Commentary

No Sanctuary – Just Open Defiance of Law

Richard Kelsey
By Richard Kelsey | November 17, 2016 | 2:07 PM EST

(AP Photo/Ross D. Franklin)

America does not have sanctuary cities or sanctuary colleges for illegal aliens.  It only has lawbreakers who for more than two decades have acted in open defiance of federal law to illegally induce and encourage aliens to both enter and stay in the United States.  Mass deportation may be politically impractical or logistically impossible. Enforcing existing law to stop illegal conduct, however, is step one in combating illegal immigration and the felons who promote it.   There are mayors, states attorneys’ general, college presidents, and a host of other people who are and should be in legal jeopardy under a law most presidents refuse to enforce.  Mr. Trump now has a tool at his disposal, on the books, to change fundamentally the war on felonious inducement of illegal aliens.

We cannot give sanctuary to illegal aliens anymore.  The vast majority of the country understands this simple concept.  More importantly, we can no longer give legal sanctuary to those who, for political or economic profit, encourage illegal aliens to come or stay here.  The federal law, under 18 USC 1324(a)(1)(A)(iv), provides a serious government the best weapon it has to stop politicians, activists, colleges, and businesses from encouraging this illegal invasion.  The law makes it a federal felony to “encourage or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 

The government has never applied this anti-harboring statute against politicians or activist groups because of the unspoken immigration pact by the major parties to permit unlawful entry.  That pact is over. That is, while federal politicians try to resolve the mess that is both illegal and legal immigration, those who attempt to create illegal sanctuaries for those they know to be here illegally, must be prosecuted.  City mayors who induce and give safe harbor to people they know to be illegal aliens are no better, and indeed are worse, than the paid mules and smugglers who harbor illegal aliens.  When politicians who ignore the law see others prosecuted for violating it, they will stop.

We can no longer have politicians of any stripe holding press conferences and telling the federal government that it will give safe harbor to people they know to be here illegally.  That illegal act is not part of our political process.  That multiple presidents and congresses permitted this in the past is outrageous, but it need not continue.  It is true that the Congress could cut all federal funding and aid to these cities.  If it did so, Congress would force most cities to comply with the law.  However, that draconian measure would punish needlessly lawful residents of our great cities.  We need only punish the guilty.  

We have very serious policy questions about what to do with the 10’s of millions of illegal aliens here.  Those questions are hard.  They involve human drama, children, refugees, the noble, and the not so noble.  Many are here because the two major parties collaborated to allow them to come.  The fix will be rough, indeed brutal, if done in a way that punishes illegal behavior and stops, forever, the incentives to come here illegally.  I seriously doubt that our country’s politicians have the will to fix this problem the way most law abiding, residents wish they would.  Nonetheless, whatever becomes of the immigration reform, illegal immigration and its encouragement must stop. Immigration reform needs a policy solution, and law breaking needs a criminal justice solution.

Cities, counties, states, and even colleges have no right to create illegal sanctuaries.  In fact, if states have no right to stop illegal aliens from coming in, then these other entities likewise have no right to encourage them to do so.  Criminal law is clear on inducing and harboring aliens.  It is time for Congress to do its job, and it is time for ICE and federal prosecutors to be set free to enforce a law that will help stop additional illegal immigration.  Law breakers, be them illegal aliens or those who encourage them, ought not to have sanctuary.

Richard Kelsey is an attorney practicing with The Impresa Legal Group. A former Assistant Law School Dean and a former Virginia state court law clerk and commercial litigator, 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.

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