The immigration laws provide a case history of this.
In April, 2001, President Bush’s press secretary issued a statement about the nomination of James W. Ziglar to the post of Commissioner of Immigration and Naturalization. According to the press release, Bush had praised Ziglar in the following terms: “Jim Ziglar is an experienced manager who will work diligently to reform the INS. He has strong relationships with Republicans and Democrats in the Congress and has worked in both the public and private sectors. His history of overseeing large organizations and tackling management challenges makes Jim an excellent choice as Commissioner of the INS.”
Ziglar was duly confirmed as the person to clean out the Augean stables of this country’s immigration bureaucracy. Truly a labor worthy of Hercules himself, but the President assured us that Ziglar would be able to surmount “management challenges” at the INS.
“Management challenges” is, of course, sort of a euphemism when you’re talking about the INS. The INS, like Snow White’s castle, is littered with the bones of brave knights who have tried to hack through the thorns and brambles of bureaucracy and clear a path to the beautiful sleeping maiden of efficiency. The maiden is still sleeping. The thorns and brambles remain.
This explains the recent “scandal” about the INS sending immigration paperwork to the flight schools where those terrorists worked. You may have heard about this. It seems that Ziglar’s “history of...tackling management challenges” simply was no match for the INS’s history of creating management challenges.
The immigration bureaucracy in this country is a standing refutation of all those fools who say that if we only surrender our liberties, the government can be trusted to act efficiently in the protection of the public interest. The INS and its predecessors has been basically outside the Constitution for over a century, and yet there have been no observable gains in efficiency.
If efficiency is what you get when you get rid of the Bill of Rights, then the curiously-named Alien Friends Act would have been a hallmark of efficiency. This 1798 law empowered President John Adams to deport allegedly dangerous aliens without any judicial trial. Adams never invoked this act, and it fell into desuetude. It was later discovered, however, that Adams had prepared a deportation order against a certain Du Pont, the founder of the famous Du Pont dynasty. Du Pont sneakily avoided deportation by not coming to this country until the Alien Friends Law had expired. Thus, America has had to endure the seditious activities of the Du Pont corporation.
The idea of abrogating the Bill of Rights in the name of deporting foreigners didn’t revive for some time after the Alien Friends Act. Then, in the anti-Chinese hysteria of the post-Civil War era, Congress discovered that its policy of stopping all Chinese immigration was being blocked by a sinister plot among the Chinese by which they decided to all look alike. With all the Chinese looking alike, then how could bureaucrats distinguish between Chinese immigrants who had entered the country lawfully and those who had entered the country in violation of the Chinese exclusion laws? To overcome the loophole that bureaucrats couldn’t tell one Chinese person from another, Congress passed what we now call the Geary Act. This law declared that Chinese immigrants would have to obtain passes to prove their right to reside in the United States. A Chinese person who couldn’t produce a pass would be deported, regardless of whether the immigrant was a legal resident of this country or not. Pass-law violations would be ruled on by federal judges, sitting without juries. Defendants could only summon credible *white* witnesses on their own behalf.
The U. S. Supreme Court, over a the objections of some picky dissenters who bitched and moaned about the Bill of Rights, decided in the 1890s that there was nothing in the least unconstitutional about this federal pass law. Of course, this is the same Supreme Court which said that it was constitutional for a state to segregate railroad passengers by race. The Geary Act decision was just as infamous and wrong as the segregation decision, and actually provoked more dissent than the segregation decision. Yet the segregation decision has been overruled while the Geary Act decision is the foundation of modern immigration jurisprudence (see Fong Yue Ting v. United States, 149 U. S. 698 (1893)).
Justice Brewer’s dissenting opinion warned that the ground was being laid for further abuses:
“It is true this statute is directed only against the obnoxious Chinese, but, if the power exists, who shall say it will not be exercised to-morrow against other classes and other people? If the guaranties of these amendments can be thus ignored in order to get rid of this distasteful class, what security have others that a like disregard of its provisions may not be resorted to?...
“In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, 'Why do they send missionaries here?'”
Justice Field’s dissent also warned of additional abuses down the road if the Bill of Rights was to be ignored in immigration cases:
“Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens. The moment any human being from a country at peace with us comes within the jurisdiction of the United States, with their consent...he becomes subject to all their laws, is amenable to their punishment, and entitled to their protection. Arbitrary and despotic power can no more be exercised over them, with reference to their persons and property, than over the persons and property of native-born citizens. They differ only from citizens in that they cannot vote, or hold any public office. As men having our common humanity, they are protected by all the guaranties of the constitution. To hold that they are subject to any different law, or are less protected in any particular, than other persons, is, in my judgment, to ignore the teachings of our history, the practice of our government, and the language of our constitution. Let us test this doctrine by an illustration: If a foreigner who resides in the country by its consent commits a public offense, is he subject to be cut down, maltreated, imprisoned, or put to death by violence, without accusation made, trial had, and judgment of an established tribunal, following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his case, what rule is it to be? If one rule may lawfully be laid aside in his case, another rule may also be laid aside, and all rules may be discarded. In such instances a rule of evidence may be set aside in one case, a rule of pleading in another; the testimony of eye-witnesses may be rejected, and hearsay adopted; or no evidence at all may be received, but simply an inspection of the accused, as is often the case in tribunals of Asiatic countries, where personal caprice and not settled rules prevail. That would be to establish a pure, simple, undisguised despotism and tyranny, with respect to foreigners resident in the country by its consent, and such an exercise of power is not permissible, under our constitution. Arbitrary and tyrannical power has no place in our system.”
Is it merely a coincidence that basically *all* of Field’s forebodings have come to pass?
The Chinese pass-law decision simply put the United States on a slippery slope which led directly to the modern immigration laws. The Geary Act had at least given Chinese defendants the right to a trial by a federal judge, if not a jury. Later laws provided that immigrants would not even have the right to a trial by judge, but instead would be subject to trial by bureaucrats at the Department of Labor. From trial by jury to trial by bureaucrat!
But that was only the beginning. There were some cases-the Palmer Raids, for example-in which the Labor Department showed itself a little bit too willing to rule in favor of unpopular aliens. The Palmer Raids are an example of this. Attorney General Palmer ordered the arrest of numerous alleged Communist aliens. The pesky Labor Department, through acting head Louis Post, ruled that the evidence against most of the aliens was insufficient or else tainted, meaning that only a proportion of the aliens arrested were actually deported, the remainder of them being freed. Such “abuses” by the Labor Department were ended in 1940, when the Justice Department, which had originally only had the responsibility of arresting immigrants, was given the power to deport immigrants as well. Arrest and trial are the responsibility of the same department. The INS is the immigration police, and another part of the Department-the Executive Office of Immigration Review-does the judging required in immigration cases.
The Justice Department is a police agency, not a judicial agency. No matter! If you’re an alien, you can console yourself that the “judges” who try you have a different Civil Service category than the INS “cops” who arrest you, even though both the “judges” and the “cops” work for the Attorney General.
The final safeguard for the alien-fair trial procedures-is now as meaningless as his other rights. Even without a trial by jury, even with the same Department providing both the cops and the judges, the law is still worried that aliens might get too fair a shake. So the Justice Department “courts” are either bypassed or are compelled to consider evidence in secret.
This century-old destruction of civil liberties in immigration cases has not been accompanied by any increase in efficiency on the part of immigration bureaucrats. My father observed this when he came to this country as an immigrant. The medical examination consisted of a somewhat intoxicated official asking, “how do you feel?” The security examination consisted of a my father signing a form declaring that he was not trying to overthrow the U. S. government by force. As it happened, my father was not carrying any diseases or harboring seditious intentions. But they wouldn’t have screened him out even if he had been.
Every now and then, an expose about INS inefficiency hits the newsstands. You’d think that, without the constraints of the Bill of Rights, the INS would be able to focus on its mission of sorting out the good immigrants from the bad ones. But they can’t even scratch their own butts without first filling out an application in triplicate. You can’t blame the Bill of Rights for *that* situation.
And you can’t blame the Bill of Rights for the fact that the INS was sending out the welcome mat to terrorists long after these terrorists had blown themselves (and lots of other people) up.
Yet every time one of our security agencies messes up, the Bill of Rights will become the scapegoat. Not that the Bill of Rights *doesn’t* protect the guilty. It’s just that you can’t scapegoat the Bill of Rights for every bureaucratic foul-up.