Paper Title

-- By JoshuaHochman - 26 Feb 2010

I don't have an exact quote to start with, but Professor Moglen said something early in the semester that I feel is a good undercurrent for wherever I go with my first paper, as well as for my budding identity as a law school student, lawyer, and adult. There are people smarter than me, more deserving of my seat in his classroom. There are people on other continents that, given the circumstances I was given, would do a better job on this paper, on my piss-poor moot court brief, on last semester’s civil procedure exam...

My assertion here is that a misplaced sense of entitlement resulting from an assumed national identity plagues contemporary society by confusing responsibilities to our fellow man. My paper will utilize for the sake of example the context of immigration law enforcement in the United States.

Section I - The Insincerity of Identity and the Law

Genetics and religion aside, I don’t believe a rational explanation exists for why I’m here and some other kid with a higher I.Q. and a stronger attention span is farming or fighting or dying a world away. What I do believe, however, is that the ‘American’ identity—the one linked to my rights, residence, and quadrennial hockey interest—is secondary to my identity as a man who wants to live righteously.

Subsection A - The Border

Immigrants are different because of where they were born—on the other side of the border. Border’s originate from natural land formations, wars, conquests and/or agreements whereby two or more groups of people decide that they are different in some unresolvable respect, and they therefore they should live apart. Easily enough, these separated groups cultivate divergent cultures, languages, customs, political traditions, and so on.

Subsub 1 - Historical Relevance

Borders endure as long as they are respected. Do ancient military accords really matter when nobody remembers the conditions under which they were signed in the first place? Even in situations where border-creation is well documented, the wars of past generations do not seem as pressing as contemporary struggles across the world.

Subsub 2 - Practical Relevance

The practical relevance of the border is that it’s a protective mechanism. Without going into the intricacies of political philosophy, a government is (assumed to be) charged with protecting the welfare of its citizenry, and undertakes. Limiting the size of the citizenry makes it easier for a government to fulfill its responsibilities to its people.

Subsection B - The Human Element

The practical relevance of borders is a much stronger defense than any historical line of reasoning, but I do not feel it is impervious to challenge. Specifically, a construction of governmental responsibility that originates outside of a citizen’s mentality—prioritizing the more ‘human sense’ of a government’s purpose being to humanity in general, not just its citizenry—provides a challenge to border mechanics that, while incredibly idealistic, makes much more sense in light of Professor Moglen’s point.

Subsub 1 - Borders are Irrelevant in the Human Element

Assuming that I am not incorrect in concluding that no explanation exists for my life-force materializing on this side of the border, then it follows that I could just as easily have been born on that side. My entitlement to American rights and the protections of the American government is therefore the result of randomness.

Protecting individual rights is important, but a forward-thinking government needs to take into consideration a broader amalgamation of environmental, public health, scientific, and technological concerns to make sure life on earth endures and people have a place to exercise their rights. Although it seems obvious to us, the actions of one may affect the rest of the world. When considering resource management and environmental destruction, it appears to be more ideal for one body of govern as many individuals as possible.

Section II - A Misguided Focus Within U.S. Immigration Law

I am aware that, for some, the above points may be difficult or impossible to see as adaptable. Too much judgment is clouded by a history of entitlement—derived from religion, race, socioeconomic class, etc.—to go anywhere productive, and of course, all governmental platforms are inherently flawed and self-serving because of the (presumably) flawed and self-serving individuals that run them. These extremes do not reflect my exact beliefs, but I do see their logic.

However, shifting the focus of immigration enforcement away from a platform based on border-protection or identity-driven exclusion, even subtlety, would help resolve several problems with the current U.S. immigration framework.

Subsection A - Workplace Enforcement is a Flawed Approach

In 1986, Congress enacted the most recent comprehensive immigration law, the Immigration Reform and Control Act (IRCA). With IRCA, it became the official policy of the federal government to enlist U.S. employers to enforce immigration law by verifying worker identity and eligibility at the point of hire. The logic underlying workplace enforcement is that, since a major motivator for migrants in coming to America is the prospect of a more favorable employment situation, that eliminating work opportunities would thus decrease the flow of migrants.

Subsub 1 - The Prevailing Tradition

Workplace history has generally witnessed employers taking advantage of workers. The balance of power traditionally tips in favor of employers, with workers fighting for collective bargaining and occupational safety rights following patterned abuses. Even after these regulations come to passage, the law shifts to a push-pull of fitting individuals into different categories (employee, independent contractor, manager, etc.) in order to deprive workers of certain privileges. This dynamic is preserved when an employer hires a migrant worker. Making it more difficult to find work once the trip has been made forces migrant workers to accept more oppressive, illicit jobs.

Subsub 2 - Conflicting Authority and Identity Fraud

Furthermore, IRCA’s approach has given rise in recent years to an influx of state and municipal ordinances whereby local legislators have undertaken immigration enforcement initiatives under the guise of employment regulations. Besides presenting preemption questions for courts, an inconsistent web of local immigration policies further marginalizes those individuals in the thoughest situations (as well as creating a confusing enforcement protocol for employers). Additionally, IRCA created a market for fraudulent identity documentation.

Subsection B - Shifting the Focus

One fundamental reason why workplace enforcement doesn’t work is because it relies on identification of individual parties—a task that is exceedingly difficult from the federal or even state level. Workplace identification as a step towards deportation is less helpful to everyone than integrative programming in the vein of hiring centers, temporary work visa programs, medical clinics, etc.

Subsub 1 - Misreading Integrative Measures

An extremely common argument against integrative measures is that tax dollars are not charity for non-taxpaying citizens. However, are these dollars better spent striving to accommodate, understand, and manage a population that is already here or on the endless cycle of arrest, detain, and deport. While not an final solution, it seems to me that the former is a much more productive use of public attention than the latter.

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