politicalcivility.com Blog

The Texas courts are on a roll this week.  This ruling strikes down a ban on renting to illegal immigrants where the judge found that immigration policy is strictly a federal function.  Utah legislators would be wise to take a closer look and save Utah taxpayers the expense of litigating a case where their efforts to “curb” illegal immigration is unconstitutional.

Link: http://biz.yahoo.com/ap/080529/immigration_texas.html?.v=1

I have to admit that my thinking regarding the immigration issue has changed significantly over the past couple of years as I have spent more time reading and listening the to arguments on both sides.  One of the major shifts occured when I began to look at and study the difference between types of law: malum in se and malum prohibitum.

Here’s a quick overview from Cafe Hayek:

A critical distinction in Anglo-American law is that between actions that are malum in se and actions that are malum prohibitum.  Some actions are malum in se — wrong in themselves.  Examples are murder, rape, theft, and fraud.  These actions are now formally prohibited by legislation, but their wrongness — indeed, their very illegality — exists independently [emphasis added] of legislative prohibition.  If, say, the Virginia legislature were to repeal its statutory prohibition on murder, murder would still be wrong and criminal in Virginia.  Murderers would still be wrongdoers and criminals.  If the State government refused to punish such criminals, people would do so privately.

Other actions are malum prohibitum — “wrong” merely because the government proclaims these actions to be wrong.  One example is avoiding taxes.  If Uncle Sam tomorrow abolishes the federal income tax, failure of Americans to send money to Washington would be neither wrong nor criminal, and persons who send no money to Washington would not be regarded by their neighbors and co-workers as despicable louts whose company should be avoided.

Immigration law is clearly a malum prohibitum type law, as such it is a-moral, meaning that if we removed all immigration law people coming here would not be considered immoral.  Thus it follows that the “criminality” aspect of an immigrant not following the law is no different that a legal citizen breaking the speed limit.

There are several bills comming before the Utah House and Senate that represent a disturbing trend in “immigration reform.”  These proposals, while popular with some conservatives appear to me to be unconstitutional.  Immigration is a power specifically enumerated in the constitution as a federal jurisdiction and federal power.  When Utah or any other state takes on the role of federal agent/enforcer we are not only setting a bad precendent, but we are also acting in violation of one of our most sacred national documents: the Constitution of the United States.  The legislature’s efforts would be better spent on putting pressure on our federally elected officials to make the necessary changes to federal immigration policy.  One example of this is Rep. Morgan’s proposal (HB 262) to seek reimbursement for costs the state sustains as a result of dealing with illegal immigration.  This bill begins to hold the federal government responsible for their inaction and helps Utah deal with costs associated with a failed immigration policy.