I'm not a lawyer, but I think the passage from the bill you quoted has two problematic parts. First is section (C):
"(C) assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States;"
If one takes the case of the first verb, "assists", it would be illegal to "assist...a person [an illegal alien] to reside ... or attempt to reside in or remain in the United States..." What constitutes assistance to reside or remain? I think any aid could be considered such: food, water, religious services, shelter, medical aid, road directions, translation, legal aid.
Secondly the word "harbors" in sections (E) and (F) seems not to be modified by "from detection." As such, harboring an illegal alien would be illegal even if one were making no efforts to conceal it from the government. And harboring may be as simple as providing any shelter.
There is the "knowing or in reckless disregard" clause, however, which might serve to safeguard the good Samaritan. (If law makes sense, at least; it's not reckless to disregard a person's national origin generally when performing first aid. Maybe reckless disregard if hiring a worker, though.)
I hate making general pronouncements about law, because I'm not much as a legal scholar -- I'm a fair practitioner, but that's different. With that disclaimer, Mr. B.'s literal reading in 1 looks pretty accurate. However, it's also silly -- in our current political climate, it's difficult to believe that anyone would mean to criminalize providing first aid to anyone, illegal immigrant or not. If you really wanted to write a law that criminalized the provision of first aid, you would have to do it with great clarity to convince people that that was what you meant.
What tends to happen to laws that mean something silly when taken literally, is that courts will make something up to avoid enforcing the silliness. In the first few years of the law's lifespan, various courts will try out various loose interpretations that come up with a result they consider non-silly, and one of those interpretations will eventually dominate, and then everyone will pretend that it's the obvious, literal, reading of the law.
(This bears some resemblance to what people complain about as 'judicial activism', but it's mostly non-ideological, except insofar as any given judge's belief as to what is too goofy to be read literally reflects that judge's ideology.)
I'm coming out of lurkdom because I live in southern Arizona. Reading that bill is pretty shocking to me because I think it would make efforts to render first aid illegal. The southern border has been tightened, and now many illegal or undocumented immigrants use a dangerous route through the barren desert in AZ. Hundreds of people die trying to cross the border every year. Humanitarian groups out here 1) maintain water stations on known migrant routes and 2) sometimes scour the desert, looking for migrants who need medical care. There's a case right now where two volunteers were arrested for transporting three ill migrants to a hospital. (It was July and, of course, over 100 degrees. I think they were pulled over before they got to the hospital.) It seems to me that the wording of this bill would make humanitarian activities such as transporting ill migrants to the hospital illegal.
I have no good ideas on what to do about illegal immigration, but I'm pretty sure this bill isn't going to help anything.
Anon's comment points to what is I think the problem with LB's analysis: people do, in fact, want to criminalize providing aid to illegal immigrants, and this law will give them the legal cover to do so in the areas that count the most (even if it gets interpreted differently in other jurisdictions).
Also, the "reckless disregard" thing doesn't provide any help, because that's just a legal term for your level of knowledge. It's included so that you don't have to actually know the person is an illegal immigrant to be criminally liable, you just have to "recklessly" ignore evidence that he/she is.
FWIW, which I concede may not be much, there is a law here, which has been applied by the police on a number of occassions in resect of failing to provide first aid to illegal imigrants. It is plain illegal to refuse assistence to those in an emergency, and so it should be. Is not the correct thing to do to provide the aid and then to report ones suspiscions to the relevant authorities? Creating moral quandries in this manner serves only to institutionalise unconscionable conduct.
And since when can a person's legal status have any bearing on whether or not s/he is worthy of receiving aid in a crisis (I am assuming a crisis of health)? Is the law here demanding that individuals pass that kind of judgement?
people do, in fact, want to criminalize providing aid to illegal immigrants, and this law will give them the legal cover to do so
Yes. I didn't mean to suggest that the law wasn't worrisome, or mightn't be enforced in exactly the manner you suggest -- more that you just can't tell what it would be taken to mean until it has some history in the courts.
9: True Apo, true. It is just that never having been confronted with it there (elsewhere in the world, yes) I still retain the capacity to be surprised by it. The Austrians are not above a little polite bigotry themselves, but I for one was on the sidelines cheering when the authorities "did" a motorist for failing to provide first aid to a victim of a border crossing scam gone wrong a couple of years ago.
Still, a Roma in Austria does tend be accorded less personhood than, say for argument's sake, a Brit. I probably wait shorter times at the hospital too... but that is another story.
I think LizardBreath is basically right in her assessment of how this law would be interpreted by the courts with respect to things like giving first aid to illegal immigrants. I would not call it judicial activism, but rather following the legal doctrine that in the case of criminal laws, ambiguities in the law are supposed to be interpreted in the defendant's favor.
I can't imagine that the law would be enforced to criminalize giving first aid to an illegal immigrant in general, although it might cover the activities described in 4 (above).
All that said, I would not favor the proposed law for other reasons.
I know there are no guaranties, but I don't think of this bill so much as inevitable law as gambit. Bush is using the occasion of the Senate's taking it up to talk about guest workers again. He might even veto it.
This program will permit any employer to admit any worker. From any country. At any time. The only requirement is that it be for a job Americans are not willing to take. But it is easy to create such jobs: Cut wages. Terminate the unions. Lengthen the hours. Speed up the lines. Chicken farmers have known this for years. Bush's plan is a blank check for every bad boss this country has.
... For millions of citizen workers, what would happen? The answer is clear: Bad bosses drive out the good. Good bosses will turn bad under pressure. The terms of our jobs would get worse and worse. Who would want a citizen worker? A bracero will be so much cheaper, more loyal, and under control. And who among us, in our right mind, would want to look for work? Unless, of course, we needed to eat. Or pay the mortgage. I am not exaggerating: This is a threat to us all.
Krugman, for those who can get him, is good on this subject this morning. Both of these proposals are stupid of course.
Krugman is effective in admitting that what most working class Americans believe about the harm Mexican immigration does is substantially true, and that more immigration controls really are needed.
Robert J. Samuelson (I can't believe I just typed that) is thought-provoking on the topic:
Guest workers would mainly legalize today's vast inflows of illegal immigrants, with the same consequence: We'd be importing poverty. This isn't because these immigrants aren't hardworking; many are. Nor is it because they don't assimilate; many do. But they generally don't go home, assimilation is slow and the ranks of the poor are constantly replenished.
I disagree, however. I think immigration is a positive for the US. We've got a generation of retirees, most of them descendants from previous waves of European immigration. To me it's a foregone conclusion that we're importing replacements for these retirees---importing from Latin American and parts of Asia, mostly. And I don't buy the assimilation argument . Immigrants do assimilate, even if it's not necessarily becoming WASPy SUV-driving assholes who read Robert J. Samuelson.
I'm not a lawyer, but I think the passage from the bill you quoted has two problematic parts. First is section (C):
"(C) assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States;"
If one takes the case of the first verb, "assists", it would be illegal to "assist...a person [an illegal alien] to reside ... or attempt to reside in or remain in the United States..." What constitutes assistance to reside or remain? I think any aid could be considered such: food, water, religious services, shelter, medical aid, road directions, translation, legal aid.
Secondly the word "harbors" in sections (E) and (F) seems not to be modified by "from detection." As such, harboring an illegal alien would be illegal even if one were making no efforts to conceal it from the government. And harboring may be as simple as providing any shelter.
Posted by Mr. B | Link to this comment | 03-26-06 6:55 PM
There is the "knowing or in reckless disregard" clause, however, which might serve to safeguard the good Samaritan. (If law makes sense, at least; it's not reckless to disregard a person's national origin generally when performing first aid. Maybe reckless disregard if hiring a worker, though.)
Not sure. Law doesn't follow common sense.
Posted by Cala | Link to this comment | 03-26-06 7:15 PM
I hate making general pronouncements about law, because I'm not much as a legal scholar -- I'm a fair practitioner, but that's different. With that disclaimer, Mr. B.'s literal reading in 1 looks pretty accurate. However, it's also silly -- in our current political climate, it's difficult to believe that anyone would mean to criminalize providing first aid to anyone, illegal immigrant or not. If you really wanted to write a law that criminalized the provision of first aid, you would have to do it with great clarity to convince people that that was what you meant.
What tends to happen to laws that mean something silly when taken literally, is that courts will make something up to avoid enforcing the silliness. In the first few years of the law's lifespan, various courts will try out various loose interpretations that come up with a result they consider non-silly, and one of those interpretations will eventually dominate, and then everyone will pretend that it's the obvious, literal, reading of the law.
(This bears some resemblance to what people complain about as 'judicial activism', but it's mostly non-ideological, except insofar as any given judge's belief as to what is too goofy to be read literally reflects that judge's ideology.)
Posted by LizardBreath | Link to this comment | 03-26-06 8:04 PM
I'm coming out of lurkdom because I live in southern Arizona. Reading that bill is pretty shocking to me because I think it would make efforts to render first aid illegal. The southern border has been tightened, and now many illegal or undocumented immigrants use a dangerous route through the barren desert in AZ. Hundreds of people die trying to cross the border every year. Humanitarian groups out here 1) maintain water stations on known migrant routes and 2) sometimes scour the desert, looking for migrants who need medical care. There's a case right now where two volunteers were arrested for transporting three ill migrants to a hospital. (It was July and, of course, over 100 degrees. I think they were pulled over before they got to the hospital.) It seems to me that the wording of this bill would make humanitarian activities such as transporting ill migrants to the hospital illegal.
I have no good ideas on what to do about illegal immigration, but I'm pretty sure this bill isn't going to help anything.
Posted by anon | Link to this comment | 03-26-06 8:04 PM
Anon's comment points to what is I think the problem with LB's analysis: people do, in fact, want to criminalize providing aid to illegal immigrants, and this law will give them the legal cover to do so in the areas that count the most (even if it gets interpreted differently in other jurisdictions).
Posted by teofilo | Link to this comment | 03-26-06 9:11 PM
Also, the "reckless disregard" thing doesn't provide any help, because that's just a legal term for your level of knowledge. It's included so that you don't have to actually know the person is an illegal immigrant to be criminally liable, you just have to "recklessly" ignore evidence that he/she is.
Posted by silvana | Link to this comment | 03-27-06 5:43 AM
FWIW, which I concede may not be much, there is a law here, which has been applied by the police on a number of occassions in resect of failing to provide first aid to illegal imigrants. It is plain illegal to refuse assistence to those in an emergency, and so it should be. Is not the correct thing to do to provide the aid and then to report ones suspiscions to the relevant authorities? Creating moral quandries in this manner serves only to institutionalise unconscionable conduct.
Posted by Austro | Link to this comment | 03-27-06 5:46 AM
And since when can a person's legal status have any bearing on whether or not s/he is worthy of receiving aid in a crisis (I am assuming a crisis of health)? Is the law here demanding that individuals pass that kind of judgement?
Posted by Austro | Link to this comment | 03-27-06 5:53 AM
Austro, we have a long and "colorful" history here of assigning less-than-a-person status to non-white people. But I'm sure you knew that already.
Posted by apostropher | Link to this comment | 03-27-06 7:01 AM
silvana yay silvana welcome back we missed you (apologies if someone posted this when I was offline and I missed it)
Posted by Matt Weiner | Link to this comment | 03-27-06 7:08 AM
people do, in fact, want to criminalize providing aid to illegal immigrants, and this law will give them the legal cover to do so
Yes. I didn't mean to suggest that the law wasn't worrisome, or mightn't be enforced in exactly the manner you suggest -- more that you just can't tell what it would be taken to mean until it has some history in the courts.
Posted by LizardBreath | Link to this comment | 03-27-06 7:22 AM
9: True Apo, true. It is just that never having been confronted with it there (elsewhere in the world, yes) I still retain the capacity to be surprised by it. The Austrians are not above a little polite bigotry themselves, but I for one was on the sidelines cheering when the authorities "did" a motorist for failing to provide first aid to a victim of a border crossing scam gone wrong a couple of years ago.
Still, a Roma in Austria does tend be accorded less personhood than, say for argument's sake, a Brit. I probably wait shorter times at the hospital too... but that is another story.
Posted by Austro | Link to this comment | 03-27-06 7:36 AM
I think LizardBreath is basically right in her assessment of how this law would be interpreted by the courts with respect to things like giving first aid to illegal immigrants. I would not call it judicial activism, but rather following the legal doctrine that in the case of criminal laws, ambiguities in the law are supposed to be interpreted in the defendant's favor.
I can't imagine that the law would be enforced to criminalize giving first aid to an illegal immigrant in general, although it might cover the activities described in 4 (above).
All that said, I would not favor the proposed law for other reasons.
Posted by Idealist | Link to this comment | 03-27-06 9:19 AM
I know there are no guaranties, but I don't think of this bill so much as inevitable law as gambit. Bush is using the occasion of the Senate's taking it up to talk about guest workers again. He might even veto it.
Posted by John Tingley | Link to this comment | 03-27-06 9:34 AM
Of course, the guest worker proposal is awful as well:
Posted by apostropher | Link to this comment | 03-27-06 9:46 AM
Krugman, for those who can get him, is good on this subject this morning. Both of these proposals are stupid of course.
Krugman is effective in admitting that what most working class Americans believe about the harm Mexican immigration does is substantially true, and that more immigration controls really are needed.
Posted by John Tingley | Link to this comment | 03-27-06 10:08 AM
Robert J. Samuelson (I can't believe I just typed that) is thought-provoking on the topic:
I disagree, however. I think immigration is a positive for the US. We've got a generation of retirees, most of them descendants from previous waves of European immigration. To me it's a foregone conclusion that we're importing replacements for these retirees---importing from Latin American and parts of Asia, mostly. And I don't buy the assimilation argument . Immigrants do assimilate, even if it's not necessarily becoming WASPy SUV-driving assholes who read Robert J. Samuelson.
Posted by Stanley | Link to this comment | 03-27-06 12:26 PM