where it has become impossible.

Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »

3 Responses to “Immigration and the End of the Rule of Law”


    Leaving aside for the moment the issue of immigration , what hangs in the balance is the very Republic , a nation of laws not men . Where the Signers put their lives and liberty at real risk in 1776 , the Senate will not use the Constitution to stop this lawlessness . Whether they hide behind the fig leaf of comity or whether they are doing the dirty work of the Chamber of Commerce donors , the Senate R’s have the ability and the responsibility to use the power of the purse to end this lawlessness. And they will not . As the man said , this is a moment as clear and portentous as a fire bell in the night as to the future of Republic . Or as some other guy said ” A republic , madame , if you can keep it “

  2. STEVEN KOPPEL says:

    “But what those of us who had supported this approach learned last summer was that unless and until the border really was secured, there was no point in implementing policies that would resolve the status of those who were already here illegally.”

    This is exactly what border hawks have been saying for years. There should be security, then a form of legalization. Consecutive, not concurrent.


    It’s nice to see Mr. Tobin come to his senses on comprehensive immigration reform. What Tobin only “learned last summer” is the obvious point that many opponents of comprehensive reform have been making for a long time, which is that the SEQUENCE of the reform is critical. Secure the border first, make sure it’s secure, and only then address the question of legalization for those who are already here. The problem with doing it all at once is that the champions of amnesty will be happy to take IMMEDIATE legalization and then will fight tooth and nail against implementing border security. It will never end.

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
for full access to
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
Don't have a log in?
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.