The Rube Goldberg immigration bill

In our piece, A law that mocks itself, we explained that the new immigration bill is dishonest in the sense that it creates a reasonable expectation on the part of illegal immigrants that they will be able to line up to have their tickets punched to be here legally, but creates no practical implementation mechanisms for actually dealing with the implications of that gargantuan task. (Consider this: the number of people who need to be processed is at least 25x the size of the US Army, and think of all the bureaucracy required to deal with them.) Hugh Hewitt and his law professor guests say that the courts will wind up making many of the rules; here they discuss but one tiny matter among many, how a Z-visa might be revoked:

[JE] When I give a property interest, or something that looks like a property interest, an entitlement, and I define the scope of this entitlement by a statute that includes certain limited due process protections, not the full set of protections that we would give to traditional property before I take it away from you, the Court said, severed the property interest that was granted by the statute from the procedures that went along with it, and now created a property interest standing alone, and said all of the due process protections of the 5th Amendment or the 14th Amendment apply. And that means that once you gave an interest to these people, the limited Z visa or what have you, the Court would determine what process was due, not the statute….

[HH] What happens the day after the bill passes? And gentlemen, the triggers are in the bill, but section 601, treatment of applicants, reads this way. I want to make sure you hear it. “An alien who files application for Z non-immigrant status shall upon submission of any evidence required under paragraphs F and G, and after the Secretary has conducted appropriate background checks to include name and fingerprint checks, that have not by the end of the next business day produced information rendering the applicant ineligible, shall be A) granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application, B) may, in the Secretary’s discretion receive advance permission to reenter the United States, C) may not be detained for immigration purposes determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alien is determined to be ineligible for Z non-immigration status.” Erwin, what rights does that endow upon, give to the Z applicant?…

[EC] I think it would require some form of due process before taking that status away….the leading Supreme Court case, Matthews V. Eldridge, says that in deciding what procedures are requires, a court’s to balance the importance of the interest of the individual, the ability of hearings to lead to more accurate decisions, and also the government’s interest, including administrative efficiency. I think courts would approve some form of deportation hearing that is relatively minimal in terms of procedure, but there has to be some procedure, and I think that’s a good thing, not a bad thing…

[JE] the scope of the hearing would not need to be a full-fledged trial that we have for other kind of loss of interest under the Constitution. But it would not be defined by what the statute sets out with minimal things. It will be defined by the courts, and it will be balanced, as Erwin has said, by the relative weight to be given to the interest, and the government’s need in efficiency. And the courts have opened the door for things like well, immigration law and eligibility is a very complicated thing. Will the courts require that in order for there to be fair due process, then in fact every one of these Z visa holders be afforded an attorney paid for by taxpayers before they can be deported? That’s certainly within the realm of possibility. Will there be a right to an appeal? And a stay of the lower court’s judgment before the appeal, or the hearing officer’s judgment before the appeal runs, given how significant the weight is if they’re going to be returned to a home country that is poor, and may be lots of claims of political persecution for having come here in the first place, or what have you. All of these things will now be decided by the courts for everyone, and it will be decided the day after this legislation takes effect…

[HH] I just think as expecting good lawyers, as the community of lawyers are on behalf of people not in the country legally over the years have become, they will seize on 601H, subparagraphs 1C, and say they have to be determined to be ineligible for Z non-immigrant status. We can’t even make that conclusion until the regulations for Z non-immigrant status are produced and ratified by a court. And so I think the entire illegal population becomes non-deportable the day after the law passes for a long period of time.

This is an unwise, unsustainable, dragged-out, unfair and chaotic way to deal with 12 or 20 million people; therefore, we believe that the situation will devolve into a blanket amnesty pretty quickly, as these unwieldy procedures swamp the courts and render incoherent many provisions of the legislation. If Congress wants amnesty, it should pass amnesty. It should not hide amnesty in a Rube Goldberg machine that clearly will not function in the real world. We find ourselves having lost respect for all those who back the intellectually dishonest mess that is the Senate bill.

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