I Was Just Following Orders, Judge

credit:  joseantoniovargas.com

credit: joseantoniovargas.com

Immigration is one of the prime issues of our time and has only been made more prominent by the humanitarian crisis of foreign children, many unaccompanied, pouring over our southern border in the last few years. I have been struck by the frankly ugly passions evoked by this crisis. My blogging colleague, Pied Type, recently posted on the matter and expressed outrage that the avowed undocumented Jose Vargas, a Pulitzer prizewinning journalist at the Washington Post, has been able to “flaunt” his illegal status for years without being shipped back to the Philippines, which is where he was before his parents brought him here at age 12. She feels he should be made an example of as a lesson to other lawbreakers.

The United States is a nation of laws and I too believe in enforcing those laws, but the fact that Vargas declared his illegal status in Time Magazine’s cover story two years ago and still hasn’t been prosecuted is symptomatic of the political divide over the issue. In general it seems that conservatives, even the George W. Bush compassionate kind, favor strict adherence to the law, regardless of mitigating circumstances such as whether a child has legal relatives here or, as in Vargas’ case, whether they have proved themselves to worthy and valuable citizens. Progressives generally seem to believe that such mitigation is proper. One thing I hope we can all agree on is that the immigration law as it stands needs serious revision. Such a revised law was passed in the Senate with a bipartisan 68 – 32 vote, but it has languished in the GOP controlled House where the leadership has refused to bring it up for a vote, ostensibly because its approval would be considered a Democrat victory.

I submit that it is facile to dismiss Vargas’ case as one of simple illegality. I consider myself a law-abiding citizen but in cases like this I believe the law can and should be bent on the side of national self-interest, if not humanity. Does that make me a criminal? I don’t think so. The laws of the land are always subject to interpretation, there has always been wiggle-room. Prosecutors have always had broad latitude in bringing charges, for example, and also to interpret those laws in novel ways, as they have in combatting organized crime. To do otherwise would be a mistake – laws don’t come down from God etched in stone tablets, but from lawmakers who are human and who often don’t even read everything their staffs add to the fine print. The law is a process, one that involves human beings (judges) and, well, judgement.  (In researching this post I did come across an article that does mention prosecutorial discretion on the part of ICE in deportations, something I hadn’t known.  Somebody on some congressional staff must have had a good day to think of that.  The link is at the end of the post.)

Another example of reason over strict legality is, strangely enough, to be found in the organization and management of the United States’ military. While an enlisted person’s oath includes a promise to obey the orders of those appointed over them, an officer’s oath of office omits that expression and instead avows to “support and defend” the Constitution of the United States. Why the difference? It can only be that leaders are expected to place judgement, within context, above blind adherence to orders. In fact, one could make a good case that this nation was founded by a cadre of lawbreakers who placed principle above (King George’s) written word. One might also consider how many crimes agains humanity have been justified by the need to “follow orders”?

Jose Vargas is an immigration activist. He was detained when he visited the Texas border and was ordered to attend a future hearing on his citizenship status. It will be interesting to see if we will deport this exceptionally talented man who has never known another country since the age of 12. It seems stupid, but if the courts do, maybe it will help move the GOP in the House to do what’s right and pass an immigration reform bill. But if Vargas is deported, it ought not be a cause for celebration by any citizen. I personally will be embarrassed for our country.

About Jim Wheeler

U. S. Naval Academy, BS, Engineering, 1959; Naval line officer and submariner, 1959 -1981, Commander, USN; The George Washington U., MSA, Management Eng.; Aerospace Engineer, 1981-1999; Resident Gadfly, 1999 - present. Political affiliation: Democratic.
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17 Responses to I Was Just Following Orders, Judge

  1. PiedType says:

    Actually, in case folks want to read it, Vargas revealed his immigration status in a New York Times article that was published a year before the Time article. You mention prosecutorial discretion. Don’t most judges in most US courts have that discretion? At least, that’s always been my impression. It will be interesting to see what’s decided in Vargas’s case, and why, and what the public reaction will be.


    • Jim Wheeler says:

      @ PT,

      Prosecutorial discretion (rolls off the tongue nicely, doesn’t it?) is not something I know a lot about. I did recently read an editorial column by a judge who pressed the argument that her job was to uphold the law regardless of her personal opinions and politics. I’m not sure I believed her. Then too, there seem to be a lot of mandatory sentencing laws across the 50 states. Seems like that would pretty much take the judge out of the equation, and for that reason, I’m against the concept.


  2. Jim in IA says:

    Well said. This situation demands that our leaders bring their best and most humanitarian ideas to the table in order to work out fair ways to help. It is a complex problem, far more complex than most people realize.

    Vargas is an exceptional person. I’ve heard him speak several times in interviews. He is exactly the kind of person our country needs. He is smart, eloquent, brave, honest, and fair.


    • Jim Wheeler says:

      @ Jim in IA,

      Vargas is an exceptional person. I’ve heard him speak several times in interviews. He is exactly the kind of person our country needs. He is smart, eloquent, brave, honest, and fair.

      I had the same impression after reading his essay in Time two years ago. I think any English professor would have given it an A+, not just for composition but for research and cogency in the full sense of the word. One has to wonder, how many other nuggets of budding talent might be hidden among those scared little faces flooding across the border?


  3. Jeff Little says:

    Good essay. I have to admit I am confused by the phrase “George W. Bush compassionate kind [of conservative]”. I never found him to have a significant amount of compassion.

    I would suggest that immigration prevention should be called what it is. Protectionism. Unfortunately many of the arguments for protectionism do not apply to immigration, but the central concept is, if we allow totally free borders then those that do a bad job of running their economy are allowed to drag our economy down with them.

    What is amazing about the whole labor protectionism through borders movement is its concentration on the right. On the left you see people saying that we should care about immigrants because we need to have compassion, which is a good argument from a human perspective, but a meaningless one from an economic perspective. Some argue that they have become part of our economy, but it is usually not stressed and never developed. On the right you have the argument that allowing people across the border is bad economics. This is quite amusing when you realize that they don’t want to lose their job to a foreigner who comes here, but they have no problem with losing their job to foreigners who stay home while the factories leave the US and go to them.

    What I think both sides miss is that protectionism shouldn’t be thought of in terms of preventing “them” from getting what’s “ours”. This oversimplification has created a lot of wrong answers and naive policies. Free trade proponents like to suggest that when trade is restricted too much, it can actually hurt people on both sides of the border by increasing efficiency. The opposite is also true. Too much free trade can also hurt people on both sides of the border because efficiency correlates highly with the ability to create inequality. (I actually think of them as labels for two parts of the same process.) Just as preferring state taxes to national taxes gives extra negotiating leverage to Exon while placing an increased tax burden on Joe the Plumber (because of the porous state borders), preferring an open national border hurts regional manufacturers and niche producers in both countries while consolidating production in a small number of hands who have the ultimate power in wage negotiations. As bad as NAFTA has been for the US, it has been much worse for Mexico, which is beginning to resemble the world of Mad Max in places.

    Every company requires two things. 1) the raw goods and labor to make its product (or perform its service), and 2) the customers who will buy their product and services. The great irony of economics is, the better companies get in aggregate at #1, the fewer customers there are in aggregate to partake in this production. Protectionism by its nature gives companies a sub-optimal #1, but it allows an environment where consumption and production can be in balance, which avoids an even more sub-optimal #1 driven by a decline in #2.

    Labor protectionism in the form of border security is inferior in many ways because you lose access to both any skills labor would bring and the market they provide compared with, for example, general tariffs. (As a side note, I had trouble remembering whether it was “tariffs” or “tarriffs” until I decided that a Pirate stole the extra “arrr”)


    • Jim Wheeler says:

      @ Jeff Little,

      My mention of “compassionate conservative” was meant as sarcasm. I too found compassion lacking in W, but only in his policies. I think he and many in his party are decent human beings who demonstrate compassion and empathy in their personal lives, but have chosen to eschew that philosophy in politics. In that sense, I submit, embracing a political ethos is similar to embracing a religion. One takes it on faith and confirmation bias applies thereafter.

      The economics of the immigration puzzle bother me too. The instinct of many is to fear immigrants. They are culturally different. They have disease, they’ll take our jobs, they’ll drag down our economy by sucking up social services while contributing nothing. But these are false fears for the most part. Immigrants are needed here as much as ever to do many jobs Americans don’t want to do. We need people to do physical labor, pick the crops, empty the bed pans, clean the motel rooms, pluck the chickens, and yes, enlist in the armed forces. We also need them to buy stuff – a successful economy is a growing economy. Duh. The birth rate in America would be at or below replacement except for immigration, and just at a time when the baby boomers are retiring. The GOP is being dangerously dumb about this.

      Thanks for contributing, Jeff.


  4. Jim,

    Great observations and comments on our stupid immigration laws.

    However, I do question whether the U.S. is a nation of laws. Seems to me it is a nation of only the laws we wish to enforce. We have laws against torture, but it’s not enforced. We also have laws against fraud, but if you are an executive with a too-big-to-fail financial institution, it’s not enforced either. We routinely violate international law, especially the Geneva Conventions. And you make the point clearly on this Jose Vargas fellow that our laws are elastic.

    I could go on, but you get the point. It’s much easier to go after the low hanging fruit — children entering the country illegally, practically climbing right into a border patrol bus, which is then plastered all over the evening news, cable news, internet news and social media.

    But the consideration here is not a legal one, nor a moral one, it is plainly a political one. These Hispanic kids have put both sides of the isle in a double bind. I would ordinarily be overjoyed to see them struggle with such a dilemma, but this time we’re talking about children, who, if returned to their homes, would, more than likely, be put back in harm’s way.

    All of this would be unnecessary if policy decisions made by government officials, especially in the federal government, followed the overarching principle to “DO NO HARM!”
    If that doesn’t work, then maybe our elected officials should reach back almost 4,000 years to resurrect one of Hammurabi’s laws, “The first duty of government is to protect the powerless from the powerful.”

    Hopefully, an investigative reporter or two will follow up on the deported kids to see how many of them get murdered over the next few months. Let’s see how that plays out in November.



    • Jim Wheeler says:

      @ Herb Van Fleet,

      Great points, Herb. I agree, the immigration issue is all about politics. We are on a downward trajectory and I blame it on single-issue passions and gerrymandering wherein politicians are emboldened to ignore the minorities in their constituencies. I’m not sure if the situation is reversible – it may have gone past its tipping point. In that context I particularly like your quote from Hammurabi:

      The first duty of government is to protect the powerless from the powerful.

      If we lose that, we are really in trouble. As always, I greatly appreciate your incisive comments.


  5. Just a question, I don’t know the answer, and I don’t know if it is even a reasonable question, but I just wonder … How much $ do we, the USA, spend on border control, considering the fencing, the harm to wildlife caused by that fencing, the salaries of the border patrols, the .. .I don’t even know what else. And what if we took that same $ and instead, “gave” it to those countries … I put “gave” in quotes because I wonder if, morally, it’s already theirs anyway — thinking of the harm we have done to those countries via NAFTA, etc….. Just pondering … how much do we spend to keep them out, and what if we used that amount, instead, to help their economies.


    • Jim Wheeler says:

      @ Helen,

      In questioning whether it might be more economical to be proactive on immigration than defensive, I think you are going right to the heart of the matter. It occurs to me that we have a recent historical model of this, the Berlin wall and the sad story of East Germany. They were defensive about it and we all know the result. However, and there’s always a however, the problem is one of economics and that means its neither simple nor easy.

      Clearly, nation-building is not the answer. We have confirmed that disastrously with Iraq and Afghanistan. And yet, we are hopelessly hooked on cheap good from the global economy and that is one more reason that we can’t embrace isolationism. I see no alternative to simply encouraging the growth of sympathetic and benign governments in the world, and in some cases that might mean non-democratic governments – whatever fits the situation. Egypt would be an example. I think the problem is like the poser: how do you eat an elephant? Answer: one bite at a time. And one of those bites, I submit, is to adopt a sane immigration policy. We sure don’t have one now.

      Thanks for chiming in, Helen. 🙂


    • Jim Wheeler says:

      By the way, Helen, speaking of the fiscal inanity of Republican policies, I came across an astounding NYT article on just how nutty our laws are. By cleaning up the mess created by mandatory sentencing laws we could save enormous piles of money. It’s mind boggling.


  6. aFrankAngle says:

    A lot of practical in your thoughts … so many thanks for facing this issue from a practical viewpoint. Yes … it’s complicated … but something reasonable can be done … and that’s why Congress can’t do it.


    • Jim Wheeler says:

      @ aFrank,

      Practical huh? I’m not sure what you mean by that, Frank, but I’ll tell you what: I know impractical when I read about it. An AP article in this mornings paper reports that presidential wannabe and Texas governor Rick Perry has decided the answer to the child and mommy immigration problem is to call out the Texas National Guard on them. At a cost of $12 million a month yet! A little cost analysis is in order here. (It’s the same issue that Helen raised. What fun!) Internet research shows the bottom end of the price chart for sending a kid to summer camp, including room, board, fees and staffing, is about $250 a week (let’s say $1,000 a month). So for the same cost of calling up the troops we could accommodate 12,000 kids and mommies. But this is apparently too simple for Mr. Oops. He will spend the $12 million and the taxpayers will still have to accommodate the immigrants. But it’s even worse than that because the National Guard’s mission doesn’t even make sense. It’s said to be “referring and deterring”, whatever that means and never mind that the immigrants come here looking for the border patrol anyway.

      I think that Mr. Perry is all hat and no cattle, but I do hope he lasts through the GOP primaries. Since Jay Leno retired we need all the humor we can get.


  7. Jim,

    I don’t know how I missed this essay, but I’m glad I found it. Bravo! Quite well argued and expressed, my friend.



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