Immigration and the rule of law

The rule of law is a bedrock principle of our constitutional democracy. Many behaviors can corrode and undermine the public's confidence in the rule of law. Two of these are especially important regarding the issue of immigration.

The first is blatant disregard for the law. Few things hurt the efficacy of a rule as quickly as indifference to its enforcement.

The second, which is just as damaging, is stubborn enforcement of rules that are unjust. Humans seem to have an inborn sense of justice. We recoil when formal legal authority appears to be the only justification for enforcement of something that seems unfair. Officiousness, petty legalism, and injustice enforced by rules are not what is captured in our principled respect for the rule of law.

Our current immigration policies undermine the rule of law with the twin threats of blatant disregard of clearly established laws and the stubborn enforcement of unjust rules.

When 11 million individuals reside in our country without documentation to show that they entered lawfully, the law is threatened by indifference. But fundamental fairness is also threatened when officials forcefully raid the homes of and break up families whose sole motivation for undocumented entry was to seek freedom and opportunity.

This tension between written law and the demands of fairness is, of course, not new. Indeed, one of the great strengths of the American legal system has been its ability to navigate between these extremes that threaten to undermine public confidence in the rule of law.

A notable example of this is in our property law. For those of us who sing the praises of pioneer ancestors it may be disquieting to learn that the Utah pioneers (i.e., those settlers who arrived prior to 1869) were technically squatters. They settled on and improved lands without any formal legal authority. Historians frequently refer to these arrangements as "extralegal."

This was not just a Utah issue — it was an issue for most western lands. In lands acquired by the United States through purchase or treaty, the federal government had clear formal authority to step in and chase off squatters.