US: Napolitano and Immigration Policy: Will the "Rule of Law" Be Merely an End or a Path to Justice?

Harold Schiffman hfsclpp at
Wed Nov 26 16:34:14 UTC 2008

Napolitano and Immigration Policy
November 25, 2008
Will the "Rule of Law" Be Merely an End or a Path to Justice?
Napolitano and Immigration Policy


What does the likely nomination of Gov. Janet Napolitano as head of
the Department of Homeland Security signal for immigration policy? The
hopeful interpretation by immigrant advocacy organizations is that
Napolitano's appointment, along with the new immigration task force in
the transition team, are signs that immigration reform will be a
priority for the Obama administration. The Arizona governor's public
support for comprehensive reform and the inclusion of immigration as
one of the top issues for the Obama transition team signal for some
observers that the new administration will not sideline immigration

Others, including the main anti-immigration groups, see Napolitano as
a law enforcer who supports tough employer sanction laws and
strengthened border control, and who has declared the Arizona-Mexico
border a "state of emergency."

Certainly, there is relief that Michael Chertoff, a right-wing
ideologue and Republican loyalist, will soon be gone. But he will
leave a legacy in the two Department of Homeland Security (DHS)
agencies that implement immigration enforcement and border
control—Immigration and Customs Enforcement (ICE) and Customs and
Border Protection (CBP).

Over the past three years, under his assertive leadership, the two
agencies have sharpened their objectives and operations and found a
sense of purpose that was previously lacking when their predecessor
agencies were under the Justice Department and later under the
fumbling direction of the first DHS secretary, Tom Ridge.

Following the lead of the anti-immigration institutes (FAIR,
NumbersUSA, Center for Immigration Studies) and rightwing think tanks
(Heritage Foundation), Chertoff came to Homeland Security with a new
interpretation of the department's immigration law enforcement and
border control operations: commitment to a strict enforcement regime
to protect the country against foreign terrorists, and to reassert the
"rule of law."

In the aftermath of Sept. 11, the restrictionist camp found that their
messaging about the "illegality" and "criminality" of illegal
immigrants took on a new resonance. And they proceeded to upscale
their "what don't you understand about illegal?" message, which had
echoed through the anti-immigration grassroots forces, to a more
conceptual framing of illegal immigration. Illegal immigrants now
represented a threat to the "rule of law" inside a nation that had
just come under foreign attack by foreign outlaws.

An October 2005 Heritage Foundation essay, "Rule of Law at Stake in
the Immigration Debate," helped propel the rule-of-law framework into
the mainstream media. Written by former Attorney General Edwin Meese,
a Heritage Foundation fellow, the essay was broadcast by Fox News.
Meese and foundation colleague James Jay Carafano wrote: "We need to
encourage federal, state, and local governments to enforce our laws
and work together to improve the security infrastructure at points of
entry. Enforcement should include prosecuting benefits fraud, identity
theft, and tax evasion, in addition to immigration violations."

The "rule of law" framing for immigration works well for
anti-immigration groups since it allows them to chart a course that is
ostensibly separate from the nativists, economic populists, and white
supremacists that make up much of the base of the movement. It's a
message derived historically and fundamentally on liberal principles
of a government by laws rather than by royalty, aristocrats, and other

Another part of Chertoff's legacy is his straight-out acknowledgement
that immigration policy is flawed, but until there is a new, more
comprehensive law in place, DHS has a mandate to enforce existing law.

Napolitano is by no means an anti-immigration hardliner. However, as a
lawyer, former federal prosecutor, and a governor who has insisted on
more border control and has stood behind a tough employer-sanctions
law, she will fit easily into the "rule of law" framework for
directing ICE and CBP operations.

It's a framework that has already been adopted by the Democratic Party
and to a certain extent by Obama.

When asked by CBS' Katie Couric about his illegal immigrant aunt,
Obama appealed to this framework as one that should prevail in
immigration policy.

' Couric: "You have an aunt who's been living in this country
apparently illegally, and your campaign says any and all appropriate
laws should be followed. So would you support her being deported to

' Sen. Obama: "If she is violating laws, those laws have to be obeyed.
We're a nation of laws. Obviously that doesn't lessen my concern for
her. I haven't been able to be in touch with her. But I'm a strong
believer you have to obey the law."'

During the campaign, Obama repeatedly said, as did Hillary Clinton,
that, with regard to the immigration issue, America can be "both a
nation of immigrants and a nation of laws."

Acknowledging that the immigration restrictionists have dominated the
immigration debate, the Democratic Party and its allies have over the
past year desperately sought to reframe the immigration crisis while
at the same time attracting the allegiance of Latinos and "New
Americans." Their new language about immigration policy—"nation of
laws," "rule of law," and "required legal status"—started popping up
everywhere, from the pronouncements of immigrant-rights groups to the
Democratic Party platform.

Instead of promising an "earned path to citizenship," as it has in the
past, the party stated that illegal immigrants will be required to
"get right with the law."

"For the millions living here illegally but otherwise playing by the
rules, we must require them to come out of the shadows and get right
with the law," states the party's platform. "We support a system that
requires undocumented immigrants who are in good standing to pay a
fine, pay taxes, learn English, and go to the back of the line for the
opportunity to become citizens."

As governor, Napolitano has attempted to navigate between the vocal
and highly-organized anti-immigrant forces on one side and the
business community and humanitarian/human rights groups on the other.
While realistic about the impossibility of completely sealing the
border, she has called for more border patrol agents, deployed the
state's National Guard, and supported increased federal-state
cooperation in immigration law enforcement, albeit at the same time
opposing the immigrant crackdown launched by the notorious
immigrant-bashing Maricopa County Sheriff Joe Arpaio and vetoing
measures that would have denied social services to illegal immigrants.

All the while, Napolitano has complained that the responsibility for
addressing immigration-related issues lies with the federal
government. She says she supported a tough legalization law, and, like
Chertoff, has been an outspoken advocate of temporary and guestworker

As Homeland Security secretary, Napolitano can be expected to follow
the lead of Chertoff and the Democratic Party in insisting that
current immigration laws be strictly enforced; as ICE and CBP
routinely put it, "to reassert the rule of law" in immigration and
border control. In the absence of a reform law that provides a path to
citizenship for the country's 11 million illegal immigrants, the "rule
of law" route forward will be a victory for those calling for
restrictive policies on legal and illegal immigration.

Like Chertoff, she will have no power to shepherd through Congress a
new immigration policy. What she can do, however, is reject the
practice of her predecessor of using the strict enforcement of
immigration law as a deterrence strategy. Through highly publicized
raids on worksites and through the shackling and imprisonment of
immigrants, the DHS has sought to use the law to terrorize existing
immigrant communities as part of a strategy to deter future illegal
immigration. The consequences have been violations of human rights,
family separation, and sowing fear in entire communities.

Napolitano can also use her position as a bully pulpit to explain that
the rule of law is not an end goal. It's a path to justice. America is
both a nation of laws and one where justice prevails—or it should be.

Tom Barry directs the TransBorder Project of the Americas Policy
Program ( at the Center for International
Policy in Washington, DC.

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