Opinion // Why Obama is Wrong about Illegal Immigration

It’s important to remember that Jewish laws and values do not dictate open borders.

by Marshall Breger

Since last October, more than 57,000 unaccompanied children—twice as many as the previous year—have crossed our borders illegally. Unsurprisingly, the flood has raised conflicting attitudes among Americans. Some respond with a natural instinct of compassion, supporting efforts not only to provide social services to the children but to ensure that they can claim refugee status. Others point out that these illegal minors are but the first of hundreds of thousands who will assuredly come if we continue to allow untrammeled entry.

Many would argue that American Jews have a special role to play in this debate. The Jewish community in particular benefited from America’s open immigration policies, especially between 1880 and 1920, while the United States’ closed immigration policies in the 1930s helped doom the Jews of Europe. Those eager to offer asylum to recently arrived migrants also cite Jewish ethics, particularly the mandate for Jews to remember that they were slaves in Egypt. Indeed, this was the argument made in July in a statement signed by 20 Jewish organizations, from the Union of Reform Jews to the Anti-Defamation League, urging Congress to support policies that “fulfill the Torah’s mandate to ‘welcome the stranger.’”

Compassion is certainly a Jewish virtue. And Jewish law is clear that there should not be one law for the stranger and one for the citizen, a principle that would seem to support open immigration. But things are not that simple (they never are in Jewish law). The stranger in Jewish texts is a ger toshav, a resident alien (or else he is a foreigner—a nochri—a status with even fewer protections). I am not certain that the term ger toshav encompasses illegal immigrants. A ger toshav wasn’t only someone who dwelled among the people; he had to accept obligations akin to the seven laws of Noah. 

Other rabbinic sources teach that our tzedakah obligations (and they are real obligations) are first to the “poor of your community.” We can take an expansive view of what or who is included in our community, but we can’t take in the entire world.

The socioeconomic argument can likewise be questioned. It is true that Jews who immigrated benefited the U.S. economy over the long term. But when our forefathers came this was a different economy, one in which unskilled labor could with hard work lead to middle-class status. The loss of American manufacturing jobs in the recession of the 1980s and the continuing high unemployment of unskilled laborers today make clear that this is no longer our reality. 

The flood of unaccompanied illegal children is only the most recent chapter in a long and heated battle about our immigration policy. Pro-immigration enthusiasts have argued that the thought of repatriating the 12 million illegal immigrants currently living here is fanciful if not cruel. This argument makes a good deal of sense, but it raises the difficult issue of how we integrate these “undocumented” illegals into our polity.

Early in President Barack Obama’s second term, Democrats sought to integrate the “undocumented” before dealing with our porous borders. When this “comprehensive” approach stalled, they then sought to “defer action” on, and thus functionally legalize, young children (the so-called “Dreamers”) brought to this country years ago by undocumented parents. When this “Dreamers” act did not pass, President Obama took executive action to satisfy at least some of the Dreamers’ goals. He exercised his discretion to “exempt” certain classes of illegals from deportation for two years. And he further suspended prosecution of employers who hire immigrants without work authorization. Thousands of undocumented young people came out of the shadows.

But in doing this, Obama severely distorted the conventional notion of discretion, which is the application of judgment on a case-by-case—not a category-by-category—basis. When past administrations have proposed such wholesale (rather than retail) discretion, courts have often resisted. And there has been an unanticipated real-world effect: The word spread throughout Central America in garbled fashion that the United States was offering permisos to allow young people who make it across the border to stay on. Unsurprisingly, they came.

Faced by a flood of child illegals desperate to escape the drug gangs and urban violence of Central America, the immigration lobby revved up with a new demand—that we allow the fleeing children to stay, by classifying their fear of drugs and gang violence as meeting the standard for refugee status, a “well-founded fear of persecution.” They appear shocked at the relatively tepid response from traditional supporters of immigration, including Jews—after all, we as a nation welcomed child refugees from Haiti and elsewhere.

But the immigration lobby has used a sleight of hand. Under the guise of compassion, what they want is essentially open borders, since pretty much anyone from Central America can lay claim to a well-founded fear of drug gangs and urban violence. 

The word is that the president is planning a new executive order to defer deportation of—or, functionally, “legalize”—many of the illegal aliens now in the United States. Aside from the dubious legality of an executive action taken where Congress has clearly shown it does not support such action, the deeper question is the policy this action suggests.

We must certainly create some way to integrate the existing illegal population. There are many ways to accomplish this; citizenship is just one. But in my view, no order providing functional amnesty to the 12 million will make any progress toward a fair and workable immigration policy if we do not first gain control of our borders. Once we do that, I have no doubt that Americans—including Jews—will evidence the fairness and compassion that our tradition so often calls for.

Marshall Breger is a professor of law at Catholic University.