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Will the "Rule of Law" Be Merely an End or a Path to Justice?

Napolitano and Immigration Policy

by TOM BARRY

What does the likely nomination of Gov. Janet Napolitano as head of the Department of Homeland Security signal for immigration policy?

The hopeful interpretation by immigrant advocacy organizations is that Napolitano’s appointment, along with the new immigration task force in the transition team, are signs that immigration reform will be a priority for the Obama administration. The Arizona governor’s public support for comprehensive reform and the inclusion of immigration as one of the top issues for the Obama transition team signal for some observers that the new administration will not sideline immigration issues.

Others, including the main anti-immigration groups, see Napolitano as a law enforcer who supports tough employer sanction laws and strengthened border control, and who has declared the Arizona-Mexico border a "state of emergency."

Certainly, there is relief that Michael Chertoff, a right-wing ideologue and Republican loyalist, will soon be gone. But he will leave a legacy in the two Department of Homeland Security (DHS) agencies that implement immigration enforcement and border control—Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

Over the past three years, under his assertive leadership, the two agencies have sharpened their objectives and operations and found a sense of purpose that was previously lacking when their predecessor agencies were under the Justice Department and later under the fumbling direction of the first DHS secretary, Tom Ridge.

Following the lead of the anti-immigration institutes (FAIR, NumbersUSA, Center for Immigration Studies) and rightwing think tanks (Heritage Foundation), Chertoff came to Homeland Security with a new interpretation of the department’s immigration law enforcement and border control operations: commitment to a strict enforcement regime to protect the country against foreign terrorists, and to reassert the "rule of law."

In the aftermath of Sept. 11, the restrictionist camp found that their messaging about the "illegality" and "criminality" of illegal immigrants took on a new resonance. And they proceeded to upscale their "what don’t you understand about illegal?" message, which had echoed through the anti-immigration grassroots forces, to a more conceptual framing of illegal immigration. Illegal immigrants now represented a threat to the "rule of law" inside a nation that had just come under foreign attack by foreign outlaws.

An October 2005 Heritage Foundation essay, "Rule of Law at Stake in the Immigration Debate," helped propel the rule-of-law framework into the mainstream media. Written by former Attorney General Edwin Meese, a Heritage Foundation fellow, the essay was broadcast by Fox News. Meese and foundation colleague James Jay Carafano wrote: "We need to encourage federal, state, and local governments to enforce our laws and work together to improve the security infrastructure at points of entry. Enforcement should include prosecuting benefits fraud, identity theft, and tax evasion, in addition to immigration violations."

The "rule of law" framing for immigration works well for anti-immigration groups since it allows them to chart a course that is ostensibly separate from the nativists, economic populists, and white supremacists that make up much of the base of the movement. It’s a message derived historically and fundamentally on liberal principles of a government by laws rather than by royalty, aristocrats, and other elites.

Another part of Chertoff’s legacy is his straight-out acknowledgement that immigration policy is flawed, but until there is a new, more comprehensive law in place, DHS has a mandate to enforce existing law.

Napolitano is by no means an anti-immigration hardliner. However, as a lawyer, former federal prosecutor, and a governor who has insisted on more border control and has stood behind a tough employer-sanctions law, she will fit easily into the "rule of law" framework for directing ICE and CBP operations.

It’s a framework that has already been adopted by the Democratic Party and to a certain extent by Obama.

When asked by CBS’ Katie Couric about his illegal immigrant aunt, Obama appealed to this framework as one that should prevail in immigration policy.

Couric: "You have an aunt who’s been living in this country apparently illegally, and your campaign says any and all appropriate laws should be followed. So would you support her being deported to Kenya?"

Sen. Obama: "If she is violating laws, those laws have to be obeyed. We’re a nation of laws. Obviously that doesn’t lessen my concern for her. I haven’t been able to be in touch with her. But I’m a strong believer you have to obey the law."

During the campaign, Obama repeatedly said, as did Hillary Clinton, that, with regard to the immigration issue, America can be "both a nation of immigrants and a nation of laws."

Acknowledging that the immigration restrictionists have dominated the immigration debate, the Democratic Party and its allies have over the past year desperately sought to reframe the immigration crisis while at the same time attracting the allegiance of Latinos and "New Americans." Their new language about immigration policy—"nation of laws," "rule of law," and "required legal status"—started popping up everywhere, from the pronouncements of immigrant-rights groups to the Democratic Party platform.

Instead of promising an "earned path to citizenship," as it has in the past, the party stated that illegal immigrants will be required to "get right with the law."

"For the millions living here illegally but otherwise playing by the rules, we must require them to come out of the shadows and get right with the law," states the party’s platform. "We support a system that requires undocumented immigrants who are in good standing to pay a fine, pay taxes, learn English, and go to the back of the line for the opportunity to become citizens."

As governor, Napolitano has attempted to navigate between the vocal and highly-organized anti-immigrant forces on one side and the business community and humanitarian/human rights groups on the other. While realistic about the impossibility of completely sealing the border, she has called for more border patrol agents, deployed the state’s National Guard, and supported increased federal-state cooperation in immigration law enforcement, albeit at the same time opposing the immigrant crackdown launched by the notorious immigrant-bashing Maricopa County Sheriff Joe Arpaio and vetoing measures that would have denied social services to illegal immigrants.

All the while, Napolitano has complained that the responsibility for addressing immigration-related issues lies with the federal government. She says she supported a tough legalization law, and, like Chertoff, has been an outspoken advocate of temporary and guestworker programs.

As Homeland Security secretary, Napolitano can be expected to follow the lead of Chertoff and the Democratic Party in insisting that current immigration laws be strictly enforced; as ICE and CBP routinely put it, "to reassert the rule of law" in immigration and border control. In the absence of a reform law that provides a path to citizenship for the country’s 11 million illegal immigrants, the "rule of law" route forward will be a victory for those calling for restrictive policies on legal and illegal immigration.

Like Chertoff, she will have no power to shepherd through Congress a new immigration policy. What she can do, however, is reject the practice of her predecessor of using the strict enforcement of immigration law as a deterrence strategy. Through highly publicized raids on worksites and through the shackling and imprisonment of immigrants, the DHS has sought to use the law to terrorize existing immigrant communities as part of a strategy to deter future illegal immigration. The consequences have been violations of human rights, family separation, and sowing fear in entire communities.

Napolitano can also use her position as a bully pulpit to explain that the rule of law is not an end goal. It’s a path to justice. America is both a nation of laws and one where justice prevails—or it should be.

TOM BARRY directs the TransBorder Project of the Americas Policy Program (www.americaspolicy.org) at the Center for International Policy in Washington, DC. He blogs at http://borderlinesblog.blogspot.com/.