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“Don’t ask, don’t tell” extended to illegal aliens
In a bizarre, yet somehow completely logical, recapitulation of President Clinton’s “Don’t ask, don’t tell” policy on homosexuals in the military, New York City Mayor Michael Bloomberg has issued his own “Don’t ask, don’t tell” order with regard to illegal aliens seeking City services. Just as the left attacked Clinton’s very liberal compromise policy as too harsh, the New York City Council is attacking Bloomberg’s policy for the same reason. The story begins in 1989 when then-Mayor Edward Koch issued an executive order telling City agencies not to inform the INS about any person’s citizenship status. Koch’s principal argument for this outrageous-sounding policy was that if municipal employees told the INS about the illegal status of illegal aliens who had come into contact with them, the illegals would be frightened away from using hospitals, schools, and other services, thus exacerbating the city’s many social problems. In 1996 the Congress banned local and state governments from withholding such information from the federal government. Mayor Giuliani then sued to block implementation of the federal law, but in 1999 a U.S. appeals court found against the City and ordered it to comply with federal law. As reported in the New York Sun,* Mayor Bloomberg’s compromise answer to this long running controversy is to instruct most City workers—with the notable exception of the police—not to inquire about a person’s immigration status at all; the police can still ask a person his status and tell the INS about it, but other City agencies cannot. Naturally, immigrant advocates argue that Bloomberg’s partial “don’t ask, don’t tell” rule, though protecting illegals in their dealings with non-police related City services, would still leave them vulnerable in their contacts with police, making it less likely that illegals will report crimes. Thirty City Council members have called the mayor’s actions “a step backward,” and have proposed a bill overturning his executive order. So far, Bloomberg is holding firm. Patriots are naturally indignant at the idea of local governments helping illegal aliens evade the law. Unfortunately, the local governments’ position is not without reason. Once illegals are residing in a city—and, moreover, in the huge numbers that exist today—the government has a legitimate interest in wanting them to go to doctors when they have contageous diseases, to send their children to school rather then leaving them on the street, to report rapes and murders to the police, and so on. The real culprit is not the local government, but the federal government, which has allowed the illegals into the U.S. in the first place and is almost entirely unserious about arresting and deporting them once they’re here. If local governments are not to be put in a situation where they feel compelled to become non-cooperators and violators of federal law, then the federal government has got to start enforcing its own laws.
*Errol Louis, “Bloomberg, Council at Odds on Immigration Policy,” New York Sun, May 4, 2003. Comments
A penetrating and rewarding post as usual, Mr. Auster. Posted by: Paul Cella on June 4, 2003 10:15 PMKoch’s decision was inexcusable, though not unforgivable. Only the heartless or the inane would fail to find mitigating circumstances in the policy. For instance, can you imagine a rule requiring NYC firemen to inquire as to immigration status? Can you imagine them actually heeding it? Similarly, there are other City workers employed in non-executive social services (ambulance drivers, paramedics, doctors, teachers, etc.). Those workers might say hey, let the cops ask the questions and make the arrests. So in one sense, all Koch did was give cover for what was already happening, and was going to continue to happen unless all City employees improbably became like the relentless, legalistic, inhumane Inspector Javert of Victor Hugo’s Les Miserables. Of course the most difficult situation is the reporting of crime, where the reporting must be made, presumably, to those charged with enforcing the law. We have to scorn the suggestion that merely immigrating illegally renders one subject to assaults, robbery, etc. Further, we must acknowledge the difficulties the City had and would have had with local enforcement of immigration law, e.g. where to jail the accused, who pays, etc. So what to do if a substantial portion of your city’s residents don’t: go to doctors when they have contageous diseases; don’t send their children to school rather then leaving them on the street; don’t report rapes and murders to the police; and so on all due to fear of deportation? I don’t know. I don’t have the solution. Perhaps there is none. Still I think Koch and the other officials who swore to uphold the laws of the State of New York erred in pursuing this policy. First, legal and historical precedent permits local officials to enforce federal immigration law. http://www.fairus.org/html/04191402.htm. Second, it is one thing when those who swore to enforce the law excuse themselves from that duty on occasion, but quite another when they make that excuse a policy. Again, granting that there were mitigating factors that explain and make it easy to forgive Koch, still his directive was wrong. The rationale given by Koch and Auster sounds like the argument for handing out condoms –let’s do lesser wrong “A”, which we know is wrong, so as to avoid very highly probably likely to occur greater wrong “B”. Third, subsidiarity: Pursuant to this principle, blaming the federal government is a poor and ultimately counterproductive excuse. The immigration laws could have been enforced locally. Had the City taken upon itself or kept the responsibility, the City may have earned a certain degree of freedom, independence, and credibility. As it is, the City looked to the larger organization, and by so looking, lost something. In the end then, the City cannot place the blame completely, or even more so, on the Federal government, and should not even make the attempt. Nor, of course, can the Federal government completely blame the local governments. The Federal government as a whole may have been more at fault, but the City let it happen. And when we think of the Federal government, I wonder, who should have cared more about the City, its Mayor or some Congressman from Idaho? Koch, God love him, knew what he was doing, knew it was wrong, and did it anyway. Maybe it saved lives. Amen. Also, let us not forget, the people of NYC wanted it too. After all, didn’t they re-elect him after this? The City has always been a cosmopolitan place. The people here seem to like it that way. A large proportion of New Yorkers are immigrants themselves, or the children of immigrants, or grandchildren, or migrants from other parts of the US. And a decent proportion of that last group comes expressly because it is such a big various place. Thus by and large New Yorkers understandably did not want to deprive more recent arrivals of their chances –didn’t want to “pull-up the ladder behind them” as an Irish politician once said. So, to the extent there is a large population of illegal aliens in New York City, there is plenty of blame to go around; plenty of real culprits. Finally, and a little off point, I am reminded of pieces by Jim Kalb on the importance of allowing discretion in rule interpretation and enforcement: http://www.counterrevolution.net/vfr/archives/001394.html, http://www.counterrevolution.net/vfr/archives/001344.html, http://www.counterrevolution.net/vfr/archives/001243.html. From the first of the three, in comments by Kalb: “…[I]f you have a rule e.g. forbidding bringing “dangerous weapons” to school, and allow discretion in defining what those weapons are and what counts as an excuse, mitigation or aggravation, you’ll find yourself in an impossible legal and political situation because the effects of the rule won’t be the same for all classes of students. So all you can do is impose per se rules and enforce them absolutely mindlessly. That way there’s nothing to explain or argue about….The problem in the background of all this is that once discretion is suspect, because there is no common good but only power, and once equality of treatment has become the crucial point, because there’s no substantive goods so formal criteria are everything, then everything must be made explicit and public so it can be reviewed and checked by an external tribunal. That means per se rules and lawyers who control everything.” Koch’s rule is like those per se “zero tolerance” rules, only in reverse, in that it doesn’t purport to punish and deter something that is wrong (violence), but it purports to promote and permit something good (people asking for help when they need it). And yet, in both, eliminating discretion results in nonsense. So Koch’s rule —as well as Portland’s et al., might just be another example of a mindless per se rule designed to avoid dealing with the problem, i.e. a cop-out? Posted by: Chris Collins on June 5, 2003 8:08 PMMr. Collins wrote: “The rationale given by Koch and Auster sounds like the argument for handing out condoms—let’s do lesser wrong ‘A’, which we know is wrong, so as to avoid very highly probably likely to occur greater wrong ‘B’.” This makes it sound as though I was advocating Koch’s policy. Not true. I was saying, Koch and others had a rational basis for this policy, and here it is. I was saying, given the actual illegal alien situation in this country, with many millions of persons who have entered both by crossing the borders illegally (which we do try to stop) and by entering legally but staying illegally (which over the years we’ve done NOTHING to stop), a policy such as Koch’s is inevitable. I do not support that policy. I would favor the City’s enforcing the law and calling on the federal government to round up and deport illegals; and indeed, if a city such as New York did that, the whole climate of opinion on illegal immigration in this country would start to shift. That’s what leadership is about. However, short of New York City’s waging such a political crusade against illegal aliens (a highly unlikely prospect to say the least), all the City could actually do was to inform the INS that such and such person residing in New York was an illegal alien. The INS in 19 cases out of 20 would have done nothing. Meanwhile, the fear of dealing with the City that the policy would have engendered in the illegals would have had the effects that Koch feared. Mr. Collins continues: “Pursuant to this principle, blaming the federal government is a poor and ultimately counterproductive excuse. The immigration laws could have been enforced locally. Had the City taken upon itself or kept the responsibility, the City may have earned a certain degree of freedom, independence, and credibility. As it is, the City looked to the larger organization, and by so looking, lost something.” Such local initiative is what I would advocate, too. As I said, if local governments showed a more pro-active stand, that might help push the federal government in the right direction. But ultimately, it’s the federal government that alone has the power to act in this area. In the 1880s, the California legislature urgently petitioned the Congress to do something to stop Chinese immigrants from (legally) entering America. The result was the Chinese Exclusion Acts. California had no ability to stop the Chinese influx. Only the Congress could do that. As an example of the fate of a local initiative lacking broader official support, consider Proposition 187 in Califronia. This was a heroic crusade by grass-roots activists who won that referendum against the combined political forces of the entire establishment. Then it was killed. So the 187 crusade accomplished nothing concrete by way of solving the actual illegal alien problem. But by “going after children, the sick, the infirm,” all the people in need of state services, it allowed the establishment to create the image that immigration reformers were mean people, and the immigration reform was effectively killed as a viable political issue. I don’t blame the 187 advocates. They are great Americans, who were striving to do for our country what the government should have done but refused to do. But—something like the pro-life movement—they were going after the symptoms of the problem rather than the source. If the dominant drift of society is toward welcoming illegal immigrants, or toward sexual freedom, then an attempt to criminalize the symptoms—by preventing illegals from using municipal services or stopping women from getting abortions—is going to run into an overwhelming opposing force. That’s why it’s necessary to go to the source of the problem and not the symptoms. In the case of abortion it’s a loss of belief in God and the cult of total personal freedom; in the case of illegal immigration it’s our society’s loss of national identity which makes it impossible for us firmly and consistently to say no to outsiders who want to get in (and which is also connected with the cult of total personal freedom). I’m not saying that a state initiative such as 187 could not have had the desired effect, that is, of starting to make illegals feel unwelcome so that they would start to go home. I’m all for that. But 187 could only have that effect if a decisive moral majority of the people and officials of California supported 187 and were ready and willing to enforce its tough provisions. And that was manifestly not the case. There would have been an endless, wearying battle about enforcing it, with almost every public agency refusing to enforce it, or getting around it in some way. So I’m not saying that local citizens and authorities should not go after the local symptoms. I’m saying that going after the local symptoms will ultimately be futile unless it is done in tandem with a larger, authoritative belief, shared by the country as a whole, that immigration restriction is moral and necessary to preserve our country, and in formal laws and practices expressing and enforcing that belief. To get to that point will require a revolution in the moral consciousness of the American people. Posted by: Lawrence Auster on June 5, 2003 9:18 PMYes, I might have made it clearer that you were merely identifying Koch’s rationale. Excuse me. With regard to local power, the California example doesn’t refute my point regarding potential local enforcement of federal law with regard to illegal aliens, nor does it prove your suggestion that the federal government alone has the power to act when it comes to illegal aliens. Californians first encouraged Chinese immigration. Then they changed their mind and, as you say, pressured Congress to exclude the Chinese, which it did. True enough, California never had the power to stop legal immigration. On the other hand, when did California lose the power to stop illegal immigration? Who could argue that the federal government is not enforcing immigration law? However, once the rules are made, why should local police be prevented from enforcing it? For instance, are you saying that if a New York City Police Officer arrests someone for violations of federal immigration law and later the cop is proved entirely correct in his suspicions, nevertheless the cop will or should be criminally liable for, I suppose, false imprisonment? Apparantly the Department of Justice has recently taken the position that such enforcment is ok, but a professional association of immigration lawyers is against. |