On Immigration: It’s Time We Start Discriminating

Richard Kelsey | July 21, 2015 | 3:19pm EDT
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Ernie Getford holds a sign in support of the controversial SB1070 illegal immigration enforcement bill during a rally at the state Capitol in Phoenix on Friday April 23, 2010. (AP Photo/Nick Oza)

Open borders advocates, big business types, and political demagogues of all stripes have rallied around the false flag of comprehensive immigration reform.  The phrase itself is political speak for lax enforcement and amnesty.  The entirety of the immigration debate has been solely to focus on how many people who have come here illegally get to stay, and under what conditions.  It’s a farce.  Americans are not even talking about what matters in immigration policy.  The central premise of a national immigration policy must be that immigration policy first and primarily serve Americans, not immigrants.   Recent events serve as a stark reminder that real comprehensive immigration reform is not just about letting illegal immigrants stay; it is about choosing who gets to come here legally.  Our broken immigration system is not broken just because of illegal immigration; it is broken with respect to our legal immigration practices.   

Wanting to come to America is not a valid immigration criterion.  Needing a better life for yourself and your family, likewise, is not a sole determinative immigration criterion for U.S. citizenship.  An intelligent immigration policy looks to invite the best candidates to apply for citizenship, and applies a harsh, thoughtful, unapologetic screening process to ensure that those who do come will ultimately enrich American life and add to the fabric of our success. America is too great and too important to have an open admissions policy. 

In recent days, some have suggested that our immigration policy block prospective immigrants from Muslim countries.  That’s a pretty radical idea by any measure, but particularly radical in a country that prides itself on amorphous concepts such as diversity and tolerance.  The notion that we could or would “discriminate” against a particular religion offends our American sensibilities.  Indeed, the word “discriminate” has become so hyperbolic that it can’t be used in its traditional sense, as its sole meaning to many connotes illegal, repulsive conduct.  It no longer means merely to separate based on selectivity.  As once used, it might be said that Jackie Onasis Kennedy had discriminating taste in fashion. When it comes to immigration policy, we too must be discriminating. 

Do I suggest to you that the line of discrimination is on one religion or another?  I don’t.  A blanket policy that prevents all members of any one religion from coming to the United States is a silly policy that may exclude people we want and need.  However, that does not mean that our policy cannot and should not consider religion as a factor, together with a whole host of other important factors.  Those on the left might see a corollary to affirmative action principles.  While race, gender, and religion should not be the single criterion that voids an application for U.S. citizenship, we would be foolish if those factors were either ignored or not rightly considered.

When we went to war with Japan, this country interred Japanese American citizens.  I don’t think we were accepting immigrants from Japan at the time, nor would anyone have suggested that we do so.  The misapplication of American law against American citizens based on national origin identity in a time of war is still a stain on our national soul.  Using multiple criteria to judge the application of non-Americans to enter the U.S., however, is completely different and entirely necessary.  Moreover, the debate on how, when, and why these criteria change must be an ongoing conversation.  Times change, and our immigration policies must change with them.  Surely, we welcome Japanese immigrants today, as Japan is now our longtime ally. 

The world has changed too, since the rise of Islamic extremism.  The war brought by militant, radical Islamist extremists has changed the globe.  It has changed how, where, and by whom wars are fought – and against whom such targets are made.  Enemies of modernity and civilization seek to use our open society and tolerance to sow the seeds of hate and war on our shores in a way no nation-state army ever could.  We must be wise to adjust our defenses, and to be wary of those who seek citizenship, asylum, or visitor status in America.  Countries like France and Great Britain have seen the war on their shores, with soldiers drawn from their own immigrant ranks, after years of permissive, tolerant immigration policies.  Likewise, we cannot ignore that the Boston bombers and the Chattanooga shooter arrived here through our broken legal immigration system.

There is so much wrong with our immigration policies.  These wrongs cannot be fixed by executive fiat or judicial over-reach.  They should not be fixed by hysteria or xenophobia either.  We need national debate, national consensus, and legislative leadership that serves the will of the people, not the interests of parties or politics.  Those who have usurped our laws earn and deserve deep suspicion as we look at whether or when they may stay.  Those would-be immigrants who come from regions of the world, peoples of the world, and religions or beliefs in the world where the American people, our allies, and our values are under attack, deserve the highest form of principled, American skepticism.  The American people reserve the right to determine who we will permit to live with and among us, and who likewise may earn the right to be one of us.  In that respect, we should be very discriminating. 

Richard Kelsey is an Assistant Law School Dean.  A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company.  He has previously taught legal writing and pre-trial practice.  He is a regular commentator on legal and political issues in print, and on radio and TV.   His opinions are his own, and do not represent any institution or entity.  His Twitter handle is @richkelsey.

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