Immigration law and tax law, although at first glance strikingly different, share much in common. Each rivals the other in complexity. Each permeates every nook and cranny of human behavior — from commerce and criminality to love and divorce, from mental illness to extraordinary brilliance, from birth to death and everything in between. Though each is a distinct legal discipline, they are but variant species within the general fields of administrative law, litigation and appellate law, public and private international law, family law, estates and trusts, criminal law, and of course constitutional law. The sting of taxes — forever coupled with death as life’s two unavoidable realities — likewise is yoked to our all-pervasive immigration laws in ways both subtle and obvious.
Yet Americans are outraged when tax laws and revenue agents bite them, but seem scantly or not at all troubled when our immigration laws and their bureaucratic enforcers devour people and property rights. No doubt this disparity of concern proves the maxim that it all depends on whether your own or your neighbor’s ox is gored.
Thus, amnesty generates nary a peep if granted to tax cheats, but stands as an outrageous transgression against the rule of law if leniency and pragmatism are offered to aspiring Americans who lack legal status. So too with the terabytes of digital ink spilled over the recent revelation that IRS agents in Cincinnati probed more searchingly applicants for non-profit designation of the Tea Party persuasion than supplicants on the left.
A scandal to be sure, but why is the public not similarly incensed when immigration agents cross the line and behave not as neutral technocrats but as political actors?
Consider the recent action of the federal union representing the officers of U.S. Citizenship and Immigration Services (USCIS) who announced in a press release that it had signed on to a letter issued by another government union, the National Immigration and Customs Enforcement Council, which represents officers of a different immigration component of the Department of Homeland Security (DHS), U.S. Customs & Immigration Enforcement (ICE).
As The New York Times observed in a recent editorial, “Leaders of [the ICE and USCIS] unions have joined antireform hard-liners in trying to kill the [comprehensive immigration reform (CIR) bill that just passed the Senate Judiciary Committee], showing an unbending hostility to its goals.” The unions, sounding like health care workers forced to engage in practices that violate their collective conscience, and a bit like erstwhile presidential candidate, Rudy Giuliani, offer a scurrilous letter that resurrects all too familiar bogeymen as punching bags: “illegal aliens,” “gangs,” and “9/11.” Sadly, however, as The Times observes, “[what] any of these false charges has to do with the work of immigration agents — which is to enforce the immigration laws as written — is beyond us.” Indeed, there is a “certain piquancy” when “conservative” Republicans opposing CIR scurry to become bedfellows with federal labor unions, clearly miffed at not being consulted by the Gang of Eight.
Where is the popular outrage over the scandalous behavior of immigration officers that is just as abhorrent as the misadventures of errant IRS officials? The actions of the IRS involved comparatively few agents in an understaffed local office, whereas the union leaders’ letter is offered as the shared belief of 7,000 ICE agents and 12,000 USCIS employees.
To immigration lawyers, the letter and press release are shocking not so much for their contents as the brazenness displayed in their publication. With far more visibility than Luther’s famous nailing of his views on the Wittenberg church door, these unions are throwing down the passive-aggressive gauntlet to Congress, the Obama administration, and the leadership of DHS. They declare, in essence, “pass what you will, but watch how we interpret, apply and enforce the law!”
The unions raise hobgoblins over the discretion that the Senate bill, S. 744, would give to “political appointees” who allegedly prevent these oath-bound officers from administering the strictest letter of the law. Yet they fail to recognize that the absence of discretion in enforcement created the pickle we are in. A nation that will not tolerate and cannot pay for the mass deportation of 11 million people must grant our only nationally elected leader, the President, and his chosen team, the power to be strict with those who threaten our safety and lenient with those who do us no material harm.
The immigration unions’ power play has unmasked their insubordination for all to see. They do not want merely to apply the law as written but to pick and choose the laws they will enforce and be the rulers themselves. No government should tolerate this flouting of legislative will and executive authority.
Congress should recognize its mistake when, in passing the Homeland Security Act, it moved USCIS, the immigration benefits agency, from the Justice Department, where that function had historically resided, and co-mingled it irreconcilably with immigration enforcement at DHS. CIR should put USCIS back into DOJ. The legislation should also abolish USCIS’s Fraud Detection and National Security Directorate, and reaffirm that the immigration enforcers’ power to nab fraudsters, terrorists and other lawbreakers is a shared but exclusive function of the interior and border immigration police, respectively, ICE and U.S. Customs and Border Enforcement. Congress must also recognize its failure of immigration oversight that allowed the types of immigration scandals reflected by the unions’ power grab to occur.
The President and the DHS leadership team must also grow spines. Discipline and pink slips are the proper responses to insubordination. The wrong way to go would be to give the unions more power to fashion law in their image, as President Obama reportedly did in 2009 when signing an “an executive order to allow the [IRS] union to have pre-decisional involvement in all IRS workplace matters.”
In the final analysis, taxation and immigration — and their associated scandals — illustrate the same problem. It arises when career bureaucrats are allowed to trample the rule of law in fits of partisan excess, and elected leaders, failing in timely oversight, are outraged only when the spotlight of media attention leads to enough public discontent that tenure in office and the prospects for reelection are threatened.