Paper Title

-- By JoshuaHochman - 26 Feb 2010

I don't have an exact quote to start with, but Professor Moglen said something early in the semester that I feel is a good undercurrent for wherever I go with my first paper, as well as for my budding identity as a law school student, lawyer, and adult. There are people smarter than me, more deserving of my seat in his classroom. There are people on other continents that, given the circumstances I was given, would do a better job on this paper, on my piss-poor moot court brief, on last semester’s civil procedure exam...

My assertion here is that a misplaced sense of entitlement resulting from an assumed national identity plagues contemporary society by confusing responsibilities to our fellow man. My paper will utilize for the sake of example the context of immigration law enforcement in the United States.

But the example wrenches the idea out of its context. I didn't say that everyone who is smarter than you are lives outside the boundaries of the United States, or is a non-citizen. Yet once you've taken the step you take here, national identity and the State's power over its borders suddenly become important elements in the analysis, though they have nothing directly to do with the subject.

Section I - The Insincerity of Identity and the Law

Genetics and religion aside, I don’t believe a rational explanation exists for why I’m here and some other kid with a higher I.Q. and a stronger attention span is farming or fighting or dying a world away.

I don't understand this sentence. Are genetics and religion rational explanations, and there are no others? Are genetics and religion explanations at all? Do you mean genetics explains where you are because you are the genetic descendant of someone else who provided heritable advantages? What does religion explain? That God wanted you instead of some other people to have your advantages?

What I do believe, however, is that the ‘American’ identity—the one linked to my rights, residence, and quadrennial hockey interest—is secondary to my identity as a man who wants to live righteously.

Subsection A - The Border

Immigrants are different because of where they were born—on the other side of the border.

But some citizens are born on the other side of the border, and grow up there. Are they then "different" in the same way that immigrants are different? If so, then the test of difference between immigrants and citizens won't work very well; while, if not, the whole idea of the difference collapses back into white supremacy.

Border’s originate from natural land formations, wars, conquests and/or agreements whereby two or more groups of people decide that they are different in some unresolvable respect, and they therefore they should live apart.

Surely you're historically literate enough to recognize that no one ever asks the people who live along the borders, and that they play no significant role in any sovereign's choice?

Easily enough, these separated groups cultivate divergent cultures, languages, customs, political traditions, and so on.

Are you sure? The line between the French and German languages in Europe has been mostly unchanged in location for a thousand years, but the borders of the states and dynastic entities have rolled over and back dozens of times, smartly.

Subsub 1 - Historical Relevance

Borders endure as long as they are respected. Do ancient military accords really matter when nobody remembers the conditions under which they were signed in the first place? Even in situations where border-creation is well documented, the wars of past generations do not seem as pressing as contemporary struggles across the world.

Excuse me? That depends who you are and how you are situated with respect to "contemporary struggles across the world." That's not how Partition is viewed between India and Pakistan, or the events of 1947, 1956, 1967, 1973, etc. are seen in the arc from Damascus to Cairo. It might be more accurate to say that the wars of past generations are more pressing than contemporary events.

Subsub 2 - Practical Relevance

The practical relevance of the border is that it’s a protective mechanism. Without going into the intricacies of political philosophy, a government is (assumed to be) charged with protecting the welfare of its citizenry, and undertakes. Limiting the size of the citizenry makes it easier for a government to fulfill its responsibilities to its people.

This is impractical, whether relevant or not. Until the day before yesterday, no state in the world thought that governments should inhibit population growth. Even the infinitesimal proportion of governments concerned with fulfilling their responsibilities didn't do so by limiting the size of the army. The United States, in particular, has been a beneficiary of constant demographic expansion.

Subsection B - The Human Element

The practical relevance of borders is a much stronger defense than any historical line of reasoning, but I do not feel it is impervious to challenge. Specifically, a construction of governmental responsibility that originates outside of a citizen’s mentality—prioritizing the more ‘human sense’ of a government’s purpose being to humanity in general, not just its citizenry—provides a challenge to border mechanics that, while incredibly idealistic, makes much more sense in light of Professor Moglen’s point.

This needs to be made much clearer. I don't know what it means.

Subsub 1 - Borders are Irrelevant in the Human Element

Assuming that I am not incorrect in concluding that no explanation exists for my life-force materializing on this side of the border, then it follows that I could just as easily have been born on that side. My entitlement to American rights and the protections of the American government is therefore the result of randomness.

Protecting individual rights is important, but a forward-thinking government needs to take into consideration a broader amalgamation of environmental, public health, scientific, and technological concerns to make sure life on earth endures and people have a place to exercise their rights. Although it seems obvious to us, the actions of one may affect the rest of the world. When considering resource management and environmental destruction, it appears to be more ideal for one body of govern as many individuals as possible.

Your "of" is supposed to be "to," I suppose. But this is merely the same basic political mistake again: that only the centralization of authority enables sustainable decision-making. This isn't established, it's just uncritically supposed.

Section II - A Misguided Focus Within U.S. Immigration Law

I am aware that, for some, the above points may be difficult or impossible to see as adaptable. Too much judgment is clouded by a history of entitlement—derived from religion, race, socioeconomic class, etc.—to go anywhere productive, and of course, all governmental platforms are inherently flawed and self-serving because of the (presumably) flawed and self-serving individuals that run them. These extremes do not reflect my exact beliefs, but I do see their logic.

I think you mean "capable of adoption" rather than "adaptable." I don't know why judgment clouded by history of entitlement can't go anywhere productive; my experience is that clouded judgment can be found just about everywhere, so either it is produced comprehensively in situ or it can move just fine. I thought the point of the rule of law was that it made government platforms less flawed and self-serving than the individuals that run them (isn't this "the government of laws and not of men"?)

However, shifting the focus of immigration enforcement away from a platform based on border-protection or identity-driven exclusion, even subtlety, would help resolve several problems with the current U.S. immigration framework.

I think you mean "subtly" rather than "subtlety." A spell-checker seems to be substituting for actual copy-editing. This is a capital offense. Couldn't you have left the platform altogether out here? How about: "We could solve some of our problems with immigration enforcement if we gave up trying to stop people at the border and deport them after they arrive"? That seems to be what you meant by the existing sentence, which is a bit longer and incomparably uglier.

Subsection A - Workplace Enforcement is a Flawed Approach

In 1986, Congress enacted the most recent comprehensive immigration law, the Immigration Reform and Control Act (IRCA). With IRCA, it became the official policy of the federal government to enlist U.S. employers to enforce immigration law by verifying worker identity and eligibility at the point of hire. The logic underlying workplace enforcement is that, since a major motivator for migrants in coming to America is the prospect of a more favorable employment situation, that eliminating work opportunities would thus decrease the flow of migrants.

No. No sane government actually attempts to eliminate tax payers. The logic underlying workplace enforcement is the unproven conviction that immigrants without working papers displace citizen workers, and the entirely obvious proposition that increasing the supply of labor drives down the wages of unskilled and semi-skilled workers.

Subsub 1 - The Prevailing Tradition

Workplace history has generally witnessed employers taking advantage of workers. The balance of power traditionally tips in favor of employers, with workers fighting for collective bargaining and occupational safety rights following patterned abuses. Even after these regulations come to passage, the law shifts to a push-pull of fitting individuals into different categories (employee, independent contractor, manager, etc.) in order to deprive workers of certain privileges. This dynamic is preserved when an employer hires a migrant worker. Making it more difficult to find work once the trip has been made forces migrant workers to accept more oppressive, illicit jobs.

Why not just say that employers like vulnerable workers who are easy to underpay and exploit because they are afraid of government and law enforcement authorities?

Subsub 2 - Conflicting Authority and Identity Fraud

Furthermore, IRCA’s approach has given rise in recent years to an influx of state and municipal ordinances whereby local legislators have undertaken immigration enforcement initiatives under the guise of employment regulations. Besides presenting preemption questions for courts, an inconsistent web of local immigration policies further marginalizes those individuals in the thoughest situations (as well as creating a confusing enforcement protocol for employers). Additionally, IRCA created a market for fraudulent identity documentation.

Now there's a make-weight argument if ever I heard one. So? Raising the legal drinking age to 21 does the same thing. And?

Subsection B - Shifting the Focus

One fundamental reason why workplace enforcement doesn’t work is because it relies on identification of individual parties—a task that is exceedingly difficult from the federal or even state level. Workplace identification as a step towards deportation is less helpful to everyone than integrative programming in the vein of hiring centers, temporary work visa programs, medical clinics, etc.

The latter measures are only comparable if you don't want to put "illegal" immigrants out of the country. To such people, deportation is helpful, and every step towards deportation is therefore helpful too, while all the "midnight basketball" in the world is unhelpful because it leaves the "illegal" immigrants here. If you want to contest that point of view you must meet it directly, and if you don't want to contest that point of view you can't pretend to be persuading anybody.

Subsub 1 - Misreading Integrative Measures

An extremely common argument against integrative measures is that tax dollars are not charity for non-taxpaying citizens. However, are these dollars better spent striving to accommodate, understand, and manage a population that is already here or on the endless cycle of arrest, detain, and deport. While not an final solution, it seems to me that the former is a much more productive use of public attention than the latter.

Surely, the avoidance of the phrase "final solution" would not have been difficult, and the benefit would be clear.

It seems to me the essay has two basic problems: if it is about immigration law it should not begin with a point tangent to its outer curves, and it should not be presenting an argument against individual enforcement without a clear answer for those who believe that people "jumping the line" should be excluded. If, on the other hand, immigration law is an "example" only, as the second paragraph states, the discussion is at once too technical and too inconclusive to establish any proposition that could be played back into your original enclosing argument.