22 June 2012

On "let there be (some) amnesty"

Here are some unordered responses to two recent Bryan Caplan posts about Obama's semi-amnesty program. First, Caplan:
EconLog | Bryan Caplan | Is Obama's Semi-Amnesty for Real?

I don't just think that immigration restrictions are bad policy; I think they're a grotesque crime against humanity [pdf] — with all that implies. Given this starting point, Obama's semi-amnesty for hundreds of thousands of illegal immigrants sounds like the best U.S. political news of the 21st-century. I can't remember the last time any American policy change actually made me happy or even hopeful. I'd like to believe this is for real.

EconLog | Bryan Caplan | Six Theses on Extremely Unjust Laws I Dare You to Dispute
  1. Extremely unjust laws are conceivable.
  2. Extremely unjust laws exist.
  3. It is morally permissible to break an extremely unjust law.
  4. It is morally permissible to evade punishment for breaking an extremely unjust law.
  5. It is morally impermissible to enforce an extremely unjust law.
  6. It is morally permissible to punish a person for enforcing an extremely unjust law.
The laws underlying slavery or the Holocaust are obvious examples of extremely unjust laws. To dispute my six theses in any fundamental way, you have deny them for these notorious cases. To reject #4, for example, commits you to the view that it was morally impermissible for slaves to hide from runaway slave patrols. To deny #6, similarly, commits you to the view that the Nuremberg Trials were morally impermissible.

Why bring this up now? Because Obama's semi-amnesty predictably provoked the complaint that his action violates the "rule of law." Yet if you accept my six theses, any discussion about the rule of law is premature. The first question on the agenda has to be the justice of the laws Obama has decided to undercut. If we're going to argue about his decision, this is what we should be arguing about.
(I) Like Caplan, I find our immigration laws to be morally equivalent to apartheid. I would be happy to see them go.

(II) Unlike Caplan, I am not so cheery about how this was done, i.e., by way of Presidential fiat. His response is a good one, but ultimately unconvincing:
I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.

My question for Arnold: What's the best law any future President is likely to nullify due to Obama's precedent? I just don't see this slippery slope leading anywhere we should fear to slide.
I'm not used to arguing against people who hold US legislation in even more contempt than I do. Nevertheless, I believe I can think of several laws which are not good ones, but given all the rest of our legislation we're better off with them being enforced than not enforced.

For instance, I oppose both ObamaCare in particular and the idea of an individual mandate in general, but we'd be a lot worse off if we kept ObamaCare but POTUS decided not to impose the mandate. I don't think income tax is moral, but assuming the government keeps spending (safe assumption, I think)  I'd much rather have the income tax enforced than not enforced.  Several jurisdictions stopped enforcing all evictions during the housing crash. I think removing people from property they have not paid for, and is therefor not theirs, is perfectly moral. True, this wasn't a federal decision, but it's also not speculation: it actually happened. I think collecting payments on student loans is entirely moral, but I would not be surprised if a President ordered that those debts not be enforced. This particular President has already had all sorts of moral laws regarding bankruptcy abrogated. None of this is based on this immigration decision in particular as a precedent, but I think it sets a more general precedent that laws only exist at the pleasure and discretion of the President.

(III) Stephen Landsburg asks two very piercing questions:
  1. What morally relevant criterion protects the rights of the relatively rich foreigners who are already here but allows us to continue trampling the rights of the desperately poor foreigners we’re continuing to turn away at the border?
  2. Now that you’ve at least admitted it’s a bad idea to throw current residents out, what are we going to do about the folks you’ve thrown out over the past three-and-a-half years (and the ones your predecessors threw out before that)? They were, after all, studying in our schools and playing in our neighborhoods at the time. Will we apologize and invite them back?
(IV) Back to Caplan. I think he misses a couple of steps and a couple of dimensions in his six theses.

• The first of these is authority. I think the moral requirements are different for people in power. Having put yourself in a position of authority means you have, to a certain degree, forfeited the right to make these decisions. Having agreed to uphold the law, and promised your fellow citizens that you will do so, you don't then get to pick and choose which laws you like. That wasn't part of the deal by which Obama gained power. If you feel some laws are too immoral to enforce, don't put yourself in a position where it is explicitly your responsibility to enforce them.

I'd draw an analogy to Catholic clerics who want to teach doctrine the Church disavows. They don't get to pick and choose. They are, of course, perfectly free to teach whatever their heart leads them to believe. But they don't (shouldn't) get to do it while simultaneously remaining authorities of the Church. If you think premarital sex is a swell idea or think transubstantiation is silly, that's fine. But you don't get to say that and remain a bishop.

If Obama wanted this law to change (and I hope he did!) and thought it was too immoral to enforce, he should have remained a Senator, where he could work to change it and would not have taken on the responsibility of enforcing it. There's no way he was blindsided by this. There's simply no way he thought immigration law was all fine and dandy and then three years into his term realized it was immoral and refused to enforce it. He gained power with the full knowledge that he was also gaining the responsibility to participate in the enforcement of these laws.

I see the POTUS as I understand Washington did: as the Chief Magistrate of the country. I want a President whose job is to keep the machine of State in fine whack. I'm comfortable with a POTUS who falls back on "the forms must be obeyed" because I think his sole role is to do so, not to determine what the forms are. The power to determine what the law should and should not be is explicitly given to a different set of people. (And for a very good reason, I would add.)

• In a more general sense, I'm much more comfortable with people out of authority saying "screw this, I'm not coloring within the lines" than when people in power say that. I guess that most people would say they agree, but when push comes to shove I don't think they really do. That's just speculation though.

• I also think it's important to look at people's expectations. A President enters office knowing he's going to have to enforce immoral immigration laws. He goes in eyes-open, swears on the constitution that he's willing to do so, and then three years later decides not to. It's not like this was just sprung on him by congress out of the blue last month.

Imagine a young man joins the army to defend his country and then, years down the road, is ordered to slaughter POWs as part of a new policy. I hope and pray that young man has the courage to refuse to enforce his orders. But whether he does or not he's in a very different moral position than a recent recruit who signs up explicitly knowing that his army's policy is to execute prisoners and furthermore volunteered for prison guard duty. Obama is in the same moral position as the latter man, not the former.

• There's another temporal problem with adopting amnesty-by-executive-fiat: it can be reversed at any time. Laws need to be consistent. How is a young immigrant supposed to plan for his or his children's futures if at any time the deportation switch can be flipped back the other way? True, congressional legislation can be reversed, but that's a lengthy (and relatively rare) process. This immigrant children amnesty thing is something that people can expect to be reversed at least every four years on average, if we leave it up to the pleasure of the president.

Caplan would probably respond that these children are better with a temporary chance of amnesty than a permanent lack of chance, and there's definitely something to that. But I still think this temporariness makes this policy a pretty half-hearted lollygag of a nod toward morality.

• Maybe this is just me being cynical, but I don't believe Obama is refusing to enforce these laws because he believes them to be immoral. He's been perfectly willing to enforce them for years. He's deported a record number of people. There's no apparent moral principle for this new position (as Landsburg establishes). So no, I don't believe he's doing this because he thinks to do otherwise would be immoral. At best, he's doing it because he believes it's moral but more importantly electorally useful.

He may actually think this is the right thing to do, but he wasn't willing to do it until it was politically useful. That means morality is second fiddle for him. You don't get to hide behind realism when its convenient and then brag about being an idealist when its opportune.

I'm not going to congratulate Obama for accidentally blundering into the moral position like Caplan seems willing to do.

• Caplan's theses also ignore structural issues. If I, a random citizen, refuse to help enforce a law, the structure of law does not change. If our President, the chief law enforcement officer of the nation, picks and chooses then the entire system of legality collapses. That is a meta-change.

Maybe the President chooses not to enforce an immoral law. Then we all win some. But we've put all our eggs in one basket, labeled "The Moral Sense of the Current President." That's a dangerous situation. If you or me or John Q. Beatcop refuses to participate in immoral legislation we don't face any such structural danger.

Our legislation is a loose approximation of morality. In many ways it is immoral, but our system of generating laws is moral one. (Well, as moral as anything else in wide use.) Caplan would have us trade more moral legal particulars for a less moral law generating system. His apparent position is that our system has already generated so many immoral laws that we're better off without it. That's consistent at least, but every time I pick up a history book I'm shocked about how much immorality results from leaving legislation up to the moral sense of the head honcho.

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