The Catch-22 of Immigration Enforcement
There’s a strain of thought gaining popularity among we conservatives (of all people!) that seems as though it were ripped straight from the pages of a Joseph Heller novel. The idea is this: illegal immigrants are not entitled to due process, because they are, by definition, here illegally.
It sounds tidy. Final. Even satisfying, to those who conflate brevity with clarity. But the logical defect in that assertion is not only self-evident (or, at least, it should be), it is constitutionally and morally indefensible. It demands closer examination not because it is persuasive, but because it is dangerously seductive to those who ought to know better.
Start with the basic question: how does the government determine that someone is here illegally? This is not a trick. It’s the very crux of the matter. Without due process, without some procedure by which a person can assert their legal status, how does the state distinguish between the citizen and the non-citizen, the visa-holder and the visa-overstayer, the refugee and the trespasser?
Without that process, the government doesn’t need to prove its case. It merely needs to believe it. Or claim to. And once we accept that premise, we are no longer in the realm of law enforcement but something closer to inquisitorial fiat:
“We know you’re here illegally, because it’s illegal for you to be here.”
“Well, what if it isn’t illegal for me to be here?”
“Too bad, you don’t get to say.”
That’s the Catch-22. The very process by which you would assert your right to be here is the same one they’ve decided you’re not entitled to use. It is indistinguishable from declaring someone guilty of a crime and then denying them a trial because they are, after all, guilty. But how do we know they’re guilty if there was no trial? Because we said so. Case closed.
This sort of thinking, if you can call it that, betrays not only constitutional ignorance but a deep confusion about what conservatism is supposed to mean. One might expect this argument from some frothing activist who believes the Constitution is a “living document” and the First Amendment should be rewritten to spare people’s feelings. But from self-styled conservatives? From people who claim to revere the Founders, to love the Constitution, to defend our system of ordered liberty?
Conservatism, if it means anything, is the preservation of hard-won principles—especially when they are difficult to uphold. It’s not conservative to say that due process should be discarded under certain circumstances; it is radical. It is revolutionary. I wrote on a similar subject recently in the essay Judicial Defiance is Not a Conservative Principle, the idea there being that courts protect our rights, so to defy courts is to destroy the very mechanism in place to secure our freedoms. Due process is the right to get to court in the first place. Without that, what stops the government from simply declaring that you are here illegally, and shipping you off? “But I’m a citizen!” you protest. But your protest is never heard because you are afforded no process, so what good is your legal status absent the legal mechanism to assert it?
Due process, by which we mean simply notice and an opportunity to be heard, is not some bureaucratic nicety to be dispensed with when it slows things down. It is the very mechanism by which truth is separated from assumption, justice from vengeance, and government from the people. And when the state claims the authority to act unilaterally, to detain and deport without that process, it isn’t just immigrants who are at risk. It’s all of us.
ICE doesn’t carry a magical truth detector, and the government is not virtuous. Have we learned nothing? Is not the basic assumption of conservatism rooted in a healthy distrust (if not outright disdain) for government? Mistakes happen. Names match. Passports are forged. Social security numbers are stolen. Citizenship records are wrong. Scores are settled. Government is weaponized against political opponents. And if the government has no burden to prove, no hearing to hold, no judge to convince, only a van to load, you may find your rights disappearing not with a bang but with a shrug.
Yes, borders must be enforced. Yes, illegal immigration is a massive problem. Yes, the system is broken. But no conservative solution to these problems should require us to break the system further. That includes the constitutional guardrails that prevent the state from becoming a creature of its own convenience.
I do not suggest that this requires full blown trials for every person in every circumstance, nor months and years of waiting for a trial date. Given the scale of the illegal immigration problem and practical concerns, we can have summary proceedings like, for example, some states do in domestic violence cases, which are resolved in a matter of days. But at least they are resolved with the parties having been given an opportunity to be represented, and having appeared before a judge.
The impulse to cut corners in pursuit of justice is understandable. But it is precisely that impulse which due process was designed to restrain. A society that grants the government unchecked power over the illegal immigrant grants it over everyone if none are provided the opportunity to prove who they are. I don’t trust the government always to get it right and never to prosecute the innocent. I’ve prosecuted. I’ve defended. The system requires checks and balances. And if we do away with those, the question of who is and isn’t a citizen will matter a great deal less than the fact that none of us have any rights left to defend.
