A constitutional challenge to immigration quotas

Millions of immigrants are never accused of any action which violates any law, yet they are routinely sentenced to worse than jail. Depriving people of liberty without regard to their actions or qualifications violates the 5th and 14th Amendments.

By Dave Leach

Our laws do not charge immigrant babies with legal responsibility for breaking our laws by letting their parents bring them here. Plyler v. Doe pointed out, “it is a basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.” “Dreamers” are only one of seven categories of immigrants who are arrested, prosecuted, and deported who are innocent of any action which violates any of our laws.


Legal arguments designed for almost any deportation hearing are summarized in this video in English and Spanish. After that, they are discussed with Des Moines immigration attorney Michael Said. The text of the summary in Spanish is posted at http://saltshaker.us/hispanichope/soluciones/

Even those who violate our immigration laws can’t constitutionally be charged, if the laws they violated are themselves unconstitutional. Depriving innocent people of their liberty, because our laws place a numerical limit on how many of the people living among us may have Freedom, may be justified by a national emergency. But claims that our lottery on liberty serves some “compelling government interest”, and does not instead create a dangerous “cost to the nation”, has to do more than sound good. It has to survive “strict scrutiny”. Qualified evidence and expert witnesses have to identify such an emergency, prove it is “compelling”, and prove that immigration quotas restrict liberty by the “least restrictive means” possible.

This claim can’t survive such a courtroom examination, because no one who believes it is qualified to testify in court. Those who make this claim in conservative media and in campaign speeches base this claim primarily on their assumptions about the economic impact of immigration on America and on individual Americans, but none of them have a degree in economics. Neither are they qualified in the other areas where they insist immigration harms America. Courts don’t allow witnesses to testify beyond what they have personally observed, unless they have university credentials in their subject, qualifying them as “expert witnesses”. Undocumented Economists would not be allowed to talk. And credentialed economists are virtually unanimous in a positive, or at worst neutral, view of the benefits of as much more legal immigration as we will allow.

This is how courts would process a constitutional challenge to immigration quotas.

This is how courts would process a constitutional challenge to immigration quotas.

It is no “rule of law” to make laws impossible to obey from which we exempt ourselves, that we apply to only one group of the human beings among us, whose liberties we then justify taking away because they “broke our laws”. That is neither “due process”, nor “equal protection of the laws”, nor just, nor constitutional. And contrary to the conclusion of the king and the crowd in “The Emperor’s Clothes” by Hans Christian Andersen, the parade really doesn’t have to go on.

Historical perspective: the reason for the 14th Amendment.

The 13th Amendment, ratified in 1866, outlawed slavery, except as punishment for a crime. So Southern states simply passed laws which everyone violates, and wrote them to apply only to blacks. So the 14th Amendment was ratified in 1868 to outlaw unequal laws that put others in jail for doing what we do freely. The 14th Amendment requires “equal protection of the laws”. It protects everyone to whom our laws apply – everyone under the “jurisdiction” of our laws – everyone who can be arrested for violating them. Because of the 14th Amendment, it is unconstitutional for Congress to create a lottery that would grant Freedom of Religion to only 10% of the people in our land, and make the other 90% go to the state church. All 100% must be allowed Freedom of Religion. Today, not in 40 years.

If freedom for only 10%, after decades of waiting and “fees”, qualified as “equal protection of the laws”, we would still have slavery, because even before the Civil War, about 10% of blacks in southern states managed to eventually find or buy a “pathway to freedom”. Today, our immigration quotas provide a “pathway” to liberty for about 10% of undocumented immigrants, though it is very rocky, unpredictable, expensive, and decades long. These quotas are no more constitutional than any other lottery our descendants might devise of the fundamental, unalienable, God-given, Constitutional rights of any group of people under the jurisdiction of our laws.

The preceding legal arguments are a summary of the legal brief at www.Saltshaker.US/Deportation-Brief.pdf which is designed to turn around almost any deportation proceeding.

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