The Immigration Conundrum


 The Immigration Conundrum 


Chapter 191 of theActs of 2011  relating to college tuition has now been   successfully petitioned to referendum. This is a welcomc development in that it curbs the increasing arrogance and lack of accountability of Maryland’s single-party government. Itis likely. however. to touch off an unedifying campaign between

the self-righteously sentimental and the self-righteously parsimonious

 The law itself is not an immoderate or particularly expensive piece of legislation, The objection to it is found in the supportable conviction that not even our society is rich enough to support benefit migrants. Prior to the Supreme Court’s  5 to 4 decision in Plyler v. Doeholding that illegal immigrants could not be excluded from public schools by states, those who came here

 came with the understanding that they would have to support thcmselves and their families with the only qualification to this being the availability under medicaid . Since Plyler v. Doe. illegal immigration has accelerated and a

and a number of states. most notably California have cxpanded the services and benefits available to migrants. The Maryland law goes on the premise that it is cruel to allow undocumented immigrants to graduate from high school while foreclosing further state-supported educational opportunities. The statute is moderate insofar as it conditions eligibility on three years’ state  tax payments byapplicants’ parents, registration for selective service. andI application for permanent residence. The O’Malley administration’s support for the legislation was not founded on an effort to define an over-all state approach to migration. but rather was a throw-away to advocacy groups of the

sort that has typified this administration. Because there was no effort to develop a consensus on broader issues of policy. the result was to leave the administration naked in the face of its enemies. and to invite what is likely

to be a divisive and unedifying referendum campaign.

This contrasts with the approach to these matters of the Republican state administration in Utah, where a coalition of church and civic leaders formulated a Utah Compact with five points. the first urging better border security. the second declaring that local law  enforcement should not

concern itself with violations of federal law not involving criminal activity. the third deprecating the separation of families. the fourth acknowledging the economic role of migrant workers and the fifth urging a humane approach to them. The Utah legislature adopted  adopted four pieces or

 legislation requiring citizenship checks of those arrested on felony or serious misdemeanor charges: authorizing the issuance of work permits as identification to migrant workers conditioned on the absence of serious criminal records. compliance with drivers’ licensing laws, evidence of employment. and the absence of unpaid medical debt: and entering into a cooperative arrangement with  a Mexican state for the verificalion of identification and of  lack of criminal records. This package was immediately greeted with cries of outrage from the usual right-wing and left-wing advocacy groups. including  the Federation forAmerican Immigration Reform representing nativists and restrictionists and theACLU and legal services offices with their sentimentalist agenda reminiscent of that of the’ welfare rights movement. Both sets  of critics urged that the federal government has exclusive authority over immigration matters.

This has not been true. as a matter of either history or law. Thc current debate proceeds on the premise, fashionable in Washington, that the only policy choice is between amnesty  and free acccss to citizenship on the one hand and deportation and exclusion on the other. Most European

 countries,  by contrast, have regularized ‘guest worker” programs under which migrants are given baskets of rights. not including the franchise. in recognition that the demand lor labor fluctuates and many if not most will ultimately want to return home.The effect of the Washington policy deadlock is to rcnder ten million people outlaws subject to instantaneous summary deportation.

This placcs a sizeable part of the population in a situation rendering it  difficult to open bank accounts. scek the protection of the police. borrow. invest. start businesses or buy houscs, a state of affairs in noone’s interest.

The federal government mayhave exclusive authority over the grant ofnational citizenship. but this is not the same thing as exclusive authority over migration. In the 19th century,. state governments actively stimulated migration. State police regulations were held enforceable against arriving ships in Mayor of City of New York v. Miln. 36 U.S.102 (1837). The negative commerce clause has never been held to bar all state legislation bearing on migration. Many states in the nineteenth century granted the state franchise to aliens; the last such authorization was repealed by Arkansas as late as 1926. Maryland’s highest court has held that an alien was not barred from seeking state public office in the absence of prohibitory state legislation (Crosse v. Board of Supervisors. 243 Md. 555(1966),  citing numerous Supreme Court cases. (The author of the opinion was the late Judge Reuben Oppenheimer, who had been the author of the Wickersham Commission’s study of immigration law enforcement). Most recently, the Supreme Court held in Chambcr of Commerce v. Whiting. 563 U.S.1 (2011) that federal pre-emption was aquestion of faci. not to  be implied or assumed, and that  a state could enforce its licensing and incorporation laws so as to require verification of

 immigration status. Against this background. there arc great opportunities for a Maryland governor with the style of Ritchie or Mc Keldin to supply national leadership on this issue. A broad based Maryland

Commission surveying the whole field could recommend many useful measures. which would not necessarily correspond to the particular judgments rcached in Utah. This cannot be expected, however. from a Governor given toticket-punching lor knee-jerk advocacy groups.

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