What Is the Law, and Why Should It Be Followed?

Maybe the guy who defeated the Confederacy can give you a clue

By Andrew R. Arthur on October 4, 2019

Pundits in think-tanks often get to opine on sweeping issues, with little thought to the real-world applications of their theories. The Center for Immigration Studies is unique, however, because it actually has to explain real-world applications of the law, as I recently had to do with a decision about the Flores regulation, and with a 124-page decision about expedited removal. A recent action by the Fairfax County (Va.) police, however, has brought to a head the carbuncle that is the treatment of the immigration laws of the United States, raising the question: What is law, and why is it important that the laws be followed, regardless of the opinions of politicians, officials, and well, other pundits.

In the Fairfax County case, the police chief, Edwin C. Roessler Jr., has suspended a local cop. My colleague Dan Cadman has reported that the officer has been reinstated because of a public outcry, but the incident raises important questions that need to be examined. 

What was the suspended officer's offense? Did he beat a confession out of a suspect? Falsify evidence? Discharge his weapon in the course of his duties, and face suspension pending an investigation? No. He called ICE following a traffic accident about an individual who had no driver's license, after a records check showed that person failed to appear at a removal hearing. ICE issued an administrative warrant for that individual (logically), and came to pick that individual up.

According to the Washington Times:

Chief Roessler didn't identify the officer but said he "deprived a person of their freedom" by cooperating with U.S. Immigration and Customs Enforcement.

The chief called that unacceptable.

"Our county is one of the most diverse counties in the nation and no one should have the perception that FCPD is acting as a civil immigration agent for ICE," he said in a statement. "This matter damages our reputation and the longstanding policy that I have stated many times that our officers shall not act as immigration agents." Chief Roessler said the county officer should not have detained the immigrant to turn over to ICE. He said that move broke department policy, which tells officers not to bother to confirm administrative warrants through the county's system. The majority of administrative warrants are from ICE.

"The officer involved in this event has been relieved of all law enforcement duties pending the outcome of this investigation," the chief said. [Emphasis added.]

First, as an aside, I recently moved to Virginia, and had to wait two hours to get my car titled, and then an additional two hours to get a driver's license. It would have been great to have skipped all of that hassle and simply not gotten a license, because apparently that is not a big deal in certain corners of the Old Dominion. But, of course, anyone who has ever been stopped by the Virginia State Police understands that they are a force to be reckoned with, and do not countenance driving without a license (or much else against the law).

Second, however, the highlighted portion is a non-sequitur. Logically, what difference does it make, as it relates to law-enforcement, that your county is one of the most diverse in the nation? The great thing about U.S. justice is that it applies equally, rich and poor, regardless of race, creed, or origin, or at least should. There is a reason that the words "Equal Justice Under Law" appear over the front door of the Supreme Court. As the Court's website notes:

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force.

About that constitution. Article I, section 8, clause 4 of the Constitution vests Congress with the power "To establish a uniform Rule of Naturalization." As the Supreme Court explained in Arizona v. U.S., which struck down a state's attempt to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. ... This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," ... and its inherent power as sovereign to control and conduct relations with foreign nations.


The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. ... Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.


It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. [Emphasis added.]

So, as Justice Kennedy writing for the majority in Arizona explained, (1) there is one immigration law that is set by the federal government, (2) one of the reasons supporting that authority is the fact that aliens should have settled perceptions as it relates to the laws, and (3) another reason is that foreign countries should not rely on the whims of states and localities as it relates to the treatment of their citizens — they deal directly with the federal government.

Back to Chief Roessler. When he was speaking of diversity in Fairfax County, was he talking about the number of different races, religions, political beliefs, creeds, national origins, and/or some other immutable characteristics of the residents of that county? From the context it would seem that he was talking about was the diversity of immigration statuses: citizen, national, immigrant, non-immigrant, and illegal immigrant.

But hold on a second: I thought (under Arizona) that: "It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States"? According to the U.S. Geological Survey, there are 50 states, one district, "3,007 entities named 'County', 16 Boroughs in Alaska, 11 Census Areas in Alaska (for areas not organized into Boroughs by the State), 64 Parishes in Louisiana, [and] 42 Independent Cities." This does not even count 78 municipios in Puerto Rico, two districts in the Virgin Islands, 19 election districts in Guam, 17 districts in the Northern Marianas, and five districts in American Samoa.

Needless to say, that is going to keep foreign consular officers busy traipsing across 3,313 localities to ensure that their nationals' "status, safety, and security" is protected. Except that, of course, they don't really have to do that, because the sanctuary jurisdictions in those localities do it for them. Why did Chief Roessler suspend some cop? The chief was acting in the stead of the foreign government to ensure future persons who have failed to obtain legal status have the freedom of his county, unfettered by concerns about federal government restriction (at least insofar as it could be restrained by county authorities).

Put more kindly to Chief Roessler, he (or his superiors) is simply picking and choosing which federal laws he is going to comply with (I assume that he would turn a terrorist carrying weapons-grade explosives over to the FBI and/or ATF), and in the spirit of ensuring the diversity of citizens, nationals, immigrants, non-immigrants, and illegal immigrants in his county, he is choosing not to comply with Title 8 of the United States Code, also known as the Immigration and Nationality Act (INA).

I could note the fact that most criminal aliens are likely to prey on immigrant communities to dispel the impression that this policy is good for anyone (including immigrants), but that would miss the larger point, the one the Supreme Court discusses above: "the deep commitment of the American people to the Rule of Law and to constitutional government." Does Chief Roessler, or his ilk, who wears a badge and carries a gun have a "deep commitment ... to the Rule of Law?" Simply put, no, at least not to the part of the law he and/or his superiors don't like.

How does enforcing the law "damage [the] reputation" of the Fairfax County Police Department? We are not talking about an unconstitutional law, or an arbitrary law, or even an arbitrary policy about how a law should be enforced. It is a law made by Congress at the zenith of its power. Does he have any proof to support the argument that allowing a cop to call ICE on an alien who was given the opportunity to have his or her case heard (that is, to receive due process), but who decided not to show is going to damage the force's reputation? Or is it simply his opinion? If so, respectfully, that is worse. Could you imagine if cops were allowed to make stops based simply on their opinions? I could have skipped half of my criminal procedure class in law school, but the civil rights of millions would be in jeopardy.

I will cut Chief Roessler some slack, however. Even certain members of Congress oppose the enforcement of the immigration laws. What is "Abolish ICE" other than whinging about the law and contending that it should not be enforced? Unlike them, poor Chief Roessler does not get a vote on what the immigration laws should be (although he apparently gets an ad hoc veto). Every member of Congress does, but yet, what have they done about the laws they do not like? Vote to strike section 101 et seq. of the INA? No. Amend the provisions they do not like? No. Refuse to fund it? Yes.

That is a cowardly, sniveling response by a mewling chorus of vote chasers. They are asking ICE officers to put their lives on the line, while at the same time they are beating their chests about their principled opposition to providing those officers with the resources they need to do their jobs. In most professions, this is called "malpractice". On Capitol Hill, this is called "smart politics".

Consider the following from Nita Lowey (D-N.Y.), chairwoman of the House Appropriations Committee, in response to an administration request for supplemental funding:

The Trump administration appears to want much of this $4.5 billion emergency supplemental request to double down on cruel and ill-conceived policies, including bailing out ICE for overspending on detention beds and expanding family detention. ... Locking up people who pose no threat to the community for ever-longer periods of time is not a solution to the problems at the border.

What were those "cruel and ill-conceived policies" to which the chairwoman was referring? From the White House fact sheet requesting that money:

HUMANITARIAN RESPONSE: President Donald J. Trump is asking Congress for an additional $4.5 billion for humanitarian response and border operations.

The Trump Administration is seeking a supplemental appropriation of $4.5 billion to address the immediate humanitarian crisis on the southern border.

$3.3 billion of this request will fund humanitarian assistance, including funds to increase shelter capacity, to feed and care for migrants in custody, and for transportation.

More than $2.8 billion will go to increase Health and Human Services (HHS) shelter capacity for Unaccompanied Alien Children (UAC) to approximately 23,600 beds.

Department of Homeland Security will receive $273 million to stand up, operate, and secure processing centers at the southern border, increasing its capacity by 3,500 beds.

$1.1 billion will go to border operations, including personnel expenses, additional detention beds, and operations combating human smuggling and trafficking.

$178 million will be used to fund mission support, including $10 million to improve migrant processing by upgrading information technology systems.

Why would the administration want $2.8 billion for HHS to provide shelter capacity? Because that is what Congress directed that department to do, in 8 U.S.C. § 1232(b). How about $273 million for 3,500 beds at secure processing centers at the southern border? That's in section 235(b)(1)(A) of the INA (helpfully captioned "Screening"). And money for "additional detention beds?" Check out section 235(b)(1)(B)(iii)(IV) of the INA ("Mandatory detention-- Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed."), section 235(b)(1)(B)(ii) ("If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum."), and the mandatory detention provisions in section 236(c) of the INA.

So many Roman numerals. What is a simple committee chairwoman (powerful enough to control the government purse) to do?

In reality, however, such obstinacy comes down to one of two things: Either those elected officials hate the president so much that they want him to fail in executing the laws Congress itself has passed, or they do not believe that they are bound by any law they themselves have not actually voted for. The first option means that they are playing with people's lives for political ends, so I will assume that the latter is true.

But if the latter is true, it is dangerous for our Republic. None of those representatives voted for the Constitution, either. Does that mean they are not bound by it? I will note that the INA is also the "Immigration and Nationality Act of 1952" (because that is when the core of it was passed), meaning much of that law was written 67 years ago. It has certainly been amended scores of times since then, so it logically has adapted for the times, and it can be adapted again — by Congress.

But simply ignoring part of any law you (as a police chief, member of Congress, chairwoman, et al.) don't like sets a dangerous precedent. The American people would no longer be committed to the rule of Law, but the whims of political expediency. Many of our ancestors in this nation of immigrants left their homelands to avoid such arbitrary enforcement.

Everyone — Chief Roesser, Chairwoman Lowey, Donald Trump, and all those who have sworn to uphold the law — would be wise to heed the example of President Ulysses S. Grant when he stated, in his first inaugural address:

I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike — those opposed as well as those who favor them. I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. [Emphasis added.]

In other words, enforce the law, and if the law is bad, it won't be the law for long. But non-enforcement is not an option. Take it from the man whose statue sits in front of the Capitol for a reason.