This weekend, Washington mourned the iconic Charles Krauthammer’s passing. It seemed a pause in the bedlam on the border, about which he would surely have had something wise to say. As someone who knew Dr. K mainly through his scintillating columns and television commentary, I suspect his thoughts on the refugee tide would be shorn of hubris about what Washington’s laws can accomplish.
The futility of dictating to the tide, rather than shoring up against it, was an occasional Krauthammer theme. He was wont to invoke an apocryphal tale about Canute the Great (see, e.g., here), who ruled a North Sea empire a millennium ago. In this, as in innumerable other ways, Charles was singular among commentators because he got the story right. His throne moved to the coastline, Canute audaciously orders the incoming tide to halt. But this is not a cautionary tale about the delusional arrogance of power. It is about humility: The king was showing his sycophantic courtiers that the law — in this instance, the writ of a purportedly omnipotent monarch — is limited, sometimes impotent, against such phenomena as the forces of nature.
The “rule of law†is not a magic wand. It is possible only in a community that has agreed to live under its provisions. Even within such a community, it must enforced by the power of the state. Law enforcement is manageable as long its resources are commensurate with the reasonably expected degree of law-breaking.
The situation is different when we are dealing with outsiders who seek entry into the community. By nature, that is more of a security challenge than a legal one. If the outsiders are not legally entitled to enter, or if their claim to such entitlement is dubious, the situation can masquerade as a legal problem only as long as it can be addressed by the resources the society has dedicated to enforcement. But what generally happens when a security challenge is handled as if it were a mere law-enforcement issue is that the bureaucracy gets overwhelmed and we find that enacting laws is no solution.
Congress cannot enact a law that prevents Central American migrants from flooding the border. Or, one supposes, it can enact a thousand such laws and look on in Canute-like futility as the incursion continues. Passing laws is not a serious response to a security challenge, and an unserious response always emboldens the challenger. Outsiders can overwhelm a national border by armed force or, if the nation is not willing to defend its border, by sheer numbers. Either way, the challenge can be answered only by the deployment of physical barriers and armed force sufficient to deny the onslaught and discourage others from coming.
Only after the crisis is over, after the security threat is contained, can we establish a legal process backed by resources scaled to handle the number of outsiders realistically expected to petition for entry.
https://www.nationalreview.com/2018/06/asylum-immigration-crisis-security-challenge-not-legal-problem/
