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"Illegal Alien" vs. "Undocumented Alien":

Following up on Eugene's post, the always-helpful Bryan Garner concludes in his excellent resource, A Dictionary of Modern Legal Usage: "The usual and preferable term in American English is illegal alien. The other forms have arisen as needless euphemisms, and shold be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, 'not having the requistie documents to enter or stay in a country legally.' But the word strongly suggests "unaccounted for" to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning."

Garner has more analysis on the debate. I don't have a firm view on the subject, but pass the reference along to those who are interested.

Related Posts (on one page):

  1. "Illegal Alien" vs. "Undocumented Alien":
  2. Illegal Aliens:
Bart (mail):
Undocumented alien is a marketing term meant to obscure the fact that unauthorized immigration is a violation of law.
9.17.2009 3:58pm
martinned (mail) (www):

Undocumented alien is a marketing term meant to obscure the fact that unauthorized immigration is may be a violation of law.

FIFY
9.17.2009 4:03pm
J. Aldridge:
I prefer the term "illegal alien" or simply "unlawful trespasser."

I also believe immigration is not a power surrounded over to Congress because the states each had their own immigration laws, commissioners and bureaus, some even in their constitution.
9.17.2009 4:04pm
troll_dc2 (mail):
"Undocumented alien" is a sanitized phrase, almost clinical in its tone. It resembles the euphamism that triggers the need for "goals and timetables," which is "underrepresentation."
9.17.2009 4:04pm
PubliusFL:
martinned: When does unauthorized immigration NOT violate the law?
9.17.2009 4:15pm
Order of the Coif:
"Criminal" works just as well. It's shorter and totally accurate. And, it is not ambiguous.
9.17.2009 4:18pm
Suzy (mail):
I don't think illegal alien makes as much sense for everyday use because the mere fact of being an alien is not what's illegal; it's that the person is trying to be an immigrant, but not legally so. I also prefer illegal immigrant because it seems like a pretty neutral term that reasonable people on all sides could use, while alien has taken on a much more negative everyday connotation than it would have in the purely legal sense.
9.17.2009 4:22pm
Melancton Smith:
Illegal immigrant is incorrect for someone here to work but not immigrate but who is not legally here. There are many people who come to this country to work but are not intending to become citizens. Those are not immigrants, but guest workers.
9.17.2009 4:25pm
Snaphappy:
J. Aldridge: Perhaps you're unfamiliar with Article I, Sec. 8, cl. 4, giving Congress the authority to pass a uniform rule of naturalization? You cannot have a uniform law if states may do as they please. I suppose you think states can pass their own bankruptcy laws too (it's in the same clause).

Also, do you know what trespass means?
9.17.2009 4:26pm
Snaphappy:
Order of the Coif: Simply being in the country without an authorized status is not a criminal offense.
9.17.2009 4:28pm
David Welker (www):
The term "undocumented immigrant" is perfectly clear.

I don't find the argument that this is "euphemistic gobbledygook" persuasive.
9.17.2009 4:35pm
einhverfr (mail) (www):
J. Aldridge:

I also believe immigration is not a power surrounded over to Congress because the states each had their own immigration laws, commissioners and bureaus, some even in their constitution.


So you think the First Congress overstepped its authority in creating definitions of citizenship?

Talk about restoring our country to a condition that never existed, i.e. right-wing progressivism.
9.17.2009 4:36pm
Sebastian the Ibis (mail):
In the U.S. Code "illegal alien" refers to a convicted felon in the county illegally, and aliens in the process of sneaking into the country. See e.g. 8 U.S.C. s 1365(b), 8 U.S.C. s 1252c(a), 8 U.S.C. s 1356(r)(3), 8 U.S.C. 1365.

For a lengthier list see Municipal Overreaching: Federal Preemption as it Applies to Town Ordinances Outlawing the Rental of Housing to Undocumented Aliens, 14 Tex. Hispanic J. Law &Pol'y, 78 (Spring 2008).
9.17.2009 4:36pm
yankee (mail):
"Criminal" works just as well. It's shorter and totally accurate. And, it is not ambiguous.

In addition to the "not always a crime" issue, people commit misdemeanors all the time without being called "criminals." I have never known a driver who never speeds, always signals well in advance of changing lanes, never comes to a rolling stop at a stop sign, and never runs red lights. In fact, the vast majority of drivers do that sort of thing all the time even though they are misdemeanors in most (all?) states. And unlike traffic violations, which put others at risk, illegal immigration is a pure malum prohibitum issue.
9.17.2009 4:40pm
federale86 (mail) (www):
An alien is any person (homosapien sapien) not a citizen or national of the United States. There is not implication that the person is from Mars.

An immigrant is any alien other than an alien who satisfies an inspecting officer of the United States that the alien is a non-immigrant.

Therefore any alien in the U.S. who is not a lawful non-immigrant is an immigrant. Therefore they are are an illegal alien or an illegal immigrant.
9.17.2009 4:42pm
J. Aldridge:
J. Aldridge: Perhaps you're unfamiliar with Article I, Sec. 8, cl. 4, giving Congress the authority to pass a uniform rule of naturalization?

Naturalization and immigration is like comparing planets with stars.

Making uniform rules of naturalization was introduced into the constitution for the sole reason to provide the "exclusive right of declaring on what terms the privileges of citizenship &naturalization should be extended to foreigners."

Justice Grier in the Passenger Cases:
It must be borne in mind (what has been sometimes forgotten), that the controversy in this case is not with regard to the right claimed by the State of Massachusetts, in the second section of this act, to repel from her shores lunatics, idiots, criminals, or paupers, which any foreign country, or even of her sister States, might endeavor to thrust upon her; nor the right of any State, whose domestic security might be endangered by the admission of free negroes, to exclude them from her borders. This right of the States has its foundation in the sacred law of self-defense, which no power granted to Congress can restrain or annul.
9.17.2009 4:42pm
einhverfr (mail) (www):
For what we are talking about, "illegal alien" is the best term. Other terms exist and they may substantially overlap but there may even be folks I consider to be illegal immigrants but who are not illegal aliens (for example, coming over here on a tourist visa and getting married, then applying for an adjustment of status-- this is illegal but is common nonetheless). Similarly there are a lot of illegal aliens who are not immigrants.
9.17.2009 4:45pm
Connecticut Lawyer (mail):
"Undocumented" is meant to imply that it's just a formality, that documents could have been obtained but were overlooked or lost, and it's no big deal, like forgetting your library card. In other words, in this context it's highly misleading.
9.17.2009 4:47pm
J. Aldridge:
The article [Naturalization] has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship. --CJ Taney
9.17.2009 4:50pm
Jay:
It is a crime to enter the United States without permission, via 8 USC 1325. This applies to even an initial entry, not the far more commonly prosecuted illegal reentry statute, section 1326. I think it is not inherently criminal, though, if one enters legally and then goes out of status (e.g., visa expires).
9.17.2009 4:52pm
Suzy (mail):
That is a good point, Melancton and einhverfe--I was thinking only about people who would want to remain in the U.S., but would do so illegally as non-citizens. I didn't consider people would come here just to work but then would be returning elsewhere, never even intending to become citizens if they could. Somehow that strikes me as an even more serious problem, though. Maybe we need both terms (illegal immigrant/illegal alien) just to highlight the distinction between the two?
9.17.2009 4:53pm
egd:
I like "Unlawful resident", but most people look at me askance when I say that, so I usually have to rephrase with "illegal immigrant."

That way, people know I'm a right-wing extremist who just might shoot them, try to convert them to Christianity, or impose the death penalty on them, at least if they don't agree with me.
9.17.2009 4:57pm
yankee (mail):
The article [Naturalization] has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship. --CJ Taney

Is this supposed to be sarcastic? If not, you may want to find a source more persuasive than Roger "no rights which the white man was bound to respect" Taney.
9.17.2009 4:57pm
J. Aldridge:
Is this supposed to be sarcastic? If not, you may want to find a source more persuasive than Roger "no rights which the white man was bound to respect" Taney.

Okay... Did congress ever pass immigration laws during the 19th century under the power to make rules of naturalization? Did Texas adopt a "Bureau of Immigration" in its constitution that was approved by congress in 1869 to conform with the federal constitution?
9.17.2009 5:05pm
24AheadDotCom (mail) (www):
Snaphappy writes: Simply being in the country without an authorized status is not a criminal offense.

Yes, but if you're here and you didn't have a visa, they can get you for EWI. See this. If an immigration lawyer who's willing to use their real name disagrees with anything there let me know and I'll add an update.

Also, it'd be great if this site would concentrate on things that are more important.
9.17.2009 5:15pm
one of many:


Is this supposed to be sarcastic? If not, you may want to find a source more persuasive than Roger "no rights which the white man was bound to respect" Taney.

I'm sorry, but since when does being an originalist make one's opinions of low value? Is only originalists who are subject to having all their opinions considered unpersuasive or does it also apply to other legal interpretative traditions?
9.17.2009 5:16pm
einhverfr (mail) (www):
J. Aldridge:

Did congress ever pass immigration laws during the 19th century under the power to make rules of naturalization?


Funny way to frame the question since the first use of such power to curb immigration was in 1798...... But I guess that is too early :-)
9.17.2009 5:38pm
J. Aldridge:
Funny way to frame the question since the first use of such power to curb immigration was in 1798...... But I guess that is too early :-)

The Alien and Sedition Acts were not acts under the Naturalization clause, but from the idea of self-preservation of government. Some thought it was constitutional including Marshall, many others thought it was unconstitutional like Madison, Jefferson and John Bingham. The fact the laws didn't last very long speaks for itself.
9.17.2009 5:57pm
Seamus (mail):

Therefore any alien in the U.S. who is not a lawful non-immigrant is an immigrant. Therefore they are are an illegal alien or an illegal immigrant.



No, they might be an illegal non-immigrant. (For example, a student who has overstayed his visa but plans to return to his home country. John Derbyshire was in this status at one time. He went back to England, and only later became an immigrant.)
9.17.2009 6:12pm
Raoul (mail):
If I miss a plane or overstay my visa in Canada-am I a criminal? No. Also illegal suggests a malum per se and as stated, many "unwanted" visitors actually entered the country legally (50%?) So there are non complying with the law but they are not criminals; since illegal is understood to be criminal behavior which is factually incorrect- undocumented works as it describes the situation exactly- non-compliant immigrant could work.
9.17.2009 6:19pm
eric1977 (mail):
One advantage of "undocumented alien" is that it is very specific as to the fact that the person entered without ever having been legally documented. "Illegal alien" can include people of multiple statuses (eg: people who have overstayed the residency granted with student visas; people whose residency status has lapsed for one reason or another; actual undocumented immigrants; etc.) "Undocumented alien" is, IMHO, a more clear violation of the law rather than the sizeable number of people who entered legally but whose immigration status is no longer clearly legal. In some cases, people in a lapsed status are not necessarily guilty of criminal violations (depending on the nature of their entry and duration of stay). But these people, even if guilty in a criminal sense, are viewed differently (by Immigration Law even if not by the general public) than people who were never documented in the first place.
9.17.2009 6:42pm
Houston Lawyer:
Illegally employed. Fraudulently employed. Black market workers.

You'd think that the unions would have a label such as "scab" to apply.

I'd also like to see a fitting name for the businesses that exploit the fact that these people are not here legally.
9.17.2009 6:43pm
sbron:
I just don't understand this obsession with large-scale immigration as a necessity from both the multicultural and libertarian perspective. Do we really have to let in millions of poorly educated and low skilled people from the third world just because we let in Eugene Volokh? Can't we have a bit of selectivity in terms of skills and education and willingness to assimilate? Mark Steyn explains it best

"As Christopher Caldwell sees it, no country truly "depends" on mass immigration. Ultimately, it's a choice, or a fetish, or a fit of absentmindedness for which, in the event that one is called upon to justify it, there is no rationale. Indeed, it's the defining irrationale of the age: a hitherto all but unknown phenomenon that is now regarded either as inevitable or the essential moral component of an advanced society"
9.17.2009 6:44pm
yankee (mail):
I just don't understand this obsession with large-scale immigration as a necessity from both the multicultural and libertarian perspective. Do we really have to let in millions of poorly educated and low skilled people from the third world just because we let in Eugene Volokh? Can't we have a bit of selectivity in terms of skills and education and willingness to assimilate?

Call restrictions on freedom of movement what you will, but don't call them liberty. And I don't get this "just a bit" thing—there is no practical way for unskilled workers to immigrate legally unless they have family here or hit the jackpot in the diversity lottery. H2B visas are available only for seasonal or (very) temporary work. And Mexicans (who comprise a great many of our illegal immigrants) are not even eligible for the diversity lottery.

And of course a demand that immigrants "assimilate" beyond learning English is absurd. It is none of the government's business whether someone chooses to live in an ethnic neighborhood, which spices they use, or what language they speak in their own home. Being able to make your own choices about that kind of thing is what freedom is about.
9.17.2009 7:16pm
Michelle Dulak Thomson (mail):
David Welker,

The term "undocumented immigrant" is perfectly clear.

I don't find the argument that this is "euphemistic gobbledygook" persuasive.

It's euphemistic, because it skirts the central legal issue, which is that the person is illegally in the country. It's gobbledygook, because it doesn't literally mean "person who has come into the country, but is missing some papers," and no one takes it to mean that. If I drop my passport five minutes after coming through Customs and can't find it, neither you nor anyone else will call me an "undocumented immigrant." And neither would you call my friend who just celebrated his 50th anniversary as a US citizen an "undocumented immigrant" if he happened to mislay his passport.

It's fundamentally dishonest, because its premise is that there's nothing wrong with anyone's presence here that the proper papers wouldn't put right. Which is true enough — in the same sense that a valid title to my house would entitle you to occupy my house, and a valid marriage certificate between me and you would entitle you to call me your wife. But you aren't my undocumented husband, nor my undocumented landlord.
9.17.2009 7:30pm
AccountingProf:
After a person is clearly deemed to have broken the law, I don't see much problem with 'illegal.' But in fact the term is widely used to refer to people who are alleged to have broken the law, often because of their accent or skin color. That seems problematic.
9.17.2009 7:59pm
Michelle Dulak Thomson (mail):
AccountingProf,

No one ought to be called an "illegal alien" unless the speaker has good reason to believe that the person is a foreign national illegally in the country. If there is only an allegation, the phrase would presumably be "alleged illegal alien."

I don't see how "undocumented worker" is any better in this context. Can you guess from someone's skin color or accent what "documents" s/he has on hand? I can't. Nor, for that matter, can I guess whether s/he is employed.
9.17.2009 8:12pm
Roger Schlafly (www):
One advantage of "undocumented alien" is that it is very specific as to the fact that the person entered without ever having been legally documented.
Yes, but the term does not include the documented illegal aliens. When people complain about illegal aliens, they usually want a term that includes all illegal aliens, whether documented or not.

They also want to include all illegal aliens, whether they are immigrants or not. Other terms like "undocumented immigrants" may be fine for narrower classes of people, but if you mean illegal aliens then it is best to say illegal aliens.
9.17.2009 8:29pm
Frank Snyder (mail):
If it's a crime to enter the U.S. without a visa, then "illegal alien" seems right. If it's not a crime to overstay your visa, then presumably "unlawful alien" would be better since an act can be unlawful even if it is not expressly prohibited by law. An American citizen who can't find his or her Social Security card or passport is presumably an "undocumented worker."

The Supreme Court once wrote an opinion on the difference between "illegal" and "unlawful" but I don't remember the name. Somebody here might.
9.17.2009 9:25pm
Ricardo (mail):
This paper makes a distinction between the various terms. Illegal immigrant or illegal alien is someone who has entered the country illegally or who has overstayed their visa. Undocumented worker (in the context of immigration policy) is a non-U.S. citizen who is working without proper authorization.

A foreign student who works in the kitchen of a nearby restaurant without a working visa for spare cash (happens a lot more than you think) is an undocumented worker but not an illegal alien. A grandmother who comes to visit family members in the U.S. on a tourist visa and then overstays is an illegal alien but not an undocumented worker.

These distinctions matter more for policy wonks than the everyday public, though.
9.17.2009 9:44pm
David Welker (www):
Michelle Dulak Thomson,

The vast majority of people simply are not confused in the way you suggest when they hear the phrase "undocumented immigrant."

Are you confused about what someone means when they refer to an "undocumented immigrant"? I am not. Very few people are not.

I do not think you should call something "fundamentally dishonest" (especially where dishonesty goes to motive) where it does not actually result in confusion in practice.

The purpose of this change in phraseology is simply a matter of being more polite. The term "alien" may be associated with non-humans. (Although the term does in fact have a long history of being used to refer to human foreigners.) The term undocumented is an indication of exactly what illegal action has been committed -- that is, a failure to get the documents indicating permission to be in the country.

Now, some people do not want to be more polite. They want to emphasize the lawbreaking aspect that illegal aliens engage in and they want to use less sympathetic language.

But really. I don't think anyone is confused. Whenever someone says that either "illegal alien" or "undocumented immigrant" is confusing, they rarely mean that they themselves are confused by what is meant by these phrases. I would venture to guess that, as an empirical matter, very few people find either of these phrases confusing. Instead, I think what is going on is that people are trying to make a more objective argument for what in reality comes down to personal preference.

I don't really think that there are any substantive differences in using the term "illegal alien" or "undocumented immigrant" in everyday non-legal contexts. Rather, the choice of words is merely likely to indicate the speakers political preferences. Although, there are certainly going to be many cases where someone who is "soft" on illegal immigration will use the term "illegal alien" and someone who is "hard" on that same topic will use "undocumented immigrant" simply because they are not giving much thought to the issue.

Overall, I do not believe that an objective argument exists regarding the best phrase, because I do not believe anyone is really confused about what is meant when either phrase is used.
9.17.2009 10:18pm
Raoul (mail):
Welker, very well stated; but one question remains, having a choice, why do some choose the more vulgar and coarser term? I think the question answers itself, plainly, some people are jerks.
9.17.2009 11:19pm
David M. Nieporent (www):
Did congress ever pass immigration laws during the 19th century under the power to make rules of naturalization?
Yes.
9.18.2009 3:16am
Ricardo (mail):
J. Aldridge, I've seen you make the claim several times now that it is somehow a usurpation of the States' authority for Congress to regulate immigration. I've never seen you post any evidence of this or of the state immigration bureaus you allude to. A description of the Texas Bureau of Immigration follows:

The Constitution of 1869 made provision for a special agency with "the purpose of promoting and protecting immigration" into the state. Enabling legislation that was passed on May 23, 1871, directed the governor to appoint a superintendent with a four-year term to administer this Bureau of Immigration. He was empowered to use tax revenues to write material describing Texas as a destination for the immigrant and to appoint paid agents and volunteer lecturers to travel to southern and northern states as well as to Europe, to encourage potential immigrants to seek land in Texas. Gustav Loeffler served as the first superintendent until 1874, when Governor Richard Cokeqv appointed Jerome Bonaparte Robertsonqv to that position. Fiscal retrenchment incorporated in the Constitution of 1876 brought an end to the bureau, as the constitution included a specific prohibition against using state funds "for any purpose of bringing immigrants to the State." While the bureau existed, its superintendents negotiated with transportation companies to help bring immigrants into the state and published such enticement literature as the pamphlet "Texas, the Home for the Emigrant, From Everywhere."


Link

The Texas Bureau of Immigration existed for the purpose of advertising Texas to migrants: its purpose was to get people into Texas, not to keep people out.

Can you can substantiate your assertions with something more than this?
9.18.2009 3:47am
Frank Snyder (mail):
I'm all for open immigration, but mucking up perfectly good legal terms to avoid offending people who have (at least until the law is changed) committed crimes seems a bit much. Even if we wanted a better one, it wouldn't be "undocumented worker." First, many American citizens lack appropriate documentation when they are hired. When I hire someone before he can roust up a copy of his birth certificate, he's an "undocumented worker." I can hire him, but I can't pay him until I get his documents.

Second, the problem for illegal aliencs the problem isn't that they don't have documents, it's that they are illegally in this country and can't get documents. Someone who smuggles cocaine into the U.S. isn't an "undocumented importer." He's a criminal.

Third, some of those illegally in the country aren't working, so calling them "workers" is erroneous.

The federal government calls people who are in this country lawfully "resident aliens." They don't seem to be offended by the term. Should we call them "documented workers"? What if they're students not eligible to work? "Documented non-workers"?

Abandoning a perfectly good term because it's used as a synonym for "extraterrestrial life form" seems silly. I doubt anyone really thinks that the Mexicans coming over the border are from outer space. And if they're committing a crime (even though I'd let them in if it were up to me) I'm not sure why we should be overly concerned about what we call them.
9.18.2009 4:10am
Ricardo (mail):
Frank, as I pointed out above, there are many people who are legally in the U.S. but who are working without proper authorization. A student with the proper student visa who waits tables or baby sits for a few hours a week for beer money is generally not considered an "illegal alien" since he was legally admitted to the U.S. and his legal status has not lapsed. He is an undocumented worker.

Vague terminology obscures some of the big issues in the immigration debate since the discussion focuses predominantly on Mexicans who cross the border without inspection and on the need for enhanced border security. In fact, many illegal aliens and undocumented workers enter the U.S. straight through the front door and have the passport stamps to prove it.
9.18.2009 4:35am
JoelP:
I'm not sure we need to stigmatize those Americans whose presence involves no government assistance. Paperless Americans?
9.18.2009 7:41am
Michelle Dulak Thomson (mail):
David Welker,

I didn't say that "undocumented immigrant" caused "confusion"; I agreed with the person who called it euphemistic gobbledygook. Something can be euphemistic while being perfectly understandable; and it can be logically incoherent while still being understandable.

If someone tells me, for example, that without racial preferences there wouldn't be any racial-minority students in top universities, I can understand what s/he means, but it's still not, y'know, actually true. The person has just defined Asian-Americans out of the category of "racial minorities." Either saying "racial minorities except Asian-Americans" is too cumbersome, or the whole subject of Asian-American academic achievement is too unpleasant.

So to your gloss on "undocumented":

The term undocumented is an indication of exactly what illegal action has been committed -- that is, a failure to get the documents indicating permission to be in the country.

Mmm-hmm. And if I set up residence in your house, the illegal action that I have committed is a failure to obtain the documents indicating that I have title to your house. And if I assert that I am your wife, and claim whatever property rights your wife would have, the illegal action I have committed is a failure to obtain documents asserting that I am your wife.
9.18.2009 12:18pm
dwex (www):
If you go to Wikipedia, and type "undocumented alien" into the search box, it goes to the page titled "Illegal Immigration".

The power of crowd-sourcing.
9.18.2009 1:28pm
dwex (www):
Also - when I wrote a blog post about this euphemism a few months ago, one of our readers replied:


Referring to an illegal alien as an "undocumented worker" is like referring to a drug dealer as an "unlicensed pharmacist".


I liked that.

Bottom line - it's hard to have a rational discussion about immigration issues if people are going to obfuscate this way. I am pretty liberal on a range of social issues, but I've expressed my displeasure with the "sanitizing" of the terminology this way to several of the most prominent organizations, whose work I generally support.
9.18.2009 1:32pm
cbyler (mail):
The problem with "illegal" is its connotation - namely, crimes which are malum in se, like robbery or assault. Applying it to people whose only offense is malum prohibitum is a smear, even though it's technically correct. It's a deliberate attempt to invoke the more negative connotations of serious crimes.

How would you like being referred to as an "illegal driver" the next time you speed? Or maybe just because you look like a driver that is likely to speed? I bet there's lots of illegal parkers on this blog, too. And many, many people have a past as an illegal drinker, even though they might not be one anymore. And let's not forget all the illegal downloaders and illegal music-copiers.

"Undocumented" isn't quite right, either, because it isn't just a matter of paperwork.

"Unauthorized immigrant"? That implies that the problem is that an authority disapproves of the action (but not necessarily for any particularly good reason), which is correct. "Unlicensed" would probably work too - the government grants some people licenses to immigrate, denies them to others.

Basically, there's an essentialism in the way people look at crime that just doesn't apply to immigration policy, any more than it does to parking tickets. IMO the label should capture the arbitrariness of the restriction that these people are disregarding.
9.18.2009 4:53pm
Michelle Dulak Thomson (mail):
cblyer,

I see the distinction you're trying to make, but I'm not sure it works. (Where, for example, is the line that separates the malum in se of "robbery" from the malum prohibitum of "illegal downloading" and "illegal music-copying"? Does it reside in the monetary value of the item stolen, its abstract nature, or both?)

Is being in the country illegally like violating the speed limit? Or is it more like trespassing? And is trespassing malum prohibitum or malum in se? I suppose it depends on what you think of property rights in land. But we tend to place a very strong value on the right of homeowners to say who can and who can't be on their property. I am not so sure that the analogous right of the government to say who can and who can't be in the country is an arbitrary thing on the order of a traffic law.
9.18.2009 6:15pm
THESMOPHORON:
It is presumptive for people who do not favor the term "undocumented" to speculate as to what it is "meant" to communicate.

The State department issues reports on refugees, asylees, and internally displaced persons in the United States. Knowing about the phenomenon of people being in this country, undocumented, "illegally," but through no fault of their own and therefore emphatically not criminally, would seem to be a prerequisite to any intelligent discussion of the topic at hand.
9.18.2009 9:20pm
J. Aldridge:

The Texas Bureau of Immigration existed for the purpose of advertising Texas to migrants: its purpose was to get people into Texas, not to keep people out.

Can you can substantiate your assertions with something more than this?

Absolutely. Section One of the Texas Constitution:
There shall be a Bureau, known as the "Bureau of Immigration," which shall have supervision and control of all matters connected with immigration. The head of this Bureau shall be styled the "Superintendent of Immigration." ... He shall have such further powers and duties, connected with immigration, as may be given by law.

Doesn't sound a bureau dedicated to advertising to me. Listing every state law that had a law to keep certain people out and allowing certain people in is like asking to list all the states who have traffic laws against speeding. They all do!
9.18.2009 9:40pm
J. Aldridge:
^^^ ooops, They all do! = They all did!
9.18.2009 9:41pm
MI (mail):
Re. state immigration laws, see Gerald L. Neuman, "The Lost Century of American Immigration Law", 93 Colum. L. Rev. 1833 (1993).
9.19.2009 10:01pm
Fuzzlenutter (mail):
I call them exactly what they are; Illegal Invaders...
9.21.2009 6:31pm
cbyler (mail):
Theft deprives the property owner of the use of the property. Copyright violation only deprives them of the speculative possibility of future sale to the same person you gave the information to (or yourself, depending on which side of copyright violation you're looking at, the person who gives away an unauthorized copy, or the person who receives one). IIRC, in many areas of law there's a difference between a concrete and present harm and a potential harm that may or may not occur in the future.

Speeding or drunk driving put nonconsenting others at increased risk of physical harm. Trespassing or unauthorized presence in the country do not.

It's true that there is a certain tradition of allowing landowners to bar others from their property even arbitrarily and without any evidence that their presence would cause harm. But it doesn't seem to rest on rational considerations in the same sense that speed limits or drunk driving laws do. Tradition qua tradition obviously doesn't trump all other considerations or we would still have our laws upholding certain people's traditional right to own other people.

The government's right to bar people driving 70 from publicly built and operated roads seems to me *at least* as strong as the stronger of its right to bar immigration or the right of a private landowner to bar unwanted people from walking across their land (and possibly even stronger because of the public safety considerations). But people make excuses for speeding all the time, and inveterate speeders don't hesitate to argue against immigration while disregarding the government's right to restrict who can use the roads the government built and maintains, and under what conditions. (For that matter, they also don't generally hesitate to impose conditions on people coming onto their land while disregarding the government's conditions on the use of its land, i.e. the road.)
9.22.2009 3:35pm

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