Eric Balderas and the Rule of Law

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[Timothy B. Lee]


One of the recurring arguments in the immigration debate is that strict enforcement of immigration laws is required by the rule of law. It's been made by prominent figures such as Edwin Meese III and James Carafano of the Heritage Foundation, and it's also an argument that pops up when I write about immigration on my own blog.

This argument is frequently made in response to the charge that opponents of immigration reform (which they inevitably label "amnesty") are hostile to immigrants themselves. They insist, to the contrary, that they are merely defending the principle that everyone needs to obey the law. They actually like immigrants, and might even be willing to welcome more immigrants into the country, but only after we've "secured our borders." They worry that "amnesty" would "reward lawbreaking," and however much they might love immigrants, they think it's only fair that they follow the law like everyone else.

The vacuousness of this argument becomes apparent when we consider the case of Eric Balderas, a 19-year-old Harvard student whose parents brought him to the United States illegally when he was 4 years old. Balderas's case came to national attention when he attempted to fly home from a trip to Mexico and American immigration authorities threatened to deport him. It appears that national attention has spared Balderas deportation for now, but he could be legally deported at any time and there are millions of American voters who think he, and others like him, should be sent back to the countries of their birth.

The Boston Globe says that some people consider Balderas a poster child for immigration reform, but "others argue that families who violated federal law should not be rewarded." That argument leaves me scratching my head. If we're going insist that immigrants follow the law like everyone else, then it seems that ordinary principles of law should apply. So, for example, we don't hold 4-year-olds criminally responsible for their actions, nor do we hold 19-year-olds responsible for their actions 15 years prior. Maybe Balderas's parents should be punished, but Balderas himself certainly isn't responsible for having sneaked into the country with them. And even setting aside the fact that he was 4 years old at the time of his crime, crimes in the United States typically have statutes of limitations. In Massachusetts, almost every crime other than rape and murder has a statute of limitations less than 15 years. If we give "amnesty" to someone who commits robbery with a deadly weapon after 10 years, surely we can do the same to a kid who snuck across a border with his parents 15 years in the past.

The inevitable retort is that Balderas should go back to Mexico, wait in line, and then re-enter when he's obtained legal permission to do so. The problem is that the law makes it effectively impossible for many immigrants to do this. I don't know the details of Balderas's situation, but Forbes estimates that a low-skilled 30-year-old Mexican with a high school diploma and an American sister will wait 131 years for a green card. There may literally be nothing Balderas can do to live legally in the country he calls home in the foreseeable future.

Balderas's real crime is neither sneaking across the border 15 years ago nor failing to fill out the right paperwork. Rather, his crime is belonging to a nationality that American policy makers have decided is over-represented in this country. And there's a significant constituency for this policy among American voters, some of whom simply believe that there are too many foreigners here. But this viewpoint has little to do with the rule of law. The rule of law doesn't demand that we punish children for the crimes of their parents, or that we punish people for crimes they committed decades ago. And if you demand stricter enforcement of the existing laws while vociferously opposing all proposals to expand the legal channels for coming to this country, then I hope you'll forgive me if I conclude that you don't actually care about people like Eric Balderas.

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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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