Immigration—Quoting Tina Turner “What’s Love Got to do With It?”

April 7th, 2014

Our tradition of government by rule of law certainly is being challenged these days.  There is hardly a matter of public policy that isn’t touched by issues associated with the rule of law.

The most obvious example is implementation of the Affordable Care Act where the Obama administration seems bent on throwing any pretense of respect for the rule of law out the window in favor of whatever seems most convenient for them at a given moment.

Over the weekend, former Florida Governor Jeb Bush dove into another area where rule of law issues are paramount and that’s the issue of illegal immigration.

Specifically, Bush said the following:  “There are means by which we can control our border better than we have.  And there should be penalties for breaking the law. But the way I look at this—and I’m going to say this, and it’ll be on tape so be it.  The way I look at this is someone who comes to our country because they couldn’t come legally, they come to our country because their families—the dad who loved their children—was worried that their children didn’t have food on the table.  And they wanted to make sure their family was intact, and they crossed the border because they had no other means to work to be able to provide for their family.  Yes, they broke the law, but it’s not a felony.  It’s an act of love. It’s an act of commitment to your family.  I honestly think that is a different kind of crime that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families.”

First, let me say that I’ve always liked Jeb Bush.  I think he was a good governor of Florida and he’d be a good president.  Does that mean I’d support him if he runs for president?  I’m still keeping my mind open to the entire field, but if I had to make my decision based on this statement, let’s just say I have some disagreement with him.  Here it is.

You’ll note I highlighted two phrases he used.  Let’s begin with the last one.  It’s what I like to call the Jean Valjean School of Jurisprudence.  You know Jean Valjean.  He’s the principle character in Les Miserables who is imprisoned for stealing bread for his starving sister and spends a considerable amount of time in the book running from the authorities.  In the story, it’s Jean Valjean who is the good guy.  He’s the person Victor Hugo wants you to root for because his underlying crime seems just (at least at an emotional level).

I studied and practiced law and the first thing you learn to recognize is the rule of law.  It provides a means by which issues can be decided without passion or emotion.  At least, that’s the intent.  It doesn’t always work that way and it sometimes leads to apparently cruel and heartless results.  It operates this way because if all decisions were guided strictly on emotion, presumably results in any given case would be even more chaotic.  For example, if law was administered strictly by emotion whether you lived or died would likely depend on whether your fate was meted out by Hangin Judge Parker or Mother Theresa.  In the interest of fairness, law isn’t supposed to operate that way.

Imagine if we used this “act of love” standard to administer every law.  Could we then mitigate the crime of shoplifting and theft because the person committing the crime was hungry or simply trying to feed a starving family?  While that may make us feel more compassionate, it likely would also lead to more theft which economically would affect all of us in a negative way.

You’ll notice that I also highlighted from Bush’s statement the phrase “because they couldn’t come here legally.”  I practiced immigration law for several years, and I can vouch for the fact that there are some people working here illegally who couldn’t make it right by applying for a visa and waiting in line even if they wanted to.  There are many jobs in this country currently performed by illegal aliens that have no visa available or the legal means of obtaining a visa (Labor Certification) are completely impractical from an employer’s point of view.  Realistically, the immigration laws need to be amended to fix this problem.

Certainly, immigration is an issue that isn’t going away.  As difficult as it may be, in the future as we debate all our available options, we should try our best to keep emotion and love out of the conversation.