Christopher Tollefsen on the New Natural Law Theory

I've put up a link to the article with some notes about its account of the political common good over at Diligite Iustitiam.

Two on immigration reform from The Public Discourse

heImmigration and Self-Governance

Christopher O. Tollefsen, May 07, 2010

Three issues—the right to secure borders, the moral costs of illegal immigration, and the virtues of generous neighborliness and forgiveness—must be clarified in order to address the problems of immigration reform.

Arizona, Congress, and the Immigration Mess

Michael Scaperlanda, May 11, 2010

Illegal immigration is a national problem, but Arizona’s solution is not the answer. We need to secure our borders, allow a more generous pathway to citizenship, and create a guest worker program.

Mr. Scaperlanda writes: "An alien unlawfully present can be taken into custody, charged with a state crime, and transferred to federal custody."

But he objects:

In a time of budget crisis, Arizona is likely to see a growing prison population, populated with those whose only crime is their immigration status. Otherwise lawful members of society, here illegally out of a desire to make a better life for themselves and their families, will crowd the prisons. Arizona may attempt to transfer these prisoners to federal immigration authorities for deportation, but there is no guarantee that the federal authorities will accept them. Will Arizona keep these persons jailed at public expense indefinitely? The jailed immigrants won’t be able to provide for their families, some of whom will be American citizens entitled to welfare benefits, further draining the state’s treasury.

Isn't the state going to hand them over to the federal authorities, like ICE? If the federal government does not accept them, maybe the state of Arizona will do something about it, with respect to asserting state sovereignty. (How about suing the federal government for expenses and negligence in enforcing its laws?)

In the late 19^th century when the United States government was just beginning to impose immigration restrictions, the United States Supreme Court based its emerging immigration jurisprudence on a misreading of the law of nations. The Court’s plenary power doctrine meant that under our Constitution Congress possesses the absolute right to restrict immigration for any reason, including reasons at odds with our own national self-understanding. For example, the infamous Chinese Exclusion Case, which is still cited by lower courts as authoritative, established the principle that “if . . . the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed.”

In applying this principle of sovereign absolutism, the Court cited but misapplied preeminent international law thinkers including Hugo Grotius and Emmerich Vattel. Most of these authors drew upon the natural law tradition, and even Vattel, the most positivist of the bunch, understood the limits of sovereignty. In words that could have been written by Aquinas, Vattel wrote: “The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve, because all property is vested in others. . . . Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person the necessaries of life. . . . The same right belongs to individuals, when foreign nations refuse them a just assistance.”

Mining our western heritage, rooted in natural law, we discover that contrary to the Supreme Court’s jurisprudence, a sovereign state possesses only a qualified right to exclude foreigners from its territory. In formulating an immigration policy, Congress ought to take into account this tradition as it exercises its judgment within the broad powers allocated to it by the Court’s reading of the Constitution and international law.

This has echoes in current Catholic Social Teaching -- his citation of Vattel does not appear to support his point, since it seems to be dealing with the original common ownership of property. As for Congress taking international law into account and its broad powers? This doesn't sound right.

He continues:

Applying this tradition, five principles emerge. First, persons have a qualified right to emigrate to seek a better life for themselves and their families, especially where human flourishing is impossible in their home state. Second, states have a qualified right to restrict immigration if the common good of the members of the receiving community requires it. Third, wealthier nations have less need to restrict immigration because they can accept a greater number of immigrants without damaging the possibility of human flourishing by its existing population. Fourth, political communities have a right to expect that those within its territory will respect and obey the law. And, fifth, the law is not broken when someone—like Jean Valjean in Les Misérables—takes what he needs for survival.

I concede the right to migration; I do not concede that they have a right to join whatever political community they so wish. The two are not identical, and the author and others must show that the former entails the latter. If "a better life for themselves" is understood to involve being in community with others, then I deny it, and the author must show how this claim follows from the natural law. (It certainly does not follow from the preceding paragraph.)

He offers a three-pronged solution. The first is to secure the borders. Not so controversial. (Under the first he includes employer sanctions and improving verification.) The other two solutions:

Second, we must have some mechanism to legalize the vast majority of those who have come here illegally but who have put down roots, laboring diligently while raising and/or providing for their families. Tollefsen calls this “the virtue of generous forgiveness.”

Some readers might object on the grounds that those here illegally jumped in line, taking the places of those who have waited patiently in line in their home countries. In reality, there is no line. The United States allows 10,000 unskilled workers worldwide to immigrate to the United States every year on an employment-based immigrant visa. Assuming that all 10.8 million undocumented immigrants left the United States and got in line, it might be the year 3090 before all were accommodated.

Third, we need to adopt a temporary worker program that ebbs and flows with the economy and the demand for labor. This will allow us to protect our most vulnerable workers while providing opportunities for industrious people seeking to provide a better life for their families than can be gained in their countries of origin. In addition to testing the labor market to determine the need for such workers, two features are essential for this program’s success. First, the temporary worker must have job portability to prevent potential exploitation at the hands of one employer. Second, either temporary workers must be allowed to stay in the United States for only a relatively short period—three years, maybe—so that they do not become assimilated into American life, or they must be given a path to permanent residence and eventual citizenship. Although I do not have a strong preference between these two alternatives, the third alternative—allowing long-term “temporary workers” would be undesirable.

At least he does not go so far to say that they should be put on the path to citizenship. But easy legalization? How is this going to prevent future waves of immigration? This brings us to the third solution -- while he is aware of employers hiring illegal immigrants, he says nothing about the political economy that makes this acceptable for employers to do so. The presumption by certain Catholic authorities and by the author is that the current political economy is sustainable. What if it is not? What will have to be done then? Should there be any priority assigned to citizens when it comes to the division of resources in order to further relocalization and the readjustment to a more agrarian society?