In a post last week I wrote about a letter that had been written by the Montgomery County Council in response to criticisms of the county's poorly thought-out sanctuary policy. There was one phrase in that letter that caught my eye and that I promised to return to, an attack on critics that contained the following sentence: "These individuals and organizations should be ashamed for spreading false information seeking to establish a baseless, illogical and xenophobic connection between a person's failure to obtain legal status and their propensity to commit a sex crime." (Emphasis added.) Such euphemisms as in the highlighted excerpt above show the weakness in open-borders policies and their defenses, and their dangers for the rule of law.
For greater context, you can read the original post. Simply put, however, the county instituted a strict sanctuary policy, the reasonableness of which was undermined by specific incidents in which seven illegal aliens were charged with sex-related offenses within a period of just a few weeks after the issuance of that policy.
The question becomes, then, to whom was the phrase "a person's failure to obtain legal status" addressed? That can be answered fairly simply, but in order to do so, it is important to note who actually does have legal status.
U.S. citizens and nationals plainly have "legal status" — the INA does not apply to them at all. Section 101(a)(3) of the Immigration and Nationality Act (INA), by contrast, states: "The term 'alien' [which controls most of the provisions in the INA] means any person not a citizen or national of the United States." Section 101(a)(22) of the INA, in turn, states: "The term 'national of the United States' means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."
Thus, a person can be a "national of the United States", but not a citizen. In her dissent in Miller v. Albright, 523 U.S. 420, 467 n.2 (1998), Justice Ginsburg helpfully explained the differences between "nationals" of the United States and citizens:
Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen [Section 101(a)(22) of the INA]. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island. [Emphasis added.]
I will return to the highlighted portion.
Nationals have the right to live and work freely in the United States, and are not subject to removal.
Then there are immigrants to the United States who have been lawfully admitted. Section 101(a)(13)(A) of the INA states: "The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Those are individuals who were successful in obtaining legal status, but who can still be subject to removal in certain instances. Proof of this latter proposition can be found in section 101(a)(20) of the INA, which defines the term "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed."
Those individuals had to go through an often arduous legal process in order to obtain their green cards, and are obliged to obey the laws of the United States in order to maintain their status.
Moreover, there are "nonimmigrants" who have been lawfully admitted in that status (such as tourists, students, et al.), some of whom are authorized to work, and some of whom aren't. They, again, had to go through a process in order to obtain their status.
Therefore, the class of individuals who have "fail[ed] to obtain legal status" (as the Montgomery County Council puts it) consists of people who have applied for lawful status but failed to establish their eligibility for such status, and those who entered illegally. Curiously, it does not even include nonimmigrant overstays, who have actually obtained legal (albeit nonimmigrant) status, but lost it, generally by working illegally and/or overstaying.
Although that letter from the county council implicitly portrays those aliens as victims (of a sort), in reality they were the captains of their own fate. For those who sought lawful entry, they bore the burden of establishing eligibility, but failed to offer sufficient proof. And for those who entered illegally (likely the largest class of aliens referenced), they did not "fail to obtain lawful status", they deliberately subverted the immigration laws of the United States and refused to even try to obtain such status.
This is akin to describing a street heroin user as a person who "failed to obtain legal narcotics", or a thief as a person who "failed to obtain lawful title to property". In the case of the alien, he or she has achieved the unlawful end of being present in Montgomery County without status, in much the same way as the junkie has achieved the unlawful end of gaining access to illicit narcotics, or the thief has obtained the unlawful end of possessing the goods of another without the right to do so. It is a euphemism, and a clumsy one at that.
But it is a euphemism that attempts to take the burden of unlawful presence off of the actor. This reflects a tolerance for illegality that is utterly contrary to our system of government. This is also an interesting point of view given recent statements by high-level Democrats.
Take the following quote from former U.S. Rep. (and failed senate candidate and presidential contender) Robert Francis O'Rourke when asked about his mandatory firearm buy-back proposal: "No. I don't see the law enforcement going door to door. I see Americans complying with the law." In other words, even if the common citizen disagrees with the law, O'Rourke fully anticipates that they will comply with it. The citizenry is expected to meekly comply, and usually does.
Or, take Rep. Silvia Garcia's exchange at a recent hearing with special prosecutor Robert Mueller, as reported by CNN:
Garcia had asked Mueller what would happen if a lawmaker lied to his team during the investigation.
"What if I had made a false statement to an investigator on your team? Could I go to jail for up to five years?" she asked.
"Yes," Mueller said, before adding, "Although, it's Congress, so."
The hearing room laughed at Mueller's side remark.
Garcia continued on a more serious note: "Well, that's the point, though, isn't it? That no one is above the law. Not you. Not the Congress. And certainly not the President."
Not to belabor the point, but Rep. Garcia's response reflects a fundamental understanding of our system of justice, that is the concept that "no one is above the law", no matter who they are or how exalted an office that individual holds.
She was not alone in underscoring this point at that hearing, as Reuters reports: "The Judiciary Committee's Democratic chairman, Jerrold Nadler, said Mueller had endured 'repeated and grossly unfair personal attacks' and that no one, including Trump, was 'above the law.'" Significantly, Chairman Nadler has chief responsibility under the rules of the House for immigration enforcement in the United States, at least as it pertains to the drafting of legislation and oversight of the topic in that body. I would hope that he is true to his words and believes that "person[s who have] fail[ed] to obtain legal status" should be removed.
This fundamental precept, which distinguishes the United States of America from corrupt and dissolute foreign powers, is not absolute. It depends upon the trust of our citizens, which in turn depends on the strict enforcement of the laws (all of the laws) against any transgressor, regardless of the political inclinations of the enforcer. Otherwise, when any one is deemed to be "above the law", everyone implicitly is, absent selective enforcement, a separate concept that is abhorrent and explicitly unfair. That concept definitely poisons the idea of justice itself, and undermines the confidence of the people.
In ignoring the strictures of the immigration laws as they relate to the enforcement of those laws against a class of individuals with whom the Montgomery County Council is attempting to curry favor strikes at the very heart of the idea that no one is above the law, and debases our entire system of laws, justice, and punishment. There is no greater threat to our system of equal justice under law, and therefore to the Republic itself.
In Lewis Carroll's "Through the Looking Glass" appears the following exchange between Humpty Dumpty and Alice (the heroine):
"I don't know what you mean by 'glory,' " Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't — till I tell you. I meant 'there's a nice knock-down argument for you!' "
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."
I suppose that, like Humpty Dumpty, the Montgomery County Council views itself as the "master", able to make words mean whatever it wants. One wonders what that makes the governed.
One final note. In her recent dissent in Barr v. East Bay Sanctuary Covenant, Justice Sotomayor (joined by Justice Ginsburg) references section 208 of the INA, 8 U.S.C. § 1158: "Section 1158 generally provides that any noncitizen 'physically present in the United States or who arrives in the United States ... may apply for asylum.'" Actually, it doesn't.
Here is the language referenced, from section 208(a)(1) of the INA:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section [235(b) of the INA]. [Emphasis added.]
"Noncitizen" is a word that has no meaning or definition in the INA. In this context, it would be over-inclusive, capturing both aliens and non-citizen nationals of the United States. But, simply put, residents of American Samoa and Swain's Island are not eligible to apply for asylum (nor would they have any reason to). Lest you think that I am picky, consider the fact that the point that Justice Sotomayor is making is premised upon the exact language of the INA. Making an argument about the exact language of the INA, while misquoting it in a legally indefensible way, eviscerates the very argument that she (and Justice Ginsburg, who as noted joined her and who so explicitly parsed these terms in Miller, above) is trying to make.
Perhaps Humpty Dumpty sits on the Court, as well.