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In recent weeks, the story of the wife of a U.S. Marine who was forced to leave the country because she was an illegal alien tugged at our collective heartstrings. Stories like this give even the strongest Trump supporters pause. While this instinctive sympathy for the Marine’s plight shows that we are human, it doesn’t change the fact that cold-hearted law enforcement is good policy.
It is true that the administration could keep an eye out for such special cases and intervene to avoid having them stir up controversy and second guessing. Doing so would be a mistake, however. These hard stories can be helpful, even if the conventional opinion is that they show how “mean” Trump’s administration is. The ruthlessness involved in absolute unbiased enforcement of the laws has a certain appeal.
Perhaps it is appealing because it runs contrary to the “compassionate conservatism” that, not least because of its arbitrary application, has been so destructive.
Perhaps the appeal stems from the way it thumbs the nose at the Left, since they will always present enforcing the laws as “mean.”
Perhaps it is that these stories seem to convey that Trump is actually serious and aggressive about the standing for the rule of law and protecting American citizens, no matter the conventional opinion.
Or perhaps it is because the only other options are not to enforce the laws or to abuse the notion of discretion. Simply ignoring the laws has been politically expedient in the past. So has twisting discretion. We’ve seen before, with the Deferred Action for Childhood Arrivals (DACA) program, when President Obama stretched executive discretion into something far beyond what it should be—something that looked like law making by executive fiat, not the faithful execution of the laws.
But responding in sympathy respecting extreme cases is not the same as a blanket DACA policy, you might say. True. One might add that it is good that the executive has some latitude to determine the best way to enforce the law, and this includes the discretion to overlook some infractions in some instances for extreme circumstances. This is also true.
Differences in Punishment, Not Enforcement
But sympathy for criminals does not seem like a good enough reason to overlook a crime.
Were the president to avoid enforcing the law even though its application is clear simply because the story involved is sad, it is hard see how he would enforce any laws. Is it any less sad to have to separate a wife and mother from her family by sending her to jail if she commits murder? Would the fact that her husband is a war veteran matter in that case?
One might say murder is far worse than being an illegal immigrant. But being an illegal alien is still a crime. The difference between the two crimes should be found in the punishment not in the enforcement, and it is. Deportation is not the same as life in prison and there is still a process by which the spouse can apply for and get legal entry. The idea that sympathy is warranted in this case because it only involves immigration is more likely to undermine immigration law than to support it. Reverence for the laws generally is important, and reverence for our immigration laws in particular is desperately needed. Failing to respect the law is failing to respect the sovereign nature of the people of, for, and by whom those laws are made.
Immigration law is the great question of the day precisely because it bears directly on this question of sovereignty and it has been ignored and avoided for too long. Our circumstances require that the President make it a priority. Trump said he would, we elected him to do it, and he is doing it.
Mere Sympathy is Dangerous to the Rule of Law
This leads to why the ruthless enforcement of the law, regardless of how sympathetic the circumstances, is so necessary and good. In ignoring the sadness of the story, Trump is supporting something that almost entirely has been lost: the rule of law.
The separation of powers and the question of who makes the law is another important point in this. President Trump and his administration stick to this point well: Congress makes the laws and it is Trump’s job to enforce them even if he doesn’t like them. He rightly places the executive branch under the law, not above it. Anything else would make all of this the rule of Trump, not the rule of law.
So, although an executive has discretion in enforcing the law, acting out of mere sympathy has the real potential to threaten the rule of law and elevate the president above it.
The authors of the Constitution warned us about factions “united and actuated by some common impulse of passion . . . adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Illegal immigration is adverse both to the rights of other citizens and to the interests of the community.
Trump’s resistance to acting out of sympathy even when our human impulse is to want him to is encouraging, for it shows that he takes seriously the charge that “the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.”
The strict enforcement of the laws as written, even in the face of emotional circumstances, is what keeps us free. Thomas More says it best in A Man for All Seasons when his son-in-law, driven by passion, wants “cut down the laws” to stop evil. Moore responds with a fiery speech, saying, “this country is planted thick with laws, from coast to coast, man’s laws, not God’s, and if you cut them down . . . do you really think you could stand upright in the winds that blow then?”
Ultimately, sympathy and compassion come from the same emotional impulse as tyrannical desires, and not enforcing the law for their sake is as likely to result in more trouble for the ones we love than good.
In different circumstances, when there is already a strong reverence for the rule of law, perhaps the executive could err on the side of more discretion. But in times like ours, we all benefit from a dispassionate and correct enforcement of the law. This can feel mean in some cases, but lawlessness is even meaner. The tyranny of arbitrary enforcement of the law is even worse. That Trump understands this is both good politics for him and good politics for us.
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